In his Liberty Forum essay, “Why Intellectual Property Rights? A Lockean Justification,” Professor Adam Mossoff argues that Lockean property theory extends to intellectual property and provides justification for related laws.[1]

Like Professor Mossoff, I do not see a sharp dividing line between property and intellectual property. Indeed, as I have discussed elsewhere,[2] there are significant similarities between the goods in each area, and the law seeks to encourage and protect investments in both. I have challenged the common belief that intellectual property is non-rivalrous; the numerous counterexamples include trademarked luxury goods and limited-edition copyrighted creations.[3]

My response will delineate my disagreements with Mossoff but also critique the approach that some utilitarians have taken to intellectual property.

The point at which Mossoff and I begin to part ways stems from his endorsement of the view of John Locke (which he paraphrases) that

all property arises from the fact that individuals must produce the values required for a flourishing human life. Accordingly, property rights define the sphere of liberty required for an individual to create, use, and dispose of these values.

Unlike some of the other critics of Locke to whom he had responded in his previous work,[4] I do not restrict the Lockean definition of value to economic worth. I contend, instead, that a Lockean theory of intellectual property is at best unwieldy even if one accepts a broader definition of value. While all philosophical systems must rely on a set of assumptions or axioms, labor theory is more arbitrary in its implementation than are utilitarian theories.[5]

Mossoff makes clear that we should not take Locke’s statements to mean that intellectual property can only be justified on the basis of incentivizing value-creation. Rather, he emphasizes (again, in a previous article) that “the legal enforcement of exclusion in property and intellectual property rights follows from the creation of value.”[6] [emphasis in original]

Few would argue that we do not need a system of patents or copyrights at all, and so one’s choice of philosophical framework to defend that basic proposition is less important than how one applies said framework to determine the proper extent of intellectual property rights.[7] It is important to consider, for example, that individuals do not create in a vacuum, isolated from one another. What happens when your and my respective pursuits of human flourishing clash?

This could happen in several different ways. The first is that you may better flourish if we define your intellectual property rights generously. But this may impair my ability to flourish because there is a reduced public domain from which I can draw materials for my own creation, which runs into the Lockean proviso that there always be “as good left in common for others”[8] when an individual is awarded property rights.[9]

Independent creation only provides a defense in a very modest number of cases in this context. If a creator accused of copyright infringement can show that she has no knowledge of a similar previously existing work, she will not be held liable.[10] In a world in which so much copyrighted work is available on the Internet, however, independent creation has become a defense less likely to succeed than ever.[11] And patent law does not have such a doctrine at all.[12] In other words, an inventor can invest years of labor to attain flourishing to find himself completely unrewarded by the law and in fact barred from making and distributing his independent invention.[13]

Yet, what is the alternative? Granting him rights could cut into the ability of the original inventor to flourish, when that original inventor may not have had any knowledge of or influence on the subsequent inventor’s decision to pursue that avenue of inquiry.

On a related note, because Lockean theory does not explain why a particular level of adding value should lead to property rights over an entire final product,[14] the framework turns into a sort of slippery fish. I do not see a principled way in which labor theories can tell us how to adjust the boundaries of intellectual property rights or demarcate defenses such as independent creation or fair use. In short, the theories become non-falsifiable.

To explain why that must be so, it is insufficient simply to state that Locke never meant for flourishing only to encompass economic value. There are a variety of measurement instruments, be they physiological or psychological, that can provide at least some insights into the production of other, non-economic types of benefits.[15] These instruments all have their flaws, but they allow for an increase in robustness over debates that too often risk devolving into competing rationalizations.

I also want to be clear as to what I am not saying in response to the Lockean defense of intellectual property. Recently, Mark Lemley made waves with his argument that proponents of non-utilitarian theories of intellectual property are engaging in a form of religious pursuit and asking participants in the conversation to accept strong intellectual property rights on faith.[16] As other scholars have aptly pointed out,[17] no defense of intellectual property—not even utilitarianism—can escape the necessity of defining what “the good” is. Hence, the proponents of all theories have to make assumptions, some of which will clash with those of the adherents of other models. The advantage of adopting empirical utilitarianism is its ability to minimize the number of assumptions that must be made and provide cleaner epistemological tools to give answers as to which laws will advance chosen goals.

There is no doubt that people still find ways to play fast and loose with social science. At the same time, the findings of an empirical study can be replicated or refuted more objectively and transparently than Lockean-style labor-based analysis. For example, two analysts using the labor-theory approach may arrive at two entirely different conclusions of what it means to provide adequate protection for the rights of value-creators in a particular context. Once they reach this disagreement, and assuming that neither committed elementary mistakes of logic, the conversation will likely reach an impasse.

Utilitarian empiricists need not get stuck in quite the same way upon disagreeing. They may be able to concur on a specific methodology acceptable to both parties to examine the matter further. If no experiment is possible, they may have access to the pre-existing data of different jurisdictions (including in the international context) that can shed light on the matter.[18]

This is not to say that empiricists will always ultimately come to the same conclusions, as evidenced by my own areas of disagreement with Professor Lemley.[19] He and I, and others who are part of the same epistemological school of thought, however, can continue our conversation from there. It is also why, as may befuddle some, my own scholarship as a whole has not fallen clearly into the “pro” or “anti” intellectual property camp.[20] Being an intellectually honest empiricist requires authentic openness to changing one’s position on intellectual property issues depending on what the data say.

Paradoxically, this is where Mossoff may have his best comeback against those who champion without reservation the superiority of falsifiable theories over Lockean-style labor theories. He could ask as follows: how often have empiricist utilitarian scholars actually switched camps and gone from favoring weaker intellectual property rights to favoring stronger ones? Given the vast expanse of the world of intellectual property law and the impressive diversity of issues that the utilitarian framework offers, it appears highly unlikely—from a purely statistical viewpoint, if nothing else—that these scholars maintain their positions simply because weaker intellectual property rights are always better.

Rather, at least two disconcerting possibilities arise. The first is that some utilitarians have chosen assumptions that predetermine the outcome, in which case the empirical data lose relevance. The second is that a number of utilitarians set overly high standards that data have to meet before they occasion a change in position. In either case, utilitarian theory loses some of its appeal over Lockean theories if the falsifiability that is its point of pride becomes largely a theoretical one.

Ultimately, being open to change is a challenge not just for empiricists, but rather for the intellectual property academy as a whole, and beyond. Before we cast stones at the adherents of Lockean or other non-falsifiable theories for relying on faith, we should look around and see who among us is willing to give up on being a true believer. Empiricists can and will win the day if they show themselves capable of endorsing falsification more than in name only.

[1] I would like to thank Stephanie Bair, Greg Dolin, Dmitry Karshtedt, Clarisa Long, Adam Mossoff, Christina Mulligan, David Olson, Cassandra Robertson, and Jeremy Sheff for helpful comments.

[2] Irina D. Manta and Robert E. Wagner, “Intellectual Property Infringement as Vandalism,” Stanford Technology Law Review 18 (forthcoming, 2015).

[3] See, for example, Irina D. Manta, “Hedonic Trademarks,” Ohio State Law Journal 74 (2013), 241, 247-49.

[4] Adam Mossoff, “Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory,” Social Philosophy and Policy 29 (2012), 283.

[5] For a discussion of the relationship between arbitrariness and utilitarian analysis, see generally Mario J. Rizzo, “The Mirage of Efficiency,” Hofstra Law Review 8 (1980), 641.

[6] Mossoff, “Saving Locke from Marx,” 316.

[7] Kenneth Eimar Himma, “The Justification of Intellectual Property: Contemporary Philosophical Issues,” Journal of the American Society of Information Science and Technology 59 (2008), 1143. “One can coherently (and reasonably) believe that content-creators have intellectual property rights that should be protected by law but believe also that many elements of existing copyright and patent law in Western nations are unjustified.”

[8] John Locke, The Second Treatise of Civil Government (1689), chapter V, paragraph 33.

[9] In theory, a creator is only supposed to receive rights over the original elements that she contributed, but it has proven quite difficult for courts to sort out at what level of abstraction to conduct that analysis when attempting to disentangle what exactly is protectable. See Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) “Upon any work, . . . a great number of patterns of increasing generality will fit equally well . . . ; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which . . . his property is never extended.” See generally Michael D. Murray, “Copyright, Originality, and the End of the Scenes a Faire and Merger Doctrines for Visual Works,” Baylor Law Review 58 (2006), 779.

[10] For an in-depth discussion of the doctrine of independent creation doctrine in copyright, as contrasted with the lack of such a defense in patent law, see Clarisa Long, “Information Costs in Patent and Copyright,” Virginia Law Review 90 (2004), 465, 525-33.

[11] See Gideon Parchomovsky and Alex Stein, “Originality,” Virginia Law Review 95 (2009), 1505, 1544 n.171. They note the difficulties inherent in showing that independent creation took place if a high level of similarity is present.

[12] See Long, “Information Costs in Patent and Copyright.”

[13] In some situations, trade secret law may provide alternative protection.

[14] Mossoff, “Saving Locke from Marx,” 14.

[15] Some of these instruments are as simple as surveys and others as complex as brain imaging technologies. See generally Well-Being: The Foundations of Hedonic Psychology, edited by Daniel Kahneman, Ed Diener, and Norbert Schwarz (Russell Sage Foundation, 2003); Kent C. Berridge and Morten L. Kringelbach, “Building a Neuroscience of Pleasure and Well-Being,” Psychology of Well-Being 1 (2011).

[16] Mark A. Lemley, “Faith-Based Intellectual Property,” article forthcoming in the UCLA Law Review.

[17] See, for example, a blog post by James Grimmelmann, “Faith-Based Intellectual Property: A Response,” The Laboratorium (2d Ser.), April 21, 2015.

[18] Of course, the potential for future agreement continues to be cabined by the potential for differences in assumptions regarding what “the good” is, as discussed above. Some, however, regard with a degree of skepticism this aspect of the enterprise. See, for example, a blog post by Jeremy Sheff, “Faith-Based vs. Value-Based IP: On the Lemley-Merges Debate,” April 2, 2015, explaining that “the first step in answering any question in these areas of policy empirically is figuring out whether there is even anything useful to measure, or whether the relevant questions are too deeply enmeshed in questions of subjective value that empirical measurement cannot meaningfully capture.”

[19] Indeed, his engagement with my work has mainly resided in those areas. See Stacey L. Dogan and Mark A. Lemley, “Parody as Brand,” U.C. Davis Law Review 47 (2013), 473, 494 n.92, 496 n.99; and Jeanne A. Fromer and Mark A. Lemley, “The Audience in Intellectual Property Infringement,” Michigan Law Review 112 (2014), 1251, 1280 n. 159.

[20] My scholarship has covered the spectrum of trademarks, copyright, and criminal sanctions in intellectual property. Intellectual property maximalists may have enjoyed or at least tolerated my proposals to privatize parts of the trademark registration process or suggestion that the protection of consumer enjoyment of branded goods may provide an argument in favor of dilution law. See Irina D. Manta, “Privatizing Trademarks,” Arizona Law Review 51 (2009), 381 and Manta, “Hedonic Trademarks.” These same maximalists are probably less excited about my argument that the substantial similarity test in its current form may favor plaintiffs due to the cognitive biases it introduces, that strong intellectual property enforcement sometimes proves counterproductive and uses overblown rhetoric, and that current intellectual property criminal prosecutions are unconstitutional in parts. See Irina D. Manta, “Reasonable Copyright,” Boston College Law Review 53 (2012), 1303; Shyamkrishna Balganesh, Irina D. Manta, and Tess Wilkinson-Ryan, “Judging Similarity,” Iowa Law Review 100 (2014), 267; Irina D. Manta, “The Puzzle of Criminal Sanctions for Intellectual Property Infringement,” Harvard Journal of Law and Technology 24 (2011), 469; Irina D. Manta, “The High Cost of Low Sanctions,” Florida Law Review 66 (2014), 157; Manta and Wagner, “Intellectual Property Infringement as Vandalism”; and Irina D. Manta, “Intellectual Property and the Presumption of Innocence,” William and Mary Law Review 56 (forthcoming, 2015). Like myself, a number of other scholars have taken positions that do not cleanly fall on one side or the other of debates over the proper extent of intellectual property rights.