Ray Gifford's Aspen Summit talk is now available. The take home:

Finally, and here is where I will lay my beliefs plain as to the place of property and commons, we have perfectly competent and sound legal and economic institutions with which to deal with the new situations of the digital economy. Property and contract law, copyright and patent doctrine, laws of general use and applicability are supple and varied enough to deal with new factual situations posed by the digital revolution. To be sure, these laws are imperfect and subject to rentseeking, but copyright doctrine will not allow “ideas,” property understood, to be privatized; patent law will not let obvious nextstep innovations to be patented; media in an Internet age cannot be controlled and concentrated, but is rather blossoming and multiplying; and consumers in the marketplace will not allow network owners to “close” the Internet.

The private decisions of multiple individuals will deliver an order in the face of uncertainty much better than a government regulator or legislator. What’s more, liberty is protected by these property rights vesting with private parties. The small inventor, the obscure creator, the innovator in his garage is protected by property rights from both confiscation by the government and the depredations of larger private entities. It is administrative state where large entities go to foreclose paths to new entrants. Indeed, I would submit that it has been the new legal and political innovations – namely, the 20th century’s embrace of pervasive administrative regulation – that has proven itself a failure, a rentseekers’ paradise and the domain where legislative, not rule-of-law, regulation thrives. Accordingly, if we are going to look for answers to the questions of the digital revolution, we will find them, I submit, best answered and channeled through the answers of the agricultural and industrial revolutions, from our heritage in common law doctrines of property and contract, and not from visions of a harmonious commons in cyberspace.

posted by James DeLong @ 12:24 PM | General

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