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6 Duke L. & Tech. Rev. 1 (2006)

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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