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

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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 essay. My central point is that intellectual property deserves its own edifice. Professor Epstein's response fully acknowledges that governance of intellectual property involves a complex public policy balance that differs in fundamental ways from the realm of real property governance, hence his opposition to the 1998 copyright term extension and his thoughtful concerns about the scope of gene patents. He also seems to acknowledge that the dynamism of technology justifies a more flexible legal and policy framework--as when he discusses Intel v. Hamidi. Yet he often contradicts those concerns, reverting to equating cyberspace with physical space or intangible property with tangible property

There are, to be sure, important similarities between the governance of intellectual property and real property, just as there are similarities between the governance of intellectual property and entitlement programs. But it is better to look to first principles of economic analysis and to comparative institutional analysis than to freighted analogies. I believe that the governance of all resources can usefully be understood within a dynamic, multi-institutional framework (see the 2002 article that I coauthored in the St. Louis University Law Review)--but that framework needs to be far richer than the version of the "land" system that Professor Epstein propounds. (This is reflected in his directing the Supreme Court to an anachronistic Blackstonian encroachment case in the eBay brief while failing to take note of more modern and less absolutist good faith improver statutes and doctrines.) Professor Epstein acknowledged as much in his 2001 article where he wrote: "The task of analogy becomes still more difficult when we deal with the law of animals, oil and gas, water rights (which itself is governed by multiple different regimes), or air rights." What does he cite in support of this proposition? The 1998 textbook Property Law and Policy: A Comparative Institutional Perspective that I co-authored with John P. Dwyer. Epstein concludes by noting that "we can understand how and why [intellectual property] systems both follow on, and diverge from, the law of land."

This is the key issue. My essay in the fall issue of Regulation questioned overreliance on claims of "structural unity" between real and intellectual property systems--a failing of Professor Epstein's 2006 Progress & Freedom Foundation paper, not his 2001 law review article. Rather than respond to my criticism of his more strident 2006 position, Professor Epstein circles back to his earlier, more balanced view. …