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Tuesday, January 29, 2013

Merges on Gordon on Rawls and IP

Wendy Gordon, as might be expected, gets right to the heart of the most difficult issues in her post on the Rawls chapter in my book, Justifying Intellectual Property ("JIP"). In this post I want to give some quick context and then point the interested reader to the fuller discussion that addresses the issues Wendy raises. Chapter 4 of JIP is on "Distributive Justice and IP Rights." It comes after an introductory chapter that lays out the architecture of the book, and then two chapters on foundational figures in the philosophy of property rights, Locke and Kant. While Locke and Kant are both sophisticated enough to include "other-regarding" features in their accounts of property, I wanted to include a more thorough, systematic, and comprehensive account of distributive justice issues in my discussion of IP rights. So naturally I turned to Rawls. Rawls himself, especially the early Rawls of A Theory of Justice, is fairly lukewarm on private property. But there is a good bit of subsequent literature that extends and adapts Rawls's framework in various ways that reflect more contemporary concerns. And of course since the 1970s there has been a huge upswelling of interest in property theory and philosophical discussions of private property. (Think Jeremy Waldron, The Right to Private Property; Stephen Munzer, A Theory of Property; Richard Epstein's Takings book and subsequent writings; Henry Smith, Lee Ann Fenell, Carol Rose, Greg Alexander, etc. etc. And in IP law, Peggy Radin, Wendy herself (indispensable on Locke) and others.) So it was in this spirit of updating and adapting that I tried to defend IP rights as consistent with a comprehensive Rawlsian account of distributive justice. I began, reasonably enough I think, with Rawls' two principles of justice. Principle 1 says that all persons have an equal right to the most extensive system of basic liberties that is consistent with the liberty of others (the "liberty principle"). The balancing of individual ownership with the interests and rights of the community is a major theme of contemporary property theory -- arguably *the* major theme. So it was relatively easy to draw on the property rights literature for a defense of property (and particularly IP rights) under the liberty principle. I will spare you the details here; but I would add that for me Kant's emphasis on property as a way to facilitate personal autonomy factors heavily into my description of IP as a true, basic individual right. Rawls aficionados will recognize that I could have stopped there. Under his "lexical priority" approach, if a right is demanded by the liberty principle it need not be justified in terms of the second principle. Because I was not sure everyone would buy my defense of IP under the first principle, and more importantly because I could not resist the challenge, I also tried to defend IP under Rawls's second principle. The second principle is the famous "difference principle." A deviation from strictly equal resource allocation can be justified only if it results in the greatest benefit to the least advantaged members of society. My argument here is based on the fact that industries reliant on IP rights contribute significantly to the quality of life of the poorest members of society. Popular culture (including much TV programming); technological improvements such as air conditioning; low-cost long-distance communication and transportation (especially important for immigrants); and cost-saving innovations of all kinds (mobile phones, hypertension medicines, etc.) are, the data show, highly valued by low-income members of our society. These data are surely what Wendy Gordon has in mind when she says that I have not persuasively defended IP under Rawls's second principle. She makes a good point. IP rights stand behind a number of personal fortunes that in themselves represent wildly extravagant deviations from a pure egalitarian distribution (think Bill Cosby, Bill Gates, Jay-Z, George Lucas, Oprah Winfrey). Consumer enjoyment, particularly for the least advantaged, must be factored into a discussion of these fortunes and the institutions (including IP rights) that make them possible. I would note, incidentally, an interesting feature of my list of IP-backed fortunes. Did you notice that 3 of the 5 people mentioned are African Americans? While not strictly relevant to the second principle, I think it is interesting that so many prominent fortunes in the African American community have been enabled by IP rights. This may not be justifiable unless the poorest of our citizens somehow benefit from the conditions that make these fortunes possible, but it is surely an interesting point from the general perspective of distributional concerns in our socio-economic system. (Incidentally, Justin Hughes and I have undertaken some joint work to pursue this idea in more depth). Nevertheless, as I acknowledge in JIP, what I provide is really not much more than a sketch of a full-blown defense of IP under the difference principle. A fuller defense would have to accept the higher marginal prices brought about by IP, and balance these against the consumer surplus created even for the poorest members of society by IP-based entertainment and technology products. My defense gestures in this direction but falls far short of being truly comprehensive. On the other hand, at least I have tried to integrate a comprehensive account of distributive justice into the discussion of IP rights. It may be less than a full feast. But perhaps it's also more than chopped liver.

Posted by Rob Merges on January 29, 2013 at 02:23 PM in Intellectual Property, Legal Theory | Permalink

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