The formidable Eugene Volokh has an elegant and compact argument for the conceptual analogy of IP rights to tangible property rights. Its compactness makes it hard to summarize profitably, so I’ll just advise you to read the whole thing. I think it makes a nice counterpart to this excellent article by Stephan Kinsella laying out the conceptual anti-IP position, and I’d be very interested to see Kinsella respond to Volokh’s points.

Lawrence Solum has a response to which Prof. Volokh counter-responds. I offer, with some trepidation, a few points of my own.

1. Volokh’s well example demonstrates nicely that tangible property use is not always rivalrous. But absolute rivalrousness is not needed to differentiate tangible property from IP, so exceptional cases of nonrivalrous tangible property don’t vitiate the differentiation.

While the conditions Volokh describes certainly produce nonrivalrousness, they are unlikely to occur very often or last very long. For one thing, water tables are not actually infinite, and often are exhausted by farming. For another thing, if people can just come to the well and take the water for free, this provides a strong incentive for lots and lots of people to go get it, as anyone knows who has ever seen graduate students flock to free pizza. If the number of people coming and getting free water is large enough, they will start to conflict, with each other and with the original farmer; they will trample his grass on their way in, jostle him when he needs to water his fields, and so on.

Indeed, if any of the parameters of Volokh’s experiment vary much from the values he has set, rivalrousness will occur; and it may be difficult to decide when exactly it begins. If the law carved out exceptions to tangible property rights in cases of nonrivalrousness, it would produce costly litigation between users who claimed their use was nonrivalrous and owners who disputed the claim. Recognizing the farmer’s unrestricted exclusion-right to the well avoids such costs; it protects his use-right in the simplest and cheapest way possible, by making him and not a court the judge of which uses conflict with his.

In sum, the fact of material scarcity does not imply that tangible goods are always rivalrous, but it does imply that they have a strong natural tendency to be rivalrous. Tangible property rights are a simple, efficient method of dealing with that natural tendency. Intellectual goods, by contrast, are by nature nonrivalrous; so they remain conceptually distinct.

2. Now that I think of it, maybe the law does occasionally carve out exceptions to tangible property rights in cases of nonrivalrousness. One possible example is the British law providing for a “right to roam” on open, but privately owned, land. The argument for this law, as I understand it, is that hikers have a traditionally recognized right to walk on private land precisely because they can do so without conflicting with the private owners’ use of the land. The counterargument is that which I made in point 1 above: some of this roaming will actually cause damage to the private owners’ use-rights, and shouldn’t they be the ones to decide which uses are damaging and which are not?

3. Another difference which Volokh does not address is that tangible property rights are pretty good approximations to a simple, unrestricted right-to-use plus right-to-exclude, whereas intellectual
property rights require big kludgey restrictions to work at all. Perpetual copyrights with no fair-use exception would clearly be unreasonable. So would perpetual patents, or patents that could cover any idea at all. Furthermore, most restrictions on tangible property rights are local (e.g. zoning ordinances), whereas the terms of restrictions on IP need to be set at a very high (national or even international) level.

This means that changes to the terms of IP rights often produce concentrated, large gains for a few while imposing costs diffusely on many more. And this situation, saith public choice theory, breeds corruption like room-temperature chicken broth breeds bacteria. Politically powerful groups that benefit from IP rights will have a very strong incentive to push the terms of those rights beyond their efficient level– to lengthen copyright and patent terms; to narrow the definition of fair use and expand the scope of what can be patented; to implement intrusive rights-enforcement mechanisms even if they impose large costs on innocent bystanders.

Now, arguably the existence of the Sonny Bono Copyright Extension Act, to give one particularly egregious example, provides empirical support for this theory. But the point is that listing off abuses of IP rights doesn’t just constitute an empirical critique of IP; it provides empirical support for a theoretical critique grounded in a real a priori difference between tangible property rights and IP rights.

This entry was posted on Monday, September 15th, 2003 at 9:48 am by Mystery Man and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.