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Abstract
Justifying Intellectual Property by Robert Merges is reviewed. Intellectual property (IP) sits squarely in the middle of numerous contemporary moral topics, ranging from gene patents to amateur remix culture. At the same time, both the scope and intensity of the IP legal regime have been increasing. It is thus surprising, perhaps, that there is relatively little work comprehensively addressing its normative foundations. This lacuna stems from at least two sources. One is that the de facto basis for IP law is utilitarian, as its authorizing Constitutional text is couched in terms of progress and incentives. Whatever one thinks of utilitarianism as a moral theory, this strategy suffers from indeterminacy: it is actually very difficult to determine to what extent IP provides incentives for creation that outweigh its costs as a regulatory regime, and even harder to determine what level of IP protection is appropriate for what kind of creation. However, just these sorts of determinations are necessary to decide what sorts of IP are justified on utilitarian grounds. The other reason is a sense that, as Fisher (2001) has argued, ones normative theory underdetermines policy: being Lockean or utilitarian makes little doctrinal difference. Merges' new book is an ambitious and innovative attempt to redress both of these reasons.