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Wednesday, January 30, 2013

Still on Midlevel Principles in IP: A Reply to Rob Merges

As always it is a pleasure to talk with Rob on these issues, learn from him and occasionally disagree with him. Both points that Rob correctly identifies as the heart of the exchange are clearly a matter of degree and it seems that Rob and I tend to assess those scale-values differently. For now, let me take up the fuzz factor issue.

I am not a Rawls aficionado and I would not like to turn this into a conversation about what Rawls meant by this or that or how specifically to apply his views to IP. But I do want to point out two features of Rawls in general and the quoted text in particular that seems to be of general relevance to our topic. First, Rawls’ focus is on the just design of the fundamental features and institution of society, leaving in a typical liberal fashion much room for variation and disagreement on specifics within the general framework of a just (“well-ordered”) society. Second, at least in part (and as seen in the quoted text), the many variations of specific arrangements within the broad range allowed by a just society are justified procedurally: they derive their legitimacy form the fact (and to the extent) that they were created by an authorized body under a just constitution in a just society.

I think Rob expects his midlevel principles to do much more work than entailed by these two limitations.

First, midlevel principles as described in JIP are not procedural or even quasi-procedural. They do not define a set of consensual procedures for generating IP norms and which are sufficient, by virtue of being just procedures, for justifying the substantive norms they produce. Rather they define (in very general terms) the substantive features of just IP norms.

Second, I doubt that Rob would be content to let the midlevel principles operate only at a very fundamental level of justifying some very basic institutional features of the IP system and leaving everything else beyond their reach (and therefore as either a matter of “opinion” or as requiring resort to “foundations”). Unlike our philosophical justification of the fundamental institutions of society, it would not be good enough in this context to simply single out the graver wrongs that should be avoided. Of course, a major part of the disagreement here is over how much is covered in a determinate way by the principles. My basic sense is that to make the principles consensual  (i.e. “independent” of foundations) they must be drawn on a very high level of abstraction—one that leaves most of what we disagree over in much of the IP policy debate beyond the determinate reach of the principles. And remember that there are other “foundational” theories not covered in the book which must be fitted into the base (where Rob promises us there is room). The more theories at the base the more abstract the midlevel principles must be. Sure we can probably all agree, on the basis of whatever midlevel principle, that IP rights should not be conferred arbitrarily on entities who had nothing to do with the creation of the relevant intellectual resource. Perhaps many would also agree that, given certain empirical assumptions (remember Wendy Gordon’s point!), some format of IP rights in certain resources is preferable to none. BTW, can we all agree under consensual midlevel principles that nothing which is in the public domain (i.e. already exists and is used freely by all) should be removed from there? The “nonremoval” principle seems to imply that. But the Supreme Court told us recently in Golan v. Holder that the public domain is not a territory that works can never leave and refused to apply anything more than a rational basis review to legislation that restored copyright in public domain works. Moreover, as I said, there are plenty of specific cases where many foundational theories converge on the same outcome, although I am not sure it’s done through the intermediation of general midlevel principles. And then there is the phenomenon of some branches of IP law that seem very hard pressed to find support in any plausible account based on any foundational theory (i.e. publicity rights in their current format). But I suspect that many of the day-to-day questions of the IP debates (e.g. should non-content-altering transformative uses be considered fair use? Should Google be free to digitally copy books as part of Google Books as long as it allows copyright owners to opt-out? Is an isolated gene sequence an unpatentable “natural principle”?) cannot be adequately answered by simply applying midlevel principles. This is likely to happen either because to allow convergence the principles are too abstract or because they may conflict with each other in specific cases (e.g. are dignity-serving moral rights efficient?).

Finally, remember that relying too much on abstract midlevel principles unmoored from foundations is not only of possible limited utility, it also involves some dangers to which I alluded briefly earlier. One such danger is opening the door to broad platitudes (e.g. “proportionality”) that can justify almost anything in concrete cases but actually provide little normative support or even a coherent basis for reasoned evaluation. I gave one example: an invocation of the supposed built-in internal safeguards of copyright as a shield against free speech arguments, without any discussion of how those safeguards actually work or what the normative significance of that operation is. To be clear, I don’t think for a second that Rob is in danger of falling into this trap. Rob is most likely to go on doing the same rigorous, insightful work as before, which is based on an implicit acceptance of utilitarian assumptions (yes, I do think that utilitarian, or if you wish welfarist, theories are foundational even if “efficiency” is now supposed to be “only” a midlevel principle), hopefully with the promised flashes attributable to the epiphany that manifested itself in JIP. That’s something to look forward to.

Posted by O Bracha on January 30, 2013 at 05:15 PM | Permalink


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