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Notes
One of Congress’s enumerated powers is “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (US Const., Art. I §8).
Merges grounds the argument in a critique of my attempt (Hull 2009) to use the waste proviso to sharply limit the scope of Lockean IP claims. On my argument, waste happens when “the product of labor that could improve somebody’s life is allowed to irrevocably lose its value before it actually does so” (Hull 2009, 79; qt. 56). I had in mind examples such as the controversies surrounding the availability of anti-retroviral drugs for AIDS patients in developing countries, where the risk is of these patients dying because they cannot afford those drugs. In response, Merges argues that, according to that logic, “anyone whose personal demand for an item led him to value it below the market price—has experienced an episode of Lockean waste” (57). This reductio is a misreading. My argument is not that market price evidences waste on Lockean grounds; it is that the above-market monopoly price licensed by IP necessitates a certain amount of deadweight loss (those who value the good at market-price but below monopoly price), and that this can be an occasion of waste. Merges’s answer underplays the difference between monopoly price and market price. In the case of cars (his example), this difference may not matter much, but in the case of intangible assets, where the marginal costs of reproduction are very low, it may be considerable.
The citation to Sunstein is also a good example of the ecumenicism of midlevel principles, since Rawls is one of Sunstein’s principal critical targets.
Utilitarians (if any of them are still reading at this point) will not be satisfied with this result, since it explicitly demotes efficiency to an “operational principle” which guarantees that “whatever entitlements the legal system starts with, they will be allocated to their highest-valued use as cheaply and quickly as possible” (153). However, this demotion still shows the practical importance of implementing one’s normative framework, and it also demonstrates that one can value efficiency without surrendering all thought to it.
Compare his remarks on digital content: “My basic argument is that once enforcement costs are taken into account, much of the scholarship on IP protection for digital content begins to look overblown, if not downright alarmist” (147).
For the general tendency of user rights to decline for this reason (as well as the argument about documentaries), see Gibson (2007).
Bridgeport Music, Inc. v. Dimension Films, 410 F. 3d 792 (2005) at 800.
This point is illustrated well by Boyle’s (2008, 122–519) discussion of the genealogy of The Legendary K.O.’s “George Bush Doesn’t Like Black People,” which threads back through Kanye West, Ray Charles and before; these creations all involved liberal, and literal, borrowing.
A separate question that I will not pursue here is whether code-based enforcement is normatively preferable, since it avoids precisely the concerns with arbitrary enforcement raised above. See Cheng (2006) for this argument, using speed limits as an example.
My argument here paraphrases Gillespie (2007).
This was a common complaint during the early years of music downloading: “if only the industry would allow people to easily and cheaply download virus-free recordings, they would prefer that to the free but higher-risk p2p system.” The empirical literature on this question is both mixed and bitterly contested. For thoughtful reflections on the importance of property lawbreakers to the development of equitable property regimes, see Peñalver and Katyal (2010).
For this reason, Kane (2004) argues that gene patents should be invalidated as a constructive preemption of the genetic code. The Federal Circuit more or less explicitly rejected this approach in upholding Myriad’s patents. See AMP v. USPTO, 653 F.3d 1329 (Fed. Cir. 2011).
This is what prompted me to consider hoarding them as an example of Lockean waste. The issue here is clearly one of balancing present needs with future generations. However, it seems to me that one factor mitigating against the future generations argument is that the companies weren’t selling the ARV’s at monopoly price in any case, so it is hard to understand how their incentives are harmed by dispensing those drugs at a lower (or even zero) price.
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Hull, G. Robert Merges: Justifying intellectual property. Ethics Inf Technol 14, 169–177 (2012). https://doi.org/10.1007/s10676-012-9287-9
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DOI: https://doi.org/10.1007/s10676-012-9287-9