March 30, 2005
[T]he editorial suggests a kind of balancing test that will allow us to “protect both innovation and intellectual property.” This is mistaken. Protecting intellectual property is not a proper goal of intellectual property law. Rather, Article I, Section 8, Clause 8 of the Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Promoting innovation is the only legitimate goal of intellectual property law. What needs to be balanced here is the promotion of musical innovation versus the promotion of innovation in the fields of data storage, duplication, transfer, and access. Much P2P transfer is legitimate. Blocking that is a cost. Much infringing P2P transfer has no adverse impact on the financial health of copyright owners. Blocking that is also a cost. Blocking the deployment and development of new technologies is a third cost. What we need to weigh against all these costs is not that record companies will need to forgo some profits they might otherwise have made, but the risk that if Grokster is not shut down we will actually see less new music recorded in the future than we otherwise might. I don’t actually find it plausible that the continued availability of P2P software will have any adverse impact on the production of new music (basically, you’d have a situation where artists have a smaller chance of reaping windfall profits but a larger chance of securing a relatively large audience for their output). But even if it does some adverse impact on this, that adverse impact needs to be weighed against the stifling effect on new technology and the smaller resulting audience for music everywhere.It can’t be said often enough. Copyright isn’t a “right” in the sense of the “rights of Man.” Copyright is a bargain. The object is to foster a society in which innovation is encouraged and rewarded. It isn’t to create a source of perpetual rents for an owner class. [11:50 AM]
The idea that intellectual property law should have the protection of intellectual property as its purpose rather than as the means used toward the end of overall social betterment is a serious error that the content industry has been remarkably successful at inducing in American society. Needless to say, one way in which this has come about is that we all get the vast majority of our information about the world from subsidiaries of the content industry itself.