Adam Mossoff

Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory

The labor theory of value is fundamental to John Locke’s justification for property rights, but philosopher Edwin Hettinger argued in an oft-cited article that it fails to justify intellectual property rights. In making this critique, though, Hettinger redefined Locke’s theory into a theory about proportional physical labor creating economic value, just as Robert Nozick, G.A. Cohen and other philosophers have done. In response to this strawman attack, this article describes Locke’s labor theory of value and how Locke himself applied it to intellectual property rights. It does so by analyzing the actual text of the Second Treatise, including many forgotten or neglected sections, and by integrating Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In its proper context, Locke’s concept of labor refers to production, which is both an intellectual and physical activity. His concept of value refers to what serves the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. Locke’s own text and philosophical arguments answer the absurdities imposed on him by Hettinger, Nozick, Cohen and others. Even more important, understanding his labor theory of value explains why Locke expressly approves of inventions in his property theory and why he explicitly argues that authors have property rights (copyrights) in their writings, which are arguments that are seemingly lost on his modern critics.

How Copyright Drives Innovation: A Case Study of Scholarly Publishing in the Digital World

Today, copyright policy is framed solely in terms of a trade off between the benefits of incentivizing authors to create new works and the losses from restricting access to those works. This is a mistake that has distorted the policy and legal debates concerning the fundamental role of copyright within scholarly publishing, as the incentive-to-create conventional wisdom asserts that copyright is unnecessary for researchers who are motivated for non-pecuniary reasons. As a result, commentators and legal decision-makers dismiss the substantial investments and productive labors of scholarly publishers as irrelevant to copyright policy. Furthermore, widespread misinformation about the allegedly “zero cost” of digital publication exacerbates this policy distortion. This paper fills a gap in the literature by providing the more complete policy, legal and economic context for evaluating scholarly publishing. It details for the first time the

Response to ‘pervasive sequence patents cover the entire human genome’

100s of millions in ex ante investments in infrastructure, skilled labor, and other resources required to create, publish, distribute and maintain scholarly articles on the Internet and in other digital platforms. Based on interviews with representatives from scholarly publishers, it reveals publishers’ extensive and innovative development of digital distribution mechanisms since the advent of the World Wide Web in 1993. Even more important, this paper explains how these investments in private-ordering mechanisms reflect fundamental copyright policy, as copyright secures to both authors and publishers the fruits of their productive labors. In sum, copyright spurs both authors to invest in new works and publishers to invest in innovative, private-ordering mechanisms to distribute these works. Both of these fundamental copyright policies are as important today in our fast-changing digital world as they were in yesteryear’s world in which publishers distributed scholarly articles in dead-tree format.

The Trespass Fallacy in Patent Law

A response toPervasive sequence patents cover the entire human genome by J Rosenfeld and C Mason. Genome Med 2013, 5:27.See related Correspondence by Rosenfeld and Mason, http://genomemedicine.com/content/5/3/27 and related letter by Rosenfeld and Mason, http://genomemedicine.com/content/6/2/15

‘Examining the Supreme Court’s TC Heartland Decision’: Testimony before the House Judiciary Committee, Subcommittee on Courts, IP, and the Internet

The patent system is broken and in dire need of reform; so says the popular press, scholars, lawyers, judges, congresspersons, and even the President. One common complaint is that patents are now failing as property rights because their boundaries are not as clear as the fences that demarcate real estate — patent infringement is neither as determinate nor as efficient as trespass is for land. This Essay explains that this is a fallacious argument, suffering both empirical and logical failings. Empirically, there are no formal studies of trespass litigation rates; thus, complaints about the patent system’s indeterminacy are based solely on an idealized theory of how trespass should function, which economists identify as the “nirvana fallacy.” Furthermore, anecdotal evidence and other studies suggest that boundary disputes between landowners are neither as clear nor as determinate as patent scholars assume them to be. Logically, the comparison of patent boundaries to trespass commits what philosophers call a “category mistake.” It conflates the boundaries of an entire legal right (a patent), not with the boundaries of its conceptual counterpart (real estate), but with a single doctrine (trespass) that secures real estate only in a single dimension (physical fences). As all law students learn in their first-year Property courses, estate boundaries are defined along the dimensions of time, use, and space, as represented in doctrines like future interests, easements, nuisance, and restrictive covenants, among others. The proper conceptual analog for patent boundaries is “estate boundaries,” not fences. In sum, the trespass fallacy is driving widely accepted critiques of today’s patent system that are empirically unverified and conceptually misleading.

Rethinking the Development of Patents: An Intellectual History, 1550-1800

In TC Heartland v. Kraft Foods, the United States Supreme Court construed the venue provision in the patent statute, limiting the filing of lawsuits against defendant corporations to the districts in which they are incorporated. Chief Justice Roberts’ opinion ostensibly frames the issue as one of only statutory interpretation. But we cannot assess TC Heartland’s impact on patent owners and on the innovation economy generally without first understanding the past decade of extensive lobbying and strategic litigation that have narrowed or outright eliminated U.S. patent rights. TC Heartland is part and parcel of this broader campaign to weaken U.S. patent rights. Empirical studies confirm that TC Heartland does not change the concentration of patent lawsuits in a few districts -- the alleged ill that TC Heartland was supposed to end. It merely shifts lawsuits from one district to two other districts that are widely recognized as favorable to defendants sued for patent infringement. Thus, it increases costs for the enforcement of all U.S. patent rights -- harming the patent owners who are the foundation of the innovation economy, such as individual inventors, startups, universities, and small businesses, among others. If Congress considers further revisions to the patent statutes, it should not pursue any legislation that further weakens the patent rights that have been the fountainhead of the U.S. innovation economy for over two hundred years. A decade of court decisions, regulatory actions, and legislation already have undermined the promise of stable and effective property rights once secured by the gold-standard U.S. patent system. Congress should do no further harm to the U.S. patent system, killing the jobs and economic growth created by the innovation economy.