'[DMCA_Discuss] Lemley: Property, "IP," and Free Riding'

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List:       dmca-discuss
Subject:    [DMCA_Discuss] Lemley: Property, "IP," and Free Riding
From:       Seth Johnson <seth.johnson () realmeasures ! dyndns ! org>
Date:       2004-09-14 3:48:41
Message-ID: 41466A19.FF1F5F0E () RealMeasures ! dyndns ! org
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-------- Original Message --------
Subject: pho: Grist for Jim Griffin's property mill
Date: Thu, 09 Sep 2004 13:43:10 -0700
From: "James S. Tyre" <jstyre@jstyre.com>
To: pho@onehouse.com

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=582602
Property, Intellectual Property, and Free Riding   	

MARK A. LEMLEY
Stanford University - School of Law

August 2004

Stanford Law and Economics Olin Working Paper No. 291

Abstract:

Courts and scholars have increasingly assumed that intellectual
property is a form of property, and have applied the economic
insights of Harold Demsetz and other property theorists to
condemn the use of intellectual property by others as free
riding. In this article, I argue that this represents a
fundamental misapplication of the economic theory of property.
The economics of property is concerned with internalizing
negative externalities - harms that one person's use of land does
to another's interest to it, as in the familiar tragedy of the
commons. But the externalities in intellectual property are
positive, not negative, and property theory offers little or no
justification for internalizing positive externalities. Indeed,
doing so is at odds with the logic and functioning of the market.
> From this core insight, I proceed to explain why free riding is
desirable in intellectual property cases except in limited
circumstances where curbing it is necessary to encourage
creativity. I explain why economic theory demonstrates that too
much protection is just as bad as not enough protection, and
therefore why intellectual property 
law must search for balance, not free riders. Finally, I consider
whether we would be better served by another metaphor than the
misused notion of intellectual property as a form of tangible
property.

--------------------------------------------------------------------
James S. Tyre                              
mailto:jstyre@jstyre.com
Law Offices of James S. Tyre         
310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA
90230-4969
Co-founder, The Censorware Project            
http://censorware.net

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