IP as MetaphorChapman Law Review
AbstractEverybody hates intellectual property trolls. They are parasites, who abuse intellectual property by forcing innovators to pay an unjust toll. Even worse are intellectual property pirates. They are thieves, who steal intellectual property by using it without the consent of its owner. By contrast, everybody loves innovators. They are farmers, entitled to reap what they have sown and enjoy the fruits of their labor. But trolls, pirates, and farmers are metaphors. A "troll" abuses intellectual property only if its ownership or use of that intellectual property is unjustified, a "pirate" steals intellectual property only if the ownership of that intellectual property is justified, and a "farmer" is entitled to own intellectual property rights only to the extent that they are justified. In Illness as Metaphor, Susan Sontag observed that illness has historically been understood metaphorically as an expression of the personality of the patient. Sontag objected to this metaphorical understanding of disease, because illness is not a metaphor, but a physiological phenomenon. We do not create disease, but are afflicted by it. She argued that we cannot understand illness until we abstain from thinking about it metaphorically. The same is true of intellectual property, because the rhetoric of intellectual property is metaphorical. In theory, intellectual property is justified on welfarist grounds, because it solves market failures in innovation and thereby increases the public surplus. But in practice, the scope of intellectual property rights is unrelated to their ostensible welfarist justification. Intellectual property metaphors prevent us from understanding intellectual property by obscuring the lack of connection between its theoretical justification and its actual scope. Notably, illness metaphors and intellectual property metaphors even have a parallel structure. Much as tuberculosis became a metaphor for expression and cancer became a metaphor for repression, innovators have become a metaphor for expression and pirates and trolls have become metaphors for repression. The problem with intellectual property metaphors is that they obscure the welfarist justification for intellectual property and encourage the creation of intellectual property rights inconsistent with that justification. Illness is a physiological phenomenon, but intellectual property is a political phenomenon. We do not create illness, but we do create intellectual property. As a result, intellectual property metaphors not only obscure the justification for intellectual property, but also induce us to grant intellectual property rights that are incompatible with that justification.
Citation InformationBrian L. Frye, IP as Metaphor, 18 Chap. L. Rev. 735 (2015).