Justin Hughes,*

The Philosophy of Intellectual Property

77 Geo. L.J. 287 (1988)



Reference to Locke's Two Treatises of Government is almost obligatory in essays on the constitutional aspects of property. For Locke, property was a foundation for an elaborate vision that opposed an absolute and irresponsible monarchy. n32 For the Founding Fathers, Locke was a foundation for an elaborate vision opposed to a monarchy that was less absolute, but seemed no less irresponsible.

Locke's theory of property is itself subject to slightly different interpretations. One interpretation is that society rewards labor with property purely on the instrumental grounds that we must provide rewards to get labor. In contrast, a normative interpretation of this labor theory says that labor should be rewarded. This part of the article argues that Locke's labor theory, [*297] under either interpretation, can be used to justify intellectual property without many of the problems that attend its application to physical property.


The general outline of Locke's property theory is familiar to generations of students. In Chapter V of the Second Treatise of Government, Locke begins the discussion by describing a state of nature in which goods are held in common through a grant from God. n33 God grants this bounty to humanity for its enjoyment but these goods cannot be enjoyed in their natural state. n34 The individual must convert these goods into private property by exerting labor upon them. This labor adds value to the goods, if in no other way than by allowing them to be enjoyed by a human being.

Locke proposes that in this primitive state there are enough unclaimed goods so that everyone can appropriate the objects of his labors without infringing upon goods that have been appropriated by someone else. n35 Although normally understood as descriptive of the common, the enough and as good condition n36 also is conceptually descriptive of human beings. In other words, this condition is possible because the limited capacities of humans put a natural ceiling on how much each individual may appropriate through labor.

The enough and as good condition protects Locke's labor justification from any attacks asserting that property introduces immoral inequalities. Essentially the enough and as good condition is an equal opportunity provision [*298] leading to a desert-based, but noncompetitive allocation of goods: each person can get as much as he is willing to work for without creating meritocratic competition against others.

What justly can be reduced to property in this primitive state also is limited by Locke's introduction of the non-waste condition. This condition prohibits the accumulation of so much property that some is destroyed without being used. n37 Limited by this condition, Locke suggests that even after the primitive state there sometimes can be enough and as good left in the common to give those without property the opportunity to gain it. Spain and America, he says, illustrate the continuing applicability of this justification of property. n38

Until this point in his exposition, Locke does not explore the notion of labor and the desert it creates. His theory is largely a justification by negation: under his two conditions there are no good reasons for not granting property rights in possessions. This has led scholars such as Richard Epstein to a possession-based interpretation of Locke. Epstein argues that "first possession" forms the basis for legal title and believes that this is the heart of Locke's position. n39 For Epstein, the talk of labor is a smokescreen hiding the fundamental premise of Locke's argument that a person possesses his own body:

Yet if that possession is good enough to establish ownership of self, then why is not possession of external things, unclaimed by others, sufficient as well? The irony of the point should be manifest. The labor theory is called upon to aid the theory that possession is the root of title; yet it depends for its own success upon the proposition that the possession of self is the root of title to self. n40

It is unclear why Epstein should reach this conclusion. Locke never mentions one's possession of one's body as the basis for one's property in one's body; he begins simply by asserting one's body is one's property. n41 Yet Epstein connects property to possession by saying, "[t]he obvious line for justification is that each person is in possession of himself, if not by choice or [*299] conscious act, then by a kind of natural necessity." n42

Epstein directly, albeit unknowingly, points out a critical difference: we are not in possession of any particular external objects by a kind of natural necessity. If we were, the need for property laws would be greatly diminished. Each person, like a tree, would be rooted to his own parcel of external objects; this would be "of natural necessity," and no one would try to displace another from his natural and necessary attachments. Precisely because "natural necessity" goes no further than the mind/body link, reliance upon the "possession" of body as a foundation for a possession-based justification of property is a bit disingenuous. n43

Epstein's possession-based theory also seems inaccurate because Locke offers a positive justification for property that buttresses his labor theory. He suggests that granting people property rights in goods procured through their labor "increase[s] the common stock of mankind," n44 a utilitarian argument grounded in increasing mankind's collective wealth.

This justification is called into question by an obvious problem. If the new wealth remains the private property of the laborer, it does not increase the common stock. If it can be wantonly appropriated by the social mob, the laborer will realize quickly that he has no motivation to produce property and increase the common stock. One solution would be to rely upon the laborer's donations to the common, but increasing the common stock cannot be made to depend on supererogatory acts. The better solution -- one that Locke in fact advocated -- is to make this added value potentially part of the common stock by introducing the money economy. n45

In depicting the transition to a money economy, Locke assumes that: (1) the individual is capable of appropriating more than she can use; (2) the individual will be motivated to do so; and (3) nothing is wrong with this other than waste. Locke condemned waste as an unjustified diminution of the common stock of potential property. To allow goods to perish after appropriating them -- and thereby removing them from a state in which others could have made use of them -- violates "the Law of Nature." n46 Stripped of its Lockean vestments, this non-waste principle can also be understood as an [*300] impulse to avoid labor when it produces no benefits. The waste is not just spoiled food, but the energy used gathering it. The non-waste condition, however, allows the individual to barter for things which he can enjoy, which may be more durable, and which have been gathered as surplus by other individuals similarly motivated.

Finally, Locke justifies the allocation of property in this more advanced money economy by tacit consent. For Locke, positive laws that manifest "disproportionate and unequal possession of the Earth" derive their authority from the tacit consent that people have given to be governed. n47 Modern writers have debated how much importance should be put on this hypothetical consent. n48 In the final analysis, Locke's overall scheme for property can be viewed as an alloy of the labor and tacit consent theories. n49 Yet it is the labor justification that has always been considered uniquely Lockean. Accordingly, when I refer to a "Lockean" theory of property, I will be referring to his labor justification.

We can justify propertizing ideas under Locke's approach with three propositions: first, that the production of ideas requires a person's labor; second, that these ideas are appropriated from a "common" which is not significantly devalued by the idea's removal; and third, that ideas can be made property without breaching the non-waste condition. Many people implicitly accept these propositions. Indeed, the Lockean explanation of intellectual property has immediate, intuitive appeal: it seems as though people do work to produce ideas and that the value of these ideas -- especially since there is no physical component -- depends solely upon the individual's mental "work." The following sections of this article test the strength of such a vision.



A society that believes ideas come to people as manna from heaven must look somewhere other than Locke to justify the establishment of intellectual property. The labor theory of property does not work if one subscribes to a pure "eureka" theory of ideas. Therefore, the initial question might be framed in two different ways. First, one would want to determine if society [*301] believes that the production of ideas requires labor. Second, one might want to know whether or not, regardless of society's beliefs, the production of ideas actually does require labor. This second question is the metaphysical one; in its shadow, society's belief may appear superficial. It is not. We are concerned with a justification of intellectual property, and social attitudes -- "understandings" as Justice Stewart said -- may be the only place to start.

Some writers begin with the assumption that ideas always or usually are the product of labor. n50 For example, Professor Douglas Baird assumes that although one cannot physically possess or occupy ideas, property in ideas is justified because people "have the right to enjoy the fruits of their labor, even when the labors are intellectual."n51 He believes the great weakness in this justification is that others also need free access to our ideas. n52 In Lockean terms, this is an "enough and as good" problem. Baird, however, never considers the prospect that idea-making may not involve labor.

Of course, there are clear instances in which ideas seem to be the result of labor: the complete plans to a new suspension bridge, the stage set for a Broadway show, a scholar's finished dissertation involving extensive research, or an omnibus orchestration of some composer's concertos. The peripheral realms of intellectual property also provide examples in which the object immediately seems to be the product of tremendous work: news stories gathered and disseminated by wire services, or stock indexes calculated by a financial house. The images of Thomas Edison inventing the light bulb and George Washington Carver researching the peanut come to mind as examples of laborious idea-making. As society has moved toward more complicated technologies, the huge scales of activity required by most research, involving time, money, and expertise, have made the autonomous inventor a rarity. This trend strengthens the image of idea-making as labor akin to the mechanical labor that operates industrial assembly lines.

Yet as we move toward increasingly large research laboratories that produce patentable ideas daily, we should not be so entranced by the image of a factory that we immediately assume there is labor in Silicon Valley. Locke, after all, begins his justification of property with the premise that initially [*302] only our bodies are our property. n53 Our handiwork becomes our property because our hands -- and the energy, consciousness, and control that fuel their labor -- are our property. n54 The point here is not validation of Epstein's link of property with bodily self-possession but rather the more general observation that Locke linked property to the product of the individual person's labor. We must examine the production of ideas more fully if we expect to show that their creation involves Lockean labor.


1. The "Avoidance" View of Labor

If we surveyed people on their attitudes toward idea-making, what might we find? First, we would probably find that many people who spend time producing ideas prefer this activity to manual labor. It probably also is true that many manual laborers would rather spend time producing ideas than performing manual labor. That an idea-maker prefers idea-making to farming, roofing, or putting screws in widgets suggests that idea-making may not be viewed as labor in the same way that the latter activities are. It may share this distinction with such professions as competitive sports. Yet at least at some level of desires, the idea-maker probably prefers to be on vacation than to be in his office or laboratory. For most people creation is less fun than recreation. Although "idea work" is often exhilarating and wonderful, it is something we generally have to discipline ourselves to do, like forcing oneself to till the fields or work the assembly lines.

This discussion depicts labor in one particular way: something which people avoid or want to avoid, something they don't like, an activity they engage in because they must. Lawrence Becker aptly has described Locke's view of labor as a "proposal that labor is something unpleasant enough so that people do it only in the expectation of benefits." n55 In fact, Locke himself refers to labor as "pains." n56

One commentator has observed that this concept of labor is more likely the product of experience than logical rigor:

[Comparing labor and property] is complicated by an equivocation about the idea of labor, which is dominated by the metaphor of sweat on the brow. Hence it is that the least imaginative work counts most securely as labor. The squires and merchants of the seventeenth century were far from idle men, but administration and entrepreneurship do not so obviously qualify for the title of labor as the felling of trees and the planting of cornn57
[*303] In an understanding of labor based on the notion of "avoidance," labor is defined as an unpleasant activity not desirable in and of itself and even painful to some degree.

At this point we can separate the normative proposition of the labor theory from the instrumental argument with which it is usually identified. n58 The normative proposition states: the unpleasantness of labor should be rewarded with property. In this proposition, the "should" is a moral or ethical imperative, which is not based on any consideration of the effects of creating property rights. In comparison, the instrumental argument is directly concerned with those effects. It proposes that the unpleasantness of labor should be rewarded with property because people must be motivated to perform labor. In principle, the two propositions can coexist but neither requires acceptance of the other. In practice, however, the two not only coexist, but the instrumental argument often seems to be treated as a "proof" of the normative argument. The instrumental claim has a utilitarian foundation: we want to promote labor because labor promotes the public good. Once we recognize that property is needed to motivate work for the public good, we may transform the reward into a right just as we often convert systematically granted benefits into rights deserved by the recipients. Perhaps we do this because it would be inconsistent and disconcerting to say that some systematically granted benefit is not deserved. Perhaps we just make the transition from instrumental to normative propositions through lack of attention. For example, in the 1954 case Mazer v. Stein, n59 the Court said:

The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors . . . Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered." n60
As Mazer demonstrates, it is strikingly easy to move from an instrumental discussion of consequences to an assumption of just rewards.

Indeed, when the normative proposition emerges in court opinions it is usually used as an adjunct to the instrumental argument. The instrumental argument clearly has dominated official pronouncements on American copyrights and patents. Even the Constitution's copyright and patent clause is [*304] cast in instrumental terms. Congress is granted the power to create intellectual property rights in order "[T]o promote the Progress of Science and useful Arts." n61 As President Lincoln remarked, "the inventor had no special advantage from his invention [under English law prior to 1624]. The patent system changed this . . . [I]t added the fuel of interest to the fire of genius in discovery and production of new and useful things." n62 In almost all of its decisions on patents, the Supreme Court has opined that property rights are needed to motivate idea-makers. n63 This instrumental justification is the heart of what Judge Easterbrook has called the Supreme Court's "Ex Ante Perspective on Intellectual Property." n64

The wide acceptance of the instrumental argument suggests wide acceptance of the premise that idea-making is a sufficiently unpleasant activity to count as labor that requires the inducement of reward. Admittedly, this hardly is a tight argument. Idea-making just as easily could be a neutral activity or even a pleasant activity whose pursuit individuals covet.

The issue is not whether idea-making is an absolutely unpleasant activity, but whether it is comparatively less pleasant and less desirable than other activities. n65 As Peter Rosenberg writes in his treatise on patent law, "[w]hile necessity may be the mother of invention, the quest for new products and technologies must fiercely compete against the demands for current consumption." n66 The judgments we make about most forms of labor are not that they are absolutely unpleasant, but that they are relatively unpleasant. For most people, raking leaves is relatively unpleasant compared to sitting and watching them fall. Similarly, there is a widespread attitude that idea-making is not such a pleasant activity that people will choose it, by itself, over recreation. At least, people will not choose it in sufficient numbers to [*305] meet our collective needs. This same characterization applies to labor in the fields, the forests, and the factories. That is our best grounds for assuming that idea-making is a form of labor.


If we believe that an avoidance theory of labor justifies intellectual property, we are left with two categories of ideas: those whose production required unpleasant labor and those produced by enjoyable labor. Are the latter to be denied protection? This strange result applies to all fruits of labor, not just intellectual property.


2. The "Value-Added" Labor Theory

Another interpretation of Locke's labor justification can be called the "labor-desert" or "value-added" theory. This position "holds that when labor produces something of value to others -- something beyond what morality requires the laborer to produce -- then the laborer deserves some benefit for it." n67 This understanding of property does not require an analysis of the idea of labor. Labor is not necessarily a process that produces value to others. It is counterintuitive to say labor exists only when others value the thing produced. It also would be counter to Locke's example of the individual laboring and appropriating goods for himself alone. The "labor-desert" theory asserts that labor often creates social value, and it is this production of social value that "deserves" reward, not the labor that produced it.

The legal history of intellectual property contains many allusions to the value-added theory. The legislative histories of intellectual property statutes refer repeatedly to the value added to society by investors, writers, and artists. Indeed those judicial or legislative statements that appear to fuse the normative and instrumental propositions of the labor justification are perhaps based, unknowingly, on the value-added theory. In Mazer v. Stein n68 the Court appeared to be saying that the enhancement of the public good through the efforts of intellectual laborers made the creators of intellectual property worthy of reward. n69 In other words, their contribution to the public good justified the reward of property rights. Earlier I noted that the Constitution's copyright and patent clause is an instrumental provision. More precisely, it is an instrumentalist provision aimed at rewarding people who bring added value to the society. Little else could have been meant by giving people "the exclusive Right to their respective Writing and Discoveries" in order "[t]o promote the Progress of Science and useful arts." n70

The value-added theory usually is understood as an instrumentalist or consequentialist [*306] argument that people will add value to the common if some of the added value accrues to them personally. Paralleling the discussion of the avoidance theory of labor, it is possible also to treat the value-added theory as a normative proposition: people should be rewarded for how much value they add to other people's lives, regardless of whether they are motivated by such rewards.

Some kinds of intellectual property have appeared only in contexts in which the property represents a value added to the society. International News Service v. Associated Press n71 inaugurated "quasi-property" protection for gathered information. The opinion merged unfair competition doctrine and property arguments to prohibit one party's appropriation of the product of another party's labor. n72 Such appropriations occur only when the party taking the product believes it to have some value. To state the proposition differently, one could not argue that it is unfair competition to take away someone's worthless labor.

Unfair competition is the purloining of another's competitive edge -- an "edge" that has social value. Insofar as protection of gathered information rests on an unfair competition model, it necessarily relies on the value-added justification. If the fruits of labor have no prospective value, stealing those fruits may be socially unkind, but not competitively unfair. Similarly, trade secret infringement cases result from claimed losses of social value by the petitioner. No court has ever had to face a test case of a vigorously defended but worthless trade secret.

There is a very simple reason why the legal doctrines of unfair competition and trade secret protection are inherently oriented toward the value-added theory: they are court-created doctrines and people rarely go to court unless something valuable is at stake. When intellectual property is created more systematically, such as through legislation, the resulting property doctrines seem less singularly oriented toward rewarding social value.

Indeed, patents provide a vexing example of conflicting reliance on the value-added theory. To receive patent protection, a new invention must meet a standard of "usefulness" or "utility," n73 a criterion which suggests that the invention must manifest some value added to society. On closer inspection, the meaning of this criterion is not so clear. At one extreme, it has been expressed as being devoid of a "value-added" requirement and as only mandating that the invention not be, on its face, wholly valueless. In Lowell v. Lewis n74 Justice Story eloquently expressed this position:

[*307] All that the law requires is, that the invention should not be frivolous or injurious to the well-being, good policy, or sound morals of society. The word "useful", therefore, is incorporated into the act in contradistinction to mischievous or immoral. . . . But if the invention steers wide of these objections, whether it be more or less useful is a circumstance very material to the interests of the patentee, but of no importance to the public. If it be not extensively useful, it will silently sink into contempt and disregard. n75

While this standard was incorporated into nineteenth-century American patent jurisprudence, n76 modern tests for the utility criterion support a value-added interpretation. n77 Most courts now hold that a "step forward" 78 or an "advance over prior art" 79 is a critical part of the utility requirement. But these tests seem to blur the utility criterion with the "novelty," "obviousness," and "operability" requirements of patent grants.

It is not necessary to separate these modern standards in order to appreciate how they generally bear on the value-added question. Stated succinctly, they require that an invention be enough of an advance over the previous art so that the average person schooled in the art would not consider the advance immediately obvious, but also would understand how the invention improves upon previously available technology. 80 The invention need not function perfectly, but it must operate effectively enough that a person schooled in the art could make it perform the tasks described in the patent application. 81

To require that something be an "advance" over existing technology clearly demands that there be new value in this item; that the invention be "nonobvious" raises the threshold of the additional value requirement. Obvious improvements add some value to existing art, but it is only modest value because anyone trained in the art can see the improvement almost as a matter of intuition. The patent law requires that the new value be greater than that derived from "tinkering" with known technology. 82

Those standards seem conclusively to manifest a value-added requirement. There [*308] are, however, some complexities. In discussing the operability criteria, Peter Rosenberg aptly describes a well-accepted patent doctrine which seems to pose a strong counterargument to the value-added requirement:

To satisfy the operability standard, an inventor need not establish that his invention is better than, or that it is even as good as, existing means for accomplishing the same result. . . . [T]he law does not ask how useful is the invention. A device that may not operate well may nevertheless be operative. n83
An invention that is not as effective or efficient as the existing means for accomplishing the same result does not add value to society -- at least not in a direct and straightforward way. n84

Nonetheless, the patent law covers such inventions. For example, one could patent an advance in vacuum tube computers although it is hard to imagine a technology so completely replaced by its successor. Usually a succeeding technology leaves the older technology with peripheral or special area applications, but chip technologies have replaced vacuum tubes so thoroughly in computer applications that any value added by a vacuum tube advance would be minimal or nonexistent.

Similarly, patent scholars have not agreed with the presumed patentability of items that are technological "advances" without any imaginable value. A good hypothetical is a new vote counting machine which errs by up to ten percent in any vote tabulation. Not only is this worse than existing technology, but its operation has absolutely no value. People will count votes by hand before they will entrust it to a machine erring ten percent. If this kind of "operable" machine is not patentable, it is evidence of the value-added justification. If it is patentable, that patent clearly is granted without any consideration of added value. n85

A patentee is not required to exploit his patent; indeed, there is universal recognition that the patentee may shelve his invention and use his patent only to prevent others from utilizing the patented process or invention. n86 This hardly seems to mesh with the requirement that there be value delivered to the society as a prerequisite for granting property rights.

Copyright law also seems to defy value-added reasoning. As with patents, one can register a writing for copyright protection without ever planning to[*309] publish the work. n87 For copyrighted works, no statutory provision demands "value." Indeed, thousands of worthless works are probably copyrighted every month. Bad poetry, box office failures, and redundant scholarly articles are not denied copyright protection because they are worthless or, arguably, a net loss to society.

The interesting issue of proportional contributions further evinces the degree to which the value-added justification underpins intellectual property law. Modern industry depends on equipment and machines utilizing multiple patents to carry out a single activity. Through patent-licensing schemes, patent owners share proportionally in the aggregate value of the intellectual property in such machines. However, the same ability to distribute value has eluded the copyright system.

A modest copyright apportionment doctrine was established in Sheldon v. Metro-Goldwyn Pictures. n88 In Sheldon, both Judge Hand and Justice Hughes upheld the apportionment of only twenty percent of the profits to the plaintiff when the defendant's infringing film used only a small part of the plaintiff's play and expert testimony attributed the movie's success to its popular stars, not the script. n89 But even while making the award, Hand wrote of apportionment that, "[s]trictly and literally, it is true that the problem is insoluble." n90 The common wisdom, with some scholarly debate, n91 has been to follow the Sheldon dictum instead of attempting its result.

That the apportionment system has appeared as an ideal in copyright is homage to people's belief in the value-added theory as a normative standard: social value contributed should be rewarded. The fact that an apportionment system in copyright has remained only an ideal is explicable for several reasons. Certainly apportionment could produce uncertain shifts in incentives. It might encourage infringements and discourage originality by lowering the awards against infringers. On the other hand, it might strengthen enforcement by tempting judges to find infringements more often. n92

[*310] Apportionment may remain impractical in copyright for the same reason it would be impractical to have any value-added requirement in copyright law. The "insoluble" problem for apportionment is measuring the value of a copyrighted work when it forms part of a larger work whose value can be measured by objective criteria, such as box office receipts or number of copies sold. The corresponding problem for a preliminary value requirement in copyright is that it is much harder to predict whether a writing will have value than to do so for an invention. It is often startling to see what copyrighted works are ultimately judged valuable by society. Before the precocious judgment of history, a "step forward" in literature or in the arts is easily confused with a step sideways or backwards.

A value-added interpretation of intellectual property laws is easier to support by moving away from particular legal doctrines. Probably the best support for the value-added theory is an argument based upon "net gain." This rule-utilitarian argument for granting intellectual property rights finds it unnecessary that individual cases of copyright or patents be of social value. A very high percentage of protected works could be worthless so long as the system of property protection results in a net increase in social value beyond what would be produced without the system.


3. Labor and the Idea/Expression Distinction

The avoidance and value-added interpretations of the labor theory have very different foci. The avoidance theory argues that labor, by its nature, is unpleasant. The value-added theory places no limits on the general nature of labor; it can be pleasant or unpleasant, stupefying or invigorating. The value-added theory may explain why labor justifies property at the social level, while the avoidance theory makes the individual feel justified in receiving something for his "pains." But this still leaves unresolved the nettlesome question of whether or not producing intellectual property actually requires labor.

For the moment, let us treat the creation of a finished intellectual product as a two-step process. One step is thinking up the "idea," used here in the usual sense of the creative element or unique notion. The second step is the work necessary to employ the idea as the core of a finished product. In the case of an innovative suspension bridge, the engineer has an original idea and then spends months doing all the drawings and calculations necessary to produce the finished plans. Edison had the idea of a light source produced by electrons travelling through a filament within a vacuum. He and his workers then spent weeks finding the proper filament material, the proper vacuum, and the proper electrical charge. n93

[*311] These two steps represent the difference between idea and execution. Sometimes this difference is not readily visible or, when it does exist, the part we identify as the idea may seem the less important of the two components. Sartoris n94 and Absalom, Absalom!n95 have the "same" idea: the not too original notion of the saga of a Southern family. The difference, the uniqueness, and the importance to society is in the execution. The idea of orchestrating Pictures at an Exhibition, Moussorgsky's 1874 composition for solo piano, is not worth much in itself, nor is the thought of doing a painting of the front of the Rouen Cathedral basked in sunlight. But each idea has proved to be a foundation for more than one significant execution.

In these examples the distinction between idea and execution is drawn at a gross level. Although the distinction may seem intuitively right, it can be blurred and redrawn by focusing on different levels of detail. There is not just the idea of orchestrating a piano piece, but the more detailed idea of using a particular motif in the third movement, and the even more detailed idea of using a particular percussion instrument in the forty-seventh stanza of that movement. The achievement in writing fiction or in composing may be in the execution precisely because each turn of phrase, musical or literally, is the result of a creative event.

The creativity we perceive in an intellectual product may be either in the core idea or in the core idea's execution. I suggest that when we readily can separate the two, execution always seems to involve labor, but it is not always clear that the creation of the idea involves labor. Ideas often seem to arrive like Athena -- suddenly they are here, full and complete. Like Zeus, we may have a headache in the process, but it is some unseen Minerva who puts in the labor.

Yet our inability to formulate any clear separation between idea and execution suggests that we should treat them as one. This apparent inability is reinforced by occasions in which the "execution" step begins before the idea. n96 In many fields, one has to do extensive research to create a necessary launching pad for a new idea. A graduate law student writing his doctoral paper made the telling comment, "If I had six more months to work on this paper, it would be an original idea." n97

The Lockean conception of idea-making provides another ground for [*312] treating idea and execution as a single event. Viewing new ideas as plucked from some platonic common may be reification in the extreme. Yet in that view, the ideas already exist and the chief labor is transporting them from the ethereal reaches of the idea world to the real world where humanity can use them. n98 If ideas are thought of as such preexistent platonic forms, the only activity possible is execution, which consists of transporting, translating, and communicating the idea into a form and a location in which humans have access to it.

Existing intellectual property regimes favor granting property rights only to those ideas which have received substantial execution. Patents are not granted for formulae disembodied from any technical applications; in some sense, such unapplied formulae may be thought of as unexecuted ideas. A book or dissertation receives copyright protection, not its underlying thesis statement. One might even point to the fact that federal copyright protection applies only to work put into some permanent, tangible form n99 -- which suggests a requirement of execution.

With products such as phone directories or some news stories, execution -- a product of labor -- is all that realistically can be required because there is no original idea. Time, Inc. v. Bernard Geis Associates, n100 in which the Zapruder film of the Kennedy assassination was recognized as copyrightable property, provides an interesting application of this same standard.n101 Clearly, Zapruder had no original idea -- most people in his position and equipped with a camera would have filmed that tragic event. Zapruder's case is a dramatic example of copyright protection in the category of nonartistic photos and films of public events and places. It demonstrates that a unique product of one's labor can receive property protection even if there is no unique underlying idea.

The case law of section 102 of the 1976 Copyright Act n102 has developed what has been called "the idea/expression dichotomy." n103 Under this doctrine, "expressions" are protected but the underlying "ideas" are not. n104 Not [*313] surprisingly, the courts have never developed a clear distinction between the two, relying instead on comparisons such as between the idea of a male nude and the expression of The David. n105 When one replicates a series of scenes a faire n106 to make a story, there is no copyright problem; n107 when one reproduces sets and production techniques, there is. Illicit copying is copying an expression, "the total concept and feel" of a work, n108 not just the idea.

The idea/expression dichotomy is frequently explained in terms of balancing the need to reward artists with the need for free access to ideas, or as a tension between the copyright clause and the first amendment. Although this theory has never been explicitly considered by the Supreme Court, Justice Douglas was one of its adherents. n109 In a 1980 opinion, the Ninth Circuit also confidently stated this rationale: "[T]he impact, if any, of the first amendment on copyright has not been discussed by the Court. We believe this silence stems not from neglect but from the fact that the idea-expression dichotomy already serves to accommodate the competing interests of copyright and the first amendment." n110 While not abandoning this view, Professor Melville Nimmer showed that there are occasions in which the idea/expression distinction does not ensure access to all the expressions we might want freely available from a first amendment perspective. n111 In a society which relies on freedom of expression, there is a constant demand that many "expressions" be part of the public domain, such as photographs and films of [*314] very important events. n112

I suggest that the idea/expression dichotomy and the idea/execution dichotomy are the same. n113 At a minimum, the force behind the latter dichotomy -- the concern for labor -- significantly contributes to explaining the idea/expression division. The courts' ad hoc approach in this area suggests that copyrightability may be based as much on what we feel are people's deserts as on what we feel are society's informational needs. It has been said that the idea/expression issue is uniquely well-suited for juries. n114 I suggest that this is so not because juries care about a doctrine that ameliorates copyright and first amendment tensions and not because they know what idea-making is, but rather because jurors sense what labor is.

First amendment considerations define the "idea" side of the copyright dichotomy -- that which must be kept as a public preserve. Labor defines the "expression" side -- that which must be rewarded because it is unpleasant activity. Protection of expression and not of ideas can be understood as protection for that part of the idea-making process that we are most confident involves labor. In a world in which we cannot definitely separate idea and execution, we still find ways to emphasize that property protection goes to execution and less to the ideas themselves.

In fact, these first amendment concerns have a place in a Lockean theory. In a Lockean framework, first amendment freedom manifests a problem with the "common." Stated simply, some ideas and facts cannot be removed from the common because there would not be the slightest chance of there being "enough and as good" afterwards. Imagine the absurdity of a political debate in which some people held copyrights over certain "new ideas."...

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It requires some leap of faith to say that ideas come from a "common" in the Lockean sense of the word. Yet it does not take an unrehabilitated Platonist to think that the "field of ideas" bears a great similarity to a common.

The differences between ideas and physical property have been repeated often. Physical property can be used at any one time by only one person or one coordinated group of people. Ideas can be used simultaneously by everyone. Furthermore, people cannot be excluded from ideas in the way that they can be excluded from physical property. You may prevent someone from publicly using an idea, but preventing the private use of ideas may not be possible. These two basic differences between ideas and physical goods have been used by some writers to argue against intellectual property,n115 but, if anything, they suggest that ideas fit Locke's notion of a "common" better than does physical property.

The "field" of all possible ideas prior to the formation of property rights is more similar to Locke's common than is the unclaimed wilderness. Locke's common had enough goods of similar quality that one person's extraction from it did not prevent the next person from extracting something of the same quality and quantity. The common did not need to be infinite; it only needed to be practically inexhaustible. With physical goods, the inexhaustibility condition requires a huge supply. With ideas, the inexhaustibility condition is easily satisfied; each idea can be used by an unlimited number of individuals. One person's use of some ideas (prior to intellectual property schemes) cannot deplete the common in any sense. Indeed, the field of ideas seems to expand with use.

It may seem pointless to talk about how the field of possible ideas fulfills Locke's conception of the common prior to the creation of property, for the common is a concept discussed only in connection with the creation of property. The point is that Locke's treatment of the common implicitly concerns itself with the problems of distribution. This distribution problem also arises in pre-property uses of the physical common. When some starve in a pre-property world because others overconsume food or occupy all the tillable land, there is a problem of just distribution. Such distribution problems are not found in pre-property uses of the field of ideas.


1. The Common and Tempered Property Rights

How the creation of property affects distribution of the common depends on the extent of exclusion entailed in property rights. Existing forms of intellectual property do not countenance complete exclusion of the non-owner. Nor can one easily imagine systems of intellectual property that could completely exclude.

This complete exclusion is impossible for two reasons. First, any property scheme which completely excludes third parties from ideas must enforce its restrictions in ways incompatible with our notions of privacy and individual freedom. Second, successful policing of such exclusion probably would be impossible. This impossibility can be thought of in either technical or economic terms. For the foreseeable future, practical considerations will limit the ways in which people can be excluded from intellectual goods. By any standard, thought-police would look more like Keystone Kops than like the KGB. Such thought policing would certainly not be cost effective. Historically, the only time the cost effectiveness of policing has not been a controlling factor is when the police enforce the claims of the sovereign and not the claims of individuals. Police states guard the interests of the state, not those of persons.

As long as complete exclusion cannot or does not happen, ideas will be available to people in their own thoughts even though these ideas already have become someone else's property. Through this availability, one idea can lead to still more ideas. In other words, once a "new" idea has been put into intellectual commerce, once people know about it, it leads to an "expansion" of the common, or of the accessible common.n116 New idea X may be the key to a whole new range of ideas which would not have been thought of without X. Assuming the Platonic model, putting X into intellectual commerce does not increase the common so much as it enhances the abilities of people to take from the common; it gives people longer arms to reach the ideas on higher branches. In this view, X just makes new ideas Y and Z more easily discovered by a wider range of people. When the range of people and/or ease of discovery is dramatically improved, one can think of the common as being practically enlarged.n117

Computer languages provide a good example of a case in which one contribution to the society makes other contributions possible. Embarking on an [*317] effort to create a new language is a considerably more ambitious and difficult project than writing programs in an existing language. It is not something most computer scientists would undertake. In that sense, it is more a unique idea than is a new program in an existing language. This new language may stimulate programming in a way that would not have been possible but for the language. Furthermore, this new language creates an incentive to write these programs. Thus, it is an addition to the "common" which gives many people new ability to create even more property and expand the common even further.

Finally, idea X may be genuinely necessary to new idea Y. Orchestrations and adaptions are examples of this. The movie Cabaret was adapted from the musical Cabaret which was adapted from Isherwood's Berlin Diaries. Parodies provide an even better example of such necessity. The Mona Lisa, American Gothic, Whistler's Mother, and Hemingway's prose all have inspired generations of parodies -- cultural objects which would have neither humor nor sense without the object of comic adoration. The original is necessary as a preexisting part of the culture.

Robert Nozick has argued that a system of physical appropriation benefits society in a manner analogous to this expansion in the world of ideas.n118 Yet there is an important difference between the expansion of the physical common and of the idea common. According to Locke, the act by which physical object X is transformed into property is an act that creates new social value. This added value, however, goes directly into that property owner's possession. At least this characterization applies to Locke's example of cultivated land and the added grain it produces.n119 This new physical value -- grain -- adds to the commonweal only if the owner releases it, either through gifts or commerce. Locke relies upon the money economy to facilitate this.

Intellectual property systems release the added value of a new idea without requiring the property owner's active and intentional introduction of the idea into commerce. Take the situation in which Mr. Smith creates idea X and this idea makes possible ideas Y and Z. Ideas Y and Z are not possessed by Mr. Smith in the same way the grain is possessed by the farmer. Sequel ideas are not "attached" to their antecedent ideas as grain is attached to farmland. As long as idea X is known to other people, it can inspire ideas Y and Z.

New ideas, however, can be "attached" to idea X in the sense that they seem too derivative of X to be granted their own property status. Mr. Smith, the owner of idea X, may claim that Mr. Jones, the author of Y, really did [*318] not create anything independent and different from X. The claim here is that Mr. Jones has not added much value (or much labor) beyond idea X.

Intellectual property systems handle this situation of questionable added labor with a few general principles. First, if the idea is sufficiently separate from its "parent" idea to have required significant independent labor or creativity, it belongs to the laborer.n120 Conversely, if the new idea bears too much resemblance to its parent idea, the owner of the parent has a controlling interest in the new idea. Finally, the two principles are limited by situations in which the descendant idea includes the entire parent idea, as with a new machine which uses a patented process as one of several steps or a play which uses someone's concerto as its theme. In these cases, the owner's interests in the parent idea must be accommodated with much less balancing than that afforded by the first two principles.n121

The law regarding parodies exemplifies the balance struck between the first two principles. A copyright does not enable its holder to prevent parodies of the copyrighted work; as long as the parody has creativity and originality, it may use substantial elements of the original.n122 However, if reasonable people would easily mistake the parody for the original, the copyright holder would have an especially strong interest in stopping publication of the parody because it will probably appear to be a bad or erroneous production of the original.n123 The creator of such a parody, because of its resemblance to the original and the little labor employed in making the parody, would possess [*319] a lesser interest in his product. Under such balancing, the recognition of property rights in idea X still permits, indeed inspires, others to reach new ideas Y and Z.

Because creating property rights in an idea never completely excludes others from using idea, it need not be justified by Locke's legerdemain that increases in privately produced goods necessarily benefit the commonweal. Nor does it require justification from Nozick's reconstitution of "the Lockean proviso."n124 Under Nozick's reconstruction, the public would be better off even if an intellectual property owner could completely exclude others from his idea because it could still buy the goods and services developed from that idea.n125 This might be true, but intellectual property need not be justified on such a thin reed. People are better off today because there are more ideas available to them, at least in part, that provide springboards to generate even more intellectual property. New ideas, even most that become private property, benefit the commonweal by immediately being known and, in some sense, available to all. There is no need to rely on property holders to actively introduce them into the common.


2. The Common and Ideas That Cannot Be Granted Property Status

Intellectual property systems also are more suitable for a Lockean justification than are physical property systems because a growing set of central ideas are never permitted to become private property and are held in a Permanent common.n126 By preventing private control of these particular ideas, intellectual property law resolves a major inequity often present in physical property systems. Even in a vast wilderness, an individual should not be permitted to claim certain physical goods as property because their extraction from the common will not leave "as good and as many" for the remaining individuals. The "New World" prior to its colonization may have been as close to a Lockean common as human history records, yet it is easy to make a list of things which the society could not allow to be appropriated as private property: the Amazon, St. Lawrence, and Ohio Rivers, the Cumberland Pass, or the St. George's Bank fisheries.

Earlier I described two broad categories of ideas to which ascription of private ownership is denied. The first is the category of common, "everyday" [*320] ideas, such as thinking to wash one's car, to add paprika to a quiche for coloring, or to tell mystery stories to your cub scout troop. The second is the category of extraordinary ideas like the Pythagorean theorem, the heliocentric theory of the solar system, or the cylindrical column in architecture.

One reason that we do not permit property rights in either category of ideas may be that doing so would involve tremendous reallocations of wealth toward the property holders of these ideas. If we had to pay a royalty each time we told a ghost story or walked the dog, unprecedented wealth would concentrate in the hands of those "holding" the most common ideas. These common, everyday ideas are too generically useful to allow someone to monopolize them. The common would not have "enough and as good" if they were removed.

The same is true of extraordinary ideas. This category, however, actually contains two distinct groups of ideas. First, there are ideas that are extraordinarily important because they disclose facts about the world, such as the Pythagorean theorem and the theory of electromagnetism. In the case of electromagnetism, the Supreme Court ruled that Samuel Morse could not monopolize the general idea of using galvanic current for long-distance communications, although he could monopolize his particular process for exploiting the idea.n127

A second group of extraordinary ideas -- which contains ideas like the architectural columns -- may not be monopolized because of their widespread public use. At first, this sounds like a poor argument: that the idea of a column is widely used may mean it is a "public idea," but that is hardly a self-evident reason why it must be public. Yet widespread use of something, like columns and vaulted ceilings, has another effect: it makes a particular idea appear to be a basic truth or process. At some point, one hardly can imagine the larger social organization without the lesser object. Columns would appear as a far less basic truth to cave dwellers than to those who inhabit a post-Hellenic world in which columns prevent our buildings from crumbling into impromptu pyramids.

In short, some ideas become "depropertized." Originally, they could have been subject to private ownership (unlike the first kind of extraordinary ideas), but the pressure to keep them in the common increases as the ideas become increasingly important to the society. As an idea becomes extraordinary, it is clear the common will not have "enough and as good" if the rights to the idea continue to be privately held.

Law itself provides an interesting example. Saul Levmore has adroitly observed that "the law does not normally offer intellectual property rights to [*321] lawyers who develop novel arguments and establish precedents."n128 Perhaps legal arguments could be fit within either of the two subcategories of extraordinary ideas. In one view, arguments adopted by a court become valuable (as precedent) precisely because the court believes that argument is a basic truth about the legal system or the world. For the legal realist who sees no truths, the novel argument still can become (like architectural columns) a necessary fixture in the social edifice. In fact, that is the basis for Benjamin Kaplan's criticism of Continental Casualty v. Beardsley,n129 a 1958 case upholding the copyright on certain insurance forms.n130 Without reaching the broader issue of ideas beyond privatization, Kaplan observed that, "[t]he effect of the decision may be to force users to awkward and possibly dangerous recasting of the legal language to avoid infringement actions."n131 Kaplan's criticism is basically that the language in those forms had become necessary to the legal system and therefore should be beyond privatization.n132

Ideas which can be privatized fall between these extremes of common and extraordinary ideas. A new device to wash cars may be patentable; a quiche recipe with secret herbs and spices can be privatized as a trade secret; the original mystery story can be transferred from campfire to copyrighted novella. Even things which are related to extraordinary ideas may be privatized. While neither Leibniz nor Newton could copyright the calculus under today's copyright laws, each probably could copyright his own system of notation for calculus.n133 The idea of a science fiction "space empires-at-war" story cannot be copyrighted, but when Battlestar Galactica is too much like Star Wars, the owner of Star Wars can drag the Galacticans into court with a credible claim of property infringement.n134 The Supreme Court has struggled with perhaps the most basic dilemma of this sort: When can an algorithm [*322] be made into property?n135 Its present doctrine is that an algorithm closely linked to a specific technological application may qualify for patent protection.n136 This provides an example of a specific application (the technology) being used to bring the general idea (the algorithm) into the field of protectable ideas.

What separates the everyday idea from the protectable idea is the former's relative unimportance and the latter's uniqueness; what separates the protectable idea from the extraordinary idea is that the extraordinary idea is uniquely important. One rule of thumb is that the more generally required by society an idea is, the more important and less subject to propertization it becomes.n137 However, very detailed ideas or pieces of information also may be beyond privatization because monopolistic control of them would harm society. For example, in the eighteenth century, copyright over a navigation map was held not to preclude someone from copying its geographic details.n138 In eighteenth-century navigation, these details provided the only safe way to proceed. There would not be "enough and as good" without free access to these details.

With ideas that become extraordinary, society's increasing dependency on them creates a pressure to remove them from private control. For example, a popular trademark that comes to serve a unique representational function loses some of its property protection under the doctrine of genericness.n139 Examples of trademarks which have or may have lost their property status because the words are so generally relied upon for communication include "thermos," "cellophane," "aspirin," and "xerox."n140 At least one commentator has remarked that this can be an unfair penalty on one "who has made skillful use of advertising and has popularized his product."n141 Perhaps the [*323] loss of a trademark would seem less like a penalty if we view the situation as the owner lulling the society into a dependency on a privately owned word. When the society realizes that dependence it should place the word in the permanent common.


3. Augmenting the Common Through Expiration of Property Rights

For those trademarks which have become generic words, their "condemnation" is a method of de-privatizing ideas. Other intellectual property regimes augment the idea common in another way: they require all idea property to return to the common automatically at some point. Copyrighted property enters the public domain fifty years after the death of the author.n142 Patents expire after a maximum of thirty-four years.n143 News becomes commonplace information, and the shadowy existence of its quasi-property status dissipates.n144 Trade secrets may be the lone exception; they must be constantly defended, not only against real industrial espionage but as a legal requirement to maintain their protection. Trade secrets and "gathered information" property have no fixed expiration, but they tend to be self-extinguishing. At some point, the guard drops and the trade secret expires. This general occurrence of expiration marks a radical difference from physical property arrangements.

I find it helpful to think of two commons: a "common of ideas" and a "common of potential ideas." Perhaps progress is an inexorable movement of the former gobbling up more and more of the latter. When an individual augments the common of ideas, we recognize a property right. Yet at some point an individual's addition to the common of ideas appears to be part of the historic migration of ideas from the potential common to the actual common.n145 At that point, the property right expires.


Robert Nozick hints at this point in his example of the scientist who stumbles upon a new substance. Nozick argues that this scientist does not deprive anyone of the substance by privatizing it and excluding others from its use. While this is certainly true at the moment of discovery, Nozick recognizes [*324] that limitations on the discoverer's rights may be justified later because, "as time passes, the likelihood increases that others would have come across the substance."n146 Nozick uses this reasoning to justify limitations on the bequest and inheritance of physical goods.n147 Expiration times in intellectual property regimes also seem inspired by this idea.n148

Expiration ensures that most ideas eventually reside in the common unfettered in any way. This new wealth cannot be retaken and privatized by someone else; it is material which will be held permanently in common. This new material will lead to new ideas, hence new property for as yet unidentified people. This condition is sufficient to show "enrichment" of the common even in those rare instances in which the public might be successfully and totally excluded from an idea during its period as privately held property. If the owners of new ideas could exclude everyone from the idea, social progress would be slow, but as long as those new ideas eventually become freely available, idea-based progress would continue.

The expiration of intellectual property rights may help a Lockean scheme of intellectual property overcome one general objection to Locke's theory. This objection is that Locke's vision of property rights justifies property for one generation, but cannot justify the subsequent property arrangements of future generations. Hillel Steiner has expressed one form of this attack:

Consider, first, Locke's construction of individuals' original rights. The claim that for a limited (early) historical period each person was entitled to appropriate a quantitatively similar collection of natural resources is open to the unanswerable objection -- noted by Nozick -- that a right of historically limited validity and, thus, of less than universal incidence, cannot be constituted by any set of moral rules that extend the same kinds of rights to all persons. The titles thereby established can preclude historically later persons from exercising the same kind of right. Hence the set of rights constituted by Locke's rule fails the test of coherence. . . .n149

Nozick particularly addresses this problem with his discussion of the "Lockean proviso." Nozick has deftly interpreted Locke's condition that there must be "enough and as good left in common for others" as a principle meant "to ensure that the situation of others is not worsened" by the appropriations of property from the common.n150 Nozick says that Locke would justify privatization of things previously in the common unless "appropriation [*325] of an unowned object worsens the situation of others."n151 Assuming that acts of propertization do produce inequalities, Nozick's reformulation of Locke's "enough and as good" provision holds that inequalities of this sort always should be tolerated so long as they do not make the worse-off more badly off. To use the economist's jargon, Nozick is adopting the principle of Pareto optimality.n152 Whether or not this reformation is successful, both Locke and Nozick have used the original acceptability of initial property rights to lead to the acceptability of property rights for succeeding generations.

Intellectual property systems avoid these shoals. As long as there is an ever-growing common of ideas available for everyone's unlimited use, every person has at least as much opportunity to appropriate ideas as had the first man in the wilderness. There is an equilibrium between those ideas being removed from the common through privatization and those ideas that society relies heavily upon. What results is akin to John Rawls' treatment of justice between generations. Rawls argues that a fixed rate of savings between generations allows each generation to reap the same rewards and make the same investment in the future.n153 This effectively happens with intellectual property. The common of ideas grows like investment in an idea bank.



Historians treat Locke's condition of non-waste as an ugly step-sister of the enough and as good condition -- maligned, not for its own infirmity, but for how quickly Locke abandons it in his adoption of a money economy.n154 Nozick offers a criticism from another side: true application of Locke's "enough and as good" provision makes the non-waste condition superfluous.n155 This criticism attacks the place of the non-waste condition in Locke's theory, not the condition itself. Without entering this fray, I suggest that many systems of intellectual property neither embody nor require a non-waste condition.

Intellectual Property and the Money Economy

A "pure" Lockean account might dismiss the applicability of the non-waste condition on the grounds that intellectual property exists only in societies which have transcended the condition.156 It is possible, however, to imagine [*326] intellectual property existing before the creation of a money society. Certainly the subjects of intellectual property exist in primitive states: the corkscrew method of raising water from the Nile, the varied means of tanning hides, or original straw weaving patterns. When the originator of one of these ideas shared it with others, he gave some value to the others by allowing them to remove property from the common with less labor.

This can produce paradoxical results depending on our understanding of Locke's theory of private property. For example, if what separates private property from the common is labor, then sharing a labor-saving idea with a friend actually may rob my friend of her Lockean title to those goods she extracts with my idea. This is especially true if more labor makes one's property claims stronger. My friend is, after all, laboring less for the thing she gets. A related question is whether use of the idea by another is equivalent to additional labor by its originator. If so, when a friend uses my idea to draw water from the Nile, it would be as if the friend and I drew the water together. Would we, therefore, have some type of joint title to the water?

There is a powerful argument that ideas cannot be subjects of Lockean property rights in the pre-money state. If so, this sharply distinguishes ideas from physical objects. In the state of nature, people take what they need for survival. Those who fail to appropriate enough perish. In this situation, giving a friend my labor-saving idea would likely produce one of two results: either it preserves her life when otherwise she would have perished for insufficient labor to appropriate enough or it allows her to accumulate surpluses with which to barter.n157

The first possibility, that the idea preserves her life, runs counter to Locke's assumptions. If a person of average physical capability requires the idea to take enough from the common to survive there is something wrong either with the common or with human capacities. Before we even reach the question of "enough and as good," the common is not good enough.

The simplest cure is to say that the idea is part of the common -- as something everyone needs to take the common's physical things -- or that the idea is part of human capacities -- an idea all humans should possess in the same way they would possess the idea of using their arms to climb trees. Either way, the idea could not be the subject of propertization. I prefer to view certain ideas as things Locke would consider basic to human capacities. These might include, for example, the use of simple tools -- the club, the [*327] knife, the rope, and clothing.n158 This would seem to fit Locke's description of the state of nature in which men do certain activities that entail the use of simple tools.

On the other hand, if the idea I give my friend allows her to accumulate a surplus for bartering, this idea exists in or begins the money economy. The idea can be treated as intellectual property precisely because it produces surplus value which can be traded.n159


The Non-Waste of Intellectual Property.

Locke presents his non-waste condition most directly in the example of food spoilage, and this particular form of loss powerfully demonstrates the appeal of the non-waste condition. The waste of food is an absolute loss. Arguably, the moral force of the non-waste condition dissipates in a world in which all have enough or more than enough to meet their needs. This is the jist of Nozick's argument that Locke does not need the non-waste condition so long as he employs the "enough and as good" condition.n160

But spoiled food can be viewed as waste in either of two ways: food that spoils is available neither for the present potential use of those who do not own the food nor for the future potential use of its owner. There is waste in others needing something that is not being used, and in consumption of the individual's labor without bringing any benefit to the individual. The first is waste in a social context; the second is waste for the individual organism.

Nozick's argument addresses only the former, and completely misses the latter. For although no one may need the food that spoils in the pre-economic state of natural bounty, the individual's labor that was used to produce and appropriate the spoiled food nevertheless has been "wasted" -- it [*328] was used without creating any present or future value to society or to himself. In the realm of intellectual property, there are interesting differences between these two versions of waste. Unlike food, ideas are not perishable: they almost always retain future value. From an individual's perspective, it is much harder to say at a point in time, T[1], that the individual's investment in some idea is wasted. The investment may yield value at a later T[2]. Of course, one can claim that intellectual goods actually are perishable: ideas go stale, new stories become "old," literature becomes dated, and patents become worthless as the technology on which they are based becomes obsolete. These are examples of good ideas being introduced into society too late to yield maximum return.

Yet the value lost by hoarding an idea until it becomes obsolete is a very different kind of loss than food spoilage. There is no internal deterioration in the idea and the loss in value is seen only against a social backdrop. The loss is speculative and may be reversible. Future trends may make the outdated idea fashionable again. Even with technology-based intellectual property -- the property most prone to an objectively measurable loss in value -- there may be a recovery of value. For example, new technical improvements in equestrian equipment and train engines can still be very profitable despite the appearance of automobiles and Boeing 757s.

While the social value of an idea may decline below an optimal point, the value of the idea, apart from its value to society, may remain constant. An unpublished story may still give an author joy when shared with intimates. The secret recipe for Kentucky Fried Chicken will taste as good to the creator whether or not it is shared with Madison Avenue. With intellectual property, there is no waste to the individual because the act of "consumption" is inseparable from the act of production. Intellectual property holds value derived solely from the act of creation.

In intellectual property systems, manifestations of a non-waste condition are few and far between. Perhaps the most explicit inclusion of the condition in intellectual property law was the publication requirement for copyright protection. Until the 1976 Copyright Act became effective, federal copyright protection for a work commenced upon publication.n161 Publication ensured that the literary work was not being wasted. Effectively, ideas could be monopolized through copyrights only when put to good use, i.e., published. Yet since 1976, publication has not been required for federal copyright protection,n162 and even before 1976, common law copyright or state statutes protected the author's unpublished work in the stages before federal statutory [*329] copyrights could have been granted. n163

It is difficult to think of any other ways in which intellectual property schemes embody any notion of the non-waste condition. Patents, copyrights, and trade secrets all are recognized whether or not the owner is squandering or has shelved the idea. In the case of quasi-property, the legal right to waste a news story by nonpublication has not been clearly stated, but surely this is because of the news story's limited shelf life and not the law's limited protection.n164



The absence of a non-waste condition in intellectual property systems does not weaken a Lockean justification for intellectual property. Locke, after all, declined to apply the non-waste condition to the advanced social conditions which are required by most intellectual property systems. However, it may be disconcerting to those of us who believe that applying the non-waste condition to advanced societies would produce a more moral justification for property. Intellectual property systems, however, do seem to accord with Locke's labor condition and the "enough and as good" requirement. In fact, the "enough and as good" condition seems to hold true only in intellectual property systems.n165 That may mean that Locke's unique theoretical edifice finds its firmest bedrock in the common of ideas.

My own view is that a labor theory of intellectual property is powerful, but incomplete. I believe we also need the support of a personality theory, such as the one proposed by Hegel, in which property is justified as an expression of the self. Some writers have suggested that Locke actually subscribed to such a personality theory in which "applying one's labor to a natural object . . . endow[s] it with certain features pertaining to one's own form of existence."n166 With [*330] this understanding of Locke, the difference between him and Hegel -- at least as to the analysis of intellectual property -- may be minimal.



*  Luce Scholar and Mellon Fellow in the Humanities, 1988. B.A. 1982, Oberlin College; J.D. 1986, Harvard University.

N32 See J. LOCKE, Second Treatise of Government, @@ 138-40, in TWO TREATISES OF GOVERNMENT P. Laslett rev. ed. 1963 3d ed. 1698.

N33 Id. @ 25.

N34 This suggests to me a God who is slightly myopic, less than benevolent, or himself enjoying a practical joke. For Locke, this was because of Man's fall. Id. With respect to Locke's position that the common is a gift from God, Robert Paul Wolff has suggested that "[i]f we secularize this theory, it is not difficult to see that it is really based on the supposition that property is originally social or collective. . . . The opposite view, that property is originally individual, is completely contrary to Locke's orientation. . . ." Wolff, Robert Nozick's Derivation of the Minimal State, in READING NOZICK 101-02 n.9 J. Paul ed. 1981. I disagree that secularizing Locke's theory means property is originally social. In fact, I see no reason why Wolff would think that this is the case and I think that a social conception of property would have undermined Locke's position. See Hamilton, Property -- According to Locke, 41 YALE L.J. 864, 867-68 1932 Locke's theory of property based on popular perception in seventeenth century that all property derives from "magnanimity of a bountiful creator"; government established by compact can have no other goal than to preserve possessory rights of citizens without doing prejudice to property rights of others in same natural property; see generally Rowen, A Second Thought on Locke's First Treatise, 17 J. HIST. IDEAS 130 1956.

N35 J. LOCKE, supra note 32, @ 33.

N36 Id. @ 27. See generally Mautner, Locke on Original Acquisition, 19 AM. PHIL. QUARTERLY 259, 260 1982 claiming "enough and as good" condition not actually a premise in Locke's argument. Although some scholars agree with Mautner, most seem to treat the proposition as a central premise of Locke's argument. See, e.g., C.B. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM: HOBBES TO LOCKE 201 1962; G. PARRY, JOHN LOCKE 1978. Perhaps even Mautner implicity retreats from saying the "enough and as good" condition is not a premise by admitting that Locke makes an "assumption of original abundance." Mautner, supra, at 260.

N37 J. LOCKE, supra note 32, @ 37.

N38 Id. @@ 36, 37 9:40 41. An interesting problem raised by these examples is the geographical consideration in determining what counts as "enough and as good." For example, the Treaty of Paris left the new United States with the unsettled Northwest Territory which became Ohio, Indiana, Illinois, Michigan, and Wisconsin. Does this mean the enough and as good condition would be satisfied for those within the Territory? Would it be satisfied for everyone within the United States assuming unrestricted immigration? Would it be satisfied for all within the English-speaking world?

N39 Letter from Richard Epstein to the author Aug. 28, 1985 copy on file at Georgetown Law Journal.

N40 Epstein, Possession as the Root of Title, 13 GA. L.J. 1221, 1227 1979.

N41 J. LOCKE, supra note 32, @ 27, cited in Epstein, supra note 40, at 1227.

N42 Epstein, supra note 40, at 1227.

N43 By definition, "possession" involves a relationship which includes domination. The possessor controls his possession. He is dominant over it. The mind-body connection, however, is not based upon unilateral domination. While it is said that the mind "controls" the body, we now know that the symbiosis between the two renders such a statement inaccurate. We cannot say that the mind controls the body any more than that the body controls the mind. There is an integration of the two -- or perhaps the concept of two separate entities is itself misleading -- but there is no possessory relationship.

N44 J. LOCKE, supra note 32, @ 37.

N45 Id.

N46 Id.

N47 Id. @ 50.

N48 Thomas Scanlon seems to consider this consent critical because "the original moral foundation for property rights is no longer valid" once we have a money economy. Scanlon, Nozick on Rights, Liberty, and Property, in READING NOZICK, supra note 34, at 107, 126. But Nozick appears to disagree. See R. NOZICK, ANARCHY, STATE AND UTOPIA 18 1974 social contract not necessary for free exchange of goods; see also Rapaczynski, Locke's Conception of Property and the Principle of Sufficient Reason, 42 HIST. IDEAS 305, 306 1981 "Locke attempts to provide a justification of property which would make ownership independent of any explicit or implicit social consent.".

N49 Such an alloy exists if people were to give their tacit consent to the distribution of property because
1 they believed that the present distribution arose from an original distribution based on the labor justification, and
2 they believed that the labor justification was indeed valid.

N50 See Wheaton v. Peters, 33 U.S. 8 Pet. 590, 637 1834 "a literary man is as much entitled to the product of his labour as any other member of society". In The Trademark Cases, 100 U.S. 82 1879, the Supreme Court used a labor model to hold that trademarks were unprotected. "The writings which are to be protected are the fruits of intellectual labor." Id. at 94. The Court held that the trademark is unprotected because it does not require "any work of the brain . . . no fancy or imagination, no genius, no laborious thought." Id.; see also Goldstein v. California, 412 U.S. 546, 561 1973 "writings . . . may be interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor".

N51 Baird, Common Law Intellectual Property and the Legacy of International News Service v. Associated Press, 50 U. CHI. L. REV. 411, 413 1983.

N52 Id. at 415.

N53 J. LOCKE, supra note 32, @ 27.

N54 Id.

N55 Becker, The Labor Theory of Property Acquisition, 73 J. PHIL. 653, 655 1976.

N56 J. LOCKE, supra note 32, @ 34.

N57 Minogue, The Concept of Property and its Contemporary Significance, in PROPERTY, NOMOS XXII, supra note 4, at 3, 10.

N58 David Ellerman argues that the "labor theory of property has throughout its history been entwined with and often confused with the labor theory of value. . . . The admixture of the two labor theories [was] present even in Locke." Ellerman, Property and the Theory of Value, 16 PHIL. F. 293, 294 1985. Ellerman writes of the confusion of normative propositions, but the same confusion can occur with the consequentialist arguments. For example, should we use property to give people incentives, or should we use some other measure of value?

N59 347 U.S. 201 1954.

N60 Id. at 219 emphasis added.

N61 U.S. CONST. art. I, @ 8, cl. 8; see also Grant V. Raymond, 31 U.S. 6 Pet. 218, 241-42 1832 Marshall, C.J. copyright and patent clause indicates that purpose of patent statute is to stimulate invention.

N62 A. LINCOLN, Second Lecture on Discoveries and Inventions, in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 356, 363 R.P. Basler ed. 1953.

N63 See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 576 1976 "The protection [of publicity] provides an economic incentive . . . to make the investment required to produce a performance. . . . This same consideration underlies the patent and copyright laws long enforced by this Court."; Goldstein v. California, 412 U.S. 546, 555 1973 "to encourage people to devote themselves to intellectual and artistic creation, Congress may guarantee to authors and inventors a reward"; cf. United States v. Paramount Pictures, 334 U.S. 131, 158 1948 "It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.".

N64 Easterbrook, Foreword: The Court and the Economic System in The Supreme Court 1983 Term, 98 HARV. L. REV. 4, 21-29 1984.

N65 Jurists have also recognized the enjoyable, personal value of creating intellectual works. Justice Holmes spoke of "the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who have never heard of him will be moving to the measure of his thought." Address by Justice Oliver Wendell Holmes, Harvard University Feb. 17, 1886, reprinted in THE MIND AND FAITH OF JUSTICE HOLMES 33 M. Lerner ed. 1943.

N66 P.D. ROSENBERG, supra note 28, @ 1.07.

N67 Becker, The Moral Basis of Property Rights, IN PROPERTY, NOMOS XXII, supra note 4, at 187, 193.

N68 347 U.S. 201 1954.

N69 Id. at 219.

N70 U.S. CONST. art. I, @ 8, cl. 8.

N71 248 U.S. 215 1918.

N72 Id. at 234-35. "We need spend no time . . . upon the general question of property in news . . . since it seems to us the case must turn upon the question of unfair competition in business." Id.

N73 See generally 1 D.S. CHISUM, PATENTS @@ 4.01-4.04 1988.

N74 15 F. Cas. 1018 C.C.D. Mass. 1819 No. 8,568.

N75 Id. at 1014.


N77 See Brenner v. Manson, 383 U.S. 519, 533-36 1965 requiring showing of positive social benefit to satisfy utility requirement.

N78 E.g., Connell v. Sears, Roebuck 9:40 Co., 559 F. Supp. 229, 245 N.D. Ala. 1983, aff'd, modified, vacated in part, 722 F.2d 1542 Fed. Cir. 1983.

N79 E.g., Brown-Bridge Mills, Inc. v. Eastern Fine Paper, Inc. 700 F.2d 759, 763 1st Cir. 1983.

N80 See 35 U.S.C. @ 103 1982 patent granted if advancement not "obvious at the time of the invention . . . to a person having ordinary skill in the art". This standard, now statutorily embodied, originated in Hotchkiss v. Greenwood, 52 U.S. 11 How. 248, 265-67 1850, in which the substitution of porcelain doorknobs for wooden knobs was considered too obvious for a patent.

N81 Bennett v. Halahan, 285 F.2d 807, 811 C.C.P.A. 1961; Oetiker v. Jurid Werke GmbH., 209 U.S.P.Q. BNA 809, 824 D.D.C. 1981.

N82 See Graham v. Horn Deere, 383 U.S. 1, 25 1965.

N83 P. D. ROSENBERG, supra note 28, @ 8.03, at 8-8.

N84 Such an invention might indirectly produce value for society by improving a technology that, after further research and improvement, eventually surpasses existing technologies.

N85 For chemical compounds, there is a strict utility requirement: "Mere usefulness in further chemical research will not suffice to satisfy the utility requirement. . . . [It] must produce a useful product." P. D. ROSENBERG, supra note 28, @ 8.06, at 8-12.

N86 Id. @ 2.02, at 2-4.3 to 2-4.4. Such exclusion seems to deprive society of potential value. Furthermore, the lack of use of a patent may create antitrust problems. See Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 424-25 1908.

N87 Copyright Act, 17 U.S.C. @ 408a 1982 allowing copyright registration 1995[a]t any time during the subsistence of copyright in any published or unpublished work"; cf. National Conference of Bar Examiners v. Multistate Legal Studies, 692 F.2d 478, 480 7th Cir. 1982 upholding constitutionality of copyright protection for standardized tests that are never published in normal sense and only disseminated in a control environment, cert. denied, 464 U.S. 814 1983.

N88 106 F.2d 45 2d Cir. 1939, aff'd, 309 U.S. 390 1940.

N89 Id. at 50 stars were Joan Crawford and Robert Montgomery.

N90 Id. at 48; see also Haas v. Leo Feist, Inc., 234 F. 105 S.D.N.Y. 1916 Hand, J. awarding 100% of the profits to the defendant for a song which copied only the refrain melody from the plaintiff and was a success clearly because of its patriotic lyrics.

N91 Compare Gorman, Copyright Protection for the Collection and Representation of Facts, 76 HARV. L. REV. 1569, 1575-76 1963 urging courts to narrow standard of copyright infringement with B. KAPLAN, supra note 15, at 63 arguing for more stringent standards for issuance of copyrights.

N92 B. KAPLAN, supra note 15, at 71 apportionment schemes "seduce" judges into granting partial relief to plaintiffs in "dubious" cases.

N93 For a biography, see L. EGAN, THOMAS EDISON 1987.



N96 In a 1986 book, Umberto Eco describes the medieval view that an artist conceives his art before executing it. Eco criticizes that view precisely on this issue: "[T]here [was] no sign of awareness that art, nourished by intellectual insight and skilled craftsmanship, involves an arduous process in which physical manipulations do not follow the conception of the intellect, but are the intellect conceiving something by making it." U. ECO, ART AND BEAUTY IN THE MIDDLE AGES 111 1986 emphasis in original.

N97 Remark of Hadi Abu Shakra, LL.M. candidate, Harvard Law School May 1985.

N98 W. V. O. Quine recently put it another way: "If the fantasy of the UNIVERSAL LIBRARY were realized, literary creativity would likewise reduce to discovery: the author's book would await him on the shelf." W. V. QUINE, QUIDDITIES 39 1987.

N99 Copyright Act, 17 U.S.C. @ 102a 1976 limiting copyright protection to works "fixed in any tangible medium of expression". By contrast, West German law might protect even the fleeting form of spoken words. 6 IIC STUDIES, GERMAN INDUSTRIAL PROPERTIES, COPYRIGHT, AND ANTITRUST LAWS 111, 132-33 Beier, Schricker, 9:40 Fikentscher eds. 1983.

N100 293 F. Supp. 130 S.D.N.Y. 1968.

N101 Id. at 144.

N102 17 U.S.C. @ 102 1976 granting copyright protection to "original works of authorship fixed in any tangible medium" but not to "any idea . . . embodied in such works".

N103 E.g., Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1329 n.3 9th Cir. 1983.

N104 E.g. Reyher v. Children's Television Workshop, 533 F.2d 87, 90 2d Cir., cert. denied, 429 U.S. 980 1976; Universal Athletic Sales Co. v. Salkeid, 511 F.2d 904, 906 3d Cir., cert. denied, 423 U.S. 863 1975; Anselh v. Puritan Pharmaceutical Co., 61 F.2d 131, 137-38 8th Cir., cert. denied, 287 U.S. 666 1932.

N105 Sid and Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157, 1168 9th Cir. 1977 dicta Michaelangelo's David deserves protection as expression while idea of statue of nude male does not.

N106 Scenes a faire are elements e.g., scene, character, plot component of a genre of literature so common that they are customary. For example, in space-voyage science fiction, a battle scene and a non-human character would probably qualify as scenes a faire.

N107 Reyher, 533 F.2d at 91 scenes a faire not entitled to copyright protection; Alexander v. Haley, 460 F.Supp. 40, 45 S.D.N.Y. 1978 plaintiff may not include scenes a faire as elements of copyright infringement.

N108 Krofft Television, 562 F.2d at 1167; see Roth Greeting Cards v. United Cards Co., 429 F.2d 1106, 1110 9th Cir. 1970 copyright violation when "total concept and feel" of defendant's greeting cards same as those of plaintiff; similarities include characters and mood portrayed, combination of artwork and message, and arrangement of words on cards.

N109 See Lee v. Runge, 404 U.S. 887, 890-93 1971 Douglas, J., dissenting from denial of certiorari first amendment questions raised if Congress' power over copyrights construed to allow grant of monopolies over ideas rather than merely over means of expressing ideas.

N110 Krofft Television, 562 F.2d at 1170; see also Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1178 5th Cir. 1980 Brown, J., concurring "The idea-expression dichotomy generally provides a workable balance between copyright and free speech interests.".

N111 Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 U.C.L.A. L. REV. 1180 1970.

N112 Id. at 1197-1200 photographs of My Lai massacre and film of John F. Kennedy's assassination could not be censored from public by copyright owners. An audacious example of copyright over the expression of a public event is the television evangelist Jimmy Swaggart's claimed copyright over his public confession of relations with a prostitute. Swaggart claimed copyright in an effort to stop the Cincinnati Opera from using part of the confession in an advertisement for the opera "Susannah." Int'l Herald Trib., June 18-19, 1988, at 14, col. 7. What other reason would Swaggart have to claim copyright than to chill the confession's use by others?

N113 The two dichotomies may not be completely parallel. Under present law when "idea" and "expression" merge, the creation is unprotected on the rationale that one could not express the idea any other way. See 1 M. NIMMER 9:40 D. NIMMER, NIMMER ON COPYRIGHT @ 1.10[c], 1-82 to 1-84 1963 [hereinafter NIMMER] using the example of the Vietnam War's My Lai massacre to demonstrate that in some instances the form of expression, e.g., photography, is essential to convey the idea.

N114 See Krofft Television, 562 F.2d at 1169 "the intrinsic test for expression is uniquely suited for determination by the trier of fact".

N115 See Prager, The Early Growth and Influence of Intellectual Property, 34 J. PAT. OFF. SOC'Y 106, 108-09 (1952) (authors, unlike creators of tangible things, lose right to exclusive use of words and ideas after publication and public possession).

N116 In fact, this addition to the common pool of ideas has been recognized as part of the "bargain" of patent law: "such additions to the general store of knowledge are of such importance to the public weal that the Federal Government is willing to pay the high price of 17 years of exclusive use for its disclosure, which disclosure, it is assumed, will stimulate ideas and the eventual development of further significant advances." Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481 (1974). To some, society has the better bargain: "[t]he purpose of disclosure to the public is to catalyze other inventors into activity. . . . The inventor makes a truly Faustian bargain with the sovereign, exchanging secrecy of indefinite and of possibly perpetual duration, for ephemeral patent rights." P. D. ROSENBERG, supra note 28, @ 1.02, at 1-5.

N117 Another point is that idea X may breathe new life into the common by making set of ideas Y worth developing. For example, L'Enfant's plans for Washington, D.C., made it viable for generations of architects to develop ideas to use the city's oddly shaped intersections.

N118 See R. NOZICK, supra note 48, at 174-82 (social considerations favor establishment of private property and a free market system would not violate Locke's proviso that "enough and as good" remain in the common).

N119 J. LOCKE, supra note 32, @ 32.

N120 This is true even where the inventor of the "child" holds a license to the "parent" idea. Hence the pressure for "grant-backs" of offspring patents to the owner of the original patent. See 2 P. D. ROSENBERG, supra note 28, @ 16.02[2] (discussing various methods for exchanges of patent rights).

N121 In a celebrated example, Sir Ambrose Fleming patented a vacuum tube with two electrodes and Dr. Lee DeForest patented a vacuum tube with three electrodes. Marconi Wireless -- the holder of Fleming's patent -- confessed judgment as to one of DeForest's patents while DeForest Radio was held to have infringed one of Fleming's patents. Marconi Wireless Telegraph Co. v. DeForest Radio Telephone & Telegraph Co. 236 F. 942, 943 (S.D.N.Y. 1916) (confessed judgment by Marconi), aff'd, 243 F. 560 (2d Cir. 1917); id. at 955 (infringement found against DeForest's company). According to Rosenberg, "[i]n most instances wherein there are such overlapping claims owned by different parties, each licenses the other." P. D. ROSENBERG, supra note 28, @ 1.03, at 1-13.

N122 Parody is considered a "fair use" of the copyrighted work and a parody's "fair use" of an original is usually more extensive than the "fair use" of an ostensibly rather unrelated work. At a minimum, a parody can "conjure up" an original for the sake of humor. See, e.g., Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252, 253 n.1 (2d Cir. 1980) (per curiam) (Saturday Night Live transformation of song I Love New York into I Love Sodom was fair use). A parody threatening to displace the original within the market may infringe. See Warner Bros., Inc. v. American Broadcasting Co., 654 F.2d 204, 208 (2d Cir. 1981) (to determine whether similarity between original work and parody constitutes "substantial and hence infringing similarity," court must decide whether similarities are "something more than mere generalized ideas or themes").

N123 At the same time, the purported parody -- no longer recognized as such -- is not "complimenting" the original as a parody normally does by indicating that the original has reached a certain level of fame.

N124 See R. NOZICK, supra note 48, at 175-82.

N125 See id. at 180.

N126 Professor Michelman has suggested a triumvirate of property statuses: the common, private property and the "anticommon" -- "a pure 'social property' regime in which everyone has exclusive rights over every resource; or, in other words, no one is privileged to make any use of any resource without the unanimous consent of everyone else." Address by Professor Frank Michelman, 1985 American Association of Law Schools Meeting (Jan. 1985) (copy on file at Georgetown Law Journal). None of Michelman's categories captures the idea common in which anyone can enjoy free access to all ideas without need for anyone else's consent.

N127 Professor Michelman has suggested a triumvirate of property statuses: the common, private property and the "anticommon" -- "a pure 'social property' regime in which everyone has exclusive rights over every resource; or, in other words, no one is privileged to make any use of any resource without the unanimous consent of everyone else." Address by Professor Frank Michelman, 1985 American Association of Law Schools Meeting (Jan. 1985) (copy on file at Georgetown Law Journal). None of Michelman's categories captures the idea common in which anyone can enjoy free access to all ideas without need for anyone else's consent.

N128 Levmore, Explaining Restitution, 71 VA. L. REV. 65, 96 (1985). Levmore attributes this reluctance to the twin reasons "that such [lawyer's] arguments might be independently discovered later and that contribution of any one precedent to legal victory might be uncertain." Id. at 96 n.72.

N129 253 F.2d 702 (2d Cir.), cert. denied, 358 U.S. 816 (1958).

N130 Id. at 704.

N131 B. KAPLAN, supra note 15, at 65.

N132 Another example of the "necessary fixture" exception to ideas that can be privatized is the scenes a faire rule in copyright law. See supra note 106 (discussing scenes a faire); see also Alexander v. Haley, 460 F. Supp. 40, 45-46 (S.D.N.Y. 1978) (concept of scenes a faire in literature on slavery protected author of Roots from claims of copyright infringement); 3 NIMMER, supra note 113, @ 13.03[A][1] (Release No. 22 1988) (discussing nonliteral similarity between works).

N133 This conclusion seems to follow the from the "algorithm" cases. Compare Gottschalk v. Benson, 409 U.S. 63, 71-72 (1972) (mathematical method of converting binary-coded decimals into pure binary numbers does not qualify for protection) with In re Jones, 373 F.2d. 1007, 1014 (C.C.P.A. 1967) (disk for mechanical conversion of analog to digital measurements and method for using disk may be patentable).

N134 Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1329 (9th Cir. 1983) (vacating trial court's grant of pretrial summary judgment for MCA, creator of "Battlestar Galactica").

N135 Parker v. Flook, 437 U.S. 584 (1978).

N136 Id. at 591 ("The process itself, not merely the mathematical algorithm, must be new and useful.").

N137 See Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (literary themes may at some point become so generalized that they no longer are protected), cert. denied, 282 U.S. 902 (1931).

N138 Sayre v. Moore, 102 Eng. Rep. 139, 140 (K.B. 1785), reported in Cary v. Longman, 102 Eng. Rep. 138, 139 n.(b) (K.B. 1801).

N139 This is sometimes called the "Aspirin and Cellophane doctrine." See Bayer Co. v. United Drug Co., 272 F. 505, 514-15 (S.D.N.Y. 1921) (L. Hand, J.) (expiration of Bayer's patent terminated exclusive right to word "aspirin" as trademark in direct sales to consumers); DuPont Cellophane Co. v. Waxed Products Co., 85 F.2d 75, 80 (2d Cir.) (expiration of patent terminated manufacturer's exclusive right to use word "cellophane"), cert. denied, 299 U.S. 601 (1936); see also King-Seeley Thermos Co. v. Aladdin Indus., 321 F.2d 577 (2d Cir. 1963) (no exclusive right to use word "thermos").

N140 See XEROX CORP., TRADEMARK POLICY, reprinted in Current Developments in Trademark Law and Unfair Competition, PRACTICING LAW INSTITUTE (1982).


N142 17 U.S.C. @ 302(a) (1982).

N143 35 U.S.C. @ 154 (1982).

N144 Int'l News Serv. v. Associated Press, 248 U.S. 215, 218 (1918).

N145 These two images of idea-making as individual achievement and inexorable progress have been in tension in patent cases when the patent's validity is in question because of similarity to, or simple extension of, prior art. While stressing the creativity of a patented invention held by Marconi, Justice Frankfurter aptly characterized the foundation of the argument against patents:

Marconi Wireless Co. v. U.S., 320 U.S. 1, 62 (1942) (Frankfurter, J., dissenting).

N146 R. NOZICK, supra note 48, at 181.

N147 Id.

N148 See Marconi Wireless, 320 U.S. at 62 (Frankfurter, J., dissenting). That patent law does not reflect such variations may be due to administrative difficulties.

N149 Steiner, Slavery, Socialism, and Private Property, in PROPERTY, NOMOS XXII, supra note 4, at 244, 251.

N150 R. NOZICK, supra note 48, at 175.

N151 Id.

N152 See P. SAMUELSON & W. NORDHAUS, ECONOMICS 483 (12th ed. 1985) (Pareto efficiency is achieved when one person's utility can be increased only by lowering the utility of another).

N153 J. RAWLS, A THEORY OF JUSTICE 204-93 (1971).

N154 J. LOCKE, supra note 32, @@ 46-51.

N155 R. NOZICK, supra note 48, at 176.

N156 J. LOCKE, supra note 32, @@ 46-51.

N157 A third, less likely possibility is that the idea I give my friend allows her to labor less to survive and to loiter more. However, this does not seem to accord with Locke's view of human motives, for he assumed that people will inevitably strive to accumulate material objects. J. LOCKE, supra note 32, @ 46. As Walter Hamilton humorously observed, "[Locke's] natural state is a curious affair, peopled with the Indians of North America and run by the scientific principles of his friend Sir Isaac Newton." Hamilton, supra note 34, at 871.

N158 This idea, of course, is elementary to the sciences of biology and anthropology. Biological and cultural evolution both contribute to the understanding of new concepts and to a species' ability to translate these ideas into technology -- tool use. For a general statement of this idea, see J. BRONOWSKI, THE ASCENT OF MAN 41 (1973) ("The development of [finely manipulable tools] and the use of fire is not an isolated phenomenon [in the evolution of man]. On the contrary, we must always remember that the real content of evolution (biological as well as cultural) is the elaboration of new behaviour.").

N159 To attack the notion that there is no intellectual property in the pre-money economy, one might argue that we should make a distinction between a barter economy and a money economy. Locke does not draw any significant distinction between the two, but one could infer from Locke's discussion that the barter economy is a situation in which people are trying to acquire more of the "useful" goods they need without doing violence to the non-waste condition and without accumulating non-useful goods like gold. "First-order" bartering displays this kind of exchange: short-lived fruits bartered for more durable nuts. Such barters are useful things in Locke's scheme; the person receiving nuts avoids the non-waste condition and the person receiving the fruits adds variety to his diet. Given Locke's announced antipathy toward non-useful items that people value (gold, silver, baubles), as soon as these items enter the barter system, one has a money economy: an exchange system based on an unnatural, or at least less fundamental, second-order of valuation.

N160 R. NOZICK, supra note 48, at 175-76.

N161 D. JOHNSTON, COPYRIGHT HANDBOOK 32-33 (2d ed. 1982).

N162 Id.; 17 U.S.C. @@ 101-104, 301(a) (1976) (@ 104 explicitly recognizes that @@ 101-103 cover unpublished works).

N163 See, e.g., Roy Export Co. v. Columbia Broadcasting System, Inc., 672 F.2d 1095, 1100-01 (2d Cir. 1982) (state law protects the owner's work from creation through publication); Burke v. National Broadcasting Co., 598 F.2d 688, 691-92 (1st Cir. 1979) (common law protects owner's work until publication).

N164 The trademark "token use" doctrine will be abolished after November 16, 1989, the effective date of the Trademark Law Revision Act of 1988. Pub. L. No. 100-667, 100th Cong., 2d Sess. (Nov. 16, 1988). The "token use" doctrine sanctioned waste of a trademark by permitting someone to protect a mark without really using it. After November 1989, a real use or intent to use will be required.

N165 It has been argued that this condition never occurred with physical goods, or that it has not occurred during the known history of mankind. See C. B. MACPHERSON, supra note 36. Others argue that even if this condition applied to physical goods at one point in time, it cannot be used in a justification for property enduring past its original allocation. See Steiner, supra note 149, at 251-52 (eventually all land will be owned and nonlandowners will be trespassers unless they obtain permission for use from owners (citing H. SPENCER, SOCIAL STATICS 114-15 (1851))); Mautner, supra note 36, at 267-68 (justification fails because claim that property was legitimately acquired can rarely be supported).

N166 Rapaczynski, supra note 48, at 307.