THE MYTHICAL BEGINNINGS OF INTELLECTUAL PROPERTY * Jessica Silbey INTRODUCTION People commonly justify intellectual property protection with homage to utilitarianism (maximizing the incentive to create, invent, or produce quality goods)1 or natural rights (people should own the product of their creative, inventive, or commercial labor).2 Despite the on-going dominance of these theories, a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection remains.3 One reason for this failure is that economic analysis of intellectual property law tends to undervalue its humanistic element.4 Whereas utilitarianism and natural rights theories are familiar, at least one other basis for intellectual property protection exists. This Article explains how intellectual property protection is rooted in narrative theory.5 It contends that all the U.S. copyright, patent, and trademark regimes are structured around and * Associate Professor of Law, Suffolk University School of Law.
[email protected]. Ph.D. University of Michigan (Comparative Literature), J.D., University of Michigan Law School, A.B. Stanford University. For their helpful comments on this developing project, I thank Barton Beebe, Dan Burk, Frank Cooper, Lorie Graham, Michael Madison, William McGeveran, Stephen McJohn, Robert Merges, Michael Rustad, Miguel Schor and Rebecca Tushnet. Thanks also to workshop participants and colloquia attendees at the 2006 Intellectual Property Scholars Conference at Boalt Hall, University of Iowa College of Law, and the Washington College of Law at American University, and the New England IP Scholars Forum hosted by Northeastern University School of Law. I received excellent research assistance from Andrea DeStefano, Paul D’Agostino and Steven Dimirsky and from the staff of the John Joseph Moakley Suffolk University Law Library, especially Susan Sweetgall and Sabrina Ash.