Against Intellectual Monopoly

ordinary consequence of an increase
in output. If I eat a large meal, I am less hungry - the value to me of a meal
is diminished, and restaurants will find that I am not willing to pay them
much money. No externality is involved: as more of a good is consumed,
the more tired people become of it. For there to be an externality, it would
have to be the case that my consumption of copies of Mickey Mouse from
the public domain made you more tired of it - an improbability, to say the
least.
    Landes and Posner continue on to quote from a book on Disney marketing
    To avoid overkill, Disney manages its character portfolio with care. It has hundreds
of characters on its books, many of them just waiting to be called out of retirement.... Disney practices good husbandry of its characters and extends the life of
its brands by not overexposing them.... They avoid debasing the currency.43
    This is of course exactly how we would expect a monopolist to behave. If
Disney were to be given a monopoly on food, we can be sure that it would
practice "good husbandry" of food, most likely leaving us all on the edge of
starvation. This would be good for Disney, because we would all be willing to pay a high price for food. But the losses to the rest of us would far outweigh
the gain to Disney. It is a relief to know that, after all, Mickey Mouse is not
such an essential ingredient of the American diet.

    Landes and Posner also express concern that Mickey Mouse's "image
might also be blurred or even tarnished, as some authors portrayed him
as a Casanova, others as catmeat, others as an animal rights advocate,
still others as the henpecked husband of Minnie."44 Because in common
parlance calling something Mickey Mouse is not intended as a compliment,
one might wonder how Mickey Mouse's reputation could be more tarnished
than it is. Regardless, bear in mind that the only thing that matters are copies
of the idea of Mickey Mouse. If Mickey Mouse falls into the public domain,
someone might well use his or her copy of the idea of Mickey Mouse to
produce, say, a pornographic film starring Mickey Mouse. But would this
tarnish the copies of the idea of Mickey Mouse in the minds of millions of
six-year-old children? It is hard to see how: ordinarily children of this age
are not allowed to see pornographic films. Presumably those people who
choose to see the film are those who benefit from this portrayal of Mickey
Mouse. How does their doing so interfere in any way with anyone else's
enjoyment of their vision of Mickey Mouse?
    A more pernicious idea is that in the absence of intellectual property
there would be inadequate incentive to promote ideas. For example:
    Consider an old movie on which copyright had expired that a studio wanted to
issue in a colorized version.... Promoting the colorized version might increase the
demand for the black and white version, a close substitute.... [T] he studio would
have to take into account, in deciding whether to colorize, the increase in demand
for the black and white version.45
    But in all competitive markets, producers lack incentives to promote the
industry. Individual wheat producers do not have much incentive to promote the healthy virtues of wheat, fishermen do not have much incentive
to promote the healthy virtues of fish, and so on. That is why promotional
campaigns for milk, cereals, and fish are usually carried out by some indus-
trywide association, and not by individual firms. It is hard to see why the
problem with old movies, books, and music is different, either qualitatively
or quantitatively, from the one in these other competitive markets. Yet, quite
rightly, no one argues that we need to grant wheat or fish monopolies to
solve the "problem" of underpromotion.
    It is worth reflecting briefly on promotional activities in competitive
industries. Surely information about, say, the health benefits of fish, is useful to consumers; equally surely no individual fisherman has much incentive to provide this information. Is this some form of market failure? No - in
a private ownership economy consumers will have to pay for useful information rather than have it provided for free by producers. And pay they
do - doctors, health advisers, magazine publishers, all provide this type of
information for a fee. There is no evidence that competitive markets underprovide product information. Rather, in the case of monopolists, because
the value of the product mostly goes