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FAITH-BASED INTELLECTUAL PROPERTY1
Mark A. Lemley

ABSTRACT
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.
ABOUT THE AUTHOR

William H. Neukom Professor, Stanford Law School; partner, Durie Tangri LLP.

Thanks to

Michael Burstein, Brett Frischmann, Paul Geller, Rose Hagan, David Nimmer, Lisa Larrimore Ouellette,
Peter Menell, Seana Shiffrin, Tim Wu, and participants at the Melville Nimmer Memorial lecture at
UCLA Law School for comments on an earlier draft. Thanks to Madeleine Laupheimer for research
assistance.
I.

The Rise of Faith-Based IP

We live in an age of reason. Or at least, we’re supposed to. Science has explained most of the
things that in a prior era seemed like magic or the will of the gods, from the seasons to lightning and
thunder to the diversity of the natural world. And even when science leads us to things that themselves
seem magical—the curvature of light, quantum entanglement, or tens of millions of transistors loaded
onto a tiny chip—they nonetheless work according to the predictable, if not always logical-seeming, rules
of science.
The age of reason has extended to the economy. Gone are the days when there was any serious
debate about the superiority of a market-based economy over any of its traditional alternatives, from
feudalism to communism. True, there is plenty of room to fight about the proper role of government and
of regulatory limits on private action, but almost all that debate takes place at the margins of the
fundamental discovery that market mechanisms supplemented with some infrastructure investment and
health and safety regulation generally work better than anything else in providing most goods and
services.
That consensus for markets and rationality extends to regulation when it does happen. We’ve
done a pretty good job in most areas of regulation of at least thinking in terms of cost-benefit analysis.
The days of command and control regulation, in which the government directed you to do something
1.

© 2015 Mark A. Lemley.

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regardless of cost and benefit, are long gone. And rightly so. If the Environmental Protection Agency
(EPA) is to impose a regulation on the release of toxins in the drinking water, it needs to assess the harm
of the toxin, the cost of compliance, and whether there are cheaper alternatives that would achieve the
same end. More generally, any new government regulation must pass through the White House Office of
Information and Regulatory Affairs (OIRA), a government office that assesses the costs and benefits of
any new regulation.2 We don’t always get the balance right, but we have learned to ask the right
questions.
IP rights are a form of government regulation of the free market designed to serve a useful social
end—encouraging innovation and creation.3

IP rights represent government interventions in the

marketplace that seek to achieve that desirable social end by restricting the freedom of some people
(consumers, reusers, critics) to do what they want with their own real and personal property in order to
improve the lives of other people (inventors and creators). My freedom to make art or build a new phone
is constrained by a government requirement that my art or my phone not be too similar to someone else’s.
In the case of patents, that’s true even if I have never heard of the other person or seen their phone or their
patent, and indeed even if they never built a phone at all.4
2.

Office

of

Information

and

Regulatory

Affairs,

WHITE

HOUSE,

http://www.whitehouse.gov/omb/inforeg_default (last visited Feb. 20, 2015). For a discussion of costbenefit analysis in regulation, see EDITH STOKELEY & RICHARD ZECKHAUSER, A PRIMER FOR POLICY
ANALYSIS 134-39 (1978).
3.

See, e.g., Mark A. Lemley, Taking the Regulatory Nature of IP Law Seriously, 92 TEX. L.

REV. SEE ALSO 107, 107–08 (2014); Mark A. Lemley, The Regulatory Turn in IP, 36 HARV. J. L. & PUB.
POL’Y 109, 110 (2012); THOMAS MACAULAY, Copyright (February 5, 1841), in SPEECHES ON POLITICS
AND

LITERATURE 176, 177 (1924) (stating that copyright imposes a “tax on readers for the bounty of

writers”); Sara K. Stadler, Copyright as Trade Regulation, 155 U. PA. L. REV. 899, 903 (2007); Shubha
Ghosh, Patents and the Regulatory State: Rethinking the Patent Bargain Metaphor After Eldred, 19
BERKELEY TECH. L.J. 1315, 1322–25 (2004); Mark A. Lemley, What’s Different About Intellectual
Property?, 83 TEX. L. REV. 1097, 1097 (2005); Joseph P. Liu, Regulatory Copyright, 83 N.C. L. REV. 87
(2004); Peter S. Menell, The Property Rights Movement’s Embrace of Intellectual Property: True Love or
Doomed Relationship, 34 ECOLOGY L.Q. 713, 725–31 (2007).
4.

It is true that we sometimes declare government limits on market entry to confer property

rights on the protected firm. Taxi medallions are an example; a restriction on government entry into that
market has given rise to a property right to be one of the privileged few allowed to participate in the
market. See, e.g., Katrina Miriam Wyman, Problematic Private Property: The Case of New York Taxicab
Medallions, 30 YALE J. REG. 125, 128 (2013). But that does not make it any less regulatory, any more
than the British grant to the East India Trading Company of the exclusive right to do business in India

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The fact that IP is government regulation of the marketplace doesn’t mean it is a bad thing. Many
regulations are desirable, and I think IP rights of some form are among them. But it does mean that it is
not an inherently good thing.

In a market-based economy, regulation requires some cost-benefit

justification before we accept it.
For a long time, evidence that might support that justification was in short supply. We had a
plausible-sounding theory: Rational actors won’t spend a lot of money to create something if others can
just copy it more cheaply.5 But we had very little evidence one way or the other to bolster that theory.
Fritz Machlup, commissioned by Congress in the 1950s to evaluate the patent system, came to the
strikingly wishy-washy conclusion that if we didn’t have a patent system, the evidence wouldn’t justify
creating one, but since we had one the evidence didn’t justify abolishing it.6 In short, we just didn’t know
very much about whether patents survived cost-benefit analysis. Things were no better by the 1980s;
George Priest famously wrote that economists could tell lawyers virtually nothing about IP because there
had been virtually no empirical study of IP regimes.7
That is no longer true. In the past three decades there has been an unprecedented—indeed,
astonishing—outpouring of sophisticated empirical work on virtually every aspect of IP law and
innovative and creative markets.8 We now have empirical studies on who obtains IP rights, who enforces
was anything other than a market entry restriction. See Yochai Benkler, Some Economics of Wireless
Communications, 16 HARV. J. L. & TECH. 25, 25–27 (2002). A “property” right to be the exclusive
provider of airline service to a particular city is regulation whether or not we say you have a property
right in the exclusivity the regulation has given you.

As Tom Bell explains, “copyright and taxi

medallions more resemble privileges than property.” Tom W. Bell, Copyright Porn Trolls, Wasting Taxi
Medallions, and the Propriety of “Property,”, 18 CHAPMAN L. REV. __ (forthcoming 2015).
5.

See, e.g., WILLIAM LANDES & RICHARD POSNER, THE ECONOMIC STRUCTURE OF

INTELLECTUAL PROPERTY LAW (2003); Mark A. Lemley, The Economics of Improvement in Intellectual
Property Law, 75 TEX. L. REV. 989, 993-97 (1997).
6.

SUBCOMM. ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE S. COMM. ON THE

JUDICIARY, 85TH CONG., AN ECONOMIC REVIEW OF THE PATENT SYSTEM, STUDY NO. 15, at 80 (1958)
(prepared by Professor Fritz Machlup).
7.

George L. Priest, What Economists Can Tell Lawyers About Intellectual Property: Comment

on Cheung, 8 RES. L. & ECON. 19, 21 (1986).
8.

For a discussion of much of this work, see Mark A. Lemley, Property, Intellectual Property,

and Free Riding, 83 TEX. L. REV. 1031, 1065 n.137 (2005); DAN L. BURK & MARK A. LEMLEY, THE
PATENT CRISIS AND HOW THE COURTS CAN SOLVE IT 38 (2009).

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them, and who wins.9 We have studies on how IP rights affect stock performance. 10 We have industryspecific studies that examine what drives creativity in virtually every field imaginable, including those
protected by patents, by copyright, and by no IP right at all.11 We have evidence about how innovation in
9.

See, e.g., John R. Allison et al., Our Divided Patent System, 82 U. CHI. L. REV. 3

(forthcoming 2015); John R. Allison, Mark A. Lemley & David L. Schwartz, Understanding the Realities
of Modern Patent Litigation, 92 TEX. L. REV. 1769, 1782 (2014); James Bessen & Michael Meurer,
Lessons for Patent Policy From Empirical Research on Patent Litigation, 9 LEWIS & CLARK L. REV. 1
(2005); Richard C. Levin et al., Appropriating the Returns from Industrial Research and Development, in
BROOKINGS PAPERS ON ECONOMIC ACTIVITY 783, 794–95 (1987); Wesley M. Cohen et al., Protecting
Their Intellectual Assets: Appropriability Conditions and Why U.S. Manufacturing Firms Patent (or Not)
3 (Nat’l Bureau of Econ. Res., Working Paper No. W7552, 2000); Mark Schankerman, How Valuable Is
Patent Protection? Estimates by Technology Field, 29 RAND J. ECON. 77, 79 (1998); Gideon
Parchomovsky & R. Polk Wagner, Patent Portfolios 154 U. PA. L. REV. 1, 5–6 (2005); Jay P. Kesan &
Gwendolyn G. Ball, How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and
Settlement of Patent Disputes, 84 WASH. U. L. REV. 237, 261 (2006); Colleen V. Chien, Of Trolls,
Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents, 87 N.C. L.
REV. 1571, 1577 (2009); Colleen V. Chien, Predicting Patent Litigation, 90 TEX. L. REV. 283, 287
(2011); Paul M. Janicke & LiLan Ren, Who Wins Patent Infringement Cases?, 34 AIPLA Q.J. 1, 10
(2006); John R. Allison, Mark A. Lemley & Joshua Walker, Extreme Value or Trolls on Top? The
Characteristics of the Most-Litigated Patents, 158 U. PA. L. REV. 1, 3 & n.3 (2009).
10.

JAMES BESSEN & MICHAEL MEURER, PATENT FAILURE: HOW JUDGES, LAWYERS, AND

BUREAUCRATS PUT INNOVATION AT RISK (2008). But see Glynn S. Lunney, Jr., On the Continuing
Misuse of Event Studies: The Example of Bessen and Meurer, 16 J. INTELL. PROP. L. 35, 37, 49–56
(2008); David L. Schwartz & Jay P. Kesan, Analyzing the Role of Non-Practicing Entities in the Patent
System, 99 CORNELL L. REV. 425, 447–48 (2014) (criticizing the Bessen-Meurer methodology).
11.

See, e.g., BURK & LEMLEY, supra note 8, at chs. 4–5; YOCHAI BENKLER, THE WEALTH OF

NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 2–3 (2006); KAL
RAUSTIALA & CHRISTOPHER SPRIGMAN, THE KNOCKOFF ECONOMY: HOW IMITATION SPARKS
INNOVATION 4 (2012); Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and
Intellectual Property in Fashion Design, 92 VA. L. REV. 1687, 1693 (2006); Dotan Oliar & Christopher
Sprigman, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the
Transformation of Stand-Up Comedy, 94 VA. L. REV. 1787, 1787–88 (2008); Emmanuelle Fauchart &
Eric von Hippel, Norms-Based Intellectual Property Systems: The Case of French Chefs (MIT Sloan
working paper No. 4576–06, 2006); David Fagundes, Talk Derby to Me: Intellectual Property Norms
Governing Roller Derby Pseudonyms, 90 TEX. L. REV. 1093, 1099 (2012); Matthew Beasley, Who Owns

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various industries has fared under changes in IP regimes, the growth of the Internet, internationalization,
and various other exogenous shocks.12 We have experimental evidence that explores how test subjects
view the sale of things they have actually created,13 and iterative-play games that model economies with
different IP regimes.14 We have surveys of creators and inventors that ask about their motivations.15 And
we have psychological studies that explore both why and how people create and how money affects (or
does not affect) that creative impulse.16
Your Skin: Intellectual Property and Norms Among Tattoo Artists, 85 S. CAL. L. REV. 1137, 1141 (2012);
Aaron Perzanowski, Tattoos and IP Norms, 98 MINN. L. REV. 511, 525 (2013); Elizabeth L. Rosenblatt,
A Theory of IP’s Negative Space, 34 COLUM. J. L. & ARTS 317, 323 (2011). But see C. Scott Hemphill &
Jeannie Suk, The Law, Culture, and Economics of Fashion, 61 STAN. L. REV. 1147, 1177 (2009)
(disputing Raustiala and Sprigman’s claim that the lack of IP protection drives innovation in fashion).
12.

See, e.g., Mark A. Lemley, IP In a World Without Scarcity, N.Y.U. L. REV. (forthcoming

2015) and sources cited therein.
13.

See, e.g., Christopher Buccafusco & Christopher Jon Sprigman, The Creativity Effect, 78 U.

CHI. L. REV. 31, 33 (2011); Christopher Buccafusco & Christopher Sprigman, Valuing Intellectual
Property: An Experiment, 96 CORNELL L. REV. 1, 25 (2010).
14.

See, e.g., Andrew W. Torrance & Bill Tomlinson, Property Rules, Liability Rules, and

Patents: One Experimental View of the Cathedral, 14 YALE J. L. & TECH. 138, 149–52 (2011).
15.

See, e.g., Jessica Silbey, The Eureka Myth: Creators, Innovators, and Everyday Intellectual

Property (forthcoming 2015).
16.

See, e.g., JULIE E. COHEN, CONFIGURING THE NETWORKED SELF: LAW, CODE, AND THE

PLAY OF EVERYDAY PRACTICE 50–57 (2012); Julie E. Cohen, Creativity and Culture in Copyright
Theory, 40 U.C. DAVIS L. REV. 1151, 1152 (2007); Jeanne C. Fromer, A Psychology of Intellectual
Property, 104 NW. U. L. REV. 1441, 1443–44 (2010); Eric E. Johnson, Intellectual Property and the
Incentive Fallacy, 39 FLA. ST. U. L. REV. 623, 627 (2012); Gregory N. Mandel, Left-Brain Versus RightBrain: Competing Conceptions of Creativity in Intellectual Property Law, 44 U.C. DAVIS L. REV. 283,
285–86 (2010); Gregory N. Mandel, To Promote the Creative Process: Intellectual Property Law and the
Psychology of Creativity, 86 NOTRE DAME L. REV. 1999, 2000 (2011) [hereinafter Mandel, Promote];
Jessica Silbey, Harvesting Intellectual Property: Inspired Beginnings and “Work-Makes-Work,” Two
Stages in the Creative Processes of Artists and Innovators, 86 NOTRE DAME L. REV. 2091, 2093 (2011);
Sara K. Stadler, Incentive and Expectation in Copyright, 58 HASTINGS L.J. 433, 436 (2007); Rebecca
Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions, 51 WM. & MARY L. REV. 513,
515 (2009); Diane Leenheer Zimmerman, Copyright as Incentives: Did We Just Imagine That?, 12
THEORETICAL INQUIRIES IN L. 29, 31 (2011). But see Daniel J. Hemel & Lisa Larrimore Ouellette,
Beyond the Patents-Prizes Debate, 92 TEX. L. REV. 303, 353–55 (2013) (challenging the idea that

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The upshot of all this evidence is something rather less than a complete vindication of the theory
of IP regulation. As Lisa Ouellette puts it, “none of these studies resolves whether patents have a net
positive effect on innovation, much less their net welfare effect, or whether alternative innovation
incentives such as grants, prizes, and tax credits are inferior.”17 This doesn’t mean that we are no better
off than we were in Fritz Machlup’s day. The problem isn’t that we don’t have enough evidence, or the
right kind of evidence. The problem is that the picture the evidence paints is a complicated one. 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.18 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. 19 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.20 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
creation is driven by nonmonetary motivations by noting that they often coexist with monetary ones). Cf.
Laura G. Pedraza-Farina, Patent Law and the Sociology of Innovation, 2013 WIS. L. REV. 813, 856
(documenting the various sociological factors that play into scientific discovery and how quickly that
discovery is accepted).
17.

Lisa Larrimore Ouellette, Patent Experimentalism, 101 VA. L. REV. 8 (forthcoming 2015).

18.

JAMES BESSEN & MICHAEL J. MEURER, PATENT FAILURE: HOW JUDGES, BUREAUCRATS,

AND LAWYERS PUT INNOVATORS AT RISK

(2008).

19.

See, e.g., Lemley, supra note 12 (collecting evidence).

20.

See,

e.g,.

TERESA

AMABILE,

CREATIVITY

IN

CONTEXT

33

(1996);

MIHALY

CSIKSZENTMIHALYI, CREATIVITY 107–08 (1996); Jeanne C.Fromer, Expressive Incentives in Intellectual
Property, 98 VA. L. REV. 1745, 1777 (2012) (“[C]reators’ beliefs in their moral rights typically seem to
dominate their pecuniary interests in creating . . . .”); Jeanne C. Fromer, A Psychology of Intellectual
Property, 104 NW. U. L. REV. 1441, 1483 (2010); William Hubbard, Inventing Norms, 44 CONN. L. REV.
369 (2011); Gregory N. Mandel, To Promote the Creative Process: Intellectual Property Law and the
Psychology of Creativity, 86 NOTRE DAME L. REV. 1999, 2010 (2011) (“As motivation moves from the
extrinsic toward the intrinsic side of the motivation spectrum, individuals’ work product tends to become
more creative.”); John Quiggin & Dan Hunter, Money Ruins Everything, 30 HASTINGS COMM. & ENT.
L.J. 203, 214–15 (2008); Beth A. Hennessey & Teresa M. Amabile, Reward, Intrinsic Motivation, and
Creativity, 53 AM. PSYCHOLOGIST 674 (1998). For an empirical test of this question, see Christopher
Buccafusco et al., Empirical Studies of Incentives in Intellectual Property (forthcoming 2015) (on file
with author).

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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.21
The decidedly ambiguous nature of this evidence should trouble us as IP lawyers, scholars, and
policymakers. It is one thing to say in Fritz Machlup’s day that we should trust in theory because the
evidence isn’t in yet. In the absence of evidence, he might well have been right that the best thing to do is
maintain the status quo. But it is quite another thing to continue trusting in theory when we have gone
out, collected the evidence, and found that it is far from clear that IP is doing the world more good than
harm.
Further, we are not just maintaining the status quo. We have been passing a host of new IP laws
in recent decades, almost all directed at expanding IP rights, even as the evidence casts substantial doubt
on the efficacy of those laws.22 If the evidence has a hard time justifying the existing regulatory structure
we have built around IP, it has an even harder time justifying wave after wave of new laws that departs
further from the free market in the name of protecting IP owners from Internet piracy.
If we had evidence that any other kind of government regulation—or medical advice, for that
matter—probably wasn’t helping much, or was only helping people in a few specialized areas, and might
in fact be making things worse, the enlightened, reasonable thing to do would be to reassess that policy.
When you are spending a lot of time and money every year in a government-sponsored departure from the
free market, even maintaining the status quo ought to require some evidentiary support. And doubling
down on that policy certainly should.
Instead of questioning the theory of IP in light of this evidence, however, a number of people
have instead sought ways to ignore the evidence and keep on doing what they have always been doing.
Some of those ways are time-honored traditions in dealing with adverse evidence. Sometimes the
approach is to attack the messenger. A lesson I learned early in my academic career is that while people
will dispute, ignore, or shrug off policy arguments they disagree with, they get really incensed when the
data disagrees with them. And one way they can justify ignoring that data is to persuade themselves that
the source of that data must be biased in some way and so their numbers cannot be trusted. The most
vitriolic attacks I have experienced in more than twenty years as a law professor were directed at the most
21.

Cf. Julie E. Cohen, Copyright as Property in the Post-Industrial Economy: A Research

Agenda, 2011 WIS. L. REV. 141 (arguing that IP law may be more about motivating corporate creativity
than individuals).
22.

Patent law has recently become an important exception; after a dramatic expansion in the

powers of patent owners in the first 25 years of the Federal Circuit Congress and the courts are starting to
cut back on those powers in various ways. See, e.g., Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct.
2347, 2359 (2014) (restricting patent-eligible subject matter).

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innocuous-seeming papers—papers that presented data that revealed some uncomfortable facts about the
status quo.23
Unfortunately, sometimes the numbers can’t be trusted. A second reaction to data you don’t like
is to try to go out and buy some of your own. Companies with a vested interest in a system that empirical
evidence calls into question have been spending a great deal of money to fund studies written (sometimes
preposterously) to lead to the conclusion they support.24 That makes it all the easier to rationalize
ignoring evidence regardless of the form in which it comes.
Neither of these approaches is unique to IP law. We see them in efforts to deny the reality of climate
change, for example. What is notable is that as evidence has come to IP law—a development that I
naively thought all would welcome—more and more people have fought to keep it out. Indeed, when the
Federal Trade Commission released its report on the patent system a decade ago, sparking the first wave
of legislative patent reform, the report concluded with what its authors thought of as a good-government
filler recommendation: that we should further study the relationship between patents and innovation.25 To
its surprise, that turned out to be its most controversial recommendation.26 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.
The resistance to evidence doesn’t stop there, however. Participants on both sides of the IP
debates are increasingly staking out positions that simply do not depend on evidence at all. That is, their
response to evidence that doesn’t accord with their beliefs is not to question their beliefs, or even to
question the evidence, but to retreat to a belief system that doesn’t require evidence at all. An example is
Rob Merges at Berkeley, the leading patent scholar of the last generation and the strongest voice for
23 This is a well-established psychological phenomenon in dealing with adverse evidence. See, e.g.,
Lisa Larrimore Ouellette, Cultural Cognition of Patents, 4 IP Theory 28 (2013).
24.
One example is Alexander Galetovic et al., Patent Holdup: Do Patent Holders Holdup
Innovation?

2-3

(Hoover

IP2,

Working

Paper

Series

No.

14011

2014),

available

at

http://www.hoover.org/sites/default/files/ip2-wp14011-paper.pdf (purporting to find no innovation loss
from patent holdup in software by declaring bananas and sugar to be “textbook holdup industries” and
finding that prices fall faster for technologies subject to holdup than they do in bananas or sugar, despite
the rather different characteristics of bananas and smartphones and the absence of any systematic holdup
in bananas or sugar).
25.
AND

FED. TRADE COMM’N, TO PROMOTE INNOVATION: THE PROPER BALANCE OF COMPETITION

PATENT LAW AND POLICY 2 (Oct. 2003), http://www.ftc.gov/reports/promote-innovation-proper-

balance-competition-patent-law-policy.
26.

AM. INTELLECTUAL PROP. LAW ASS’N, AIPLA RESPONSE TO THE OCTOBER 2003 FEDERAL

TRADE COMMISSION REPORT: “TO PROMOTE INNOVATION: THE PROPER BALANCE OF COMPETITION AND
PATENT

LAW

AND

POLICY”

at

40–44

(2003),

http://www.aipla.org/advocacy/executive/Documents/ResponseToFTC.pdf.
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economic analysis of the patent system. After decades at the forefront of economic analysis of the patent
system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the
basis of verifiable data showing that people are better off with IP law than they would be without it.”27
While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to
question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in
the necessity and importance of IP law has only grown.”28 IP rights, he decides, are Rights in the moral
sense: things to which people have some intrinsic entitlement that “social utility alone is not reason
enough to override.”29
Merges is not alone; as he notes, “I seem to have a lot of company” in jettisoning utilitarianism
for talk of morality.30 Richard Spinello and Maria Bottis, for instance, take the position that IP rights are
“primarily [] a requirement of natural law and justice.”31 And there are many others.32 Even many
economists have begun to talk not in terms of evidence and cost-benefit analysis, but of property in ideas
as an end in and of itself.33
27.

ROBERT P. MERGES, JUSTIFYING INTELLECTUAL PROPERTY 3 (2011). Consistent with the

avoidance approaches just discussed, Merges acknowledges that “[t]his is a truth I avoided over the years,
sometimes more subtly (for example, heavily weighing the inconclusive positive data, showing IP law is
necessary and efficient, discounting inconclusive data on the other side), and sometimes less so (ignoring
the data altogether[] . . .).” Id.
28.

Id.

29.

Id.

30.

Id.

31.

RICHARD A. SPINELLO & MARIA BOTTIS, A DEFENSE OF INTELLECTUAL PROPERTY RIGHTS

3 (2009).
32.

For other examples, see David Opderbeck, Beyond Bits, Memes, and Utility Machines: A

Theory of Intellectual Property as Social Relations, 10 U. ST. THOMAS L. J. 738 (2013); Alina Ng Boyte,
Finding Copyright’s Core Content, 10 U. ST. THOMAS L.J. 774, 775 (2013); Adam D. Moore, Intellectual
Property, Innovation, and Social Progress: The Case Against Incentive-Based Arguments, 26 HAMLINE
L. REV. 601, 630 (2003) (“Hopefully, upon recognized the difficulties that infect rule-utilitarian
intellectual property, we may begin to move away from our current sytem – a system that views
intellectual property rights as state-created entities – and toward institutions that acknowledge and uphold
the natural rights of authors and inventors.”) (emphasis in original).
33.
Inventions,

See, e.g., Daniel F. Spulber, How Patents Provide the Foundation of the Market for
NW.

U.

SCH.

L.

&

ECON.

SERIES

1,

2

(2014),

available

at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487564 (arguing for patents as property rights on the
basis of theory, not evidence); Richard A. Epstein, The Disintegration of Intellectual Property? A

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Merges refers to his “faith” in IP law, and that is exactly the right word. I call this retreat from
evidence faith-based IP, both because adherents are taking the validity of the IP system on faith and
because the rationale for doing so is a form of religious belief.34 The adherents of this new religion
believe in IP. They don’t believe it is better for the world than other systems, or that it encourages more
innovation. Rather, they believe in IP as an end in itself—that IP is some kind of prepolitical right to
which inventors and creators are entitled. Because that is a belief, evidence cannot shake it any more than
I can persuade someone who believes in the literal truth of the bible that their god didn’t create the world
in seven days. Sure, there may be geological and archeological evidence that makes the seven-day story
implausible. But faith is not just ambivalent about evidentiary support; it is remarkably resistant to
evidentiary challenge. Indeed, many proponents of this new religion even tout that as an advantage for
their faith, claiming that it “avoids the need for empirical validation demanded by the utilitarian
approach.”35

II.

The Problems With Faith-Based IP

Now, you can think what you like about religion. I know lots of people who find value in it. But
IP strikes me as an odd thing to make the basis of one’s faith, for several reasons.
First, once one abandons utilitarianism it is hard to find a basis for a prepolitical right to IP.
Natural law theories used to owe their origin to a belief that a god not only made the world and the people
Classical Liberal Response to a Premature Obituary, 62 STAN. L. REV. 455, 456 (2010) (same). Cf.
RONALD A. CASS & KEITH N. HYLTON, LAWS OF CREATION: PROPERTY RIGHTS IN THE WORLD OF
IDEAS 211–18 (2013) (acknowledging that the IP tradeoff is ultimately an empirical question while
articulating a property-based justification for IP that is based in theory, not evidence).
34.

Cf. Katya Assaf, Magical Thinking in Trademark Law, 37 L. & SOCIAL INQUIRY 595, 596

(2012) (arguing that brands operate as a form of religion that trademark law endorses). This is distinct
from those who seek guidance in existing religions to evaluate IP doctrines. For a discussion and
collection of sources, see Thomas C. Berg, Foreword: Intellectual Property and Religious Thought, 10 U.
ST. THOMAS L. J. 579, 580 (2014); Neil W. Netanel & David Nimmer, Is Copyright Property? ― The
Debate in Jewish Law, 12 THEORETICAL INQUIRES L. 241, 242 (2011); Bashar H. Malkawi, The Alliance
Between Islamic Law and Intellectual Property: Structure and Practice, 10 U. ST. THOMAS L. J. 618, 619
(2013) (justifying IP under Sharia law).
35.

SPINELLO & BOTTIS, supra note 31, at 150; see also STEPHEN ANG, THE MORAL

DIMENSIONS OF INTELLECTUAL PROPERTY RIGHTS 112–13 (2013) (rejecting utilitarianism for IP because
it is indeterminate).

For a more critical view of this approach, see Sonia K. Katyal, Trademark

Cosmopolitanism, 47 U.C. DAVIS L. REV. 875, 929 (2014) (“thinking about intellectual property as a
fundamental rright . . . makes further justification of intellectual property unnecessary . . .”).

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in it, but also made the rules we take for granted. But even the die-hard natural law theorists have mostly
abandoned that way of thinking.36 Instead, they turn to some version of the “I made it and so I own it,”
often attributing that sentiment to John Locke, or Hegel, or, more recently, Rawls.37 But those theories
have more than their fair share of problems, starting with the fact that none of these latter-day prophets of
IP actually included IP at all in their theories.38 Rather, they spoke of real property and chattels, not ideas.
Whether or not Locke makes a convincing case that you make an apple your property by investing labor
in picking it from a tree—and I wouldn’t advise you to try it with the next apple tree you come across
unless you want to be arrested or shot—the fact is that ideas are not much like apples. For the IP faithful,
it is important to elide this difference in order to give the rather recent doctrines of IP some historical
roots in property theory.39 But, leaving aside the fact that real property is hardly dictated from on high
either,40 as I have explained at length elsewhere, IP is not like real property or chattels in any meaningful
36.

See Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013) (“[C]opyright is not an inevitable,

divine, or natural right that confers on authors the absolute ownership of their creations . . . .”) Notably,
both Christian and Jewish law were ambivalent at best about IP rights. See, e.g., PAUL J. GRIFFITHS,
INTELLECTUAL APPETITE: A THEOLOGICAL GRAMMAR 139 (2009) (quoting Augustine as distinguishing
ideas from property; ideas were public things to be shared, not sequestered); Jeremy Stern, “Spiritual
Property, ‘Intellectual’ Property, and a Solution to the Mystery of IP Rights in Jewish Law”, 10:3 U. ST.
THOMAS L. J. 603, 604 (2013) (arguing that Jewish law does not require obedience to copyright). Cf.
Netanel & Nimmer, supra note 34 (suggesting that the issue is more complicated under Jewish law).
37.

See generally MERGES, supra note 27; Eric R. Claeys, On Cowbells and Rock Anthems (and

Property in IP), 49 SAN DIEGO L. REV. 1033 (2012); Adam D. Moore, A Lockean Theory of IP Revisited:
A Review of Justifying Intellectual Property, 49 SAN DIEGO L. REV. 1069 (2012); Kenneth Einar Himma,
Toward a Lockean Moral Justification of Legal Protection of Intellectual Property, 49 SAN DIEGO L.
REV. 1105 (2012).
38.

Indeed, when John Locke wrote of IP, it was to condemn it, not to treat it as an inherent part

of the natural order. See Seana Shiffrin, Lockean Arguments for Private Intellectual Property, in NEW
ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 138–67 (Stephen R. Munzer ed., 2001).
39.

See, e.g., Oskar Liivak, Maturing Patent Theory from Industrial Policy to Intellectual

Property, 86 TUL. L. REV. 1163, 1180–84 (2012).
40.

Some government granted those property rights at some time.

Real property has the

advantage that it was generally created by a political body a long time ago, so it is easier to take it for
granted as an entitlement rather than recognize it as a political decision that had distributional
consequences.

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sense.41 Even if we want to grant Locke “his” apple, it is a big further step to say that by discovering that
he can pick an apple from a tree, Locke has a moral claim to deprive anyone else from doing the same
thing.
But that is exactly what IP does. It intervenes in the market to interfere with the freedom of
others to do what they want in hopes of achieving the end of encouraging creativity. If we take that
purpose out of the equation, we are left with a belief system that says the government should restrict your
speech and freedom of action in favor of mine, not because doing so will improve the world, but simply
because I spoke first.42 But why do we think there is some entitlement to be the only one allowed to say a
particular thing, or to make a particular product, simply because I did so first? Why not give the right
instead to the last person to do so, or the person with the longest last name, or with the longest eyelashes?
Most often, the answer turns out to be a utilitarian one—because we believe that doing so privileges
creativity and therefore encourages someone to strive to be first. But that is an empirical question, not
one we can simply assume to be true.
Perhaps the answer is that we value work for its own sake, and so the fact that you did work
means you own the results of that work. After all, we call Locke’s articulation the labor theory of value.43
Leaving aside the underlying utilitarian justifications there—why exactly do we value work if not for the
results it generates?—IP turns out not to map particularly well to a labor-reward instinct. We grant
extremely valuable patents to accidental discoverers44 and extremely valuable copyrights to photographers
41.

Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 TEX. L. REV. 1031,

1032 (2005).
42.

Rochelle Dreyfuss has derided this sort of thinking of “if value, then right.” Rochelle

Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE
DAME L. REV. 397, 405 (1990). As Felix Cohen once explained: “The vicious circle inherent in this
reasoning is plain. It purports to base legal protection upon economic value, when, as a matter of actual
fact, the economic value of a sales device depends upon the extent to which it will be legally protected.”
Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 815
(1935).
43.

See, e.g., Kenneth Einar Himma, Information Scarcity and the Legitimacy of Legal

Protection of Intellectual Property Rights (Tomsk State University, Dep’t of Hist. & Phil., Visiting
Professor, Working Paper 2014) ( “[A] proper analysis of the legitimacy of intellectual property rights
must take into account the morally protected interests that content-creators have both in the expenditure
of their limited resources.”).
44.

See, e.g., Mark A. Lemley, The Myth of the Sole Inventor, 110 MICH. L. REV. 709, 733

(2012) (citing examples of important accidental inventions, including photography and penicillin).

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who happened to be in the right place at the right time.45 Further, we allow those rights to be enforced
even against people who put more productive work into the final product than the IP owner—the
companies who actually make products based on an idea sketched out by a patent troll46 and the artists
who remake a photo into an iconic image.47
The answer cannot be that other people don’t have the same kind of interest in the idea as the first
creator does. That may sometimes be true—I have a connection to the words I write, surely—but that
connection does not require exclusivity. It might justify moral rights of attribution or integrity, but those
are the smallest portions of the rights IP law confers.48 IP imposes rather serious limits on what other
people can do with speech they encounter, even if they can make productive use of it and even if their
connection to the speech is every bit as strong as the author’s (as is the case in much fan fiction, for
instance).
We don’t tolerate that kind of speech restriction anywhere else in society. I have the right to wear
a T-shirt that says “fuck the draft”49 whether or not I came up with the phrase—unless, that is, someone
copyrights it or trademarks it, as people have done with the smiley face, the phrase “class of 2000,” the
letter pi, and a host of other terms. A utilitarian IP framework has a metric for deciding whether we
should give control over those terms to the people who claim them. But if IP is a Right, granted to the
first creator not for a purpose but simply because they are first, it is hard to find a similar limiting
principle.50
45.

See, e.g., Time, Inc. v. Bernard Geis Assoc., 293 F. Supp. 130, 133 (S.D.N.Y. 1968)

(involving the copyright in the Zapruder film of the JFK assassination); Los Angeles News Serv. v.
Trullo, 973 F.2d 791 (9th Cir. 1992) (involving the copyright in a news film of the Reginald Denny
beating that led to the Los Angeles riots).
46.

Most patent lawsuits are filed against independent inventors, not copyists. See Christopher

A. Cotropia & Mark A. Lemley, Copying in Patent Law, 87 N.C. L. REV. 1421, 1423 (2009).
47.

William W. Fisher III et al., Reflections on the Hope Poster Case, 25 HARV. J. L. & TECH.

243, 244 (2012) (discussing the suit by the Associated Press against Shepard Fairey for infringement of
the photo that became the basis for the Obama Hope poster).
48.

Even the justification for moral rights seems to me more utilitarian than moral—we should

give rights of attribution and integrity to creators if those are in fact the things that motivate them to
create, as some recent scholarship suggests. See Fromer, supra note 16 and sources cited therein.
49.

Cohen v. California, 403 U.S. 15, 15 (1971).

50.

See, e.g., Sonia K. Katyal, Trademark Cosmopolitanism, 47 U.C. DAVIS L. REV. 875, 929

(2014) (“classifying intellectual property as a fundamental right gives us very little insight as to how to
balance such a right against other fundamental rights, like freedom of speech.”). Lockeans point to the
proviso that “enough and as good” be left for others, see Wendy J. Gordon, A Property Right in Self-

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The problem is even worse when the copyright or trademark defendant has herself done
something creative: retelling a story, mocking a song, or otherwise transforming a work. Now we have
creators on both sides. A utilitarian system will give us some way to parse the competing claims of those
two creators. But a moral claim that “I created it and so I own it” doesn’t help very much.51 We could
imagine a natural rights theory of IP that said, “I created it and so I own it unless you yourself added to
it,” but where does that theory come from? Not from John Locke, surely.52 Nor from real property law,
in which the rule of accession usually works the other way.53 Perhaps the moral rule is some form of
“whoever added the most value to a work gets to own it,” a theory that would account for fair use. But
how are we to decide who added the most value without some sort of utilitarian calculus? And even if we
did decide that maximizing value was a moral rather than a utilitarian principle, it would quite often lead
to results that are radically different than existing IP law. Whatever value J.K. Rowling gets from
ownership of her works is surely far outweighed by the collective value her readers and fan fiction writers
get from them.54 That is even more true of Apple’s iPhone, the value of which, while considerable to
Apple, is surely dwarfed by the collective social value that accrues to its millions of users. But we do not
declare the Harry Potter novels or the iPhone to be in the public domain merely because doing so will
give ownership to the people—consumers and reusers—who collectively value the works more than their
creators do. The IP faithful resist that analysis, not because it is economically wrong, but because they
Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533,
1538 (1993), but that won’t help much here, not only because it doesn’t describe what IP law actually
does but also because the fact that I could say something other than “fuck the draft” is cold comfort.
Often it is the expression, not just the idea, that matters in communication. Indeed, Gordon’s thesis is that
a natural law theory of copyright that took Locke seriously would provide substantially more speech
protection than IP law in fact does.
51.

See, e.g., Mark A. Lemley & Mark P. McKenna, Owning Mark(et)s, 109 MICH. L. REV. 137,

184 (2010) (“Saying ‘someone must (or deserves to) own this,’ even if true, doesn’t help answer the
question of who should own it and what the scope of their ownership right should be. Those questions
can be answered only by resort to social welfare.”).
52.

See SPINELLO & BOTTIS, supra note 31, at 158 (conceding that a fair use defense can’t be

derived from Locke).
53.

See, e.g., Thomas W. Merrill, Accession and Original Ownership, 1 J. LEGAL ANALYSIS

459, 459 (2009) (“[A]ccession . . . awards new resources to the owner of existing property most
prominently connected to the new resource.”).
54 For an effort to try to measure the “units of joy” Rowling’s book offers to her and to a reader, see
Shubha Ghosh, Managing the IP Sprawl, 49 San Diego L. Rev. 979, 1013-14 (2012).

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are not really about maximizing value at all. Sure, more people might be better off with weaker IP rights,
but IP rights still trump because they are, well, rights.55
The problem is worse still in patent law. In most industries the overwhelming use of patents is
not to sue people who copy the plaintiff’s invention, but to sue independent inventors—people who
themselves used their own ideas and their own private property to make things, and who often had never
heard of the plaintiff or their patent.56 If “I created it and so I own it” is true, why don’t I own, or even
have the right to make, the thing I invented when it turns out someone halfway around the world invented
it a few days before? There may be a utilitarian reason to impinge on someone’s freedom in this way in
the service of encouraging transactions or making patent rights stronger and therefore encouraging people
to strive for them,57 though one can reasonably question whether doing so is good public policy.58 But it
is awfully hard to come up with a moral theory of IP that can explain why the first inventor has a right to
prevent all independent inventors from developing their own ideas regardless of the social cost that
granting that right imposes.
IP rights, then, impose significant costs on freedoms we value, from free speech to the ability to
make and sell products in a market economy to the freedom to make the very kinds of inventions that give
rise to the right in the first place. And they do so because the government has selected, sometimes
arbitrarily, particular individuals to be deserving of those rights.59 Having the government limit the
55.

See, e.g., MERGES, supra note 27, at 294 (“Readers have an interest in books and book

publishing; users and adapters of technology have an interest in relevant technologies; and so on. But
authors and inventors should have rights: strong, deep claims that take precedence over mere interests.”)
(emphasis in original).
56.

Cotropia & Lemley, supra note 46.

57.

See, e.g., Lemley, supra note 44, at 712 (arguing for a theory of patent law that encourages

patent races).
58.

For arguments for some form of independent inventor defense in patent law, see, for

example, Carl Shapiro, Prior User Rights, 96 AM. ECON. ASS’N PAPERS & PROCEEDINGS 92, 95 (2006);
Samson Vermont, Independent Invention as a Defense to Patent Infringement, 105 MICH. L. REV. 475,
482 (2006). But cf. Mark A. Lemley, Should Patent Infringement Require Proof of Copying?, 105 MICH.
L. REV. 1525. 1527 (2007) (offering some cautions about such a defense).
59.

IP law is quite inconsistent in who it treats as deserving. Copyright deems the makers of

fabrics and the takers of photos eligible for protection, for instance, but not chefs or the makers of dress
designs. See, e.g., KAL RAUSTIALA & CHRISTOPHER SPRIGMAN, THE KNOCKOFF ECONOMY 19 (2012);
Jessica Litman, The Public Domain, 39 EMORY L.J. 965, 972 (1990). Patent law draws remarkably fine
distinctions between the first to invent and later inventors—or, since 2013, between the first inventor to
file or publicly disclose and then file within one year and everyone else. 35 U.S.C. § 102(b) (2012). And

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freedoms of some people in order to channel more money to other people might be a good idea in some
circumstances—if, for instance, it encourages the privileged ones to create things that they share with the
ones whose freedom is limited. But it is a very odd thing to believe in as some intrinsic good in itself,
regardless of whatever evidence there might be to the contrary.
Part of the faith people place in IP regardless of the evidence seems to come from a faith in the
status quo—a feeling that IP must be a good thing because we always did it that way and it worked. But
“don’t mess with success” is itself a utilitarian, not a faith-based, story. We should not mess with
something only if it has in fact succeeded. The status quo is not a good in and of itself, to be protected no
matter what evidence accumulates that it is rotten.
Perhaps the IP faithful hope to use the status quo as a sort of burden-shifting presumption,
demanding stronger evidence to justify changing it. This is a particularly effective argument when the
evidence is inconclusive or contradictory, or when (as with IP) it leads mostly to the conclusion that “it’s
complicated.” But it doesn’t work very well to justify IP in its current form, for the simple reason that IP
rights look rather different today than they did even a few decades ago, almost always in the direction of
more and more powerful IP protections. Trademark rights extend to prevent uses that would happily have
coexisted fifty years ago. We have added a slew of new copyright statutes, expanding the term as well as
the scope of protection, increasing penalties, and reaching conduct further and further removed from
actual infringers. We issued six times as many patents in 2014 as we did three decades before, and most
of the patent suits filed are brought by patent trolls, a category of plaintiffs that didn’t even exist forty
years ago and that one might think has a weaker moral claim on IP than people who actually make
products. If your religion is really conservatism—not in the political sense but in the sense of resisting
change because you like things pretty much the way they are—you ought to hate what modern IP law has
become.

And indeed in their more candid moments, the faithful admit that the move to moral

justifications is designed to bias the analysis in favor of the IP owner.60
While I have focused my attention here on faith-based theories of IP, I should be clear that the
flight from evidence toward belief is a problem that is not limited to proponents of IP. The “information
its concept of invention is complex and sometimes contingent on where the inventor lives and whether
she went on vacation, for instance, 35 U.S.C. § 102(g) (2012); Griffith v. Kanamaru, 816 F.2d 624, 629
(Fed. Cir. 1987), and privileging those who run to the patent office over those who actually take the time
to make a product first. See Christopher A. Cotropia, The Folly of Early Filing in Patent Law, 61
HASTINGS L.J. 65, 88 (2009); Mark A. Lemley, Ready for Patenting (working paper 2015) (on file with
author).
60.

See, e.g., MERGES, supra note 27, at 294 (“I believe the position of creative persons should

be a privileged one when it comes to the works they create. The most appropriate and most sensible way
to embody this is to grant those persons a true legal right.”).

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wants to be free” crowd is often guilty of the same sort of conduct, substituting a freedom-based or
cultural vision of the way they think the world should be for reasoned analysis based on the evidence.61
Information doesn’t want to be free any more than it wants to be owned. What we as a society want the
rules for information to be should depend on whether those rules will do more harm than good, not on our
instincts or our beliefs. And while it is surely right that we need to take account of what people want and
how they actually behave in answering that question, doing so is at base a utilitarian inquiry not advanced
by a priori talk of Rights.

III.

The Consequences of Faith-Based IP

Maybe—hopefully—I have persuaded you that we need to take seriously the evidence we have
about how well or poorly the IP system works. That doesn’t mean I have persuaded you we should
abandon IP. Indeed, I haven’t tried to do so; I don’t think the evidence justifies that conclusion. Nor do I
want to make you focus exclusively on money or the rational actor assumptions of classical law and
economics. A number of scholars have usefully reminded us that a utilitarian calculus can and should
value more than simply dollars.62 And many—too many—law and economics scholars seem to believe
the optimal rules of IP can be derived from the theory of real property rather than from evidence.
61.

See, e.g., HUGH BREAKEY, INTELLECTUAL LIBERTY: NATURAL RIGHTS AND INTELLECTUAL

PROPERTY 1, 3–4 (2012); Amy Kapczynski, The Cost of Price: Why and How to Get Beyond Intellectual
Property Internalism, 59 UCLA L. REV. 970, 977 (2012) (rejecting utilitarianism in an attempt to move
beyond price in evaluating IP). Anupam Chander and Madhavi Sunder (approvingly) describe what they
see as the “cultural turn” away from economics on the part of low-protectionist scholars. Anupam
Chander & Madhavi Sunder, Copyright’s Cultural Turn, 91 TEX. L. REV. 1397, 1398 (2013) (reviewing
JULIE E. COHEN, CONFIGURING THE NETWORKED SELF: LAW, CODE, AND THE PLAY OF EVERYDAY
PRACTICE (2012)); Madhavi Sunder, Novartis v. Myriad: The Indian and U.S. Courts on Patents and
Public Health, 12 EUR. INTELL. PROP. REV. 711, 714 (2013) (“[T]he purpose of intellectual property law
need not be seen in narrow terms of incentives for innovation alone.”)
To be fair, though, even the most stalwart critics of IP in software, like Richard Stallman, often
ground their critique in utilitarian if not explicitly economic terms. See, e.g., Richard Stallman, Why
Software Should Be Free, GNU PROJECT, https://www.gnu.org/philosophy/shouldbefree.html; MICHAEL
BOLDRIN & DAVID LEVINE, AGAINST INTELLECTUAL MONOPOLY (2006).
62.

See, e.g., Cohen, supra note 21; Fromer, supra note 16, at 1457. Oren Bracha and Talha

Syed have even gone so far as to articulate a utilitarian but non-efficiency-based theory of IP, one they
call “consequence-sensitive” because it requires an analysis of costs and benefits. Oren Bracha & Talha
Syed, Beyond Efficiency: Consequence-Sensitive Theories of Copyright, 29 BERKELEY TECH. L.J. 229,
229 (2014).

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Rather, the line I hope to draw here is between theories of IP that are based on evidence and those
that are impervious to it. The evidentiary support for the current IP regime is dubious enough that it
should prompt us to have a serious conversation as a society about when IP is serving the goals of
encouraging the creation and dissemination of new content and when it isn’t. At the very least, one would
hope, I could persuade you to look at the evidence.63
But if you are one of the faithful, I probably haven’t persuaded you. The psychology literature
suggests that while people are willing to be corrected about factual inaccuracies—things they think are
true but are not—they are essentially impervious to correction once the thing that turns out to be untrue
crosses the line into a belief.64 And that leads me to the last—and, to me, most worrisome—problem with
faith-based IP. If you are a true believer, we have nothing to say to each other. I don’t mean by that that I
am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply
cannot speak the same language. There is no principled way to compare one person’s claim to lost
freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral
entitlement against evidence that the exercise of that right actually reduces creativity by others. Faithbased IP is at its base a religion and not a science because it does not admit the prospect of being proven
wrong.65 The inevitable result of a move toward faith-based IP is that we will make policy based on our
instincts without being able to engage in a meaningful conversation about the wisdom of that policy. 66
63.

For other calls for evidence-based IP rulemaking, see WILLIAM PATRY, HOW TO FIX

COPYRIGHT 50–51 (2011); Mark P. McKenna, Fixing Copyright in Three Impossible Steps, 39 J. COLL. &
UNIV. L. 715, 719–23 (2013) (reviewing WILLIAM PATRY, HOW TO FIX COPYRIGHT (2011)). For an
argument that antitrust law, which is more explicitly experimentalist, can help IP law learn from evidence,
see Tim Wu, Intellectual Property Experimentalism by Way of Competition Law, 9:2 COMP. POL’Y INT’L
30, 31 (2013).
64.

See, e.g., Maria Konnikova, I Don’t Want to Be Right, NEW YORKER (May 16, 2014),

http://www.newyorker.com/science/maria-konnikova/i-dont-want-to-be-right.
65.

Karl Popper defines “falsifiability” as the critical trait that distinguishes a science from a

belief. KARL POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY 17 (2005). As David Attenborough puts it,
“[t]he correct scientific response to something that is not understood must always be to look harder for the
explanation, not give up and assume a supernatural cause.”
66.

Rochelle Dreyfuss and Susy Frankel have argued that this mindset has already made

reasoned solutions more difficult in the context of international IP treaties. Rochelle Dreyfuss & Susy
Frankel, From Incentive to Commodity to Asset: How International Law is Reconceptualizing Intellectual
Property 2–4 (New York University, Pub. Law & Legal Theory, Research Paper Series, Working Paper
No. 14-53, 2014).

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And whether your instincts support IP or oppose it, hopefully we can agree that that is not a recipe for
success.

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