Congress shall make no law

Following up on my earlier post about Anthony Falzone’s lecture and his strong emphasis on the need to limit copyright to the minimum protection necessary to encourage creativity in order to avoid the harmful effects of a monopoly over speech, three related items came to my attention this week.

First, there is this announcement of a conference at Duke Law School to celebrate a new book by copyright scholar David Lange and Constitutional expert H. Jefferson Powell.  The book is called “No Law: Intellectual Property in the Image of an Absolute First Amendment,” and the tag line for the conference is “what part of “No Law” don’t you understand?”  At the very least, this shows that Falzone is neither alone in his concern that copyright’s monopoly can jeopardize fundamental American values, nor particularly radical in his proposed solution.  Falzone focuses his work on defending fair use as a safety valve for free expression, a role the US Supreme Court has acknowledge for that exception and that many courts have upheld.  For Lange and Powell, however, the concern goes much deeper, and their book proposes the much more radical re-visioning of copyright and patent protections that would be needed if we took the First Amendment seriously in the context of incentives for creativity and innovation.  The question that is seldom asked, but that is beginning to rise up, is whether copyright as it is currently shaped discourages more socially valuable expression than it encourages.  If the answer is that it does, and that seems like a pretty easy case to make in an age when Internet users are being sued right and left for creating their own content, it is time to take seriously proposals like that of Lange and Powell to rethink IP from the ground up.

Next up is another new book that I haven’t yet seen, just read about.  According to this news release from Washington University in St. Louis, two economists at that fine institution have just published a book arguing that copyright and patent law are not just inefficient, but self-defeating, from an economic point of view.  “From a public policy view,” says author David Levine, “we’d ideally like to eliminate patent and copyright laws altogether.”  Apparently the book argues both that these intellectual property monopolies are harmful to society, which is becoming a fairly common point, and that there are workable alternatives to protect creators and encourage innovation.  I have to admit that I will take some convincing, especially on the latter point; I tend to believe that copyright law needs pretty drastic reform, but not outright abolition.  Indeed, based on the remainder of the article it appears that that is really what Boldrin and Levine are calling for, since they argue that it should be much harder to get intellectual property protection than it now is, but not that it should always be unavailable.  I look forward to reading the full argument; the book is Against Intellectual Monopoly by Michele Boldrin and David Levine, from Cambridge University Press, and the author’s also maintain a blog on the topic at

Finally, I want to note a pithy comment made at the end of this blog post written by Peter Jackson, the chief scientist and vp at Thompson Reuters publishing.  In some ways the post is a little mundane, mostly focused on the joys of e-books.  But the last line caught my eye and suggested a context for these other items I have discussed.  “In the future,” Jackson writes, “the book is no longer a product; it’s a service.”  I am not sure that Jackson would agree, but it seems to me that if we take this service emphasis seriously, it grows harder and harder to see why the monopoly protection of copyright is either necessary or efficient in most cases.  Surely service industries florish in a competitive market; if content is ubiquitous and “publishers,” whatever they will look like in the future, offer reliable access and convenience, those services will not depend on the artificial environment of scarcity that copyright was designed to enforce, nor will they thrive therein.

3 thoughts on “Congress shall make no law”

  1. I don’t pretend to understand the implications of e-Books for copyright law. I’m not a lawyer, and I’ve yet to hear a lawyer express a coherent opinion on this topic. I did hear Bill Patry give a talk on copyright at the 2008 Information Industry Summit (in fact, I invited him to speak); he seemed to suggest that copyright in the electronic world was at best in a state of flux and at worst unenforceable. In his role as Google’s Senior Copyright Counsel, this stance may have been self-serving. It certainly didn’t endear him to the audience of publishers!

  2. The “scarcity theory of property rights” is being advanced by a number of scholars at the Cato and Von Mises Institutes. Using this theory they suggest that there is no justification for intellectual property rights. The logical conclusion of their theory is intellectual labor is not deserving of pecuniary reward.

    Are they correct that scarcity is the basis of property rights? See

    Is the conception of ideas and inventions subject to scarcity? See

    Is the distribution of ideas and invention (technology diffusion) subject to scarcity? See

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