A Key Myth That Drives Bad Policy: Stronger IP Laws Mean More Creativity

from the debunk-it dept

Ars Technica has an article highlighting Rep. Marsha Blackburn’s “conservative tech policy goals,” which has a heavy focus on ramping up intellectual property laws and enforcement. Of course, I don’t see how that’s any different than the “liberal tech policy” these days. Of course, this reinforces the general point that intellectual property issues are not partisan, as both major parties seem to be beholden to the interests of those who abuse IP laws.

However, as Ars demonstrates, Blackburn makes a fundamental economic fallacy in her reasoning — and it’s this fallacy that seems to be made over and over again in debates about intellectual property:

Proposition 1: The ascendant economic sector is the Creative Economy

Proposition 2: The primary commodity in this economy is intellectual property.

Proposition 3: The Creative Economy thrives online, in what is a unique, prosperous, and until recently free marketplace.

The mistake is thinking that “intellectual property laws” are the same as creative output. It’s a nefarious fallacy that we see all the time. It leads to the false claim that “more IP = more creative economy.” And yet, the final point in the list kind of highlights the fallacy. In fact, studies that looked into the reasons why creativity has thrived online found that it was often the absence of strict IP enforcement that resulted in such a free and open marketplace.

Furthermore, the whole basis of this line of thinking is to ignore that much of what has made the internet valuable is not that it’s a broadcast medium for professional content, but that it’s a communications medium, built around sharing content and speech. As Ars properly notes:

It results in a view of tech policy that is all about increasing the protection for intellectual property with little concern for the important connectivity, civic participation, and access to knowledge the Internet also provides–think e-mail, the robust political debate at online blogs, and Wikipedia, none of which need “stronger” IP protections.

It’s really quite unfortunate that so many of our elected officials, no matter what their political party, seem to have fallen for the same fallacy, that seeks to turn the internet into the next version of television, rather than focusing on what the internet actually does well.

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Comments on “A Key Myth That Drives Bad Policy: Stronger IP Laws Mean More Creativity”

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Anonymous Coward says:

Find me a media executive...

…who greenlights a project because it will be profitable 90 years from now. If a show/movie/band/book/whatever isn’t profitable in the first two weeks it’s a failure to these guys. It took them years to realize that home video was a market, and decades before they realized that people like having entire seasons and not just “best of” compilations (although I will admit DVD helped a lot here with its form factor).

Cutting copyright in half would do absolute nothing to the amount of creative material that is generated. Or rather, it would probably lead to the generation of a great deal of new content based on all the content that would be put in the public domain.

Anonymous Coward says:

Re: Find me a media executive...

If the innovations killed (or attempted to be killed), the petulant foot-dragging, the incompetent business ethic, or the plain as day attacks on competition and consumer rights by the entertainment industry or the similar mess created by patent litigation aren’t enough to show thinking people how more IP law is the rope the US will hang itself with aren’t enough, I dunno what is…

…maybe when other countries turn around and use the same short-sighted version of US laws to torque up the hurt right back, but by then it’s far too late for everyone.

greg.fenton (profile) says:

The internet is not creative anything

I would bet very heavily that those politicians of whom you speak have no use for, little respect for, and next to zero knowledge of the Internet.

Come on! The ‘net has the twitters and the hamsters and those nasty pirates and the I Like Turtles and …yikes!…young people.

It isn’t a fallacy if you don’t buy the main premise of the assertions. The Internet is not “creative”; everything on it is free so there is no “economy” (EVERYONE knows that economics is only about making money).

</yes, this is my end-of-sarcasm tag>

Anonymous Coward says:

It is amazing that you can write all of this out, and not get the basic driving principal behind all of it:

At the end of the day, investment in development is made on a risk / return basis. We all do it. Even the guy sitting at home playing on his computer writing the next facebook is doing a risk / return on his time and effort, even if he doesn’t know it. He risks a dates and social standing in order to move forward on his project. It could be said that online development thrives in part because the people do it have little at risk and more chance of return (think non-date worthy geek writing unix extensions, and you sort of have an idea where I am going).

For bigger companies that spend million (and even billions) on research and development, the goal is to obtain advantage in the marketplace and to be able to exploit it long enough to make the money back and profit from it.

It also comes back to that (often cited) problem of the difference between small changes moving forward, and larger leaps. Taking something that exists and making a minor modification (could be an improvement, might not be) may count to some as innovation, but it is low level activity that isn’t really moving things forward by leaps and bounds. Generally, it is the type of advancement that can happen anywhere in the world, and generally comes from low wage nations that can afford to try 101 variations of a gizmo.

In the richer countries (like the US) the problem is that marginal innovation is often too expensive to try out. If you try to compete only on marginal innovation with the Chinese or India as an example, you will lose almost every time. Without strong IP laws, these countries are the knock off capitals of the world these days, but they are often short on truly innovative products.

It’s one of the reasons President Hu has been talking IP while in the US this week. China understands that without at least the surface of stricter IP laws, they will be unable to really benefit from higher level innovation and new product discoveries, as they would be scooped by outside countries. Their movement towards IP is an indication of where the real money in made in the economy in the long run.

When you stand back and watch, it’s interesting to see how it goes. Too bad that TD can’t seem to address the real economics of the issue, as opposed to just the usual passioned cries for “freedom”, whatever that is.

Anonymous Coward says:

Find me a media executive...

Before them the Japanese made great use of laws to screw American business.

You think those people would learn something, the Japanese endured a lot to get a piece of the American market, they complied with every single regulation that was throw at them trying to break their will and ended up delivering higher quality products for a fraction of the cost in the process that decimated the American manufacturing park because they couldn’t compete anymore.

Then they got tired of having to endure American policies and tried to create their own market place in Asia it worked, but not in the way the envisioned.

At some point these people need to understand that other will not stop hammering them or protect them, maybe the U.S. government is kin on that, but what it is really doing is creating a environment where without protection they wouldn’t survive out in the real world.

The American government is afraid that it will have to endure the same thing it inflicted upon others, and they are making a pretty damn good job at giving that power to others to do just that, those laws eventually will be used against U.S. interests others are rapidly catching up and in some case even surpassing U.S. capabilities, when the tables turn what happens then? go back on their word and start preaching something different?

The solution is cooperation, global cooperation not a monopoly. People all around should be working to produce something and that production should be local, that is not going to happen with corporations locking up everything.

Americans can compete in price and work, they just don’t have the laws to do so, people don’t have the freedom to produce anything anymore and that is a big problem.

Anonymous Coward says:


Obviously you have never ever set foot on China did you?

President Hu paid lip service to IP protections, he will do nothing to increase IP enforcement upon the Chinese, what he will do is crack down hard on American business so they comply with the Chinese regulations and possibly find some companies unwanted there.

Did you ever saw how the Chinese work in foreign factories and companies?

China sees IP laws as a weapon to achieve economical and social interests that exclude U.S. interests.

The eejit (profile) says:


Okay, you want to talk about economics?

China has a much larger workforce than the US, and it can afford to pay lower wages as a result. This reults in a lower cost mechanism, meaning that the Chinese manufacturers can make a larger cut in prices, meaning America simply cannot compete.

This means that the US manufacturing capabilities are being crushed. ONce China falls through, most of the Western world will be screwed.

Patrick (user link) says:

measuring innovation is not so simple

Determining whether a certain policy increases or decreases creative productivity is not as simple as you make it out to be, but what people should realize is that as patent protections get weaker, the prospect of using trade secret protection gets more attractive. As I noted on my blog today (Power Play: Are Trade Secrets More Powerful Than Patents?), patents encourage improvements to existing products, and alternative designs (as a constant tug-of-war between the desire to maintain exclusionary rights to a market and the desire of competing firms to avoid paying royalties). Trade secrets, meanwhile, generally only encourage firms to shelter their inventions from the public.

No Expert says:

measuring innovation is not so simple

Okay, cool. By that premise – sheltering more via trade secreting – someone could bring a similar, perhaps better, perhaps just different in small ways product to market and not have the threat of inevitable patent litigation precluding them from doing so. Providing, of course, that those involved in the new, similar offering had no relationship with the other entity’s production methods, perhaps just relying on either simultaneous executions of the same idea or by reverse engineering.

That would be interesting!

Darryl says:

Find me a media executive...

average US wage is 10 times the wage of the average Chinese,

Chinese manufacturing industry would probably allready be 100 times or more than the USA’s manufacturing industry.

Japanese managers, went to the US after WW2 and they studied US industries.

They saw everything THEY DID WRONG, and went back to japan and did it right.

That is why Japan is technically more advanced than the US.

No one really buys much in the way of US products, but the world buys ALOT of things made in China.

The US is not seen as a great technological force anymore, quite a few other countries have taken over in science, and industry, and technology.

IP laws are just the same as laws that protect people from entering your house and taking something they do not own.

What do you want IP reform in the US for ?

So you can give all your US developed IP to other countries that can use it far better than the US can.

So what do you have then, if you give away your crown jewels?

Nothing,, thats what,

You do not know anything, that anyone else knows, you cannot do anything cheaper, better, or differently than anyone else.

And you (as a country) does not have the capability to compete without the original IP.

And what is wrong with developing your OWN IP ??

Like everyone else does, how are you going to advance as a nation if you do not have anything that sets you apart ?

or if you do invent something great, that would help you and your country, you are happy to give that information away to anyone who wants it, so they can profit from it, and not you !!.

It’s the arrogance of the US that will be its downfall, we can all see it coming, except it appears if you live in the US !!.

You benifit from IP every day, and you benifit from it, every minute of every day.

If IP laws were ‘relaxed’ then that would not make more IP available, it would simple ensure it is kept secret by the owners of that IP.

Just like the military has to do.

YOU will not ever get more access to IP, regardless of the law, except if you are capable of developing your own IP.

If that is not beyond you’re capabilities.

It’s a bit sad to see the once Great America, who put man on the moon, and nuked Japan, being such a basket case today.

And all its people can do is fight for what they can get for free, or on the cheap.

Don’t you think you have some bigger problems ? or is it you just dont care ?

Darryl says:

Except it will increase creativity

military technology is highly creative, and it has super strong IP laws.

In that case, it is clear stronger IP laws, leads to greater creativity.

Plus, what is the point of creating something, if you know that someone else is going to take that and profit from it, before you can do so?

Someone who invents something great will keep it a secret until they have it protected.

So when they have IP that is not protected they keep it a secret, just like the military does.

It will not effect creativity at all, it just ensures that any creativity will be protected.

And force you to use your own creativity if you see something that can be done different or better.

Otherwise, no one will create, as they dont need too, they will just use what allready exists, and progress will stop.

The exact opposite to what you claim will happen Mike,

and dont believe me, look at the Military industry, full of amazing IP, and you never know about it.

Should the US make its IP available on how to make weapons grade plutonium ?

What about how to refine Anthrax ?

What about how to build ICBM’s ?

Or fighter jets ?

If you just steal the IP, you do not understand it as would the developer of that technology, so the chances of you being able to develop further, or maintain that system would not be the same as the original developer of the technology.

Take for example, Microsoft windows, (rare US sucess), who would be able to develop and advance, and support win7 better than the company that developed it ?

No one.. everything else is like a cheap knockoff, like Linux, being a ‘cheap copy’ of UNIX, and its app suite.

Becarefull for what you wish for, it may just come true.

Mickey says:


Why does Marsha Want Congress to Regulate the Internet? Why not just say NO FEDERAL branch (the FCC and congress and the federal courts included) has any authority to decide or rule on any aspect concerning the Internet?

BUT Marsha Blackburn did Vote FOR: Patriot Act Reauthorization, Electronic Surveillance, Funding the REAL ID Act (National ID), Foreign Intelligence Surveillance, Thought Crimes ?Violent Radicalization and Homegrown Terrorism Prevention Act, Warrantless Searches, Employee Verification Program, Body Imaging Screening, Patriot Act extension; and only NOW she is worried about free speech, privacy, and government take over of the internet?

Marsha Blackburn is my Congressman.
See her ?blatantly unconstitutional? votes at :

Anonymous Coward says:


China’s workforce doesn’t define it’s costs. It’s the level of lifestyle and the total absence of unions that makes much of the difference. People are willing to work (and work hard) for less per day than most Wal-mart cashiers make in an hour. That is all to do with the way of life, the cost of living, and so on.

China is also coming to grips with inflation, and they understand over time that they will not have the pure labor cost advantage at the level they have it now. If they adjust their currency in a freer way, that will move it even more (but will likely cause inflation in the US, as the cost of goods would go up). There is such a huge margin that labor costs in China could double and still no US workers would want to work for that salary, living in the US.

There is a lot at play here.

For the moment, the risk/return on IP isn’t working in the US because other countries can easily replicate it and do it cheaper than the US can, even without any protections. Understanding that, it makes it clear why IP can be the US’s friend, not it’s enemy.

Otherwise, it’s a race to the bottom, and the Chinese already have the bottom all taken care of.

Joe Smith says:

restrictive covenants

Patents are one way to try to protect certain types of intellectual property. Restrictive covenants in employment contracts are another way to protect certain types of intellectual property.

Apparently California has some of the weakest enforcement of restrictive covenants in the country and yet is a center for creativity. California is thus a counter-example to the proposition that strong IP laws lead to a more creative economy – in California’s case, weaker IP protection co-exists with and may have led to a highly creative economy.

mhenriday (profile) says:

?It's really quite unfortunate

that so many of our elected officials, no matter what their political party, seem to have fallen for the same fallacy …? Unfortunate, yes, surprising, no. Or, as Upton Beall Sinclair put it ?It is difficult to get a man to understand something, when his salary depends upon his not understanding it !? ?Salary? here should be understood to include campaign contributions and other bribes….


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