William Fisher^*

Most of the recent theoretical writing consists of struggles among and within four approaches. The premise of the first and most popular of the four is the familiar utilitarian guideline that a lawmaker's beacon when shaping property rights should be the greatest good of the greatest number. In other words, he should strive to select a set of entitlements that (a) induces people to behave in ways that increase socially valuable goods and services and (b) distributes those goods and services in the fashion that maximizes the net pleasures people reap from them. As applied to the world of intellectual property, this guideline is conventionally thought to justify assigning to inventors and authors entitlements sufficient to induce them to develop and make available to the public inventions and works of art that they otherwise would not produce.

A good example of scholarship in this vein is William Landes' and Richard Posner's essay on copyright law. The distinctive characteristics of most intellectual products, Landes and Posner argue, are that they are easily replicated and that enjoyment of them by one person does not prevent enjoyment of them by other persons. Those characteristics create a danger that the creators of such products will be unable to recoup their "costs of expression" (the time and effort devoted to writing or composing; the costs of negotiating with publishers or record companies, etc.), because they will be undercut by copyists who bear only the low "costs of production" (the costs of printing, binding, and distributing books; the costs of "burning" and packaging compact disks, etc.) and thus can offer consumers identical products at very low prices. Awareness of that danger will deter creators from making socially valuable intellectual products in the first instance. How might we avoid this economically inefficient outcome? By allocating to the creators (for limited times) the exclusive right to make copies of their creations, thereby enabling them to charge consumers monopoly prices. All of the various alternative ways in which creators might be empowered to recover their costs, Landes and Posner contend, are, for one reason or another, more wasteful of social resources. This utilitarian rationale, they argue, should be -- and, for the most part, has been -- used to shape specific doctrines within the field.

A related argument dominates the same authors' study of trademark law. The primary economic benefits of trademarks, they contend, are (1) the reduction of consumers' "search costs" (because it's easier to pick a box of "Cheerios" off the grocery shelf than to read the list of ingredients on each container, and because consumers can rely upon their prior experiences with various brands of cereal when deciding which box to buy in the future) and (2) the creation of an incentive for businesses to produce consistently high quality goods and services (because they know that their competitors cannot, by imitating their distinctive marks, take a free ride on the consumer good will that results from consistent quality). Trademarks, Landes and Posner claim, also have an unusual ancillary social benefit: they improve the quality of our language -- by increasing our stock of nouns (and thus economizing on communication costs); by creating new, useful, generic words (e.g., "aspirin" and "brassiere"); and by "creating words or phrases that people value for their intrinsic pleasingness as well as their information value." To be sure, trademarks can sometimes be socially harmful -- for example by enabling the first entrant into a market to discourage competition by appropriating for itself an especially attractive or informative brand name. Awareness of these benefits and harms should (and usually does), Landes and Posner claim, guide legislators and judges when tuning trademark law; marks should be (and usually are) protected when they are socially beneficial and not when they are, on balance, deleterious. The general principle that underlies these various arguments is that maximization of net social welfare should be lawmakers' exclusive objective when shaping intellectual-property law.

The second of the four approaches that currently dominate the theoretical literature springs from the propositions that a person who labors upon resources that are either unowned or "held in common" has a natural property right to the fruits of his or her efforts – and that the state has a duty to respect and enforce that natural right. These ideas, originating in the writings of John Locke, are widely thought to be especially applicable to the field of intellectual property, where the pertinent raw materials (facts and concepts) do seem in some sense to be "held in common" and where (intellectual) labor seems to contribute so importantly to the value of the finished product.

A good illustration of this perspective is Robert Nozick's brief but influential discussion of patent law in Anarchy, State, and Utopia. After associating himself with Locke's argument, Nozick turns his attention to Locke's famous (and famously ambiguous) "proviso" -- the proposition that a person may legitimately acquire property rights by mixing his labor with resources held "in common" only if, after the acquisition, "there is enough and as good left in common for others." Nozick contends that the correct interpretation of this limitation ("correct" in the senses (a) that it probably corresponds to Locke's original intent and (b) that, in any event, it is entailed by "an adequate theory of justice") is that the acquisition of property through labor is legitimate if and only if other persons do not suffer thereby any net harm. "Net harm" for these purposes would include such injuries as being left poorer than they would have been under a regime that did not permit the acquisition of property through labor (something Nozick concedes would be difficult to ascertain) or a meaningful constriction of the set of resources available for their use -- but would not include a diminution in their opportunities to acquire property (through labor) for themselves. Construed in this fashion, the Lockean proviso is not violated, Nozick argues, by the assignment of a patent right to an inventor because, although other persons' access to the invention is undoubtedly limited by the issuance of the patent, the invention would not have existed at all without the efforts of the inventor -- and (although Nozick is not entirely clear on this point) the inventor would not have invented the invention and made it public had he not been lured by the prospect of a patent. Consumers, in other words, are helped, not hurt, by the grant of the patent. Nozick contends, however, that fidelity to Locke's theory would mandate two limitations on the inventor's entitlements. First, persons who subsequently invented the same device independently (i.e., without any knowledge of the first inventor's discovery) must be permitted to make and sell it; otherwise the assignment of the patent to the first inventor would leave them worse off. Second, for the same reason, patents should not last longer than, on average, it would have taken someone else to invent the same device had knowledge of the invention not disabled them from inventing it independently. (Although Nozick may not have been aware of it, implementation of the first of these limitations would require a substantial reform of current patent law -- which, unlike copyright law, does not contain a safe harbor for persons who dream up the same idea on their own.)

The premise of the third approach -- derived loosely from the writings of Kant and Hegel -- is that private property rights are crucial to the satisfaction of some fundamental human needs or interests; policymakers should thus strive to select the set of entitlements that most conduces to human flourishing. From this standpoint, intellectual property rights may be justified either on the ground that they shield from appropriation or modification artifacts through which authors and artists have expressed their "wills" or on the ground that they create social and economic conditions conducive to creative intellectual activity, which in turn is important to human flourishing.

In perhaps the most fully developed argument of this sort, Justin Hughes derives from Hegel's Philosophy of Right a variety of guidelines concerning the proper shape of an intellectual-property system, of which the following are illustrative: (a) We should be more willing to accord legal protection (or should be willing to accord more legal protection) to the fruits of highly expressive intellectual activities (such as the writing of novels) than to the fruits of less expressive activities (such as genetic research). (b) Because a person's "persona" -- his "public image, including his physical features, mannerisms, and history" -- is an important "receptacle for personality," it deserves generous legal protection, despite the fact that ordinarily it does not result from labor. (c) Authors and inventors should be permitted to alienate copies of their works (thereby enabling them to earn respect, honor, admiration, and money from the public) but should not be permitted to surrender certain of their entitlements to their creations (most importantly, their right to prevent others from mutilating or misattributing their works).

The last of the four approaches is rooted in the proposition that property rights in general -- and intellectual-property rights in particular -- can and should be shaped so as to help foster the achievement of a just and attractive culture. Theorists who work this vein typically draw inspiration from an eclectic cluster of political and legal theorists, including Jefferson, the early Marx, the Legal Realists, and the various proponents (ancient and modern) of classical republicanism. This approach is similar to utilitarianism in its teleological orientation, but dissimilar in its willingness to deploy substantive visions of the good, not reducible to the greatest good of the greatest number.

A provocative example may be found in Neil Netanel's recent essay, "Copyright and a Democratic Civil Society." Netanel begins by sketching a vision of "a robust, participatory, and pluralist civil society," teeming with "unions, churches, political and social movements, civic and neighborhood associations, schools of thought, and educational institutions." In this ideal society, all persons would enjoy both some degree of financial independence and considerable responsibility in shaping their local social and economic environments. A civil society of this sort is vital, Netanel claims, to the perpetuation of democratic political institutions. It will not, however, emerge spontaneously; it must be nourished by government. In two ways, copyright law can help foster it.

This conception of the role of copyright law suggests that several specific doctrines within the field ought to be reformed. For example, the copyright term should be shortened, thereby increasing the size of the "public domain" available for creative manipulation. Copyright owners' authority to control the preparation of "derivative works" should be reduced for the same reason. Finally, lawmakers should be more willing to employ compulsory licensing systems to balance the interests of artists and "consumers" of their works; by forcing the artists to grant (for a fee) permission to manipulate their creations, lawmakers would both ensure that creators are adequately remunerated and expand opportunities for creative expression by others.

Other writers who have approached intellectual-property law from similar perspectives include Rosemary Coomb, Niva Elkin-Koren, Michael Madow, and myself. As yet, however, this fourth approach is less well established and recognized than the other three. It does not even have a commonly accepted label. In a different connection, Greg Alexander suggests the term "Proprietarian" theory; my own preference would be for "Social Planning Theory."

II.

Those, then, are (in order of prominence and influence) the four perspectives that currently dominate theoretical writing about intellectual property: Utilitarianism; Labor-Desert Theory; Personality Theory; and Social Planning Theory. How did it come to pass that these particular approaches should have come to the fore? In large part, their prominence derives from the fact that each corresponds to and draws support from a theme that has long figured in intellectual property law -- in the United States and elsewhere. To some extent, in other words, contemporary theorists are merely distilling and systematizing arguments they have extracted from constitutional provisions, case reports, preambles to legislation, and so forth.

This is especially obvious in the case of utilitarianism. References to the role of intellectual-property rights in stimulating the production of socially valuable works riddle American law. Thus, for example, the constitutional provision upon which the copyright and patent statutes rests indicates that the purposes of those laws is to provide incentives for creative intellectual efforts that will benefit the society at large. The United States Supreme Court, when construing the copyright and patent statutes, has repeatedly insisted that their primary objective is inducing the production and dissemination of works of the intellect. A host of lower courts have agreed.

References to the importance of rewarding authors and inventors for their labor are almost as common. For example, proponents of legislative extensions of copyright or patent protection routinely make arguments like: "Our American society is founded on the principle that the one who creates something of value is entitled to enjoy the fruits of his labor." The United States Supreme Court often uses a similar vocabulary. For example, Justice Reed ended his opinion in Mazer v. Stein with the solemn statement: "Sacrificial days devoted to . . . creative activities deserve rewards commensurate with the services rendered." Lower court opinions and appellate arguments frequently take the same tack.

Until recently, the personality theory had much less currency in American law. By contrast, it has long figured very prominently in Europe. The French and German copyright regimes, for example, have been strongly influenced by the writings of Kant and Hegel. This is especially evident in the generous protection those countries provide for "moral rights" -- authors' and artists' rights to control the public disclosure of their works, to withdraw their works from public circulation, to receive appropriate credit for their creations, and (above all) to protect their works against mutilation or destruction. This cluster of entitlements has traditionally been justified on the ground that a work of art embodies and helps to realize its creators' personality or will. In the past two decades, "moral-rights" doctrine -- and the philosophic perspective on which it rests -- have found increasing favor with American lawmakers, as evidenced most clearly by the proliferation of state art-preservation statutes and the recent adoption of the federal Visual Artists Rights Act.

Finally, deliberate efforts to craft or construe rules in order to advance a vision of a just and attractive culture -- the orientation that underlies Social Planning Theory -- can be found in almost all of the provinces of intellectual property law. Such impulses underlie, for example, both the harsh response of most courts when applying copyright or trademark law to scatological humor and the generally favorable treatment they have accorded criticism, commentary, and education. Social-planning arguments also figure prominently in the debates raging these days concerning the appropriate scope of intellectual-property rights on the internet. Finally, they are playing a major role in the intensifying controversy concerning the proper scope of the "right of publicity."

To summarize, one source of the prominence of utilitarian, labor-desert, personality, and social-planning theories in recent theoretical literature is the strength of similar themes in the raw materials of intellectual-property law. But two circumstances suggest that such parallelism and resonance cannot fully explain the configuration of contemporary theories. First, there exist in the materials of intellectual-property law several important themes that have not been echoed and amplified by a significant number of theorists. Many American courts, for example, strive when construing copyright or trademark law to reflect and reinforce custom -- either customary business practices or customary standards of "good faith" and "fair dealing." That orientation has deep roots both in the common law in general and in the early-twentieth-century writings of the American Legal Realists. Yet very few contemporary intellectual-property theorists pay significant attention to custom. Much the same can be said of concern for privacy interests. Long a major concern of legislators and courts, protection of privacy has been given short shrift by contemporary American theorists.

The second circumstance is that, in legislative and judicial materials, arguments of the various sorts we have been considering typically are blended. Here, for example, is the preamble to Connecticut's first copyright statute:

Two hundred years later, in the Harper & Row case, the Supreme Court took a similar line:

Fairness, incentives, culture-shaping -- in these and countless other passages, they swirl together. In contemporary theoretical writing, by contrast, such themes are disentangled and juxtaposed. It is generally assumed that one or another should be the exclusive guide to the modification or interpretation of intellectual-property law. Theorists then struggle over which one should be given primacy.

How can we account for these two respects in which intellectual-property theory deviates from extant legal materials? The answer seems to be that the theorists are seeing the law through glasses supplied by political philosophy. In contemporary philosophic debates, natural law, utilitarianism, and theories of the good are generally seen as incompatible perspectives. It is not surprising that legal theorists, familiar with those debates, should separate ideas about intellectual property into similar piles.

One additional circumstance also likely plays a part: Many contemporary intellectual-property theorists also participate in -- or at least are aware of -- similar arguments about the appropriate shape of property law in general. In that arena, there is now a well-established canon of rival perspectives, again drawn in large part from Anglo-American political philosophy. Labor-desert theory, utilitarianism, and personality theory are the primary contenders. We should not be surprised to see them replicated in the context of intellectual property.

III.

Lawmakers -- both legislators and judges -- are confronted these days with many difficult questions involving rights to control information. How should intellectual-property rules be adapted for use on the internet? Should the creators of electronic databases be able to demand compensation from users or copyists? What degree of similarity between two plots or two fictional characters should be necessary to trigger a finding that one infringes the other? Should computer software be governed by copyright law, patent law, or a sui generis legal regime? Should we expand or contract intellectual-property protection for "industrial designs" -- the configurations of consumer products? Should time-sensitive information (e.g., sports scores, news, financial data) gathered by one party be shielded from copying by others? Many other, similar problems demand attention.

How much help to the lawmakers confronting such issues are the extant theories of intellectual property? Can one derive from those theories solutions to the problems of the day?

One implication of the division of theorists into contending camps is that a lawmaker will obtain no guidance whatsoever unless and until he selects one of the four approaches. In other words, he must decide at the threshold which of the four sets of premises he finds most persuasive. Assume that he has done so. He now finds himself surrounded by writers of the same philosophic orientation. Can he relax, listen, and learn what he should do?

The answer, regrettably, is no. Each of the four approaches proves incapable of generating determinate answers to specific questions. The reasons why vary, but none is able to tell lawmakers what to do.

A.

The first task in developing a utilitarian theory of intellectual property is translating the Benthamite ideal of the "greatest good of the greatest number" into a more precise and administrable standard. Most writers select for these purposes the "Kaldor-Hicks" criterion (also known as the "wealth-maximization" criterion or "potential pareto superiority") which counsels lawmakers to select a system of rules that maximizes aggregate welfare measured by consumers' ability and willingness to pay for goods and services. Skeptics (and indeed some economists) object to this maneuvre on a variety of grounds: it ignores the incommensurability of utility functions; it biases the analysis in favor of the desires of the rich (who, on average, value each dollar less than the poor); etc. But because those difficulties are by no means limited to the field of intellectual property and because they have been well aired elsewhere, I will not pause to explore them here.

Assume that we are comfortable with the use of Kaldor-Hicks criterion as our beacon. How might it be applied to intellectual-property law? What system of rules, in other words, will maximize net consumer welfare? It turns out that there are at least three general ways in which we might try to answer that question:

3. Reducing Rent-Dissipation. The final approach is related to but differentiable from the second. Its objective is to eliminate or reduce the tendency of intellectual-property rights -- and patent rights in particular -- to foster duplicative or uncoordinated inventive activity. Economic waste of this sort can occur at three stages in the inventive process. First, the pot of gold represented by a patent on a pioneering, commercially valuable invention may lure an inefficiently large number of persons and organizations into the race to be the first to reach the invention in question. Second, the race to develop a lucrative improvement on an existing technology may generate a similar scramble for similar reasons at the "secondary" level. Finally, firms may try to "invent around" technologies patented by their rivals -- i.e., to develop functionally equivalent but non-infringing technologies -- efforts that, although rational from the standpoint of the individual firm, represent a waste of society's resources. In recent years, several economists have devoted themselves to identifying possible reforms of intellectual property law (or of related doctrines, such as antitrust law) that would mitigate the dissipation of resources at these various sites.

Serious difficulties attend efforts to extract from any one of these approaches answers to concrete doctrinal problems. With respect to incentive theory, the primary problem is lack of the information necessary to apply the analytic. To what extent is the production of specific sorts of intellectual products dependent upon maintenance of copyright or patent protection? With respect to some fields, some commentators have answered: very little; other monetary or nonmonetary rewards (profits attributable to lead time, prestige, tenure, the love of art, etc.) would be sufficient to sustain current levels of production even in the absence of intellectual-property protection. Other commentators sharply disagree. The truth is that we don't have enough information to know who is right -- and are unlikely ever to acquire sufficient information. Even if we were able to surmount this enormous hurdle -- and concluded that society would be better off, on balance, by supplying authors and inventors some sort of special reward -- major sources of indeterminacy would remain. Is an intellectual-property system the best way of providing that reward or would it be better (as Steven Shavell and Tanguy van Ypersele have recently argued) for a government agency to estimate the social value of each innovation and pay the innovators that sum out of tax revenues? If the former, how far should creators' entitlements extend? Should they include the right to prepare "derivative works"? To block "experimental uses" of their technologies? To suppress their inventions? Determining which set of rights would be optimal well beyond our power.

Theorists who seek to optimize patterns of productivity confront less severe information problems. To be sure, they are obliged to make difficult judgments -- often with thin data -- on such questions as whether the failure of creators to license certain uses of their works results from the fact that such uses are worth less to consumers than preventing them is worth to creators (in which case, the absence of licenses is socially desirable) or from excessively high transaction costs (in which case, the creators should be compelled to grant licenses -- for free or for a governmentally determined fee). But inquiries of this sort are not as frighteningly complex as those that confront incentive theorists. However, scholars and lawmakers who take this road confront an additional problem: What is the set of productive activities the incentives for which we are trying to adjust? For the reasons sketched above, if we confine our attention to intellectual products, the optimal legal doctrine may be one that confers upon creators a very generous set of entitlements. Only thereby will potential producers be provided refined signals concerning how consumers wish to make use of which sorts of intellectual products. However, as Glynn Lunney has argued, if we expand our frame of reference, that solution proves highly problematic. In many fields unrelated to intellectual property, innovators are not empowered to collect the full social value of their innovations. The elementary schoolteacher who develops a new technique for teaching mathematics, the civil-rights activist who discovers a way to reduce racial tension, the physicist who finds a way to integrate our understandings of gravity and quantum mechanics -- all of these confer on society benefits that vastly exceed the innovators' incomes. Enlarging the entitlements of intellectual-property owners thus may refine the signals sent to the creators of different sorts of fiction, movies, and software concerning consumers' preferences, but would lead to even more serious overinvestment in intellectual products as opposed to such things as education, community activism, and primary research. Unfortunately, Lunney's proposed response to this problem -- reducing copyright protection until the creators of entertainment receive rewards no greater than the returns available to innovators in other fields -- would sacrifice most of the economic benefits highlighted by Demsetz and Goldstein. The optimal solution is thus far from clear.

Theorists bent on reducing rent dissipation have problems of their own. The most serious difficulty arises from the fact that reducing social waste at one stage of the inventive process commonly increases it at another. Thus, for example, Edmund Kitch has advocated granting to the developer of a pioneering invention an expansive set of entitlements, partly in order to enable him or her to coordinate research and development dedicated to improving the invention, thus reducing rent dissipation at the secondary level. However, as Robert Merges argues, granting generous patents on pioneering inventions will exacerbate rent dissipation at the primary level; an even greater (and more socially wasteful) number of persons or firms will now race to be the first to develop pioneering patents. Mark Grady and Jay Alexander have developed an ingenious theory for determining which of these dangers is more salient in particular cases. Primary inventions that have only modest social value but that "signal" a large potential for improvement are likely to draw potential improvers like flies; to cut down on the swarms, the developer of the primary invention should be granted a broad patent -- i.e., a patent of the sort commended by Kitch. Primary inventions with large social value but minimal "signalling" power should, instead, be given only narrow patents -- to reduce the risk of duplicative activity at the primary level. Finally (and most suprisingly), elegant inventions (i.e., socially valuable inventions so well conceived they cannot be improved upon) should be given no patents whatsoever, thereby discouraging rent dissipation at both levels. This typology, though intriguing, has many defects, both practical and theoretical. To begin with, applying it is likely to be harder than Grady and Alexander think; "how can we know when an invention signals the possibilities of improvements and when it [does] not"? Next, what are we to do with cases in which the invention at issue is of a type that both is highly socially valuable (thus creating a danger of waste at the primary level) and signals a large number of improvements (thus creating a danger of waste at the secondary level)? Finally, Robert Merges and Richard Nelson argue with considerable force that efforts, through broad patent grants, to mitigate rent dissipation at the secondary level may have serious economic side effects. Instead of enabling the original inventor to coordinate efficiently the exploitation of the technology, it may lead to "satisficing" behavior and an inefficiently narrow focus on improvements related to the primary inventor's principal line of business. In short, a combination of limited information and theoretical tensions render this third approach just as indeterminate as the other two.

Even if the difficulties specific to each of the three economic approaches could be resolved, an even more formidable problem would remain: there exists no general theory that integrates the three lines of inquiry. How should the law be adjusted in order simultaneously to (i) balance optimally incentives for creativity and monopoly losses; (ii) send potential producers of all kinds of goods accurate signals concerning what consumers want; and (iii) minimize rent dissipation? To date, no theorist has even attempted to answer this overarching question. Until that challenge is successfully met, the power of the utilitarian approach to provide guidance to lawmakers will be sharply limited.

B.

Similar difficulties afflict efforts to apply labor-desert theory to intellectual property. The problems begin at the threshold. As was true of utilitarianism, it is not altogether clear that labor-desert theory supports any sort of intellectual-property law. The source of the difficulty is ambiguity in Locke's original rationale for property rights -- from which this entire theory springs. Why exactly should labor upon a resource held "in common" entitle the laborer to a property right in the resource itself? Scattered in Chapter 5 of The Second Treatise can be found six related but distinguishable answers to that question.

1. "Natural reason" tells us that men have "a right to their Preservation," and the only practicable way in which they can sustain themselves is by individually "appropriating" materials necessary to provide them food and shelter.
2. Religious obligation reinforces the foregoing proposition. God did not merely give the Earth to man in common, but "commanded" him to "subdue" it -- i.e., "improve it for the benefit of Life" -- which man can do only by both laboring upon it and appropriating the fruits of that labor.
3. Intuitions regarding self-ownership point in the same direction. Each person plainly has "a Property in his own Person," including the "Labour of his Body, and the Work of his Hands." It seems only natural that whatever he mixes that Labour with should belong to him as well.
4. The moral value of work reinforces the foregoing insight. God gave the World to "the Industrious and Rational, … not to the Fancy or Covetousness of the Quarrelsom and Contentious." It is thus fitting that the former acquire, through their labour, title to that which they labor upon.
5. A sense of proportionality and fairness also figures in the inquiry. Most of the value of things useful to men derives not from the value of the raw materials from which they are made, but from the labour expended on them. It is thus not "so Strange" that, when determining whether ownership should be assigned to the worker or the community, the individual "Property of labour should be able to over-balance the Community of Land."
6. Finally, Locke relies throughout the chapter on an imagery of productive transformation. By labouring upon unclaimed land or other resources, the worker changes them from wild to domestic, from raw to cultivated, from chaotic to ordered, from pointless to purposeful. The self-evident desirability of that transformation supports a reward for the worker.

Whether Locke's theory provides support for intellectual property depends upon which of these various rationales one regards as primary. If, for example, one sees arguments 4 and 5 as the crux of the matter, then The Second Treatise would seem to provide strong support for most sorts of intellectual property. After all, most authors and inventors work hard, and their intellectual labor typically is a far more important contributor to the total value of their creations than the raw materials they have employed. On the other hand, if arguments 1 and 2 are stressed, the case for intellectual-property rights is far weaker. As Seanna Shiffrin has shown, crucial to those two arguments is the proposition that certain articles essential to life (such as food) cannot be enjoyed in common; "their use must, of necessity, be exclusive." But intellectual products plainly are not like that. Not only is access to them typically not necessary for survival, but they can be used by an infinite number of persons, simultaneously or in sequence, without being used up.

Whether Locke's theory provides support for any intellectual-property rights is thus indeterminate. It depends on which aspects of Locke's original theory is dominant. Locke did not say, and we have no way of knowing. Assume, however, that we somehow surmount barricade identified by Shiffrin and conclude that intellectual labor does give rise to a natural entitlement to its fruits -- an entitlement that the state must recognize and enforce. Other difficulties await us.

Perhaps the most formidable is the question: What, for these purposes, counts as "intellectual labor"? There are at least four plausible candidates: (1) time and effort (hours spent in front of the computer or in the lab); (2) activity in which one would rather not engage (hours spent in the studio when one would rather be sailing); (3) activity that results in social benefits (work on socially valuable inventions); (4) creative activity (the production of new ideas). The first of the four is probably closest to Locke's original intent, but he was not focusing on intellectual labor. Justin Hughes has shown that serious arguments can be made in support of the both the second and the third. And Gary Becker reminds us how important the fourth is to our images of deserving authors and inventors. No grounds on which we might select one or another are readily apparent.

Unfortunately, our choice among these four options will often make a big difference. The third, for instance, suggests that we should insist before issuing a patent or other intellectual-property right, that the discovery in question satisfy a meaningful "utility" requirement; the other three would not. The second would counsel against conferring legal rights on artists who love their work; the other three point in the opposite direction. The fourth would suggest that we add to copyright law a requirement analogous to the patent doctrine of "nonobviousness"; the others would not. In short, a lawmaker's inability to choose among the four thus will often be disabling.

Similar troubles arise when one tries to apply Locke's conception of "the commons" to the field of intellectual property. What exactly are the raw materials, owned by the community as a whole, with which individual workers mix their labor in order to produce intellectual products? At least seven possibilities come to mind:

1. the universe of "facts";
2. languages -- the vocabularies and grammars we use to communicate and from which we fashion novel intellectual products;
3. our cultural heritage -- the set of artifacts (novels, paintings, musical compositions, movies, etc.) that we "share" and that gives our culture meaning and coherence;
4. the set of ideas currently known to someone but not owned by anyone;
5. the set of ideas currently known to someone;
6. the set of all "reachable" ideas -- i.e., all ideas that lie within the grasp of people today;
7. the set of all "possible ideas" -- i.e., all ideas that someone might think of.

When applying the Lockean argument to intellectual property, it will often make a difference which of these options one selects. For example, option (c) is difficult to reconcile with contemporary copyright and trademark law, under which much of our cultural heritage (Mickey Mouse; "Gone with the Wind"; the shape of a Coke bottle) is owned, not by the community, but by individual persons or organizations; options (a) and (b) present no such difficulty. Patent law is consistent with option (d) but not (e) -- insofar as it permits ownership of many extant "ideas"; copyright law, which (at least formally) does not allow the ownership of any "ideas" (only distinctive ways of "expressing" them) meshes comfortably with either. As Justin Hughes has shown, the Lockean "sufficiency" proviso can be satisfied fairly easily if one chooses option (f) -- on the theory that the deployment of most ideas enable other people to "reach" an even larger set of ideas and thus enlarges rather than subtracts from the commons. By contrast, if one adopts option (g) -- as both Wendy Gordon and Robert Nozick appear to do -- the sufficiency proviso becomes a good deal more constraining (a topic to which we will return in a minute). Which is the correct approach? Who knows?

Suppose we arbitrarily select one interpretation -- say, option (d). Trying to fit it into the Lockean analytic quickly gives rise to three additional, related problems. First, the act of mixing labor with a piece of the commons does not, under any of the various extant intellectual-property regimes, work the way Locke supposed real-property law works. When one mixes one's physical labor with a plot of virgin land, one should acquire, Locke suggested, a natural right not merely to the wheat one produces but to the land itself. By contrast, when one mixes one's intellectual labor with an existing idea, one acquires a property right only to the "original" or "novel" material one has generated, not to the idea with which one began. Second, the set of entitlements one acquires do not have the kind of exclusivity Locke apparently attributed to real-property rights. For example, the issuance of a patent on a better mousetrap prevents others from making that mousetrap, but not from reading the patent and using the information contained therein to make a even better ("nonequivalent") mousetrap. The issuance of a copyright on a novel prevents others from copying it but not from reading it, discussing it, parodying it, etc. (Closely examined, real-property rights also lack the exclusivity Locke attributed to them, but the difficulty is more apparent in the case of property in ideas.) Finally, Locke suggested that the property rights one acquires through labor upon resources held in common do and should last forever -- i.e., are alienable, devisable, and inheritable indefinitely. Most intellectual-property rights, by contrast, sooner or later expire.

One might respond: but none of these observations indicate that the application of labor-desert theory to intellectual property is indeterminate; they indicate merely that intellectual-property law would have to be radically revised to conform to the Lockean scheme. Perhaps. But the scale of the necessary revision is daunting. Is it plausible -- on Lockean or any other premises -- that by working to express in distinctive form the idea that infidelity usually corrodes a marriage, one would acquire ownership of the idea itself? Is it plausible that, by registering the trademark "Nike," one could prevent others from using it in any way (including reproducing it in an essay on intellectual property)? If not, then what set of more limited entitlements would satisfy the obligation of the state to "determine" and "settle" natural property rights? Locke's argument contains few clues.

We have not exhausted, unfortunately, the difficulties associated with the "sufficiency" proviso. Some of the commentators who have sought to harness Locke's argument to intellectual property have seen little difficulty in the requirement that a laborer leave "as much and as good" for others. Justin Hughes, for example, emphasizes the myriad ways in which the expansion of the set of available ideas stimulated by intellectual property improves the lot of everyone -- either immediately or soon. Robert Nozick, as suggested above, sees the sufficiency proviso as somewhat more constraining, but has identified to his satisfaction a way of structuring patent law that avoids violating it. Wendy Gordon, by contrast, construes the proviso as a much more serious limitation on the scope of intellectual-property rights. Conferring monopoly privileges on the creators of intellectual products, she claims, can hurt more than help the public. Take the word "Olympics," for example. If the term did not exist, we would have contrived other ways to communicate the notion of periodic amateur international sports competitions untainted by ideology or warfare. But because the word does exist, we have become dependent on it. No other word -- or collection of words -- quite captures the idea. Consequently, if we now prohibit "unauthorized" uses of the word -- e.g., in connection with the "Gay Olympics" or on a T-shirt highlighting the hypocritical way in which the ideal has been applied in recent years -- we have left the public worse off than if the word never existed. Fidelity to the Lockean proviso (and to a more general "no-harm" principle that runs through Locke's work), Gordon insists, requires that we withhold property rights in situations such as these. Once again, a wide range of interpretations of an important component of Locke's theory are available, and no one member of the set seems plainly superior to the others.

We come, finally, to the well-known problem of proportionality. Nozick asks: if I pour my can of tomato juice into the ocean, do I own the ocean? Analogous questions abound in the field of intellectual property. If I invent a drug that prevents impotence, do I deserve to collect (for 20 years) the extraordinary amount of money that men throughout the world would pay for access to the drug? If I write a novel about a war between two space empires, may I legitimately demand compensation from people who wish to prepare motion-picture adaptations, write sequels, manufacture dolls based on my characters, or produce T-shirts emblazoned with bits of my dialogue? How far, in short, do my rights go? Locke give us little guidance.

C.

Private property rights, argue personality theorists, should be recognized when (and only when) they would promote human flourishing by protecting or fostering fundamental human needs or interests. The first step in the application of this perspective to intellectual property is identification of the specific needs or interests one wishes to promote. As Jeremy Waldron has argued, a wide variety of interests might be deemed fundamental, each of which arguably could be advanced by a system of property rights:

1. Peace of Mind. An exclusive right to determine how certain resources shall be used might be thought essential to avoid moral exhaustion -- the sense of guilt that arises from awareness that one's actions, one's use of the commons, disadvantages countless other people.
2. Privacy. Property rights may be necessary to provide persons "refuge[s] from the general society of mankind" -- places where they can either be alone or enjoy intimacy with others.
3. Self-Reliance. An exclusive right to control certain resources may be thought necessary to enable persons to become independent, self-directing.
4. Self-Realization as a Social Being. The freedom to own and thus trade things may be necessary to enable persons to help shape their social environments and establish their places in communities.
5. Self-Realization as an Individual. Ownership of property may be necessary to enable a person to assert his or her will and to be recognized as a free agent by others.
6. Security and leisure. Control over a certain amount of resources may be necessary to free a person from obsession with obtaining the means of survival, the "impulsion of desire," and thus to enable them to attend to higher pursuits.
7. Responsibility. Virtues like "prudence," self-direction, and foresight may be cultivated by the opportunity and obligation to manage one's own resources.
8. Identity. Selfhood may be thought to depend upon the ability to project a continuing life plan into the future, which is turn is fostered by connection to and responsibility for property.
9. Citizenship. Ownership of a certain amount of resources might be thought necessary to put a person in an economic and psychological position to participate effectively in the polity.
10. Benevolence. Property rights may be thought essential to enable a person to express ideas of what is beautiful or to enact benevolent wishes.

Six of these ten arguments -- 1, 3, 4, 6, 7, 9 -- provide, at most, weak support for a system of intellectual-property rights. To the extent that intellectual-property rights have economic value and may be bought and sold, gained and lost, they may contribute to their owners' abilities to avoid guilt, become autonomous, engage in independent political action, etc. But those values could be promoted equally well by providing persons property interests in land or shares in private corporations. Nothing turns on the fact that the entitlements pertain to intellectual products.

Personhood-based justifications for intellectual-property rights thus must be found, if anywhere, in some combination of themes 2, 5, 8, and 10: the interests of privacy; individual self-realization; identity; and benevolence. But the writers who have sought to extract from those sources answers to specific questions have come to widely divergent conclusions. Some examples:

Two related problems underlie these and many other disagreements among personality theorists. First, the conception of the self -- the image of "personhood" that, through adjustments of intellectual-property doctrine, we are trying to nurture or protect -- is too abstract and thin to provide answers to many specific questions. Either a more fully articulated vision of human nature (that would forthrightly address such grand questions as the importance of creativity to the soul) or a conception of personhood tied more tightly to a particular culture and time seem necessary if we are to provide lawmakers guidance on the kinds of issue that beset them.

Second, no personality theorist has yet dealt adequately with what Margaret Radin calls the problem of fetishism. Which of the many tastes exhibited by current members of American culture should be indulged, and which should not? The quest for individuality? Nationalism? Nostalgia for a real or imagined ethnic or racial identity? The hope that audiences will treat one's creations with respect? The hunger for fifteen minutes (or more) of fame? Yearnings or orientations of all of these sorts are implicated by intellectual-property disputes. Deciding which merit our deference is essential to determining how those disputes should be resolved.

D.

The indeterminacy of general theories of intellectual property is perhaps easiest to see with respect to the last of the four approaches. Lawmakers who try to harness social-planning theory must make difficult choices at two levels. The first and most obvious involves formulating a vision of a just and attractive culture. What sort of society should we try, through adjustments of copyright, patent, and trademark law, to promote? The possibilities are endless.

The range of options is illustrated by my own effort in a recent essay to bring social-planning theory to bear on the question of the proper shape of intellectual-property law on the internet. I offered, as the foundation for that analysis, a sketch of an attractive intellectual culture. A condensed version of that sketch follows:

IV.

One implication of the preceding section is that the four prevailing theories of intellectual property are equally open-ended. The indeterminacy of the social-planning and personhood perspectives has long been recognized. That recognition is reflected, for example, in the customary accusation that those perspectives are "illiberal"; they seek to regulate persons' behavior on the basis of necessarily controversial "theories of the good" -- the sort of thing governments ought not do. A closely related, equally common charge is that the social-planning and personhood perspectives are "paternalistic," insofar as they curtail persons' freedom on the basis of conceptions of what is "good for them" with which they themselves may not agree. By contrast, the utilitarian and labor-desert approaches (especially the former) have enjoyed an aura of neutrality, objectivity, and (above all) determinacy. That aura helps to explain why courts, when presented with difficult problems of statutory interpretation, have sought guidance most often from economic arguments and least often from social-planning arguments. One of the burdens of this essay has been to disrupt that pattern -- to show that, in terms of their capacity to generate determinate answers to specific doctrinal problems, all four theories stand on the same footing.

But acknowledgment of the open-ended character of all of the theories may have much more far-reaching implications. If none is capable of telling us how to reform or apply legal doctrine, perhaps we should abandon them all. If they are unhelpful as compasses, perhaps they should all be thrown overboard.

For two reasons, I suggest we not react so precipitously. First, while the theories are incapable of generating comprehensive prescriptions concerning the ideal shape of intellectual-property law, they frequently can help identify nonobvious attractive resolutions of particular problems.

A good example of such a focused deployment of theory involves the recent history of the "right of publicity" -- the entitlement of celebrities to prevent (or demand compensation for) depiction of their identities (their faces, voices, distinctive turns of phrase, characteristic poses, etc.) for profit. Until quite recently, this right was widely thought by American courts and commentators to be "commonsensical." For example, the author of the principal treatise on the subject describes the right of publicity as "a self-evident legal right, needing little intellectual rationalization to justify its existence." Sentiments of this sort prompted one state after another to recognize the entitlement -- either through legislation or through common-law decisionmaking -- and then give it generous scope.

In the mid-1990s, a small group of commentators began drawing explicitly on theories of intellectual property to criticize the right of publicity. None of the four major perspectives, they argued, provided support for such an entitlement. (a) From a utilitarian standpoint, the right seems senseless. It is not necessary to induce people to cultivate distinctive identities. It encourages people, once they have become celebrities, to coast on their endorsement incomes rather than continue to provide the public the services that made them famous. And it leads to rent dissipation by inducing excessive numbers of adolescents to seek fame. (b) Nor is the right justified as a reward for labor. Often, fame results from luck, fickle public tastes, or the efforts of third parties more than it does from the efforts of the celebrity. In any event, celebrities are adequately remunerated in other ways for their labor. (c) If protecting personhood were one's goal, the right of celebrity would be a poor way to achieve it. The right serves commercial interests (the right to make money from one's persona) -- interests not particularly close to the heart of personality development -- and does nothing to prevent disclosure of intimate details concerning a celebrity's life. (d) Last but not least, the right of celebrity exacerbates the centralization of semiotic power in the United States and undermines popular control over "popular culture."

A few influential courts have begun to take notice. For example, in a recent decision, the Court of Appeals for the Tenth Circuit relied explicitly on this emerging body of critical commentary to turn aside a challenge by the Major League Baseball Players to the sale of a set of baseball cards that parodied the league's stars. The power of theory is especially evident in the following passage:

If other courts follow suit, the doctrinal tide may well turn.

Another example of the deployment of theory to suggest nonobvious solutions to specific problems comes from my own work. Should the producer of an intellectual product be permitted to divide the set of potential consumers of the product into subgroups, based on their abilities and willingness to pay for access to the product, and then to charge the members of each subgroup a profit-maximizing price? When it is feasible, producers frequently try to market their wares in this fashion. For example, movie producers typically license their products in stages: first at a high price (per consumer) for first-run showing in commercial theatres; then at a lower price for release on "premium" cable channels and airlines; then at a lower price for home video rentals; then at a lower price for network television broadcast; and so forth. The purpose of this strategy -- commonly known as price discrimination -- is to extract as much income as possible from each set of consumers before providing the good to the next set. Current copyright law, however, makes it difficult for the producers of most sorts of intellectual products to pursue this strategy. In particular, the first-sale doctrine prevents a seller from prohibiting low-margin consumers from reselling the copies they purchase to high-margin potential consumers, thereby preventing the seller from exploiting the latter. Should copyright doctrine (or related doctrines in contract law) be modified so as to discourage such arbitrage and thereby facilitate price discrimination?

One's initial reaction is likely to be: no. Charging whatever the market will bear certainly has an unsavory flavor. It smacks of greed and has no obvious social benefit. Impressions of that sort have led Congress in unrelated fields to adopt sweeping bans on price discrimination. There is no obvious reason why copyright law should be different.

Immersion in intellectual-property theory, however, suggests a different answer. At least two of the four approaches reviewed in this essay -- economic analysis and social-planning theory -- converge to suggest that price discrimination in the sale of intellectual products is a good thing. Recall that one of the objectives of economic theorists is simultaneously to increase incentives for creative activity and reduce the associated welfare losses. Price discrimination -- by enabling producers to charge wealthy or eager consumers more than poor consumers -- makes such an unlikely combination possible. By discriminating among subgroups of consumers, a producer is able to increase his own monopoly profits. Typically, the producer offers the good to poorer consumers for a price lower than the single price he or she would have selected had price discrimination been forbidden; consequently, fewer consumers are priced out of the market. In combination, these two effects mean that the ratio between incentives for creativity and welfare losses increases sharply. Finally, price discrimination makes possible greater approximation of the ideal of distributive justice discussed (briefly) in Part III. Poorer consumers gain access to the good (which they could not do in the absence of price discrimination) and pay less than their wealthy counterparts. Widespread adoption of this strategy would thus enable us to approach the goal of providing all persons equal access to works of the intellect. In sum, price discrimination, at first glance pernicious, turns out to have a variety of important social advantages. Again, theory has exposed a nonobvious solution to a particular problem.

The other, more general reason why we should not jettison intellectual-property theory is that it fosters valuable conversations among the various participants in the lawmaking process. More specifically, continued explicit discussion of the kinds of themes addressed in this essay would be valuable in three contexts. First, interaction between Congress, the courts, and administrative agencies (in particular, the Patent and Trademark Office) would improved. Congress, when it adopts or amends intellectual-property laws, frequently fails to anticipate difficult interpretive questions. If the courts, when compelled in the context of individual disputes to resolve those questions, articulate a general theory they are using to guide their decisionmaking, they increase the likelihood that Congress, during the next general revision of the relevant statute, will be able thoughtfully either to endorse or to reject the courts’ judgments. Much the same can be said of decision-making by administrative agencies that are then appealed to the courts.

Second, explicit reliance upon intellectual-property theories will improve conversations between lawmakers and their constituents. Why should the term of a copyright be extended from the life of the author plus 50 years to the life of the author plus 70 years? Because the additional time is necessary to encourage additional creativity? Because authors deserve greater rewards for their labors? Because the culture would be worse off if works like "Steamboat Willie" were released to the public domain? Why should it be possible to register as a federal trademark the sound of a particular brand of motorcycle – thereby preventing other companies from making motorcycles that sound the same? Because otherwise consumers will be confused concerning the manufacturers of the motorcycles they are buying? Because a culture in which motorcycles can be recognized from a distance by the noise they make is better than a culture in which they cannot? Because employees of the first company deserve a reward for the effort they invested in constructing a muffler that emits a distinctive guttural sound? By articulating and defending a theoretical rationale for each innovation, Congress (in the first example) or the courts (in the second example) would increase the ability of the public at large or (more plausibly) affected interest groups critically to appraise the change. Lawmakers, in short, would become more accountable.

Finally, through continued conversations among scholars, legislators, judges, litigants, lobbyists, and the public at large, there may lie some hope of addressing the inadequacies of the existing theories. For the reasons sketched above, the analytical diffculties associated with the effort to apply the Lockean version of labor-desert theory to intellectual property may well prove insurmountable, but there may be some non-Lockean way of capturing the popular intuition that the law should reward people for hard work. Only by continuing to discuss the possibility – and trying to bring some alternative variant of labor-desert theory to bear on real cases – can we hope to make progress. Much the same can be said of the gaps in personality theory. The conception of selfhood employed by current theorists may be too thin and acontextual to provide lawmakers much purchase on doctrinal problems. But perhaps, through continued reflection and conversation, we can do better.

Conversational uses of intellectual-property theories of the sort sketched above would be different from the way in which such theories most often have been deployed in the past. Instead of trying to compel readers, through a combination of noncontroversial premises and inexorable logic, to accept a particular interpretation or reform of legal doctrine, the scholar or lawmaker would attempt, by deploying a combination of theory and application, to strike a chord of sympathy in his or her audience. The sought-after response would not be, "I can’t see any holes in the argument," but rather, "That rings true to me."