Date: Wed, 7 Mar 2001 07:16:23 EST
Subject: Re: Rebuttal to Eric and Mary's earlier comments (3-6-01)


This is in response to Eric and Mary's arguments concerning Napster:
              They make a series of arguments, rejecting the notion of 
intellectual property rights as monopolistic and obsolete.  
              Furthermore, they invoke libertarian economists who question 
the efficacy and legitimacy of any regulatory framework ( Freidman's advocacy 
of the legalization of drugs, Posner's opposition to anti-trust statutes, 
etc.). These economists are influenced by Smith, with his libertarian, 
laissez-faire conception of the market economy, as if the market economy is a 
naturally occurring phenomenon, which can only be adulterated by outside 
intervention. I take issue with this conception, which is incredibly naive 
and simplistic. Could an economy exist without printed currency, interest 
rates, federally-insured banks or the legal bureaucracy, which enforces 
contracts? How could the economy exist without the physical infrastructure; 
the roads, ports, freight lines, hydroelectric dams, electrical grids, etc.? 
All of these things are provided by government appropriations. Also, these 
theorists seem to believe that if people are unregulated, then they will 
naturally do the "right thing." Unfortunately, it sometimes requires the 
regulatory state to force people to do the "right thing," for example - the 
legalization of labor unions, women's suffrage, school desegregation, 
environmental protection,  etc.  The regulatory state is not perfect, but 
would you want to live in a world without air-traffic controllers from the 
FAA, or want to invest in the stock market without quarterly corporate 
financial disclosures mandated from the SEC, or consume meat products that 
hadn't been inspected by the FDA? The regulatory state is not perfect, but it 
is necessary.
      Another argument that they made was the technological inevitability of 
copyright infringement. However, I do not believe that this is inevitable, or 
that regulatory agencies or litigants should simply concede their copyrights. 
Admittedly, the enforcement and implementation will be more difficult, but 
the partial implementation 
is still possible. There are many cases where database access requires a 
monthly subscription, such as magazines and legal databases, for example ( 
incidentally, the model for the new Napster format). So, I oppose this sense 
of false inevitability.
         In addition, this quote of theirs intrigued me," In order to succeed 
they must also enlist local government's cooperation to monitor and regulate 
the flow and exchange of information to ensure that illegitimate activities 
do not occur." Could this be in reference to the Chinese crackdown on the 
pirating of Microsoft products? Are you defending international piracy? You 
also suggest that any substantial regulation of information is grossly 
ineffective, leading to a police state. Isn't this a classic "slippery slope" 
fallacy? Don't gun control opponents constantly apply this logic, that any 
form of gun control will necessarily lead to the abolition of all firearms? 
         In short, they seem to suggest that intellectual property cannot be 
totally enforced, so the laws should simply be repealed. Or they suggest that 
the burgeoning technology requires the creation of a new statutory 
codification, which very well might be the case, eventually. However, at this 
juncture I would advocate the good faith enforcement of intellectual 
property, even if the laws can only be imperfectly enforced. 
                         TRV