[ EEPI-Discuss ] Prof Lessig is consistent in his mistake.

[David Tomlinson <d.tomlinson@tiscali.co.uk>]

Professor Lessig, is consistently making a mistake, in beliving the 
solution is always the middle ground.

Rather than support Exclusive Rights, he assumes that the compromises 
made for physical property, should be applied to intellectual property.

Moderation in all things is not a bad strategy, but it can often fail, 
if the pendulum has already swung to one extreme you end up with a 
moderate strategy, at the three quarter point rather than the middle.
Another occasion when it fails to work, is when the model is wrong.

The physical property model is just wrong for intangable materials. It 
doesn't walk like a duck, or quack like a duck, so stop trying to force 
it to be a duck. Intangables are not physical, so stop trying to attach 
them to some atoms and claim they are physical.

He now extends his moderation to the economy of ideas (note: not the 
economy of physical objects), and argues for a mixed economy.


http://www.lessig.org/blog/archives/002906.shtml

He identifies this as the Exclusive Rights (or permission) economy (ER), 
the Collective Rights (CR) Economy and the Free from Exclusive Rights 
(FR) Economy.

He then chastises the extremists from each economy, and advocates a 
mixed market.

He is then suprised when he encounters people from the CR economy and 
they can see no limit to the application of and extention to Collective 
Rights, Just as the Exclusive Rights people can see no limit to 
Exclusive Rights.

Ref: 125 in this paper by Prof Lemley: http://ssrn.com/abstract=582602

See Gordon Tullock, The Welfare Costs of Tariffs, Monopolies and Theft, 
5 Western Econ. J. 224, 226, 232 (1967). Tullock’s classic analysis 
applies to efforts to capture an existing government benefit. The 
analysis would seem applicable to efforts to create a new right as well.
In both cases, rent-seekers will be willing to spend up to their 
expected value of the rent (the money they will receive if successful, 
discounted by the probability of failure and any risk aversion) to try 
to acquire the rent.

So if you create a right, people have an incentive to aquire and extend 
that right, and will expend resources to do so. Where as if an economy 
can operate without that right, then there is no possibility of aquiring 
the right.

In fact, the physical limitations of live performance and restricting 
access  automatically limit the rewards (to performer, venue owner etc), 
while providing sufficient incentives, and it is the public that aquires 
the benifit of low cost copying and distribution, just as it is the 
public who are picking up the cost of distribution and storage.

This reduces the tendancy for a winner takes all model and gives more 
scope for a larger variety of more moderately renumerated performers.

Exclusive rights, make any marginal gain from marketing justified, and 
reduce distribution as the intention is to maximalise profit form every 
transaction. The result is the public good is minimalised, and the 
private profit maximalised.

When you have the wrong model, only the radical change to a more 
appropriate model will do, moderation is not the solution.

















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