Author(s): Peter S. Menell
Abstract: The Supreme Court’s decision in eBay v. MercExchange brought into focus whether intellectual property policy should follow reflexively in the wake of tangible property doctrines or instead look to the distinctive market failures and institutional features of intellectual resources. Professor Richard Epstein argues in a recent article that “virtually all of the current malaise in dealing with both tangible and intellectual property stems from the failure to keep to the coherent rules of acquisition, exclusion, alienation, regulation, and condemnation that are called for by the classical liberal system . . . .” Epstein purports to validate what he calls the “carryover hypothesis”: that principles governing tangible property “do, and should, influence the growth of intellectual property law,” and that apart from durational limits on patents and copyrights, there are essentially no significant departures from the private property mold needed to optimize intellectual property. This article responds to Epstein’s premises, framework, and analysis and provides a broader and richer analytical framework for promoting innovation and creativity in the digital age. In so doing, it demonstrates that intellectual property does not and should not resemble Professor Epstein’s idealized classical liberal cathedral. To the contrary, “disintegration” characterizes the intellectual property landscape and hewing to a classical liberal private property paradigm overlooks valuable prescriptions for the evolution of the intellectual property field. While the institution of private property that has developed for tangible resources provides valuable insights into how to encourage efficient economic development, it is not a panacea for all resources, contexts, and societies. Careful consideration of the characteristics of intellectual resources, comparative institutional analysis, and empirical research provide the keys to promoting innovation and creativity.
Keywords: intellectual property, patents, property, copyrights, comparative institutional analysis