Is Nozick Kicking Rawls's Ass? Intellectual Property and Social Justice

Abstract:     
Is the libertarian vision of Nozick in ascendance in intellectual property, overshadowing Rawls's egalitarianism? Yes, and rightly so, some intellectual property scholars suggest. They argue that intellectual property law seeks to solve a fundamental problem of information economics: without intellectual property protections, the ready duplicability of information undermines incentives to create information. Armed with this economic insight and fortified a neo-liberal faith that markets with well-defined property rights in information will best promote liberty, these scholars would keep intellectual property's focus single-minded: to incentivize the production of information.

In this introduction to a symposium on "Intellectual Property and Social Justice," we argue that this view is too narrow. A variety of societal goals must inform intellectual property law because (1) understanding intellectual property's impact on a variety of social values helps us restrain maximalist intellectual property demands; (2) relying on the tax and welfare systems to remedy any resulting distributional deficiencies is unrealistic; (3) the raison d'etre of Western intellectual property laws is not necessarily globally scalable because of varying capacities to innovate; (4) we must attend to the kind of innovation that law spurs (for example, does the existing regime adequately incentivize the discovery of treatments for poor people's diseases?); and (5) we can best understand fair use doctrine not just as market failure but as an important component of free speech.

The fact that a legal regime might be created for one purpose should not mean that the implications of that regime for all other purposes should be ignored. The state raises an army because of the need to assure its security against foreign invasions. Yet, the state might deploy the army domestically in case of natural disasters. And it might establish limits on how the army might operate (such as prohibitions on torture and sexual harassment) - limits stemming not necessarily from self-defense but from other human values. Similarly, the fact that intellectual property law might be established for instrumental reasons does not mean that other purposes should not be considered when we set its metes and bounds.

Number of Pages in PDF File: 18

Keywords: intellectual property, distributive justice, Robert Nozick, John Rawls, incentives, information, social justice

Accepted Paper Series