Against Utilitarian Fundamentalism

Abstract

Many justify intellectual property (IP) rights on utilitarian grounds: IP should exist only if and only to the extent that it can be shown empirically to increase net social welfare. Others justify IP on separate, deontic, grounds: IP exists and adds value because as an institution it produces just and fair outcomes. A prominent critique of the latter view was presented in an article called "Faith-Based Intellectual Property." I traverse that critique here. I argue that the critique mischaracterizes deontic views as a form of blind faith. I describe theories and studies showing a common intuition that under some circumstances ownership of ideas conforms with people's sense of right and wrong. Finally, I summarize a point made in my book, "Justifying Intellectual Property" (2011): that even if a deontic theory is adopted to justify the existence of IP rights, efficiency considerations and cost-benefit analysis are still useful and desirable tools in designing an effective IP system.

A later version of this article was published at 90 St. John's Law Review 681 (2017).

Keywords: intellectual property, legal theory, private law