George Mason University Antonin Scalia Law School

In Defense of an Inclusive IP Conversation

hand under a lightbulb drawn on a chalkboardIn a recent essay responding to a divisive critique of his book, Justifying Intellectual Property, Robert Merges makes clear from the start that he won’t be pulling any punches. He explains that the purpose of his essay, Against Utilitarian Fundamentalism, is to address the misleading and polarizing conclusions of Mark Lemley’s 2015 article, Faith-Based Intellectual Property, recapitulate the arguments he makes in Justifying IP, and show that those who approach intellectual property theory through a nonstrict empirical lens can still make meaningful contributions to the debate.

Merges exposes the key hypocrisy of Lemely’s article: By flippantly dismissing theories that deviate from his own, Lemley ultimately champions the same inflexible exclusivity he purports to condemn.

The underlying dispute between Lemley and Merges turns on what place nonstrict empirical research has in theoretical IP debates. Philosophical empiricism is the idea that experiment-based evidence is the best path to knowledge. Strict empiricists, such as Lemley, argue that hard data-driven evidence is the only evidence capable of supporting reasonable theoretical conclusions. (As an aside, Lemley’s insistence that strict empirical data is the only evidence worthy of scholarly discussion is curious given his vigorous promotion of theories that lack any empirical support. I should also note that his conclusions regarding the current state of the empirical evidence are controversial in their own right, particularly when combined with a willingness to make broad policy recommendations that ignore important empirical criticisms of the data supporting those recommendations.)

While nonstrict empiricism recognizes the importance of data-driven evidence, it allows for the inclusion of evidence-based investigations into human nature and the way people distinguish right from wrong. This research into the nature of duty and obligation—also known as deontology—is seen by nonstrict empiricists in the IP field as a significant supplement to data-driven evidence in reaching meaningful conclusions on theories of ownership and property.

Strict versus nonstrict empiricism debates—sometimes referred to as utilitarian v. deontological—are not new and are not confined to discussions of ownership and intellectual property. What makes the dispute between Lemley and Merges notable is that Lemley, in disparaging Merges’ approach to research, adopts a rigid position on what evidence merits consideration by IP theorists, making the claim that only hard, data-driven empirical research should influence scholarship. It’s a bold assertion that has led many to offer critical responses to Lemley’s essay (see here, here, here, here, and here), especially considering that the exclusive and narrow-minded approach to IP theory he accuses Merges of supporting is exactly what his essay ultimately promotes.

Lemley Misrepresents Alternatives to Strict Empiricism

Merges first takes issue with Lemley’s critique of nonstrict empirical IP theories as inherently suspect due do their basis “on fundamental commitments that are resistant to counterarguments, particularly empirically-based counterarguments.” Lemley contends that these theories operate with a bias similar to blind religious faith, have an intrinsic disregard for reason, and have no place in scholarly discourse. According to Lemley, they are unscientific and unpersuasive views that cannot be seriously considered in discussions of IP law and policy. In his provocative essay, Lemley uses highly-charged rhetoric to associate nonstrict empirical theorists with religious fundamentalists, resorting to ad hominem attacks and scare tactics to argue that his foundational beliefs are the “one true path.”

Merges points out that by relegating all non-empirical theories into a single, derogatory category, and raising his preferred empirical/utilitarian theory to a “true path to enlightenment” status, Lemley commits the fatal error of promoting an exclusive approach to scholarly discourse. Lemley’s argument has roots in the works of Oliver Wendell Holmes and Richard Posner, who dismissed non-empirical foundations as incapable of being influenced by reason. But Merges repeats that he is “not rejecting empirical evidence of all kinds, but expressing honest doubts about the adequacy of the available evidence,” and that Lemley’s mischaracterization of this skepticism is “more in the way of propaganda than scholarship.”

Research on People’s Moral Intuitions Reveals Significant Shared Judgments About IP

Lemley conflates that which is empirical with that which is rational, assuming there is no empiricism in the study of people’s moral judgments. But Merges notes that deontologists, or those who study the nature of duty and moral obligation are “interested in shared judgments about right and wrong, rather than a strict and exclusive interest in empirical data about the consequences of different courses of action,” and that studies in this field can reveal important theoretical foundations to IP.

Discussing the importance of empirical evidence derived from studies on moral obligations, Merges presents a hypothetical ethical dilemma that has revealed “universal morals” shared across cultures, age groups, and other demographic categories. In the “trolley problem,” a person is presented with the scenario of an out of control trolley headed for a group of five bystanders, and the only way to avoid the trolley killing the entire group is to activate a switch that will divert the trolley to a path that will result in the death of one person. Another variation involves pushing one person in front of the train to save the group of five. Merges notes that researchers found widespread agreement across ethnicities, ages, and backgrounds about which actions were right and wrong, and that rather than based on “irrational institutions,” these judgments are based on a “universal moral grammar” hard-wired in all human beings.

These inherent principles have been directly tied to shared ideas regarding both tangible and intellectual property. Merges describes studies in which children are exposed to a person handling an object, then putting the object down, at which point someone else picks up the object. The children not only routinely infer ownership of tangible goods with first possession, but have also been found to associate creative labor with ownership. As Merges explains, “there are strong regularities in people’s thinking about ownership, fairness, and the importance of creative labor,” and these regularities are “less due to socialization in a particular culture and more due to a basic shared moral sense.”

Though strict empiricists criticize these findings as non-empirical forms of evidence, Merges rejects the idea that strictly empirical studies are the only form of rational and practical investigation. He confronts this argument by showing that empirical evidence focusing solely on consequentialism, or the final net consequence of an action, is not only largely impractical, but often leads to morally reprehensible outcomes.

Illustrating the impractical nature of strict consequentialism, Merges fills nearly an entire page with the myriad potential consequences of both strict and liberal liability standards for internet service providers in identifying copyright infringement. What’s clear is that the vast and complex consequences cannot warrant a “net grand total” conclusion of any kind, and that exercises in attempting to draw causal connections are hopeless. Merges also invokes a hypothetical example of enslaving writers and forcing them produce original content to show that, while it may be the most efficient way to deliver works into the market, it’s a utilitarian approach to IP that’s contrary to the shared moral ideas of right and wrong that societies invoke to reject such operations.

IP Theory Should be Inclusionary and Diverse  

Merges dedicates the end of his essay to a summary and defense of his arguments in Justifying Intellectual Property, including the explicit assertions that his ideas do not “have any claim to exclusivity,” and that his book promotes a “public space” in which differing opinions are not only welcome, but essential to a meaningful debate. For Faith-Based Intellectual Property to insist otherwise leads Merges to question whether Lemley has any real awareness of the work he so vehemently criticizes.

Discussing his pluralistic approach, Merges identifies four “midlevel principles” that serve as a bridge between those with differing foundational commitments to IP. According to Merges, proportionality, efficiency, nonremoval or the public domain, and dignity make up these midlevel principles and create an “overlapping consensus” among scholars and theorists with otherwise conflicting views. Offering an example of this consensus, Merges discusses a recent amicus brief that both he and Mark Lemley cooperated and agreed on. Merges explains that the fact that the two authors could discuss and agree on case outcomes and underlying policy rationales directly refutes Lemley’s conclusion that the sides have “nothing to say to each other.”

Concluding his essay, Merges maintains that Justifying Intellectual Property seeks to formulate a liberal theory of IP while respecting all manners of approaches, and that the book “neither predicts nor expects universal agreement.” And while Merges accepts that some may accuse the book of being wrong, naïve, boring, or didactic, to accuse it of being resistant to inclusive discourse and reasoned arguments reveals an unawareness of its actual content. Lemley’s response is an unfortunate reaction to an open assessment of the ways those with differing views can come together. Ironically, Lemley promotes the very same exclusive approach to scholarly debate that he claims to reject.