Professor Lee Hollaar’s essay for the IPI is an excellent review, not only of DMCA criticisms proffered by writers for the Cato Institute and EFF, but of intellectual property generally. Consistencies between the Cato and EFF DMCA works typify the kind of reasoning that informs usual criticisms of intellectual property rights. Take for example, this passage by Hollaar.

Many of these episodes [where the DMCA purportedly caused injury] are simply people apprehensive about the DMCA, some entail speculation about its effects... people [were] concerned about the DMCA even though nobody was actually threatening them.

This sounds a lot like the FOSS movement’s war against software patents, containing the same apprehensiveness and speculation without apparent threat. They claim that because inventions can contain many patent claims, that each invention infringes on a patent, and thus innovation is stifled. But there is evidence every day that firms are not deterred by the one-to-many relationship between inventions and patents. Firms cross-license, enter patent pools, join cooperative agreements or become involved in standards development. Firms exchange IP everyday through licensing and collaboration, its not that hard.

FOSS arguments on patents stifling FOSS innovation are even more baseless. In realistic terms, I view the FOSS movement’s opposition to software patents as an ideological one, since patents are not to blame for the current state of FOSS. If I were suspicious, I would say the FOSS movement dislikes software patents because they give proprietary firms the ability to enter, become viable and succeed in markets; basically, the FOSS motto is “weaken your enemy rather than strengthen yourself.”

An item of particular interest in Hollaar’s essay is the concept of absolute values.

The predictions bemoan the curtailment of privacy, anonymity, free speech, or fair use, with little or no explanation that these are just shorthand terms for complex concepts fleshed out in hundreds of court decisions, rather than absolutes that must never be touched. The buzzword du jour is “innovation,” which will be “chilled” by just about anything done to rein in the current widespread copyright infringement.

I’ve written before on how the anti-IP crowd often argues for things like absolute free markets and perfect competition, but they also extend this kind of reasoning to concepts like free speech and fair use. Their reasoning seems to be that “whatever is of value should not be diminished.” This logic has affected policy discourse, from new conceptualizations of the public domain, and even libertarians, that are construed as “good” so as to vilify any effect that IPRs have on them.

Innovation and policy do not occur in vacuums, nor on flowcharts, which are natural contexts for this kind of absolutist reasoning of IP critics. These critics have extended their absolutist values to things that should happen: stopping piracy and the availability of circumvention devices. The argument is that because DRM and the DMCA do not stop piracy and the dissemination of circumvention devices, that they are of no value to creators. Even common sense would predict that DRM and the DMCA would be valuable to creators if piracy and the availability of circumvention tools were merely deterred or reduced to economic proportions advantageous to IP owners.

Another symptom of IP critics absolutist reasoning concerns the relation between patents and innovation. Scholars over the past half century, and even earlier, have found theories to justify patents in certain circumstances, depending on the type of innovation concerned. Since the basis for patents is to promote innovation, these theories are accepted as bases for patents where they apply. However, patent critics would have it that patents promote innovation only when there is a perfect 1-1 correlation between patents and innovation. But how many 1-1 correlations are there in innovation? Assuming a 1-1 correlation between patents and innovation, or with anything concerning innovation, is patently a strawman

Finally, Hollar raises an insightful point about IP critics.

At the time the DMCA was being drafted, Congress was well aware of the massive copyright infringement that was occurring. Opponents who ignored that behavior and concentrated on hypothetical problems lost credibility, especially when it seemed like they were being apologists for those promoting infringement.

When IP critics argue that DRM does not help creators, when they say that software patents don’t help small firms, do they really care about creators and firms in the first place? Imagine the DRM critic who claims to support artists and then argues that artists can just make music for fun, or the copyright critic who dislikes the RIAA/MPAA for not giving artists greater royalties off CDs but then goes and downloads songs illegally from P2P networks, or the digital revolution fanatic who thinks the Internet will change the world when advertisers can tap the Internet for revenue and artists should not, or how about the argument that IP is not important despite today’s innovation but a development model that has penetrated little of any market is the revolution of the future. And then the view that artists can give music lessons for a living since piracy is notta problem. The best, er hillarious, argument of IP critics is that IP stifles competition, since copying is competition.

IP debates are healthy, yet maddening when the opponent's bottom line is that he is just part of some religious revolution.