Document Type

Article

Publication Date

12-1-2019

Abstract

In this brief Essay, I will discuss something of interest to Professor Gordon and others, namely the “if value/then right” principle and its consequences for intellectual property, particularly copyright law. That principle, which the U.S. Copyright Act does not embrace, expresses the intuition that “wherever value is received, a legal duty to pay arises, regardless of whether imposing that legal duty serves public welfare.” The if value/then right principle concerns Professor Gordon because she believes that it expresses socially unproductive hostility to free riding. If a legal obligation to pay arises whenever someone receives a benefit from another, copyright rights (and indeed all IP rights) would be quite broad, extending to all cases of free riding. Professor Gordon has good reason to worry about the consequences of embracing if value/then right. Courts do not directly cite the principle, but they follow it in problematically expansive copyright decisions that consider copying sufficient to establish infringement.

I would like to respond to this concern about if value/then right by making two observations that shed light on the principle’s appeal and its consequences for copyright law. First, I will offer the law and economics “ultimatum game” as a partial explanation for the influence of if value/then right. Second, the persistence of if value/then right does not necessarily mean that the principle leads to broader intellectual property rights. Although if value/then right may justify claims from an upstream creator against any downstream beneficiary, the same principle also generates claims against our hypothetical creator from others upstream from her. Thus, taking if value/then right seriously means that intellectual property law should account for both of these possibilities. Such accounting can limit the scope of intellectual property rights.

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