Against Intellectual Monopoly [ハードカバー]

This book, which you must must must read, will challenge everything you think you believe about IP. In fact, I don't think any serious can come away from it thinking the same way about this subject. It is not only a wholesale shredding of the rationale of patent and copyright (which is radical enough); it also suggests a new historiographical project that would revise the entire history of innovation as well as a new social theory project that would add the social force of emulation as an important ingredient to what makes up the thriving civilization.

I've read widely on this topic, and this book makes other treatments seem amateurish. This is pioneering material here that offers a profound challenge to right and left, to economists and historians, to political philosophers and art critics. In short, this book changes everything.

Everyone who has ever considered this topic or the history of economic development must stop what he or she is doing and carefully consider the contents of this volume. Let it sink in for a while. The thesis takes a while to settle in.

Let me add that I have my doubts that other online reviewers have really gone through the book in detail, or read it at all. This is really shabby and pathetic. If you read one book closely this year, make it this one.

First, I have not read the book in this form. I read a free version online. There might be some differences; I don't know.

Anyway-
I was pointed to this book while arguing that intellectual property is needed to overcome a public goods problem. After reading it, I've moved from confidently supporting minimal IP rights to tentatively advocating their abolition.

The authors provide plenty of evidence and a few intriguing theoretical arguments to bolster their position.

It definitely won't be the last word on this subject, but it will widen the debate and point it in new directions. Very much worth reading, if you're interested in IP issues.

I wanted to really give this book a higher rating but I feel in all honesty that I cannot. The problem here is that the book reads too much like a prosecuting attorney's case, starting from the premise that IP is an outrageous, rent-seeker's grab, that we could have lots of good stuff without IP, and that lots of things have indeed been invented and produced without IP. To a degree, the authors provide evidence for their case, but I also was irritated by the sometimes strident tone adopted here. And some of the examples they give of how creativity works without IP are laughable. For example, on page 30, they write: "For at least three thousand years, musical and literary works have been created in pretty much every society, and in the complete absence - in fact, often under the explicit prohibition - of any kind of copyright protection". Well, to focus on books, such things only began to be produced on any significant scale (at a time when adult literacy was negligible) after the invention of the printing press. Copying of others' literary efforts by hand would have been almost impossible outside the confines of a few learned aristocrats and monks. For a large chunk of human recorded history, the only stuff that got produced was produced in relatively tiny numbers and read by an equally relatively tiny number of people. Copyright existed once it became possible to copy in significant numbers, not before. There was no significant commercial business in printing, hence, the issue of figuring out how to make money from books did not really apply until the physical business of printing them got under way.

Okay, that does not necessarily invalidate some of the points being made, but it is striking that the authors don't mention this rather obvious point.

In another example seeking to prove how successful publishing can occur without IP, the authors (page 24) give the example of the 9-11 Commission Report, and the fact that Norton did not pay for the publishing rights. Well, for a start, the 9-11 Commission was a tax-funded body, so unlike a private author hoping to make a living in a free market, the book was actually produced with tax dollars. This hardly seems a very good counter-example to use in smacking down copyright if you are going to make a free market case!

And another odd example is provided, this time about patents, on page 51, describing Eli Whitney's non-patented firearms and the success of their sales - to the government! Again, this is an example of business that did well without IP because of government-funded purchase of its products. If this is meant to show that non-IP business models work, it seems an odd example to use in the context of a broader free market attack on IP, which is how Levine and Boldrin present their book.

In one case, the authors attack drug patents for encouraging "me-too" drugs, where a supposedly pointless drug is created by a firm seeking to circumvent a rival's patent. But if we remove patents, and copying is made easier, won't the copies also, to all intents and purposes, be a "me-too" drug as well? (That is what a copy is!). The authors never really explain the difference between a mere copy and a genuine innovation.

There are other, better examples of how we could get by without IP (like Red Hat, open source software, etc), and there are many examples also of the absurdity of taking technologies and creations that came to being without IP (like software and fashion) and then putting them under IP protection, as has happened with software. This is persuasive.

But the authors never quite convince me of their case. They are at times so keen to prove their case that they produce examples of the kind I mention that just don't seem to "work" in the way they intend. This is a shame. My general conclusion is that there is a case against IP but not quite as crushing as the authors would have us believe, and certainly not so crushing as to justify calling it an "unnecessary evil". Another problem is that the authors tend to overlook the issue of the <em>moral</em> right of a creator to be able to exclusively charge for it for a period of time before his work filters out into the public domain. There is a normative argument - as expounded recently by Robert Merges in his book Justifying Intellectual Property - that these authors don't seem to consider. If I write a novel and it can be immediately copied, others can get my efforts for free: is this really just? Okay, some people like to write novels as a hobby, but if we remove copyright protection, we will need to revert to the days when artists needed the financial backing of patrons, or worse, subsidies from the state (which raise all kinds of issues in terms of political influence, etc.) And in getting rid of copyright, some authors and publishers will want to come up with alternative ways of capturing an income stream from their work, but why reinvent a perfectly serviceable wheel when some of the most objectionable features of IP can be solved, perhaps, by things like a vigorous secondary market in licencing patents, copyrights, and the like? And won't a world without patents encourage some firms to try and keep certain inventions and processes secret rather than disclose them via a patent office register? Beware the dangers of unintended consequences.

On page 128, the authors also make this extraordinary statement: "copies of ideas are always limited and it is always costly to replicate them". Really? In the Digital Age, copying is almost costless, and surely that is precisely WHY businesses have been lobbying to prevent, however foolishly, copying of their ideas. If copying ideas were costly and difficult, we would not ever have felt the need to have IP to generate income for creators in the first place. And in fact, the authors elsewhere laud the ease of copying as a way of encouraging competition. They cannot have it both ways.

On page 127, they write that because competitors have to pay to obtain an idea directly or indirectly from the original innovator, when the original manuscript is the only necessary input, the original innovator gets all the profits. That sounds good until you realise that in the digital age, as soon as a single copy of a publication is release, it can be reproduced at virtually zero cost.

I also take issue with how the word "monopoly" is used in this book. If a person creates something genuinely new and original, has he created a "monopoly" since he has not taken something in the public domain from the public but added something new to it? This issue is a very complex one but the authors don't seem to deal with it very much. They just state as fact that IP is a monopoly and is therefore damned. They take it as given that acts of intellectual creation, because they can be copied and are what economists call non-rivalrous, can and should be copied without penalty (to be fair, they make it clear that they are NOT talking about plagiarism, which is fraud). But while there are plenty of practical arguments that they demonstrate to show that enforcing IP is often expensive, oppressive, and in some cases produces absurd results, they just don't seem to consider the moral fact that it is, at root, wrong to take the work of others and just treat it as a collective resource. Suppose I copied this book and gave out thousands of copies for free without their consent?

There is, in my view, a lot that can be done to remove the most egregious failings of the patent system, for example, by disallowing patents on broad categories such as business methods, or reducing the time-spans on patents (to discourage "trolls") and facilitating more efficient licensing. Also, technologies already in use should not be patented. And copyright extensions should not be allowed. I like the idea of how a person who has independently invented something can get a patent on it; the authors also have interesting things to say the drugs business. They concede, rightly in my view, that scrapping patents for drugs would, without serious overhaul of organisations such as the EPA in the US and the clinical trials system, be very damaging to output of new drugs.

In one passage, they talk about possible deregulation of the present system, entertaining the idea that there could be a private, legal agreement between, say, a copyright author and buyers of the book to forbid the latter to re-sell to others, or only do so if a payment is made. They rightly, in my view, say that this would be very hard to enforce it, and in the real world, courts would probably strike down such deals as restraints on trade. In a completely free society, if I say you can only buy X from me if you respect X in certain ways, you, the potential buyer, can ignore me; I could refuse to deal with you and you might buy a different item from someone else. Consider that landlords often stipulate to tenants that the latter cannot sub-let their apartments to third parties, and companies can try and negotiate contracts restricting if an employee can work for someone else within a certain period of that employee's departure. So long as no coercion is involved in setting such agreements in the first place, it is hard to see how a consistent defender of freedom could oppose it.

The book makes a good(ish) case on economic, consequential grounds that IP can have absurd effects and lead to forms of costly rent-seeking, but not quite so strong as to make me feel we can or should get rid of it entirely, or that some sharp reforms might deal with the most serious shortcomings, such as the abuse of patents by "trolls", and the issue of where there is a genuine case of independent invention, for example.

Ironically, while I agree with some of the arguments here, and enjoyed many of the crazy examples that the authors provide, this book left a sour taste in the mouth for its stridency and assumption that anyone who defends IP is a shill of Big Business or a bit of a fool.