Abstract

http://ssrn.com/abstract=2165442
 


 



On Cowbells in Rock Anthems (and Property in IP): A Comment on Justifying Intellectual Property


Eric R. Claeys


George Mason University

October 22, 2012

San Diego Law Review, Forthcoming
George Mason Law & Economics Research Paper No. 12-71

Abstract:     
This article contributes to a symposium issue on the Philosophical Foundations of Intellectual Property. In a popular Saturday Night Live skit, a famous record producer helps a rock band record a rock anthem by demanding maniacally that the band put more cowbell on the recording. This article reviews Justifying Intellectual Property (2011), by Robert Merges, in a similar spirit.

Justifying Intellectual Property challenges contemporary IP scholarly sensibilities by arguing that IP is better justified on moral, rights-based foundations than on economic or other utilitarian foundations. The book provides an excellent moral defense of property rights in copyright and patent. It provides an excellent account of at least one set of rights-based foundations for IP, i.e. Lockean theory. It also provides an extremely helpful framework for explaining how rights-based foundations get implemented into specific IP doctrines. However, as the record producer could have used a little more cowbell on the rock anthem, so Merges could have used a little more property theory in his account of how IP law implements rights-based foundations in practice. This article illustrates its praises and criticisms using the damages-versus-injunction remedy question considered by the U.S. Supreme Court in eBay v. MercExchange (2006).

Number of Pages in PDF File: 37

Keywords: accession, America Bell Telegraph Co., Anthony Kennedy, Blue Oyster Cult, Bruce Dickinson, Christopher Walken, Continental Paper Bag, Don’t Fear the Reaper, Eric Bloom, Gordon Hull, John Locke, Jules Coleman, Peter Monell, proportionality, Richard Posner, Roberts, SNL, Scalia, William Landes

JEL Classification: K11, O34

Accepted Paper Series


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Date posted: October 22, 2012 ; Last revised: February 5, 2013

Suggested Citation

Claeys, Eric R., On Cowbells in Rock Anthems (and Property in IP): A Comment on Justifying Intellectual Property (October 22, 2012). San Diego Law Review, Forthcoming; George Mason Law & Economics Research Paper No. 12-71. Available at SSRN: http://ssrn.com/abstract=2165442

Contact Information

Eric R. Claeys (Contact Author)
George Mason University ( email )
3301 Fairfax Drive
Room 420
Arlington, VA 22201
United States
(703) 993-8247 (Phone)
(703) 993-8202 (Fax)
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