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9.14.2004
Why IP is a Hard Problem
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Being new to this project, I've been cruising around looking at a lot of other IP blogs. There seems to be a lot of attitude, complete with name-calling, and not much argument. This implies that many commentators there seem to think that the future of IP (or lack thereof) is in a sense an easy problem, justifying the cavalier dismissal of the opposing view. Today let me defend the view that the question of the future of IP is a hard one, in the hope of earning a general increase in courtesy and focus on substance.
At a level of great abstraction and hypothetical cases, with everything deconstructed twice over, all rules look pretty arbitrary. One can argue that property is a monopoly, that tax loopholes are a subsidy, that copyright is property or monopoly or even a subsidy, and on and on. At this level--where many professors and other commentators are safely ensconced--it is easy to think that if any given set of rules is disrupted, you just scrap the system, and come up with something else. It's as easy as a hypothetical, or if you prefer anecdotes, as easy as hindsight. But real life--life for consumers and for businesses and inventors--is not like that. In real life, people rely on given sets of rules (that's what rules are for, to be relied on) and forces that upset the rules are, well, upsetting.
Consider an analogy to the game of baseball. One can easily imagine that the rules of baseball could have been different. It might have been a fun game if played with a flat bat instead of a round one, or two or five bases instead of four. But within the context of the game of baseball as we know it, someone coming in with a new technology that allows the ball to be hit out of the park every single time, well, that raises questions of fairness and within the context of the game those are serious questions. Rules that are at one level arbitrary take on a whole different character once they have become intertwined with complex human expectations and behaviors.
This isn't a plea for keeping the rules always the same. But it does mean that the problem of change needs to be taken seriously. And not just because people get emotionally upset when the games changes--that's not what I mean. It is because the problem of exactly how to adapt to a new world is in fact a very hard one at an intellectual level. It is one thing entirely to say "and now for something completely different," and another to actually do something completely different.
Because it is possible to go wrong. As easy as it is to think of hypothetical worlds that seem to on the surface be as plausible as our own, there are limits. Baseball might be just as fun played with a flat bat, but could it be played with a square ball? With just one base? Doubtful.
Bringing this back to the copyright debate, the question of how to make new markets in content is a hard one for these reasons. How exactly is this to be done? By contract? How are these contracts to be enforced? Using technology? What are the new packaging and the new locks to look like? Will a commons do instead? Very picturesque, but how are artists to get some kind of income stream? With new legislation? How is this to be enforced and at what cost? No, really, how is any of this to be done? That is what the debate is really about, and why it is a hard one. And, sadly, one that most academicians and legislators are sorely ill-equipped to address. And, "Well, we've done it before," is not an answer.
Now, why isn't it an answer to say, "Well, just leave it to the market?" That is a better start. Because if anything can handle the complexities of the question, it will be the distributed energies of myriad entreprenuers. But in the particular case of the copyright question, it's tougher than that. Because what makes a market is some kind of enforceable boundary--contract, property, technological--something to give somebody something to trade. And that bounces us right back to the challenge that has arisen in the digital world--what exactly will these enforceable boundaries look like?
posted by Solveig Singleton : 9/14/2004 05:49:04 AM
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