Intellectual Property’s Great Fallacy

by Stephan Kinsella on February 2, 2011

An intriguing new working paper by IP law professor Eric E. Johnson, “Intellectual Property’s Great Fallacy“. Abstract below:

Intellectual property law has long been justified on the belief that external incentives are necessary to get people to produce artistic works and technological innovations that are easily copied. This Essay argues that this foundational premise of the economic theory of intellectual property is wrong. Using recent advances in behavioral economics, psychology, and business-management studies, it is now possible to show that there are natural and intrinsic motivations that will cause technology and the arts to flourish even in the absence of externally supplied rewards, such as copyrights and patents.

[Mises blog cross-post]

Update: see Mark Lemley: The Very Basis Of Our Patent System… Is A Myth; Legal Scholars: Thumbs Down on Patent and Copyright; The Overwhelming Empirical Case Against Patent and Copyright.

See also Aarthi S. Anand, “‘Less is More’: New Property Paradigm in the Information Age?“, Duke Law & Tech. Rev. 11, no. 1 (2012): 65–144, providing

evidence of growth in the commercial software industry without intellectual property protection. Between 1993 and 2010, the software industry in India emerged as the fastest growing in the world, accounting for $76 billion in revenues by 2010. In the same time period, the software industry in India remained unaffected by changes in intellectual property protection for software. By demonstrating industry growth without strong intellectual property protections, the Indian data fills the critical gap in American literature.

See also archived comments:

{ 19 comments… read them below or add one }

Michael Moore February 2, 2011 at 10:03 pm

How do you open cfm files?

Stephan Kinsella February 2, 2011 at 10:33 pm

it’s a PDF. Just click on the one-click download. http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1746343_code1102238.pdf?abstractid=1746343&mirid=1

Michael Moore February 3, 2011 at 1:11 am: Got it. It wasn’t working on Firefox, but I got it to work on Internet Explorer.

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Eliel Melton February 2, 2011 at 10:20 pm

Stephan Kinsella February 2, 2011 at 10:32 pm

Actually, he did not. The federal government did. Copyright is automatic when you write something like this. Whether you put the notice on it or not. He cannot be blamed for having a legal right the feds impose on him. Whether he would choose to enforce it or not is up to him. But having the right is not his fault. And putting a notice that truthfully says he has a copyright in it is not a problem either.
Copyright (c) 2011 Stephan Kinsella

J. Murray February 3, 2011 at 6:53 am

Eliel Melton February 3, 2011 at 3:06 pm

Actually, he did. He put the notice on his work, when he could have put a different notice gifting his thoughts to the world.

I’m not faulting him for taking credit for his work… I’ve no small amount of my own IP. I just completely disagree with his article and find it laughable that he doesn’t practice what he preaches.

Stephan Kinsella February 3, 2011 at 3:12 pm

Actually, you are wrong yet again. Putting a notice is irrelevant. And you are wrong again: there is no way to “put a notice” that removes copyright. The state that you favor does not permit this. give me a way to opt out, please–out of copyright, patent, defamation, taxation, war, social security. But you don’t want to do that, do you? Yet you smugly accuse people you trap into your system hypocrites. Shame on you.

Vanmind February 20, 2011 at 10:05 pm: He should do it anyway (i.e. “There is no such thing as copyright so feel free to…”). The only way to end the IP fraud is to make it impossible for the state to enforce its pretense of authority regarding millions upon millions of articles/books/etc. that have such an anti-IP statement.

Of course, a prudent author might also include a disclaimer that “…the government might come after you with force anyway, so watch your back.”

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james b. longacre February 2, 2011 at 10:58 pm

was there copyright infringement that occurred if no enforcement was asked for??

Stephan Kinsella February 2, 2011 at 11:36 pm

I don’t understand your question.

Anthony February 3, 2011 at 12:20 am

I believe he is asking whether you can be prosecuted for copyright infringement even if the owner of the copyright does not initiate a claim against you.

Matt Gilliland February 3, 2011 at 12:24 am: I think his question was more along the lines of, “if a tree falls in the forest and no one’s around, does it make a sound?”

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Seattle February 3, 2011 at 12:24 am

I think he may have meant “Can you be charged with copyright infringement if the owner refuses to press charges against you for it?”

Havvy February 3, 2011 at 1:04 am

It’s a civil crime, so no.

Eric E. Johnson February 3, 2011 at 6:45 am

There are some good reasons to put a copyright notice on a work even if you are something of an IP skeptic (as I am). You need to remember at the outset, as Stephan said, that copyright applies by default. That is, putting a copyright notice on a paper does not cause copyright protection to arise. So why put the notice on? First, a proper copyright notice with the year of publication will serve to establish, at some point in the future, that the work’s copyright protection has expired. WIthout this, it can be difficult to determine with definiteness whether something has entered the public domain. Second, by declaring the copyright holder, I provide follow-on users with some helpful information. If they want to ask permission to re-use the work, they know whom they need to contact. If they want to make a fair use of the work (that is, without asking permission), knowing who the copyright holder is allows them to gauge the likelihood of having to endure spurious legal challenges and heavy-handed threats. Sadly, in the real world, it is only rational to interpret your fair-use rights expansively or narrowly depending on the identity of the would-be plaintiff. (And, of course, your personal preferences for litigation thrill-seeking.)

Stephan Kinsella February 3, 2011 at 12:24 pm: What a great, concise reply. The article is very well written, too.

This comes up all the time: when you oppose IP then IP proponents try to use the fact of the system they favor being imposed on us, against IP opponents. It’s like they are double dipping. First, the impose IP law on us. This causes various practices and institutions to arise. Then, people who have litle choice but to cooperate and navigate this IP minefield, who dare to criticize IP, are then criticized as being “hypocrites.” So the IP advocates want to impose this system on unwilling participants AND squelch dissent from these people. So, I have to both obey their arbitrary, unjust laws AND not complain about it. Wow.

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Vanmind February 21, 2011 at 1:00 am: Authors certainly can put their contact information on the front matter of a work. The “…proper copyright notice with the year of publication will serve to establish, at some point in the future, that the work’s copyright protection has expired” part, though, strikes me as defeatist (why should someone assume that copyright fraud will still be around in 50-100 years?).

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Braden Talbot February 4, 2011 at 4:02 pm

Is it strange that there are copyright protections for my two favorite english translations of the Tao Te Ching? That thing is older than the New Testament. I guess I’d better not mess with or even think about someone’s interpretation of it.