1. IP law is rapidly becoming a laughing-stock. IP ‘rights’ (choses in action par excellence) are intangible property rights typically conferred in the form of temporary monopolies. As any economist can tell you, monopolies — especially monopolies backed by the coercive power of the state — are pretty nasty creatures when it comes down to it. You don’t want them hanging around for too long. That’s why — depending on jurisdiction — patents and trademarks are either strongly time-limited (between 10 and 16 years for most patents) and subject to registration and set all about with fever trees (trademarks). IP law exists to facilitate innovation, to reward the clever scientist or gifted writer. Taken too far, however, IP protection stifles innovation — making it harder, not easier, to make new things — and becomes a cash cow for a certain type of lawyer and a certain type of IP owner. 

Copyright is the worst of the lot. It requires no registration and lasts for the life of the author plus 70 years. Yes, your grandchildren — if you do well with a novel or song — could be living high on the hog once you’ve popped your clogs. It used to be life plus 50 years, but of late, the IP types have become rather greedy.

2. Property law is only any good if it can protect the interest in question. As IP’s ability to protect intangible property rights has waned thanks to technological changes, IP owners have become increasingly silly about defending what they have. This has manifested itself in various nasty legal and economic ways. There’s Australia’s parallel importation rules on books, for example (which help only publishers, not authors). Unfortunately, explaining this basic fact to authors seems to fail on account of Australian authors’ widespread inability to do sums or to understand the concept of competition. Then, of course, there’s price discrimination, of which DVD regions are a prime example. Now we have a corporation suing in the name of a creator who died in 1988. That means Men at Work — if this decision stands — will be paying out until 2058.

In my view, copyright should expire with the author. This ‘life plus 70′ crap is an invitation to abuse and prevents the timely release of useful information and data into the public domain. It also encourages abuse in the opposite direction: witness the army of people out there who decide the whole thing isn’t worth their trouble and just partake in illegal downloading of all stripes.

A bit of basic lawyering for you:

A big part of compliance with the law is the respect of the citizenry for that law. This respect — call it morality — exists wholly outside the law and is independent of the law. The law against murder, for example, works largely because most people believe murder is wrong, not because of the law against it. In other words, law only works at the margins, which is exactly where you want law to work. If law has to do ‘moral work’ across the whole society, we’ll rapidly finish up with a ratio of one citizen to one policeman, with each cheerfully bribing the other non-stop. By engaging in such blatant gouging, IP regimes are rapidly losing the respect they require in order to operate. Eventually, the law of diminishing returns will come into play and the entire IP system — including the good bits, the bits that reward innovation — will go tits up in a big way. When it comes to music and movies, I suspect we’re not far away from that point.

The one sliver of silver lining in this matter is the fact that it’s single judge only. Let’s hope the full bench of the Federal Court rolls it on appeal.

UPDATE: Robert Merkel’s take, an interesting perspective from a scientist, not a lawyer.