Drawing on Kant, Locke, and Rawls as well as contemporary scholars, Merges crafts an original theory to explain why IP rights make sense as a reward for effort and as a way to encourage individuals to strive. He also provides a novel explanation of why awarding IP rights to creative people is fair for everyone else in society, by contributing to a just distribution of resources. Merges argues convincingly that IP rights are based on a solid ethical foundation, and—when subject to fair limits—these rights are an indispensable part of a well-functioning society.

Harvard University Press (forthcoming 2011)

Lastly, the paper engages with the literature about the implications of the legalization of the global trading regime. The case study offered here suggests that legalization cannot simply be identified, as some prominent trade law scholars have argued, with the substitution of politics for principle, and with the leveling of power differences between states. It also suggests a new perspective on the debate over whether the WTO has a “constitutional” form, and if so, what this means. To date, those who claim a constitutional nature for the WTO have identified that nature with a move beyond politics. The analysis offered here suggests that if the WTO has a constitutional nature, it lies in its capacity to mobilize and channel, rather than to suppress or transcend, political disagreement.

Producing new pharmaceutical products – and then verifying their effectiveness and safety – is both expensive and risky. Substantial financial incentives are essential to induce firms to engage in this activity. The current patent system provides those incentives by empowering the firms that develop novel and nonobvious pharmaceutical products to prevent others from making, using, selling, or importing those products. Armed with that authority, the firms are able to sell the products for prices much higher than the costs of manufacturing them. The resultant profits provide the carrots necessary to prompt the firms to engage in the inventive activity in the first instance.

A prize system would work quite differently. Instead of authorizing drug developers to exclude competitors, the government would pay successful developers. Other firms, including generic drug manufacturers, would be free to make and sell the drugs in question. The resultant competition would keep drug prices close to the modest costs of manufacturing them. The money necessary to run such a system would come, not from consumers (or their insurers), but from taxpayers.

Would a prize system of this general sort be better than the patent system? More to the point, would it be more effective in alleviating the health crisis in the developing world? A substantial body of literature addresses those questions. In this paper, we marshal and critically evaluate that literature – and add to it a number of new arguments of our own.

The discussion is organized as follows. In Part I, we explore the major potential strengths and weaknesses of prize systems. In Part II, we consider how a prize system focused on the production of drugs and vaccines aimed at communicable diseases might be designed so as to capitalize on its strengths and mitigate its weaknesses.

The courts and the Patent Office successfully navigated the line between technological and non-technological fields for over two centuries. Patent systems throughout the world continue to do so. Reestablishing technological advance as the touchstone for patent protection in the United States will help to restore confidence in, the efficacy of, and the logic of this vital institution.

This article introduces and articulates the copyright atomism concept. It then places atomism in historical and doctrinal context by documenting copyright law’s encounters with proliferated, distributed, and fragmented copyright ownership from medieval monasteries to the Internet age. This history demonstrates the enduring relevance of anxiety about atomism within copyright policy, highlights countervailing concerns, and provides a framework for thinking about how to alleviate the unfortunate contemporary consequences of atomism - and how not to.

Although servitudes are a familiar feature of contemporary real property law, they have long encountered judicial skepticism that has generated a host of doctrinal complications. This skepticism has been even more pronounced in the context of servitudes applied to items of tangible personal property. But it finds little expression in the current contractual approach to interpreting licenses attached to intangible products.

In this article I develop a comprehensive account of the evolving jurisprudence of servitudes as applied to both land and personal property, identifying the sources of traditional servitude skepticism in order better to evaluate the new generation of running restrictions on intangible informational goods. I apply the lessons I draw from the old servitudes to paradigmatic examples of contemporary licensing practices - including Microsoft end-user license agreements, the Free Software Foundation's General Public License, and Creative Commons licenses. The lessons I draw from the old servitudes bring the problems - and also the promise - of these new servitudes into sharp focus, providing a new framework within which to analyze emerging electronic commerce practices while contributing doctrinally - and historically-grounded insights into the ongoing debate about the proper relationship between intellectual property and the public domain.

The Article closes by suggesting some implications of this point, which should be of interest to those who design legal institutions and who engage in social mobilization. Most intriguing, perhaps, is the role it suggests that law may play in the creation of global publics and polities.

One way this phenomenon has emerged in the physical world is in the form of non-possessory property interests called "conservation easements."4 A landowner who sells or donates a conservation easement, typically to a government entity or a non-profit organization devoted to conservation, remains in possession of her land but is required, along with successive owners, [*pg 25] to use the land only in ways that are consistent with the terms of the easement.5 For example, a conservation easement might require that land be maintained as a wildlife habitat, or that it be open for outdoor recreation by the public, or that it be preserved as open space, free of buildings that might interfere with the public's scenic enjoyment of an area. The goal is to promote specific conservation purposes6 by severing the right to possess land from the right to use it in ways that disserve those purposes.

In the cultural context, advocates for a rich and expanding public domain are increasingly deploying voluntary intellectual-property-based techniques to achieve their goals.7 Most notable to date have been the efforts of the Free Software Foundation (FSF) to promote the use of the GNU General Public License (GPL), a software license that allows free copying and adaptation of copyrighted computer software, but only on the condition that resulting copies and adaptations are licensed on the same generous terms and accompanied by their source code.8 Thousands of software programs, including the Linux operating system, are licensed under the GPL.9 Recently, the nonprofit Creative Commons has promoted similar licenses for other types of creative works -- photos, film, music, et cetera.10

In essence, these licenses separate the right to copy and adapt copyrighted works from the right to exclude others from the benefits of further copying and adaptation -- much as conservation easements separate the right to possess and enjoy land from the right to deny the public its potential conservation benefits. Although works covered by the GPL or Creative Commons licenses are not technically in the public domain (at least as narrowly defined to include only those works that are not subject to any intellectual-property-based [*pg 26] restrictions),11 they are available to the public for many uses that copyright law would otherwise forbid, just as works covered by conservation easements may be open to the public -- or at least dedicated to purposes that ultimately benefit the public -- in ways that private property typically is not.12

Conservation easements have been praised for "conform[ing] to the general American desire for non-compulsory, voluntary solutions to land use problems . . . ."13 Efforts to harness intellectual property rights to promote open access to creative and innovative works have similarly been lauded as "invigorating the public domain with a new dynamism stemming from private action."14 But there have long been critics of conservation easements,15 and the recent property turn in cultural environmentalism has begun to encounter criticism of its own.16

Conservation easements typically violate several common-law rules governing the formation and enforceability of non-possessory interests in land. Although the common-law obstacles have been eliminated by state statutes authorizing conservation easements, some critics have challenged the wisdom of those statutory authorizations, arguing that the common-law rules served important purposes. Two justifications for the common-law rules are central to this discussion: first, ensuring notice to future landowners and affected third parties; and second, preserving the flexibility necessary to make wise resource-use decisions in the future. These justifications resonate, more generally, with a growing literature praising standardization and consolidation of property rights.17 Conservation easements -- which complicate and fragment property [*pg 27] rights in land -- are in tension with those ideals. Critics argue that the GPL and Creative Commons licenses are as well.18

This article considers these tools of cultural environmentalism in light of objections to conservation easements and more general concerns with complicated and fragmented property rights. It concludes that the cultural context does present problems analogous to those encountered by conservation easements, but that the problems stem in large part from the background law of copyright. The lessons gleaned from the conservation easement experience can usefully be applied to improve and shape the future development of the GPL and Creative Commons licenses. But they might also help to solve some of the problems caused by copyright law itself.

Link: http://www.law.duke.edu/shell/cite.pl?70+Law+&+Contemp.+Probs.+23+%28spring+2007%29

Our analysis gives rise to an ethical problem: most of the legal reforms we consider would increase the already significant extent to which the cost of developing new drugs — including some whose principal function is to alleviate suffering in the developing world — is borne by the residents of the developed world, either as consumers purchasing patent-protected drugs or as taxpayers. Why should the law be organized in this fashion The goal of this Article is to answer that question.

The analysis proceeds in two stages. In Part I, we consider several possible reasons why developed country residents should help alleviate the health crisis in the developing world. We begin by canvassing, briefly, considerations from national self-interest. Finding these implausible and unattractive, we then consider several arguments grounded in considerations of justice, or in sentiments of mutual concern and well-wishing, that extend beyond national borders. These include arguments from historical equity, social utility, and deontological and teleological theories of distributive justice. We show that each of these frameworks or perspectives provides support for our proposals. Further, we contend that, not only do the arguments individually support our goals, but, suitably qualified, each tends to reinforce, or at least converge or “overlap” with, the others.

In the course of our analysis in Part I, we address several criticisms that have been or might be made of particular arguments we offer in support of our proposals. In Part II, we confront the following more sweeping objections to our approach: that full acceptance of the commitments we identify would impose intolerable moral burdens on the citizens of developed countries; that questions of distributive justice are properly limited to the level of individual polities; that recognition of the insights of communitarianism requires privileging the claims of the nation over the claims of the globe; that adoption of our proposals would disrupt the operation of the patent system and prevent us from achieving the important objectives it serves; and that interference with the free market in pharmaceutical products is either illegitimate or likely to do more harm than good. We contend that none of the objections, closely examined, holds up.

Part I seeks to explain why conflicts between trade secrecy law and the First Amendment have thus far been relatively rare. It discusses limiting principles of trade secrecy law that mediate most free-speech-related tensions likely to arise when someone wants to disclose information that another claims as a trade secret.

Part II suggests that more conflicts between trade secret and First Amendment interests may occur, in part because of the increased use of mass-market licenses to keep information secret that would otherwise be lawful to acquire and disclose. It considers proposals to strengthen trade secret rights in response to threats to trade secrets posed by the global communications medium of the Internet. The stronger trade secret rights become, the more likely they are to come into conflict with First Amendment interests.

Part III criticizes the California Supreme Court's decision in DVD CCA v. Bunner for, among other things, its implicit adoption of the categorical immunity theory and its reliance on DVD CCA's assertion of property rights in its secrets in rejecting Bunner's First Amendment defense.

Part IV concludes that even though preliminary injunctions in informational trade secret cases are prior restraints, they are generally justified in ordinary cases. Yet the heavy presumption against prior restraints should apply to cases in which third parties who obtained the secret without wrongdoing seeks to disclose it publicly. Part IV considers a number of other First Amendment due process issues, such as whether the burden of proof in third-party disclosure cases should be higher than in the normal trade secret cases and whether appellate review of constitutionally relevant facts should be de novo when First Amendment defenses have been raised. Part IV proposes several principles to assist courts in grappling with First Amendment defenses in trade secrecy cases.

The article asserts that Sony's generativity is due, in part, to the limited monopoly framework for analyzing copyright claims articulated by Justice Stevens in Sony, which contrasts starkly with the proprietarian framework used in Justice Blackmun's dissent.

The essay explains why, notwithstanding these reservations, I persist in believing that mapping the public domain is a worthy endeavor and something akin to the maps of the public domain provided in the essay are useful policy tools. If one aspires to preserve the public domain through an international treaty, to take one example, one will need a rich conception of this domain, and a map may be a useful tool in developing consensus about protecting the public domain through a treaty. Maps are also useful in articulating various values that different parts of the public domain serve and why preserving the public domain is in the public interest.

To clarify the proper roles of patent and copyright in protecting the fruits of intellectual labor, the Baker opinion introduced a new framework for analyzing copyright claims. It directed courts to consider whether the defendant had copied the author's description, explanation, illustration, or depiction of a useful art (such as a bookkeeping system) or ideas, or had only copied the useful art or ideas themselves. In the absence of a patent, the useful art depicted in a work, along with its ideas, could be used and copied by anyone, even in directly competing works. Any necessary incidents to implementing the art (e.g., blank forms illustrating use of the system) could likewise be used and copied by second comers without fear of copyright liability.

The Baker opinion's rich analysis of the roles of copyright and patent in protecting intellectual creations has, over the past 125 years, spawned at least eight significant copyright doctrines, including four codified in the Copyright Act of 1976, as well as a few enduring controversies.

This paper develops the case for deferential review of congressional legislation in the area of intellectual property and, at a deeper level, offers a new paradigm for understanding the Copyright Clause. We propose that from the vantage point of constitutional law, intellectual property should be treated as a form of constitutional property. Deference to congressional judgments is warranted because congressional legislation affecting intellectual property is analytically similar to congressional legislation affecting other forms of property. Courts subject congressional legislation affecting traditional forms of property to deferential review because of concerns about institutional competence and respect for majoritarian decisionmaking. These two concerns in conjunction with proper regard for holistic constitutional interpretation should also lead courts to deferential review of congressional legislation affecting intellectual property.

In developing our position, we draw on constitutional history and, in particular, the lessons of Lochner v. New York. In defense of their vision of the Constitution, the IP Restrictors and the dissenters in Eldred make claims about the original understanding that, to an astonishing extent, echo those made by proponents of Lochner-era jurisprudence. We argue, however, that these claims fail for two reasons. First, the IP Restrictors and the dissenters disregard the limited scope of judicial review at the time of the Founding. Additionally, the IP Restrictors and dissenters disregard the range of views among the Founders about monopolies.

Also much disputed is the constitutionality of database protection legislation proposed in Congress akin to the new intellectual property regime created in the EU that confers on publishers an exclusive right to control extraction and reuse of data from databases. The Court in Feist insisted that the U.S. Constitution required a creativity-based standard for copyright (and presumably for copyright-like) protection of databases. While the Supreme Court did not accept the extension of the principles of Feist for which Eldred argued, it did not abjure Feist. Hence, EU-style database protection may be unconstitutional. Eldred also suggests that higher First Amendment scrutiny may be required when assessing changes to the traditional contours of intellectual property law, such as EU-style database protection and the DMCA anti-circumvention rules, calling into question the Second Circuit's decision in Universal City Studios v. Corley. Even if such laws can surmount facial challenges to their constitutionality, the article gives examples of "as applied" challenges likely to be successful.

This essay inquires into the necessity of an updated Charles River Bridge principle for the digital era. It explores whether and when the modern state-granted exclusive franchise of intellectual property must yield to demands for competition and innovation. It also speculates about the need for an expansive doctrine borrowed from trademark law -- "technological genericide," which truncates a property right when the asset it covers becomes a technological standard essential to a significant slice of commerce. The essay recognizes that intellectual property is not quite the same as a state charter, and also that "takings" law is a far more binding restraint now than in Jacksonian times. It thus concludes with some thoughts about the potential for compensating intellectual property rights owners whose previously protected works have "gone generic."