The property rights movement's embrace of intellectual property: True love or doomed relationship?

Ecology Law Quarterly

Volumn 34, Issue 2, 2007, Pages 713-754

  Menell, Peter S ^a  

^a School of Law ^*  (United States)

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EID: 36349005306     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (273)

1. See generally Douglas T. Kendall & Charles P. Lord, The Takings Project: A Critical Analysis and Assessment of the Progress So Far, 25 B.C. ENVTL. AFF. L. REV. 509 (1998).
2. See Kelo v. City of New London, 545 U.S. 469 (2005).
3. Among the prominent PRM groups that filed briefs in support of Kelo's position were: the Reason Foundation, the Property Rights Foundation of America, Mountain States Legal Foundation, Defenders of Property Rights, Pacific Legal Foundation, Center for Individual Freedom, and the Cato Institute. These groups share a common interest in promoting individual liberties, the right to own and use property, limited government, and the free enterprise system.
4. U.S. CONST. amend. V.
5. See, e.g., Linda Greenhouse, Justices Uphold Taking Property for Development, N.Y. TIMES, June 24, 2005, at A1;
6. Kirstin Downey, Revitalization Projects Hinge on Eminent-Domain Lawsuit, WASH. POST, May 21, 2005, at E1.
7. 126 S. Ct. 2208 (2006). PRM organizations participating in Rapanos v. United States included the Cato Institute, Washington Legal Foundation, and Mountain States Legal Foundation.
8. 545 U.S. 323 (2005). PRM organizations participating in San Remo Hotel v. City & County of San Francisco included Defenders of Property Rights, Pacific Legal Foundation, the Washington Legal Foundation, and Property Rights Foundation of America.
9. 544 U.S. 528 (2005). PRM organizations participating in Lingle v. Chevron U.S.A. included the Cato Institute, the Pacific Legal Foundation, and Defenders of Property Rights.
10. 535 U.S. 302 (2002). PRM organizations participating in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency included Washington Legal Foundation, Defenders of Property Rights, Institute for Justice, and Pacific Legal Foundation.
11. U.S. Patent No. 5,845,265 (filed Dec. 1, 1998).
12. See eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2006).
13. For most of the twentieth century, courts and most commentators considered business methods to be unpatentable. In 1998, the Federal Circuit laid "to rest" what it called the "ill-conceived business method exception." See State Street Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368, 1375 (Fed. Cir. 1998), cert. denied, 525 U.S. 1093 (1999).
14. "Prior art" generally refers to publications, patents, and other sources available before an invention is made that discloses the invention.
15. See U.S. FED. TRADE COMM'N, TO PROMOTE INNOVATION: THE PROPER BALANCE OF COMPETITION AND PATENT LAW AND POLICY ch. 3 (2003) [hereinafter FTC REPORT];
16. Rochelle Cooper Dreyfuss, Are Business Method Patents Bad for Business?, 16 SANTA CLARA COMPUTER & HIGH TECH. L.J. 263 (2000);
17. Michael J. Meurer & Robert P. Merges, As Many as Six Impossible Patents Before Breakfast: Property Rights for Business Concepts and Patent System Reform, 14 BERKELEY TECH. L.J. 577 (1999);
18. Michael J. Meurer, Business Methods and Patent Floods, 8 WASH. U. J.L. & POL'Y 309, 335-36 (2002);
19. Michael J. Meurer, Controlling Opportunistic and Anti-Competitive Intellectual Property Litigation, 44 B.C. L. REV. 509, 541 (2003);
20. cf. John R. Thomas, The Patenting of the Liberal Professions, 40 B.C. L. REV. 1139, 1176 (1999).
21. MercExchange, L.L.C. v. eBay, Inc., 275 F. Supp. 2d 695, 711-15 (E.D. Va. 2003), aff'd in part and rev'd in part, 401 F.3d 1323 (Fed. Cir. 2005), vacated, 126 S. Ct. 1837 (2006).
22. MercExchange, 401 F.3d at 1338-39.
23. See Brief for Various Law & Economics Professors as Amici Curiae in support of Respondent, eBay, 126 S. Ct. 1837 (No. 05-130), 2006 WL 639164 [hereinafter Epstein Brief].
24. Professor Epstein is widely viewed as one, if not the chief, intellectual architect of the movement to use the Takings Clause of the Fifth Amendment to strengthen the rights of private property owners and scale back governmental regulation of property and business. His 1983 book, Takings, Private Property and the Power of Eminent Domain, has been characterized as the blueprint for the PRM. See generally Kendall & Lord, supra note 1, at 510.
25. The other authors of the brief were F. Scott Kieff, a professor of intellectual property law and law and economics at Washington University School of Law, and R. Polk Wagner, a professor specializing in intellectual property law at the University of Pennsylvania Law School. Both have advocated strong protection of intellectual property rights. See, e.g., F. Scott Kieff, Property Rights and Property Rules for Commercializing Inventions, 85 MINN. L. REV. 697 (2001);
26. R. Polk Wagner, Information Wants to Be Free: Intellectual Property and the Mythologies of Control, 103 COLUM. L. REV. 995 (2003).
27. Some other briefs referenced real property law. See, e.g., Brief for American Intellectual Property Law Association and Federal Circuit Bar Association as Amici Curiae in Support of Neither Party at 15, eBay v. MercExchange, 126 S. Ct. 1837 (2006) (No. 05-130), 2006 WL 148639, at *15 (observing that "[r]eal property cases have long considered the balance of the hardships to the property owner and the party accused of trespass, encroachment or nuisance"), but did not take nearly as dogmatic a view as the Epstein Brief on the crucial issue of exclusivity of property rights, id. at 17 (citing Michael A. Carrier, Cabining Intellectual Property Through a Property Paradigm, 54 DUKE L.J. 1, 73-74 (2004) (urging application of equitable limitations on real property enforcement to intellectual property)).
28. See Epstein Brief, supra note 17, at 16-17.
29. See Richard A. Epstein, Keynote Address at the Aspen Summit: The Structural Unity of Real and Intellectual Property (Aug. 21, 2006) (The Progress & Freedom Foundation), available at http://www.pff.org/issues-pubs/ pops/pop13.24RAE_9_26.pdf [hereinafter Epstein, Structural Unity];
30. Richard A. Epstein, Intellectual Property: Top Down and Bottom Up, in CAPITAL FOR OUR TIME 85 (Nicholas Imparato ed. 1998);
31. Richard A. Epstein, Steady the Course: Property Rights in Genetic Material, in PERSPECTIVES ON PROPERTIES OF THE HUMAN GENOME PROJECT 153 (F. Scott Kieff ed., 2003);
32. Richard A. Epstein, Intellectual Property: Old Boundaries and New Frontiers, 76 IND. L.J. 803 (2001);
33. Richard A. Epstein, Liberty Versus Property? Cracks in the Foundations of Copyright Law, 42 SAN DIEGO L. REV. 1 (2005);
34. Richard A. Epstein, Property Rights in cDNA Sequences: A New Resident for the Public Domain, 3 U. Chi. L. Sch. Roundtable 575 (1996);
35. Richard A. Epstein, Respect Bayer's Patent: Cheap Cipro Now Could Cost Us Dearly in the Long Run, WALL ST. J., Oct. 25, 2001.
36. Cf. Steve Lohr, Microsoft and Google Grapple for Supremacy as Stakes Escalate, N.Y. TIMES, May 10, 2006, at C1 (reflecting the ascendancy of digital technology companies in the economy).
37. Among the groups supporting MercExchange were the pharmaceutical industry, the biotechnology industry, and several large broad-based technology companies. Several other intellectual property owners and organizations, principally associated with the information technology sector, weighed in on the side of eBay. See infra text accompanying notes 130-132.
38. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992) ("Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with."); Kelo v. City of New London, 545 U.S. 469, 505 (2005) (Thomas, J., dissenting) ("Long ago, William Blackstone wrote that 'the law of the land . . . postpone[s] even public necessity to the sacred and inviolable rights of private property.'"(modification in original)); id. at 508 ("The most natural reading of the [Takings] Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever.")
39. See Charles Lane, Roberts Listed in Federalist Society '97-98 Directory: Court Nominee Said He Has No Memory of Membership, WASH. POST, July 25, 2005, at A1;
40. David Montgomery, No Secrets Here: Federalist Society Plots In the Open - Conservative Legal Group Focuses on Judiciary to Come, WASH. POST, Nov. 18, 2006, at C1 (noting that Justice Samuel Alito is a longtime Federalist Society member).
41. See Federalist Society, http://www.fed-soc.org/aboutus/. The Federalist Society has an "Environmental Law and Property Rights Practice Group.
42. See Federalist Society Practice Group Leadership Directory, http://www.fed-soc.org/browseby_practice_group.asp.
43. Transcript of Oral Argument at 4, eBay, Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2006) (No. 05-130), available at 2006 U.S. Trans Lexis 29, at *4.
44. See infra text accompanying notes 62-66.
45. See eBay, 126 S. Ct. 1837; see also 35 U.S.C. § 283 (2006) (a court may grant an injunction in a patent case "in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable").
46. eBay, 126 S. Ct. at 1841 (emphasis in original omitted).
47. See id. at 1842.
48. See cases cited infra note 143.
49. This Article employs the classic analytical distinction between property rules (rights enforced through injunctions) and liability rules (rights enforced through court-awarded damage awards). See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).
50. See generally JOHN P. DWYER & PETER S. MENELL, PROPERTY LAW AND POLICY: A COMPARATIVE INSTITUTIONAL PERSPECTIVE (1998).
51. 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 2 (1765); 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 135 (1765), available at http://www.yale.edu/lawweb/ avalon/blackstone/blacksto.htm.
52. See generally Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577 (1988) (exposing the muddiness of many property doctrines); Carrier, supra note 20, at 52-82 (cataloging doctrinal limits on absoluteness of property rights).
53. See SIVA VAIDHYANATHAN, COPYRIGHTS AND COPYWRONGS: THE RISE OF INTELLECTUAL PROPERTY AND HOW IT THREATENS CREATIVITY 11 (2001) (suggesting that the term "intellectual property" is "fairly young");
54. Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 TEX. L. REV. 1031, 1031 (2005) ("Patent and copyright law have been around in the United States since its origin, but only recently has the term 'intellectual property' come into vogue.").
55. Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 S. CAL. L. REV. 993 (2006).
56. British booksellers used property analogies drawn from Locke to support passage of the Statute of Anne. See generally Mark Rose, Copyright and Its Metaphors, 50 UCLA L. REV. 1, 7-8 (2002);
57. Dane S. Ciolino & Erin A. Donelon, Questioning Strict Liability in Copyright, 54 RUTGERS L. REV. 351, 366 (2002). The term "literary property" appears in eighteenth-century statutes and cases. See Hughes, supra note 39, at 1014-42. The U.S. Supreme Court used the phrase "literary property" in International News Service v. Associated Press, 248 U.S. 215, 233 (1918). In fact, the Irish King Diarmed used the tangible property analogy in 567 CE in ruling that a student had infringed his teacher's psalm book: "To every cow her calf, and accordingly to every book its copy."
58. See Laurie Stearns, Comment, Copy Wrong: Plagiarism, Process, Property, and the Law, 80 CAL. L. REV. 513, 535-36 (1992) (observing that the "development of copyright law in England and the United States has built upon this notion that the relationship between authors and their writings is that of owners to their property").
59. Davoll v. Brown, 7 F. Cas. 197, 199 (C.C.D. Mass. 1845) (No. 3662) (emphasis added).
60. See Hughes, supra note 39, at 1006.
61. See S. SHALER, THOUGHTS ON THE NATURE OF INTELLECTUAL PROPERTY AND ITS IMPORTANCE TO THE STATE (Boston, J.R. Osgood & Co. 1878),
62. cited in BRUCE W. BUGBEE, GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW 3-4 (1967).
63. EATON S. DRONE, A TREATISE ON THE LAW OF PROPERTY IN INTELLECTUAL PRODUCTIONS IN GREAT BRITAIN AND THE UNITED STATES 54-67 (Boston, Little Brown 1879).
64. See, e.g., Ruckelshaus v. Monsanto Co, 467 U.S. 986 (1984) (trade secrets); In re World Auxiliary Power Co., 303 F.3d 1120, 1127, 1127 n.33 (9th Cir. 2002) (noting that Article 9 of the Uniform Commercial Code treats copyrights, trademarks, and patents as "general intangibles," "miscellaneous types of contractual rights and other personal property"); Krebs Chrysler-Plymouth, Inc. v. Valley Motors, Inc., 141 F.3d 490, 497-98 (3d Cir. 1998) (observing that "[t]rademarks are property" and that "[t]he ownership of a trade-mark has, in general, been considered as a right of property" under Pennsylvania law).
65. 35 U.S.C. § 261 (2006).
66. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabishiki Co., 535 U.S. 722, 720, 739 (2002) (a patent "is a property right"; patent rights constitute "the legitimate expectations of inventors in their property"); Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 642 (1999) ("Patents . . . have long been considered a species of property.").
67. See 17 U.S.C. § 201(d) (2006) (emphasis added).
68. See DWYER & MENELL, supra note 35.
69. See Frank H. Easterbrook, Intellectual Property Is Still Property, 13 HARV. J.L. & PUB. POL'Y 108 (1990).
70. See ROBERT P. MERGES, PETER S. MENELL & MARK A. LEMLEY, INTELLECTUAL PROPERTY IN THE NEW TECHNOLOGICAL AGE 376-86, 395-420, 498-502, 506-50 (4th ed. 2006) [hereinafter IPNTA].
71. See id. at 214-38, 308-12; 35 U.S.C. §§ 273, 287(c) (2006).
72. See id. at 634-60, 811-12.
73. See id. at 74-79.
74. See DWYER & MENELL, supra note 35, at 318-25.
75. See Ruckelshaus v. Monsanto Co, 467 U.S. 986 (1984) (holding that trade secrets in data relevant for regulatory approval was cognizable as property subject to the protections of the Takings Clause of the Fifth Amendment); Phillip Morris, Inc. v. Reilly, 312 F.3d 24 (1st Cir. 2002) (holding that a state statute that would have required disclosure of trade secrets - constituent ingredients of tobacco products - constituted a regulatory taking).
76. See generally MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 1.11 (Constitutional Limitations on Retroactivity and "Taking"). Although no court has yet addressed whether or how the Fifth Amendment's protections would be applied to retroactive
77. changes in copyright law, Congress chose not to make the Computer Software Rental Amendments Act of 1990 retroactive so as to avoid depriving software owners of vested rights without compensation. See H.R. REP. NO. 101-735 (1990); cf. Laurence H. Tribe, Memorandum of Constitutional Law on Copyright Compensation Issues Raised by the Proposed Reversal of the Ninth Circuit's Betamax Ruling (Dec. 5, 1981), reprinted in A Bill to Amend Title 17 of the United States Code to Exempt the Private Noncommercial Recording of Copyrighted Works on Video Recorders from Copyright Infringement, Hearings on S. 1758 Before the S. Comm. on the Judiciary, 97th Cong., 1st & 2d Sess., 78-154 (Nov. 30, 1981 & Apr. 21, 1982), available at http://lawlibrary.rutgers.edu/cgi-bin/lib/hearing. cgi?file=82603652%20page=0001.
78. See, e.g., Zoltek Corp. v. United States, 442 F.3d 1345 (Fed. Cir. 2006); Da Graffenreid v. United States, 29 Fed. Cl. 384, 386-89 (1998); DAVID A. DANA & THOMAS W. MERRILL, PROPERTY: TAKINGS 233 (2002);
79. Thomas F. Cotter, Do Federal Uses of Intellectual Property Implicate the Fifth Amendment?, 50 FLA. L. REV. 529 (1998).
80. See United States v. Burns, 79 U.S. (12 Wall.) 246 (1870) (holding that the Court of Claims, established in 1855 to adjudicate claims by citizens against the government for breach of contract and property rights, properly had jurisdiction over a claim by a patentee for the government's unauthorized use of his claimed invention); McClurg v. Kingsland, 42 U.S. (1 How.) 202, 206 (1843) (observing that a repeal of a patent statute "can have no effect to impair the right of property then existing in a patentee."); McKeever v. United States, 14 Ct. Cl. 396 (1878); Campbell v. James, 4 F. Cas. 1168, 1172 (C.C.S.D.N.Y. 1879) (No. 2361) (declaring that a patent, "like all other private property recognized by law, is exempt from being taken for public use without just compensation, by the supreme law of the land") rev'd on other grounds, James v. Campbell, 104 U.S. 356 (1881) (declaring patent invalid); cf. Cammeyer v. Newton, 94 U.S. (4 Otto) 225, 226, 234 (1876) (observing that "an invention so secured [under the patent statutes] is property in the holder of the patent, and that as such the right of the holder is as much entitled to protection as any other property," including the Fifth Amendment right against being "taken for public use without just compensation").
81. See Adam Mossoff, Patents as Constitutional Private Property, The Historical Protection of Patents under the Takings Clause, 87 B.U. L. REV. (forthcoming 2007).
82. See James v. Campbell, 104 U.S. at 358; see also Heaton v. Quintard, 11 F. Cas. 1008, 1009 (C.C.S.D.N.Y. 1869) (No. 6311) (commenting that the federal government retained an implied reservation to use a patent). Professor Mossoff notes that these comments were merely dicta and suggests that these doubts reflect oversights of prior decisions rather than intention to overrule such cases. See Mossoff, supra note 60.
83. See Steven J. Eagle, The Development of Property Rights in America and the Property Rights Movement, 1 GEO. J.L. & PUB. POL'Y 77, 80-82 (2002).
84. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT 291 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).
85. Id.; THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776); U.S. CONST. amend. V ("nor shall private property be taken for public use without just compensation").
86. See LOCKE, supra note 63, at 209 ("[E]very man has a property in his own person . . . ."); David Schultz, Political Theory and Legal History: Conflicting Depictions of Property in the American Political Founding, 37 AM. J. LEGAL HIST. 464, 472 (1993) (noting that Locke viewed "property" as "a general political term referring to all the personal and political rights of individuals").
87. See Benjamin Franklin, Queries and Remarks Respecting Alterations in the Constitution of Pennsylvania (1789), in 10 THE WRITINGS OF BENJAMIN FRANKLIN 54, 59 (Albert H. Smyth ed., 1907),
88. cited in William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 825 n.224 (1995).
89. See ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 230 (1990) ("My difficulty is not that Epstein's constitution would repeal much of the New Deal and the modern regulatory-welfare state but rather that these conclusions are not plausibly related to the original understanding of the takings clause.");
90. John A. Humbach, "Taking" the Imperial Judiciary Seriously: Segmenting Property Interests and Judicial Revision of Legislative Judgments, 42 CATH. U. L. REV. 771, 776-77 (1993) (noting the ahistorical quality of interpreting the Takings Clause to reach beyond governmental expropriation to reach regulatory acts); Treanor, supra note 67, at 825 (noting that the earliest state-based takings clauses were narrow, applying only to physical takings).
91. See Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243 (1968).
92. See Harold Demsetz, Toward a Theory of Property Rights, 57 AMER. ECON. REV. PAPERS & PROC. 347 (1967).
93. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW ch. 3 (6th ed. 2003);
94. see also PROPERTY RIGHTS: CONTRACT, CONFLICT, AND LAW (Terry L. Anderson & Fred S. McChesney eds., 2003).
95. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991);
96. Michael Abramowicz, Perfecting Patent Prizes, 56 VAND. L. REV. 115 (2003);
97. Carol M. Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711 (1986);
98. Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. 453 (2002);
99. Brian D. Wright, The Economics of Invention Incentives: Patents, Prizes, and Research Contracts, 73 AM. ECON. REV. 691 (1983).
100. Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315 (1993).
101. See Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287 (1988);
102. Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. 517 (1990). Early American copyright statutes reflected the labor theory of property.
103. See Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 TUL. L. REV. 991, 1000 (1990) (explaining that "copyright lobbyists also invoked, on behalf of authors, the general Lockean principle that a property right arises out of one's labors"). Massachusetts directly invoked the labor theory in the preamble to its copyright statute: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study . . . and as such security is one of the natural rights of all men, there being no property more peculiarly a man's own than that which is procured by the labor of his mind. Id. at 1001 (quoting Mass. Act of Mar. 17, 1783, reprinted in Copyright Off. Bull. No. 3, at 11 (1903)).
104. Locke's proviso - "enough, and as good be left in common for others" - cautions against the view that intellectual property rights should be absolute. See Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1446 n.445 (1989);
105. Jeremy Waldron, From Authors to Copiers: Individual Rights and Social Values in Intellectual Property, 68 CHI.-KENT L. REV. 842 (1993).
106. This theory would at most entitle creators to a property interest in the value they add by applying their labor to things removed from the commons, and not to the total value of the resulting product. See ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 175-82 (1984);
107. Lawrence C. Becker, Deserving to Own Intellectual Property, 68 CHI.-KENT L. REV. 609 (1993).
108. Jeremy Waldron has convincingly argued that the "enough and as good" condition is a sufficient, but not a necessary condition for propertization. See Jeremy Waldron, Enough and as Good Left for Others, 29 PHIL. Q. 319 (1979).
109. U.S. CONST. art. I, § 8, cl. 8 (original capitalization removed).
110. See PETER S. MENELL & SUZANNE SCOTCHMER, INTELLECTUAL PROPERTY LAW, in HANDBOOK OF LAW AND ECONOMICS (A. Mitchell Polinsky & Steven Shavell eds., forthcoming 2007).
111. See id.
112. See IPNTA, supra note 51, at 117-356.
113. See generally WILLIAM NORDHAUS, INVENTION, GROWTH AND WELFARE (1969).
114. See Suzanne Scotchmer, Standing on the Shoulders of Giants: Cumulative Research and the Patent Law, 5 J. ECON. PERSP. 29 (1991).
115. See id.
116. See Edmund W. Kitch, The Nature and Function of the Patent System, 20 J.L. & ECON. 265 (1977).
117. See Michael Katz & Janusz Ordover, R & D Competition and Competition, in BROOKINGS PAPERS ON ECONOMIC ACTIVITY, 137 (Martin N. Baily & Clifford Winston eds., 1989);
118. Suzanne Scotchmer, Patents as an Incentive System, in 2 ECONOMICS IN A CHANGING WORLD: PROCEEDINGS OF THE TENTH WORLD CONGRESS OF THE INTERNATIONAL ECONOMIC ASSOCIATION, MOSCOW (Beth Allen ed., 1996).
119. See Jerry R. Green & Suzanne Scotchmer, On the Division of Profit in Sequential Innovation, 26 RAND J. ECON. 20 (1995).
120. See, e.g., Robert P. Merges & Richard R. Nelson, On the Complex Economics of Patent Scope, 90 COLUM. L. REV. 839 (1990).
121. See Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 TEX. L. REV. 993 (1997).
122. Once products are distributed in the marketplace, competitors can take them apart to determine how they are constructed.
123. See generally SUZANNE SCOTCHMER, INNOVATION AND INCENTIVES (2004);
124. Stephen G. Breyer, The Uneasy Case for Copyright, 84 HARV. L. REV. 281, 294-308 (1970);
125. Peter S. Menell, Tailoring Legal Protection for Computer Software, 39 STAN. L. REV. 1329 (1987).
126. See David D. Friedman, William M. Landes & Richard A. Posner, Some Economics of Trade Secret Law, 5 J. ECON. PERS. 61 (1991).
127. See Kitch, supra note 82.
128. See Merges & Nelson, supra note 85.
129. See WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 11-36 (2003).
130. Id. at 14.
131. See James Bessen & Michael Meurer, Do Patents Work? (unpublished manuscript, available at http://researchoninnovation.org/ dopatentswork/ (last visited Apr. 24, 2007)).
132. See THOMAS F. COTTER & ROGER D. BLAIR, INTELLECTUAL PROPERTY: ECONOMIC AND LEGAL DIMENSIONS OF RIGHTS AND REMEDIES (2005);
133. Robert P. Merges, Compulsory Licensing vs. the Three "Golden Oldies": Property Rights, Contracts, and Markets, CATO POLICY ANALYSIS No. 508 (Jan. 15, 2004), available at http://www.cato.org/pub_display.php?pub_id=1366;
134. Robert P. Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 CAL. L. REV. 1293, 1301 (1996) (concluding that in the context of complex transactions involving many players, a property rule will facilitate the creation of private exchange institutions, such as patent pools, that can evolve in response to changing circumstances and draw upon industry and institutional expertise);
135. Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655, 2664 (1994).
136. See Terrence P. McMahon, Stephen J. Akerley & Jane H. Bu, Who Is a Troll? Not a Simple Answer, 7 SEDONA CONF. J. 159 (2006);
137. Erica Werner, Lawmakers Want to Crack Down on Patent Trolls, ASSOCIATED PRESS, June 8, 2005, available at http://www.signonsandiego.com/news/computing/20050608-1429-congress-patents. html;
138. Larmar Smith, Congressman, Remarks Before the Conference on Patent Reform (June 9, 2005), http://www.lamarsmith.house.gov/News.asp?FormMode= Detail&ID=650;
139. cf. Meurer, Controlling Opportunistic and Anti-Competitive Intellectual Property Litigation, supra note 14.
140. See RICHARD A. EPSTEIN, INTELLECTUAL PROPERTY FOR THE TECHNOLOGICAL AGE (2006).
141. See Epstein, Structural Unity, supra note 22.
142. See ADAM COHEN, THE PERFECT STORE: INSIDE EBAY (2002);
143. DANIEL NISSANOFF, FUTURESHOP: HOW THE NEW AUCTION CULTURE WILL REVOLUTIONIZE THE WAY WE BUY, SELL AND GET THE THINGS WE REALLY WANT (2006).
144. See Rochelle Cooper Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y.U. L. REV. 1, 7 (1989).
145. See Federal Court Improvements Act of 1982, Pub. L. No. 97-164, 96 Stat. 25 (1982).
146. See LANDES & POSNER, supra note 92, at 334-53; ADAM B. JAFFE & JOSH LERNER, INNOVATION AND ITS DISCONTENTS: HOW OUR BROKEN PATENT SYSTEM IS ENDANGERING INNOVATION AND PROGRESS, AND WHAT TO DO ABOUT IT 101-03 (2004) (noting that members of Congress as well as commentators worried that the creation of a specialized patent court could create tunnel vision).
147. See JAFFE & LERNER, supra note 102, at 119-25; John H. Barton, Nonobviousness, 43 IDEA 475, 478 (2003);
148. Glynn S. Lunney, Jr., E-Obviousness, 7 MICH. TELECOMM. & TECH. L. REV 363 (2001).
149. See State Street Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), cert. denied, 525 U.S. 1093 (1999).
150. See JAFFE & LERNER, supra note 102, at 127-50.
151. See Method and System for Placing a Purchase Order Via a Communications Network, U.S. Patent No. 5,960,411 (filed Sept. 28, 1999); Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343 (Fed. Cir. 2001) (finding substantial questions as to the validity of the patent); James Gleick, Patently Absurd, N.Y. TIMES MAG., Mar. 12, 2000, at 44.
152. See Electronic Mail System with RF Communications to Mobile Processors and Method of Operation Thereof, U.S. Patent No. 5,436,960 (filed July 25, 1995); Tim Wu, Weapons of Business Destruction: How a Tiny Little "Patent Troll" Got BlackBerry in a Headlock, SLATE, Feb. 6, 2006, http://www.slate.com/id/2135559/ (describing NTP as a company that has "no . . . assets, no products, and no employees"). Upon reexamination, the PTO determined several of NTP's patents to be invalid.
153. See Stephanie Stoughton, BlackBerry screens won't go dark just yet, USATODAY.com (Feb. 24, 2006) available at http://www.usatoday. com/money/industries/technology/2006-02-24-blackberry-battle_x.htm;
154. Declan McCullagh, Judge to RIM: We're not delaying this any longer, CNET NEWS.COM (Nov. 30, 2005), available at http://news.com.com/2100-1041_3-5976776.html.
155. See Ellen McCarthy, Waiting out a Patent Fight with EBay, WASH. POST, Jan. 6, 2005, at E01;
156. The eBay Patent Wars and Timeline, http://www.auctionbytes.com/cab/pages/ patent.
157. The abstract states: A method and apparatus for creating a computerized market for used and collectible goods by use of a plurality of low cost posting terminals and a market maker computer in a legal framework that establishes a bailee relationship and consignment contract with a purchaser of a good at the market maker computer that allows the purchaser to change the price of the good once the purchaser has purchased the good thereby to allow the purchaser to speculate on the price of collectibles in an electronic market for used goods while assuring the safe and trusted physical possession of a good with a vetted bailee. The first claim states: A system for presenting a data record of a good for sale to a market for goods, said market for goods having an interface to a wide area communication network for presenting and offering goods for sale to a purchaser, a payment clearing means for processing a purchase request from said purchaser, a database means for storing and tracking said data record of said good for sale, a communications means for communicating with said system to accept said data record of said good and a payment means for transferring funds to a user of said system, said system comprising: a digital image means for creating a digital image of a good for sale; a user interface for receiving textual information from a user; a bar code scanner; a bar code printer; a storage device; a communications means for communicating with the market; and a computer locally connected to said digital image means, said user interface, said bar code scanner, said bar code printer, said storage device and said communications means, said computer adapted to receive said digital image of said good for sale from said digital image means, generate a data record of said good for sale, incorporate said digital image of said good for sale into said data record, receive a textual description of said good for sale from said user interface, store said data record on said storage device, transfer said data record to the market for goods via said communications means and receive a tracking number for said good for sale from the market for goods via said communications means, store said tracking number from the market for goods in said data record on said storage device and printing a bar code from said tracking number on said bar code printer.
158. The abstract for U.S. Patent No. 6,085,176 is the same as for U.S. Patent No. 5,845,265. See supra note 109. The first claim in U.S. Patent No. 6,085,176 states: A method of searching a plurality of electronic markets to locate an item, the method comprising: receiving a search request for an item from an internet participant at a first computer; formatting said search request at said first computer into a predetermined format; transmitting said search request, using a software search agent, from said first computer to a plurality of other computers in said predetermined format, at least one of the plurality of other computers performing a search for the item in response to receiving said search request; and receiving at the first computer search results from at least one of the plurality of other computers in response to the transmitted search request.
159. The abstract states: Auctioning an uniquely identified item (e.g., used goods or collectibles) with a computerized electronic database of data records on the Internet includes creating a data record containing a description of an item, generating an identification code to uniquely identify the item, and scheduling an auction for the item at the computerized database of records. The item is presented for auction to an audience of participants through a worldwide web mapping module executing in conjunction with the computerized database. The data record connotes an ownership interest in the item to a seller participant on the computerized electronic database of data records. The worldwide web mapping module translates information from the data record on the computerized database of records to a hypertext markup language (HTML) format for presentation through the Internet. Bids are received on the item from participants on the Internet through an auction process that executes in conjunction with the computerized database of data records. Auctioning of the item is terminated when the auction process reaches predetermined criteria. The auction participant is notified of the high bid in the auction process. The unique identification code is provided to the auction participant with the high bid to uniquely identify the item.
160. See McCarthy, supra note 108.
161. See MercExchange, L.L.C. v. eBay, Inc., 275 F. Supp. 2d 695, 711-15 (E.D. Va. 2003), aff'd in part and rev'd in part, 401 F.3d 1323 (Fed. Cir. 2005), vacated, 126 S. Ct. 1837 (2006).
162. See id. at 722.
163. See id. at 711 (quoting Odetics, Inc. v. Storage Tech. Corp., 14 F. Supp. 2d 785, 794 (E.D. Va.1998) (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)), aff'd 185 F.3d 1259 (Fed. Cir. 1999)).
164. Id. at 712. The court cited to public statements by MercExchange's representatives that it was seeking "reasonable royalties" and was not interested in putting eBay out of business, see Troy Wolverton, Patent Suit Could Sting eBay (Sept. 5, 2002), http://news.com.com/2100- 1017-956638.html (quoting Scott Robinson, Attorney for MercExchange),
165. and that it was interested in selling its intellectual property rights, see Ina Steiner, eBay-Contested MercExchange Patents are on the Block (May 30, 2003), http://www.auctionbytes.com/cab/abn/y03/m05/i30/s01 (quoting Thomas Woolston).
166. See MercExchange, 275 F. Supp. 2d at 712.
167. See id. at 713.
168. Id. at 714.
169. See MercExchange, L.L.C. v. eBay, Inc., 401 F.3d 1323 (Fed. Cir. 2005), vacated, 126 S. Ct. 1837 (2006). The court invalidated the '176 patent for lack of novelty and overturned the grant of summary judgment with regard to the '051 patent.
170. See id. at 1338 (quoting Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1246-47 (Fed. Cir. 1989)).
171. See id. (quoting Rite-Hite Corp. v. Kelley, Inc., 56 F.3d 1538, 1547 (Fed. Cir. 1995)).
172. See id. at 1339.
173. See id.
174. See FTC REPORT, supra note 14.
175. See NAT'L ACADEMIES OF SCI., A PATENT SYSTEM FOR THE 21ST CENTURY (2004) [hereinafter NAS REPORT].
176. See FTC REPORT, supra note 14, ch. 3, at 55-56;
177. NAS REPORT, supra note 126, at 90;
178. see also Dreyfuss, supra note 14; Meurer, Business Methods and Patent Floods, supra note 14;
179. Meurer, Controlling Opportunistic and Anti-Competitive Intellectual Property Litigation, supra note 14.
180. See, e.g., McMahon, Akerley & Bu, supra note 96.
181. See Patent Reform Act of 2005, H.R. 2795, 109th Cong. (2005); Peter Geier, Bill in Congress to Overhaul Patent Law Seeks to Quell Suits - Support Seen to Make U.S. System More Consistent with Others, NAT'L L.J., Aug. 19, 2005, available at http://www.law.com/jsp/article.jsp?id= 1124109330603 (emphasizing that the draft legislation pits pharmaceutical and biotechnology companies against information and software technology firms on the issue of the standard and scope of injunctions).
182. See Patently-O: The Patent Law Blog, Ebay v. MercExchange. The Law of Patent Injunctions (Mar. 14, 2006), http://patentlaw.typepad.com/ patent/2006/03/ebay_v_mercexch.html (collecting briefs).
183. See eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 733 (2005).
184. The briefs are collected and profiled at Patently-O. See Patently-O, supra note 130.
185. The Epstein Brief takes particular aim at the suggestion in the brief filed by fifty-two professors in support of eBay that "traditional principles of equity" invite courts to "consider such factors as adequate remedy at law, the balance of hardships to the parties, and the public interest in deciding whether to grant the injunction." See Brief of 52 Intellectual Property Professors as Amici Curiae in Support of Petitioner at 4. The Epstein Brief shows that the cases relied upon for this proposition "require the suspension of exclusive rights in land in order to deal with some disaster or calamity, or with the exercise of sovereign power." Epstein Brief, supra note 17, at 11.
186. Epstein Brief, supra note 17, at 16-17.
187. See, e.g., Raab v. Casper, 124 Cal. Rptr. 590 (Ct. App. 1975).
188. See eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2006).
189. Id. at 1841 (Roberts, C.J., concurring).
190. Id. at 1842 (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)).
191. See id. at 1843 (Kennedy, J., concurring) (citing FTC REPORT, supra note 14, at 38-39).
192. This seems to be a veiled reference to what has come to be characterized as the problem of "patent trolls." See McMahon, Akerley & Bu, supra note 96.
193. See eBay, 126 S. Ct. at 1842 (Kennedy, J., concurring).
194. See Richard A. Epstein, Court Soft on Property Rights, FIN. TIMES, May 16, 2006. Epstein's reaction may well reflect the fact that his principal exposure to patent law has come in the pharmaceutical area. As reflected in the eBay case, the "troll problem" is rampant in the software field. See McMahon, Akerley & Bu, supra note 96.
195. See IMX, Inc. v. LendingTree, L.L.C., 469 F. Supp. 2d 203 (D. Del. 2007) (due in part to patentee's failure to supplement the record after eBay, motion for permanent injunction "denied without prejudice to renew subsequent to any appeal by the parties relating to issue of infringement, validity, or wilfulness"); Sundance, Inc. v. DeMonte Fabricating Ltd., No. 02-73543, 2007 WL 37742 (E.D. Mich. Jan. 4, 2007); Voda v. Cordis Corp., No. CIV-03-1512-L, 2006 WL 2570614 (W.D. Okla. Sept. 5, 2006); Finisar Corp. v. DirecTV Group, No. 1:05-CV-264, 2006 WL 2709206 (E.D. Tex. Sept. 1, 2006); Paice LLC v. Toyota Motor Corp., No. 2:04-CV-211-DF, 2006 WL 2385139 (E.D. Tex. Aug. 16, 2006); z4 Techs. v. Microsoft Corp., 434 F. Supp. 2d 437 (E.D. Tex. 2006); see also Monsanto Co. v. Scruggs, 459 F.3d 1328 (Fed. Cir. 2006) (trial court's permanent injunction order vacated, and the case remanded, for complete analysis under the eBay test). Injunctions were ordered in the following cases: MPT, Inc. v. Marathon Labels, Inc., No. 1:04-CV-2357, 2007 WL 184747 (N.D. Ohio Jan. 19, 2007); Transocean Offshore Deepwater Drilling, Inc. v. GlobalSantaFe Corp., No. H-03-2910, 2006 WL 3813778 (S.D. Tex. Dec. 27, 2006); Black & Decker Inc. v. Robert Bosch Tool Corp., No. 04-C-7955, 2006 WL 3446144 (N.D. Ill. Nov. 29, 2006); Rosco v. Mirror Lite Co., No. CV-96-5658, 2006 WL 2844400 (E.D.N.Y. Sept. 29, 2006); Smith & Nephew, Inc. v. Synthes (U.S.A.), 466 F.Supp.2d 978 (W.D. Tenn. 2006); 3M Innovative Props. Co. v. Avery Dennison Corp., No. 01-1781, 2006 WL 2735499 (D. Minn. Sept. 25, 2006); Floe Int'l, Inc. v. Newmans' Mfg. Inc., No. 04-5120, 2006 WL 2472112, at *9 (D. Minn. Aug. 23, 2006); Tivo Inc. v. Echostar Commc'ns Corp., 446 F. Supp. 2d 664 (E.D. Tex. 2006); Telequip Corp. v. Change Exchange, No. 5:01-CV-1748, 2006 WL 2385425 (N.D.N.Y. Aug. 15, 2006); Wald v. Mudhopper Oilfield Servs., No. CIV-04-1693-C, 2006 WL 2128851 (W.D. Okla. July 27, 2006). See generally The Fire of Genius, http://www.thefireofgenius.com/injunctions (last visited Apr. 22, 2007).
196. See Epstein, Respect Bayer's Patent: Cheap Cipro Now Could Cost Us Dearly in the Long Run, supra note 22.
197. See JOSEPH STEIN, JERRY BOCK, & SHELDON HARNICK, FIDDLER ON THE ROOF: BASED ON SHOLOM ALEICHEM'S STORIES (2004) (Yenta's role);
198. PHIL MCGRAW (a.k.a. "Dr. Phil"), LOVE SMART: FIND THE ONE YOU WANT - FIX THE ONE YOU GOT (2005).
199. See Kendall & Lord, supra note 1. In a poignant irony, Pfizer, a leading drug company for whom Professor Richard Epstein has worked on intellectual property advocacy, see Richard A. Epstein, What's Good for Pharma is Good for America, BOSTON GLOBE, Dec. 3, 2006 (noting in the biographical footnote that Professor Epstein has "consulted for Pfizer"), was the company for whom Susette Kelo's land was condemned. See Kelo v. City of New London, 545 U.S. 469, 473 (2005).
200. See Ted Agres, US Biomedical Research Funding Doubles, with Help from Industry, THE SCIENTIST, Oct. 10, 2005, at 47, available at http://www.the-scientist.com/article/display/15780/ (reporting that the National Institutes of Health provided 28 percent of total biomedical research funding).
201. See generally Roberta Rosenthal Kwall, Copyright and the Moral Right: Is an American Marriage Possible?, 38 VAND. L. REV. 1 (1985);
202. Roberta Rosenthal Kwall, How Fine Art Fares Post VARA, 1 MARQ. INTELL. PROP. L. Rev. 1 (1997).
203. See 17 U.S.C. § 106A(e)(1) (2006) (barring transfer of moral rights, but allowing waiver); Neil Netanel, Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law, 12 CARDOZO ARTS & ENT. L.J. 1 (1994);
204. Neal Netanel, Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Normative Evaluation, 24 RUTGERS L.J. 347 (1993).
205. See 17 U.S.C. § 106A(a)(3)(B).
206. See Epstein, Structural Unity, supra note 22.
207. U.S. CONST. art. I, § 8, cl. 8.
208. See Hardin, supra note 68; POSNER, supra note 70.
209. See Stewart Sterk, Intellectualizing Property: The Tenuous Connections Between Land and Copyright, 83 WASH. U. L.Q. 417 (2005).
210. See Merges & Nelson, supra note 85.
211. See U.S. CONST. art. I, § 8, cl. 8.
212. See Eldred v. Ashcroft, 537 U.S. 186 (2003).
213. See Robert P. Merges, Intellectual Property Rights and Bargaining Breakdown: The Case of Blocking Patents, 62 TENN. L. REV. 75 (1994).
214. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936).
215. See IPNTA, supra note 51, at 483-84, 500-02.
216. See id. at 803-13.
217. See id. at 74-79.
218. See Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901); Whittemore v. Cutter, 29 F. Cas. 1120 (C.C.D. Mass. 1813) (No. 17,600).
219. See IPNTA, supra note 51, at 308-12, 506-50.
220. See id. at 308-30 (patent misuse), 552 (copyright misuse).
221. See id. at 798-803 (describing doctrines barring assignments in gross and naked licenses).
222. See id. at 1097-190.
223. See Diamond v. Diehr, 450 U.S. 175, 185 (1981) ("This Court has undoubtedly recognized limits to § 101 and every discovery is not embraced within the statutory terms. Excluded from such patent protection are laws of nature, natural phenomena, and abstract ideas."); Parker v. Flook, 437 U.S. 584 (1978); Gottschalk v. Benson, 409 U.S. 63, 67 (1972) ("[p]henomena of nature, though just discovered, mental processes, and abstract intellectual concepts are . . . the basic tools of scientific and technological work"); Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948) (fundamental scientific principles as "part of the storehouse of knowledge" and manifestations of laws of nature as "free to all men and reserved exclusively to none"): Mackay Radio & Tel. Co. v. Radio Corp. of Am., 306 U.S. 86, 94 (1939) ("a scientific truth, or the mathematical expression of it, is not patentable invention"); O'Reilly v. Morse, 56 U.S. (15 How.) 62 (1854); see also Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 483 (1974) ("Since no patent is available for a discovery, however useful, novel, and nonobvious, unless it falls within one of the express categories of patentable subject matter of 35 U.S.C. § 101, the holder of such a discovery would have no reason to apply for a patent whether trade secret protection existed or not.").
224. See Feist Publ'ns Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
225. See Bessen & Meurer, supra note 94.
226. See FREIDRICH A. VON HAYEK, THE FATAL CONCEIT: THE ERRORS OF SOCIALISM 36 (1988);
227. see also ARNOLD PLANT, THE ECONOMIC THEORY CONCERNING PATENTS FOR INVENTIONS 26 (1934).
228. Such scholars interpret Locke as justifying property not on the basis of rewarding labor but instead on the basis of occupancy (or possession) of resources. See N. Stephan Kinsella, Against Intellectual Property, 15 J. LIBERTARIAN STUD. 1, 27-28 (2001).
229. See id.; Roderick T. Long, The Libertarian Case Against Intellectual Property Rights, FORMULATIONS, Autumn 1995, available at http://libertariannation.org/a/f3111.html;
230. Tom G. Palmer, Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects, 13 HARV. J.L. & PUB. POL'Y 818 (1990);
231. Tom G. Palmer, Intellectual Property: A Non-Posnerian Law and Economics Approach, 12 HAMLINE L. REV. 261 (1989);
232. Jesse Walker, Copy Catfight: How Intellectual Property Laws Stifle Popular Culture, REASON, Mar. 2000, available at http://www.reason.com/news/show/27635.html.
233. Palmer, Intellectual Property: A Non-Posnerian Law and Economics Approach, supra note 173, at 264.
234. See JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY (3d ed. 1950).
235. See SAM WILLIAMS, FREE AS IN FREEDOM: RICHARD STALLMAN'S CRUSADE FOR FREE SOFTWARE (2002);
236. Brian W. Carver, Share and Share Alike: Understanding and Enforcing Open Source and Free Software Licenses, 20 BERKELEY TECH. L.J. 443 (2005).
237. See STEVEN WEBER, THE SUCCESS OF OPEN SOURCE (2004).
238. A Declaration of Independence of Cyberspace, http://homes.eff.org/ ~barlow/Declaration-Final.html;
239. see also John Perry Barlow, The Economy of Ideas, WIRED, Mar. 1994, available at http://www.wired.com/wired/ archive/2.03/economy.ideas.html (arguing that the freeing of expression from physical embodiment in the digital age makes intellectual property an untenable threat to the freedom of expression);
240. David R. Johnson & David Post, Law and Borders - The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367 (1996).
241. Such utopian anarchist views of cyberspace are now considered naive. See Julie E. Cohen, Cyberspace as/and Space, 107 COLUM. L. REV. 210, 216-17 (2007) (discussing opposing views).
242. See, e.g., Electronic Frontier Foundation, http://www.eff.org (last visited Apr. 24, 2007) ("Defending Freedom in the Digital World");
243. Freedom to Tinker, http://freedom-to-tinker.com (last visited Apr. 24, 2007) (asserting "freedom to understand, discuss, repair, and modify the technological devices you own");
244. The Technology Liberation Front, http://www.techliberation.com/about-tlf. php (last visited Apr. 24, 2007) (seeking to reverse "over-regulation of the Internet").
245. See Geier, supra note 129 (quoting one observer of the patent reform process as stating that "[a]fter promising beginnings, the strongest provisions, subjected to gamesmanship by big companies - particularly the pharmaceutical industry - have been gutted to render the reform 'much ado about nothing.'"); Andrew Noyes, Lobbying; New Group Challenges Tech Industry Patent Consensus, TECH. DAILY, Feb. 12, 2007;
246. Patti Waldmeir, Reform of Patent Law Seems Probable as Obstacles Clear, FIN. TIMES, Feb. 8, 2007, at World News 9.
247. See Robert P. Merges, A New Dynamism in the Public Domain, 71 U. CHI. L. REV. 183, 186-91 (2004) (describing efforts by the traditional pharmaceutical industry to push genetic sequence information, a core product of biotechnology companies, into the public domain).
248. See Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 SCI. 698 (1998).
249. See Merges, A New Dynamism, supra note 181, at 191-93 (describing efforts by IBM and some other information technology companies to support open source projects as a way of reducing Microsoft's dominant position).
250. See, e.g., Ingrid Marson, Microsoft: Open Source "Not Reliable or Dependable," C|Net News.com, May 22, 2006, http://news.com.com/Microsoft+Open+source+not+reliable+or+dependable/ 2100-7344_3-6074237.html;
251. Glyn Moody, A Brief History of Microsoft FUD, LXer: Linux News, Mar. 30, 2006, available at http://lxer.com/module/newswire/view/57261/ index.html.
252. See Steve Jobs, Thoughts on Music, Feb. 6, 2007, http://www.apple.com/hotnews/thoughtsonmusic/; A lock on the market; To the music industry's chagrin, Steve Jobs wants labels to allow the copying of downloaded songs, Editorial, L.A. TIMES, Feb. 8, 2007, at A20;
253. Mike Musgrove, Jobs's Music Proposal Rebuffed: Piracy Software Not the Problem, Industry Executive Says, WASH. POST, Feb. 9, 2007, at D2.
254. As noted by one observer: "Though Mary Matlin and James Carville are an exception . . . the rule remains that liberals and conservatives probably can't have serious relationships. UPDATE: And if we think it's hard for Republicans and Democrats, just imagine how it is for Libertarians." Alarming News, http://www.alarmingnews.com/archives/003315.html (July 16, 2005, 07:43 PM). At least one online dating service sees a market advantage to political screening of prospective partners. See www.DemocratSingles.com (last visited Apr. 24, 2007) ("THE online dating site designed exclusively for Democrats and those who love them.").
255. See Eagle, supra note 62; Kendall & Lord, supra note 1.
256. Communications and electronics companies have slightly favored Democrats. See Opensecrets.org, http://www.opensecrets.org/industries/indus.asp? ind=B&cycle=2006 (last visited Apr. 24, 2007) (showing that communications and electronics companies have given 56 percent of their political campaign contributions to Democrats since 1990).
257. Computer and Internet companies have contributed to both parties approximately evenly. See Opensecrets.org, http://www.opensecrets.org/ industries/indus.asp?Ind=B12 (last visited Apr. 24, 2007).
258. See Opensecrets.org, http://www.opensecrets.org/industries/indus. asp?cycle=2006&ind=H4300 (last visited Apr. 24, 2007) (showing that pharmaceutical companies have given 72 percent of their political campaign contributions to Republicans since 1990, although the distribution between parties has become more even in recent years).
259. See Opensecrets.org, http://www.opensecrets.org/industries/indus. asp?cycle=2006&ind=B02 (last visited Apr. 24, 2007) (television, movie, and music industries have provided 68 percent of their political contributions to Democrats since 1990).
260. Mike Dorning, Film Industry's screenings in D.C. a ticket to access, CHI. TRIB., July 17, 2006, at CN1;
261. Jim Puzzanghera, Still in the spotlight; After retiring as lobbyist for the major film studios. Jack Valenti continues to live a life of D.C. Royalty, working his connections and attracting attention, Jan. 7, 2007, at C1.
262. See Michael Kinsley, Glickman Rex, WASH. POST, Jul. 11, 2004, at B07 (observing that "some Republicans threatened dire consequences if the MPAA anointed a Democrat");
263. Judy Sarasohn, Playing a GOP Part for Hollywood, WASH. POST, Nov. 4, 2004, at A23 (reporting the MPAA's decision to hire a Republican activist as the MPAA's Executive Vice President of Global Government and quoting Dan Glickman saying "quite frankly, since I am so actively perceived Democrat, I wanted someone who is an actively perceived Republican in the organization").
264. See Green Hollywood, Variety, http://www.variety.com/index.asp? layout=evGreenHollywood (last visited Apr. 24, 2007) (featuring the many connections between Hollywood and the environmental movement).
265. See CHAR MILLER, GIFFORD PINCHOT AND THE MAKING OF MODERN ENVIRONMENTALISM (2001); RODRICK NASH, WILDERNESS AND THE AMERICAN MIND (1967).
266. See Aldo Leopold, The Land Ethic, in A SAND COUNTY ALMANAC (1949).
267. See Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993);
268. Joseph L. Sax, Some Thoughts on the Decline of Private Property, 58 WASH. L. REV. 481 (1983).
269. See Tim Wu, Network Neutrality, Broadband Discrimination, 2 J. TELECOMM. & HIGH TECH. L. 141 (2003);
270. Kai Zhu, Bringing Neutrality to Network Neutrality, 21 BERKELEY TECH. L.J. (forthcoming 2007).
271. See Rose, supra note 71, at 723-25.
272. See BENJAMIN CARDOZO, THE GROWTH OF THE LAW 119-20 (1924).
273. See Berkey v. Third Ave. Ry. Co., 155 N.E. 58, 61 (N.Y. 1926).