Killing Undesirable Innovation
Sometimes you read an article and think, “That’s so simple. How come I didn’t think of that?” The answer, is that somebody else was far more creative than you. That was my reaction to Chris Cotropia and James Gibson’s paper on “The Upside of Intellectual Property’s Downside” in UCLA Law Review.
Their central point is that granting more intellectual property protection could be a good way of stifling the production of something that society deems undesirable. Normally we think of IP in terms of how we can maximize the quality and quantity of information (though there are other factors at work). In that context, people like me often worry that too much IP will be a bad thing. If the product in question is something you don’t want made, however, then excessive protection that raises production costs is actually a positive.
Now I don’t agree with all of the categories of undesirable information that Cotropia and Gibson identify. For example, I don’t think fashion constitutes waste, though their article might explain the otherwise wrongheaded proposal to give more protection to fashion designs. Maybe it’s a Trojan Horse to kill the fashion industry! (Probably not, which is why I don’t like the idea.) And there are First Amendment implications that need more explanation. Suppose Congress extends broader copyright protection to pornography and says, “We’re doing this because we want less of it.” Looks like a First Amendment problem to me. Nevertheless, the article is definitely worth your time.