Libertarians opposed to IP rights on various grounds quite correctly note that there are alternatives to statutory IP rights. These include technological devices to contain IP, first mover advantages, contract-based systems for ensuring limited distribution and payment, tying IP to physical property or bundling it with another good (like advertising), and so on.

I won't survey those alternatives in detail here, but make some meta-observations.

First, I agree that there are alternatives to IP and that some of these are far less cumbersome than statutory IP. Far cheaper to make it hard or impossible to make multiple copies of a file or disk, than to wait for everyone to do so and then launch a lawsuit against every offending individual.

That said, tech-enforced boundaries can't do everything either. They can't do anything once they are breached, and breached they will be, especially if there is no rule that copying for distribution is illegal.

The other chief type of alternatives to IP are contractual (bundling IP with advertising, or with another service, and so on). But these are not notably less cumbersome than statutory IP, and may be more so. Who wants a 200 page contract stapled to every book or every tube of liniment? How do these contracts get enforced? What do you do about people who aren't parties to the contract? What do you do if there are gaps in the contract? Well, you go to court and the judge applies various rules of construction and fills in the gaps and ... lo and behold, we have a set a default rules for IP. We're right back where we started.

Essentially, though, the development of alternatives to legal IP concedes the point that some sort of framework is necessary in many (most) cases to protect incentives to create and invent. Either the anti-IP libertarian has to argue that these alternatives are as good as or better than statutory IP, or that no form of IP or IP alternatives are necessary. Both positions seem to me to be very weak.

posted by Solveig Singleton @ 3:04 PM | Liberty and IP

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