cyckV4

CHAPTER ONE
The Theories Behind Intellectual Property
Every student is familiar with the theoretical throat-clearing that often appears at the beginning
of a course—“what do we really mean by inorganic chemistry?”—never to reappear
in either the student’s understanding of the materials or on the exam. It needs to be stressed
that this chapter is not like that at all. The theories that explain the justifications for and
limitations on intellectual property get applied every day in intellectual property disputes.
The parties themselves have to decide whether or not to object to a particular use or benefit
that flows from their creations. They have to decide how to structure their activities so as to
make a profit or achieve some social goal. In both cases, the analysis of the costs and benefits
of exclusion and the economics of information covered in first section of the course are
central to the activity. And finally, if a legal dispute arises, the theoretical ideas behind intellectual
property are very much part of the picture. As a result, this chapter is devoted to
the theories behind intellectual property and the ways those theories play out in practice.
Framing: The first theme is the way that intellectual property issues are “framed,” the
analogies, metaphors and moral baselines that define the discussion. Social, regulatory
or legal disputes about information issues do not arrive in popular consciousness or
courtroom automatically “preformatted.” We have many strong, and sometimes contradictory,
sets of normative assumptions about information. It plays a vital role in:
• our conception of privacy, a term we assume to begin with informational control,
the ability to control the flow of information about ourselves, for reasons
both dignitary and instrumental.
• our conception of the public sphere of speech, free expression and debate; from
“sunlight is the best disinfectant” to “the marketplace of ideas,” our baseline
when thinking about issues we frame as “speech issues” is that the free flow
of information is both right and good.
• our conception of the efficient, competitive market. Precisely because individual
informed choice is what leads to aggregate overall efficiency, in the perfect
market, information is free, instantaneous and perfect.
• our conception of information property—the intangible information or innovation
goods that I should be able to own and control, either because that property
right will encourage others to socially useful innovative activities, or because
we think that in some deontological—duty-based—sense, the information is
simply mine—for example, because I worked hard to generate it.
Notice how these implicit normative frames are (often) at odds with each other. Privacy
is a value that will not always further the goal of free expression, and vice versa.
Think of the European “right to be forgotten” on search engines. (Though privacy may also
reinforce free speech—the anonymous whistleblower, the secret ballot.) The search for
costless instantaneous information-flow will conflict fundamentally with the postulate that
someone has to be paid for generating that information in the first place, perhaps by being
granted a property right to control that information—a contradiction that you will find to
be central in this course. And the conflicts are not just binary, or between those pairs alone.
It would be one thing if we conducted our debates by saying “should we think of
this with our ‘information property,’ or our ‘costless information’ glasses on?” “Speech