December 29, 2005  ·  Lessig

In this paper, Michael Heller introduced the concept of the “anticommons” — a resource subject to many different “property-like” claims, thus leading to its underutilization. The context was post-Soviet Russia. That context made it sound remote. But the idea was soon domesticated in this paper by Heller and Eisenberg appearing in Science. And then the concept got its most important play in a paper by Nobel Prize winning (and conservative) economist James Buchanan and Yong Yoon, titled Symmetric Tragedies.

That’s all fantastically good theory. Here, however, is the anticommons in practice. There are many more examples like this. I’ll make it a practice of collecting them. Maybe enough examples will get the thick-political types to recognize (as the very much not thick Buchanan recognizes) that the issue of IP reform is not about whether you favor property or not, but whether THE PARTICULAR FORM OF PROPERTY the government has crafted operates efficiently.

(Thanks for the pointer, Tom!)

  • http://www.highprogrammer.com/alan/ Alan De Smet

    It sucks, because the song’s rights holders have the show’s owners over the barrell. The audience expects the songs that were there when the show originally aired, so the song’s rights holder can crank the price up. If you don’t pay up, you end up with an inferior product. A friend recently ran into this with Northern Exposure: “With Chris in the Morning an ever-present feature of the show, music played an important role in telling the tale in an episode. Despite this, the musical soul of post-season-one episodes has been surgically removed, with cheap public domain crap substituted for carefully chosen soundtrack selections. Music rights aren’t cheap. Thanks to the sheer amount of music used in an average NoEx episode, the thoughtful producers decided it would be most cost effective to simply cull the backbone from the series. After all, the show is still the show without the music, right?”

    On one hand, the original producers of the show should have known what they were getting into and gotten the necessary rights up front. On the other hand, television series on DVD wasn’t a mainstream idea when the show first aired; why negoitate and pay for rights for something noone was really considering. I expect for shows being recorded today this is less of a problem; I suspect mainstream modern licenses include “including necessary rights for DVDs, internet distribution, and any other form of analog or digital distribution.” But for older shows, it just sucks.

    Some sort of mandatory licensing is tempting, but it would also allow juxtapositions that the original artists wouldn’t approve of. Chumbawumba would probably be angry to see their music used in a video supporting the very politicians they railed against. Aqua would be angry to see their anti-corporate song “Barbie Girl” co-opted for the next direct-to-video Barbie movie.

  • Scott

    Speaking of anti-commons, how many people can access all four papers referenced?

  • Bruce

    You’ll need a control, so you should make sure to collect stories about all forms of “anticommons” problems, including real property. E.g., Kelo. Of course, even a large collection of anecdotes still won’t tell you whether the problem is significant or not. But at least you’ll be able to compare IP to other forms of property.

  • http://coeusgroup.com/en Evan Nemerson

    Symmetric Tragedies: Commons and Anticommons [PDF], and The Tragedy of the Anticommons: Property in the Transition from Marx to Markets [PDF]

    That one was easy–search Google Scholar first, that got me the first paper. If you search google for “Tragedy of the Anticommons”, the wikipedia article that comes up contains a link to the article’s abstract, which, in turn, contains a link to the article itself.

    For articles that are a bit harder to find, it often helps to find the author’s web site, which generally contains a section called “Research” or “Publications”. I’ve found that a lot of them link to the complete work from there–if there are multiple authors, your odds are better.

    I’ve also found several sites which try to trick search engines–some use javascript redirects before you see the full text, others simply send different versions to google (which, BTW, is against google’s rules). Sometimes I have to turn off javascript, others I have to use wget and set the user-agent to be google.

    If all else fails, most libraries have something called “inter-library loan”. Just head over to your local library and ask a librarian… It generally takes them ~2 weeks for me, and it’s usually free (sometimes you have to pay a small fee, but it’s usually a lot lower than what, for instance, IEEE Xplore charges for them).

    Be careful–journals are extremely addictive. Pretty much all my free time goes to reading them these days..

  • Frank Bennett

    Can’t pass up this opportunity to be pendantic. I know Heller’s original paper; it is in the materials for one of the classes I teach. At the end, he offers the negotiation problems for condominium owners following the Great Hanshin-Awajishima Earthquake (the Kobe Earthquake) as an example of bad law. In fact, Japan’s condominium laws are no more flawed than those of any other nation; the only way to eliminate the freeriding problems in that instance would be the Singaporean solution — to place most high-rise housing under public ownership.

    There is a better example from Japan, in the separate ownership of land and buildings. This is an inefficiency in the Japanese system of land ownership that fits the scenario outlined by Heller perfectly — short-term compromise during a period of rapid legal reform that strewn a trail of slow-acting transactional pain in its wake (and here, I’ll plug an article that I published in volume 26 of the journal Law in Japan, as a way of discrediting myself on the grounds of prejudice. :-)

    Sideline trivia, for what it’s worth.