Mark A. Lemley (Stanford Law School) has posted Faith-Based Intellectual Property on SSRN. Here is the abstract:
The traditional justification for intellectual property (IP) rights has been utilitarian. We grant exclusive rights because we think the world will be a better place as a result. But what evidence we have doesn’t justify IP rights. Rather than following the evidence and questioning strong IP rights, more and more scholars have begun to retreat from evidence toward what I call faith-based IP, justifying IP as a moral end in itself rather than on the basis of how it affects the world. I argue that these moral claims are ultimately unpersuasive and a step backward in a rational society.
Important statement from Lemley on an important topic. Highly recommended. Download it while its hot!
My respect for Lemley and his work is enormous, and there is much value in this short essay. But I must confess that I find Lemley's mode of argument against non-consequentialist justifications for intellectual property a bit odd. Lemley argues that the classic figures in the social-contract tradition (for example, Locke and Rawls) did not themselves discuss IP. This is a version of the argument from authority (perfectly valid when discussing legal issues where there is "authority" from the internal point of view), but simply fallacious as an approach to moral and political philosophy. And Lemley makes an ad hominen argument that the advocates of non-consequentialist justifications are motivated by "faith," but this kind of argument is a classic informal fallacy. What Lemley fails to do is to engage the arguments on the merits in a way that reflects the landscape of contemporary moral and political philosophy. Here is one way of getting at the importance of the issues that Lemley fails to engage. If consequentialism does not provide a true or correct moral theory, then it simply cannot be the case that the justification for intellectual property stands or falls solely on consequentialist grounds. There is certainly disagreement about the current state of play, but it would surely to be an error to say that consequentialist is considered to be uncontroversially true.
Both the advocates and opponents of non-consequentialist justifications for IP must make the arguments on the merits. And this will require serious engagement with the best contemporary moral and political philosophy--there is no way around the hard work that has to be done. Kenneth Himma's work represents a start on these issues: his "The Justification of Intellectual Property: Contemporary Philosophical Disputes" provides a concise and elegant point of departure.
