Advertisement
Follow ABA
myABA | Log In
JOIN THE ABA
Membership
ABA Groups
Resources for Lawyers
Publishing
CLE
Advocacy
News
SHOP ABA
CALENDAR
About Us
MEMBER DIRECTORY
Home
Membership
Events & CLE
Committees
Initiatives & Awards
Publications
About Us
Contact Us
Business Law Today
Volume 18, Number 4 March/April 2009
Speaking volumes
Reviewed by James D. Nguyen and Elke F. Suber
An argument for eliminating the IP protection system
Against Intellectual Monopoly
By Michele Boldrin and David K. Levine
Cambridge University Press
2008, 312 pages, $30.00
Available in eBook format
ISBN 9780521879286
Intellectual property rights have long been balanced against the desire to promote fair
competition in the U.S. marketplace. Some IP owners have come under criticism for using their
lawfully obtained patent, copyright, or trademark rights in ways that may inhibit free
competition. But what if the United States' entire system of intellectual property created inherent
monopoly power that stifled innovation and creation? What if the pure notion of IP rights in
America should be eliminated?
These sound like radical ideas, but they are the argument advanced in the intriguing new book
Against Intellectual Monopoly, written by two professors of economics from Washington
University in St. Louis, Michele Boldrin and David K. Levine. As Boldrin and Levine introduce their
theories, they question (this is a book about economic theory, not law) whether the U.S. system
of granting IP rights ultimately yields societal benefits, and whether it should be discarded.
Given that the authors prefer to call intellectual property rights the granting of an "intellectual
monopoly" (including in their book title), their final conclusion is not surprising. It is, however, a
bold statement: "intellectual property is an unnecessary evil." To support this thesis, Boldrin and
Levine review a lengthy history of examples and research. They conclude that "[b]ecause there
is no evidence that intellectual monopoly achieves the desire[d] purpose of increasing innovation
and creation, it has no benefits." The authors call for the dismantling of the patent and copyright
systems as they currently exist in the United States.
To IP owners, the authors' hypothesis is radical and likely borders on the blasphemous--as it
indicts the entire U.S. system of granting patents, copyrights, and trademarks. But that doesn't
mean the book isn't worth a read, especially for IP, antitrust, and business lawyers.
The authors do a thorough job of examining innovations from as far back as the fifteenth century
and intellectual property laws in Europe dating to the seventeenth and eighteenth centuries. That
results in a book rich with historical examples to support the authors' theories. For example,
Boldrin and Levine argue that most innovations have historically taken place without the benefit
of IP rights being granted. As support, they cite the proliferation of Shakespeare before the
Statute of Anne was adopted in England in 1710 (giving authors an exclusive right of publication
for 14 years), the nineteenth-century practice of English authors selling books in the United
States (during a time in which U.S. law allowed free reprinting of foreign publications), and the
robust world of open-source software development. Another interesting example noted by the
authors is the blockbuster sales success of the 9/11 Commission Report, a government report
that is not protected by copyright law and was available for free download on the Internet—but
the published version still sold millions of copies.
Boldrin and Levine also aim their sights on taking the U.S. patent system to task. One prime
example they give is the development of the steam engine in the late 1700s and early 1800s;
analyzing the history of the steam engine's development, they argue that productive innovations
in steam engine technology really happened in the competitive market after the first patents
expired in 1810—rather than being the product of patent protection. In fact, the authors argue
that IP laws have actually delayed rather than advanced "the development of the steam engine,
the automobile, the airplane, and innumerable other useful things." This story, among others,
serves as the basis for Boldrin and Levine's assertion that intellectual property—patents and
copyright—are monopolies that hinder innovation. Also of note, the authors focus on several
specific subject areas covered by patent and copyright law and do not address every conceivable
idea that may be patented, or work that may be subject to copyright.
There is, of course, much more to the book, including challenges against Microsoft, Guglielmo
Marconi's patent for radio technology, and the Recording Industry Association of America's
current litigation battles against online music piracy.
Readers will find interesting the authors' historical examples of the tension between those
seeking to enforce patent law (e.g., Edison, who provided equipment used to make films) and
those who sought to avoid licensing fees (e.g., filmmakers). The authors also embrace the opensource software model as one that seeks to "relinquish their monopoly right." But because this is
a book about economic theory at its heart, the authors spend little time discussing how opensource licenses operate within the bounds of copyright law, or about open-source software
license provisions that reserve patent rights.
Certain topics merit their own chapters in Against Intellectual Monopoly. The pharmaceutical
industry gets its own chapter for the authors to argue that "patent laws do not play a helpful
role in pharmaceutical innovation." And one entire chapter is even titled "The Devil in Disney"—
it's not an attack aimed at just the Walt Disney Co. but a metaphor to argue about the evils of
copyright law especially as used by the entertainment industry. The authors take particular
pleasure in disputing what economic sense there is in continually extending the term of copyright
protection.
Boldrin and Levine's arguments will likely strike most IP owners as misguided. But they certainly
are well-researched with historical and modern examples (albeit selective specimens meant to
advance the authors' conclusion). This being an economics book, the authors also go to great
detail to analyze the economic and market impact of their chosen examples of "intellectual
monopoly."
For lawyer readers, the economic analysis is perhaps the most illuminating part of the book-providing financial and market context for the IP legal system that governs us. For example, in
discussing the "Evils of Intellectual Property," Boldrin and Levine focus on four main reasons one
should be wary of monopolies created by patent and copyright law: (1) the welfare triangle, (2)
loss of efficiency, (3) the rent-seeking nature of monopoly, and (4) the transfer of wealth away
from society. The authors weave together their economic theories and the means intellectual
property owners use to protect and enforce their rights—comparing in one instance the use of
digital rights management to price discrimination. For readers, whether you agree with the
authors' theories or not, it brings a new perspective on the application and enforcement of
patent and copyright law.
Despite the book's level of detail, Against Intellectual Monopoly does suffer from one weakness—
which is a focus on patents and copyrights, leaving trademarks to get relatively short shrift. In
fact, trademarks get a couple of paragraphs in one chapter and only a few other mentions here
or there. Perhaps that is because it is more difficult to advocate that trademark rights inhibit
innovation. (Indeed, the authors acknowledge that trademarks "serve to identify rather than to
monopolize.") It would be interesting to see whether the authors could make an argument about
trademarks being evil as equally detailed as their treatise against patents and copyrights. In
addition, readers with a background in intellectual property also will be surprised to find very
little discussion of the impact of independent development or intelligent observation in relation to
copyright, or consideration of the use of trade secret law versus patent law to protect ideas.
Despite these omissions, readers will walk away having learned a thing or two about economic
theory.
The authors handle the challenge of applying economic theory to the realities of business and
long-standing intellectual property law principles. While the authors may be against "intellectual
monopoly," they do realize that a sudden elimination of intellectual property laws may be
unrealistic. For anyone who has questioned the wisdom (or lack thereof) of retroactive copyright
term extensions, the problem of orphan works, or the expansion of patents to areas like
databases and software, Against Intellectual Monopoly will illuminate how economic theory
impacts patent and copyright law.
So, Against Intellectual Monopoly remains worth a read for lawyers. It is unlikely to persuade
major IP owners or the lawyers who represent them that the U.S. IP system is evil. But it is
thought provoking, and just might make at least some IP owners and their attorneys question
whether their work is for good . . . or for evil.
Nguyen is a partner in the Beverly Hills office of Wildman, Harrold, Allen & Dixon LLP. He can be
reached at [email protected]. Suber is a senior attorney, Legal & Corporate Affairs, at
Microsoft Corporation in Redmond, Washington. She can be reached at [email protected].
Back to Top
For the Public
ABA Approved Law Schools
Law School Accreditation
Public Education
Public Resources
Resources For
Bar Associations
Diversity
Government and Public
Sector Lawyers
Judges
Law Students
Lawyers of Color
Lesbian, Gay, Bisexual &
Transgender Lawyers
Military Lawyers
Senior Lawyers
Solo and Small Firms
Women Lawyers
Young Lawyers
Stay Connected
Twitter
Facebook
ABA Career Center
Contact Us Online
Lawyers with Disabilities
Terms of Use
|
Code of Conduct
|
Privacy Policy
|
Your Privacy Rights
|
Copyright & IP Policy
|
Advertising & Sponsorship
|
© 2012 ABA, All Rights Reserved