Professor Merges' discussion of Locke, Kant, and Rawls left me conflicted: on the one hand, I appreciated the dive into the past and the refreshing survey of these three great thinkers; I also admire Merges' ambition of trying to reframe the modern debate surrounding IP law and find answers at the foundational level; but, in the end, I was left with the same questions my classmates have had. Like Mr. Shaw, I wonder whether Merges isn't simply trying to shoehorn his theory of intellectual property into the historical works by cherry-picking ideas. Like Mr. Ni, I question whether Professor Merges' quest to find foundational principles for IP law is worthwhile.
While I must confess that I am not sufficiently familiar with the works of Locke, Kant, or Rawls, I kept getting the impression that Merges was overstating the relevance to intellectual property of the 17th and 18th century philosophers, by taking a fair amount of latitude in interpreting the works of Locke and Kant. This was confirmed by Merges' own occasional confessions that Kant's work isn't really focused on property at all. Mr. Shaw, who seems much more familiar with Locke's work than I am, aptly observed that the context in which the Second Treatise discussed property is "important because it presents a plausible explanation for Locke's theory of property rights." Merges does not even mention this context.
What bothered me most is that, already in the introduction, Merges essentially tells us that the discussion of foundational principles is not relevant when it comes to shaping IP law from a policy perspective… at least insofar as we are stuck with an existing IP law framework. As a result, I was wondering what the point of the section was before I even started reading it. This was exacerbated by the impression described above that Merges was really only justifying his own theory of IP law through the works of great philosophers.
Mr. Ni states in his post that he is what Merges would call a "skeptical positivist." I'm not sure what i was before, but after reading Merges' discussion, I think I would put myself in the same category. If the "foundational principles" used to justify intellectual property are not relevant to the normative debate of how we should make IP law policy, I'm not sure why we bother to come up with them. I would also probably reject Merges' position that efficiency is only a midlevel principle, and cannot serve as a justification of a system in and of itself. Perhaps I have been at this school too long. Who was my Elements professor?, I hear you asking.
I would however like to respond to the argument Mr. Ni makes: Mr. Ni takes the position that "intellectual endeavors" should not entitle one to property rights over the fruits of those endeavors. While I appreciate Mr. Ni's illustration through the example of China, I do not think it warrants the conclusion he makes.
Mr. Ni uses the example of China, where "everyone recognizes that IP law does not exist" (apparently because the system seems broken) yet innovation continues. But, for the following reasons, I am not sure that the mere observation that innovation exists supports Mr. Ni's conclusion:
- First and foremost, as Merges suggests, we don't actually have the tools to measure the effects of IP law on innovation. Who is to say that, were China to have a stronger IP law, it wouldn't in fact lead to even *greater* innovation? Simply because the country is innovating does not mean it has the best system.
- Second, Mr. Ni suggests that the government is at the root of a significant chunk of the innovation in China. Perhaps again in Chicago fashion, I am skeptical of the government's ability to decide what is most desirable, and a strong IP law allows the market to more efficiently make these decisions.
- Third, Mr. Ni observes that the "critics also fail to recognize that people guard against theft of their inventions." Yet this observation that people guard against theft of their inventions (I am assuming through secrecy measures) neglects to consider the cost of guarding against theft. If the cost of preventing others from copying is so high as to exceed the cost of enforcing a workable legal system, perhaps it is very inefficient.
In conclusion, while I enjoyed reading about great philosophers, Merges' discussion of his foundational principles left me skeptical. Merges' discussion on midlevel principles, although much shorter, seemed to me much more important, and I look forward to the second half of the book, where I hope to find a more practical discussion of IP law.
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