So, I think the best way to do this post is as a criticism sandwich (you know, compliment + criticism + compliment) -- partially because I'm hungry, partially because I think it's nicer that way, and partially because I like symmetry.
I am glad I read this book; I liked how broadly it covered the principles and justifications for intellectual property protection, and I enjoyed thinking through their implications on trending topics in IP. Furthermore, I found it very readable, and I simply enjoyed it.
That said (here comes the criticism), I do think the analysis of the topics didn't fully delve into many of the principles, provisos and other guides that were covered in the first half of the book; instead it seemed these arguments were simply used as things that were "invoked" when it corroborated with his viewpoint and ignored when inconvenient. In the first half, Merges discusses transaction costs and acknowledges their impact -- increasing "friction" -- on IP and the need to weigh the costs and benefits. I was surprised, then, when the discussion regarding the digital revolution failed to trigger a discussion of transaction costs. In my mind, the biggest difference from then to now is that the costs and benefits have changed. Transmission costs are now much lower, the cost of enforcement is much higher, and the potential benefits of swarming masses of people wanting to create are very high. To ignore this difference results in a somewhat unsatifying coverage of the topic.
Furthermore, while there were a number of arguments and uses of logic I disagreed with, my more basic issue with the discussion on digital rights was the lack of self-awareness. It seems the fundamental difference between Merges and his opposition is that he discounts the value of a lot of what is being created by amateurs and they do not. This basic valuation difference is important especially given his reliance upon Kant's Universal Principle which requires a balancing of people's interests; the balance will always seem "off" when people simply disagree on valuation.
The discussion of Locke, Rawls, fair use, etcetera, all seems kind of moot when the basic assumptions underpinning the arguments are simply at odds with one another. He praises creative professionals, states that "nothing critical is lost if a particular work is placed outside the reach of the remixer," seems unconcerned with chilling effects because the internet simply abounds with stuff anyway, etc -- his disdain for the amateur is readily apparent. So, to the extent he truly wants to make his argument, it seems his first priority should be to justify his position and then to build upon that. For someone who begins a book on intellectual property with the creation of earth, it's surprising he missed that fundamental step.
But to finish off this post, I should say that still found the book very illuminating. For example, any diehard fan of old school adventure games probably laments the mass of IP rights to games like Monkey Island which spent years (and years!) languishing away in the hands of companies like Sierra and LucasArts. In some cases, it resulted in the development of fan games, but they were often subject to much uncertainty. For example, King's Quest: The Silver Lining spent ten years in stop-and-start development, waiting for official approval...only to have it rescinded and later re-approved[1]. In other cases, when original creators were separated from control over their intellectual property as creative differences arose, it resulted in disgruntled creators[2] who never had their visions come to fruition (the true secret of Monkey Island will never be known!) and very disappointed fans who still hope for a "true" sequel to the series.
In Merges presenting his discussions of various topics, I found myself thinking about how different conceptions of IP rights would have impacted those situations -- it seems the use of waiver failed, but a more formalized approach could have been successful for the King's Quest game; the failure of the corporate ownership shows why IP is personal to some extent and perhaps the failure could have been circumvented through Lessig's differentiation of control vs. compensation for IP; or, perhaps fair use could have been made to apply in both cases? And so on. In reading Justifying Intellectual Property, I found a new set of concepts to and ideas to apply to my views on intellectual property and digital rights.
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