Intellectual Property and the Law of Land: A Reply to Richard Epstein

Menell, Peter S., Regulation

In his response (pp. 58) to my Fall Regulation article "Intellectual Property and the Property Rights Movement," Professor Richard Epstein misses the gist and key implications of my essay on the extension of the "property" tent to encompass intellectual property. His article implies that I lack sympathy for Susette Kelo's plight, yet my original article is agnostic about the Supreme Court decision expanding what constitutes the public use requirement. I merely highlighted the stark difference between the Kelo case and eBay v. MercExchange. I also did not take issue with the enforcement of intellectual property laws to combat the threats to public health posed by counterfeit drugs and surgical devices. Rather I observed that some property rights activists who seek to enforce those intellectual property rights uncritically deploy property rhetoric to advocate their cause. My essay purposefully does not place nearly as much emphasis on Professor Epstein's 2001 Indiana Law Review article as he would like--for reasons that will become clear below (but I did include the article in my "Readings" list). While attacking points that I did not make, Professor Epstein makes no reference to the clear target of my essay: the views he espoused in his 2006 Progress & Freedom Foundation paper "The Structural Unity of Real and Intellectual Property." That same argument, in advocate's garb, appears in Professor Epstein's recent eBay brief.

Let us consider the key issues raised by my …

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Publication information: Article title: Intellectual Property and the Law of Land: A Reply to Richard Epstein. Contributors: Menell, Peter S. - Author. Magazine title: Regulation. Volume: 30. Issue: 4 Publication date: Winter 2007. Page number: 64+. © 2009 Cato Institute. COPYRIGHT 2007 Gale Group.

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