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Should intellectualproperty be accorded the same protections as tangibleforms ofproperty? Intellectual and the Property Rights Movement

By PETER S. MENELL University of California,Berkeley School ofLaw

he property rights movement (PRM) has sought to enjoin eBay, the popular online auctioneer, from fur- taken active interest in several Supreme ther use of the patented method in the hope of forcing a favor- Court cases over the past few years. It was able licensing deal. The of such methods was itself hardly surprising to see PRM activists quite controversial because of the nature of mobilize in support ofSusette Kelo, whose method claims. Furthermore, the governmental "interference" home was condemned by the city of New with the patent owner's property was limited. The district court London. She argued that condemning her denied MercExchange's request for a permanent property to convey it to a private developer did not constitute based on the patent owner's willingness to to other par- "public use" and hence violated her constitutional rights. Ms. ties, the adequacy of monetary , the fact that the pat- Kelo's plight fell squarely within PRM's core agenda of safe- entee did not itself practice the , and "growing con- guarding the liberty interests of property owners against gov- cern" over the effects of business method patents on ernmental interference. Nor was it surprising to see PRM organ- and . The U.S. Court of Appeals over- izations mobilize in Rapanos v. UnitedStates, involving the scope turned the denial of the permanent injunction, holding that, of federal authority to regulate wetlands; San Remo Hotel v. City as a "general rule," must follow all patent infringe- & County ofSan Francisco, challenging the constitutionality of ment findings absent "exceptional circumstances" such as a a hotel conversion ordinance under the Takings Clause; Lingle grave risk to public health. As a result, eBay appealed to the v. Chevron US.A., seeking to overturn a state statute limiting the Supreme Court, which granted certiorari in late 2005. rent that oil could charge dealers leasing - In an amicus brief filed in the Supreme Court on behalf owned service stations; or Tahoe-SierraPreservation Council, Inc. of "various law and economics scholars," Prof. Richard v. Tahoe Regional PlanningAgency, asserting that a temporary Epstein, one of the PRM's leading theorists, contended that moratorium on development effected an unconstitutional the Merc-Exchange patent deserved much the same pro- taking of . tection as real estate. By analogizing to By contrast, eBay v. MercExchange did not seem to fit the PRM trespass, the brief argued that injunctive relief should be pre- mold. The "property" at issue - a patent on a method of sell- sumed in cases of patent infringement. It pushed the bound- ing goods through an "electronic network of consignment aries of patent law advocacy by citing land encroachment stores" - could hardly have been more different in character and precedent. economic underpinning than Susette Kelo's home. MercEx- The property rights rhetoric in the eBay case marked an change had prevailed in a patent infringement action and important new front in the campaign to establish a strict and broad interpretation of property rights and their enforce-

Peter S. Menell is professor of law at the University of California, Berkeley School ment. Professor Epstein's expansion of his property rights of Law and director of the schools Berkeley Center for Law and . advocacy into the domain over the past

36 REGULATION FALL 2007 HeinOnline -- 30 Regulation 36 2007-2008 'A

several years coincides with the growing importance ofintan- term "intellectual property" in a reported legal decision can gible in the modern economy. The digital revolution has be traced to an 1845 patent case in which the court observed displaced General Motors and other manufacturing enter- that "a liberal construction ... given to a patent" will encour- prises from the top of the economic food chain. Knowledge- age "ingenuity and perseverance" and "only in this way can we based companies such as , Microsoft, and Apple reflect protect intellectualproperty, the labors of the mind, productions the new economic order. and interests as much a man's own, and as much the fruit of Other property rights advocates have joined the effort to his honest industry, as the wheat he cultivates, or the flocks "port" the absolutist libertarian vision to the realm of intel- he rears." Prof.Justin Hughes, in a recent Southern California lectual property. In a May 21, 2007 op-ed page advertisement Law Review article, notes that "the courts and legislatures had in the New York Times, the Washington Legal Foundation led: regularly discussed copyrighted works as 'property' through- out the seventeenth, eighteenth, and early nineteenth cen- Stolen Property, Stolen Future turies, with the adjectival concepts of 'artistic,' 'literary,' and What if strangers showed up in your backyard and 'intellectual' orbiting around the property notion." held a block party? America's fiercely defended tradi- There can be little question today that intellectual property tion of private property rights wouldn't tolerate this. assets are forms of "property." The expressly declares But that is in essence what's happening to the intel- that "patents shall have the attributes ofpersonal property" and lectual property ... of American overseas. the Supreme Court acknowledges them as such. The Should "intellectual property" be so blithely equated with Act states that " of a copyright may be transferred in tangible forms of "property"? While there are certainly his- whole or in part by any means of conveyance or by operation torical connections and functional parallels between "intel- of law, and may be bequeathed by will or pass as personalprop- lectual property" and "property," philosophical, legal, eco- erty by the applicable laws of intestate succession." nomic, and political bases for protecting intellectual property But the classification of patents, , , and tangible property differ in significant ways. Those under- and trade secrets as forms of "property" does not resolve the pinnings suggest that the effort to bring intellectual proper- contours of those assets and the rights and protections that ty into the "property" tent may well backfire. their owners enjoy. Property is not a monolithic concept and its treatment varies significantly across classes of resources. SEMANTICS AND SUBSTANCE The critical question is not whether the rubric "property" Private property in land and other tangible resources is per- applies to intellectual property, but whether the traditional haps the oldest human institution and has long occupied a rights associated with real and other tangible forms of prop- prominent position in law and philosophy. But to what extent erty apply to intellectual property. does intellectual property - rights in intangible resources - Professor Epstein and some other PRM advocates assert fall within the relatively uniform right structure applied to that the rules associated with real property (such as a strict land and other tangible resources? right to exclude and restrictions on governmental interference) The law has long treated land and intellectual property should govern intellectual property. Those scholars would within the general rubric of "property." The first use of the shoehorn intellectual property into an idealized Blackstonian

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conception of property rights as exclusive and inviolate. Yet (although in the case of copyrights, the term is quite long). such a classification is more semantic than actual. The two Furthermore, exclusivity in the field of "intellectual proper- fields derive from different philosophical foundations, ty" is far less inviolate than it is in the traditional property embody different rules and institutions, and reflect different domains. Intellectual comprises a system of pol- political constituencies. icy levers that legislatures tailor and courts interpret in order to promote innovation and protect the integrity of markets PHILOSOPHICAL DIFFERENCES in light of the ever-changing state of technology as well as John Locke believed that every man has an inherent property social institutions. interest in his own person and, by extension, in the labor of his Patent law's experimental use defense and various excep- body, subject to there being "enough, and as good left in com- tions (e.g., severe restrictions on enforcement of medical pro- mon for others." Upon this foundation, Locke asserted "life, cedure patents, prior user rights for business methods) limit liberty, and property" to be inalienable rights of a just society. the exclusivity of patent rights. Copyright law's doc- Drawing upon Locke's natural rights conception of prop- trine, numerous compulsory , and various exemp- erty, the Property Rights Movement advocates an absolutist tions significantly qualify the exclusivity of copyright interests. approach to the protection of property rights and strict lim- law's distinctiveness doctrine, infringement stan- itations on government interference with private property. dard, and nominative use defense significantly constrain the Notwithstanding the Founders' varied views of private prop- exclusivity of trademark rights. law's independ- erty - such as Benjamin Franklin's view that "Private Prop- ent discovery defense similarly qualifies the exclusivity of such erty ... is a Creature of Society, and is subject to the Calls of that rights. Upon even casual inspection, the "property"label serves Society, whenever its Necessities shall require it, even to its last primarily to signify that intellectual property rights are own- Farthing" - the property rights movement sees in the Con- able and transferable. stitution's Takings Clause uncompromising protection of Nonetheless, classification of intellectual property as "prop- property, founded in liberty. erty" has substantive effect in some contexts. The Fifth By contrast, patents and copyrights emerged largely Amendment limitations on takings of private property turn through legislative enactments pursuant to a specific utili- on that classification. But as reflected in the eBay case, the tarian constitutional directive: "to promote the Progress in Sci- "property" label is not determinative of the standard for ence and the useful Arts." Although the documentary histo- injunctive relief. ry relating to this clause is sparse, there can be little question Unlike Locke's liberty conception of real property, the prin- that the Founders saw the Intellectual Property Clause func- cipal economic justification for intellectual property derives tioning quite differently than the Takings Clause. In an from a broader economic problem: the inability of a competi- address to Congress on January 8, 1790, President George tive to support an efficient level of innovation in some Washington noted: areas of technological innovation and creative expression - particularly those in which (R&D) is [T]here is nothing which can better deserve your costly, innovation is easily perceived, and imitation is relatively patronage than the promotion of science and litera- inexpensive and can occur rapidly. A competitive economy will ture. Knowledge is, in every country, the surest basis drive profits to zero, not accounting for sunk costs such as R&D. of public happiness. In one in which the measures of Although imitation keeps prices low for consumers and avoids government receive their impression so immediately deadweight loss of monopolistic exploitation, it produces a from the sense of the community as in ours, it is pro- suboptimal level of investment in R&D. Most firms would not portionably essential. invest in developing new and creative works if In response, the newly formed House of Representatives rivals could enter the market and dissipate the before R&D resolved: "We concur with you in the sentiment that ... the costs adjusted for attendant risks could be recovered. promotion of science and literature will contribute to the Unlike tangible goods, knowledge and creative works are security of a free Government; in the progress of our deliber- public goods in the sense that their use is nonrivalrous. One ations we shall not lose sight of objects so worthy of our agent's use does not limit another agent's use. Indeed, in its nat- regard." In the spring of that year, Congress passed the first ural state, knowledge is also "nonexcludable." That is, even if federal patent and copyright laws. someone claims to own the knowledge, it is difficult to exclude others from using it. Intellectual property law is an attempt to UTILITARIAN APPROACH solve that problem by legal means; it grants qualified exclusive Rather than emulate real property rules and institutions, use of the protected knowledge or creative work to the creator. intellectual property can best be understood as a malleable Such control, however, reduces social welfare in several bundle of rights to be molded to promote the progress of sci- ways. First, exploitation results in deadweight loss ence and the arts. Indeed, the various modes of intellectual to consumers. Second, exclusive control may inhibit the use property protection diverge significantly from Blackstone's of scientific or technological knowledge for further research. model of absolute rights - perpetual, exclusive, and inviolate. Third, from an ex ante point ofview, there is no guarantee that Two of the most prominent forms of intellectual property - the research effort will be delegated to the most efficient patents and copyrights - protect works for limited durations firms, or even to the right number of firms.

38 REGULATION FALL 2007 HeinOnline -- 30 Regulation 38 2007-2008 Patent protection, for example, seeks to balance those com- tional economists see vibrant competition as a more positive peting effects by affording protection only to substantial (non- force in spurring invention, innovation, and diffusion of tech- obvious) , limiting the term of protection, and requir- nology than coordinated development by a single prospector. ing that the fully disclose the invention. In the most For this reason, narrower and weaker rights structures may be basic model of patent protection - where inventions do not more efficacious in promoting innovation in particular fields. serve as building blocks for later inventions and the only con- Even Prof. William Landes and Judge Richard Posner recog- trol variable is the duration of protection - the optimal dura- nize that .'depropertizing' intellectual property may some- tion of patent protection balances the incentives for innovation times be the soundest policy economically." Professors James against the deadweight loss of monopoly exploitation. Bessen and Michael Meurer find, for example, that the costs Cumulative innovation - where first-generation inven- of business method and software patents (attributable to the tions become inputs for second-generation innovators - sub- inherent ambiguity of rights boundaries) generally outweigh stantially complicates the design of patent protection. In the relatively modest benefits of such patents. order to reward first-generation innovators sufficiently for inventions that may produce positive spillovers by enabling STRUCTURAL UNITY OR UTILITARIAN DESIGN second-generation inventions (improvements, new applica- When Professor Epstein looks at intellectual property, he is tions, and accessories), first-generation innovators should be struck by the "structural unity" with real property. He sees able to appropriate the of second-generation innova- exclusivity and the right to transfer as the foundations under-

Philosophical, legal, economic, and political bases for protecting intellectual property and tangible property differ in significant ways.

tions. On the other hand, providing even a share of the sec- girding both systems, while discounting the problems of frag- ond-generation innovators' returns to the first generation mentation and concentration in both domains. His limited innovator reduces the incentive for second-generation inno- perspective exaggerates the "unity" of real and intellectual vators to pursue their research. This tension is abated to the property with regard to exclusivity and freedom to transfer extent that first-generation innovators are best positioned to while overlooking the many structural differences that dis- pursue second-generation innovation or where collaboration tinguish real and intellectual property. (e.g., joint ventures) brings first- and second-generation inno- There is little doubt that intellectual property rights can be vation within the same profit center. exclusive. But they need not be and often are not, at least not The cumulative nature of innovation unquestionably to the extent associated with real property. Exclusivity in the strengthens the case for allowing joint ventures, especially realm of real property addresses the "tragedy of the commons." with respect to complementary products. In practice, howev- Providing exclusive rights to land and other tangible resources er, one entity rarely is best positioned to pursue all second-gen- limits the overuse of inherently depletable resources. By con- eration projects. Furthermore, second-generation innovators trast, intellectual resources (knowledge) are not depletable and are not known (and cannot be knowable) before the making hence are not subject to overuse . Treating them of first-generation research investments. Yet, once first-gen- as real property can lead to underutilization. We can all enjoy eration research investments are made, they are sunk costs that a Mozart opera without diminishing the enjoyment of others, become irrelevant for bargaining over the division of profits whereas we could not all productively graze our herds on a from multi-generation innovation. This problem can be given acre ofland or enjoy a particular chocolate ice cream cone addressed by expanding the duration and scope of first-gen- without adversely affecting the use and enjoyment of others. eration patents or by denying patent protection altogether to Intellectual property protections use the provision of rights (of second-generation innovation. The results, however, depend varying degrees of exclusivity) to promote technological inno- critically upon strong assumptions relating to licensing of vation and expressive creativity. But as noted earlier, progress innovation and the knowledge and rationality of innovators. in technology and the arts is a cumulative process in ways that In practice, there are many strategic impediments to licensing. development of land is not. Intellectual property laws seek to In addition, innovators rarely possess good information for balance the interests of pioneering innovators and subsequent assessing the best diffusion path for their technologies and improvers in the pursuit of progress. licensing can be costly. Exclusive rights of the character associated with real prop- The utilitarian linkage between property and intellectual erty would stand in the way of technological and expressive property theory hinges upon low transaction costs. Institu- progress in many areas of creativity. Thus, Congress has not

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declared the first inventor the fee-simple absolute owner of his tions for transaction costs. Whereas tangible property can intellectual creativity. To do so would violate the Constitu- usually be defined with reasonable clarity and can be verified tion's "limited time" condition. But putting that attenuated at relatively low cost, various types of intellectual property - constraint aside, Congress has limited the duration and the especially software and business method patents - have noto- rights of intellectual property owners in significant respects riously fuzzy boundaries. Such boundary definition prob- to achieve an appropriate balance between incentives to cre- lems, and the due diligence, transaction, and dispute resolu- ate and opportunities for later improvers. tion costs that they entail, raise serious questions about the Patent rights tend toward the more exclusive end of the con- desirability of some types of intellectual property. trol spectrum, although the relatively short duration of patent Real and intellectual property differ significantly in terms protection (20 years from the filing of an application) and the of enforcement costs. Whereas land and other forms of tan- ability for subsequent inventors to patent improvements gible property can be enclosed and monitored, the flow of (although they will need to license underlying patented inven- knowledge is particularly difficult to observe. For that reason, tions in order to practice their improvements) mitigate such trade secrets are notoriously difficult to protect. Digital tech- strength. Copyright law takes a more varied approach to exclu- nology and the Internet have made the products of tradi- sivity. At the most basic level, copyright law allows independent tional content industries - sound recordings, sheet music, creation of copyrighted works. The statute includes numerous movies - much more vulnerable to unauthorized distribution. exceptions, compulsory licenses, and other limitations on copy- Professor Epstein's equation of real and intellectual property right owners' rights in the service of cumulative creativity and skates over those significant differences. other social ends. Trademark law goes further yet, allowing a broad range of uses of valid trademarks by news organizations LIBERTARIAN DISCORD as well as competitors (comparative advertising) and parodists. Libertarianism exhibits profound schizophrenia with regard Trade secret law does not prohibit reverse or inde- to the concept of intellectual property. Whereas Professor pendent creation of information protected as trade secrets. Epstein sees nearly every resource - whether tangible or intan- Courts have long recognized inherent limits on exclusivi- gible - as property that should be protected by exclusive ty of intellectual property rights. In the early 19th century,Jus- rights, many libertarians have serious reservations about tice Story wove the doctrines of experimental use and fair use extrapolating property rights in tangible resources to the into the patent and copyright regimes. Jurists since that time realm of intangibles. , perhaps the most influ- have embellished upon those doctrines in the pursuit of the ential libertarian theorist of the 20th century, raised serious appropriate balance between protection and unauthorized doubts about the equation of tangible and intangible use. Thus, it is a substantial exaggeration to suggest that resources. In The Fatal Conceit, he wrote: "exclusivity" of rights in the intellectual property context mir- The difference between [copyrights and patents] and rors that concept in the real property context. other kinds of property rights is this: while owner- The transferability of intellectual property rights also ship of material goods guides the use of scarce means diverges from the real property model in significant respects. to their most important uses, in the case of immateri- The patent and copyright misuse doctrines, for example, al goods such as literary productions and technologi- limit the freedom of intellectual property owners to leverage cal inventions the ability to produce them is also lim- their rights into other markets or to inhibit innovation. ited, yet once they have come into existence, they can Trademark law imposes substantial restrictions on assign- be indefinitely multiplied and can be made scarce ment and licensing. Antitrust law plays a much greater role only by law in order to create an inducement to pro- in policing intellectual property licensing than in real prop- duce such . Yet it is not obvious that such forced erty transactions. scarcity is the most effective way to stimulate the Beyond exclusivity and transferability, the structures of human creative process. real and intellectual property differ markedly along several other critical dimensions. The PRM generally believes that Along those lines, several libertarian theorists see scarcity, most, if not all, tangible resources should be owned. Yet intel- and not the act of creation, as the fundamental justification lectual property law tends to operate from the opposite default for property rights. They view the recognition of property-type justifies intellectual property protection and rights in intellectual creativity as inhibiting the freedom of intellectual property rights should only be created to the others to use tangible resources and to engage in free expres- extent needed to override appropriability problems. Patent law sion. They worry that intellectual property impedes the excludes protection for abstract concepts and scientific prin- process of creative destruction that moves society forward. ciples. Copyright law does not extend to unoriginal compila- The concern over such freedom took root within the com- tions, even when they require substantial effort. Patent and puter programming field in the 1980s. Prior to that time, com- copyright aspire for knowledge to be unowned - in the pub- puter programmers enjoyed largely unfettered freedom to use lic domain - after their term has expired. The same cannot and adapt computer code. Competitive pressures, however, led be said for tangible property systems. computer vendors to assert greater control over the use of soft- A further structural difference between real and intellectual ware. Such restrictions spurred , a researcher property relates to the nature of boundaries and the implica- in the Artificial Intelligence Laboratory at the Massachusetts

HeinOnline -- 30 Regulation 40 2007-2008 40 REGULATION FALL 2007 Institute ofTechnology, to develop a technical and legal strat- intervention. As ecologists and scholars from Pinchot to egy aimed at restoring freedom to use and adapt computer Leopold to Sax have emphasized, however, the interdependen- code. That effort grew into the open source movement, a col- cy of land and other natural resources cannot be denied and laborative production and design framework that eschews such interdependency justifies a governmental role in resource proprietary restrictions on innovation. Over the past decade, policy. The case for governmental intervention and collective a phalanx of "cyberlibertarians" has questioned the role of limitations on land and resource use expands with the pressures intellectual property in cyberspace. of population density and resource use, collective interests in Thus, libertarians are deeply divided on whether, and in resource management and stewardship, and the accretion of sci- what circumstances, intellectual property recognition is jus- entific knowledge about human impacts on ecosystems. Bring- tified. Professor Epstein cannot claim the libertarian mantle ing intellectual property into the "property tent" will call atten- on such questions. tion to the interdependency conception of resources. Several characteristics of intellectual resources and the POLITICAL DIFFERENCES nature ofinnovation bear this out. First, the cumulative nature Stepping away from the above philosophical issues, a number of innovation means that almost all are linked to of interesting political dynamics surround intellectual prop- other innovations to some degree. Inventors today "stand on erty and the PRM. Below are comments on some of those the shoulders of giants" in pushing the frontiers of science and dynamics. technology. A similar phenomenon connects expressive cre- The PRM closely aligns with conservative, anti-government ativity. Authors, artists, and musicians build on and respond Republican politicians and political action groups. Intellectual to the creativity of those who came before. Therefore, intel-

The property rights movement is too limited and grounded in absolutist ideology to support the needs of a dynamic intellectual property system.

property owners, by contrast, reflect a much wider range of lectual property policy correctly resists the conception of intel- political stripes. Information technology companies are rela- lectual resources as discrete and insular. Intellectual resources tively agnostic regarding political allegiance, whereas the phar- are inherently interdependent. In this way, intellectual maceutical industry has been more aligned with the Repub- resources come closer to the Leopoldian conception of the lican Party. Content industries have long maintained closer land resource as being a web of interrelated elements than it ties with Democratic lawmakers and administrations. Holly- does to the PRM conception of every parcel as an island. wood producers, directors, and actors have generally favored Granting strong, exclusive rights to inventors and authors rests Democratic politicians and causes - such as the environ- on unrealistic optimism about transaction costs. Coasean mental movement. bargaining is unlikely to provide the optimal usage and The foregoing suggests that the property rights movement advance of knowledge in all circumstances. and intellectual property interests are unlikely to build deep That is not to say that property rights have no role to play or stable political ties. Although they both see "property in promoting progress. They play an essential role, but care rights" as key to their future, their conceptions differ marked- must be taken to tailor the scope of protection, rights, and ly. The PRM's absolutist view of property rights contrasts with remedies to particular creative contexts. Dogmatic belief in the much more flexible and pragmatic needs of a dynamic and the most extensive bundle of property rights overlooks effective intellectual property rights system. much of the challenge of spurring technological and expres- sive creativity. PROTECTION OF REAL PROPERTY Second, the optimal system for promoting creativity Will trying to expand the "property tent" to include intellectu- changes with society and technology. The optimal system for al property promote the PRM'S goals of strengthening proper- promoting traditional pharmaceutical innovation might not ty rights and minimizing government interference with free be appropriate for genomic research. Similarly, the appropri- markets and individual liberty? Conceiving of intellectual prop- ate balance for copyright protection in the era of mechanical erty and real property in the same frame of reference seems more reproduction of works of authorship might not be optimal for likely to lead in exactly the opposite direction from where the the digital age. Further, the digital age will continue to evolve, PRM seeks to go that is, the notion that individual land requiring adjustments in the intellectual property system. parcels can be viewed as discrete islands without any ecological The need for legal rules and institutions to adapt to such or social interdependency that might justify governmental dynamism will push against the PRM's static conception of

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property rights. The need to evolve intellectual property sys- tell how strongly intellectual property rights will be enforced, tems could be hampered by an overly restrictive interpretation although early lower court decisions applying eBay suggest of the Takings Clause. that a shift away from near-automatic issuance of injunctions Third, the trend of digital technology toward greater col- in patent cases is underway. laborative creativity and costly enforcement seems unlikely to Thus, the growth of intellectual property seems unlikely to support traditional conceptions of ownership and control. A support the PRM's core agenda. Intellectual property has growing number of successful business models on the Internet never fit the real property mold particularly well and the downplay proprietary rights and use ancillary methods for inherent attributes of intellectual resources as well as the deriving revenue. We increasingly see open source development increasingly interdependent nature of information ecosys- of infrastructure, advertising-supported content and services, tems points away from the PRM's conception of property. By and keyword advertising. The debate over "network neutrality" expanding the property tent to encompass intellectual prop- parallels debates over public provision of highways and other erty, property rights enthusiasts run the risk of diluting the resources. Because of the inherent nature ofnetwork resources, distinctive attributes of real property that brought it special the PRM will face an increasingly uphill battle trying to colonize attention at the founding of the nation. Such a conception has cyberspace. Other economic models - such as open source - been on the decline and the growing importance of intellec- will undoubtedly play a major role in this domain. tual property seems likely to hasten that trend. As Justice Witness the resolution of eBay v. MercExcbange. At oral Benjamin Cardozo remarked in describing the development argument, the property rights rhetoric seemed to attract the of water rights in the American West, "Here we have the con- attention ofJustice Scalia: scious departure from a known rule, and the deliberate adop- tion of a new one, in obedience to the promptings of a social and the [Wje're talking about a property right here need so obvious and so insistent as to overrun the ancient property right is explicitly the right to exclude others channel and cut a new one for itself." The rise of intellectual from use of that. That's what a patent right is. And all property, like water resources, highlights both the complexi- he's asking for is give me my property back. ty and interdependence of resources in modern societies. In the end, however, even the Supreme Court's most stal- Efforts to shoehorn legal protection for such resources into wart property rights defenders resisted the effort to pull intel- the real property mold will undoubtedly fail and may well has- lectual property into the traditional property tent. In a unan- ten the demise of the rigid conception of private property imous decision authored by Justice Thomas, the Court ruled rights in land and other tangible resources. that injunctions should not be presumed in patent cases; rather courts should exercise equitable discretion in deter- CONCLUSION mining relief ChiefJustice Roberts's concurrence, joined by The property rights movement is too limited and grounded Justices Scalia and Ginsburg, no doubt gave the PRM some sol- in absolutist ideology to support the needs of a dynamic, ace by noting that the "long tradition of equity practice" of resource-sensitive intellectual property system. It is not par- granting injunctive relief in the vast majority of patent cases ticularly helpful to think of real and intellectual property as upon a finding ofinfringement reflects "the difficulty of pro- "structurally unified." To the contrary, the landscape of intel- tecting a right to exclude through monetary remedies that lectual property itself is quite variegated. Functionally-ori- allow an infringer to use an invention against the patentee's ented property rights analysis can be useful to legal and pol- wishes." ButJustice Kennedy, in a concurrence joined byJus- icy debates, but property rights rhetoric is misleading tices Stevens, Souter, and Breyer, offered a more nuanced and philosophically, historically, and functionally. Suggesting that flexible approach toward the exercise of discretion in enforc- "intellectual property" must be treated as part of a monolithic ing intellectual property rights by emphasizing the particular "property" edifice masks fundamental differences and dis- characteristics of business method patents. Only time will tracts attention from critical issues. [

Readings

a "Against Intellectual Property," by N. Entitlements in Information," by Henry E. *The Economic Structure ofIntellectual Property . JournalofLibertarian Studies, Smith. Yale Law Journal,Vol. 116 (2007). Law, by William M. Landes and Richard A. Posner. Cambridge, Mass.: Harvard Vol. 15 (2001). * "Intellectual Property Law," by Peter S. University Press, 2003. * "Copyright and Incomplete Menell and Suzanne Scotchmer. In Handbook Historiographies: Of Piracy, Propertization, ofLaw and Economics, edited by A. Mitchell * "The Property Rights Movement's Embrace and Thomas Jefferson," by Justin Hughes. Polinsky and Steven Shavell. Amsterdam, NL: of Intellectual Property: True Love or Southern California Law Review, Vol. 79 (2006). Elsevier, 2007. Doomed Relationship?" by Peter S. Menell. Ecology Law Quarterly, Vol. 34 (2007). a "Do Patents Work? The Empirical Evidence *"Intellectual Property: Old Boundaries and that Today's Patents Fail as Property and New Frontiers," by Richard A. Epstein. * "The Structural Unity of Real and Discourage Innovation, and How They Indiana Law journal, Vol. 76 (2001). Intellectual Property," by Richard A. Epstein. The Progress & Freedom Foundation, Aug. Might Be Fixed," by James Bessen and * "Property, Intellectual Property, and Free Michael Meurer. Forthcoming, 2008. 21, 2006. J. Riding," by Mark A. Lemley. Texas Law w"Intellectual Property as Property: Delineating Review, Vol. 83 (2005).

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