Introduction to Intellectual Property

Prof Merges1.12.09

Logistics

Course website:

http://www.law.berkeley.edu/institutes/bclt/students/2009_spring_intro_ip.htm

ASP Sessions

• Wednesdays 8:45 – 9:45, Booth Auditorium

• Review problems, ask questions, nail down concepts

• As close to mandatory as imaginable

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)

Locke’s 2nd Treatise – p. 2

• “the earth and all inferior creatures be common to all men . . .”

•What might this mean?

Locke’s 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 . . .”

Locke’s 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

Waldron’s 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

Locke’s 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

Locke’s 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

labor] is once joined to, at least 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

Locke’s “Charity” Proviso

• 2nd Treatise, Paragraph 42:

–“title to so much out of another’s 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 another’s labour; if he did it is clear he desired the benefit of another’s pains . . .”

-- 2nd Treatise, ¶ 33

Wendy Gordon: IP’s 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

• Hegel’s chair

Appropriation (cont’d)

• 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

Jeremy Bentham (1748-1832)

“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 whose interest is in 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, The Concept of Property in the Digital Era