In his analysis of Locke’s sufficiency proviso, Professor Merges takes a minor detour to confront an argument raised by Wendy Gordon. He paraphrases an article of hers which highlighted circumstances under which a creator’s appropriation of what he himself has added to the public domain can violate Locke’s sufficiency proviso. Glossing her argument, Merges introduces the example of the Prodigious Waterbearer—an individual who toils to raise the water level of a lake, only to then withdraw his contribution and return the lake to its original status. Though the Waterbearer of this example would merely be appropriating the product of his own labor, he would still deprive others of “as much and as good” as he had access to originally, because members of the community may have come to rely upon the altered geography of the lake.
While expressing general approval for Gordon’s core thesis, Merges sharply confronts the attempt by some scholars to extend her reliance argument into a broadside against expansive individual creators’ rights. In particular, he asserts that (1) few works actually implicate reliance concerns and (2) there are “significant legal and practical limitations on IP owners who attempt to remove or pull back their works from the common stock.”[1] He later lists these limitations as including “First Amendment principles, IP doctrine, self-interest, and enforcement costs.”[2] However, as Professor Merges himself later implicitly recognizes, these objections are sapped of force in the online and software contexts.
As I see it, each of these contexts is typified by an abundance of standards necessary for interoperability, a repetition of standard software patterns, and the widespread use of equivalent algorithms. Time and again we’ve seen Prodigious Waterbearers engaging in precisely the behavior that Professor Merges dismisses as a rarity.[3] This is hardly a novel point: without standards, the Internet would grind to a halt. Indeed, in his discussion of “disproportionate leverage,” Professor Merges recognizes the risk of inequity posed by such practices.[4]
Given the abundance of works that implicate reliance concerns in the Internet/software context, we must weigh heavily upon the “significant legal and practical limitations on IP owners” if we wish to save this broad swathe of intellectual property from violating the sufficiency proviso. Where does this leave us? Clearly, it demands recourse to a broader literature assessing whether these restraints on IP owners are up to the task. More generally, though, it seems to chip away at the validity of Merges ecumenical resolution to the debate over conflicting fundamental principles in intellectual property. We need legal limitations (“IP doctrine”) that are tailored to prevent a widespread violation of Locke’s sufficiency proviso—a key figure in Merges’s fundamental principles. However, those limitations are informed not by Lockean provisos, but rather by the Rawlsean mid-level principles—in this case primarily proportionality and efficiency. I would be surprised if legal limitations designed to accommodate mid-level principles were effective in responding to these deeper Lockean concerns.
[1] Robert P. Merges, Justifying Intellectual Property 55.
[2] Id.
[3] See, for example, Unisys’s attempts to profit from the GIF standard; Phil Katz’s unsuccessful move to patent the widely used zip file format; intellectual property complications surrounding the asf and mp3 standards.
[4] See the discussion on page 131 of the Supreme Court’s rejection of patent ambushes, in which patentees seek to extract fees from companies straitjacketed by their foolhardy investment in patented standards. See also page 150, in which Professor Merges references earlier publications in which he has decried similar attempts to exert “disproportionate leverage.”
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