Faith-Based Intellectual Property: A Response

Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legal academy. He frequently collaborates with colleagues, offers extensive comments at conferences, and works tirelessly to build the community. The rest of us aspire to do one fifth as much one fifth as generously.

This is necessary background to my explanation of my concerns with Lemley’s latest essay, Faith-Based Intellectual Property.¹ The essay is an edited version of the Melville B. Nimmer Memorial Lecture, which he delivered at UCLA in the fall, and it will be published in the UCLA Law Review. The best summary of the argument is Lemley’s own:

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. (1)

The essay makes six notable claims, all of them on display in this summary. I would like to unpack the rhetoric going into them.

First, Lemley argues that “it is far from clear that IP is doing the world more good than harm.” (7) The essay devotes several extensively footnoted pages to backing up this statement. It runs through experimental, sociological, and econometric studies that consider the relationship between intellectual property law and how people actually behave. Lemley concludes that the evidence about intellectual property’s effects is “complicated” (6) and “decidedly ambiguous” (7). As he summarizes,

The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy. The studies of the behavior of artists and inventors are similarly complicated. Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so. At the same time, the money provided by IP allows the existence of a professional creative class that may be desirable for distributional reasons or because we like the sorts of things they create more than we do the work of amateurs.

In presenting this overview of the evidence, Lemley straightforwardly lays out his own epistemological and normative commitments: he is an empiricist and a utilitarian.

Second, Lemley refers to two “sides of the IP debates.” (8) One of those sides supports “expanding IP rights” (7), or at least “like[s] the status quo” (8). The other side prefers “weaker IP rights” (15).

The third claim builds on the second: only one of these two “sides” really cares about empirical truth, and it is the side Lemley is on, the side of the intellectual property skeptics. His opponents “have instead sought ways to ignore the evidence and keep on doing what they have always been doing” (7), in part by “retreat[ing] to a belief system that doesn’t require evidence at all” (8). He writes, “If you like the status quo, the very last thing you want, it seems, is to take a good hard look at whether it is working” (8), and quotes critically Richard Spinello and Maria Bottis’s A Defense of Intellectual Property Rights, which in his view “avoids the need for empirical validation” (10).

Fourth, the essay rejects all normative frameworks other than Lemley’s own. He criticizes scholars who have “jettison[ed] utilitarianism for talk of morality.” (9). He argues that non-utilitarian theories are problematic because they are “impervious” (18) to evidence, because they cannot