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In most cases, the only patents that are of significant value are ones on cutting edge innovations that others cannot make. Tesla Motors is a good example here, but the patents on different engines made by the Big Three and their japanese counterparts are probably all but interchangeable in design by comparison to those doing cutting edge work on consumer-grade alternative fuel vehicles.
The pro-copyright argument in a nutshell. A scary one for libertarians to be making.
There are two specific statements that you have trouble with. Let me answer each in turn.
Regarding the statement on page 8, you are right that my wording is too broad, and that my intended meaning is that markets do not provide /sufficient/ incentives for creativity. I have submitted an erratum so that will be fixed.
Regarding the statement on page 18, I respectfully disagree - but I need to make sure that I explain my terms. When I discuss intellectual property in that particular paragraph, I am taking a far broader view of IP than just copyrights and patents. If you include brands (trademarks), internal how-to (trade secrets), and semi-protectable areas such as design, I would argue that over the past years the collective value of what we know in this country has surpassed the value of the capital equipment and labor used in this country. It is a natural consequence of the shift in our country to a knowledge- and service-based economy.
So would I ever say that the patents and copyrights held by a business are the most valuable part of the business? No - unless you have a very peculiar business like Myrhvold's Intellectual Ventures. Would I argue that my broader formulation is correct? You bet.
For example, take a company like Disney, or GM, or Intel. All of those companies have substantial capital assets. What makes those companies tick, however, is the know-how that goes into the production, protection, and marketing of their products. Other examples are Walmart and Dell. The most highly valued assets within those companies are the business processes that make them efficient, not their land holdings and manufacturing facilities.
You are also frustrated that I don't give broader emphasis to alternative theories of intellectual property. While I am aware of the arguments you cite, I don't think that they would have been appropriate in this book.
The reason why is because those theories in general have not had a substantial impact on the development of the intellectual property laws of the United States. There are many people - like yourself - trying to get those theories into broader circulation. But relative to the history of intellectual property in this country, I don't believe they have had substantial impact. Given the space and attention constraints within the book, they were simply one of the many interesting things I chose to leave out.
When I discuss intellectual property in that particular paragraph, I am taking a far broader view of IP than just copyrights and patents. If you include brands (trademarks), internal how-to (trade secrets), and semi-protectable areas such as design, I would argue that over the past years the collective value of what we know in this country has surpassed the value of the capital equipment and labor used in this country.
Well, OK. If you're just using "IP" as a synonym for "knowledge," then the statement may be true, although I don't know how you'd measure it in a rigorous way. But that means that in the passage I quoted, you're conflating two very different sense of the term "intellectual property." Only a small fraction of "what we know in this country" is subject to legal constraints such as copyrights, patents, trade secrets, etc. There are entire industries, including fashion and the culinary arts, whose core products are not eligible for any significant legal protections. And every business relies on a ton of information that's not subject to any significant legal constraints.
This is one of the reasons that, like Richard Stallman, I like to avoid using the phrase "intellectual property" altogether. Knowledge and the various legal regimes protecting it are very different things, and in my experience using a single word to denote both tends to impede clear thought. There's genuine uncertainty about whether intellectual property (copyrights, patents, trade secrets) promotes intellectual property ("what we know in this country"), but it's difficult to have an intelligent discussion when we use the same word for all of them and mix-and-match different senses of the term in the same paragraph.
To qualify a bit further, I said that I wasn't "quite" conflating the two. One of the unheralded expansions of intellectual property over the past 50 years has been in the area of trade secrets. Companies *do* claim "all that you know" as proprietary information, protectable under trade secret law. The claims are so expansive that they are in many cases unenforceable, but there is a lot of day-to-day working knowledge that is theoretically secret and protected by trade secret laws.
Regarding judging the value of intellectual property, it would be hard but doable. Off the top of my head, I would start with direct revenues from licensing, include money spent on internal operations (trade secrets again), goodwill (implied value of trademarks), and add in the output of knowledge service workers.
This metric would not capture everything, but that was never my point. Even in the restaurant and fashion industries, considerable internal operations expertise would come via trade secrets under the label of "intellectual property."
Finally, regarding the term "Intellectual Property," you are correct that it is inexact, because it is a term for a category of goods. I don't agree that it "impedes clear thought," it is just inexact. Nevertheless, category terms - like "intellectual property" or "fruit" - are still useful. You just need to specify when appropriate whether the yellow fruit you are discussing is a banana, and when it is an apple. :)
OK, but you started your paragraph off by talking about "a tide of stronger intellectual property protections." The stuff you're talking about here is not even plausibly attributable to "a tide of stronger intellectual property protections." The increased value of company goodwill, for example, clearly isn't due to stronger trademark protections. So yes, for a sufficiently broad definition of "intellectual property," you can make a plausible case that intellectual property is at the heart of of most businesses. But when you look at the economy as a whole, the trend toward stronger copyright, patent, and trade secret laws has been a minor factor, at best, in the trend toward increasingly knowledge-oriented businesses.