August 29, 2004  ·  Richard Posner

What particularly strikes me in reading over the comments (not that I’ve been able to read carefully all of them) is the challenge of managing uncertainty. It is uncertainty that pervades the topics that I’ve touched on in my postings and that have provoked many of the comments. I started with IP, where the underlying uncertainty is that we just don’t know the social value of creating enforceable legal rights in intellectual property. In the case of physical property, we know or think we know that something like the present definition of rights, including such limited exceptions to private property rights as eminent domain, adverse possession, trespass by necessity (e.g., driving onto someone’s lawn in order to avoid a collision with another vehicle), forfeiture for nonpayment of taxes, rights of business invitees, etc., is economically optimal. We don’t have any grounds for similar confidence with respect to IP rights. To abolish them altogether would almost certainly be inefficient; likewise to expand them much beyond their present scope; but that leaves a vast middle area. I think there are some reforms that can be advocated without worrying too much about fundamental questions, like allowing unauthorized copying of old copyrighted works that have little or no commercial value, as evidenced by failure to register them; and maybe that’s where we should concentrate our efforts.

The uncertainty concerning the proper scope of IP rights is magnified by the onrush of technology. As I said, repeating a Lessig point, law is relative to technology; technology can disrupt a balance carefully struck by law. But if we have no clear sense of where the balance should be struck, this makes it difficult to know what stance to take with relation to encryption technologies that enable IP owners to obtain greater protection from copiers than IP law would give them.

I am distrustful of people who think they have confident answers to such questions.

When we turn to such issues as global warming, other potential environmental disasters, and various forms of terrorism, again we are in the presence of profound uncertainties. There is an old but still useful distinction between “risk” and “uncertainty,” the former referring to contingencies to which a probability can be attached, the latter to contingencies to which no probability can be attached. The former is the domain of insurance and cost-benefit analysis. The latter? No one can assign a probability to any given time, place, or manner of a terrorist attack within a very broad range (obviously some possibilities can be excluded); and yet we have to take counterrorist measures; we have, in short, to manage uncertainty as well as risk.

There is finally a question of who should be heard on such matters. It is apparent from the comments that the commenters cover a very broad range with respect to expertise concerning particular topics. They’re a mixture, in other words, of specialists and generalists. I am a generalist, and some people think I shouldn’t be talking about most of the things I do talk about when I’m not judging or writing articles dealing with legal topics or applying economic analysis to legal topics. But in areas of uncertainty, areas where optimal responses cannot be reduced to formula, it seems to me that generalists are entitled to be heard, because specialists in such areas are likely to be acting on intuition and bias rather than on exact knowledge and cogent methodologies. Do we really want to turn over the design of our system of intelligence gathering and analysis to intelligence experts? And who are they, precisely, and do they agree with each other and if not what do we do?

It seems right that I should sign off with a question, even if it is rhetorical.

It’s been fun. Au revoir.

  • raoul

    �To abolish them (IP rights) altogether would almost certainly be inefficient.�

    10,000 years of human history without IP compared to a few hundred with. Why do people just believe this without question?

    �I am distrustful of people who think they have confident answers to such questions.�

    I have one: Copyright term = 5 years; no statutory damages; and no anti-circumvention clause. Bam . . . problem solved.

  • http://world.std.com/~mhuben Mike Huben

    I don’t understand why copyrights should have ridiculously long periods. Discount rates over those periods imply that there is no significant incentive to produce anything new from IP rights extended beyond roughly 20 years. Patents make more sense that way.

  • Hal

    I don’t see why we have so much uncertainty about IP. We’ve had almost 200 years of experience in this country alone under different IP regimes. In the 19th century IP enforcement was relatively lax, while in the 20th we saw greatly increased enforcement. What was the result? American IP production vastly outstripped the rest of the world. Our movies, music and other information goods are valued all over the world, making American culture more influential than any in history. The great 20th century American experiment with increased IP protection led to tremendously increased IP production, exactly as economic theory would predict. There is no real mystery here, only obfuscation by those who would deny the evidence of history.

  • http://world.std.com/~mhuben Mike Huben

    It’s good to know, Hal, that nothing has changed but those IP regimes in two centuries. Otherwise wiseasses might ask embarassing questions involving the words corellation and cause.

  • Mojo

    Do we really want to turn over the design of our system of intelligence gathering and analysis to intelligence experts? And who are they, precisely, and do they agree with each other and if not what do we do?
    I’m an intelligence expert and you should turn design of the new intel community over to me. Other “experts” don’t agree with me but they’re all wrong so just trust me.
    Seriously, this is one of the areas where “civilian” control is most important and a significant part of that control is managing the structure. Also, as you can see from testimony at the many ongoing congressional hearings on the NID proposal, the experts often don’t agree. It is important to take their recommendations into consideration, and even more important to understand the reasons behind their recommendations, but the decision must be made by the elected officials we’ll be depending on to oversee and control this thing once it’s remodeled.

    Disclaimer: I don’t happen to think the structure of the intel community was a significant factor in the intel failures pre-9/11 and pre-Iraq. There were effective methods for sharing data but in many cases it wasn’t shared anyway or, when shared, wasn’t used. There were independent channels to get dissenting analysis to decision makers, but senior leaders failed to do their jobs. (e.g. DoS analysts had perfect “Niger yellowcake” analysis but Powell failed to counter the flawed “community” version. DoE analysts had the “uranium tube” analysis right with incontrovertable evidence but Secretary Abraham let the criminally insane CIA version go uncontested.) There were existing procedures to do every single thing that the 9/11 Commission felt should have been done. The root problem was a climate where reports that supported the views of leadership were rewarded, regardless of the quality of the analysis. This isn’t a case of the President telling them what to say. It’s a case of analysts knowing that, if their analysis supports leadership positions, they’ll be promoted and if they don’t, there careers will stagnate or end. “Possible Biological Weapon Program Identified in Al Iyaleinkumfree” is included in high profile briefings, gets you noticed, and garners awards and glowing performance reviews. “No Evidence of Chemical Weapons in Al Iyoop” is just another piece of paper. It’s been going on pretty much continuously since the Reagan years and has become much worse over the last decade or so.

  • http://www.cchopin.com Christopher Chopin

    I agree…the uncertainty, to me, means that every opinion is at least worth a place in the discussion, or the discussion stagnates around those principles held to be immutable by “intelligence experts” but utterly questionable by everyone else…how does argument work when some ideas are unchallenged?

    All this makes me further agree…a separate Posner Blog is a great way to add another perspective to the dialectic…

  • raoul

    “The great 20th century American experiment with increased IP protection led to tremendously increased IP production”

    Hmmmmm? Britney Spears vs Mozart or maybe Shakespeare vs. Joe Eszterhas. While there is little doubt that IP laws have generated wealth (so did chattel slavery), there is little credible argument to suggest that the there has been a corresponding increase in quality.

  • http://oops.blog-city.com/ No name

    Hi there …
    You have a great blog i have seen …
    I am so wonderful to visit your blog …
    There is nothing to say else what you said …
    would you like to make money online ?
    It is to easy and everyone is welcome …
    If you want more information please give my blog a sight …
    I am looking forward your visit …
    bye for now …
    please visit :http://oops.blog-city.com
    yours-your new friend

  • Anonymous

    google “intellectual property” and you get 3,170,000 results but try poor “universal knowledge” and you get 18,400 results! Who are we kidding? How is copyright or patent putting the genie, digital or analog, back into the bottle? I forgot the key sequence for reality check.
    (posted by an open source advocate) Michael Oster

  • http://www.bioethicsanddisability.org/start.html Gregor Wolbring

    Thought I throw out a new initiative in regards to IP
    BIOS – Biological Innovation for Open Society
    an Open Source inspired Open Access regime for biological enabling technologies

    http://www.cambia.org/main/opensource.htm
    Cheers
    Gregor