Ethics and Information Technology 5: 1–16, 2003.© 2003 Kluwer Academic Publishers. Printed in the Netherlands.The future of intellectual propertyRichard A. SpinelloCarroll School of Manage ment, Boston College, Chestnut Hill, MA 02467, USAE-mail: [email protected]. This paper uses two recent works as a springboard for discussing the proper contours of intellectualproperty protection. Professor Lessig devotes much of The Future of Ideas to demonstrating how the expandingscope of intellectual property protection threatens the Internet as an innovation commons. Similarly, ProfessorLitman’s message in Digital Copyright is that copyright law is both too complicated and too restrictive. Bothauthors contend that as a result of overprotecting individual rights, creativity is stifled and the vitality of theintellectual commons is in jeopardy. It is difficult to evaluate the claims and policy prescriptions of these bookswithout some appreciation for the moral foundations of intellectual property. The utility and labor desert theoriesremain the two most prominent in the Anglo-American tradition. After exploring those theories, we argue fora secure regime of protection based on the Lockean vision that property rights are justly deserved as a rewardfor labor that creates value. However, as Locke’s famous proviso implies, even a natural property right is notabsolute and must be balanced by regard for the public domain. But a natural right cannot be sacrificed simply toadvance technological innovation or to achieve marginal social and economic gains. While we agree with Lessigand Litman that recent legislation goes too far we conclude the essay by attempting to illustrate that some of theirpolicy recommendations err in the opposite direction by underprotecting valid property rights.Key words: authorship, business method patent, copyright, Copyright Term Extension Act (CTEA), DigitalMillennium Copyright Act (DMCA), enclosure, hyperlink, intellectual commons, intellectual property rights,Internet, labor-desert theory, Locke, Napster, natural law, open source code, patents, public domain, utilitarianismThe frontier of cyberspace has certainly attractedthe attention of countless lawyers and legal scholars,and no issue has been treated more extensively thanintellectual property protection. While practitionersardently defend intellectual property rights in thecourts, their colleagues in law schools are reexaminingthe breadth and scope of those rights. Some scholarsquestion the very notion of private ownership of intel-lectual property; others insist that while intellectualproperty rights may be valid, the US Congress andthe courts have been too generous in assigning theserights. Moreover, they contend that the consequencesof such expansion will suppress innovation in cyber-space.The effort to extend property rights has been aptlycalled the ‘enclosure’ movement. Enclosure happenswhen a lengthy proprietary right is assigned to an intel-lectual work or some other form of common propertyso that it becomes unavailable to the public unlessthey are willing to pay something like a licensingfee. The extension of property rights to the humangenome is often cited as an illustration of how commonproperty, belonging to everyone, can become subjectto ‘enclosure.’ According to many legal scholars thisbias toward stronger exclusive rights is both worrisomeand a potential threat to our free society. The antidoteto enclosure is readily apparent – open source code,more easily accessible content, and a robust, dynamicintellectual commons.Two recent books articulate these general themes.Both offer trenchant critiques on recent intellectualproperty policy and arcane US copyright laws. Bothargue that an entrenched notion of property misap-plied to intellectual objects is distorting public policy.In The Future of Ideas Lessig (2001) argues force-fully against the paradigm of perfect control. And inDigital Copyright Litman (2001) chronicles the manyproblems with current copyright law and suggeststhe need for a fairly radical transformation of thatlaw.Lessig is primarily preoccupied with the effects oftighter intellectual property protections on innovation.The open architecture of the Internet has been quiteconducive for promoting innovation. Internet protocolshave already given birth to the Web and a host of otherapplications. Litman, on the other hand, focuses moreintently on how excessive copyright protection inhibitsconsumer freedoms such as the freedom to share apopular CD or movie with a friend. Both concur thatthe law has gone too far: protecting corporate andmedia interests at the expense of the public domain anddemocratic values.2 RICHARD.A.SPINELLONeither author supports information anarchy, thatis, free and unfettered access to all types of informa-tion. Litman, however, seems to have little objectionto civil disobedience or noncompliance with unfair andobscure copyright law. She is hopeful that the public’srejection of these laws will finally provoke Congressto make necessary changes.Unlike legal scholars, other academic theoristssuch as information technology ethicists have largelyeschewed these topics, manifesting more concern forissues such as privacy and civil liberties where therethey perceive to be a greater sense of urgency. Ethi-cists and philosophers, however, should begin makinga more ample contribution to the practical side ofthis intellectual property debate. In light of digitaltechnology it is especially critical to re-examine theunderpinnings of the moral legitimacy for intellec-tual property protection. Do we justify that protectioninstrumentally, purely on utilitarian grounds, grantingrights only to incentivize social progress? Or are theserights ‘natural’ in some respects, grounded in deonto-logical reasoning, as the Lockean tradition argues?How one resolves these questions will shape one’sresponse to the modified intellectual property regimeespoused by Lessig and Litman.In this article we will use the important reflectionsof these two scholars as a springboard for interroga-ting this burgeoning problematic. For the most part wedo not dispute that there has been an ominous trendamong US policy makers to overemphasize propertyrights. But there is another trend that should not beoverlooked. While property rights have undoubtedlybecome overinclusive thanks to new legislation, theyare often dismissed or disparaged in academic circles.Post-modern critics, for
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