Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legal academy. He frequently collaborates with colleagues, offers extensive comments at conferences, and works tirelessly to build the community. The rest of us aspire to do one fifth as much one fifth as generously.
This is necessary background to my explanation of my concerns with Lemley’s latest essay, Faith-Based Intellectual Property.1 The essay is an edited version of the Melville B. Nimmer Memorial Lecture, which he delivered at UCLA in the fall, and it will be published in the UCLA Law Review. The best summary of the argument is Lemley’s own:
The traditional justification for intellectual property (IP) rights has been utilitarian. We grant exclusive rights because we think the world will be a better place as a result. But what evidence we have doesn’t justify IP rights. Rather than following the evidence and questioning strong IP rights, more and more scholars have begun to retreat from evidence toward what I call faith-based IP, justifying IP as a moral end in itself rather than on the basis of how it affects the world. I argue that these moral claims are ultimately unpersuasive and a step backward in a rational society. (1)
The essay makes six notable claims, all of them on display in this summary. I would like to unpack the rhetoric going into them.
First, Lemley argues that “it is far from clear that IP is doing the world more good than harm.” (7) The essay devotes several extensively footnoted pages to backing up this statement. It runs through experimental, sociological, and econometric studies that consider the relationship between intellectual property law and how people actually behave. Lemley concludes that the evidence about intellectual property’s effects is “complicated” (6) and “decidedly ambiguous” (7). As he summarizes,
The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy. The studies of the behavior of artists and inventors are similarly complicated. Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so. At the same time, the money provided by IP allows the existence of a professional creative class that may be desirable for distributional reasons or because we like the sorts of things they create more than we do the work of amateurs.
In presenting this overview of the evidence, Lemley straightforwardly lays out his own epistemological and normative commitments: he is an empiricist and a utilitarian.
Second, Lemley refers to two “sides of the IP debates.” (8) One of those sides supports “expanding IP rights” (7), or at least “like[s] the status quo” (8). The other side prefers “weaker IP rights” (15).
The third claim builds on the second: only one of these two “sides” really cares about empirical truth, and it is the side Lemley is on, the side of the intellectual property skeptics. His opponents “have instead sought ways to ignore the evidence and keep on doing what they have always been doing” (7), in part by “retreat[ing] to a belief system that doesn’t require evidence at all” (8). He writes, “If you like the status quo, the very last thing you want, it seems, is to take a good hard look at whether it is working” (8), and quotes critically Richard Spinello and Maria Bottis’s A Defense of Intellectual Property Rights, which in his view “avoids the need for empirical validation” (10).
Fourth, the essay rejects all normative frameworks other than Lemley’s own. He criticizes scholars who have “jettison[ed] utilitarianism for talk of morality.” (9). He argues that non-utilitarian theories are problematic because they are “impervious” (18) to evidence, because they cannot supply “limiting principle[s]” (15), because “it is awfully hard to come up with a moral theory of IP that can explain” why one person’s right to own information trumps someone else’s right to use it (15), and because they are “not really about maximizing value at all.” (14) Ultimately, he writes, “the move to moral justifications is designed to bias the analysis in favor of the IP owner.” (16)
The essay’s fifth claim turns the same normative and methodological critique against scholars on Lemley’s own “side.” He writes, “The ‘information wants to be free’ crowd is often guilty of the same sort of conduct, substituting a freedom-based or cultural vision of the way they think the world should be for reasoned analysis based on the evidence.” (16-17) The footnote that follows disapprovingly cites Hugh Breakey, Amy Kapczynski, Anupam Chander, and Madhavi Sunder for making non-utilitarian arguments. The Kapczynski article, for example, argues for considering distributive justice and not just overall social welfare in setting intellectual property policy. The implication is that Mark Lemley disagrees and that Kapczynski’s concern for equality is a “flight from evidence toward belief.” (16)
These first five claims, taken together, are a familiar political strategy. They assert that the world is divided into two parties (second claim), that the evidence favors the speaker’s party’s position (first claim), that the other party refuses to admit that it is wrong on the facts (third claim), that the the other party’s worldview is illegitimate (fourth claim), and and that ideological purity is a condition of membership in one’s own party (fifth claim). This is how pundits and politicians argue all the time. It is a little startling to see such rhetoric used in a debate among academics.
It is the sixth and final claim that really sets Faith-Based Intellectual Property apart. As the title suggests, the essay recasts academic debates about intellectual property as a conflict between science and religion. On the one hand, Lemley links skepticism about intellectual property to the Enlightenment project of rationality:
“We live in an age of reason. Or at least, we’re supposed to. Science has explained most of the things that in a prior era seemed like magic or the will of the gods, from the seasons to lightning and thunder to the diversity of the natural world. … The age of reason has extended to the economy.” (1)
“If we had evidence that any other kind of government regulation – or medical advice, for that matter – probably wasn’t helping much, or was only helping people in a few specialized areas, and might in fact be making things worse, the enlightened, reasonable thing to do would be to reassess that policy.” (7)
On the other hand, he describes support for intellectual property as a kind of religious superstition:
I call this retreat from evidence faith-based IP, both because adherents are taking the validity of the IP system on faith and because the rationale for doing so is a form of religious belief. The adherents of this new religion believe in IP. They don’t believe it is better for the world than other systems, or that it encourages more innovation. Rather, they believe in IP as an end in itself – that IP is some kind of prepolitical right to which inventors and creators are entitled. Because that is a belief, evidence cannot shake it any more than I can persuade someone who believes in the literal truth of the bible that their god didn’t create the world in seven days. Sure, there may be geological and archeological evidence that makes the seven-day story implausible. But faith is not just ambivalent about evidentiary support; it is remarkably resistant to evidentiary challenge. (10)
Citing Karl Popper, Lemley adds, “Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.” (18) The comparison is inapt. Just as evidence proved one theory about the motion of the planets and disproved another, evidence might prove or disprove empirical claims relevant to a given theory. But empirical evidence cannot settle foundational moral questions of what is best. Lemley’s utilitarianism is no more falsifiable than Spinello and Bottis’s “natural law” (9) or Kapczynski’s distributive justice.
Instead, the metaphor that support for intellectual property is a kind of religious belief is doing a different type of rhetorical work. It links Lemley’s skepticism about intellectual property to modern secular liberalism, and brands his opponents as irrational, close-minded, and culturally conservative. Readers whose religious faith plays a significant role in their lives may find this equation unconvincing, or even baffling. But I suspect that such readers are a fraction of the essay’s intended audience of law professors. By and large, intellectual property scholars are heirs to the Enlightenment tradition. They share broadly humanist values and prize reasoned debate over appeals to revelation or authority. They work in basically secular institutions; their politics often tend toward solidly Democratic liberalism. “Faith” is a pejorative in the language of academic discourse.
Lemley’s essay is an attempt to turn a scholarly debate into a culture war. It takes questions about which reasonable minds can and do disagree and recasts them such that reasonable minds cannot disagree because one of the alternatives is by definition unreasoned. In so doing, it harnesses intellectual property law – not usually thought of as a fraught subject – to genuinely divisive controversies. The anti-religious frame of Faith-Based Intellectual Property is familiar from the fights over abortion, same-sex marriage, and Hobby Lobby. This kind of culturally charged polarization might or might not be an effective tactic in pushing back against strong intellectual property laws. But it is a disappointing development for intellectual property scholarship.
In his conclusion, Lemley writes:
But if you are one of the faithful, I probably haven’t persuaded you. The psychology literature suggests that while people are willing to be corrected about factual inaccuracies – things they think are true but are not – they are essentially impervious to correction once the thing that turns out to be untrue crosses the line into a belief. And that leads me to the last – and, to me, most worrisome – problem with faith-based IP. If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong. The inevitable result of a move toward faith-based IP is that we will make policy based on our instincts without being able to engage in a meaningful conversation about the wisdom of that policy.
This is the last and most unfortunate consequence of turning conversations into culture wars. The central claim of the Cultural Cognition Project is that once people perceive an issue as a cultural litmus test, they harden their positions because changing their minds would call into question affiliations they consider central to their identities. This is not unique to religious belief; it is a general characteristic of any issue that plays a role in defining competing group identities. Recasting an empirical issue in cultural terms, as Lemley has done, makes it harder, not easier to reach empirical consensus. I consider it a regrettable turn for a scholarly community that has largely been cordial, collegial, and supportive – as exemplified by Mark Lemley himself.