Usually, when we talk about copyright or patents, we focus on the utilitarian aspects of the law.  We generally discuss the merits of specific arguments in a case or the need of the author or inventor to earn a living from her work relative to the social and economic value of that work to the market.  But an ongoing debate among academics, which occasionally seeps into the blogosphere and general reportage, is the question of whether IP law is grounded in natural rights or based exclusively on utility.  Is there a natural right of ownership in the “fruits of labor” that produces a photograph or a photographic invention? Or are copyrights and patents a purely functional bargain between the state and the author or inventor in order to reap the benefits of individual genius?

It would be a mistake to assume that everyone who takes a utilitarian view of IP is an IP critic and that everyone who takes a natural rights view is an IP advocate. I know at least a few colleagues who passionately defend IP but who are skeptical of a natural rights foundation. Among utilitarians, however, there are those who consider the IP bargain a “necessary evil” that should not extend one iota beyond the achievement of the desired outcome (i.e. the delivery of works into the market), and there are utilitarians who espouse a more elastic (and perhaps less cynical) view of these laws. Suffice to say, those who hold the “necessary evil” view are unlikely even to entertain a natural rights perspective of IP and are the ones most insistent upon seeking empirical evidence of IP’s presumed value.

Professor Robert P. Merges of Berkeley Law recently published a paper entitled Against Utilitarian Fundamentalism. It is primarily a work of self-defense in response to a paper written by Professor Mark A. Lemley of Stanford Law entitled Faith-Based Intellectual Property. Lemley had proposed that some advocates of IP law’s status quo are apt to turn a blind eye to empirical data regarding efficacy, clinging instead to “faith” in IP akin to religious zealotry.  This accusation takes direct aim at Merges’s book Justifying IP, in which the author does use the word faith to affirm his belief in the purpose of IP law despite finding no conclusive evidence of its utility that would satisfy, as he says, “an unbiased jury of hardheaded social scientists.”

Of course, one problem with empiricists is that they often don’t admit to their own biases, or to the biases inherent in data (e.g., the overemphasis on standardized testing in American education); and this flaw is central to Merges’s rebuttal—that Lemley is guilty of exactly the same narrow-mindedness of which he accuses his colleague. Beginning with the premise noted above that IP law is a “necessary evil” with the purpose of producing a measurable outcome, Lemley makes a case for an empirical approach to potentially reshaping IP law as minimally as possible to achieve its utilitarian ends. He then accuses Merges (and others) of ignoring empirical evidence as follows:

“Merges refers to his ‘faith’ in IP law, and that is exactly the right word. I call this retreat from evidence faith-based IP, both because adherents are taking the validity of the IP system on faith and because the rationale for doing so is a form of religious belief. The adherents of this new religion believe in IP.”

Careful not to accuse all religious people of being irrational, Lemley labels Merges and colleagues as irrational in a religion v. science context. Merges counters thus:

“To compare nonconsequentialist IP theories to irrational, unscientific beliefs is to commit two very large errors. The first is to collapse all ‘opposing’ theories—all those not empiricist/utilitarian—into a single derogatory category. The second and larger error is to raise the empirical/utilitarian theory to the status of the one and only true path, the sole road to enlightenment.”

Lemley’s paper reflects the view that there is no natural rights (pre-political) basis for IP, which means that there is something inherently immoral about departing from utility backed by evidence. He writes…

“If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first.”

To this, Merges cites empirical research into the ethical psychology of even very young children who reveal an understanding that the first “author” of some work or possessor of some object is indeed its “owner.” He quotes one study from 2008, which says, “[C]hildren (6–8 years old) determine ownership of both objects and ideas based on who first establishes possession of the object or idea.”

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Can any natural right be “proven” by science?

My own response would be to ask Lemley, or anyone, to provide “evidence” that the free speech, which he identifies as being in conflict with IP, is a natural right itself. Should we conclude that those Framers who initially considered the Bill of Rights to be redundant did not believe in the right of speech? Or is it more accurate to say that the First Amendment is not evidence of this right so much as it is a written affirmation of what we, the descendants of western civilization, innately feel to be a natural right?

Similarly, John Locke’s 17th-century reflections on property are not evidence that modern IP should exist; they are one very smart guy’s articulation of a sensibility felt by many people other than Locke himself.  Coincidentally, Locke’s Two Treatises of Government are also a rebuttal—in that case to Robert Filmer’s over-reliance on the Bible as empirical “evidence” for the divine right of the monarch.

So, is Lemley being fair when he contrasts a “strictly utilitarian” legal principle (which he asserts IP is) with an “obvious” natural rights legal principle like free speech? I’m not sure he is because neither IP nor speech can easily claim anything but a natural right foundation, depending on how far back one is willing to look for written precedent. And one need not go back very far before both IP and speech disappear from the record as protected rights in any modern sense. So, is it not reasonable to consider that the predicate for IP may be just as natural-rights based as free speech, even if we generally prioritize the importance of the latter over the former?

This line of inquiry inspires me to ask a broader question that applies not only to IP law, but to all law:  Is it a science? Yes, law is practical and must rely substantially on relevant data; but unlike one aim of science, which is to discover origins, I would argue that it can be impossible to trace evidence back to the original rationale for a law unless one is willing to admit that the answer may be no more evidentiary than this:  because that’s how we feel about it.

Just because the application of law must stand up to the scrutiny of logic, that does not mean its predicate may not be emotion—or to use Merges’s more accurate word, deontological.* Legal scholarship looks for precedent, which even looks to Scripture in some cases. But there has to be a point at which precedent is unavailable, and the scholar, or legislator for that matter, is striving to intellectualize emotion rather than admit that collective emotion can be a perfectly valid rationale for creating a law.

What authority really dictates that “all men are created equal”? The American Declaration of Independence? Written long before all people in this country were remotely treated as equals? The Bible? Hardly. At this point in history, equality for all persons is an innate core value that is felt by hundreds of millions of people regardless of how diverse their religious, cultural, economic, and social views may be. And it is absolutely possible to feel a moral sense about such things without knowledge of any particular doctrine of record. Conversely, what if one were to assemble empirical data to reveal certain social benefits of inequality? We have citizens who think this way, so why not follow their rationales? To quote Merges …

“There are ways of reasoning that are not based on strictly empirical data. And belief in these forms of rationality does not equate to ‘faith’ in the pejorative sense. People reason in nonstrictly empirical ways about what is right, and what is wrong, and have done so for a very long time.”

Even the most mundane, utilitarian law can reflect some underlying moral principle. A local ordinance passed to install a traffic light at an intersection can begin with a communal agreement that safety, usually of children, overrides whatever inconvenience or cost will be incurred by the addition of the light. Does the community, in this case, search for empirical evidence that supporting the safety of its children achieves a broader utilitarian end in the national interest? Probably not.

The traffic light is clearly utilitarian, but the underlying rationale for installing it is a mutually-felt sense of the right thing to do for its own sake. And, as Merges points out in regard to IP law, it doesn’t actually matter if some people in the town council meeting have a completely different rationale for installing the traffic light, because they can still discuss and debate the best approach to installation with their neighbors.

Referring to what he calls “midlevel principles,” Merges uses two examples in which two IP attorneys, scholars, or legislators can easily debate and discuss all of the salient aspects of applying IP law—statutes, caselaw, etc.—without agreeing on the underlying rationale for IP’s existence in the first place. “People with divergent foundational beliefs can and do engage each other in spirited and productive policy debates. They have, in other words, much to say to each other,” Merges writes in direct response to the following statement by Lemley:

“If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.”

Aside from provoking the above question as to what extent law can fairly be called a science, Lemley’s exclusionary statement seems to assume that the “evidence” that IP “reduces creativity by others” is conclusive. Given that scholars of equal merit passionately debate this very topic, how is Lemley’s view not a leap of faith in its own right?  Like religious scripture or artistic expression, the truth in empirical study is often in the eye of the beholder; and Merges’s point is based on his observation that the evidence to-date is “inconclusive,” which is not the same as rejecting data that points in a clear direction.

With regard to IP law, as with many areas of policy, there is always a danger in going too far in any one ideological direction. Taking an overly-utilitarian view of IP can sap the spirit of the principle by treating the author or inventor as a machine to be tweaked and maximized toward his/her greatest efficiency of output. Likewise, an overemphasis of the natural right principle without empiricism could produce a kind of self-fulfilling maximalist framework—though I don’t know anybody who advocates such an approach.

Meanwhile, in the casual, public debate, people who are not trained in the law transition between the natural right and utilitarian perspective all the time without really noticing. For instance, when fans show support for a musician who doesn’t want a politician using his songs, they’re reflecting a natural rights sensibility, and one that is—ironically enough—not generally supported by copyright’s utility. This suggests that even people who don’t give IP much thought innately feel that the author or inventor is indeed the natural “owner” of a work; and to Merges’s point, this in itself does not preclude reasonable debate on the application of IP law as a matter of utility.

*Deontic – of or relating to duty and obligation as ethical concepts.

CORRECTION:  This post as originally published mistakenly identified Mr. Lemley as a professor at UCLA. His paper was published in the UCLA Law Review.

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