The Philosophy of Intellectual Property

The Philosophy of Intellectual Property Justin Hughes* Reprinted with permission of the publisher Copyright (c) 1988 Georgetown University Law Center and Georgetown Law Journal December, 1988 77 Geo. L.J. 287 security and income from social programs. n2 * Luce Scholar and Mellon Fellow in the A less frequently discussed trend is that Humanities, 1988. B.A. 1982, Oberlin College; historically recognized but nonetheless J.D. 1986, Harvard University. atypical forms of property, such as intellectual Use of this article without the permission of Georgetown property, are becoming increasingly important University Law Center is expressly prohibited. relative to the old paradigms of property, such as farms, factories, and furnishings. As our As a slogan, "property" does not have the attention continues to shift from tangible to siren's call of words like "freedom," "equality," intangible forms of property, we can expect a or "rights." The Declaration of Independence growing jurisprudence of intellectual property. speaks boldly of liberty, but only obliquely of The foundation for such a jurisprudence property -- through the imagery of the "pursuit must be built from an understanding of the of Happiness." n1 This, however, should not philosophical justifications for property rights obscure the fact that ideas about property have to ideas -- a subject that has never been played a central role in shaping the American addressed systematically in American legal legal order. For every Pilgrim who came to the literature. Rights in our society cannot depend New World in search of religious freedom, for their justification solely upon statutory or there was at least one colonist who came on constitutional provisions. As Justice Stewart the promise of a royal land grant or one slave said in Board of Regents v. Roth, "[p]roperty compelled to come as someone else's property. interests . are not created by the In the centuries since our founding, the Constitution. Rather they are created and their concept of property has changed dramatically dimensions are defined by existing rules and in the United States. One repeatedly understandings that stem from an independent mentioned change is the trend towards source. ." n3 This article analyzes the treating new things as property, such as job "independent sources" that apply to intellectual property by testing whether Page 2 77 Geo. L.J. 287, * traditional theories of property are applicable of "mirroring" is a powerful one that recently to the very untraditional field of intellectual has inspired both philosophers and legal goods. thinkers. n5 The latter usually have been concerned with the normative question of when Part I of this Article maps out this field by and how the law should mirror reality. This describing intellectual property. It then article's concern differs in two respects. First, explores and explains the justifications for its reflection is between law and philosophical ascribing ownership of such property. The theory, not between law and pragmatic reality. first justification it presents is the Lockean Second, this article is intended mainly to be "labor theory," which informed our descriptive and not prescriptive. It is Constitution's vision of property. This labor concerned primarily with answering one justification can be expressed either as a question: Does the law of intellectual property normative claim or as a purely incentive- reflect general theories of property? In based, instrumental theory. Both of these answering this question, however, I invariably aspects of the labor theory are examined in fall into discussions motivated by an image of Part II. what the theory should be and, reflecting from The main alternative to a labor justification that image, of what the law should be. is a "personality theory" that describes In the end, I suspect that many people who property as an expression of the self. This think about property rights are propelled by theory, the subject of [*289] Part III, is the same forces that provoked Proudhon to relatively foreign to Anglo-Saxon proclaim that "all Property is theft." n6 His jurisprudence. Instead, its origins lie in slogan, however, is incoherent if taken literally: continental philosophy, especially the work of the idea of theft presupposes that someone else Georg Wilhelm Friedrich Hegel. n4 Part III holds legitimate title. n7 If Proudhon [*290] argues, however, that more familiar civil rights meant to exempt certain property from his doctrines, specifically rights of expression and indictment, then the original dilemma is privacy, also can provide a foundation for merely pushed back to the question of defining personality theory in intellectual property. and justifying the exemption. One of this This civil rights justification serves, in large article's fundamental propositions is that part, as a bridge from American legal doctrines property can be justified on either the labor or to the more abstract personality justification. personality theories and that it should be When I say "justification," I do not mean justified with both. Properly elaborated, the that every aspect of our system of intellectual labor and personality theories together exhaust property be tortured on some rack of the set of morally acceptable justifications of theoretical validity. Instead, I hope to show intellectual property. In short, intellectual that the existing law supports, to varying property is either labor or personality, or it is degrees, the credibility of different theories of theft. property and that these theories support, to I. WHAT COUNTS AS INTELLECTUAL varying degrees, the validity of existing laws. PROPERTY? Some might call this a funhouse epistemology: two things becoming more acceptable by In many quarters, property is viewed as an mirroring one another. In fact, this metaphor inherently conservative concept -- a social Page 3 77 Geo. L.J. 287, * device for the maintenance of the status quo. against the predilections of the propertied class In the eighteenth century, Edmund Burke that had been their patrons. argued that property stabilized society and But this is only part of the truth. Much prevented political and social turmoil that, he intellectual property is produced only after believed, would result from a purely considerable financial investment, whether it meritocratic order. n8 Property served as a be in the research laboratory or in the graduate counterweight protecting the class of persons education of the scientist using the facility. It who possessed it against competition from would not be surprising if historical studies nonpropertied people of natural ability and showed that most holders of copyrights and talent. To Burke, the French National patents come from at least middle-class Assembly -- dominated by upstart lawyers backgrounds. For every Abraham Lincoln from the provinces -- exemplified the risk of n12 or Edmonia Lewis n13 who lifted him or disorder and inexperience of an unpropertied herself from a simple background, there is a leadership. n9 In contrast, the British Wittgenstein or Welty who enjoyed comfort parliament, a proper mix of talented during his or her formative years. One cannot commoners and propertied Lords, ruled call the history of intellectual property a purely successfully. n10 proletarian struggle. While ancient Roman The conservative influence of property laws afforded a form of copyright protection to does not, however, depend on primogeniture authors, n14 the rise of Anglo-Saxon or even inheritance -- features that gave copyright was a saga of publishing interests property a valuable role in Burke's political attempting to protect a concentrated market system as well as in the political theories and a central government attempting to apply advanced by Hegel and Plato. n11 Within a a subtle form of censorship to the new single lifetime, property tends to make the technology of the printing press. n15 property owner more risk-averse. This In the final analysis, intellectual property aversion applies both to public decisions shares much of the origins and orientation of [*291] affecting property, such as taxes, and to all forms of property. At the same time, personal decisions that might diminish one's however, it is a more neutral institution than property, such as investment strategies and other forms of property: its limited scope and career choices. Inheritance and capital duration tend to prevent the very appreciation are only additional characteristics accumulation of wealth that Burke of traditional notions of property that tend to championed. n16 Because such accumulation stabilize social stratification. is less typical, the realm of intellectual Intellectual property is far more egalitarian. property has less of the laborer/capitalist Of limited duration and obtainable by anyone, hierarchy of Marxist theory. The breakthrough intellectual property can be seen as a reward, patent that produces a Polaroid company is an empowering instrument, for the talented more the exception than the rule. The rule is upstarts Burke sought to restrain. Intellectual the modestly successful novelist, the minor property is often the propertization of what we [*292] poet, and the university researcher -- all call "talent." It tends to shift the balance toward of whom may profit by licensing or selling the talented newcomers whom Burke their creations. Furthermore, intellectual mistrusted by giving them some insurance property may be a liberal influence on society Page 4 77 Geo. L.J. 287, * inasmuch as

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