- The Washington Times - Sunday, January 27, 2002

By Lawrence Lessig
Random House, $30, 352 pages

Great nations are fueled by economic, intellectual, and artistic innovations and creativity. In the economic world, the iconic Joseph Schumpeter has effused in favor of invention and innovation entirely novel ways of manufacture or doing business as opposed to hunt and peck cost cutting quests as the secret of national prosperity. And succeeding generations of scientists, artists, and thinkers stand on the shoulders of their predecessors in charting the future. Even Beethoven and Michelangelo owed debts to the past. In sum, wisdom and knowledge do not come like Minerva springing forth from the brain of Zeus, but are constructed from building blocks beginning with civilization.
A great nation, therefore, should be innovation-friendly to avoid slipping from a global locomotive to a caboose. The lazor-like mind of Stanford law professor Lawrence Lessig elaborates on that task in the field of intellectual property largely copyright and patent rules in "The Future of Ideas." The book brims with brilliant insights and subtleties, but are come upon only after surmounting droopy prose as exciting as logarithmic tables.
Mr. Lessig's chief focus is Internet innovation, with supporting actors billing for films, songs, and software generally. According to his meticulous and persuasive analysis, intellectual property law in the United States is foolishly tilting away from innovation encouragement by pivoting on the unproven assumption backed by patent and copyright law that the greater the economic treasure troves that greet individual invention and creativity, the greater our community riches.
The author's formidable challenge to that glibness can be easily sketched. A patented invention in the United States, which must pass standards of utility and novelty, runs for 20 years. During that period, the patentee enjoys monopolistic use of his invention, although the monopoly thwarts the additional innovation of others that would flourish under a regime of free use or compulsory licenses. A 20-year patent monopoly, it is hypothesized, achieves the best innovation trade-off between sparking initial novelty by the incentive of monopoly earnings and spurring second generation improvements.
The hypothesis, however, is dubious. United States patent monopolies ran but four years at their inception, and the universe of covered inventions was much narrower than at present. Monopoly patent protection expanded more in accord with political than intellectual clout, and without proof of an innovation deficit or famine in the country.
Suppose patent monopolies were jettisoned in exchange for compulsory licensing at fees set by a royalty commission as obtains in the cable industry.
Net inventions might climb because would-be inventors would be stimulated to enter the market at a reasonable, non-monopolistic price. On the other hand, compulsory licenses in the cable industry, a relatively new phenomenon, might be less friendly in aggregate to inventions than would government ordained monopolies and their appeal to avarice. The answer is unknown and probably unknowable. Even the most expert like Mr. Lessig concede that experience, logic, and intuition are inconclusive. There is no parallel to the Nicene creed to which a lawmaker unswayed by personal ambition might repair.
Moreover, to believe there will ever come a time when legislators will subordinate political for intellectual calculations in crafting patent, copyright, and trade secret laws is to encroach on the domain of the romantic.
Exemplary is a congressional retroactive amendment to elongate copyright protection (to life plus 70 years) to benefit long departed authors, which would seem justifiable to innovation enthusiasts only by fear that nonretroactivity would impair the incentive for reincarnation to write again.
More than innovation is afoot over intellectual property protection. Morals are also at work, building on the biblical prohibition of theft. Moral crusaders insist that the stealing the ideas of another without just compensation is tantamount to grand larceny and should be punished accordingly. Private property, a bedrock of freedom and liberty is said to be imperilled absent legal protection for intellectual pioneers to unlimited exploitation of their labors. Mr. Lessig critiques this claim as a sideshow, not a main event. The moral assertion, however, deserves closer examination because it carries more influence in the corridors of power than refined and brainy dissertations on innovation incentives.
Private property rights have never and should never smack of absolutism. The community enjoys a morally legitimate concern over property where mischief to the general welfare looms. Contrary to popular sloganeering, a man is not a castellan in his home. Private residences are routinely hedged in by zoning or upkeep restrictions. They are subject to police searches based on warrants.
Landlords confront rent controls. Automobiles employed in the commission of drug or other crimes are forfeitable to the state. Thus, government limits on the exploitation of intellectual property is no intrinsically immoral act. It is all a matter of degree, like the difference between confiscatory and mild regulation of real property.
The case for fluffy intellectual property rights is far greater than for their real or personal property counterparts. A novel idea can be used by others, for example, Albert Einstein's theory of relativity, without deprivation to the creator or discoverer. That cannot be said of a home or a piano. Their occupation or use by others inherently inflicts a devastating loss in enjoyment to the owners. On a moral scale, therefore, uncompensated and unlimited use of intellectual property is far less problematic than for the nonintellectual.
In any event, Mr. Lessig's book should be must reading for serious property rights thinkers about the Internet and otherwise.

Bruce Fein is a lawyer and freelance writer specializing in legal issues.



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