83 Tex L. Rev. 1031 (2004-2005)
Property, Intellectual Property, and Free Riding

handle is hein.journals/tlr83 and id is 1049 raw text is: Property, Intellectual Property, and Free Riding
Mark A. Lemley*
Intellectual property protection in the United States has always been
about generating incentives to create. Thomas Jefferson was of the view that
[i]nventions... cannot, in nature, be a subject of property; for him, the
question was whether the benefit of encouraging innovation was worth to
the public the embarrassment of an exclusive patent.' On this long-standing
view, free competition is the norm. Intellectual property rights are an excep-
tion to that norm, and they are granted only when-and only to the extent
that-they are necessary to encourage invention. The result has historically
been intellectual property rights that are limited in time, limited in scope, and
granted only to authors and inventors who met certain minimum
requirements. On this view, the proper goal of intellectual property law is to
give as little protection as possible consistent with encouraging innovation.
This fundamental principle is under sustained attack. Congress, the
courts, and commentators increasingly treat intellectual property not as a
limited exception to the principle of market competition, but as a good in and
of itself  If some intellectual property is desirable because it encourages
innovation, they reason, more is better. The thinking is that creators will not
have sufficient incentive to invent unless they are legally entitled to capture
the full social value of their inventions. On this view, absolute protection
may not be achievable, but it is the goal of the system.
The absolute protection or full-value view draws significant intellectual
support from the idea that intellectual property is simply a species of real
property rather than a unique form of legal protection designed to deal with
* © 2005 Mark A. Lemley. William H. Neukom Professor of Law, Stanford Law School;
Director, Stanford Program in Law, Science & Technology; of counsel, Keker & Van Nest LLP,
San Francisco, California. Thanks to Amitai Aviram, Tom Bell, Yochai Benkler, Anupam Chander,
Vince Chiappetta, Julie Cohen, Dick Craswell, Tino Cuellar, Brett Frischmann, Michael Goldhaber,
Rose Hagan, Brad Handler, Alan Isaac, Mark Kelman, Glynn Lunney, Mike Madison, Mike
Meurer, David McGowan, Alan Morrison, Craig Nard, Kevin Outterson, Mitch Polinsky, Arti Rai,
Eric Rasmusen, Tony Reese, Pam Samuelson, Erich Schanze, Richard Stalman, Stewart Sterk, Jeff
Strnad, Eugene Volokh, Spencer Waller, and participants at a workshop at Stanford Law School for
comments and discussions that have fundamentally changed (and hopefully improved) this Article.
1. Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in BASIC WRITINGS OF
THOMAS JEFFERSON 708, 712-13 (Philip S. Foner ed., 1944), quoted in Graham v. John Deere Co.,
383 U.S. 1, 8-9 & n.2 (1966). There are other nonutilitarian theories of intellectual property,
primarily based on Locke and the natural law tradition, though it is worth noting that Locke himself
spent plenty of time on utilitarian rather than desert-based justifications for property. See, e.g.,
Richard A. Epstein, The Utilitarian Foundations of Natural Law, 12 HARV. J.L. & PUB. POL'Y 713,
733-34 (1989); Seana Valentine Shiffrin, Lockean Arguments for Private Intellectual Property, in
ed., 2001).

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