Against Intellectual Monopoly

detail the
problems caused by these "ugly reforms."25 He proposes that some of the ill
effect could be undone by a modest renewal fee. Landes and Posner suggest
that the legal principle of abandonment could be applied to copyright
holders who do not actively make it clear that they are maintaining their
copyright.26 Either or both of these proposals - however politically naive
they might be - would be a great improvement over the current untenable
situation.
    The debacle we currently face in copyright is that as more and more draconian laws concerning copyright are introduced, less and less real copyright
protection is possible, as it has proved impossible to police the peer-to-peer
networks in any realistic sense. Many have suggested that the way out of
this dilemma is through mandatory licensing - much as radio broadcasters
simply pay a fixed fee but require no particular permission to broadcast a
song, so payments to copyright holders could be based on the number of
times a song is downloaded - and the downloads would be made legal. This
is not a perfect proposal - the possibility of manipulating the download
ratings comes to mind, and the mandatory licensing fee for Internet radio
was set ridiculously high - but on balance, would probably serve to improve
the current situation.
    The recent, and widely advertised if limited, decisions by Apple and EMI
to renounce policing peer-to-peer file sharing via technological means (that
is, by giving up on digital rights management) is also a positive step. It signals
that at least a few among the big players are realizing that the technological police approach is a losing business proposition, and that plenty of money
can be made by selling downloadable music that consumers can then share
and redistribute more or less freely."

Deregulation
    An intermediate position between abolition and the current system would
be to get the government out of the copyright and patent business all
together but to allow the use of private contracts to enforce intellectual
property. What this means, basically, is that copyright and patents will be
no longer regulated by laws, and that the government would no longer
act as a costless third-party enforcer of such laws. Violations of private
arrangements about patents and copyright by one of the subscribing parties
will be brought to a court of law by the offended party and treated as any
other breach-of-contract case.
    This is a delicate point and deserves some clarification. Beyond copyright
and patent, there are also downstream licensing agreements through private
contract. That is, before I sell you mybook or showyou my idea, I can require
you to sign a contract agreeing not to resell it. Or these contracts can be
included as shrink-wrap agreements implicitly agreed to when the package
is opened, as is the case with much computer software. Strict abolition
of intellectual property would require that the government commit to not
enforcing these types of agreements. An intermediate step to abolition would
allow the enforcement of these types of contracts while abolishing legislated
copyright terms altogether. Relative to alternatives, this proposal has both
pluses and minuses.
    In the case of copyright, deregulation would have some negative effects,
because fair use and time limits could be eliminated altogether by abusive
private contracts. But because the time limit is effectively gone anyway,
and because the courts are moving in the direction of allowing contracts
limiting fair use to supersede copyright law, the negative effect would not
be so great. On the positive side, third parties would be out of the picture.
Once a copyrighted item was leaked on to the Internet, there would be
no obligation on my part to figure out whether someone else had violated
their contract by putting it there. In effect, while the leaker could be sued,
the work would nevertheless enter the public domain as a matter of fact.
An additional drawback, though, is that this may increase the litigation
rate dramatically, with the obvious social costs this implies. Intellectual
property lawyers would shift their byzantine skills from the current aim of
copyrighting everything to writing more and more complicated copyright
contracts and then suing either side for violation of said contracts.

    In the case of patents, deregulation would solve a great many problems
within a few minuses. It would put an end to