Robert Merges' Justifying Intellectual Property, or at least the first five chapters anyway, was a little frustrating. The premise sounded promising -- identifying the core princples driving the protection of intellectual property right in order to inform decisions going forward. He draws upon the works of philosophers Rawls, Locke and Rawls to explain the principles behind IP! He's going to apply them to situations in IP we're facing now! Great! Let's do it!
The problem is, I found myself left with basically the same questions I had when I started the book. How much is too much protection? What happens when these principles are at odds with each other? While the book identifies guiding principles, the hard questions seem to be left unanswered. Let's take the Kafka/Max Planck situation that many of us studied in Property --Kafka wished to have his unfinished works burned upon his death, and ordered Planck to do so. Should they be destroyed? Does not allowing this repesent an unacceptable intrusion upon Kafka's autonomy -- thereby being a potential hinderance to the development of works? Or is this a case of spoilation -- where destroying them would be a true waste? Or is this a situation where we should consider Gordon's Prodigious Waterbearers idea that he can no longer just "take back" his works because they sit there, taunting us with their potential?
The book succeeds at drawing out lines of arguments regarding why IP should and should not be protected. However, these are all arguments that have been brought up again and again. The difficult question is not what the arguments are (utilitarianism, just deserts, distributive justice, etc.) but how to deal with the difficult cases when these principles seem to conflict and choices have to be made. In this, the book has not provided much guidance in how to balance out these principles. The idea that something being done for "for the good of society" sounds great, until you realize that identifying what exactly is good for society is not clear cut.
I suspect Merges realized the difficulty of this as well. In discussing distributive justice concerns, he mentions that beyond mere medical necessity, there is an argument to be made (as put forth by Sen and Nussbaum regarding the human capabilities approach) that humans have other "needs" that constitute foundational needs that could be deemed a necessity for IP allocation purposes. However, saying that true necessity can override IP rights in some cases is the easy part -- determining what situations will warrant it is the hard part. The fact that what constitutes a true need for IP is unclear is what makes the determination difficult.
The numerous provisos and principles he providies are in some ways a get-out-of jail free card. With enough of these lines of argumant and the power of rationalization, almost any argument could be made that one thing overrides another because of some aspect, making the outcome of any particular situation unpredictable. A Legal Realist would probably argue that the outcome, though steeped in philosophical justifications, will end up being a result of very different factors such as politics and personal biases. To the extent that predictability in law is considered good, having so many principles obfuscates what the "right" outcome should be.
In the end, the first five chapters of Justifying Intellectual Property present a useful thought exercise. I am interested to see what comes next to get an idea of how application of these principles and justifications work, or if we are still basically left in the same position -- being able to understand the arguments, but still having little guidance on where to draw the lines.
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