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Error Costs & Ip Law, Joseph S. Miller
Error Costs & Ip Law, Joseph S. Miller
Scholarly Works
A court in doubt about an ip statute’s scope can err in two ways. It can wrongly narrow the ip right’s reach, or wrongly broaden it. The latter error, however, is worse: A wrongly broadened ip statute effectively creates new property. To correct erroneous broadening, unlike erroneous narrowing, the legislature must thus eliminate a now-established property right. And that is very hard to do. Courts cannot, of course, avoid making at least some mistakes. Courts can, however, prefer the mistakes that are easier, not harder, for the legislature to correct. This essay explores this error-cost-based approach to ip statutes, as …
Reply - Commercialization Without Exchange, Michael J. Burstein
Reply - Commercialization Without Exchange, Michael J. Burstein
Articles
In this brief reply to Prof. Ted Sichelman’s comments on my article Exchanging Information Without Intellectual Property, I argue that justifications for intellectual property that rely on the incentives exclusive rights offer for commercialization are not economically distinguishable from traditional theories based on incentives to invent or create in the first instance. Because innovation is not an event but a process, innovative activities may be subject to misappropriation – and therefore under-production – at multiple points along the supply chain that runs from conception to commercialization. The grant of exclusive rights is an intervention that can be made at any …