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Summary of the two attached papers by Glynn S. Lunney Jr.
1. “Trademark Monopolies” (Emory Law Journal, 1999)
This is a major scholarly critique of the expansion of U.S. trademark law in the second half of the 20th century. Lunney traces trademark doctrine from its early 18th–mid-20th century roots, where courts and commentators (including Edward Chamberlin’s theory of monopolistic competition) treated trademarks as a form of monopoly that required careful limits to avoid harming competition. Early trademark protection was justified primarily on deception-based grounds: preventing consumer confusion about the source of goods so that buyers could match their preferences to products accurately. This served an efficiency function (better information, quality incentives) while still allowing “workable” or “fair” competition.
Lunney argues that since the mid-1950s (especially after the Lanham Act), trademark law has undergone a profound shift toward property-based protection. Courts and commentators increasingly treat the trademark itself as a valuable asset/product worth protecting independent of any source-identifying function. This has produced:
- Expansion of protectable subject matter (e.g., more trade dress, slogans, colors, product shapes).
- Broader scope of rights (dilution, anti-confusion rules reaching “possible” rather than “probable” confusion, protection against non-competing uses).
The result, Lunney contends, is the creation of “trademark monopolies” in the pejorative sense: market power and deadweight loss without the offsetting consumer-information benefits of traditional deception-based trademarks. He rejects the common analogy to patent/copyright (which at least purport to incentivize new creation), noting that trademark doctrine does not tie protection to any proven need for extra incentives and risks locking up product differentiation in ways that harm competition. The paper calls for restoring the competitive balance by limiting protection to cases of material deception.
2. “A Natural Right to Copy” (Texas A&M Law Scholarship / SSRN, 2019)
This essay is a direct philosophical and normative attack on natural-rights justifications for copyright (and by extension IP more broadly). Lunney begins with the observation that copying/imitation is the foundation of civilization: language, culture, technology, and knowledge transmission all depend on it. Without the ability to copy, humans could not learn, share discoveries, or build cumulatively (“standing on the shoulders of giants”). Creativity is valuable but secondary; copying is the sine qua non of progress.
He critiques Wendy Gordon’s influential 1993 article that used John Locke’s labor-desert theory to argue for a natural right to exclude others from copying original expressive works. Lunney argues Gordon conceded too much by equating copying with “theft.” Copying is not theft (it does not deprive the owner of the original); it is a natural human faculty and the default rule in any sensible baseline. Locke’s framework, properly read, supports a natural right to copy, not a natural right to monopolize copies. Copyright is purely positive (statutory) law—an artificial, narrow exception to the general freedom to copy—and should be construed narrowly. Lunney emphasizes that self-interest, reputation, and market forces already provide substantial incentives for creation even without broad copyright; expansive protection mainly serves concentrated industry interests at the expense of consumers and cumulative culture.
How anti-IP is Lunney compared to Stephan Kinsella?
Kinsella is one of the most radical and consistent abolitionists of all IP (patents, copyrights, and trademarks). He argues IP is unjust government-granted monopoly privilege that violates natural rights in tangible property and free speech, impedes innovation, and should be abolished entirely in favor of private-ordering alternatives (contracts, trade secrets, etc.). His site (C4SIF) celebrates scholars who are “thumbs down” on IP and explicitly frames copyright as “the new mercantilism.”
Lunney is strongly anti-IP in practice and is explicitly cited approvingly by Kinsella in both of the consulted posts:
- Kinsella’s “Legal Scholars: Thumbs Down on Patent and Copyright” lists Lunney alongside abolitionists and radical skeptics (Kinsella, Tom Bell, etc.).
- Kinsella’s “Copyright: The New Mercantilism” post highlights Lunney’s critique that modern copyright expansions rest on mercantilist/job-protection rationales rather than genuine incentive arguments, and that even a very limited copyright (roughly the scope of the 1790 Copyright Act—14 years against commercial mechanical duplication) “may” be justified, but broader protection is unjustified and harmful.
Key differences in degree of opposition:
- Lunney is a reformist skeptic. He accepts that some very minimal, narrowly tailored IP (especially traditional deception-based trademark and perhaps a short, limited copyright) could be defensible on efficiency/incentive grounds in theory. His work focuses on showing that current expansive doctrines have overshot that point and created unjustified monopolies. He works within the existing legal framework to constrain and roll back overreach.
- Kinsella is a principled abolitionist. He rejects the entire IP category as illegitimate on both deontological (natural rights) and consequentialist grounds and calls for its outright elimination, not mere narrowing.
In short, Lunney is one of the more prominent academic critics of expansive IP and is squarely in the “anti-IP” camp as Kinsella defines it—he supplies powerful scholarly ammunition against modern copyright and trademark expansion. But he stops short of Kinsella’s full abolitionist position, leaving open the possibility of a stripped-down, incentive-justified core. Kinsella is farther out on the spectrum: total elimination of state IP monopolies. Lunney is “anti-IP” enough to be praised by Kinsella, but more moderate/reform-oriented in his ultimate prescriptions.
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A Natural Right to Copy
Glynn S. Lunney Jr, “Trademark Monopolies,” Emory L. J. 48 (1999): 367–487
Abstract:
Since 1742, when Lord Hardwicke seemingly equated trademark protection with monopoly in one of the first trademark cases, until the mid-1950s, concerns that trademarks represented a form of illegitimate monopoly effectively constrained the growth of trademark protection. In the twentieth century, Edward Chamberlin became the leading proponent of the trademark as monopoly view with the publication of his work, The Theory of Monopolistic Competition, in 1933. In his work, Chamberlin argued that a trademark enabled its owner to differentiate her products and then to exclude others from using the differentiating feature. By doing so, trademark protection can effectively cede control over distinct product markets to individual producers and thereby generate for trademark owners the downward sloping demand curve of a monopolist, with its associated monopoly rents and deadweight losses. Although Chamberlin himself recognized the need for product differentiation and rejected the supposed ideal of the perfect competition model, his work became a common rallying point for the trademark as monopoly argument. During the legislative debates leading to the Trademark Act of 1946, his work served as a basis for the Justice Department’s opposition to broad trademark protection.
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Glynn S. Lunney, Jr., “A Natural Right to Copy,” Boston University Law Review, Forthcoming; Texas A&M University School of Law Legal Studies Research Paper No. 19-42 25 (Posted: 20 Aug 2019)
Abstract:
In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the “no-harm” principle of John Locke to justify copyright as natural right and then used his “enough-and-as-good” proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth or perpetual duration. Rather, even a natural rights framework leads to a copyright regime shorter and narrower than we presently have.
While I agree that copyright should be shorter and narrower, I worry that Professor Gordon conceded too much in her first step. Neither Locke’s reasoning nor Professor Gordon’s reading of it can justify a right to prohibit copying as a matter of natural law. It is not the right to prohibit copying to which we have a natural entitlement. It is the right to copy.
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