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September 17, 2004


I sound pretty anal in this comment, and I apologize in advance.

Real quick, you said: "Perhaps his “well” (actually a club good or a rivalrous good)...". I don't think that's correct. A real-world well isn't a club good or a rivalrous good, nor is it a club good and a rivalrous good. It is just a club good. A club good is nonrivalrous up to a certain threshold, and then it becomes rivalrous. A well (or movie theater, which is the example I like better) is a club good because it remains nonrivalrous until too many people show up. Just wanted to clear that up.

John, Tom did say, "his well" - it wasn't a real world well. Volokh assumed conditions that made his well nonrivalrous. But he didn't explain why his well, a tangible property, was nonrivalrous. All we know is that the well had a huge water table, so that the water supply could not be depleted by the farmers. But what about the access threshold? Maybe the population of farmers is small enough that the access threshold will never be reached. Or maybe the well is a huge well, so that all farmers could draw water from the well simultaneously. Because we have to assume many unrealistic conditions, his analogy between IP and tangible property is not as strong. But going beyond this technicality, I don’t think anyone will argue with the conclusion that there has to be some right to exclude as incentive to create.

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