Intellectual Property and Commensurability

We now return from that detour to our regularly scheduled blogging.

From the trenches of the intellectual property debate, Peter planted a flag: over expansive intellectual property regime has gone from glorious property as usual to inglorious taxation by regulation as usual.

The terms of this debate are set in an economic-theoretical frame. This frame attempts to create a commensurable value scale where there isn’t one, but provides something useful in the meantime.

I’d like to suggest that copyright in particular is where the problems with this point of view become more acute.

What do we gain by allowing filmmakers to have the legal right to restrict the copying of their creation?

If enforced perfectly, it would mean that no one would view the film at all unless the filmmaker allowed it; in a market setting this would generally mean unless the filmmaker was paid. So the filmmaker can ex ante expect that if a lot of people want to see the film, he will make a lot of money. This encourages him (or more likely, a studio which is able to pool the risk across many films) to invest more in the film; hiring better known actors, creating more detailed sets, and so on.

What is the value of this extra investment? The logic of econ says that the value is equal to the extra amount that people are willing to pay. But this is the problem with forcing commensurability where there isn’t any. Say that in the absence of a mechanism for forcing people to pay if they want to access copies of a film, people would spend more time outdoors with their families (a common accusation made about the effect of TV in particular). Surely time spent with our loved ones is more valuable than time spent watching movies or TV?

The example is tongue in cheek but meant to provoke some thought about what, exactly, it is that we are seeking to protect, when we seek to protect copyright with criminal prosecution and extreme measures like civil asset forfeiture.

Now, I like Eli’s pragmatic approach taken up here—it makes use of the valuable concepts from economics, but its assumptions about value are very minimal. On the latter score, it is mostly just respectful—Eli acknowledges (implicitly) that there are people in the film industry, as well as economists and intellectuals, who value the products being created under the current copyright regime and fear that reform would threaten those products. Using some very minimal assumptions from economics, he shows that we could radically reduce copyright terms and expect only very small changes in the income of rightsholders.

What I like about this argument is that it doesn’t appeal to the authority of Economics or Truth but instead respects the values of the other side and uses the tools of economics to attempt to persuade them. Tools are meant to be used—they are not meant to be all encompassing theories of everything.

On Commensurability

Imagine a typical recipe, something you might find at You have a list of ingredients with particular quantities, as well as instructions for what to do. You have some flexibility with the particulars—especially if you are not baking—some ingredients have substitutes that will work just as well or better in the recipe. Sometimes the recipe suggests a few of these substitutes, most of the time it takes judgment and experience—or barring that, a spirit of adventure—on the part of the cook. There are some contingencies that cannot be captured universally in a recipe—the idiosyncrasies of your particular oven, variation in how big or juicy a particular fruit is, and so on.

The rationalist and especially the utilitarian project since the pre-Socratics has attempted to reduce everything in human life to a single, commensurable scale. The Socrates of Protagoras thinks all problems of decisionmaking boil down to a failure to develop the techne of rationality which allows us to see everything according to this single scale, wherein everything is to some extent a substitute for everything else, of greater or lesser value in terms of quantity but qualitatively identical.

Let’s try to imagine a school of cooking which taught that ingredients were entirely commensurable, perfect substitutes for one another. Do you think that such a school would be very successful?

And yet in philosophy the equivalent schools have thrived over millennia. Today there are people who believe, for instance, that Pareto-derived utilitarianism as used in economics has basically provided us with the techne that Socrates sought so long ago.

On Monday at The Ümlaut I’m going to be talking about this in greater length, but for now I’d simply like to suggest that the ingredients for living well are just as varied and incommensurable as the ingredients for a good recipe. Some ingredients have close substitutes, but to treat every ingredient as a substitute for every other ingredient is, quite simply, to fly in the face of plain reality.