This Article will show that focusing on desert arguments for intellectual property raises a disturbing issue that standard philosophical analyses overlook. The issue is this: Suppose, as seems highly likely, that there are multiple, equally powerful lines of argument that are relevant to the justification of a system of private property. Utility or aggregate welfare is one such line; entitlement to the fruits of one’s labor is another; and matters of fairness, liberty and personality are also standardly raised. It would be very convenient if all these lines of argument were congruent, since then we would not have to choose among them to resolve conflicts at the very foundations of property theory. However, close attention to desert-for-intellectual-labor arguments has a disturbing pair of results: these arguments seem especially powerful for intellectual property, but they yield results that seem to be a bad fit with those reached, say, by economic or utilitarian reasoning.
Chicago-Kent Law Review