Book Review: Merges’s Justifying Intellectual Property

Robert Merges, Justifying Intellectual Property.  Cambridge, MA: Harvard UP, 2011.

For all of the importance of intellectual property both to current law and to the economy more generally, there is surprisingly little work addressing its moral foundations.  The default position is utilitarian, but a successful application of utilitarianism requires having detailed empirical information about the costs and benefits of complicated incentive structures on a variety of kinds of production by a variety of types of actors.  Such information has been elusive at best.  Robert Merges’ new book is an ambitious and innovative attempt to redress the resulting normative lacuna.  Justifying Intellectual Property proceeds in three parts.  In the first, Merges defends IP on Lockean, Kantian, and Rawlsian grounds.  The second develops what he calls “midlevel principles” to mediate between those higher order theories and practical policies.  The final part uses these tools to work through three current issues: the value of IP in sustaining a class of creative professionals, the extent to which digital property changes the IP landscape, and the extent to which patent law ought to bend to make life-saving drugs available in the developing world.

As even this extremely cursory survey should indicate, the book is of impressive scope.  It is well-argued and well-written, and anybody who cares about how our normative ethical and political commitments should be reflected in IP law ought to read it.  It also, as Merges is well-aware, provides some balance in the recent ethical literature on IP, a great deal of which is severely critical of the scope and strength of current IP law.  Merges in no way favors an unreflective endorsement of the entire status quo, but he is much more sympathetic to IP than many of his interlocutors.  As he puts it, “I disagree with the general thesis that property rights over information are a bad idea or that IP has mutated into a gargantuan, monstrous parody of its traditional moderate form.  In an economy where intangible assets are more valuable than ever, IP is more important than ever” (290). In scope and ambition, then, Justifying Intellectual Property does for the justification of IP what Yochai Benkler’s Wealth of Networks does for distributed peer production.  In the remainder of this review, I want to focus on some of the book’s most innovative aspects.

Merges proposes that the first element of a “workable theory of IP” is that we “proprietize creative labor” (289), and that “because of his enormous influence” (31), Locke is the right place to start.  Accordingly, he argues that “Locke’s theory applies equally well, if not better, to intellectual property” than it does to real property; this is principally because “fresh appropriation from a background of unowned or widely shared material is much more common today than in the world of IP than in the world of tangible assets” (32).  After arguing that invocations of Locke’s “sufficiency” and “waste” provisos are overstated (against Wendy Gordon and me, respectively), Merges turns to Locke’s discussion of charity, which he notes has “important and largely overlooked ramifications for the IP field” (32).  This move marks a significant advance in the discussion of Locke and IP.  For example, it allows a Lockean to dignify the claims of AIDS patients in developing countries by placing “the needy themselves … their need, and not the virtue of the giver” (275) at the center of the conversation.  Of course, Merges does not immediately begin handing out medicines, and he cites evidence both that access to medicine may not be the primary cause of mortality in developing countries, and that the effects on incentives for developing future drugs need to be taken into account (281-2).  One may not agree with how he balances these issues, but he is surely right that the Lockean framework provides an overlooked and productive way to think about them.

Merges’ second major innovation is in his discussion of Kant (and Rawls after him, although for the sake of brevity I will not discuss that here, except to note that his invocation of taxation as a distributive policy (132-3) in this context seems both correct and important).  Much of the non-Lockean normative debate around IP has been driven by discussions of Hegel, from Justin Hughes’ foundational “Philosophy of Intellectual Property” (1988) to John Tehranian’s use of Hegel to justify strong user rights.  By focusing on Kant instead, Merges opens for discussion some largely uncharted territory, centered on “Kant’s insistence on the dignity and worth of individuals,” and specifically on the “creative individual” whose “act of will is at the heart of Kant’s conception of property” (71).

One of Merges’ most interesting applications of Kant lies in his argument that “the general policy suggested by Kant’s writings has to do with encouraging a larger number of smaller creative entities, as opposed to a smaller number of larger ones” (81).  This is because, from a Kantian standpoint, “independent production is inherently better,” in that it “serves important personal and social values beyond efficiency, which means that we as a society ought to bear slightly higher transaction costs than might be dictated by a strictly efficiency-based viewpoint” (83).  Such a Kantian standpoint allows one to immediately resolve several policy issues.  For example, in cases where contractual terms do not resolve the rights of authors versus publishers to exploit works in new media, presumption ought to lie with authors.  Merges also finds in Kant strong support for the idea that one can waive one’s rights – that, for Kant, “any definition of a right that includes the necessity of full enforcement thereby becomes a straightjacket” (84).  Just because you copy my work does not mean I have to try to stop you.

These emphases on the autonomy of individual creators are applied most clearly in the chapter on creative professionals, where Merges argues that strong IP rights can support these “creative professionals who bring us many of the products that have become cultural icons and shared touchstones” (223).  To complain that IP promotes large media corporations then misses the important point, since these corporations “provide gainful employment to a lot of people who do these things for a living.”  Not only that, IP rights both enable and promote “autonomy supporting small companies” where creative professionals work with greater independence (226).  Collectively, he argues, this creative class is well worth preserving, even at the expense of some amateur or remix culture.  Sharing, he argues, is valuable.  However, property rights allow for voluntary waiver, which is superior to the compulsion of reducing rights.  At the same time, he argues that the waiver of property is conceptually superior to the complexity surrounding contract regimes that attempt to bind third parties (228-9).

What is perhaps most significant about Merges’ approach is his deployment of midlevel principles as mediators between theory and policy.  This deployment allows him to claim a normative ecumenicism: one does not have to agree with his usage of Locke, Kant, or Rawls to engage either the mid-level principles (because analogous versions of them are entailed by most normative theories) or the policy discussions at the end of the book (because they are mostly grounded in the mid-level principles).  Since current discussions of IP are fractured at the level of higher-order theory, the ability to achieve even rough consensus at midlevel principles is a substantial virtue.  The use of midlevel principles also models how most of us do most of our moral thinking.  When asking moral questions, we think of concepts like proportion, not Kant’s categorical imperative, and we rely on these principles to do most of the heavy-lifting in resolving particular situations.

The four principles he identifies are non-removal, proportionality, efficiency, and dignity.  Proportionality gets the most attention, both because it is “the most undertheorized” of the midlevel principles, and because it functions paradigmatically to illustrate “what a midlevel principle is” (159).  Working from the doctrinal level up, Merges shows that current IP law already builds in principles of proportionality.  Collectively, policies like interoperability exceptions to anti-circumvention rules in copyright exhibit a “transcendent principle that ties together all manner of disparate situations,” viz. that “an IPR must not confer on its holder leverage or power that is grossly disproportionate to what is deserved in the situation;” if it does, it must be “limited in some way” (162).   Proportionality thus functions doubly as a heuristic principle through which we can understand disparate doctrinal developments in IP law, as well as a normative principle through which we can judge other doctrinal proposals.

Where does this leave us?  The picture Merges paints is comprehensive (and I have painted only a small part of it), and in many respects a compelling one.  The picture – like any in intellectual property – attempts a delicate balance between rewarding creators and ensuring that those rewards do not amount to more than the creators morally deserve.  One concern is that Merges lets the difficulty of enforcing IP rights do a lot of normative work.  His default position combines strong rights and voluntary waiver; part of why this does not give owners disproportionate reward is that “the de facto scope of rights over [for example] digital works is much narrower than it would seem from the formal expression of IP rights … even though formal rights have undergone significant expansion in recent years” (257).  If this is the case, one wonders why we should endorse this formal expansion.

Merges shows the moral benefits that accrue to a regime of strong rights; against those, one should weigh the costs of a “more rights than will be used” approach.  I will cite only one: the presence of unenforced rights invites arbitrary enforcement, or the use of intellectual property as a vehicle to enforce exogenous cultural norms.  The poster child for this problem more generally is the speed limit.  Enforcement costs force the state to tolerate a tremendous amount of speeding.  This means that decisions to enforce the speed limit often fall disproportionately on disfavored classes, or occur as a pretext for doing something else, like conducting a vehicular search.  Could IP owners behave in such an arbitrary manner?  The evidence is not encouraging.  For example, distaste with the content of 2 Live Crew’s “Pretty Woman” and Alice Randall’s Wind Done Gone clearly motivated efforts to use copyright to suppress them.  The failure of those attempts illustrates a correct application of the proportionality principle, of course, but they also failed substantially because the litigation was undertaken against major publishers with sufficient resources to defend their material.  Those with fewer resources – smaller creative entities of the sort Kant favors – may have to capitulate to unjustified cease and desist letters, or be chilled from attempting creative activity altogether.  Since the entire point of an IP system is to get social mores out of the production of art, and replace them with the (supposedly more normatively neutral) market, these prospects are troubling.

This objection and others like it, it should be noted, can be stated within Merges’ theoretical framework, and they find ready discussion (often by Merges himself) within it.  I thus offer it partly as an illustration of how readily Justifying Intellectual Property provokes discussion of the fundamental normative issues underlying intellectual property law.  Whatever one thinks of Merges’ substantive positions, his book is profoundly generative, and for that we owe him a substantial debt.  This is book whose arguments will, deservedly, be with us for a long time.


Gordon Hull is Assistant Professor of Philosophy at UNC Charlotte.  His research is in areas of technology, law and political philosophy, and is currently working on a book tentatively called The Biopolitics of Intellectual Property.

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