Econ 522 – Lecture 6 (Sept 25 2007)
Recall the four key questions we said that any system of property law must address:

What things can be privately owned?

What can (and can’t) an owner do with his property?

How are property rights established?

What remedies are given when property rights are violated?
We’ve addressed question 4, remedies, looking at the effects of Injunctive Relief and
Damages, and considering the circumstances under which each of these are likely to be
more efficient. And we’ve talked a bit about question 2, what an owner can or can’t do
with his property, in the context of nuisance law.
Now we turn to the question of what can be privately owned.
You may recall from micro a discussion of Public and Private Goods.
Private Goods tend to be characterized by two properties:
 Rivalry, that is, one person’s consumption of a private good precludes another
person’s enjoyment of its benefits
 Excludability – it’s technologically possible to prevent others from consuming it
Good example is an apple. If you eat my apple, I can’t eat it; but it shouldn’t be too hard
for me to prevent you from eating it.
Public Goods tend to be characterized by the opposite of these two properties:
 Nonrivalrous – one person’s consumption of a public good does not impact
others’ enjoyment of it
 Nonexcludable – hard to prevent people from taking advantage
The cleanest example of a public good is defense against a nuclear attack. It’s very hard
for me to defend myself from a nuclear attack in a way that doesn’t also protect you a bit;
and you being safe from nuclear attack doesn’t impact my enjoyment of this privilege.
Other public goods are urban infrastructure (bridges and roads), although roads may
become somewhat rivalrous when there is congestion; parks, clean air, the ocean, large
fireworks displays, and so on.
This brings us to a very simple rule: it is generally efficient for private goods to be
privately owned, and public goods to be publicly owned.
When private goods are owned publicly, they tend to be overutilized, or overexploited.
Suppose the University decided that even though apples are a private good, it would
purchase a lot of them and make them freely available to anyone who wanted them.
Well, since they were free, people might tend to grab an apple even when they don’t
really feel like one; since there’s no cost, people would take too many apples, and the
University might run out. This is the classic “tragedy of the commons” – a good that is
publicly owned, that is, a resource that everyone has rights to use, but which is rivalrous
and gives private benefit, will likely be overused and run out. (The classic paper on the
tragedy of the commons, by Hardin, is on the syllabus – his example is that of a common
area where everyone is permitted to graze their cattle; leading to people building herds
which are too large, and therefore wiping out the grass on the commons.)
(Another example of this is congestion on busy roads. Most roads are provided publicly;
when there’s lots of traffic, roads become rivalrous – the more people on the road, the
less utility I get from driving on them – so they take on one of the characteristics of a
private good. But when people are deciding whether or not to drive, they tend not to
consider the externality that their choice to drive has on other drivers; so the roads get
overused. Some cities are looking at ways to solve this problem with congestion pricing
– charging people to use the roads during peak hours, so that people internalize this
externality.)
The problem when public goods are privately owned is the opposite: they will tend to be
underprovided. Going back to an example we’ve already discussed: suppose a town
wants to build a park, but has to pay for it with voluntary donations. People weigh their
donations only against their private gain from the park, ignoring the positive effect it has
on everyone else; so people will donate very little, and a nice park will not be built in this
way. This is exactly the free-rider problem we talked about earlier.
(Example: 100 people, each with utility 10 sqrt( Park ) + $, where Park is the sum of
everyones’ donations. Anyone’s first-order condition establishes that when contributions
are voluntary, they will total exactly 25, giving everyone an average utility of 10 sqrt (25)
– 25/100 = 49.75. On the other hand, if everyone agreed to contribute $1 each, a park of
quality 100 would be built, leading everyone to utility of 10 sqrt( 100 ) – 1 = 99. So
obviously, the bigger park is Pareto-superior, even though only the small one could be
built through voluntary private contributions.)
This leads us back to our earlier example, that a market in clean air could overcome
the externality between the brewery and the beer drinker living next door. This worked
well when there was just a single beer drinker, since he was the only one affected by
the smoke. When there are lots of consumers, pollution becomes a “public bad” – a
bad version of a public good. Then even if each one could individually negotiate with
the brewer to pollute less, the private gains from doing that are less than the total
gains, so even a free market in clean air will generally not lead to efficiency.
When private goods are privately owned, the owner weighs the cost and benefit of
consuming the good; and the ability to trade should lead to private goods being owned by
whoever values them the most. And the government can provide public goods, paying
for them out of taxes; or regulate public bads, in a way that avoids the free-rider problem
and externalities and leads to efficiency.
Which leads us to the conclusion that, in general, private goods should be privately
owned, but public goods should be publicly provided or regulated.
This also gives us another interpretation of the Demsetz example we did last week, of the
development of property rights to land among Native Americans. What makes the case
interesting is that land can be either a public or a private good, depending on the
circumstances.
National forests can be thought of as a public good – they’re a good thing ecologically,
they’re pretty to drive by and hike in, I can enjoy them even if other people are enjoying
them, and it’s hard to exclude other people from getting their benefits.
On the other hand, 900 square feet in the middle of a city is a private good – if I build an
apartment there and live in it, that precludes you doing the same; and as long as I get a
door with a decent lock, I can keep you out.
Demsetz’s observation was that property rights over land developed among Native
Americans as the fur trade became more important economically. Interpret this in terms
of public and private goods.
Before the fur trade, land was pretty much a public good. Since there was no shortage of
animals, hunting grounds were not particularly rivalrous – I could hunt on your land, and
still leave enough game for you to hunt the next day. But with the emergence of the fur
trade, and stronger incentives for hunting, fur-bearing animals became a valuable and
scarce resource, and so the land became a rivalrous good – the more I hunted, the less
luck you would have hunting on the same land. So we can see the emergence of the fur
trade leading to a sort of transition of land from being a public to a private good;
efficiency would then suggest that at the same time, it would go from being publicly
owned (everyone could hunt on it) to being privately owned (one family might have
exclusive rights to hunt in a particular area).
So the general principle is, private goods should be owned privately, public goods should
be publicly provided/regulated. The book mentions the 1990s move toward
deregulation/privitization as an example of correcting a situation of private goods being
publicly supplied – services that did not involve externalities, and could therefore be
supplied by private industry, but for historical reasons were being run by the government.
This led to the dismantling or selling of government monopolies on trains, planes, and
other services worldwide.
They also point out that in many cases, either type of ownership, public or private, will
involve some transaction costs, and the case can be made for one or the other by
considering the magnitude of these costs. Consider again the example of clean air. If
there are lots of consumers affected by pollution from a factory, injunctive relief is
unlikely to work well, since transaction costs tend to be high when there are lots of
parties affected. However, there are still two possible ways to maintain clean air. One
way is to grant property owners the right to clean air, but protected by damages; so that a
factory, if it felt it worthwhile, could choose to pollute and pay damages. The transaction
cost here would be the legal cost of these lawsuits, or pretrial negotiations. Alternatively,
clean air could be viewed as a public good, and regulated by a government agency. This
would involve administrative costs, and could run the risk of the level of pollution not
being the one that is socially optimal. We can argue for the efficiency of one system or
the other by comparing the magnitude of these transaction costs.
So that gives a general answer to the question, What can be privately owned? The
question, How do I establish rights to something?, we have discussed in the context of a
couple of examples; there isn’t really a general theory behind it, since it can be seen just
as an extension of the question of what can be owned. (We’ll come back to it through
some applications, though.)
This leaves us with the question of, what can an owner do with his property? (which
we’ve already discussed some in the context of nuisance law) The principle laid out
briefly in the textbook is the principle of maximum liberty, in which owners can do
anything with their property that does not interfere with other peoples’ property or rights,
that is, that doesn’t impose an externality on anyone else. (They make the case that the
common law approximates this.) Of course, legislatures may pass laws that impose
further restrictions on what people can do with their property. But in general, these laws
are only efficient if the behavior they are restricting causes an externality.
That wraps up what we want to say about property law in the abstract, that is, the broad
principles we want a property law system to adhere to. Next, we’ll see how these work
by examining a number of applications.
The first application is a non-obvious answer to the question, What can be privately
owned? And this is the area of information and intellectual property. Intellectual
property is a broad term for ways that an individual, or a firm, (or a university) can claim
ownership of information.
There are four areas we’ll look at within information economics:
 patents
 copyright
 trademark
 trade secrets
The general “problem” with information is that it tends to be expensive to create, but then
very cheap to disseminate once it’s been created. That is, once an idea has been
developed – be it a technological innovation, a song, a piece of software, or a catchy logo
for a company – it is very easy to imitate or share. This means that without some sort of
intervention, it may be impossible for whoever developed the idea to recoup the costs –
time, effort, and actual money invested – in coming up with the idea. And this means
that there may not be sufficient incentive to come up with ideas in the first place.
To see how this works, consider a firm that has some idea for a totally new and
innovative product. It’s a good idea, it’s a product that will be valuable to a large number
of people. But it’s an idea that will take a large amount of money to develop; and it’s
also an idea that, once it’s out there, will be easy for other firms to imitate.
(A good example of this is a new drug. A huge amount of money goes into researching
drugs, finding one that’s effective, testing for safety and for side effects, and so on. But
once a drug is released, it may be very easy for other firms to reverse-engineer it, figure
out how to make it relatively cheaply, and compete with the firm that developed it.)
So now suppose a firm is deciding whether to make the initial investment in developing a
new drug. They move first, and then another firm moves second and decides whether to
imitate. Suppose monopoly profits in the market would be $2500, the drug costs $1000
to develop, but that with two firms, price competition would drive down profits to $250
each. So we can write the game tree this way:
(-750,250)
Enter
Firm 2
Innovate
Don’t
Firm 1
Don’t Innovate
(1500,0)
(0, 0)
The only subgame perfect equilibrium is for the second firm to enter if the first develops
the product; and therefore, for the firm not to develop the product.
A patent is basically a legal monopoly – a patent prevents the second firm from imitating
the first firm’s product, allowing the first firm to function as a monopolist for a
predetermined amount of time. (In the U.S., patents last 20 years from the time of
application.) So if the firm’s invention were be protected by a patent, the firm can count
on receiving several years of monopoly profits; which may be enough to cause them to
innovate in the first place. (Modify the game tree by imposing a large penalty on the
imitating firm – SPE is now innovation.)
Key thing to notice: monopoly is inefficient! Monopoly pricing always involves a
deadweight loss, since a monopolist maximizes profits by limiting supply by setting price
higher than marginal costs. For example, suppose demand for the new drug is
Q = 100 – P. Suppose the monopolist has 0 marginal costs; then he sets monopoly price
at 50, sells to half the market, gets profit of 2500 and generates consumer surplus of
1250. But there’s a deadweight loss of 1250 – if the drug were sold for free, it would
generate total surplus of 5000 (all of it going to consumers in this case). But if the drug
were going to be sold free, or cheaply, it might never have been developed in the first
place. So patents trade off one sort of inefficiency for another.
(Of course, once the innovation has occurred, the incentive problem has been solved, and
the inefficiency from the monopoly remains, and can sometimes look pretty undesirable.
There’s been lots of talk in recent years about the cost of AIDS drugs, which are
protected by patents. The manufacturers are pricing them high, to maximize their profits
or, arguably, to recoup the investments they made to develop the drugs in the first place;
but it’s hard to not notice that pills which can be produced at a marginal cost of pennies
are priced high enough that they are not available to much of the developing world.)
The power of Congress to legislate both patents and copyrights was actually written into
the Constitution. The first patent law was passed in 1790, and has been updated several
times since. At present, patents last for 20 years from the date of application. Patent
applications must satisfy certain conditions: they must be for something which is novel
(new), non-obvious, and has practical utility (basically, is commercializable).
Applications are reviewed by the patent office, which handles a huge volume and is
therefore sometimes criticized for granting patents too easily. In particular, in recent
years, there’s been criticism that the “non-obvious” test had not been applied – Amazon,
for instance, was granted a patent on “one-click purchasing”, which many thought was an
obvious extension of online shopping.
A patentholder who feels his patent has been violated can sue for both damages already
done and for an injunction, stopping the violator from future violations. Thus, patents are
protected both by injunctive and damages relief. Patentholders are also free to license
their patents to others, that is, to allow others to use them for a fee (called a royalty).
When you apply for a patent, the details of your innovation go into the public record, so
in some industries, firms choose not to patent new inventions, instead choosing to keep
them secret.
There are two important degrees of freedom in patent law: how broad a patent is, and
how long it lasts. The question of breadth can be thought of in a couple of different
ways.
First, suppose two different firms are developing distinct, but similar, products. A broad
patent on one of the products might cover both. Thus, in a world with broad patents, the
two firms might engage in a race – both try hard to develop the product very quickly,
since whoever applies for the patent first will get all the gains from both products. On the
other hand, a narrow patent on one product might not cover the other; in which case, the
firms might develop the products slower (and less expensively), knowing that both
products will exist and that neither one will really have a true monopoly. So the breadth
of patents affects the intensity of the research effort.
Another way to think of breadth is to suppose that a new product might require two
distinct innovations: one “pioneering invention” that is worth little on its own, and then
the subsequent development of an application, which can be sold profitably. The
question then is, does a patent on the original invention also cover the application? Or
would separate patents be required for the pioneering invention and the application?
(A similar question can be asked of whether an improvement to an existing product is
patentable. The question can also be asked in other configurations.)
Courts have sometimes held that an improvement with great commercial value does not
infringe on a pioneering invention that had little standalone value. Such rulings, of
course, increase the incentives to invest in applications and improvements to existing
technologies, and decrease the incentives to engage in fundamental research. On the
other hand, when patents on pioneering inventions are held to be broad, this encourages
fundamental research but discourages new firms from attempting to commercialize
existing (but unexploited) technologies. Which of these is preferable depends on the
details of a particular industry.
Cooter and Ulen point out that in a world without transaction costs, the initial allocation
of rights should not matter for efficiency – firms will be able to bargain with each other
to solve the incentive problem. However, there are several impediments to this.

Patent law is often ambiguous – until a patent has been tested in court, its breadth
(and even whether or not it is valid) are often uncertain, so firms may not know
what their threat points are, and therefore may find it hard to reach an agreement

Research is often uncertain – that is, if you make an investment in research or in
developing a product, it is often uncertain how successful you will be. Consider
the extreme case where a significant investment will lead only to a small
probability of a discovery, but the discovery will be extremely valuable if it
occurs. If the big discovery may infringe on an existing patent, it’s very hard to
bargain around this problem beforehand – hard to agree on how likely the
discovery is to be made, how valuable it will be, and so on. But it’s also risky to
make the investment, knowing that you may still have to share your profits with
the other patentholder if the discovery occurs.

In some areas, there is a sense that there are too many existing patents, and that
it’s very difficult to innovate without infringing on existing patents. In biotech,
many new projects require techniques, or even ingredients, that are patented; so
there is a problem of “royalty stacking”, that is, having to pay multiple
monopolists for rights to their good in order to do anything new. (The textbook
mentions a congressional act, and a supreme court ruling, meant to address this
problem and encourage the development of new drugs and generic alternatives to
existing ones.)

On the flip side, I have a friend who does microchip design, who told me that the
conventional wisdom in chip design is, “Never ever try to find out what patents
exist – just design the chip the way you want to, and deal with the patents later.”
This is because any design is likely to infringe on lots of patents; their owners
have to decide to sue you for it to matter; if they due, you may only be liable for
damages; but if they can prove you knew about the patent beforehand, the penalty
may be more severe. So you’re better off pleading ignorance, which is easier
when you actually are ignorant!

The problem of research being risky also leads to the problem of “submarine
patents”. There’s a significant lag (multiple years) between applying for a patent
and it being granted; and the details of the application aren’t made public until the
patent is granted. So someone develop a product that infringes on a patent that
hadn’t been granted yet! For this reason, in many areas, patents are only valid if
you can show that you were actively trying to commercialize the innovation, not
just waiting around hoping someone else would do the work and then sue them
for infringement. (This is what happened in a well-publicized case with
Blackberry a couple years ago. Some firm – based in Canada, I think – which had
no real business other than buying other peoples’ patents, claimed to have a patent
that Blackberry was infringing on, and tried to get an injunction to shut down
Blackberry unless they agreed to a huge settlement. In most patent cases, a
preliminary injunction is granted – that is, the injunction is issued in advance of
the case actually going to court. In this case, the injunction was denied, and the
case subsequently went away.)
Of course, even when low transaction costs would lead to cooperative outcomes, this can
sometimes be a problem in other ways. Often times, firms doing similar research are also
competitors in the market; attempts to cooperate (through joint research projects or in
other ways) may be viewed suspiciously by antitrust authorities. (A paper I wrote last
year was on patent pools - … Much of the interest in patent pools stems from the need to
figure out how they should be viewed by antitrust regulators.)
There is also the question of how long a patent should last. Obviously, patents must last
long enough for firms to be able to recover their investment costs, in order to give
sufficient incentives for innovation. But since monopolies are inefficient, having patents
last too long is bad – once the patent expires, competition will drive down the price of the
product, eliminating the deadweight loss. (When drug patents expire, for example,
competing firms can begin selling generic versions of the same drug – the book gives an
example where the price per pill dropped immediate from $15 to $1, and I don’t think
that’s atypical.) So the optimal length is a tradeoff between maintaining ex-post
inefficiency versus creating a sufficient incentive for innovation.
(Clearly, the optimal level is likely to vary across different industries. In the U.S., all
patents last the same amount of time, 20 years. Jeff Bezos, the founder of Amazon,
proposed that, since innovation occurs so fast in the software industry, that software
patents should expire after 3 years. In Germany, there are two types of patents: full-term
patents, which are granted for major inventions; and petty patents, granted for minor
inventions and improvements, which last 3 years. In addition, in Germany, patentholders
must pay an annual fee to continue the patent, which starts out cheap but escalates over
time. In the U.S., patents used to be renewable under certain conditions – I believe now
they are not.)
Of course, a patent system is not the only way to encourage innovation; and given the
inefficiency inherent in a monopoly, there may be other ways to do it better. One
proposal with drug patents has been that when a particularly valuable drug is invented,
the government should buy the patent, and then allow multiple firms to produce the drug,
leading to lower pricing and higher overall welfare; since the government could pay the
fair value (say, the discounted present value of expected monopoly profits) to the firm,
there is no problem of incentives. The question then becomes how to correctly calculate
the economic value of the patent itself. (One proposal was to let the market decide – hold
an auction for the patent, with the understanding that once the auction was complete, a
coin would be flipped; with a high probability, the government would buy the patent at
that price, but with some probability, the winner of the auction would buy the patent.
This way, a decent estimate of “fair value” could be obtained, and the deadweight loss
associated with monopoly could still be eliminated “most of the time”.)
Another way to give incentives for innovation is through prizes. Google recently
announced a $30 million prize for a private citizen landing a rover on the moon. Similar
prizes have been offered by governments, and by private foundations, to encourage
innovation in particular directions.
And finally, government (or a private foundation) can simply give grants to subsidize
research directly – which they do – reducing the need for ex-post incentives.