Legal Scholars: Thumbs Down on Patent and Copyright

There has long been skepticism about state-granted ?intellectual? monopoly privileges among economists, and even this is growing in recent decades. See, e.g., my posts?The Overwhelming Empirical Case?Against?Patent and Copyright,?The Four Historical Phases of IP Abolitionism, and?The Origins of Libertarian IP Abolitionism. As a sampler (more detail in the first link above):

Fritz Machlup, 1958:

No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. ? If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one.

Fran?ois L?v?que and Yann M?ni?re (Ecole des mines de Paris, 2004):

The abolition or preservation of intellectual property protection is ? not just a purely theoretical question. To decide on it from an economic viewpoint, we must be able to assess all the consequences of protection and determine whether the total favorable effects for society outweigh the total negative effects. Unfortunately, this exercise [an economic analysis of the cost and benefits of intellectual property] is no more within our reach today than it was in Machlup?s day [1950s].

Boston University Law School Professors (and economists) Michael Meurer and Jim Bessen concluded (2008) that on average, the patent system discourages innovation. As they write: ?it seems unlikely that patents today are an effective policy instrument to encourage innovation overall? (p. 216). To the contrary, it seems clear that nowadays ?patents place a drag on innovation? (p. 146). In short, ?the patent system fails on its own terms? (p. 145).

And in a recent draft paper (2012), economists Michele Boldrin and David Levine state:

The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless the latter is identified with the number of patents awarded?which, as evidence shows, has no correlation with measured productivity. This is at the root of the ?patent puzzle?: in spite of the [enormous] increase in the number of patents and in the strength of their legal protection we have neither seen a dramatic acceleration in the rate of technological progress nor a major increase in the levels of R&D expenditurein addition to the discussion in this paper, see Lerner [2009] and literature therein. As we shall see, there is strong evidence, instead, that patents have many negative consequences.

What about lawyers and legal scholars? Well, among practicing lawyers, some of whom pose as scholars, the most vociferous ones tend to be those who know a bit about patent or IP law. Those tend to be practitioners who are naturally biased toward supporting this system; it pays the bills. So it?s no surprise most IP practitioners come up with arguments in favor of patent or copyright, when pressed; but they argue like lawyers, which is to say: like advocates pressing a case, instead of scholars or scientists trying to find the truth; and like unprincipled, ignoramus utilitarians. ?So of course we have a slew of IP apologists and shills?patent lawyers like?Dale Halling, ?Gene Quinn,?Lawrence Ebert, and John Harris. They never have any real arguments; they might as well say, ?we make money from this system and like it!? Which is hard to disagree with, but is ? not an argument for maintaining the IP system. Still, despite the pressure on IP specialists to toe the line, most never try to justify it, many realize that arguments in favor of it are flawed, and a brave few actually come out openly in opposition.

But there seems to be a growing tide of law professors and other legal scholars who are deeply suspicious of patent and copyright and who favor drastic scaling back of these laws if not outright abolition. Such as:

(If anyone knows of any notable anti-IP or IP-skeptical legal scholars I have left off this list, please let me know.)

Unfortunately, most of these scholars are mired in an empiricist-positivist-monist-utilitarian mindset. But they manage to lean in the right direction anyway. Most impressive.

Interestingly, the two notable exceptions to this trend that come to mind and who are pro-IP, are libertarian law professor Richard Epstein and Objectivist Adam Mossoff. But this, too, shall pass.

Source: http://c4sif.org/2012/10/legal-scholars-thumbs-down-on-patent-and-copyright/

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