68 Chi.-Kent L. Rev. 715 (1992-1993)
Does It Matter Whether Intellectual Property Is Property

handle is hein.journals/chknt68 and id is 729 raw text is: DOES IT MATTER WHETHER INTELLECTUAL
Every now and then, the rather discrete and insular world of schol-
ars who care about intellectual property rules turns its collective atten-
tion to whether intellectual property is really property at all--or, to put
the matter consistently with the vagaries of the field, whether intellectual
property (whatever that is) is property (whatever that is) in the same
sense that other things are property (whatever that is).1 Professor Bren-
nan's rather refreshing paper2 provokes these thoughts, confusing though
they may sound, because it is another effort to ask the same question,
albeit from a different direction. I will comment not so much on his
analysis, which, for the most part, seems to me correct,3 as on some of
the implications of the debate itself.
As I said, scholars write about whether intellectual property is prop-
erty. Nobody else seems to care. Certainly practitioners and judges-the
traditional audiences for legal scholarship-are more concerned with the
proper adjustment to Section 103 of the Patent Act to take account of
university research styles than with whether what those university re-
searchers happen to discover is properly considered property.
The usual academic habit is to put down the lack of professional
concern for scholarly pursuits to the different frames of mind that are
said to characterize the academy and the profession. In this case, how-
ever, the profession may be on to something that those of us who worry
about the property problem may be missing. Perhaps it doesn't really
matter if intellectual property is property in the same sense in which
other things are property.
* William Nelson Cromwell Professor, Yale Law School. I have had the benefit of splendid
research assistance from Sayoko Blodgett-Ford.
1. See, eg., Frank H. Easterbrook, Intellectual Property is Still Property, 13 HARV. .L. &
Pun. PoL'Y 108 (1990). See also White v. Samsung Electronics America, Inc., 989 F.2d 1512 (9th
Cir. 1993), cerL denied 1993 LEXIS 3764 (Kozinski, J., dissenting from denial of petition for rehear-
ing en bane).
2. Timothy . Brennan, Copyright, Property and the Right to Deny, 68 CHI.-KENT L. REv. 675
3. I should note that I do not agree with Professor Brennan that excludability is among the
least attractive aspects of property, whether the property of which we speak is of the tangible or the
intangible variety. Excludability, in fact, is the genius of property; our willingness to presume it
rather than putting owners of most forms of property to their proof is a great advantage of our

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