more underuse the resource). Heller gives the example of formerly state-
owned buildings in post-Soviet Russia: Because of the many claims that
could be made on them, the buildings were never developed. Too many bu-
reaucrats could veto any project, and thus insufficient effort at innovating in
the use of these buildings was made.

Nobel Prize-winning economist James Buchanan has expanded this idea
to the problem of regulation generally.[11-116] He points to the problem of
patents in particular as an example where multiple and overlapping patent
protection may create an anticommons, where innovators are afraid to in-
novate in a field because too many people have the right to veto the use of
a particular resource or idea. This potential for strategic behavior by these
many rights holders makes it irrational for an innovator to develop a par-
ticular idea, just as the possibility of veto by many bureaucrats may leave a
particular piece of real property underdeveloped.

These ideas map directly onto the argument we've considered in this
book. Control, when complex, can often increase the costs of using a re-
source; increasing those costs can easily chill innovation. Recall the ex-
treme of AT&T's control over innovation in the telecommunications
system: Who would waste his or her time developing for that system, when
any development would require convincing so many quasi bureaucrats
before it could even be tried?

The complexity in these rights to exclude creates this anticommons prob-
lem. And the more severe the problem, the more it will stifle new innovation.

///\\\

I've told a story about intellectual property in two critical competitive
contexts.[11-117] In both contexts, the emerging regime will have a significant
regulatory effect. In both contexts, the regime will shift protection from the
new to the old. The law in both cases will, on the margin, protect the old
against the new. RIAA president Hilary Rosen was clear about this objective
in the context of copyright law: No new ideas should be allowed unless the
old system of distribution okays it. And this will be the certain, if unin-
tended, consequence of the patent system as well. Those most likely
to be displaced by new innovation will have the power, through these
government-backed monopolies, to check or inhibit this innovation.

This power is the product of government-backed monopolies that in the
ordinary case raise little trouble. I am not against copyright law (I agree with
Hollywood: if you have simply copied the whole of this book, you are a
thief); in the ordinary case, the scope of its monopoly ought to be respected.

[[215]]

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