Introduction to Intellectual

Property

Prof Merges
1.11.10
 Logistics

Course website:

http://www.law.berkeley.edu/institutes/bclt/st
udents/2009_spring_intro_ip.htm
 Two Main Themes Today

Philosophical foundations

Comparative overview: Patent,

copyright, trademark, trade
secret & other state law
 Philisophical Foundations

Natural rights theory: John Locke

Personhood theory: Hegel

Utilitarian theory: Mill,

Bentham, etc.
John Locke (1632-1704)
 Lockes 2nd Treatise p. 2

the earth and all inferior

creatures be common to all
men . . .

What might this mean?

 Lockes Theory of Appropriation

1.Nature was created for

all to share; it is a
common
 Where does labor enter into it?

Whatsoever he removes out

of the state that Nature hath
provided and left it in, he hath
mixed his labor with it, and
joined to it something that is
his own . . .
 Lockes Theory of Appropriation

1. Nature was created for all

to share; it is a common
2. We each own our body,
and the labor it produces
 this labor being the
unquestionable property of the
laborer

For Locke, it is fundamental that

these belong to the individual;
no one has a superior or
conflicting claim
Each person is born free
Jeremy Waldron, God, Locke and
Equality
Waldrons Locke

Fundamentally
liberal: a balanced
view of property

Rejects the
libertarian
Locke of the
1980s
 The is mixing idea and labor

no man but he can have a right

to what [his labor] is once joined
to . . .

Acorns and apples examples

 Lockes Theory of Appropriation

1. Nature was created for all to share;

it is a common
2. We each own our body, and the
labor it produces
3. Mixing labor with the common
yields a valid property claim
Jeremy Waldron
 Lockes Theory of Appropriation

1. Nature was created for all to share; it is a

common
2. We each own our body, and the labor it
produces
3. Mixing labor with the common
yields a valid property claim
4. Subject to caveats and provisos;
not an absolute claim
 The famous sufficiency proviso

No man but he can have a right to what [his

at least
labor] is once joined to,

where there is enough and

as good left in common for
others.
The same law of nature that does by
this means give us property, does
also bound that property too.

-- Second Treatise, 30; p. 3

 Spoliation Proviso

As much as anyone can make

use of to any advantage of life
before it spoils, so much by
his labor he may fix his
property in . . . -- p 3
 Lockes Charity Proviso
2nd Treatise, Paragraph 42:

title to so much out of anothers

plenty as will keep him [or her]
from extreme want
 3 Lockean Provisos

Sufficiency (as much and as

good left over)

Spoliation

Charity
Labor is far from an absolute claim
to title
He that had as good left for his
improvement as was already taken up
needed not complain, ought not to
meddle with what was already
improved by anothers labour; if he
did it is clear he desired the benefit of
anothers pains . . .

-- 2nd Treatise, 33
Wendy Gordon: IPs roots in restitution

"Of Harms and

Benefits: Torts,
Restitution, and
Intellectual Property,"
21 J. LEGAL STUDIES
449 (1992) also 34
McGeorge L. Rev. 533
(2003)
 Philisophical Foundations

Natural rights theory: John Locke

Personhood theory: Hegel

Utilitarian theory: Mill,

Bentham, etc.
Hegel, personhood and self-
realization
 Basic Hegelian concepts

Individual will

Autonomy (freedom to
choose and act)
 Simple version

To become fully self-realized, an

individual must be able to project
his or her will onto objects in the
external world

This requires a stable set of claims

over those objects i.e., property
rights
 Why appropriation?

Permanency: ability to return to an

object, work on it, refine it over
time

Hegels chair
 Appropriation (contd)

Control: maintain the object

in the intended state; hold it
steady, to permanently affix
the will to it
 Hegel and stages of
development

The will is ineffectual when trapped inside

the individual
Projection of the will eg via property claims
is an important step forward
Merging of individual wills into a functional,
other-regarding state is the end goal
 Labor vs. will
Labor may be the result of conscious
choice

But will is the part of us that does

the choosing; it is more an integral
part of who we are than labor
which is more a quality or product
JK Rowling
 JK Rowling:

Locke: she worked hard in drawing from a

long tradition of wizard and coming of
age tales, and so deserves copyright in her
Harry Potter books

Hegel: The writing of these books literally

helped make her who she is, or helped her
more fully realize who she really is
Dignity Interest of Creators

Kant Hegel
 Utilitarian Perspective
By the principle of utility is
meant that principle which
approves or disapproves of
every action whatsoever,
according to the tendency
which it appears to have to
augment or diminish the
happiness of the party
Jeremy Bentham
whose interest is in
(1748-1832) question: or, what is the
same thing in other words,
to promote or to oppose
that happiness."
 Utilitarian moral philosophy or
ethics can be simply described as
"the art of directing men's action to
the production of the greatest
possible quantity of happiness, on
the part of those whose interest is
in view."
John Stuart Mill
Mill argues that the
moral worth of
actions is to be
judged in terms of
the consequences of
those actions. In this
he contrasts his own
view with that of
those who appealed
to moral intuitions.
 The utilitarian perspective

The greatest good for the greatest number

Rights follow only from calculations of

collective welfare

Natural rights are bullshit on stilts

Jeremy Bentham
Landes and Posner
Breyer, The Uneasy Case for
Copyright, 84 HLR 281 (1970)
Example
Landes, W., and R.
A. Posner,
"Indefinitely
renewable
copyright." 70
University of
Chicago Law
Review 471 (2003).
System-wide, structural approach

Most commonly associated with

utilitarianism

BUT not limited to that approach

Rawls and Institutional Justice
Applying the various theories to IP
Law

Normative foundations are

important in a time of rapid
change
John Perry Barlow
 Barlow

Information wants to be free .

. .
Larry Lessig
Lessig, Free Culture
The technology that preserved the
balance of our history between
uses of our culture that were free
and uses of our culture that were
only upon permission has been
undone. The consequence is that we
are less and less a free culture, more
and more a permission culture.
I would dispute some aspects of this
empirically

Enforcement costs create de facto

legality in many areas on the
Internet
Widespread and easy waiver of
rights is an important feature of
the internet environment
Nolo Press, 2004 (464 Pages)
 Merges, Justifying
Intellectual Property
(Harvard U Press 2010)