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6 Duke L. & Tech. Rev. 1 (2007-2008)

handle is hein.journals/dltr6 and id is 1 raw text is: DOES INFORMATION BEGET INFORMATION? DENNIS S. KARJALA1 ABSTRACT Using the language of mathematics, Professor Polk Wagner has recently argued that the impossibility offully appropriating the value of information in a rightsholder leads to the surprising conclusion that expanding the degree of control of intellectual property rights will, in the long run, increase the sum total of information not subject to ownership claims and therefore available as part of the cultural and technological base on which new growth and development can occur. Indeed, he claims that open information will grow according to the formula for compound interest, where the interest rate is 100% plus or minus a factor z supposedly related to creation incentives. This article demonstrates that Professor Wagner's mathematical analysis is simply wrong and does not lead to any of the conclusions he reaches concerning the growth ofopen information. It also shows both the difficulties and the dangers of the lay use of the language of mathematics in resolving complex social problems even if one does the math correctly. INTRODUCTION ¶i Professor Polk Wagner has argued that the impossibility of fully appropriating the value of information in an intellectual property rightsholder, such as the owner of a patent or copyright, leads to the surprising conclusion that expanding the degree of control of intellectual property rights will, in the long run, increase the total information not subject to ownership claims.2 This open information is then available as part of the cultural and technological base on which new growth and development can occur. Professor Wagner's argument is not that intellectual property rights are for limited times, so increased incentives generate more works that eventually enter the public domain, thereby Jack E. Brown Professor of Law, Sandra Day O'Connor College of Law, Arizona State University. The author is indebted to Professors Vincent Chiappetta and Aaron Fellmeth for many helpful comments on an earlier draft of this article. 2 R. Polk Wagner, Information Wants to Be Free: Intellectual Property and the Mythologies of Control, 103 COLUM. L. REv. 995 (2003). A Westlaw search reveals forty-nine citing references to Professor Wagner's article as of November 29, 2006.

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