This article was given impetus by an invitation to participate in a debate and symposium, “Intellectual Property—Theoretical Underpinnings or Pure Pragmatism?”, co-hosted by the Ontario Center for Innovation Law and Policy and the University of Western Ontario Faculty of Law, February 10, 2003, in London, Ontario. I would like to thank Margaret Ann Wilkinson, Samuel Trosow, Mark Perry, Brian Fitzgerald, Robert Howell, and Graeme Austin for all of their suggestions and comments.

1. See James Meek, “Patenting life: Human genetic patenting: Why you are first in the great gene race: The rush for rights to your body is under way and already patents have been applied for on a fantastic 127,000 bits of your genes”, Guardian Special Supplement 4 (November 15, 2000). For an in-depth analysis of many of the issues that surround patenting gene fragments (ESTs), see Holman, Molly A. & Munzer, Steven R., “Intellectual Property Rights in Genes and Gene Fragments: A Registration Solution for Ex Pressed Sequence Tags” (2000) 85 Google Scholar Iowa L. Rev. 735.

2. Rosen, Jeffrey The Unwanted Gaze: The Destruction of Privacy in America (New York: Random House, 2000).Google Scholar

3. See Brin, David, The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom? (Reading, MA: Addison-Wesley, 1998).Google Scholar

4. Berne Convention for the Protection of Literary and Artistic Works (Sept. 9, 1886) (as last revised at Paris, July 24, 1971) (amended 1979).

5. See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (April 15, 1994), Annex IC: Agreement on Trade-Related Aspects of ‘Intellectual Property Rights, reprinted in “The Results of the Uruguay Round of Multilateral Trade Negotiations—The Legal Texts” edited by GATT Secretariat (Geneva, 1994), 119, 365403. See also, Marci Hamilton “The TRIPS Agreement: Imperialistic, Outdated, and Overprotective” in Moore, Adam D., ed., Intellectual Property: Moral, Legal, And International Dilemmas (Lanham, MD: Rowman & Littlefield, 1997) 243.Google Scholar

6. See, for example, Patent Cooperation Treaty (Washington June 19, 1970), (amended September 28, 1979), (modified February 3, 1984, and October 3, 2001), and Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, (Budapest, April 28, 1977), (amended on September 26, 1980).

7. See Hamilton, supra note 5.

8. See, for example, Ku, Raymond Shih Ray, “The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology” (2002) 69 U. Chi. L. Rev. 263 CrossRefGoogle Scholar.

9. See infra notes 37-49 and accompanying text.

10. U.S. Const. art. I, § 8, cl. 8.

11. Brian Fitzgerald, “Digital Property: The Ultimate Boundary?” (Fall 2001) 7 Roger Williams U. L. Rev. 47. Fitzgerald cites Welcome Real-Time SA v. Catuity Inc [2001] F.A.C. 445 at para. 129; Vaver, David, Intellectual Property Law (Concord, ON: Irwin Law, 1997) 613 Google Scholar; Fewer, David, “Constitutionalizing Copyright: Freedom of Ex Pression and the Limits of Copyright in Canada” (1997)Google Scholar U.T. Fac. L. Rev. 55 at 187-93.

12. The Sonny Bono Copyright Term Extension Act, signed into law on October 27, 1998. Eldred v. Ashcroft (01618) 239 F3d 372, affirmed.

13. A&M Records, Inc.v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

14. For an in-depth presentation and defense of a Lockean theory of intellectual property and information control see Moore, Adam D., Intellectual Property and Information Control: Philosophic Foundations and Contemporary Issues (New Brunswick , NJ: Transaction Publishing, 2001).Google Scholar

15. See, for example, Peirce, Charles S., “Questions Concerning Certain Faculties Claimed for Man” (1868)Google Scholar J. Speculative Phil. 103.

16. See, for example, James, William, Pragmatism and Other Essays (New York: Washington Square Press, 1963).Google Scholar

17. See, for example, Dewey, John, The Quest for Certainty: A Study of the Relation of Knowledge and Action (New York: Putnam, 1929).Google Scholar

18. Heidegger, Martin, Being and Time, trans. Macquarrie, John & Robinson, Edward (New York: Harper, 1962).Google Scholar

19. Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. Rehg, William (Cambridge, MA: MIT Press, 1996).Google Scholar

20. Rorty, Richard, Philosophy and the Mirror of Nature (Princeton, NJ: Princeton University Press, 1979).Google Scholar

21. Wells, Catharine, “Situated Decisionmaking” in Brint, Michael & Weaver, William, eds., Pragmatism in Law & Society (Boulder, CO: Westview Press, 1991) at 275 Google Scholar quoted in Cotter, Thomas, “Legal Pragmatism and the Law and Economics Movement” (1996) 84 Geo. L.J. 2071 at 20–79 Google Scholar.

22. See Cotter, ibid. at 2087-88.

23. Wellman, Vincent, “Practical Reasoning and Judicial Justification: Toward an Adequate Theory” (1985) 57 Google Scholar U. Colo. L. Rev. 45.

24. Farber, Daniel A., “The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law” (1992) 45 Vander. L. Rev. 533 Google Scholar.

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26. Nozick, Robert, Invariances: The Structure of the Objective World (Cambridge, MA: Belknap Press of Harvard University Press, 2001) at 26.Google Scholar “William James tells the story of a person approaching him after a lecture and saying ‘The world rests on a large turtle.’ ‘And what does the turtle rest upon?’ James asked. ‘Another turtle,’ said the person. ‘And what... ‘ began James, who was then interrupted: ‘Professor James, it’s turtles all the way down.’ There cannot be social constructions all the way down.” Ibid.

26a. Dworkin, Ronald, Law’s Empire (1986) at 188 Google Scholar.

27. Rorty, Richard, Contingency, Irony, and Solidarity (Cambridge, NY: Cambridge University Press, 1989) at 189.CrossRefGoogle Scholar

28. Stanley Fish, “Almost Pragmatism” in Brint & Weaver, eds., supra note 21.

29. Kennedy, Duncan, “Legal Education as Training for Hierarchy” in Kairys, David, ed., The Politics of Law: A Progressive Critique (New York: Basic Books, 1998).Google Scholar

30. Nussbaum, Martha, “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism” (1992) 20 Pol. Theory 202 CrossRefGoogle Scholar. At the end of his contribution to this volume Brian Fitzgerald claims that theory will not accommodate all interests and preferences. Echoing Nussbaum, I am happy that some interests—say those of the pedophile, racist or slave owner— are not accommodated.

31. Posner, Richard, Overcoming Law (Cambridge, MA: Harvard University Press, 1995) at 379 Google Scholar. See also Posner, Richard, The Problematics of Moral and Legal Theory (Cambridge, MA: Belknap Press of Harvard University Press, 1999) at 241.Google Scholar In the first part of this work Posner offers a critique of what he calls “academic moral theorizing.” I can’t help but note that one criticism Posner offers is that academic moral philosophers offer critiques of economic theory when such theories are specialized fields of study. Posner thinks that these critiques are laughable because most, if not all, of their authors will not have had the time to master the science of economics. But surely morally theory, including normative ethics, metaethics, and applied ethics, is an equally rich and specialized field of study. Posner’s critique of moral theory is equally laughable.

32. Smith, Steven, “The Pursuit of Pragmatism” (1990) 100 Yale L.J. 409 at 434 Google Scholar.

33. “Those who started using the word property in connection with inventions had a very definite purpose in mind: they wanted to substitute a word with a respectable connotation, ‘property,’ for a word that had an unpleasant ring, ‘privilege.’” Machlup, & Penrose, , “The Patent Controversy in the Nineteenth Century” (1950) 10 Google Scholar J. Econ. History 1 at 16.

34. Bugbee, Bruce, Genesis of’American Patent and’Copyright Law (Washington, DC: Public Affairs Press, 1967) at 21.Google Scholar

35. Tom Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Approach” in Moore, ed., supra note 5 quoting Bugbee, ibid. at 40.

36. Ringer, Barbara, “The Demonology of Copyright” in Altbach, Philip G. & McVay, Sheila, eds., Perspectives on Publishing (Lexington, MA: Lexington Books, 1976) at 38.Google Scholar

37. See Parton, James, “International Copyright” in The Atlantic Monthly (October 1867)Google Scholar. See also Mark Ward, “Copyright rows ring down the centuries”, Online: BBC World News http://news.bbc.co.uk/1/hi/sci/tech/2002379.stm (date accessed: May 22, 2003).

38. Bugbee, supra note 34 at 39.

39. Miller v. Taylor (1769), 4 Burr. 2303.

40. Donaldson v. Becket (1774), 4 Burr. 2408.

41. See Fitzgerald supra note 11, citing W. Fisher, “Theories of Intellectual Property” in Munzer, Stephen R., ed., New Essays in the Legal and Political Theory of Property (Cambridge: Cambridge University Press, 2000)Google Scholar, Brian Fitzgerald distinguishes four different theories of intellectual property. 1. Economic/utilitarian: intellectual property is justified in terms of economic efficiency. 2. Lockean/labor desert: intellectual property rights are natural rights earned through adding labor to the common resource of information with the proviso that enough and as good is left for others. 3.Personhood: intellectual property is an emanation of the person and the law should facilitate this personal aspect. 4. Social planning: intellectual property law should be designed to culturally enrich democratic society. The utilitarian view, as I understand it is to aim at cultural enhancement or ‘social progress.’ Economic efficiency is only one part of maximizing social progress. Access restrictions are supposed to bring about more cultural enhancement—in the long run. In fact, on this view the only reason to give authors and inventors intellectual property rights is to insure social progress-intellectual property rights are supposed to ensure that there will be more access to more intellectual works. If correct there is no important difference between Fisher theory 1 and 4.

42. See generally, Oppenheim, C., “Evaluation of the American Patent System” (1951) 33 J. Pat. Off. Soc’y; Palmer, supra note 35 and “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects” (1990) 13 Harv. J. L. & Pub. Pol’y 817 Google Scholar; Ejan Mackaay, “Economic Incentives in Markets for Information and Innovation” ibid at 867; Roger Meiners & Robert Staaf “Patents, Copyrights, and Trademarks: Property or Monopoly?” ibid at 911; Boonin, Leonard G., “University, Scientific Research, and the Ownership of Knowledge” in Weil, Vivian & Snapper, John W., eds., Owning Scientific and Technical Information: Value and Ethical Issues (New Brunswick and London: Rutgers University Press, 1989) at 257–60 Google Scholar; Arthur Kuflik, “Moral Foundations of Intellectual Property” in Weil & Snapper, eds., ibid 219; Edwin C. Hettinger, “Justifying Intellectual Property” in Moore, ed., supra note 5 at 30; Carey, David, The Ethics of Software Ownership (1989)Google Scholar (unpublished, Ph.D. dissertation, University of Pittsburgh); Croskery, Patrick, “Institutional Utilitarianism and Intellectual Property” (1993) 68 Chi.-Kent. L. Rev. 631 Google Scholar; Landes, William & Posner, Richard, “An Economic Analysis of Copyright Law” (1989) 18 J. Legal Stud. 325 CrossRefGoogle Scholar; and Machlup, Fritz, The Production and Distribution of Knowledge in the United States (Princeton, NJ: Princeton University Press, 1962)Google Scholar.

43. See Francis, W. & Collins, R., Cases and Materials on Patent Law: Including Trade Secrets Copyrights Trademarks, 4th ed. (St. Paul, MN: West Publishing Company, 1987) at 92–93.Google Scholar Wheaton v. Peters 8 Pet. 591, (1834). See also “Copyright Enactments of the United States, 1783-1906” (1906) 3 Copyright Office Bulletin at 14. “Unquestionably, the 1834 decision marked an important turning-point, in that it distances American copyright law from the natural law perspectives which were very much in evidence at the end of the eighteenth century.” Strowel, Alain, “Droit d’auteur and Copyright: Between History and Nature” in Sherman, Brad & Strowel, Alain, eds., Of Authors and Origins (Oxford: Clarendon Press, 1994) 245.Google Scholar C., Edward Walterscheid, “Inherent or Created Rights: Early Views on the Intellectual Property Clause” (1995) 19 Hamline L. Rev. 81.Google Scholar Nevertheless anomalies still pop up. “In 1984 the Supreme Court cited Locke when it held that intangible ‘products of an individual’s labor and invention’ can be ‘property’ subject to the protection of the Takings Clause.” Gordon, Wendy J., “A Property Right in Self-Ex Pression: Equality and Individualism in the Natural Law of Intellectual Property” (1993) 102 Yale L. J., 1533 at 1557 Google Scholar, citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984).

44. This view is echoed by the committee report that accompanied the 1909 Copyright Act. “In enacting a copyright law Congress must consider … two questions: First how much will the legislation stimulate the producer and so benefit the public, and, second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly.” Committee Report accompanying the 1909 Copyright Act H.R. Rep. No. 2222, 60th Cong., 2nd Sess. 7 1909. See also, Sony Corp. of America v. Universal Studios Inc., 464 US 417, 78 L. Ed 2d. 574 (1984).

45. See Nelkin, Dorothy, Science as Intellectual Property: Who Controls Research? (New York: Macmillan, 1984) at 15.Google Scholar

46. See the Committee Report accompanying the 1909 Copyright Act, supra note 44. The courts have also reflected this theme: “The copyright law … makes reward to the owner a secondary consideration.” United States v. Paramount Pictures Inc. 334 US 131 (1948) “The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims on the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and other arts.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 95 S.Ct. 2040, 45 L.Ed.2d 84 (1975).

47. In 1988 the United States became the seventy-eighth nation to join the Berne Copyright Convention, supra note 4. Along with the economic rights previously mentioned, the Berne Convention grants authors rights of paternity and integrity. In recent years, to reflect statutes found in the Berne Convention Treaty, the United States has moved to expand copyright protection to include creator’s rights. See 17 U.S.C. § 106(a)(1990). These rights are non-economic, however, and in many cases run against social progress justifications.

48. See 17 U.S.C. § 106.

49. See 35 U.S.C.A. § 154 (1984 and Supp., 1989).

50. See 15 U.S.C.A. § 1057(b), 1060, 1065, 1072.

51. The well-known German classical liberal Wilhelm von Humboldt also championed the non-economic rights of authors and inventors. Humboldt argued that the full development of individual potential, capacities, and talents, requires the protection of both economic property rights and creator’s rights. See, Humboldt, W. von The Limits of State Action, trans. Coulthard, J. (London: Cambridge University Press, 1969).CrossRefGoogle Scholar

52. The colorization of movies provides an interesting case with respect to creator’s rights. Would coloring old black and white movies and rebroadcasting them constitute deformation or mutilation? Many European systems give authors such control. An even better example comes from the case of Alan Douglas and the Jimi Hendrix estate. At one time, Douglas remastered a number of Hendrix songs adding new bass and drums, a second guitar, and backup singers. Needless to say, the Hendrix faithful were outraged that these altered songs were advertised as Hendrix originals.

53. My exposition in the next few paragraphs draws directly from Tom Palmer’s analysis. See Palmer, “Are Patents and Copyrights Morally Justified?” supra note 42 at 841-43.

54. C. civ. art. 543, Code Pénal [C.pén.] arts. 425429 (“Law of March 11, 1957 on literary and artistic property”); see Loi du 11 mars 1957 sur la propriété littéraire et artistique, 1957 Journal Officiel de la République Française [J.O.] 2723, 1957 Recueil Dalloz Législation [D.L.] 102 (for amendments and cases interpreting the statute); and Damich, Edward, “The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights of Authors” (1988) 23 Ga. L. Rev. 1 Google Scholar.

55. Cinquin v. Lecocq Req. Sirey, 1900.2.121, note Saleilles (1902)(cited in Stromholm, S., I Le Droit Moral De L’Auteur (1966), 285 Google Scholar.

56. Kohler, Josef, Urheberrecht An Schriftwerken Und Verlagsrecht (1907) at 15 Google Scholar, quoted in Damich, supra note 54 at 29.

57. See Markey, Thomas, “Let Artists Have a Fair Share of Their Profits,” New York Times (December 20, 1987)Google Scholar sec. 3, at 2, col. 2.

58. Thus when the Scientologist preaches to us telling us how we ought to live she is throwing ideas out into the commons of thought and discussion. Minimally, if no ex Pressions are copied a critique of these ideas is perfectly appropriate. See Maxtone-Grahamv. Burtchaell, 803 F.2d 1253 (2d Cir.), cert. denied, U.S. 1059 (1987).

59. Would this would be akin to arguing that by allowing others to see your car you have thereby renounced all claims to it?

60. Lynn Sharp Paine, “Trade Secrets and the Justification of Intellectual Property: A Comment On Hettinger” in Moore, ed., supra note 5 at 41.

61. Spooner, Lysander, “The Law of Intellectual Property: or An Essay on the Right of Authors and Inventors to a Perpetual Property in Their Ideas” in Shively, C., ed., The Collected Works of Lysander Spooner (Weston, MA: M & S Press, 1971).Google Scholar

62. Parts of this section draw from Adam D. Moore, “Intellectual Property, Innovation, and Social Progress: The Case Against Incentive Based Arguments” Hamline L. J. (forthcoming April 2003). Graeme Austin in his contribution to this volume notes that theoretical notions like ‘natural rights’ play almost no role in modern intellectual property lawmaking. What is the case, however, should not hinder progress toward or cause us to lose sight of what should be the case.

63. Polanvyi, Michael, “Patent Reform” (1944) 11 Rev. Econ. Stud. 61 Google Scholar.

64. Wright, Brian “The Economics of Invention Incentives: Patents, Prizes, and Research Contracts” (1983) 73 Am. Econ. Rev. 691 Google Scholar.

65. Michael Kremer offers an auction model where the government would pay inventors the price that obtains from the public sale of the innovation. See Kremer, Michael, “Patent Buyouts: A Mechanism for Encouraging Innovation” (1998) 113 Q.J. Econ. 1137 Google Scholar. See also Michele Boldrin & David K. Levine “Perfectly Competitive Innovation”, Online: http://www.econ.umn.edu/mboldrin/Papers/pci37.pdf (date accessed: May 22>, 2003).

66. Shavell, Steven & Van Ypersele, Tanguy, “Rewards versus Intellectual Property Rights” (2001) 44 J. Law. & Econ. 525 Google Scholar.

67. See Meiners & Staaf, supra note 42 at 929.

68. See Machlup, supra note 42 at 36.

69. See supra note 66 at 543.

70. Fritz Machlup suggests that large corporations (who own the majority of patents) may hinder general technological progress by controlling entire industries. See Machlup, supra note 42 at 168-75. An obvious example would be Microsoft’s control of computer operating systems. Microsoft has captured between sixty and eighty percent of the world market and has patented and copyrighted its operating systems.

71. Machlup argues that patent protection is not needed as an incentive for corporations, in a competitive market to invest in the development of new products and processes. The short-term advantage a company gets from developing a new product and being the first to put it on the market may be incentive enough. Ibid. at 168-69.

72. Copy-protection schemes are currently available for any kind of intellectual property that takes digital form. See John Perry Barlow “The Economy of Ideas: Everything You Know About Intellectual Property is Wrong” in Moore, ed., supra note 5 at 349.

73. Trade secret protection appears to be the most troubling from a social progress perspective. Given that no disclosure is necessary for trade secret protection, there are no beneficial trade-offs between promoting behavior through incentives and long-term social benefit. From a rule-utilitarian point of view the most promising aspect of granting intellectual property rights is the widespread dissemination of information and the resulting increase in social progress. Trade secret protection allows authors and inventors the right to slow the dissemination of protected information indefinitely—a trade secret requires secrecy. Unlike other regimes of intellectual property, trade secret rights are perpetual. See the Restatement (Third) of Unfair Competition § 39-45 (1995). This means that so long as the property holder adheres to certain restrictions, the idea, invention, product, or process of manufacture may never become common property. The two restrictions on trade secrets are the requirements of secrecy and competitive advantage. See Forest Laboratories, Inc. v. Pillsbury Co., 452 F.2d 621 (7th Cir. 1971), and E.I. duPont deNemours & Co., Inc. v. Christopher, 431 F.2d 1012 (5th Cir. 1970).

74. 17 U.S.C. § 107. See also, Folsomv. Marsh, 9 F. Cas. 342 (CCD. Mass. 1841) (No. 4,901).

75. For radical deconstructionist arguments calling for the elimination of copyright and patent protection see Palmer, supra note 42.

76. 17 U.S.C. § 102(b) (1988) states, “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

77. See ibid.; International News Service v•. Associated Press 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918); Millerv. Universal City Studios, Inc. 224 USPQ 427 (1984, DC Cal); and Midas Productions, Inc. v. Baer 199 USPQ 454 (1977, DC Cal).

78. Midas, ibid

79. H.R.2281 Digital Millennium Copyright Act (1998).

80. Ku, Raymond Shih Ray, “The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology” (2002) 69 U. Chi. L. Rev. 263 Google Scholar.

81. A&M Records, Inc. v. Napster, Inc., supra note 13.

82. ‘Bloated’ because the RIAA assumed that those who received free copies would have purchased a copy.

83. Supra note 12.

84. “As Lord Macaulay said of a piece of legislation that would have increased copyright term to a length less than that granted by the Bono Act, ‘it leaves the advantages nearly what they are at present, and increases the disadvantages at least four fold.’” Gordon, Wendy J., “Symposia: The Constitutionality of Copyright Term Extension: How Long Is Too Long?” (Panelists included Ginsburg, Jane C., Gordon, Wendy J., Miller, Arthur R., Patry, William F.) (2000) 18 Cardozo Arts & Ent. L. J. 678 Google Scholar, quoting Macaulay, Thomas in Macaulay: Prose and Poetry (Cambridge, MA: Harvard University Press, 1967) at 733.Google Scholar One reply typically given is that legislators were trying to bring US legal code into harmony with Berne Convention standards of the near future. But again, no world wide cost benefit analysis was conducted to see if such extensions would maximize social progress.

85. Priest, George, “What Economists Can Tell Lawyers about Intellectual Property” (1996) 8 Research In Law and Economics: The Economics of Patents and Copyrights 19 at 19, 21Google Scholar.

86. See Machlup supra note 42. Long, Clarisa, “Patents and Cumulative Innovation” (2000) 2 Wash. U. J. L. & Pol’y 229 Google Scholar.

87. “We conclude in our model that intellectual property rights do not possess a fundamental social advantage over reward systems …” Supra note 66 at 525. “The article concludes … that in the case of the fine arts the intellectual property laws do not perform the stimulative purpose that is commonly ascribed to them.” Gifford, Daniel, “Innovation and Creativity in the Fine Arts: The relevance and Irrelevance of Copyright” (2000) 18 Cardozo Arts & Ent. L. J. 569 Google Scholar.

88. A more detailed discussion of the issues taken up in this section are addressed in earlier works. See Adam D. Moore, supra note 14; “A Lockean Theory of Intellectual Property” (1997) 21 Hamline L. Rev. 65 Google Scholar; “Intangible Property: Privacy, Power, and Information Control” (1998) 35 Am. Phil. Quart. 365; and “Toward A Lockean Theory of Intellectual Property” in Adam D. Moore, ed., supra note 5.

89. For an in-depth critique of social progress incentive arguments for intellectual property see Adam D. Moore, “Intellectual|Property, Innovation, and Social Progress: The Case Against Incentive Based Arguments”, supra note 62.

90. See supra note 88.

91. Adapted from Cohen, G. A., “The Pareto Argument For Inequality” (1995) 12 Social Phil. & Pol’y 160 Google Scholar.

92. Locke, John, Two Treatises of Government, edited by Laslett, Peter (New York: New American Library, 1965) § 33 Google Scholar.

93. I have in mind is Robert Nozick’s Robinson Crusoe case in Anarchy, State, and Utopia (New York: Basic Books, 1974) at 185.

94. The distinction between worsening someone’s position and failing to better it is a hotly contested moral issue. See Gauthier, David, Morals By Agreement (Oxford: Clarendon Press, 1986) at 204 Google Scholar; Kagan, Shelly, The Limits of Morality (New York: Oxford University Press, 1989 Google Scholar) at ch. 3; Harris, John, “The Marxist Conception of Violence” (1973-74) 3 Phil. & Pub. Affairs 192 Google Scholar; Kleinig, John, “Good Samaritanism” (1975-76) 5 Phil. & Pub. Affairs 382 Google Scholar; and Mack’s, Eric two articles, “Bad Samaritanism and the Causation of Harm” (1979-80) 9 Phil. & Pub. Affairs 230 Google Scholar, and “Causing and Failing To Prevent” (1976) 7 Southwestern J. Phil. 83.

95. Fressola, Anthony, “Liberty And Property: Reflections On The Right of Appropriation In The State of Nature” (1981) 18 Am. Phil. Quart. 317 at 320Google Scholar.

96. For similar views see: Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971)Google Scholar at ch. VII.; Aristotle, Ethics, Nicomachean, bks. I and X; Kant, Immanuel, The Fundamental Principles of the Metaphysics of Morals, trans. Abbott, T.K. (Buffalo, NY: Prometheus Books, 1987)Google Scholar; Sidgwick, Henry, Methods of Ethics, 7th ed. (London, Macmillian Publishing, 1907)Google Scholar; Perry, R. B., General Theory of ‘Value (New York: Longmans, Green, 1926)Google Scholar; and Lomasky, Loren, Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987).Google Scholar

97. For a similar, yet still mistaken, view of the baseline see Waldron, Jeremy “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property” (1993) 68 Chi.-Kent L. Rev. 841 at 866.Google Scholar This sort of baseline confusion infects Wendy Gordon’s work on Locke. See, for example, Wendy J. Gordon, supra note 43.

98. Justification for the view that labor or possession may generate prima facie claims against others could proceed along several lines. First, labor, intellectual effort, and creation are generally voluntary activities that can be unpleasant, exhilarating, and everything in-between. That we voluntarily do these things as sovereign moral agents may be enough to warrant noninterference claims against others. A second, and possibly related justification, is based on desert. Sometimes individuals who voluntarily do or fail to do certain things deserve some outcome or other. Thus, students may deserve high honor grades and criminals may deserve punishment. When notions of desert are evoked claims and obligations are made against others—these non-absolute claims and obligations are generated by what individuals do or fail to do. Thus in fairly uncontroversial cases of desert, we are willing to acknowledge that weak claims are generated and if desert can properly attach to labor or creation, then claims may be generated in these cases as well. Finally, a justification for the view that labor or possession may generate prima facie claims against others could be grounded in respect for individual autonomy and sovereignty. As sovereign and autonomous agents, especially within the liberal tradition, we are afforded the moral and legal space to order our lives as we see fit. Simple respect for individuals would prohibit wresting from their hands an unowned object that they acquired or produced. I hasten to add that at this point we are trying to justify weak noninterference claims, not full-blown property rights.

99. Suppose Fred appropriates a grain of sand from an endless beach and paints a lovely, albeit small, picture on the surface. Ginger, who has excellent eyesight likes Fred’s grain of sand and snatches it away from him. On this interpretation of Locke’s theory, Ginger has violated Fred’s weak presumptive claim to the grain of sand. We may ask, what legitimate reason could Ginger have for taking Fred’s grain of sand rather than picking up her own grain of sand? If Ginger has no comparable claim, then Fred’s prima facie claim remains undefeated. An undefeated prima facie claim can be understood as a right. For a defense of this view of rights see Rainbolt, George W, “Rights as Normative Constraints on Others” (1993) 53 Phil. & Phen. Research 93 Google Scholar, and Feinberg, Joel, Freedom and Fulfillment: Philosophical Essays (Princeton, NJ: Princeton University Press,1992)Google Scholar.

100. See 35 U.S.C. § 154.

101. Another, quite different, problem is the assumption that had X not been invented it would have been invented sometime later by someone else. This may be true for some intellectual creations but it is most likely not always true. Some creations are so ingenious and unique that had their original inventor not created them they may have never existed. Take for example, J. R. R Tolkien’s famous trilogy The Lord of the Rings. Is it really plausible to maintain that had Tolkien not created this ex Pression that someone else would have sometime later? Is it even plausible to maintain that someone else would have come up with something substantially similar? I think not. It may be actually worse than this, especially in the realm of fine arts. Is it plausible to maintain that had Picasso not painted or Bach not created that someone else sometime later would have created similar ex Pressions? Lysander Spooner puts the point nicely. “Who can say, or believe, that if Alexander, and Caesar, and Napoleon had not played the parts they did in human affairs, there was another Alexander, another Caesar, another Napoleon, standing ready to step into their places, and do their work? Who can believe that the works of Raphael and Angelo could have been performed by other hands then theirs? Who can affirm that anyone but Franklin would ever have drawn the lightnings from the clouds? Yet who can say that what is true of Alexander, and Caesar, and Napoleon, and Raphael, and Angelo, and Franklin, is not equally true of Arkwright, and Watt, and Fulton, and Morse? Surely no one.” Spooner, supra note 61 at 67.

102. Nozick, supra note 93 at 182.

103. For more about fair use see: Sony Corporation of America v. Universal City Studios, Inc., supra note 44; Pacific and Southern Co., Inc. v. Duncan, 744 F2d 1490, cert denied47‘1 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985); Time Inc v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968); Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, Inc. 621 F.2d 57 (2nd Cir., 1980); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); Salingerv. Random House, Inc., 811 F.2d 90, cert denied 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987); Fisher v. Dees, 794 F2d 432 (9th Cir., 1986).

104. See 17 U.S.C. § 109(a).

105. There is also the following problem. “The first sale doctrine does not translate easily to the online environment, where most versions of the work are in an intangible format, whether stored, transmitted, or viewed onscreen. Until the work is printed onto paper (or perhaps saved to a floppy disk), there is no corporeal version of the work under traditional copyright notions. The online environment makes it tempting to view copyright law a relic of the past or the first sale doctrine as a simple inconvenience.” Hamilton, supra note 5 at 249.

106. When hearing these sentiments I sometimes get the feeling that turf is being protected rather than lofty ideals being voiced.

107. Lomasky, supra note 96 at 18: “A century that has witnessed the Holocaust and the Gulag is not one which can aptly be characterized as paying too much heed to basic rights.”

108. In many cases the ‘Library market’ is the primary area of sale.