Let us develop the critique of IP somewhat by wading into reality. I begin with sarcasm: I don’t really care if you believe what I say, because it doesn’t matter if you believe it, I believe it. I must be right.
I would like to preface this with a few understandings. I am not a communist, in fact I quite oppose communism. I believe in the profit motive, and the drive to better oneself, hard work, and succeeding by striving, but coming from a somewhat socialist country (Canada), I don’t believe in the maximization of profit to the exclusion of all else, that is, a pure free market.
Having read through the more applicable, second half of the book, I am only more committed to the position of opposing IP. I will defend myself by addressing concerns that could be raised: the most instinctively appealing real-life outcome that can be raised against my position would be to ask what becomes of the creative artists that are essentially unable to protect their works against copying? My first response would be to reference my premise: I believe that art is for the sake of art alone. Thus, maybe at the point an artist has become big enough to sign with a record label in hopes of massive profits they’ve become profit seekers and not artists that are simply in it for the art, and the value of that art diminishes. Maybe we also do not want to encourage exorbitant profits for individual musicians? This is the moral argument. Secondly, and more importantly, unique art cannot be copied and digitally distributed. That is, the substance might be copied, but not the original thing, art resides with the act of the artist, which cannot be replicated, except by the artist herself. This is evident from the fact that record labels are not profitable, and unique live performances are what win musicians their bread.
Some cite the individualizing force and empowerment that copyrights grant. I point again to my above second point, and drive my point further by noting that the empowerment of an artist comes from the uniqueness of their art and the desire of people to witness that uniqueness, that originality. This is why copies of famous paintings do not sell, only originals. This, I believe, would hold true whether or not IP or copyrights existed. People would continue to pay to see an artist they love live, and pay to buy only a painting they know to be original. In China, art is thriving, and contemporary Chinese art command some of the highest prices today in international art auctions. The copyright does not bring the value, it only creates monopolies. Without them, an artist could conceivably be able to gain more notoriety faster, through more free distribution of copies, which have no value inherently, but are attributed artificial value by copyrights.
Some argue that the removal of IP will cause distortions to the market. I would say that it is human nature to create, and it is the imposition of IP over preexisting human incentives that have wrought the distortions, its removal will remove those distortions. If we believe that art is worthy for its own sake, and that dedicated artists will create for art’s sake either way, why worry about “distortions”? The question comes down to how do we value art? Art created by greedy artists that want to concentrate wealth and profit immensely, or art simply? When the IP premium is removed, incentive changes will happen, but dedicated/extremely popular artists will attract the market power to continue creating. I see the premium as the distortion, its removal a return to nature. Some may think that writers would suffer the most, as their works are easiest to copy: the originality of the writer lies in the printed word, which is easily copied. In response to this, I have faith that while competition from copies would drive prices down, people will place a certain premium on rewarding the writer. They will buy the original author’s work so long as the premium she exacts is not exorbitant. J.K Rowling may not become a billionaire in my world, but I don’t know if anyone should be. Of course, there would also be franchising, movies (maybe), merchandise, etc.
Then there is reverse engineering, and the argument that this would chill innovation. As I stated in class before, reverse engineering does not, in the end, deter profit incentives. In fact, fiercer competition and the pressure to be better than your mimics will encourage innovation. Indeed, one sees constantly American executives arguing that innovation is the only way America out-competes China, using this as justification for their sales of advanced products into China, where they shall inevitably be copied. A cynical explanation would be that they value short-term profits over long-term competitiveness. But faith in the ability to continue innovating must play a role.
As a final attack on IP, I would argue that for specific industries such as pharmaceuticals, it only really encourages disproportionate concentration of resources into niche areas. A popular complaint about big pharma in America today is the over-concentration of resources into developing profitable but rare diseases affecting small populations but affordable to the wealthy or well insured, to the neglect of drugs for more endemic illnesses. In a world without IP, this mode of medical research would simply collapse as pharmaceutical companies would have no reason to invest so heavily in research and development. I believe that this is a good thing, and that drug development should be a social service provided by the government. A good example is Artemisia, the best malaria drug on the market today, discovered under the guidance and direction of the communist Chinese government under Mao, which wanted to target a 3rd world disease that had huge socio-economic consequences. These massively costly illnesses are where the resources should be directed. The treatment of disease, a social undertaking, should not be dictated by profit motives.
Finally, some might say that my vision for an IP free world is brutal and inhospitable, as ruthless competition is visited upon all creative participants in the market. I believe that in a world where everything competes down to marginal cost, society gains—through distillation—truth. The true price, the true cost, the true value of things and ideas exchanged.
But here the sad part begins. Looking at everything, I don’t have a shred of hope that what I am advocating will succeed, or even convince anyone. Because I see the IP megalith as driven by and founded upon one of the most basic of human instincts: greed. For every artist creating for art’s sake, there’s an equally starved one who wants more than art, who sees at the end of his exertions, profit, huge amounts of it.
And so, the Chinese government, hitherto fore uninterested in IP protections, begins paying it heed when it realizes there’s massive profits to net, even though a system without IP was producing innovation aplenty, entertainment galore, and a perfectly functional, highly competitive economy free of the transaction costs exacted by IP, and free of concentration of massive profits to mega-conglomerates.
Greed, in the end, enables that. The instinct to crave massive profits is what the idea of IP feeds off of. It renders possible the beguiling prospect of turning individual acts of creativity into a windfall. It monetizes creativity, something we all possess to some degree. It therefore makes everyone think that a windfall might be possible, through the exercise of something they already innately possess. This is inevitably appealing to every human being.
I recognize that this instinct cannot be overcome. So while my version of an IP free society might be appealing to some, it isn’t possible in a world driven by desire to maximize profits, and indeed stands in utter contradiction to it. Maybe I’m the misguided one then, unable to accept the reality that the book is defending? This makes Professor Merges no better off though, as he’s just spent a whole book morally justifying something greed already makes self-evident, inevitable, and incontrovertible. This is why so much of the book had to be spent postulating moderating philosophies (charity, etc), in an attempt to restrain the baser instincts conjured up by the foundational propellant behind the IP idea: lust for money.
But hey, who am I to talk? I’m going into corporate law.
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