Author: Gordon Hull


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.

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Book Review: Peñalver & Katyal’s Property Outlaws

Eduardo M. Peñalver & Sonia K. Katyal, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (Yale University Press 2010).

As they open one of the late chapters in their Property Outlaws, Eduardo Moisés Peñalver and Sonia K. Katyal speak of a “conflicting divergence” in intellectual property law: “is a pirate an outlaw or a freedom fighter? The law asks, unable to offer a comprehensive answer” (212).  Property Outlaws is an ambitious and rigorously argued explanation of why this ambiguity is a good thing.  The book also responds to a pressing problem.  Intellectual property law, as it is currently developing under intense pressure by property owners, is moving rapidly toward the “outlaw” answer, and in this development, Peñalver and Katyal see cause for concern.  It is not, as they emphasize, that all acts of trespass are good things, or that most of the college students on Bit Torrent have any ideal in mind more elevated than seeing movies for free.  It’s that, when one takes a step back and looks at the development of property law more generally, “property outlaws” have served a very important social function in pushing property law, which tends to ossify, in the direction of needed reforms that reflect shifting social norms, pressing issues of social justice, or other normatively important concerns.  To illustrate this larger point, they embed a discussion of the development of intellectual property law in an innovative account of the social dynamics of property law more generally.

Property Outlaws thus makes the descriptive and normative case for what one might call a dialectical understanding of the development of property.  Specifically, “the apparent stability and order provided by property law owes much to the destabilizing role of the lawbreaker in occasionally forcing needed reform and in generating a series of important legal shifts along the way” (11).  The descriptive case is met by showing a series of examples where deliberate disobedience of property regimes has been a significant catalyst in generating legal reform.  Peñalver and Katyal identify two kinds of property outlaw.  The first, the “expressive” outlaw, acts to protest the current legal system, but not to obtain property for herself.  The protestors of the Greensboro lunch counter sit-ins, whose trespassing was a major catalyst to the civil rights movement, were paradigmatic expressive outlaws.  The second, “acquisitive” outlaw violates others’ property rights, and expects to gain personally.  The case for acquisitive outlaws is harder to make because of their “profit motive,” but urban squatters in developing countries seem both to have available a necessity defense and to point to a widespread social justice problem.

The situation with intellectual property law is somewhat different, because IP law is considerably less specific than real property law: not only is the domain of the entitlement more ambiguous (which parts of the work are copyrighted?), but so is its scope (is that fair use?).  Peñalver and Katyal thus propose that intellectual property violators can sometimes be seen as outlaws, but sometimes as “altlaws,” whose “conduct at least arguably falls within the boundaries of legality and, at the same time, who do[] not reject out of hand the concept of intellectual property” (77).  Citing Robert Cover, Peñalver and Katyal propose that the altlaw is engaged in an attempt to “convert legal interpretation into legal meaning,” i.e., to get the law to recognize her interpretation as correct.  Altlaws can also be expressive or acquisitive.  An example of the former is the Swarthmore students who defied cease and desist letters to publicize embarrassing internal documents that cast serious doubt on the integrity of Diebold’s voting machines.  An example of the latter is the revolt in several developing countries against the high prices for AIDS anti-retroviral drugs.  Despite apocalyptic warnings from the pharmaceutical industry, those countries insist they respect patent rights generally, and that they are using existing TRIPS provisions to obtain lifesaving medicines in the face of a public health catastrophe.

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