It's hard to remember the intellectual conceits of the mid-twentieth century. From the 1930s through the 1950s, left-leaning intellectuals around the world felt certain that Western capitalism had exhausted its gifts to humanity. Economic depression, stifling monopolies, fascism, and militarism sprouted up almost everywhere.

Capitalism has surprised a lot of us. In the past few decades it has started once again to generate benefits. Millions of people around the world enjoy better medical care (so much so that we can complain because care still fails to reach millions more). New and incredibly creative industries have sprouted, including the computer industry that employs most readers of this publication. And the basis of most of these advances gets tied up in what businesses like to call "intellectual property."

Yes, it is intellectual achievement that brought about a renaissance in industries and services. This achievement leads to the disruptive technologies that keep competition alive. So long as we have small innovators coming out of the woodwork in unexpected places and fostering competition, the capitalist system can prevail economically.

What could bring this "end of history" to an end? Certainly, there are external factors that the system is ill-suited to deal with. For instance, we could have an ecological melt-down due to global warming or water shortages. We could also suffer from a backlash of national and ethnic conflict. But an end to capitalist growth could also emerge from its own dynamics. The mechanism? Why, the same mechanism that created the growth--intellectual property!

Patents have been extended into business areas where they have no business being. In software, the implicit tax imposed by patents overwhelms revenue possibilities and rules out code sharing. In medicine, where patents have a more legitimate role, they unfortunately restrict treatments to populations who fit the business plans of the developing companies. The effects of patenting genes have yet to be seen. In business, software, and genetics, innovation is so loosely defined that irrational patents are often issued. Thus, innovators are forced to pay to sustain the old companies with whom they are competing.

The overextension of copyrights and trademarks removes an ever-growing segment of our knowledge and culture from the repository available to new creators. This gradual stifling of innovation caused when intellectual property owners chip away at the public commons has recently been called an "anticommons," notably in the article Cyberspace as Place (http://intel.si.umich.edu/tprc/papers/2002/50/CyberspaceAsPlaceTPRC.pdf) by Dan Hunter.

Even worse, the effective monopolies created by copyright law have coalesced into a super-monopoly insistent on globally and eternally maintaining control over both content and distribution media. Laws and court rulings require innovation and experimentation to conform to the dictates of the forces of the past.

So the legal regime that produced intellectual property's golden eggs may end up killing the goose. Even more than intellectual advances--which the legal regimes seek to reward--*competition* has been the engine of success, and intellectual advances have benefited society to the extent that they foster small and unanticipated competitors. It is these small and unanticipated competitors whose necks are broken on the greedy altar of intellectual property.

How much new industry, and how many new medical treatments and artworks and software, can be created in those circumstances? If intellectual property in this form takes over, capitalism may degenerate to the role for which so many leftists designated it in the mid-twentieth century.

What's inside...