The Economic Structure of Intellectual Property Law

The Economic Structure of Intellectual Property Law

William M. Landes

Language: English

Pages: 448

ISBN: 0674012046

Format: PDF / Kindle (mobi) / ePub


This book takes a fresh look at the most dynamic area of American law today, comprising the fields of copyright, patent, trademark, trade secrecy, publicity rights, and misappropriation. Topics range from copyright in private letters to defensive patenting of business methods, from moral rights in the visual arts to the banking of trademarks, from the impact of the court of patent appeals to the management of Mickey Mouse. The history and political science of intellectual property law, the challenge of digitization, the many statutes and judge-made doctrines, and the interplay with antitrust principles are all examined. The treatment is both positive (oriented toward understanding the law as it is) and normative (oriented to the reform of the law).

Previous analyses have tended to overlook the paradox that expanding intellectual property rights can effectively reduce the amount of new intellectual property by raising the creators' input costs. Those analyses have also failed to integrate the fields of intellectual property law. They have failed as well to integrate intellectual property law with the law of physical property, overlooking the many economic and legal-doctrinal parallels.

This book demonstrates the fundamental economic rationality of intellectual property law, but is sympathetic to critics who believe that in recent decades Congress and the courts have gone too far in the creation and protection of intellectual property rights.

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trespassers. That is a cheaper method of notice than elaborate signage and fencing, let alone the kind of present, pervasive use that might reasonably be required to obtain title to terra incognita. It is another example of why a system of purely possessory property rights would be uneconomical. It is also an example of the perils of generalizing about the law and specifically about moving too quickly by the route of analogy from physical to intellectual property. For in the case of trade

Structure and Economic Performance 494–496 (3d ed. 1990); Paul A. Samuelson, Foundations of Economic Analysis 42–45 (1947); Joan Robinson, The Economics of Imperfect Competition 188–195 (1933). 40 40 The Economic Structure of Intellectual Property Law Many economists believe that discrimination is more likely to expand than to reduce output or leave it unchanged,4 but there is no firm theoretical or empirical basis for this belief.5 Even perfect price discrimination—where the seller charges a

a crop), given that no one else can appropriate the resource in period 2 (harvest time). It enables people to reap where they have sown. Without that prospect the incentive to sow is diminished. To take an example from intellectual property, a firm is less likely to expend resources on developing a new product if competing firms that have not borne the expense of development can duplicate the product and produce it at the same marginal cost as the innovator; competition will drive price down to

that more would be produced if they were copyrighted. Nor is it likely that more would be better. It is true that if judges were paid according to the use others make of their opinions, for example by citing them, the quality of judicial opinions could well increase; but the quantity would probably rise as well and this would increase lawyers’ research costs and might make the law less knowable and coherent than if there were fewer opinions, because an increase in the number of opinions increases

distinguished. The first consists of comparative advertising that parodies the competitor’s trademark, and is illustrated by Deere & Co. v. MTD Products.25 Both parties sold lawn tractors. MTD ran an ad in which Deere’s deer symbol runs in fear from MTD’s “Yard-Man” tractor and a barking dog. Ordinarily it is not trademark infringement to use a competitor’s trademark in comparative advertising because there is no confusion as to source. MTD, however, profited both from comparing its product

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