February 14, 2006
Thinking Through Copyright Hypos That are a Little too Clever
This weekend, I gave a silly, sarcastic response to James DeLong’s analogy between the case for DRM and shopping cart anti-theft devices, and, more generally, copyright and property rights. But this sort of comparison is actually worthy of a more substantive analysis, to see precisely where it goes wrong.
Luckily, I don’t have to write one up myself. Lawrence Solum tackled a similar comparsion provided by Eugene Volokh around two years ago. The arguments are just as applicable to DeLong’s post. Comparing the properties of these particular shopping carts “the ex post perspective with the essential properties of information from the ex ante perspective” is unfair. Instead, if we look ex ante at physical property like the shopping carts and copyrighted goods, we see that rivalrousness makes a difference in what we need to provide proper incentives. What’s more, for physical property that truly lacked crowding effects and was non-rivalrous, we might regulate it differently, limiting the exclusive right, to maximize social welfare.
Read all of Solum’s post. You might also be interested Mark Lemley’s “Ex Ante versus Ex Post Justifications for Intellectual Property.
Filed by Derek Slater at 12:46 am under General news
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