After completing this very well-written, and extremely insightful book, I believe I owe Mr. Merges some congratulations. He has made as good an argument as I have been exposed to in favor of justifying intellectual property rights in the new media. He grounds his theory deep in property philosophy, and emerges from the depths with enough air to explain the modern applications of that theory. I respect everything that he explicated in the second half of the book. He made a convinving argument that the creative profession (from bottom to top) is better served by property rights, and that what's at stake is not just the creative output, but the fundamental livelihoods of creative people (Pedro gives an excellent overview of how artists, like lawyers should be entitled to their products as those may be the lone sources of income). He combats the Digital Determinism theory with a well-rounded incentive-driven argument (although this is somewhat combatted by Christian's ghostwriter example). He provides a property regime that seems fairly acceptable on its face: "accomodate the needs of consumers and users by (a) facilitating and ecouraging cheap and easy IP permission and licensing mechanisms, together with (b) simply waiver techniques that permit bidng dedication of rights to the public." (Location 4175 of 6102, Ipad). He highlights the benefits of IP rights for large, multi-person works that take signficant time and resources to create (and Jen does a nice job of giving more concrete examples in the video game world about this truth). He even makes a convincing argument that "IP properly conceived and constructed, makes sense on distributive justice grounds," essentially that it is fair.
But, how many "creative professionals" or "independent artists" were consulted when writing this book? How many are quoted in the book? How many real world, real life stories does he share? Unfortunately, I believe Merges has created a vacuum with his own laws of physics here.
The world is changing and will continue to change drastically. I understand that academics and philosophers would like to have some grasp about where this whole "technology thing" is headed. We all would. The nature of the beast prevents us from doing so. Any property rights we try to attach to creative works from here on out will act as paper leashes on a carnivorous wild animal. We can try to justify spending the resources trying to improve the leash, making it stronger, longer, more flexible. Unfortunately, the animal is but in its infant stages, and with each day, it grows stronger, more resourceful. Over time that animal will require more food, more space, more independence, until finally we must set it free to act out its wild, natural instincts. Maybe, just maybe, after some time the animal will return to its caretakers and will seek protection, but maybe not. If it does we should be ready. If it does not, we shouldn't be scared of the things we create, for after all, we create them with human hands and human minds. For some like Merges, that may be troubling, but for others like myself, that fact is beautiful.Trying to restrain our animal, domesticating it, will only serve to make a growing number of us ask: what if?
Let's accept the things we do not understand Mr. Merges. I know you make the exactly opposite point in your book, but Let it Be. What is fair isn't always right, and what's distributive justice for some maybe be a complete injustice for others. The academics will continue to wage this war over IP. The arguments will continue in the same fashion, with some new and interesting twists as Merges has given us, but ultimately we must accept the reality if not the inevitable: we do not have the resources to create, enforce, and adjudicate IP rights anymore. We must instead find a transitional system between what was and what will be. We can surely use some of the foundational philosophies Merges advocates in his book to help bridge the gap between our current regime and the regime which must exist in the near future, but we should also keep in mind that such a solution is to pave the way for an IP free world (at least with regard to the digital medium). We must change the investment-backed expectations of creators to serve the expectations of society, and increasingly, society expects the freedom of both information and art. Mr. Merges makes a valiant effort in trying to justify intellectual property going forward, and I believe we are all better for having heard the strong words of a strong and worthy opposition, but ultimately the idea will fail. It has to. The internet movement is too strong a countercurrent.
I have no idea what is to be expected after the death of IP, but if we want to get into foundational philosophy Mr. Merges, let's turn to Socrates who said:
"For the fear of death is indeed the pretence of wisdom, and not real wisdom, being a pretence of knowing the unkown; and no one knows whether death, which men in their fear apprehend to be the greatest evil, may not be the greatest good. Is not this ignorance of a disgraceful sort, the ignorance which is the conceit that a man knows what he does not know?" (Plato, The Apology).
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