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Adam Mossoff, “Intellectual Property and Property Rights”

Week 5

Adam Mossoff, “Intellectual Property and Property Rights”

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Week 5

Executive Summary

Adam Mossoff is Professor of Law at George Mason University. His introductory chapter to Intellectual Property and Property Rights (Edward Elgar, 2013) presents an overview of intellectual property, including patents, copyrights, trademarks, and trade secrets as property rights. 

  1. We grasp more easily the property rights of producers of material goods—a farmer who grew tomatoes, a carpenter who built a house, a miner who dug a load of coal. But what of producers of intangible values—novelists, songwriters, software code developers? 
  2. The first reference to “intellectual property” is by Justice Levi Woodbury (1845): “it is well settled ... that a liberal construction is to be given to a patent, and inventors sustained ... [because] only in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.” 
  3. Historically, many have believed that “patents and copyrights were limited monopoly privileges bequeathed by the government to inventors and authors only because the overall social benefits outweighed the costly evils of these monopolies.” But “the natural rights theory that animated early American patent jurisprudence also informed the creation and development of other IP rights.” (p. xi) 
  4. In our high-tech world of fast innovation, appeal to “hoary” historical analyses of IP may seem irrelevant, but “good historical scholarship can reveal how property concepts and policies have been used to structure and justify the legal rights secured to IP owners” (p. x). Further, our current debates over IP are marked by a “return to first principles precipitated by the digital and biotech revolutions” (p. xii).
  5. The two standard justifications for IP are the labor-desert and the utilitarian theories (p. xiv). The former holds that IP is a reward to creators of value, while the latter holds that the net social benefits (such as incentivizing invention) of granting IP outweigh the costs (e.g., the value that could have been created by those excluded from using the IP). 
  6. Most IP advocates are utilitarian, despite utilitarianism’s many problems—e.g., identifying and measuring empirically the cost/benefit variables “have proven extremely complex and heterogeneous” (p. xv). 
  7. Another sub-issue is the difference in degrees of scarcity of tangible and intangible values. Two farmers cannot both plow and plant the same plot of land, but many “ideas are non-rivalrous and non-exhaustive.” So conceiving of IP as government-monopoly grants seems to conflict with tangible property rights (p. vxi). 
  8. Consequently, “there has been substantial work done in recent years in resuscitating a Lockean or labor-based theory” of IP.

Find Mossoff’s full essay here. The entire 2013 book is here. Summary by Stephen Hicks, 2021.

See Next:

  1. Sandefur, "A Critique of Ayn Rand's Theory of Intellectual Property Rights"
  2. IP and Vaccines: Bill Gates or
  3. Adam Mossoff, "Patents Are Property Rights
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