IP+ Like Barbed Wire?

“Without barbed wire the Plains homestead could never have been protected from the grazing herds and therefore could not have been possible as an agricultural unit.” (1931) …

English common law made livestock owners responsible for damages by roaming livestock, assigning the responsibility to fence in livestock. In contrast, the American colonies adopted legal codes that required farmers to fence out others’ livestock. Without a “lawful fence,” farmers had no formal entitlement to compensation for damages by others’ livestock. …

From 1880 to 1900, the introduction and near-universal adoption of barbed wire [in the US west] greatly reduced the cost of fences, relative to the predominant wooden fences, especially in counties with the least woodland. Over that period, … average crop productivity increased relatively by 23% in counties with the least woodland, controlling for crop-specific differences among counties and crop-specific statewide shocks. The increased productivity was entirely among crops more susceptible to damage from roaming livestock. … This increase in agricultural development appears partly to reflect farmers’ increased ability to protect their land from encroachment. (more)

Before the invention of barbed wire, it just didn’t make sense to build fences around farms in areas with little wood. Thus, it didn’t make as much sense to farm, near where others raised livestock. If you farmed, nearby livestock might just come and eat or trample your crops. In such times and places, many ranchers probably thought that “natural law” favored ranching, not farming, and favored property in animals more than property in land.

But the kinds of property and activity that makes sense depends on the available institutions and technology. Before barbed wire, it make less sense to farm, or to enforce property rights in land against roaming animals. But after barbed wire, farming and land property rights made a lot more sense.

Similarly, the kinds of innovation activities and intellectual property rights that make sense depend on available institutions and technologies. I’m happy to admit that today intellectual property (IP) is not obviously a good idea. Such property can create large “anti-commons” transaction and enforcement costs that greatly raise the cost of combining old ideas into valuable new ideas. Such costs often outweigh the social benefits of the incentives to create IP, in order to sell it. Today, it is often better to rely on other social incentives to innovate, incentives that don’t require such expensive support.

But if true, this is a sad fact about our limited abilities, not a fundamental natural law or right. You have no fundamental right to enjoy the innovations produced by others without compensating them. You owe them, at least your gratitude. Yes for now it may be best to let you take innovations freely without paying, since the alternative seems too expensive. But you have no right to expect that situation to last forever, any more than ranchers had a right to expect they could forever let their animals trample nearby farms.

Just as farmers developed barbed-wire, someday I expect IP advocates will develop better forms of intellectual property, and better technologies for marking, sharing, and enforcing such property. Using such innovations, I expect we will allow more and stronger intellectual property, and more of the world economy will focus on developing such property. Which, like barbed-wire, will mostly be a good thing.

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