legal theory: philosophy

Justin Hughes: The Philosophy of Intellectual Property

77 Georgetown L.J. 287, 344-50 (1988)


Hegel regards alienation as the final element in the agenda of an individual's relationship to the propertized thing. Viewed as a single act, alienation is equivalent to abandonment: "The reason I can alienate my property is that it is mine only insofar as I put my will into it. Hence I may abandon . . . as a res nullius anything that I have or yield it to the will of another. . . ."

There is some intuitive appeal in this view of alienation, especially in a barter-exchange framework. Two people can exchange distinct objects if each thinks her own personality would be better expressed through the object presently owned by the other. Jessica can exchange her comic books for Ken's baseball cards if she has more interest in baseball than in the exploits of Spiderman. Ken will engage in the same transaction if he identifies with superheroes more than with the baseball heroes collecting dust in his closet. Each person increases the actualization of his or her personality.

In a money economy, however, the exchange may lose some of its intuitive appeal. An individual alienates his property for value which he can then invest in things which will increase self-actualization above what it would have been had he continued to own the alienated property. Depending upon the degree of development, however, the individual might not be able to increase self-actualization through future investment. One can no longer be as certain that he will receive a profitable return. A fragile money economy -- subject to inflation and shortages -- threatens the prospect of translating value received into increased self-actualization. A stable economy strengthens the prospect.

The risk of unprofitable investment, however, is not the main problem. Alienation is more than just "giving up" something. Like many of the rights encompassed by property, the right to alienate X is the right partially to determine X's future. In an absolute sense, only the future decisionmaker -- the transferee -- for X is determined, but in practice an act of alienation usually establishes clear probabilities as to the future of the object itself. This is true whether the alienation conveys land to a developer, sends a horse to a glue factory, or sells weapons to terrorist organizations.

To better understand this, imagine a system of depositing or redepositing objects in a "community bank" for which, upon deposit, one received value coupons. The property, once in the bank, becomes a res nullius, and the bank would dispose of this property on a first-come/first-serve basis, much like the government auctions newly acquired lands or unclaimed postal freight.

The difference between alienation and this community bank is that most alienation involves some degree of determining the object's future. Imagine that Jessica can sell her new baseball card collection to David, an avid collector, or to Nat, the restaurateur who is opening a sports version of the Hard Rock Cafe and is looking for wall decorations. Now Jessica's act of alienation involves the choice of where and how the property will be used in the future.

This is the paradox of alienation under the personality model of property. The present owner maintains ownership because he identifies the property as an expression of his self. Alienation is the denial of this personal link to an object. But if the personal link does not exist -- if the object does not express or manifest part of the individual's personality -- there is no foundation for property rights over the object by which the "owner" may determine the object's future. An owner's present desire to alienate a piece of property is connected to the recognition that the property either is not or soon will not be an expression of himself. Thus, the justification for property is missing. This subtle control of the object's future does not jibe with foreseen future denial of the personality stake.

One way to explain this paradox is to say that the personality justification is powerful for property protection, but that it fails to explain property exchange. Using Radin's terminology, the willingness to sell a piece of property suggests that the property has moved from the "personal" category to the "fungible" category. This follows because personal property is defined as having an internal value for the property owner in excess of possible external value. When a buyer comes forward offering a price acceptable to the owner, there is an external valuation of the property commensurate to the owner's internal valuation and the personality justification for guarding rights to personal property vanishes.

Specific covenants and restrictions on property suffer in the same way. A restriction -- covenant, servitude, or easement -- acknowledges that the present owner has a limited personality interest continuing into the future. Restrictions on real property, such as preservation of particular natural features or prohibitions on particular uses, seem like very honest claims to future [*346] personality stakes in property. By using a restriction, a person retains the specific stick(s) in the bundle of property rights which will "contain" his continuing personality stake.

The restriction turns a present owner's freedom to choose from varying courses of action into a future static condition inherent in the property. A farm owner's right to cut down a woods in the corner of his farm is transformed into a static condition when he sells the farm with a restriction against destroying those trees. This conversion produces a static condition which continues regardless of the evolving wishes of either the original owner or the new owner. This static condition replaces both the original owner's right and the new owner's right. With alienation, the condition becomes subject to the new owner's right. The original owner alienated his property, betting only on the probability that the new owner would not pursue a course of action that offends him.

It is more difficult to defend a personality justification for restrictions than it is for complete alienation. We often use our property rights to alter an object to suit our personality. A restriction destroys the flexibility by which property becomes and continues to be a reflection of those who own it. This flexibility, of course, may not matter to an original owner seeking to preserve memories, but it will matter a great deal to the new owner seeking to maximize his personal expression. Perhaps it is no accident that even more so than covenants disallowed for violating public policy or constitutional provisions, covenants creating affirmative obligations on real property are generally limited and "a general restraint upon alienation is ordinarily invalid." Such a restraint would be ideal for an owner who wishes to alienate and to control the object's future. It would permit him to choose the new owner (whose probable use of the property can be known) and restrict to whom the new owner can alienate.

Alienation of intellectual property can take one of two basic forms. The first is its entire alienation by selling, at one time, all rights to the property. The second is the complete alienation of copies of the property with limitations on how those copies may be used: the selling of copies of copyrighted works, objects displaying trademarks, or licenses to use patented technology.

Alienation of the entire intellectual property -- all rights to a trademark, patent, or copyright -- has the same paradoxical problems as does the alienation of physical objects. If a person genuinely has no personality stake in a work, why should she determine who publishes it, who markets it, or who dramatizes it? If an inventor foresees that an invention will neither manifest his vision of the world nor speak as an expression of his identity, why should he derive economic value from it? As with physical property, on most occasions the complete alienation of intellectual property is an exercise of rights over property in an act that, by its nature, denies the personality stake necessary to justify property rights.

This paradox of personality and alienation is more acute with intellectual property because, in the absence of any physically tangible res (other than the copy, which is not itself the entirety of the property) that is distinct from the creator's personality, it is difficult to conceive of abandonment. If there is no "thing" to abandon, how is alienation possible? Abandonment of an idea is arguably alienation of personality -- a prohibited act in Hegel's system.

When I take the rock from my shelf and toss it back onto the Corsican beach, I do so because I no longer identify with the memories the rock evokes and no longer see it as manifesting a part of my life. We go through this same process when we put old knick-knacks in a garage sale or send old clothes to the Salvation Army. The res exists independent of our personality, so it is not incoherent to claim that there is no longer a personality stake in the res.

This abandonment of a personality stake will be incoherent if there is no recognizable res that exists beyond the individual's expression. The question is whether the created work exists independent of the creator: does the expression turn to artifact? Performing artists often war with writers and composers over this issue. Seeking maximum freedom, the performers view the particular play or musical composition they are using as a device for their own expression, a res through which they can express their personalities. Yet the writer or composer may not think the res is abandoned at all.

Playwrights versus actors, composers versus conductors and orchestras -- these two sides will always be locked in one another's arms, in a grip that is both mortal combat and mutual need. It is possible to draw many comparisons and analogies to this issue. There is the familiar comparison to the rights of parents -- the author having a parental stake in her work. A less familiar analogy might be made to the questions of original intent and interpretivism in constitutional jurisprudence.

The "interpreters" believe that intellectual property can be, and usually is, ] abandoned. Their vision is reinforced by both popular notions of artistic development and philosophical notions of personal identity. A writer may simply no longer identify with something he previously wrote. A Picasso or a Le Corbusier may change radically the style of his work and, in the end, no longer identify with the works of the abandoned period. David Bowie can move beyond "Ziggy Stardust" and David Stockman can repudiate his doctrine of supply-side economics. Philosophers are familiar with arguments that there is no reason to identify the works written by Jorge Luis Borges in 1956 as a manifestation of the personality of Jorge Luis Borges as of 1986. For Borges in 1986, his earlier works may indeed have seemed liked a res nulli.

It's the other one, it's Borges that things happen to. . . . News of Borges reaches me through the mail and I see his name on an academic ballot or in a biographical dictionary. I like hourglasses, maps, eighteenth century topography, the taste of coffee, and Stevenson's prose. The other one shares these preferences with me, but in a vain way that converts them into the attributes of an actor. It would be too much to say our relations are hostile; I live, I allow myself to live, so that Borges may contrive his literature and that literature justifies my existence. I do not mind confessing that he has managed to write some worthwhile pages, but those pages cannot save me, perhaps because the good parts no longer belong to anyone, not even to the other one, but rather to the Spanish language or to tradition. . . . But I must live on in Borges, not in myself -- if indeed I am anyone -- though I recognize myself less in his books than in many others, or than in the laborious strumming of a guitar. Years ago I tried to free myself from him and I passed from lower-middle-class myths to playing games with time and infinity, but these games are Borges' now, and I will have to conceive something else. . . . I do not know which of us two is writing this page.

Hegel seems to have taken a contrary view, considering the complete alienation of intellectual property to be wrong -- morally analogous to slavery or suicide because it is the surrender of a "universal" aspect of the self. Selling an entire piece of intellectual property seems like a lesser surrender of the self, but Hegel considered it too much a "universal" part of the individual to be permitted. He seemed to identify the intellectual object as an ongoing expression of its creator, not as a free, abandonable cultural object. Supporting Hegel's view, we can note that even when the creator thinks he has abandoned the object, he may still identify with it enough to oppose certain uses for it. Even after "abandoning" a visual image, the artist might oppose its use as a symbol by a fringe political or religious organization.

The alienation of copies of the intellectual property offers a different set of issues. An owner may or may not limit the uses to which the alienated copies may be put. However, in either case the original owner still retains rights over the property. This type of alienation does not fall prey to the paradox of complete alienation: there is no exercise of property rights (alienation) after an "owner" no longer has a personality stake in an object. It also is immune from Hegel's objection to the selling of a part of oneself. Unlike physical property, the owner can, in this way, alienate the intellectual property while keeping the "whole" of the property and himself.

Not only does Hegel's personality theory pose no inherent objection to this kind of alienation of intellectual property, it also provides affirmative justifications. Hegel focuses on one such justification -- concern for the economic well-being of the intellectual property creator.

At first blush, this economic rationale seems far removed from the concerns of personality theory, yet it can be recast into the framework of the personality theory. From the Hegelian perspective, payments from intellectual property users to the property creator are acts of recognition. These payments acknowledge the individual's claim over the property, and it is through such acknowledgement that an individual is recognized by others as a person. "Recognition" involves more than lip service. If I say "this forest is your property" and then proceed to flagrantly trespass, cut your timber, and hunt your deer, I have not recognized your property rights. Similarly, verbal recognition of an intellectual property claim is not equal to the recognition implicit in a payment. Purchasers of a copyrighted work or licensees of a patent form a circle of people recognizing the creator as a person.

Furthermore, this generation of income complements the personality theory in as much as income facilitates further expression. When royalties from an invention allow the inventor to buy a grand piano he has always wanted, the transaction helps maximize personality. But this argument tends to be too broad. First, much income is used for basic necessities, leading to the vacuous position that life-sustenance is "personally maximizing" because it allows the personality to continue. Second, this approach could justify property rights for after-the-fact development of personality interests without requiring such interests in the property at the time the property rights are granted.

The personality theory provides a better, more direct justification for the alienation of intellectual property, especially copies. The alienation of copies is perhaps the most rational way to gain exposure for one's ideas. This is a non-economic, and perhaps higher, form of the idea of recognition: respect, honor, and admiration. Even for starving artists recognition of this sort may be far more valuable than economic rewards.

Two conditions appear essential, however, to this justification of alienation: first, the creator of the work must receive public identification, and, second, the work must receive protection against any changes unintended or unapproved by the creator.VARA Hegel's prohibition of "complete" alienation of intellectual property appears to result from his recognition of the necessity for these two conditions. While he would permit alienation of copies, and even the rights to further reproduction, he disapproves alienation of "those goods, or rather substantive characteristics, which constitute . . . private personality and the universal essence of . . . self-consciousness." Such alienation necessarily occurs if the recognition of the connection between a creator and his expression is destroyed or distorted. When the first condition is violated, this recognition is destroyed; when the second condition is violated, it is distorted.