Legal Scholars: Thumbs Down on Patent and Copyright

This is included as ch. 32 of Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023).

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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.

François Lévêque and Yann Ménière (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? Among practicing lawyers, the most vociferous ones on IP policy tend to be those who know a bit about patent or IP law. They 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. Their arguments are typically consequentialist or utilitarian, though empty of data and without serious or scholarly rigor. So of course we have a slew of IP apologists and shills—patent lawyers like Dale Halling,¹  Gene Quinn,² Lawrence Ebert,³ and John Harris.⁴ They rarely put forward any serious argument; 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,⁵ and a brave few actually come out openly in opposition.⁶

As Wendy J. Gordon notes, “IP theorizing was sparse in legal academia until the second half of the twentieth century.”⁷ But that has changed. And among those law professors and legal scholars looking into the normative or policy basis of IP, there seems to be a growing number who are deeply suspicious of patent and copyright and who favor drastic scaling back of these laws if not outright abolition. Such as those on the following, non-comprehensive, list (I have bolded the ones that appear to be the most radical—who are for IP abolition or something close to it):

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

[Update: See also Hon. Maureen K. Ohlhausen, “Patent Rights in a Climate of Intellectual Property Rights Skepticism,” Harv. J. L. & Tech., 30, no. 1 (Fall 2016 [pdf]): 1–51, pp. 8–9:

Respected economists Michele Boldrin and David Levine find “no evidence that intellectual monopoly achieves the desired purpose of increasing innovation,” describe IP rights as an “unnecessary evil,” and call for the patent system’s abolition.38 Economist Adam Jaffe and Harvard Business School professor Josh Lerner call the patent system “broken.”39 Law professors Michael Meurer and James Bessen think it “unlikely that patents today are an effective policy instrument to encourage innovation overall.”40 As for encouraging ideas, the Economist wrote that “[t]oday’s patent systems are a rotten way of rewarding them.”41 Indeed, the magazine appeared to embrace the notion that “society as a whole might even be better off with no patents than with the mess that is today’s system.”42 In law professor Thomas Cheng’s view, theory and empirical studies “firmly refute[] the notion that patent protection is necessary for securing innovation.”43 Richard Stallman argues that “patent law should be abolished.”44 The Electronic Frontier Foundation’s view is that the “patent system is broken” and “it’s time to start over.”45

The chorus of criticism goes on. Attorney William Hubbard argues that “patent protection in the United States should be weakened.”46 The Hon. Richard A. Posner sees “serious problems with our patent system.”47 A leading authority on patent law, Mark Lemley, has proclaimed the existence of a “patent crisis.”48 A renowned economist, Carl Shapiro, believes that the “patent system . . . provides excessive rewards to patent holders . . . reduc[ing] economic efficiency by discouraging innovation.”49 Even Google, which secured more than 2,500 patents in 201450, has sometimes poured cold water on the importance of IP rights. Its general counsel, Kent Walker, has opined that a “patent isn’t innovation. It’s the right to block someone else from innovating” and that “patents are not encouraging innovation.”51 Although outright elimination of the patent regime is an outlier view, many commentators believe that society ought to jettison patents in particular fields of invention such as computer software, business methods, and genetics.52 Even some who have defended the status quo have done so reluctantly.53 ]

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 Epstein²⁶ and Objectivist Adam Mossoff.²⁷ But this, too, shall pass. As Thomas Paine wrote: “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.”

1. See Shughart’s Defense of IP, Dispatch from the Open Science Summit: Citizen Science, Microfinanced Research, Patent Trolls, and Pharma Prizes, and Thomas Jefferson’s Proposal to Limit the Length of Patent and Copyright in the Bill of Rights; also other posts here. [↩]
2. See here and Gene Quinn the Patent Watchdog. [↩]
3. IPBiz’s Ebert: Kinsella way off on patent reform. [↩]
4. Another Reason to Reform Patent Law: Touch Off A Recession! . [↩]
5. See Miracle–An Honest Patent Attorney! [↩]
6. See Patent Lawyers Who Oppose Patent Law. [↩]
7. Wendy J. Gordon, “Intellectual Property“. [↩]
8. Tom W. Bell, Intellectual Privilege: A Libertarian View of Copyright; and my posts Tom W. Bell on Intellectual Property and Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”. [↩]
9. See The Knockoff Economy: How Copying Benefits Everyone, Reason.tv; Christopher Sprigman on creativity without copyright. [↩]
10. Mark Lemley: The Very Basis Of Our Patent System… Is A Myth; 90+ Internet law and IP law professors sign anti-PROTECT-IP letter… [↩]
11. Intellectual Property’s Great Fallacy . [↩]
12. James Bessen & Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (2008, excerpts available at researchoninnovation.org/dopatentswork/); see also Bessen’s Research on Software Patents. [↩]
13. The Future of Ideas (2001 [↩]
14. See my post, Intellectual Property’s Great Fallacy. [↩]
15. See resources here. [↩]
16. See Open Science Summit 2011: IP and the New Mercantilism: Panel: “The Future (the End?) of ‘Intellectual Property’”; Andrew Torrance: Patents and the Regress of Useful Arts; see also the 2003 National Academies report on intellectual property; the  full citation and quotation is in the introduction Torrance’s paper  Patents and the Regress of Useful Arts, which characterize evidence linking IP and innovation as “emergent”—this is from the National Academies. [↩]
17. Andrew Torrance: Patents and the Regress of Useful Arts; Torrance & Tomlinson, Patents and the Regress of Useful Arts. [↩]
18. Jacob Huebert, The Fight against Intellectual Property. [↩]
19. See Eben Moglen and Leftist Opposition to Intellectual Property. [↩]
20. Copyright: The New Mercantilism. [↩]
21. Can Patents Deter Innovation? The Anticommons in Biomedical Research [↩]
22. Wendy J. Gordon, “Intellectual Property“; “An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory,” Stanford Law Review 41 (1989). [↩]
23. the “case for copyright protection is weak”. Stephen Breyer, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs” (1970). [↩]
24. See his publications page; also my IP debate with him at KOL253 | Berkeley Law Federalist Society: A Libertarian’s Case Against Intellectual Property [↩]
25. Timothy Sandefur, “A Critique of Ayn Rand’s Theory of Intellectual Property Rights,” Journal of Ayn Rand Studies 9:1 (Fall 2007), pp. 139-61. [↩]
26. See Richard Epstein’s Takings Political Theory versus Epstein’s Intellectual Property Views; Classifying Patent and Copyright Law as “Property”: So What?‘; Pro-IP Libertarians Upset about FTC Poaching Patent Turf; Richard Epstein on ‘The Structural Unity of Real and Intellectual Property‘”; The Structural Unity of Real and Intellectual Property (video); The Disintegration of Intellectual Property? A Classical Liberal Response to a Premature Obituary. Unfortunately, the support of patents even by some libertarians has led them to oppose reimportation–that is, to oppose free trade–e.g., Cato’s Doug Bandow, Richard Epstein, and Michael Kraus. See my posts Ideas Are Free: The Case Against Intellectual Property; Pilon on Patents; Drug Reimportation; Cato on Drug Reimportation; and Patents, Prescription Drugs, and Price Controls. [↩]
27. Objectivists: “All Property is Intellectual Property”; Classifying Patent and Copyright Law as “Property”: So What?; Mossoff: Patent Law Really Is as Straightforward as Real Estate Law. [↩]