Skip to main content

Justifications for Intellectual Property Part 1: Utilitarianism

There is no way this tutorial series would be complete without some discussion of justifications for intellectual property. While not necessarily a matter of law, some knowledge of the philosophical foundations will provide a better sense of the values at stake in intellectual property debates. Notice, for instance, that the tutorials on fair use were punctuated with appeals to values, social goods, and individual rights. Without an understanding of the moral and political framework against which the law stands, one can very easily find oneself in a stalemate, with one value pitted against another and no way of deciding which should prevail. To understand the jurisprudence around intellectual property rights, one has to have some idea of the justifying theories to which attorneys and judges appeal in their arguments and decisions. So, without further ado, let's get to the tutorial.

There are three main ways of justifying intellectual property rights: the Utilitarian theory, the Labor-Desert theory, and the Self-Expression theory. I'll discuss each in turn.

Utilitarian Justifications
The Utilitarian justification is unique among the three in that it is actually enshrined in the US Constitution. In this case, the relevant clause actually presents a simple argument, and is worth quoting in full: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Article 1, Section 8, Clause 8). I don't normally employ extensive close reading, but it is merited here. The sentence opens with a clear statement of purpose: the stated goal is to encourage the technological and intellectual progress. The main clause of the sentence outlines the strategy: limited term monopolies over the products of intellectual labor. In many ways, this is a paradigm Utilitarian argument. There is a public benefit or social good that can be gained through an institution that will benefit some individuals (creators) in the short term, but everyone else in the long term.

If you're unfamiliar with Utilitarian thought, here's the basics. Utilitarianism, first articulated by Jeremy Bentham and developed significantly by John Stuart Mill, is the view that the pursuit of happiness and the avoidance of pain are foundational goods. One can then understand morality and social justice in terms of delivering, in Bentham's famous phrase, “the greatest good for the greatest number.” Utilitarian philosophers disagree about exactly how to understand “good” and how to evaluate whether it is really distributed to the greatest number, but the basic idea involves what has been called “hedonic calculus.” In other words, to determine a course of action, one evaluates how much good will arise from the action, and offset that good against the negative consequences (unhappiness, pain, etc) that it might cause. The most correct course of action is the one that produces the most net benefit.

If the notion of a hedonic calculus seems unrefined and overly simple to you, you are not alone. John Stuart Mill and other Utilitarians have spilled much ink refining Bentham's very rough, and sometime bizarre, ideas. Nevertheless, some common strains persist throughout Utilitarian thought. One of the most persistent memes is the emphasis on consequences. Bentham, and Mill after him, were very concerned with empirical evidence and the notion that one had to look to the results of an action to determine its rightness or good. This view is in contrast to thinkers like Immanuel Kant who hold that the intentions or motivations behind an action determine whether or not the action is moral. For the Utilitarian, consequences matter, and therefore, it matters whether an action actually produces the expected consequence. There is a sense that a Utilitarian may make errors in judgment based on incomplete information or inaccuracy of predictions, but there is an accompanying sense that morality and ethics are subject to empirical proof. In other words, the error in judgment is not a fatal thing; it is something one must learn from so as to avoid future mistakes.

How does this apply to intellectual property? Well, the US Constitution appears to argue that intellectual property rights are a means to a social good. We want more creative works and innovative inventions and discoveries. To get them, we offer a carrot, monopoly rights on the writing or discovery. While these monopoly rights mean that the public cannot use protected works as freely as unprotected (public domain) works, creators will be motivated to release their works, to publish books and findings, to license inventions for mass manufacture or sale, etc. Since the term of the monopoly is limited, all works will eventually make their way into the public domain, at which time they can be used, copied, distributed, etc freely, by anyone. A short term sacrifice is endured for the sake of a long term benefit.

In addition, what this should mean is that the public benefit establishes limiting conditions for intellectual property rights. If an intellectual property right would diminish public benefit too severely, it should be rejected. Under a pure Utilitarian framework, intellectual property rights are part of a balancing act, an attempt to get something by giving up something else. A move too far in either direction risks losing out on the main benefit. In this context, fair use can be understood as a compromise. Some uses are held as non-infringing because if those uses were under the exclusive control of the creator, some public benefit would be lost. If authors could suppress critical reviews of their books, some freedom of expression would be lost, and the ability to discuss the works freely would be lost. Since discussion and expression are part of the benefits expected to follow from a proliferation of creative works, such loses are untenable. To speculate on whether our current intellectual property system preserves these benefits, take a look here:

I'll leave you to chew on these issues for a while. In the next installment, I'll take up Labor-Desert justifications.


Popular posts from this blog

RPG Systems: An Analogy with UI Design

The current game in our weekly role-playing group is Deadlands. The previous game was Shadowrun. Both rule systems lie closer to the “chunky” side of the spectrum. Shadowrun has a particular reputation for its complex and somewhat cumbersome rules, and while Deadlands has less overall complexity, the system has a degree of granularity that interrupts play more often than it enhances narration. I enjoy role-playing games because I like participating in a good story. The rules system provides a set of constraints for the characters, the setting, and the conflicts. They help give the narrative structure, a background against which the story will take place. Too few rules, and telling an interesting and well-developed story becomes difficult. Too many rules tend to get in the way of individual scenes or events. With the right balance, it’s possible for the game master, usually me, to be sufficiently fluent in the rules system to resolve any conflict without extended consultation of on

The Incredible Lightness of Collaborative Consumption

Last week, we had to exchange our defective futon frame for a new one. The store didn't want to cover transport cost in either direction, so we had to figure out how to get our re-boxed frame from Mountain View to Los Altos. If we had a car, it would not have been very simple since we were aiming to buy a small sedan, nothing that can easily carry the frame and its box. Fortunately, we have a car sharing service that gives us access to a range of vehicles, including a van stored down the street from my building. After work, I grabbed the van, picked up the frame at our place, and then Tara and I drove to the futon to make the swap. I dropped off Tara and the new frame at our place, and then headed back to campus. On returning the van to its parking space, I hopped on a shuttle back to downtown Mountain View. We were able to do all of this because we're not tied to a specific vehicle for all of our transportation needs. The last car we owned was a van, and it came in handy o

Carless in California

For various reasons, we do not own a car despite living deep in American car country. The reasons are largely financial; the cost of living in downtown Mountain View crowds car ownership out of our budget. We pay more to live in a pedestrian friendly neighborhood, so we are less able to afford a car. At the same time, I don't need a car to get to work, and Tara doesn't drive, so any car we had would sit in the carport most of the week. Combine that waste of resources with a reluctance to contribute to the Bay Area's traffic congestion, and forgoing car ownership doesn't sound all that bad. Car sharing services allow us to grab a vehicle as long as we plan ahead a bit. The Caltrain provides access to San Francisco. There are convenience stores and cafes in walking distance, so we don't feel the absence of a car too often. Last night was one of the few times where I did. After getting home from work, we wanted a dinner cheaper than nearby delivery options. The n