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.

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2 Responses

  1. Darian Ibrahim says:

    I agree that it’s a nice paper. I always enjoy a good contrarian take on a problem.

  2. A.J. Sutter says:

    Perhaps it’s a Swiftian “modest proposal” — it is in the April issue of the journal, after all. True, at 60+ pages, it would have to be a very elaborate spoof. And the thrill of spoofing law student editors is certainly a much cheaper one than spoofing postmodern cultural studies profs. But regardless of the authors’ intentions, I guess I’m still starry-eyed enough to be surprised (rather than merely fatalistically glum) that that this paper is earnestly admired by the professoriate. (So maybe their thrill was to spoof law profs …)

    If the authors mean the paper seriously, then their lack of practical experience really shows. (Their online CVs disclose that neither has any experience in industry, and that between them they’ve spent at most 5 years in private practice.) They rely on the same neoclassical reasoning from counterfactuals as those jokes about the impossibility of finding a $20 bill on the sidewalk, e.g. “If Compaq had patented this [tax-planning] method, it surely would not have licensed it to other multinational companies” (@975). There are plenty of industries where cross-licensing is common. It’s hard to imagine the quid-pro-quos that can bring this about in the real world, if your thinking is clouded by NCE theory. The possibility of cross-licensing isn’t entertained at all in this paper.

    Some other fantasies: that public interest groups would have the deep pockets to act as trolls of tax-planning patents (@946), and that stronger IP protection for fashion would result in wealth transfer from copyists to designers (@974). In the publishing and entertainment industries, the wealth transfer to big players resulting from stronger IPR dwarfs that to individual creators. The real-world mechanisms that enable fat cats to fatten, like works made for hire and assignment of rights, aren’t addressed in this paper.