"Recently legal scholars have started looking harder at such fields, hoping to find mechanisms that can support innovation without the cost and complexity of conventional intellectual property law, and wondering how broadly those alternative mechanisms might be applied."
Honest question: how much innovation is there in this field? Is there a steady stream of new magic tricks? Assuming there is, and I have no idea one way or the other, it might serve as a interesting counterexample to the claim that patent laws are essential to innovation.
The extralegal protection system they've developed - essentially a guild system - doesn't seem like a terribly promising candidate for broad application. Among other things, it's more effective than the patent system at stopping ideas getting into the public domain, ever. Whatever its other drawbacks, a patent means an idea will eventually make its way into the public domain.
Honest question: how much innovation is there in this field?
I just heard Penn, from Penn and Teller, talking on The Bob and Tom radio show this morning. He said they worked for an entire year on a new trick where Teller would walk on a stream of water coming out of a fire hose with audience members standing around him like disciples. Apparently they solved the problem of creating the illusion, but were ultimately thwarted by the problem of what to do with the thousands of gallons of water. He said they spent a lot of time and money on experts trying to address this problem, but to no avail. So, despite failing, it sounds like there is innovation going on in this field.
"Honest question: how much innovation is there in this field? Is there a steady stream of new magic tricks?"
There's a huge amount of innovation going on in magic, and there are new tricks coming out all the time. Especially with the advances in technology and science these days, there are a lot of fresh effects being developed constantly.
Of course, many of those tend to be new approaches to old problems: a new method to levitate something, a new way to make something disappear or reappear, etc..
Some magicians prefer to stick with the tried and true, century-old (or even millennia-old) tools and techniques. But others (especially the younger generation) really embrace new developments and new technology.
There's a real thirst for making one's act fresh and original, and for amazing the audience with things they've never seen before. And magic suppliers and magicians are constantly developing new products to fill those needs.
"The extralegal protection system they've developed - essentially a guild system - doesn't seem like a terribly promising candidate for broad application. Among other things, it's more effective than the patent system at stopping ideas getting into the public domain, ever. Whatever its other drawbacks, a patent means an idea will eventually make its way into the public domain."
If a patent is of something truly original and of something that really would not have been easily developed by someone else, then yes, patents could potentially have value to the public.
But unfortunately, patents are constantly granted for things which are really obvious and for which prior art existed, or which would have easily been developed anyway as soon as anyone with half a clue set their mind to it.
Also, at least in the case of the fast-paced computer field, by the time patents expire the technology that was patented is often completely obsolete and useless. Who really cares if the patents on punch card technology has expired by now? We've moved far beyond that to the extent that it's useless.
This isn't quite true in the magic world, where ancient tricks still retain the ability to shock and amaze people who've never seen them before. Of course, there are fads in magic, and certain tricks become so popular that they're useless... for a period of time, until someone rediscovers them again. And, despite the best efforts of magicians, there are many many copycats. A hot new trick will often be duplicated and reverse engineered in no time.
There is surprisingly a lot of innovation going on in the field - "magic" is a broad field though - could be anything from stage to mentalism on the street.
Yigal Mesika has done a lot in the field recently, check out his website www.yigalmesika.com
I don't see the cause for ridicule here. Putting aside the medieval connotations, a guild is simply a mechanism for sharing trade secrets among a select few. Trade secrets are very effective ways of protecting intellectual property. They've worked well for Coca Cola and KFC. Coca Cola chose to keep their recipe secret rather than announce it to the whole world in a patent disclosure.
And what's this talk about benefiting "society"? If someone invents a magic trick, he owns that intellectual property. He has no obligation to give that property away to any other individual, ever.
First I'll speak of property in general, not just intellectual property.
Property is for the benefit of its owner. Roughly speaking, you own something if you produce it yourself or acquire it in rightful trade from its previous owner.
Society is a group of individuals. Any individual who does not "tolerate" other people owning property is behaving very rudely.
I won't bore you with my views on intellectual property specifically, but I'll just say that I think people can manage it contractually.
But property, as a concept and related body of law, exists for the benefit of society—we tacitly agree not to take each other's stuff because lacking that rule would suck for (most of) us.
Intellectual property as a concept is a recent attempt to recast things like copyrights, trademarks, and patents—government granted monopolies intended to serve specific purposes, and tolerated for the benefit of society—as some sort of Lockean natural right.
However, if you are trying to reconcile the two concepts, you must face the fact that intellectual property restricts each of us from full enjoyment of our actual property.
(For instance, I can't lawfully use my own computer to copy someone else's copyrighted book, my garage-full of parts to implement someone else's patented invention, or even my own pens and paper to market products under someone else's registered trademark.)
"Manag[ing] it contractually", as you put it, would prevent this from being a problem. (Whether an opt-in scheme would be very effective is another story). However, this position relies on the right to contract, not any inherent right to intellectual property, contrary to what your earlier post implied.
Yes -- I hesitate even to use the term "intellectual property" because of the
possible misunderstandings. To be clear: I oppose the granting of
monopolies, maintained by force, as in the patent system. I view this exactly
as you do: as a restriction of your rights to use your own property.
To me, intellectual property has nothing to do with owning "ideas." I think
purely in terms of physics -- mere arrangements of atoms and electrons. For
example, when I publish computer source code, I think about that act in very primitive physical terms, as follows.
I publish my code on a server. The physical particles of that server
are now arranged in a different way. I have also physically configured
the server so that another individual somewhere in the universe can
observe its structure, up to a point.
When the other individual observes the state of the server, she alters
the physical structure of a device that she owns, for example a digital
computer or her own brain. That device is her property.
So, by publishing the code in that way, I have taken an explicit, deliberate,
and voluntary action which enabled the other individual to alter the physical
state of a device she owns in a specific way. That device was her property
before she altered it, and it remains her property after the she altered it.
If I did not want that individual to alter her property in that way,
I should not have made it possible. It was my choice.
I concur with your emphasis on the right of contract. After all, that is how people transfer property rights between each other. All I am saying that so-called "intellectual" property should be no different -- since it too is all about the configuration and movement of physical devices.
Most illusionists (I'm with James Randi on not calling such people "magicians") can't support themselves as a illusionists. They work kids birthday parties, making ends meet with other part-time and full-time jobs. The same is true for musicians, we all know the old joke, "I'm a musician, or rather, I'm an unemployed musician currently working as a waiter". There is a huge difference between the demand (very low) and supply (extremely high) for such people. The David Copperfields and U2s and Christian Lacroixs of the world are few and far between.
Consider that teenagers are capable of becoming competent enough at illusion and music to fill the birthday-party entertainer role. You're going to be hard-pressed to find a teenager that is competent enough at programming to work in this industry. Not saying they don't exist, but I am incredibly skeptical anytime someone claims to be one. I know I thought I was at the time, and I know much better now.
Almost every project I've worked on in the last five years has had some element of "don't screw up or people could die/crimes could happen." One of my previous projects was an industrial crane lift simulator for operators to use to plan safe lifts. Another one was a logistics system to track shipments of high explosives across the country, giving alerts and suggestions for extra security details when near high-value urban infrastructure elements. I'm currently working on a federal drug law compliance system; my clients want to know if their sales reps are using drug samples in illegal drug trade.
This work is far too important to trust to part-timers and there is way too much of the dangerous work to fill by a handful of rock stars. Toyota brake controller anyone? And that was from professional engineers! Would you let a part-time doctor diagnose a lump in your breast or testicle? People don't die if a bar-gig guitarist misses a beat or a clown doesn't pull a coin out of a kid's ear, but we routinely put straight-out-of-college developers on critical systems.
Long story short, illusion and legerdemain are not comparable to software development. We don't need a rock-star model for software developers. We need more of a professional craft approach.
"Most illusionists (I'm with James Randi on not calling such people "magicians") can't support themselves as a illusionists. They work kids birthday parties, making ends meet with other part-time and full-time jobs."
Do you actually know any magicians? It's quite possible to make a decent living performing magic, and you don't have to be a rock star to do it.
You also don't have to do kid's birthday parties if that's not your thing (though some people actually enjoy them, and they can be well compensated, as there's a lot of demand for this type of work). There are lots of people doing restaurant magic, and the going rates are well over $100 (sometimes over $200, depending on the region of the country you're in) per hour. Magicians doing trade shows and convention or corporate magic are also usually quite well compensated, and they don't have to be named Blaine or Copperfield.
Magic used to be a lot more underground, but in the last decade or so it's become much more mainstream and accepted, and the demand for magic has been rising along with this trend.
I don't think he's actually arguing it, at least not outside the context of the magic industry.
I think it fairly clearly wouldn't make any damn sense in, say, pharmaceuticals. The only thing that makes the guild system possible is good magic tricks aren't readily reverse-engineered. Also, since the quality of a magic act is more to do with the quality of the magician's showmanship and patter than the quality of his actual tricks, secrets in magic aren't nearly as important as you might think.
The economic inferiority of guilds over higher-level rule of law systems has been documented a lot in economic literature. That is not to say that questions can't be re-evaluated every now and then. The problem is that this article isn't trying to do that, or to form an objective opinion - it's reasoning backwards from 'IP law is bad!', and trying to form as many supporting arguments supporting that a priori standpoint as it can find.
"Recently legal scholars have started looking harder at such fields, hoping to find mechanisms that can support innovation without the cost and complexity of conventional intellectual property law, and wondering how broadly those alternative mechanisms might be applied."
Honest question: how much innovation is there in this field? Is there a steady stream of new magic tricks? Assuming there is, and I have no idea one way or the other, it might serve as a interesting counterexample to the claim that patent laws are essential to innovation.
The extralegal protection system they've developed - essentially a guild system - doesn't seem like a terribly promising candidate for broad application. Among other things, it's more effective than the patent system at stopping ideas getting into the public domain, ever. Whatever its other drawbacks, a patent means an idea will eventually make its way into the public domain.
edit: grammar