The Disintegration of Intellectual Property? A Classical Liberal Response to a Premature Obituary

71 Pages Posted: 20 Aug 2008 Last revised: 12 Mar 2013

Richard A. Epstein

New York University School of Law; Stanford University - Hoover Institution on War, Revolution and Peace; University of Chicago - Law School

Date Written: August 29, 2008

Abstract

The title of this paper plays off the title of Thomas Grey's well known article, The Disintegration of Property, which argued in part that the ceaseless consensual fragmentation and recombination of property rights revealed some inner incoherence of private property institutions. I take the opposite position and treat this supposed disintegration as evidence of the robust nature of private property rights, not only for land but for all forms of intellectual property. I use this framework to critique modern intellectual property rights cases that impose limits on the terms of private licenses, and the efforts, some of which were embodied in the now dormant Patent Reform Act of 2007 to limit the use of injunctions, damages, and attorney's fees, including at least one effort to shield an important class of admitted infringements of patents from all forms of liability. One broad issue that patent reform initiatives raise concerns the question of whether the per se rules for physical takings carry over to the patent area, which in turn raises the larger philosophical question of the transference of legal principles from the physical to the intellectual realm.

Keywords: property theory, intellectual property, exclusive rights, alienation; licenses, patents, copyright, first sale doctrine, patent exhaustion, takings

Suggested Citation

Epstein, Richard A., The Disintegration of Intellectual Property? A Classical Liberal Response to a Premature Obituary (August 29, 2008). Stanford Law Review, Vol. 62, No. 2, p. 455, 2010; U of Chicago Law & Economics, Olin Working Paper No. 423. Available at SSRN: https://ssrn.com/abstract=1236273 or http://dx.doi.org/10.2139/ssrn.1236273

Richard A. Epstein (Contact Author)

New York University School of Law ( email )

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Stanford University - Hoover Institution on War, Revolution and Peace

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University of Chicago - Law School ( email )

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