Intellectual Property & The Myth of Nonrivalry

60 Pages Posted: 15 May 2024

Date Written: May 1, 2024

Abstract

The concept of rivalry is central to modern accounts of property. When one per- son’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all.

This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that frame- work, it argues that rivalry should be understood as a function of the extent that any one person’s desires with respect to the disposition of a given resource are incompatible with the desires of others, and it criticizes the assumption that rivalrousness should only concern clashes between two people’s desire to make active use of the same resource. In a range of contexts, such as land conservation or ideological disagreement, conflicts arise because one person wants to use a resource and another simply wants that person to refrain from doing so.

This Article then applies this understanding to intellectual property. It shows that although the notion that information goods are nonrivalrous is treated as a state- ment of self-evident fact, the basic claim depends upon either unsubstantiated, and often improbable, empirical assumptions about individual preferences or, more likely, a substantial element of normative judgment about different motivations to restrict use. Ideas and information can generate the sort of conflicts property law exists to mediate, and if the law should generally favor rights to use over rights to withhold access, more than a reflexive invocation of nonrivalry is needed to explain why. The rivalrousness of informational goods is apparent in many contexts ranging from trademarks to pri- vacy to digital assets like cryptocurrency, and the potential for rivalry remains for other objects of intellectual property protection like inventions and expressive works. In bor- rowing from the conceptual vocabulary of public goods economics, the literature on in- tellectual property has tended to mischaracterize and conflate different public goods issues, thereby obscuring the nature of the conditions that might justify or undermine rights in information goods. This Article concludes by looking at ways these insights bear upon several specific legal problems, such as copyright’s fair-use doctrine, remedies for IP infringement, and the question of whether copying information constitutes a seizure for Fourth Amendment purposes.

Keywords: Property, Intellectual Property, Information, Data, Public Goods, Nonrivalry, Marginal Cost, Externalities, Patent, Copyright, Trademark, Privacy, Trade Secrets, Property, Legal Theory, Infrastructure, Publicity, Moral Rights, Monopoly

JEL Classification: D23, D4, D6, H40, K11, O34, Z11

Suggested Citation

Stern, James, Intellectual Property & The Myth of Nonrivalry (May 1, 2024). 99 Notre Dame Law Review 1163 (2024), Available at SSRN: https://ssrn.com/abstract=4827092

James Stern (Contact Author)

William & Mary Law School ( email )

613 S. Henry Street
Williamsburg, VA 23185
United States
757-221-1341 (Phone)

HOME PAGE: http://jamesystern.wordpress.com/

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