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As I indicated in my comments on an earlier thread about waste, I’ve been working on a paper about Locke’s waste proviso and its application to intellectual property law. Here is (what I hope to be) a pentultimate draft:
Locke, The Waste Proviso, and the Moral Justification of Intellectual Property
It’s long - aside from the usual typo cleanup, one of the main things I’ll be working on before sending it out is concision. Another will be reading and including some of the papers mentioned in the waste thread. In any case, comments are welcome. What follows is the first page or so of the paper, which should serve as an abstract/guide for where I’m going.
Defenders of strong intellectual property rights or of a non-utilitarian basis for those rights often turn to Locke for support. Perhaps because of a general belief that Locke is an advocate of all things proprietary, this move seldom receives careful scrutiny. That is unfortunate for two reasons. First, as I will argue, Locke does not issue a blank check in support of all property regimes, and the application of his reasoning to intellectual property would actually result in a substantially limited rights regime. Second, the attempt to understand intellectual property as an instance of Lockean property, though admittedly anachronistic, offers an opportunity to further our understanding of Locke’s own thought. My major claim will thus be twofold: on the one hand, intellectual property would be an almost paradigmatic case of Lockean property; on the other hand, Locke’s provisos - specifically the widely neglected spoilage proviso - would sharply limit the scope of such entitlements. My secondary claim will be that the spoilage proviso’s neglect is undeserved, and that it deserves a more central place in our understanding of Locke.
The paper proceeds as follows. In the first part, I will examine Locke’s own writings on English print licensing law, which formed the backdrop against which the original copyright statute was developed. In part 2, I attempt to resurrect the spoilage proviso. Part 3 explains why intellectual property would be a paradigm case of Lockean property more broadly. On the basis of the preceding textual work, part 4 attempts a conceptual clarification of waste in Lockean terms, and part 5 applies that analysis to some contemporary intellectual property issues.
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1 - Thursday, 15 November 2007 at 7:08 pm
Andrew Jason Cohen
Gordon-
I read through the paper. I like it quite a lot. My own interests are less in Lockean exegesis than yours, so I don’t have alot of comments. Indeed, I’ll contain myself to my one big issue:
On your account, you only have waste if “(a) there is irrevocably unmet demand” and “(c) property claims prevent satisfaction of … demands.” (I’m ignoring your (b) here because I have no problem with it.) Both seem like a rather large and artificial restrictions. I am more inclined to think that the product of the great musician is wasted even if there is no demand for the work because existing persons are too unsophisticated to appreciate it or because it is simply unknown–buried somewhere in a musty library, waiting for discovery. In neither case would there be an irrevocably unmet demand and neither case would it be property claims interfering.
This actually causes you problems later–at the end of section 5, you recognize as much.
2 - Wednesday, 21 November 2007 at 10:14 pm
Gordon Hull
Andrew,
Thanks for the comments. I think I need to be making a clear distinction between two kinds of waste: (a) by individuals, and (b) as institutionally encouraged by a property regime. My discussion is really more about (b) than (a). A couple of further thoughts, somewhat inchoate perhaps at the moment:
1. I think there’s no problem making this distinction on Lockean grounds. I think the right point to get out of Locke is that he thinks a property regime is a good way to productively develop resources, such that we ought to give people who create things/mix their labor into them prima facie property rights over them. To be sure, these are natural law claims, but they are claims of law, which are meant to impose duties on others (and the provisos grant others rights: if i let the apples rot, I lose my property claim on them, and you regain your right to claim them). The presence of the provisos strongly suggests that Locke has such institutional considerations in mind.
2. The individual/regime distinction cuts across the distinction made in McCaffery between dissipatory and nonurgent waste. It’s also not one I’ve encountered in the literature so far, so it probably needs more working out.
Finally, I just finished a pretty interesting piece by Lior Jacob Strahilevitz (Law, Chicago) defending a qualified right to destroy/waste, based on an individual’s expressive interests. It’s intended partly as a response to McCaffery (and is not a piece of Locke exegesis, except for a paragraph that says it’s hard to figure out exactly what Locke’s proviso entails). The cite is:
Strahilevitz, Lior Jacob. “The Right to Destroy,” Yale Law Journal 114 (2005), 781-854
And it can be found at: http://yalelawjournal.org/114/4/781_lior_jacob_strahilevitz.html
Gordon
3 - Friday, 23 November 2007 at 3:54 pm
Andrew Jason Cohen
Gordon-
I guess I am inclined to think there is a single concept of waste, but that different property regimes encourage or discourage it to different degrees. When one regime results in more waste than another, it would be resulting in more of the same thing–not something different.
I don’t think I see the motivation behind including your (C) in a definition of waste. It seems an important normative consideration about property regimes, but not part of the concept of waste. You could talk of a “wasteful regime” such that (C), suitably modified, would be part of that concept. This would not be a distinction providing 2 different types of waste–it would be a distinction providing 2 different types (or a continuum) of regimes. That strikes me as a better way to go given your interest in intellectual property. Its pretty common now to recognize that property is determined by legal-political systems (regimes) and then to argue for a particular form of property based on other consequences of having the sort of regime that brings about that sort of property.
-Andrew
4 - Friday, 11 January 2008 at 9:48 pm
Gordon Hull
I’ve just posted an updated version of the paper on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1082597 cheers,Gordon