Various posters over on the TechLiberationFront sneer at the shopping cart blogs that Patrick and I posted here and here recently.

This shows two things: First, that they really are missing the humor gene.

And, second, that they really do not understand the issue.

The serious point of our blogs was to show that much of the analysis commonly used to attack the institution of intellectual property can be turned to attack physical property as well. As Patrick showed in his application of the four factors fair use test to shopping carts, and as Richard Epstein demonstrated in his recent Progress on Point, the hard philosophical distinctions between the various kinds of property simply are not there.

Both types of property -- or, one should say, all types of property, since property is a continuum that runs from a fee simple in land through easements and usufructs throught blips in computer memories and on up to the abstractions of copyright and patent -- are based on social utility considerations. Through several thousand years of history, those cultures that nurture property rights have flourished, and those that don't, don't.

Tim Lee seemns to concede the validity of the appeal to social asutility in one paragraph, only to turn around in the next and deny it, appealing to a principle of "let my convenience be served though the heavens fall":

The argument against DRM isn’t that consumers have a right to infringe copyright. (well, some fringe critics make that argument, but not me) The argument is that it needlessly prevents people from doing things that are otherwise completely legal. Like transferring a DVD to your iPod to watch on the road. Or playing a DRMed song on a high-end stereo system that doesn’t support that particular DRM format. Or including a short clip from a DRMed song in a presentation.

That aside, I certainly agree that it is nice for consumers to be able to space shift by playing DVDs on multiple devices. However, this is a product feature, not a moral imperative that justifies destroying society's ability to nurture creativity.

If one wants to see a movie, one can rent it for limited use, or buy it, for repetitive viewings. Does Lee want to outlaw Netflix? Or does he want to eliminate leaseholds, on the ground that once you occupy a building it should be yours forever?

Furthermore, why is this the law's business? The single-use, multi-use issue is something that can easily be settled by contract, and the DRM geeks are happily inventing ways to allow such space shifing. Nor is there any reason why a single price should apply to both the single-venue user and the multi-venue user, or any reason to think that market adaptations will not address the issue quite quickly. Linking the scope of these permissions to different prices will actually increase consumer choice and welfare.

I am continually baffled by such an insistence on a point of minor personal convenience, in contradiction to the usual libertarian emphasis on voluntary contracts, and at the cost of destroying the possibility of erecting truly remarkable market-based systems, that would greatly benefit consumers.

Lee concludes:

“Stealing” music by uploading it to or downloading it from a P2P service always has been illegal, and it would continue to be so if the DMCA were repealed, just as stealing a shopping cart has always been illegal. The analogous Issue is whether we need blanket federal legislation outlawing all circumvention of wheel locks, regardless of the purpose. I don’t think that’s good policy, and I suspect DeLong wouldn’t either.

Legal rules are defaults, which parties can then adjust to suit their own convenience. "Intent" may be a necessary element of criminal law, with its foundations of moral culpability, but to introduce intent into the very definition of property rights is bizarre.

posted by James DeLong @ 12:05 PM |

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