Merges has caused me to rethink how I view intellectual property law. I've never really spent time analyzing the philosophical underpinnings of property law. I always considered property law to be a pretty straightforward balancing of societal interests and the need for some type of individual rights to encourage investment and creation and all that jazz. But this is only part of the equation. Merges talks about how important it was that courts started to shift from talking about property law in terms of social utility to fundamental rights, and how the whole efficiency equation is only a midlevel principle. And I have to admit, I feel a bit foolish that I never really thought that property law might not center around this standard social utilitarian foundation before, until Merges attacks the basic assumption.
But beyond this, I had some difficulty with Merges. He talks about a lot of philosophers in a short amount of space, which was just too much for me to wrap my head around, especially given that I would have problems understanding individual philosophers he would describe before he moved on to the next difficult one.
For example, Merges talks about Locke's beliefs on property law regarding tangible property, then applies it to intangible property. Locke talks about tangible property in regards to common resources, and then individuals adding labor to raw materials to turn it into something useful. And this applies whether one is talking about turning an acorn into whatever a useful form of an acorn is, or whether one is turning some chords into a melody or some chemical formulas into a useful medication. But beyond this, I don’t see how Merges successfully analogizes the tangible and scarce physical resources Locke talks about to intellectual property’s intangible resources. And this is based on how I view intellectual property ownership. Merges says on page 67 that “ownership. . . allows the isolated individual to project his talents, opinions, and unique personality into society at large.”
Perhaps I’m just a cynic who is missing the point, but using the pop culture and Lord of the Rings and page 52’s lake example, protection of the arts seems to limit this projection. J.R.R. Tolkien died 4 decades ago, and Peter Jackson is currently working on The Hobbit films. But making a movie is a collaborative effort with all sorts of people with the power and the rights limiting the creative control that artists are able to exert, which is why the makers of Halo won’t allow the game to be made into a movie. In an era when there’s so much conglomeration among film and music and television studios, I just don’t understand how Merges is trying to get his whole autonomy in intellectual property point across when it seems to go against it. And that doesn’t even get to the other Lockean concepts I hate trouble using to “justify intellectual property.” (Though I will say, I do think the fair use discussion regarding Rawls is important when discussing music here.)
Likewise with Kant, Merges talks about how Kant is about emphasizing the marriage of “pure inspiration” with “mental toil” to create property, whether tangible or intangible (p78). And Merges says that property possession is not about grabbing stuff up as a means to an end, but the purpose of possession “is to facilitate some further use of the objects involved” (p79). I see intellectual property in terms of patent law as encouraging the opposite of this. Merges obviously has a lot more experience with patent law than I do, but every patent law case I’ve worked on seems to be about parties who patent every possible thing they can so that they can sue other people and try to get settlement money out of the people, even if they’re just patenting things that were used way before these guys came along to use it. The ability to turn the page of a PDF on a touchscreen is even a patented technology. And Merges’s discussion on costliness of enforceability and that just because has legal rights doesn’t mean they will hold up in court just didn’t work on me. Especially in an era when it can be easier for a company to just pay for licenses and judges lack expertise to uniformly and acceptably rule on a lot of very technical issues.
For me, it’s like Merges is trying to put these conceptual ideas into an area of law that I don’t see how they fit. I really struggled with the first half of this book, and I’m hoping the second half helps clarify some of these issues, but if anyone can help me understand it I would be greatly appreciative.
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