Author(s): Peter S. Menell
Abstract: The article examines the recent efforts of the Property Rights Movement to expand the “property tent” to emcompass intellectual property. In eBay v. MercExchange, a case addressing the standard for injunctive relief in patent cases, some property rights advocates argued that the Supreme Court should look to trespass and encroachment cases to establish a strong presumption favoring a right to a permanent injunction. More generally, Professor Richard Epstein has suggested that “structural unity” between real and intellectual property should guide courts and legislatures to use the real property mold in evolving intellectual property law. This article shows that the origins, philosophical foundations, and economic ramifications of real and intellectual property are quite distinct and that uncritically basing intellectual property law on a real property analogy is likely to cause more harm than good. The article also suggests that property rights advocates’ effort to expand the “property tent” to include intellectual property is likely to backfire, calling attention to the interdependency of resources and the need for a significant government role in governing allocation and use of property.
Keywords: intellectual property, property rights, PRM, government interference, federal regulation, constitutionality, tangible resources, law, philosophy, court decisions, epstein, utilitarianism, structural unity, property tent