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.
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: http://www.boingboing.net/2011/06/15/duke-nukem-publicist.html
I'll leave you to chew on these issues for a while. In the next installment, I'll take up Labor-Desert justifications.
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