Robert Merges, Justifying Intellectual Property. Cambridge, MA: Harvard UP, 2011.
For all of the importance of intellectual property both to current law and to the economy more generally, there is surprisingly little work addressing its moral foundations. The default position is utilitarian, but a successful application of utilitarianism requires having detailed empirical information about the costs and benefits of complicated incentive structures on a variety of kinds of production by a variety of types of actors. Such information has been elusive at best. Robert Merges’ new book is an ambitious and innovative attempt to redress the resulting normative lacuna. Justifying Intellectual Property proceeds in three parts. In the first, Merges defends IP on Lockean, Kantian, and Rawlsian grounds. The second develops what he calls “midlevel principles” to mediate between those higher order theories and practical policies. The final part uses these tools to work through three current issues: the value of IP in sustaining a class of creative professionals, the extent to which digital property changes the IP landscape, and the extent to which patent law ought to bend to make life-saving drugs available in the developing world.
As even this extremely cursory survey should indicate, the book is of impressive scope. It is well-argued and well-written, and anybody who cares about how our normative ethical and political commitments should be reflected in IP law ought to read it. It also, as Merges is well-aware, provides some balance in the recent ethical literature on IP, a great deal of which is severely critical of the scope and strength of current IP law. Merges in no way favors an unreflective endorsement of the entire status quo, but he is much more sympathetic to IP than many of his interlocutors. As he puts it, “I disagree with the general thesis that property rights over information are a bad idea or that IP has mutated into a gargantuan, monstrous parody of its traditional moderate form. In an economy where intangible assets are more valuable than ever, IP is more important than ever” (290). In scope and ambition, then, Justifying Intellectual Property does for the justification of IP what Yochai Benkler’s Wealth of Networks does for distributed peer production. In the remainder of this review, I want to focus on some of the book’s most innovative aspects.
Merges proposes that the first element of a “workable theory of IP” is that we “proprietize creative labor” (289), and that “because of his enormous influence” (31), Locke is the right place to start. Accordingly, he argues that “Locke’s theory applies equally well, if not better, to intellectual property” than it does to real property; this is principally because “fresh appropriation from a background of unowned or widely shared material is much more common today than in the world of IP than in the world of tangible assets” (32). After arguing that invocations of Locke’s “sufficiency” and “waste” provisos are overstated (against Wendy Gordon and me, respectively), Merges turns to Locke’s discussion of charity, which he notes has “important and largely overlooked ramifications for the IP field” (32). This move marks a significant advance in the discussion of Locke and IP. For example, it allows a Lockean to dignify the claims of AIDS patients in developing countries by placing “the needy themselves … their need, and not the virtue of the giver” (275) at the center of the conversation. Of course, Merges does not immediately begin handing out medicines, and he cites evidence both that access to medicine may not be the primary cause of mortality in developing countries, and that the effects on incentives for developing future drugs need to be taken into account (281-2). One may not agree with how he balances these issues, but he is surely right that the Lockean framework provides an overlooked and productive way to think about them.