Regime Change in Intellectual Property: Superseding the Law of the State with the 'Law' of the Firm

Abstract

Our current legal discourse on intellectual property needs to expand beyond propertization policy to include competition and free speech policy. Recent legal strategies in the U.S. have tried to avoid the limits copyright law by appropriating arcane real property torts and by mass promulgated contracts. If effective, such "laws" would supersede the official regime of intellectual property. In order to remain relevant in light of such developments, legal discourse must consider which aspects of the present intellectual property and contract regimes are default, waivable rules and which are inalienable entitlements. As one method for motivating a consideration of the limits of the waivability of default rules, I present a framework for considering whether such superseding regimes could be efficient. I argue that questions of efficiency implicate hard issues of pre-emption by federal law, as well as issues of competition and free speech. I also outline some categories of the most plausible candidates for inalienable rights. Finally, I argue that legislative approval of the regulation of intellectual property by machine poses a separate threat to the official copyright regime.