IP as Metaphor

Chapman Law Review Volume 18 | Issue 3 Article 6 2015 IP as Metaphor Brian L. Frye Follow this and additional works at: http://digitalcommons.chapman.edu/chapman-law-review Recommended Citation Brian L. Frye, IP as Metaphor, 18 Chap. L. Rev. 735 (2015). Available at: http://digitalcommons.chapman.edu/chapman-law-review/vol18/iss3/6 This Article is brought to you for free and open access by the Fowler School of Law at Chapman University Digital Commons. It has been accepted for inclusion in Chapman Law Review by an authorized administrator of Chapman University Digital Commons. For more information, please contact . Do Not Delete 5/22/2015 7:02 PM IP as Metaphor Brian L. Frye* INTRODUCTION Everybody hates intellectual property trolls. They are parasites, who abuse intellectual property by forcing innovators to pay an unjust toll. Even worse are intellectual property pirates. They are thieves, who steal intellectual property by using it without the consent of its owner. By contrast, everybody loves innovators. They are farmers, entitled to reap what they have sown and enjoy the fruits of their labor. But trolls, pirates, and farmers are metaphors. A “troll” abuses intellectual property only if its ownership or use of that intellectual property is unjustified, a “pirate” steals intellectual property only if the ownership of that intellectual property is justified, and a “farmer” is entitled to own intellectual property rights only to the extent that they are justified. In Illness as Metaphor, Susan Sontag observed that illness has historically been understood metaphorically as an expression of the personality of the patient.1 Specifically, tuberculosis was used as a metaphor for refinement and cancer as a metaphor for corruption. Tuberculosis was the bohemian disease, associated with creativity and expression; cancer was the bourgeois disease, associated with timidity and repression. Sontag objected to this metaphorical understanding of disease, because illness is not a metaphor, but a physiological phenomenon. We do not create disease, but are afflicted by it. She argued that we cannot understand illness until we abstain from thinking about it metaphorically: My point is that illness is not a metaphor, and that the most truthful way of regarding illness—and the healthiest way of being ill—is one * Assistant Professor of Law, University of Kentucky School of Law. J.D., New York University School of Law, 2005; M.F.A., San Francisco Art Institute, 1997; B.A., University of California, Berkeley, 1995. Thanks to the participants in this conference and the University of New Hampshire IP Scholars' Roundtable, Irina Manta, Christina Mulligan, Jake Linford, Michael Burstein, Robert Wagner, Felix Wu, Brian Lee, Christopher Beauchamp, Janet Moore, Andrew Woods, Albertina Antognini, Johnny Schmidt, and Paul Salamanca for their helpful comments. 1 SUSAN SONTAG, ILLNESS AS METAPHOR 30 (1978). 735 Do Not Delete 736 5/22/2015 7:02 PM Chapman Law Review [Vol. 18:3 most purified of, most resistant to, metaphoric thinking. Yet it is hardly possible to take up one’s residence in the kingdom of the ill unprejudiced by the lurid metaphors with which it has been landscaped. It is toward an elucidation of those metaphors, and a liberation from them, that I dedicate this inquiry.2 The same is true of intellectual property, because the rhetoric of intellectual property is metaphorical.3 In theory, intellectual property is justified on welfarist grounds, because it solves market failures in innovation and thereby increases the public surplus. But in practice, the scope of intellectual property rights is unrelated to their ostensible welfarist justification. Intellectual property metaphors prevent us from understanding intellectual property by obscuring the lack of connection between its theoretical justification and its actual scope. Notably, illness metaphors and intellectual property metaphors even have a parallel structure. Much as tuberculosis became a metaphor for expression and cancer became a metaphor for repression, innovators have become a metaphor for expression and pirates and trolls have become metaphors for repression. But intellectual property metaphors are even more pernicious than illness metaphors. The problem with illness metaphors is that they are false. Illness metaphors propose that disease is a product of uncontrolled emotion. But disease is not a product of emotion and cannot be cured by controlling our emotions. As a result, illness metaphors prevent us from understanding disease by obscuring its true physiological causes. The problem with intellectual property metaphors is that they obscure the welfarist justification for intellectual property and encourage the creation of intellectual property rights inconsistent with that justification. Illness is a physiological phenomenon, but intellectual property is a political phenomenon. We do not create illness, but we do create intellectual property. As a result, intellectual property metaphors not only obscure the justification for intellectual property, but also induce us to grant intellectual property rights that are incompatible with that justification. Intellectual property metaphors encourage us to apply property heuristics that promote the efficient regulation of rivalrous goods to the regulation of non-rivalrous goods. The metaphors are compelling because they evoke familiar heuristics, but their rhetoric obscures the fact that the justification for 2 Id. at 3–4. 3 See generally Patricia Loughlan, Pirates, Parasites, Reapers, Sowers, Fruits, Foxes . . . The Metaphors of Intellectual Property, 28 SYDNEY L. REV. 211 (2006). Do Not Delete 2015] 5/22/2015 7:02 PM IP as Metaphor 737 creating property rights in rivalrous and non-rivalrous goods is totally different. Property rights that increase social welfare when applied to rivalrous property may decrease social welfare when applied to non-rivalrous property. Intellectual property metaphors induce us to ignore efficiency, by taking property rights for granted. I. THEORIES OF INTELLECTUAL PROPERTY Intellectual property provides exclusive rights to use ideas, expressions, and marks, among other things. Those exclusive rights are in tension with antitrust law and the right to free expression protected by the First Amendment. Accordingly, the proper scope of those rights depends on the justification for intellectual property. A. The Economic Theory of Intellectual Property The prevailing theory of intellectual property is the economic theory, which holds that intellectual property is justified because it solves market failures caused by free riding and transaction costs. Under the economic theory, patents and copyrights solve market failures caused by free riding by indirectly subsidizing innovation. Other forms of intellectual property, like trademarks and trade secrets, also solve market failures caused by transaction costs.4 A market failure exists (...truncated)