Killing Undesirable Innovation

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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2 Responses

  1. Darian Ibrahim says:

    I agree that it’s a nice paper. I always enjoy a good contrarian take on a problem.

  2. A.J. Sutter says:

    Perhaps it’s a Swiftian “modest proposal” — it is in the April issue of the journal, after all. True, at 60+ pages, it would have to be a very elaborate spoof. And the thrill of spoofing law student editors is certainly a much cheaper one than spoofing postmodern cultural studies profs. But regardless of the authors’ intentions, I guess I’m still starry-eyed enough to be surprised (rather than merely fatalistically glum) that that this paper is earnestly admired by the professoriate. (So maybe their thrill was to spoof law profs …)

    If the authors mean the paper seriously, then their lack of practical experience really shows. (Their online CVs disclose that neither has any experience in industry, and that between them they’ve spent at most 5 years in private practice.) They rely on the same neoclassical reasoning from counterfactuals as those jokes about the impossibility of finding a $20 bill on the sidewalk, e.g. “If Compaq had patented this [tax-planning] method, it surely would not have licensed it to other multinational companies” (@975). There are plenty of industries where cross-licensing is common. It’s hard to imagine the quid-pro-quos that can bring this about in the real world, if your thinking is clouded by NCE theory. The possibility of cross-licensing isn’t entertained at all in this paper.

    Some other fantasies: that public interest groups would have the deep pockets to act as trolls of tax-planning patents (@946), and that stronger IP protection for fashion would result in wealth transfer from copyists to designers (@974). In the publishing and entertainment industries, the wealth transfer to big players resulting from stronger IPR dwarfs that to individual creators. The real-world mechanisms that enable fat cats to fatten, like works made for hire and assignment of rights, aren’t addressed in this paper.