September 19, 2018

Volokh and Solum Debate IP

Eugene Volokh and Lawrence Solum are having an interesting debate on the theory behind intellectual property. So far there have been four postings:

Volokh’s initial posting, explaining via a clever example why it might make sense to treat information as property

Solum’s response, challenging Volokh’s example

Volokh’s response to Solum

Solum’s response, digging deeper into the issue

Presumably we will see more on Volokh’s blog and Solum’s blog.

Comments

  1. Frankly, Volokh’s “capacious well” is a huge red herring. I mean, heck, suppose (this is not necessary) that the farmer put the water into bottles prior to sale to his neighbours. Only a kleptoparasite could argue with a straight face that there is “no harm” to the farmer when they are stolen from him. Where the water came from, no matter how large a resovoir it may be, or even the nature of the containers, is utterly beside the point.

    That huge amounts of effort are _still_ expended to produce copious quantities of philosophical verbiage on theories of intellectual property — Solum’s last response was really embarressing! — STRONGLY suggests that we have the famous “more studies required” effect at work: the shotgun approach to debate and public policy.

    Physical reality is the ultimate arbiter of all human activity. Alot of the “does I/P exist”, “here is my theory why it does”, and similar are just fancy ways for otherwise intelligent people to _deny_ this fundamental fact of our existance. Once information is “out there”, it can’t be re-captured, controlled, or otherwise corralled. No act of congress, no contract entered into by consenting adults, no amount of human pretending is going to change this. The sooner we(*) realize this the better. Sadly — as evidenced by this latest exchange — it’ll likely take a substantial die-off of the current generation of IP heavyweights — and their tedious, bloviating dialectics on the concept — before much change will be made. ;-(

    (*): “Who’s ‘we’, white man?” — Tonto

  2. One issue which is often overlooked with regard to information as a public good is that to a certain extent, information actually is rivalrous. It’s similar to the well which can only have a fixed number of people drawing from it at a time. Information flow is limited by bandwidth.

    If I enable uploads on a P2P file sharing system, the information I share really isn’t free. It uses up my bandwidth, which can slow down my web browsing and other network activities. And there are only a limited number of people who can access my files at once. This is why, until a few years ago (and once more in the coming “darknets”), a makeshift economy sprang up in the form of upload and download quotas and point-based accounting.

    As we go forward, it’s not clear how severe the limitations imposed by bandwidth will become. New technologies will increase available bandwidth, but at the same time, the amount of data we want to move around will increase as well. It may well be that these changes will go hand in hand, and that bandwidth limitations will always be a significant problem. Even if the information well is capacious, there may only be a limited number of users who can draw on it at a time.

  3. “If I enable uploads on a P2P file sharing system, the information I share really isn’t free. It uses up my bandwidth, which can slow down my web browsing and other network activities. And there are only a limited number of people who can access my files at once. This is why, until a few years ago (and once more in the coming “darknets”), a makeshift economy sprang up in the form of upload and download quotas and point-based accounting.”

    I’m not sure that this is really going to have any effect. When servers were few, far between, and expensive or difficult to operate, then yes, information was rivalrous; since you could only have as many people dialed in to a BBS as that BBS had phone lines, my consumption of a line directly prevents anyone else from using that line.

    P2P changes that dynamic, in making servers as common (or nearly so) as browsers. While upload bandwidth is still nearly universally more restricted than download bandwidth, there are so many more sources that the total bandwidth has vastly increased.

    Add to that the fact that, by the very nature of p2p filesharing, the more popular a particular file is, the easier it will be to get it; the more popular information is, the less rivalrous!

    I’m not sure what you mean by “the coming darknets”, but I don’t see the rare server situation returning any time soon, and so an “economy” of upload and download credits such as the old BBS and anonymous ftp sites used to use is highly unlikely to return IMO.

  4. Er… the website link on that last comment should go to http://www.randomtree.org/eric/ instead. Oops…

  5. Perhaps the problem with intellectual property is the absolute right to exclude.

    What if IP rights merely conveyed the right to profit. For example, I obtain a patent. I can’t stop other people using my patented invention, but I am guaranteed a royalty from their use.

    This setup would seem to meet the objective of the patent system (publication in return for a limited monopoly) much better that the present setup, where company policy frequently forbids patent searches. After all, what is the value of publication if people ar forbidden to read?

    A similar setup for copyright might be more difficult — often, with copyrights, a holder is trying to prevent others from de-valuing the original work.