112 Yale L.J. 1179 (2003)
Focusing a discussion of intellectual property on a 300-year-old text may seem unusual, but John Locke's Two Treatises of Government has an uncommon place in American intellectual property theory. Historically, Lockean natural rights informed the Framers' understanding of intellectual property law. Courts also have a long history of using natural law justifications in intellectual property cases. The Lockean perspective has been particularly appealing to theorists because of its ability to justify widely varying property systems, ranging from expansive communitarianism to subsistence-worker-based capitalism. Although modern intellectual property doctrine has attempted to disavow its association with natural law justifications, some debate the ability of courts to adjudicate intellectual property claims without consulting natural law principles.
Revisiting Locke for a theory of intellectual property has become vital because of two important recent shifts in doctrine and scholarship. First, statutory and doctrinal innovations have continued to expand private intellectual property rights. Second, academics have increasingly advocated the importance of the public domain as a way of limiting the expansion of private property rights. One recent example of the conflict between private intellectual property rights and the public domain is Eldred v. Ashcroft, upholding the Sonny Bono Copyright Term Extension Act, which extended the duration of a copyright to the life of the author plus seventy years. While the government's brief advocating for the copyright extension emphasized the need for fairness to authors, the petitioners' brief highlighted that "[p]etitioners are various individuals and businesses that rely upon speech in the public domain for their creative work and livelihood." These arguments were mirrored by amici, including the Recording Industry Association of America (RIAA) on the government's side, which emphasized the importance of "fair compensation of authors," and a group of fifty-three law professors, who stated that "[a]mici are in particular concerned about the recent, rapid expansion of copyright scope and duration, at the expense of the public domain."
Scholars have seen Lockean theory as an essential tool in reconciling these arguments because the main thrust of Locke's theory is the reconciliation of strong private property rights with a common of materials available to all. Locke argues that laborers have a private property right in the products of their labor because individuals mix their labor with materials from the common that are free for all to use. The private property right in an individual's labor is mixed into the product of labor, and thus the private property right also attaches to the product of labor. He supports this argument by adding natural law principles that must be followed to maintain exclusive property rights. The natural law principle that has been most commonly considered by scholars is the sufficiency proviso, which requires that the laborer not take too many materials out of the common.
Two substantial criticisms are often directed at Lockean theory. First, scholars argue that even though Locke claims to reconcile a robust common with strong private property rights, his property rights swallow the common. Thus, the object of Lockean theorists, as mirrored in the title of this Note, is often concerned with limiting the scope of the Lockean property right. Second, scholars argue that the sufficiency proviso cannot be fulfilled in a morally compelling way because the common of tangible goods is inherently scarce.
Previous scholarship concerning Lockean theories of property rights in intangible goods has focused on the ability of the nonrivalrous characteristic of intangible goods to eliminate the scarcity problem. This scholarship began with the publication of two influential articles, one by Justin Hughes in 1988 and another by Wendy Gordon in 1993, and has been refined in the last decade. A fundamental difference between tangible goods and intangible goods, however, is that intangible goods are nonrivalrous, which means that they can be used by an infinite number of people in an infinite number of ways without harming the use value of any other person, including the initial producer. Previous scholarship has persuasively argued that because intangible goods are nonrivalrous, the common of intangible goods contains materials that are not subject to a scarcity problem and thus that Lockean theory does not fail when it is applied to intangible goods. Scholars have tended to overemphasize the importance of this claim, however, by conflating the Lockean common with a public domain. The Lockean common contains undeveloped materials, whereas a public domain is composed of developed goods. Although the Lockean common is quite useful for independent production, the nonrivalrous nature of intangible goods means that a public domain can be used to foster incremental innovation, which is much more valuable.
This Note takes a different direction than previous scholarship by focusing on another of Locke's natural law principles, the waste prohibition. The waste prohibition forbids a laborer from wasting products of labor or portions of such products, with the violation resulting in the loss of private property rights in the portion of the product wasted. I define Lockean waste in the following way: Waste occurs where a unit of a product of labor is not put to any use. When scholars have considered the application of the waste prohibition to intangible goods previously, they have arrived at polar conclusions, with some asserting that waste rarely occurs and others claiming that waste always occurs.
The waste prohibition is of negligible importance for tangible goods, but is immensely important when constructing a Lockean theory of intangible goods. The waste prohibition is largely a nonissue for tangible goods because one can exchange money--by definition a nonwasting good--for units of a product of labor that may be prone to waste. Laborers will thus have incentives to sell all the units they possess that they will not use and violations of the waste prohibition will be rare. The nonrivalrous nature of intangible goods can be characterized as the production of an unlimited number of "intangible units" at the initial creation of any intangible good. Although the limited number of units of a tangible good can usually be converted into nonwasting money, the unlimited number of intangible units suggests that the laborer will not be able or willing to convert all of the intangible units into money whenever any intangible good is produced. The combination of nonconversion and nonuse constitutes a violation of the waste prohibition. As the waste prohibition is enforced through the loss of property rights in the wasted intangible units, the waste prohibition creates what I call a Lockean fair use right. Price discrimination allows greater conversion of intangible units into money but is an imperfect solution due to practical difficulties in attaining perfect price discrimination.
This Note also examines the implications of government regulation on Lockean intellectual property rights and compares a Lockean regime with current U.S. intellectual property doctrine and theory. The establishment of a government allows much more variety in the scope of private property rights under Lockean theory, but the Lockean fair use right binds civil governments in much the same way that it binds individuals in the state of nature. Although the theory and doctrine of copyright fair use shares many characteristics with Lockean fair use, the current U.S. fair use right is more limited than the Lockean right. One example considered in this Note is that strong government support for anticircumvention measures may violate Lockean principles if the ability to police the waste prohibition is not protected. An even larger difference is that there is no coherent patent fair use right in the United States, although such a right would be demanded under a Lockean regime.
This argument will be fleshed out in the remainder of this Note. Part I introduces general Lockean concepts, focusing on the impacts of the nonrivalry of intangible goods on the common and the waste prohibition. Part II applies Lockean concepts in an economic framework, demonstrating a fair use right in a Lockean state of nature. Part III considers the transition of society into a civil government, with its attendant changes in the scope of property rights in intangible goods. Part III also applies the Lockean analysis of this Note to two areas of current intellectual property debate--the anticircumvention provisions in the Digital Millennium Copyright Act (DMCA) and the enforcement of drug patents in developing countries. Part IV concludes.
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