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Thursday, April 02, 2015

Mark Lemley's "Faith Based Intellectual Property"

I'm still processing a draft posted yesterday by Mark Lemley, "Faith Based Intellectual Property," here at ssrn. Like many of Mark's pieces, it is a clear, succinct read. In it, he points out that "IP rights are a form of government regulation of the free market designed to serve a useful social end—encouraging innovation and creation." The paper cites numerous pieces of empirical research conducted over the past several decades by both legal and economic scholars concluding that these goals have not been well met.  

Faith Based Intellectual Property asserts that a divide, of sorts, is occurring in the field of IP scholarship, between those who write that, despite such scholarship, IP is justifiable as a legal constraint on creativity for other reasons. According to the piece, "this retreat from evidence [is called] faith-based IP, both because adherents are taking the validity of the IP system on faith and because the rationale for doing so is a form of religious belief." Lemley writes that non-utilitarian support for the system ignore important evidence and represent difficulty for the system as a whole. As he states, IP "intervenes in the market to interfere with the freedom of others to do what they want in hopes of achieving the end of encouraging creativity. If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first."

His conclusion goes further--that "we have nothing to say to each other." To explain:

I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others.

Undoubtedly, it's an important piece, will foster discussion and further thought.

Posted by Amy Landers on April 2, 2015 at 07:18 AM in Intellectual Property | Permalink


When I saw this, I thought it was an April Fool's joke. Then I read the paper. Apparently not. It shows off everything that's best and worst in Mark Lemley's work. He effectively equates utilitarian principles with evidence-based lawmaking, and while the two work naturally together, there's something paradoxical about the argument that non-utilitarian theories are suspect because they don't depend on the kind of evidence that would satisfy a utilitarian. His conclusion is as much about the limits of the worldview he expresses in the paper as it is about the worldviews of the scholars he criticizes.

Here. Let me try my hand at rewriting the paragraph you quoted so that it's about imposing the death penalty for car thieves instead:

"I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to drive cars to another’s claim to a right to car ownership. Nor is there a way to weigh your claim of moral entitlement to live against evidence that exercise of that right actually reduces investment in cars by others."

If the empirical evidence showed that executing suspected car thieves without a trial were highly effective, notwithstanding the occasional execution of a complete innocent, the "I" in this paper would accuse anyone who started talking about the Eighth Amendment of "faith-based criminal law." The fact is that the legal system and legal theory trade off among morally incomparable claims all the time, if for no better reason than that they have to. Mark lands some clever and telling points against poorly thought-through and willfully blind arguments in IP scholarship, but they're interwoven with other claims that are significantly overstated.

Posted by: James Grimmelmann | Apr 2, 2015 7:51:06 AM

Let’s distinguish the IP ‘faithful’ from the IP ‘philosopher’. The faithful starts from the conclusion that IP rights are right or good and looks for reasons to support that. The philosopher asks whether any norm justifies the conclusion that we ought to have IP rights. Having seen the mounting empirical evidence that the social welfare norm does not justify continued IP rights, the philosopher speculates about whether any other norms – autonomy for example – justify the conclusion that we ought to have IP rights. The philosopher views this process as important to academic integrity. If we seriously wish to answer the question ‘are IP rights justified?’ we cannot limit ourselves to concerns of social welfare, but must honestly think about the issue from all angles taking into account all the various competing philosophical norms in society. I have always viewed Prof Merges and others as IP philosophers: not blindly trying to support their conclusion that IP rights are justified, but in the interest of academic honesty, speculating about whether any non-welfare norm justifies the practice.

Importantly, unlike the faithful, the philosopher still responds to reasoned argument. Yes, the language of the conversation will be different. The discussion will not be about cost-benefit analysis, but about Kant's universal principle of right and trying to determine where one's right ends and another begins, etc. The scholar who insists on talking about cost-benefit analysis within the context of this conversation is much like the English tourist who goes to France and demands that everyone speak English to him. Ultimately, it may be that this product of this discussion is that natural rights justify IP rights or they do not or they only justify thin protection (as Prof Drassinower's 'rights-based minimalism' theories suggest)- I don't know. But I do know that at least the philosopher, unlike the faithful, still responds to such rational arguments regarding the relationship between the norm and the practice.

(I really hope this was not an April Fool's joke.)

Posted by: Patrick Goold | Apr 2, 2015 12:01:39 PM

Lemley's piece is, without a question, one of the most useful, honest, and accurate statements of current state of IP scholarship that I have seen. This is not praise, either for Lemley's views or IP scholarship.

Put simply, the IP field is pretty hostile to those that don't share Lemley's views. As a junior scholar who does not share them, I made a conscious decision several years ago to leave the IP field precisely because I felt it was a hostile place. When one of the most important and prolific scholars in the field publicly says, to use this post's paraphrase, "we have nothing to say to each other," that pretty well confirms the hostility within the field both on a personal level (who would want to hang out at conferences with _those_ people) and an intellectual level (who would positively evaluate pro-IP scholarship for tenure).

I'm happy I left IP behind, and am very happy with my current work. But whenever I think about the IP field I get a little bit sad.

Posted by: jr. prof | Apr 2, 2015 12:10:11 PM

Putting on my Counselor Troi hat for a moment, I sense frustration and annoyance in this essay. Particularly, frustration and annoyance at morality or justice-based arguments for IP, given recent attempts to undermine to a greater or lesser extent the widely-accepted utilitarian argument for IP, which (I'm guessing) are getting the most attention from people who are already critics of strong IP. And I would expect that some lobbyists, and perhaps even some scholars, have insinuated that not only is the case for IP based in morality, but as a result anyone arguing for less IP is *immoral*.

If that's the case I think the essay would be better focused on those particular arguments and insinuations, rather than on the irrationality or radical untranslateability of those who argue for strong IP rights generally.

Posted by: Bruce Boyden | Apr 2, 2015 12:25:21 PM

I have a post up on the piece: http://lsolum.typepad.com/legaltheory/2015/04/lemley-on-non-consequentialist-justifications-for-intellectual-property.html

Posted by: Lawrence Solum | Apr 2, 2015 12:40:56 PM

I've also posted some thoughts on Lemley's essay: http://jeremysheff.com/2015/04/02/faith-based-vs-value-based-ip-on-the-lemley-merges-debate/

Posted by: Jeremy Sheff | Apr 6, 2015 10:40:16 AM

And I have my own post at http://2d.laboratorium.net/post/117023858730/faith-based-intellectual-property-a-response

Posted by: James Grimmelmann | Apr 21, 2015 4:39:33 PM

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