Lex Machina Non Est: A Response to Mark Lemley's 'Faith-Based Intellectual Property'

19 Pages Posted: 22 Aug 2017 Last revised: 6 Sep 2017

David W. Opderbeck

Seton Hall University - School of Law

Date Written: August 18, 2017


This essay responds to Mark Lemley’s controversial article Faith-Based Intellectual Property. The essay argues that intellectual property requires a far richer concept of human cultural flourishing than positivism and utilitarianism can provide. It argues that Lemley’s understanding of the “laws of nature” and of the relationship between science and religion are based in perspectives that have long been rejected by mainstream scholarship. Finally, the essay offers insights from the creation narratives and the Tower of Babel story in the Hebrew Scriptures to suggest that Lemley’s vision ultimately requires technocratic social control: an ancient and enduring threat to authentic human creative endeavor.

Keywords: Intellectual property, faith-based, utilitarianism, virtue ethics, Babel, Eden, Hebrew Scriptures, culture

Suggested Citation

Opderbeck, David W., Lex Machina Non Est: A Response to Mark Lemley's 'Faith-Based Intellectual Property' (August 18, 2017). Seton Hall Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=3022065 or http://dx.doi.org/10.2139/ssrn.3022065

David W. Opderbeck (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8496 (Phone)

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