Mr. Merges does a serviceable job of justifying intellectual property to an audience that grants as a premise a kind of Enlightenment-inspired liberalism. But so far, I don't think the book is very relevant to the current debate about the value of IP, given that many of IP's opponents don't identify with this liberal tradition. If a critic of IP were to show how each of the proffered justifications (via Locke, Kant, and Rawls) were problematic, Merges would apparently be left defenseless -- and in this post, I intend to do exactly that. I'll take the philosophers in the reverse order in which Merges referenced them.
Rawls
Merges' use of John Rawls to justify IP relies heavily on the idea that IP inures to the benefit of the least-advantaged. It's not clear this is in fact true. To make this claim, Merges first takes for granted that IP would be better for creative types than the absence of such a system, but IP opponents would surely contest this idea. They could point to the musicians' culture where riffs are passed along freely and unabashedly, or to Picasso's sly dictum that "Good artists borrow (ideas), great artists steal." They could point out that people have vastly greater capabilities when they are able to share their ideas with more people, or that creative types are drawn to their fields in spite of notoriously poor income prospects. Merges loves high-minded philosophical talk, but when he grounds it all on the supposed incentives to create, I can't help but think he's settling into the same wan utilitarianism he ritually bemoans.
Kant
Merges' treatment of Kant is similarly unsatisfying. He simply shoehorns all discussion of Kant's ideas of "will" into a ho-hum libertarianish conception of human motivation (again with the wan rational-actor utilitarianism!). Although he does note -- in what I think is a strong argument against IP -- that abandoning IP could lead to more cultural exchange and therefore more creativity from the "will," in order to fully assuage the IP critics, he'd have to show that the increased ease of cultural exchange in an IP-less system would be outweighed by a reduced incentive to creativity. Yet he offers no evidence on this score.
I suspect that if Merges were pressed on his Kant-related "core v. periphery" ontology, he'd admit it to be a largely illusory distinction. If one takes the view that cognition (which would presumably encompass "will") is largely embodied in an organism's environment, then the motive "core" appears to seep out into the environmental "periphery" in a way that undermines much of Merges' Kantian justification of IP, because agency is no longer located unambiguously in individuals. Of course, this doesn't mean Merges' distinction can't be a useful heuristic, but the "rights" language into which he continually falls is not amenable to such a blurring, and he's too reliant on cloistering creativity into the "core" to credibly make this counterpoint anyway.
Locke
Locke is perhaps the easiest target for IP critics, as he had a problematically-narrow view of what should be considered "labor." He didn't think that Native Americans in the 17th century were making productive use of the continent's land, and so advocated for the reappropriation of it to white settlers. We know the sad story: These colonists were ignorant of how to live within the native ecologies, and instead imported Old World agricultural practices to the New, which had predictably devastating effects on existing natural resources. Three centuries (and countless irreplaceable forests, wildlife populations, and fish stocks) later, we now realize that perhaps "nonremoval" of the land from the public domain would have been a better idea. Locke's mistake is not merely a curious artifact of history, but is instead emblematic of his philosophy's central flaw: Wielders of legal power can be expected to privilege their culture's conception of "productive work" over other conceptions that may be just as good or even superior.
Related Issues
Merges follows Locke into precisely this "our work is better than your work" trap. He has a hard time seeing the drawbacks of the current model of producing knowledge and art, where barriers to the flow of ideas often render the creative process more formulaic, less rhizomatic, and less integrated into the cultural and ethical lives of the broader population. He assumes that cultures that monetize and wall off knowledge are superior to those that resist such commodification. This assumption galls me -- especially when I remember the argument I discussed last week that humanity's most pressing evolutionary advantage is its increasing docility, which fosters a spontaneous connectedness that has been a wellspring of cooperative innovation. (I've written related thoughts about this relationship between connectedness and scientific capabilities in a blog post here.)
I'm also disappointed that Merges has so far been satisfied to talk merely about technological developments of the past, instead of trying to anticipate and prepare for the future. What would Merges make of developments in artificial intelligence, where machines have already demonstrated a kind of scientific insight? What about advances in camera and telepresence technology, which will make the experiences we share digitally more numinous and fuse our consciousnesses tighter, thereby distributing our "wills" into an ever-more-muddled "periphery"? What about facial recognition software, or the steady miniaturization of the blog platform, which together point toward a more tightly interwoven intellectual culture? Strahilevitz's book was interesting because it trained an eye on the horizon for these and other socially disruptive technologies. Given the jarring technological changes many people expect in the next decade, I worry that Merges' book is, in a way, already antiquated.
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