Tuesday, June 26, 2007

Privilege, Peer Review, and Piracy: Q & A

Three recent posts produced several questions and comments.

Follow the Government Intervention. In “The Market Gives Privilege to No One” I stated that certain groups of professionals do not usually work weekends and that the computer industry’s “24/7” indicates the ultimate in free-market service. “But I work weekends,” protested one doctor and one professor and shock was expressed that I was asking them to work around the clock!

Concerning the latter, no one person that I know of in the computer industry works twenty-four hours a day, seven days a week. The designation “24/7” means that customers can get service whenever they need it; the 24/7 company covers the entire week, around the clock, with service workers. Educational services on Saturdays and Sundays are scarce. Medical services are nonexistent, unless you are willing to subject yourself to waiting six hours or more in a socialized hospital emergency room. Government intervention, especially restriction of the supply of doctors and hospitals in the medical market, creates these service distortions and gives the professors and doctors a privileged life. On the medical market, see "100 Years of Medical Robbery" and "Real Medical Freedom" by Dale Steinreich.

One professor recited a common view that some academics hold: students are not customers, but products to be sold to businesses, that is, students are “work in progress” that become “finished goods” upon graduation. At best, this description of students is metaphor, at worst it is profound insult. The product of education is the knowledge the professor is supposed to be conveying to students and knowledge is what students are buying with their tuition payments. If professors view students as products in a production line, is it any wonder that students feel like numbers on a roster? Why do professors view them this way? Follow the government intervention: because that is precisely how the bureaucracy views students.

Playing the Game. In “Drop Errors and the Trouble with Peer Review” I said that peer reviewers are gatekeepers that prevent or delay the acceptance of innovative ideas. One reader wrote that entrepreneurs are getting around the gatekeepers by establishing online journals.

True. Technological innovation, such as the Internet, has made it easier for writers to get into print without having to jump through the usual hoops and there has been a proliferation of academic journals, many of them online. Much of the proliferation, however, is driven by the publish-or-perish atmosphere of academic life, which is expanding beyond research universities to what used to be called teaching schools. Accreditation requirements for “academic qualification,” usually defined as a certain number of peer-reviewed journal articles—books don't count or, at most, count only as equivalent to one article—have created the need for more outlets to accommodate this increased “original research.”

University administrators have become bean counters and professors plan strategies for getting around the peer-review gatekeepers. Hallway discussion among faculty is about how to play the game.

Is Unauthorized Copying Theft? In “The Market Function of Piracy” I said that pirated goods may function as a free sample in accelerating the acceptance of new products. The question arises, am I defending theft? No, I’m trying to recast the intellectual property debate; I addressed the issue to some extent in a comment I made to my post on the Mises blog. See comment below.

As Siva Vaidnyanathan said in Copyrights and Copywrongs, “You cannot argue for theft” (p. 253). Neither Vaidnyanathan nor Lawrence Lessig in Free Culture are against intellectual property but both are attempting to rein in the lunacy of recent trends, such as the war against peer-to-peer file sharing and the push for perpetuity in copyrights. Their focus is on reforming intellectual property law to foster creativity, not stifle it. Roll it back, perhaps, to fourteen or twenty-eight years for copyrights.

The problem I have with their discussions, and others, is that interest-group and collectivist terminology dominate. Beginning with the Constitution, the aim of patents and copyrights is “to promote the Progress of Science and Useful Arts.” Why not promote business in general? The aim of intellectual property legislation, they say, is to balance the needs of society with the rights of creators and the public good should dictate when property should go into the public domain. Etc.

When some advocates of intellectual property rights, on the other hand, make a case for the perpetuity, they have the collectivist and utilitarian defenders in a bind. Rights do not expire, they say. Why should my patent or copyright expire? Time limits are arbitrary, justified only on grounds of the public good. It is the failure to answer this argument, I think, that today is causing the continued lengthening of copyright, and to a lesser extent, patent terms.

The fundamental question to be answered in intellectual property debates is, where does your property end and my rights begin? How is it that you can come into my house and tell me that I cannot copy something I already paid you for? Or, to put it in historical context, is intellectual property really property or is it an instance of monopoly power and privilege? Historically, until the mid-nineteenth century, patents and copyrights were considered monopolies granted by the government; that’s why time limits were put on them. And many economists in the nineteenth century considered patents just another form of protectionism.

My knowledge of marketing theory adds an additional perspective to this debate. There are actions creators can take—mainly the relentless search for customers—to market their innovations without resort to patents and copyrights. Clothing designs, for example, are largely unprotected, but some designers, despite the rapid availability of knock-offs, do quite well. By initiating lawsuits, especially the kind that occur today, creators’ actions begin to look like monopoly protectionism cloaked in the self-righteous guise of property rights. Add to this the mind/body dichotomy—namely that creators do not like, and some even despise, having to aggressively market their wares—and you have a case for concluding that patents and copyrights are more about monopoly and less about property.

Property or monopoly. That is the issue. I’m not 100% certain that patents and copyrights are monopolies, but I’m no longer convinced that intellectual property is property. More research on my part must be done. I will have more to say about this topic at some other time.

1 comment :

Jerry Kirkpatrick said...

This comment was originally posted on the Mises Blog.

There are two issues underlying my article.

The first is a practical one: what’s a marketer to do when hit with a price attack? Use the legal system to defeat the competition (which in the past has included using antitrust laws and lobbying Congress to pass new laws) or creatively come up with new entrepreneurial ways of offering greater overall value to prospects than the competition? The RIAA could have been a leader in P2P file sharing technology; instead, they have become just another example of an industry using the legal system to maintain a leg up on innovative competitors.

In Mozart’s day, to give a contrast from before the age of copyright law, it was common to arrange popular opera tunes for wind ensembles, which tunes then became the rock’n’roll hits of the day. Mozart wrote his father once that he had to get busy arranging one of his operas (Marriage of Figaro?) before the copiers got to it. Mozart was interested in making money, so he did do his own arrangements.

One more example from the late nineteenth century. Sheet music publishers tried to silence, or demand royalties from, the phonograph and player piano industries. In fact both technologies increased the sale of sheet music. From a marketing perspective, the latter should have paid the former a sales commission.

The other issue underlying my article is the question of ethics: is piracy unethical or are copyrights and patents instances of monopoly power and privilege? Piracy means making copies; the innovator still has the originals to sell. Is piracy theft? It depends on your theory of property.

I admit in this issue to being a long-time Objectivist who was weened on intellectual property as property. I’m not so sure it is anymore. Creative people are notoriously un-entrepreneurial. Could it be that they (feel that they) need government protection and monopoly prices because they do not know how, or do not want, to get down in the trenches of marketing and actually sell their products?? “God forbid,” I can see many creatives saying, “that I should have to rub shoulders with those grubby sales people!”

Mark Twain and Jack Valenti both advocated copyright in perpetuity. That’s essentially what we have today: lifetime plus seventy years. That may kill creativity, so say Lawrence Lessig in Free Culture and Siva Vaidhyanathan in Copyrights and Copywrongs.