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Intellectual Property
University of Pennsylvania School of Law
Wagner, R. Polk

Philosophy of IP

I. Ideas are Public Goods
A. 2 essential features of public goods .. where IP differs from real P.
B. All justifications for IP must deal w/the fundamental difference btwn ideas and tangible P
1. poss’n of ideas is mostly nonrivalrous \ no danger of overusing or overdistributing an idea and no danger of fighting over who gets to use it like normal P. everyone can use the idea w/o diminishing it’s value
2. IP is non extinguishable: can’t use it up
C. Ideas don’t have charac of excludability

II. Natural Rights / Lockean Rights
A. Labor mixing justification, sweat of the brow
B. Removed out of Nature

III. Personhood
A. Ownership/use of P as the basis of one’s person
B. Obj’s are closely bound up w/personhood
C. B/IP is the creation of the mind, it might be an extension of yr character and therefore will be meaningful

IV. Utilitarian / Economic Incentive
A. IP in US is fundamentally about incentives to invent and create
B. Both Const and judicial decisions ack primacy of incentive theory to justify IP
1. Const Art I §8 cl8:
a) “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”
b) A1 is a laundry list of just 12 congressional powers .. yet IP is explicitly stated
c) One reason for explicivity: prevent potential conflicts btwn diff state laws btwn patent holders and potential copiers in other states… founders wished to promote trade under a standard for the entire country that would unify the market
d) To promote the progress = util theory
C. Social costs of IP rights offset by encouragement to create and disseminate new works
1. ex social costs: prevent competition (run counter to free mkt competition) \ allow IP owner to raise the price of that work above the marginal cost of reproducing it.
D. Why protect IP?
1. on balance public will be enriched by the new and better products encouraged by IP protection
2. Innovation/expression are public goods .. drives the economy, entertainment value
3. Absent protection, these public goods will be underproduced
a) Why spend effort in developing a good if it’s not protected and others can then easily take your effort and reproduce yr product
b) Args: for profit companies follow this thinking, but there are other interests in producing work .. ex: poetry

IP & Economics

I. Economic Basis of IP

f Ideas, Wired, Mar. 1994
A. One arg: the technology is changing so fast that congress and the judicial system can’t hope to keep up, but in absence of any laws, ppl will come up w/their own practices and businesses can flourish by responding.. to an extent this can be seen today when businesses respond to what is happening by offering goods and svcs w/this in mind
B. IP laws are a “sinking ship” in the internet context
C. Does the justification/need for IP rights increase or decrease with
1. Lower costs of distribution and communication
2. Increasing velocity of information diffusion … decreases the need to IP rights
D. Barlow suggest artists/inventors get paid by working in a different business model – as one of the founders of the Grateful Dead, he promotes others ways of compensating artists for their work
1. Ex: performance.. the Grateful Dead were hugely sucessful in touring
In Barlow’s regime, who is vulnerable? … will distort the market towards performance based art