Abstract

http://ssrn.com/abstract=1000061
 


 



Intellectual Property and the Property Rights Movement


Peter S. Menell


University of California, Berkeley - School of Law


Regulation, Vol. 30, No. 3, Fall 2007
UC Berkeley Public Law Research Paper No. 1000061

Abstract:     
The article examines the recent efforts of the Property Rights Movement to expand the "property tent" to emcompass intellectual property. In eBay v. MercExchange, a case addressing the standard for injunctive relief in patent cases, some property rights advocates argued that the Supreme Court should look to trespass and encroachment cases to establish a strong presumption favoring a right to a permanent injunction. More generally, Professor Richard Epstein has suggested that "structural unity" between real and intellectual property should guide courts and legislatures to use the real property mold in evolving intellectual property law. This article shows that the origins, philosophical foundations, and economic ramifications of real and intellectual property are quite distinct and that uncritically basing intellectual property law on a real property analogy is likely to cause more harm than good. The article also suggests that property rights advocates' effort to expand the "property tent" to include intellectual property is likely to backfire, calling attention to the interdependency of resources and the need for a significant government role in governing allocation and use of property.

Number of Pages in PDF File: 7

Keywords: intellectual property, property rights, peter menell, PRM, government interference, federal regulation, constitutionality, tangible resources, law, philosophy, court decisions, epstein, utilitarianism, structural unity, property tent

JEL Classification: K11

Accepted Paper Series


Download This Paper

Date posted: July 12, 2007  

Suggested Citation

Menell, Peter S., Intellectual Property and the Property Rights Movement. Regulation, Vol. 30, No. 3, Fall 2007; UC Berkeley Public Law Research Paper No. 1000061. Available at SSRN: http://ssrn.com/abstract=1000061

Contact Information

Peter S. Menell (Contact Author)
University of California, Berkeley - School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,692
Downloads: 424
Download Rank: 37,474

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.391 seconds