The traditional justification for intellectual property (IP) rights has been utilitarian. We grant exclusive rights because we think the world will be a better place as a result. But what evidence we have doesn’t justify IP rights. Rather than following the evidence and questioning strong IP rights, more and more scholars have begun to retreat from evidence toward what I call faith-based IP, justifying IP as a moral end in itself rather than on the basis of how it affects the world. I argue that these moral claims are ultimately unpersuasive and a step backward in a rational society.This short essay has already ignited quite a discussion in the blogosphere. Larry Solum argues that "[i]f consequentialism does not provide a true or correct moral theory, then it simply cannot be the case that the justification for intellectual property stands or falls solely on consequentialist grounds." In the comments on Amy Landers's post at PrawfsBlawg, James Grimmelmann writes that "there's something paradoxical about the argument that non-utilitarian theories are suspect because they don't depend on the kind of evidence that would satisfy a utilitarian," and he notes that "the legal system and legal theory trade off among morally incomparable claims all the time." In the same thread, Patrick Goold thinks we should distinguish between the IP "faithful" who "starts from the conclusion that IP rights are right or good and looks for reasons to support that" and the IP "philosopher" who "asks whether any norm justifies the conclusion that we ought to have IP rights." Jeremy Sheff argues that "we are dealing with two academic camps that simply value different things in different measure" but that the "apparent absence of a shared language between moral theorists and consequentialists" is the kind of problem we can solve.
Lemley's essay highlights some fundamental questions about our field. Should utilitarianism be our guidepost? What does the evidence say about how well IP law satisfies utilitarian goals? To what extent do people disagree on what the evidence says, and what is the source of this disagreement? When the evidence on utilitarianism is inconclusive, what other values should we use to make policy decisions? For example, in her Cost of Price article, Amy Kapczynski argues that we haven't been able to figure out the right IP policies on utilitarian grounds, so we should instead make policy decisions based on other values such as distributive justice and the right to privacy.
I am more optimistic in both our ability to make empirical progress—an issue I discuss in Patent Experimentalism—and in our ability to use evidence-based techniques to gather and communicate this evidence in a way that reduces its polarizing effect. I tackled this second issue in Cultural Cognition of Patents, in which I noted that even people who say they agree on IP law's goals sometimes disagree on what the existing evidence says about how well IP law fulfills those goals. I suggested that this disagreement may be due to value-based "cultural cognition," similar to the disagreement over the evidence on climate change (which I have also written about with Dan Kahan et al.). Just as I think that evidence-based techniques can make progress in the climate change wars, I am optimistic that the same is true of IP law. And I'm working on a project with Maggie Wittlin, Greg Mandel, and Dan Kahan to start to test some of these hypotheses. (For those unfamiliar with cultural cognition who want to learn more about it, check out Dan Kahan's excellent blog.)