On Friday January 3, 2014, the Federalist Society opened its 16th Annual Faculty Conference with a panel discussion on the question “Is IP Property or Government-Conferred Monopoly?” Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, served as the moderator.
The first panelist was David S. Olson, Associate Professor of Law at Boston College Law School, who began by noting that we have property rights for very good reasons, whether utilitarian or Natural Law: the world works best with such laws. Intellectual property (IP) is something different, however. True property has the property of rivalrousness: you can’t eat an apple that someone else is eating. It is a statement about physical reality. IP, by contrast, is not rivalrous. “If I come up with a new way to plough my crops, someone else can copy that on their land at the same time,” he said.
Defenders of IP, whether regarding patent or copyright law, claim that we will get fewer inventions if inventors do not have rights to exclude others from their inventions. Likewise for authors and their writings. There is a moral component to that argument, he claimed. It is not a matter of placing a tax on other users. There is a different mindset, however, if one takes a utilitarian perspective, as opposed to an argument from inherent rightness. In the former case, there would be an optimum level of IP protection, but the reality is that people create many positive externalities they can never reclaim. Typically we have not given IP protection to fashion and to natural phenomena (for example, discovering that a tree bark has an aspirin-like property). The question should always be: do we need to assign this particular right? If not, we should stop doing so.
Irina Manta, associate professor at Hofstra Law School, spoke next. She explained that she does not ground property rights in natural rights: Supporters of natural rights argue that the government must grant property rights yet she said the government does not own the right it is supposed to give. Rather, she said she sees property rules as maximizing social welfare. She stressed, however, that rhetoric does matter. When we liken IP to property in Congress or courts, more rights tend to be accorded. This is unfortunate since it contains an inaccurate understanding of non-IP property law. For instance, the doctrine that a man’s home is his castle has been modified over the years. We all agree there is a middle ground when it comes to property rights, she claimed. Nothing is achieved by making IP law more like property law or less like it. In her conclusion, she denied the claim that IP is nonrivalrous by offering the counterexample of trademarks in status goods: the value of owing a genuine Louis Vuitton bag is diminished if knockoffs are permitted.
Following Manta was Adam Mossoff, professor at George Mason University School of Law. He said his view was that IP is in fact a kind of property right. And it is so for both conceptual and normative reasons. As a preliminary matter he explained it is important to recognize that law can protect what people possess based on what those rights refer to: new values were secured as property rights as new kinds of things of value were created over the eons. For instance, the notion that property is not land per se but the disposition to use that land to the exclusion of other people. Other examples of new values are air rights, a water well (which is built), corporate forms of property (which we take for granted), and patents and inventions. IP is thus a legitimate example of the protection of values that have been created by individuals.
The final speaker was Gregory Dolin, Co-director of the Center for Medicine and Law at the University of Baltimore School of Law. He explained that his position falls between that of Manta and Mossoff but he disagrees with both. Beginning where Manta left off, he said he agreed that nomenclature matters in a visceral sense but what we should ultimately care about are the rules. Courts assume foxes and whales can become property and thus apply certain sets of rules. Yet property is not a thing but a relation between individuals via legal rules. Calling it government privilege or property versus calling it IP does not matter.
He said that there do exist certain moral claims if IP is property. The classic assumption is that an owner of property has obtained the ownership by his labor at some point in the chain of possession. Suppose, for instance, that someone steals someone else’s Ph.D. dissertation. We think such copying is wrong even if there was no trespassing. There is no such moral implication, however, if we view IP as a matter government-conferred monopoly.