"There is no maxim in my opinion which is more liable to be misapplied, and which therefore needs elucidation than the current one that the interest of the majority is the political standard of right and wrong...." ~ James Madison
Dissecting Boldrin and Levine: An Alternate View of Intellectual Property
January 26, 2009
Every few months, some new tract or book is announced, with great fanfare, that purports to demolish any remaining argument for legal protection of Intellectual Property (IP). Then, when the new offering fails to convince the intransigent masses, who cling to the antiquated notion that creators deserve protection, something new is issued a few months later. Inevitably, however, upon close examination, each new tract turns out to be smoke and mirrors, and the anti-IP'ers, bloodied but unbowed, retreat until they have found a new champion, after which the cycle repeats. The latest is Michele Boldrin and David K. Levine's Against Intellectual Monopoly, touted by columns such as Jeffrey Tucker's "A Book That Changes Everything", containing such purple prose as, "I can make a personal guarantee that not a single objection you think you have to their thesis goes unaddressed in these pages. Their case is like the sun that melts all snow for many miles in all directions." One would think the Messiah had arrived.
Before I launch into a critique of B&L, let me begin by acknowledging areas of agreement. I agree with the abolition of patents: they are based upon mere doodles on a napkin, gussied up in fancy legalese. They overwhelmingly represent ideas which would be independently arrived at by others, and therefore cannot properly be said to "belong" to one person. I agree that a software writer should be free to mimic the look and feel of another's program, as long as he does not claim to be affiliated with the program he is mimicking and does not steal the other's source code or executable. I would place no legal restrictions upon writing stories with the same cast of characters as someone else's story ("sequels" in B&L's parlance). I agree that it is absurd to criminalize the mere possession of tools which would allow the copying of encrypted works, as long as they are not actually used for that purpose.
What I cannot agree with is the notion that a completed work of prose, music, visual still, or movie, should be copyable without the permission of its author. The vital distinction: it is overwhelmingly unlikely that a particular completed work would be independently arrived at by another. Note that "overwhelmingly unlikely" does not mean one chance in a hundred or even one in a million: for any real-life work, the odds of accidental duplication are far less than of picking a particular atom among all atoms in the universe. 
The implications of this distinction are far-reaching. Unlike an idea protected by patent, which others (about to be blocked by the patent) very likely already have or would soon have on their own, copyright protects a creation the world would not have, either now or in the future, except for the efforts of its author. Such a creation can properly be said to "belong" to the person who brings it into existence. 
Also unlike a patent, copyright blocks nobody who wants to create a similar work. It does not impede the flow of knowledge or of technology. It does not discourage innovation. It merely says, "If you want a copy of this particular creation, you must pay the asking price."
One might think that B&L would argue more strongly for abolition of patents than for abolition of copyright. One would be wrong. Like most anti-IP'ers, they are determined to lump the two together, come hell or high water, and make the case that everything -- the baby and the bathwater -- must be swept away together.
B&L seem to base their entire argument upon the following assertion (p. 12): "In the final analysis, the only justification for intellectual property is that it increases - de facto and substantially - innovation and creation." That statement is nonsense. The real justification for IP protection is not practical, but moral: stealing another's work is THEFT, and theft is wrong. However, numerous objections to B&L's assertions can be made on a practical basis as well. Let's consider some of their points:
- B&L list numerous examples of works that brought their authors remunerative return in the absence of copyright laws and from this leap to the conclusion that protection is not important. In so doing, they fall into the same fallacy that Bastiat described in his famous "broken window" story: considering what is seen and failing to consider what is not seen. Yes, J.K. Rowling would probably have made enough from writing Harry Potter books to justify her efforts, but struggling writers would be pushed from barely eking out an existence into giving up writing, if theft were legalized. Failed writers in the past are not seen today, and so it is easy to pretend that they never existed, provided one has sufficient motivation to do so. B&L clearly have such motivation. Their contemptuous paragraph on Rowling is worth repeating in its entirety:
"What, then, do these facts mean for fiction without copyright? By way of contrast to the 9/11 commission report, which was in paperback and, including free downloads, seems to have about 8 millions copies in circulation, the initial print run for Harry Potter and the Half-Blood Prince was reported to be 10.8 million hardcover copies. So we can realistically conclude that if J. K. Rowling were forced to publish her book without the benefit of copyright, she might reasonably expect to sell the book to a publishing house for several million dollars - or more. This is certainly quite a bit less money than she earns under the current copyright regime. But it seems likely, given her previous occupation as a part-time French teacher, that it would still give her adequate incentive to produce her great works of literature." (p. 29)
What, one might ask, is the relevance of the fact that Rowling worked as a "part-time French teacher"? Had she begun a millionaire who wrote Harry Potter books just for fun, she would still deserve remuneration for every sale of her work.
- Many software writers choose to make their work available for free. So what? I don't belong to the cadre who claim that such a choice is subversive in some way, but this is not the equivalent of saying, "Therefore nobody should be paid for copies of their work whether they want to be or not."
- Copies of an author's work can be made virtually for free; therefore they aren't "scarce"; therefore they have no value that anybody need respect. This line is not heavily stressed by B&L, but it is popular among anti-IP'ers and was apparently originally conceived by their darling, Stephan Kinsella. Nonsense! The actual worth of a work can be calculated as the sum of what each person on earth would willingly pay for a copy, if it could be obtained in no other way. This figure may fairly be said to represent the potential value the author has brought to the world. Subtract the cost of making copies for all purchasers, and we arrive at a return the author may hope to approach in a just society, assuming he's able to reach all potential buyers and is able to guess how much they're willing to pay. Note that this second number goes UP, not down, as the cost of making copies decreases. An interesting question for anyone who buys into the Kinsella argument would be: consider a product which requires physical raw materials to produce. Would it be "not stealing" to break into a store, take one, and leave in exchange only the cost of the raw materials and labor needed to produce it? The idea is as absurd as Kinsella's is for intellectual works.
- The RIAA, which is suing music downloaders in highly-publicized court cases, is a bunch of buffoons who are doing everything wrong if they hope to gain sympathy among the populace. Agreed, but so what? This does not negate the fundamental immorality of stealing another's work, or the right of its owner to seek redress.
- An author may actually benefit from theft, because his work is disseminated and as a result may find more people willing to pay for it. Again, true, and wise authors should refrain from clamping down too hard if they know what's good for them. But this does not justify repealing all legal protection.
- Some guy made a movie that cost only $128, but was forced to pay $400,000 royalties on copyrighted music and video clips (p. 120). Uhhh... he CHOSE to include music and video clips which cost that much; nobody held a gun to his head. He could also have CHOSEN any number of other options, including writing his own music and including only his own video clips. Yet B&L present this story as if it were a terrible outrage, and salivate over having such a wonderful ratio (400,000/128) to whine about. Give me a break!
- Some people who own music rights have engaged in corrupt practices (p. 121). Oh horrors! By all means prosecute them for anything involving force or fraud. But claiming that copyrights lead to corruption makes as much sense as saying, "Airplane manufacturers have been revealed to have bribed governments in order to boost sales; therefore, the manufacture of airplanes causes corruption, and so is an evil that should be eliminated."
Later in their book, B&L get around to sneering at private contracts. Here's a sample gem (p. 288): "[I]f I purchase a book by signing a private agreement not to resell copies, this agreement impinges on the right of other people to buy the book from me. These kinds of agreements, in which a group of people (the seller and the first buyer) agree to limit their provision of some good or service, are usually called cartels and are generally illegal under anti-trust law. If you and I, as owners of bakeries, sign a contract agreeing to limit the number of loaves of bread we will sell, not only will the courts not enforce that contract, but we will be subject to criminal prosecution. The same is true if the same contract is entered upon by a bakery and, say, a client restaurant, or even a private citizen." There are, of course, thousands of absurd laws on the books that criminalize, or refuse to enforce, voluntary agreements among consenting adults, but people who believe in the right of individuals to lead their own lives oppose such laws rather than touting them as examples of how to construct an ideal society. B&L make it more than clear where they stand, and it's not a pretty picture.
Full disclosure: I am a software author, whose work is available online for a price. It would be possible for any number of clever people to hack my program's security, and thus I have a personal reason for resenting any suggestion that the law should encourage such behavior. I can't help but wonder whether most opposition to IP protection comes from people who have produced nothing of value and who feel entitled to steal from anybody who has. That kind of attitude represents, to my mind, the decay of society, the equivalent of governments believing they are entitled to tax without limit from the productive because of the alleged "need" of recipients for the stolen loot.
No amount of hand-waving by the finest minds on earth would make such a society one in which I would want to live. It is a society which glorifies and rewards theft, no matter what its proponents may say to the contrary. It strikes me as highly ironic that organizations such as lewrockwell.com and mises.org, which claim to be "pro market", would feature columnists who pander to would-be thieves and in so doing, bring discredit to their own central message.
 According to Wikipedia, the number of atoms in the universe is approximately 10^80 (ten to the eightieth power). A modestly sized novel might contain a million bytes, or 8 million bits. There are 2^8000000 possible works containing 8 million bits, roughly 10^2408240. There are over 10^80 possible works containing a mere 272 bits, or 34 bytes.
 I deliberately sidestep here the question of how long legal protection of copyright should last; one could argue that it should go on forever, but I would not oppose something reasonable such as the greater of the author's lifetime or 20 years.