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Working Papers

Analogies in IP: Moral Rights

(to be submitted Spring 2019)

This Article critically examines the analogies scholars use to explain the special relation between the author and her work that copyright law protects under the doctrine of moral rights. The goal of this Article is to determine “when to drop the analogy and get on with developing the” content of the relation between the author and the work.” Upon examination, that moment approaches rather quickly: none of these analogies provide any helpful framework for understanding the purported relation. At worst, they are misleading rhetorical devices used to gain support for moral rights. At best, these analogies are first attempts at describing the relation between author and her work. So I assume that analogies are valuable as starting points for thinking about the relation between the author and her work, rather than explaining the nature of the relation. Even when viewed this way, however, the analogies raise more questions than they purport to answer. Because the analogies discussed do not explain the author-work relation, scholars must look elsewhere for arguments to support moral rights.

Problems in Theory: Intellectual Property

(to be submitted Spring 2019)

This Article argues that there is no single foundational theory of intellectual property (IP) law, and that there ought not to be. Over the past decade scholars have become increasingly interested in—some might say obsessed by— “theories” of intellectual property law. They have two views. The Utilitarian View is that intellectual property law is grounded in maximizing innovation, or some other metric of economic utility. The Deontological View, on the other hand, argues that IP is grounded in non-utilitarian philosophical arguments, such as those put forward by Hegel, Locke, and Rawls. Neither view is “right.” For one thing, although IP has a constitutional basis, it does not have one coherent theory. For that reason, any attempt to “ground” IP in a single theory is bound to fail. For another, the Utilitarian and Deontological Views expect too much of their theories, or theory in general: one wishes evidence of a kind it can only partially provide; and the other wishes nonscientific claims provided, or were supported by, scientific evidence. Both overstate their claims; yet each presents useful systems of belief. What to do?

Although the conflict seems intractable, there is Pragmatic resolution. It involves three moves. First, we need to move past the idea that arguments from first principles can “ground” IP. Second, we need to drop the idea of any single coherent theory of IP. Third, we should focus our research on questions that directly relate to which theory, if any, is appropriate in particular cases. Many such questions have or are being studied, but a wide variety have not even been considered. Answers to these questions will aid courts and lawyers in arguing and deciding cases using existing legal tools. This includes tools developed by each theoretical approach.

In this light, the clash of IP theories is really just a disagreement about a problem that doesn’t exist. Both Views have useful features that can be implemented when appropriate; but neither provides (how could they?) a coherent picture that fundamentally answers questions about IP law. On a pragmatist account, law needn’t choose between competing foundational theories to resolve cases any more than one needs to choose to be a deontologist to resolve moral questions. Pragmatism proposes a monistic pluralism that has room for both Deontologists and Utilitarians. The remaining questions—questions about ends—can be resolved, probably unsatisfactorily to both Views, by compromise – but not by resort to theory.

The Unimportance of the Author in Copyright Law

Copyright law is at war with itself. On one side is the idea of the romantic author: the inspired, creative genius. On the other is the legal concept of authorship: copyright law’s expansive inclusivity in defining the author. Sometimes this internal wrangling is obvious – where computer programs themselves generate new “work” but copyright law requires human authors. Other times the fight takes places in distant corners of copyright doctrine – where copyright law must decide whether search engines and internet technologies infringe when they make copies of online content to facilitate searches. It is tempting to view the novelty in technology as creating novelty in legal disputes. But the fight is not new. History shows us that economic, technological, and legal factors have placed these two concepts in opposition before. But recent economic, technological, and legal developments threaten to break what in the past has only bent. Even as this tension increases, the allure of romantic authorship is both easy to overlook and hard to ignore. And here is the paradox: as copyright openly wages a war on the author, it continues to rely on the concept to perform routine doctrinal work. The question is, how long can it go on?

The Structure of Legal Rights

In this article I argue for a new conceptual framework that explains how law functions. This new conceptual toolkit provides a novel structure for analyzing and clarifying legal questions in a systematic way.

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