That common misunderstanding of IP arises from analogizing it too closely with physical property is something even free software proponents admit. Hence, I looked up a figure who stands well regarded across the commercial and open source policy spectrum: Richard Posner from Chicago Law School and the Court of Appeals for the Seventh Circuit. In Do We Have Too Many Intellectual Property Rights? 9 Marquette Intellectual Property Law Review 173 (2005), Judge Posner states that one error in thinking about IP stems from “moving too quickly from the principles of physical property to those of intellectual property.” 174.

In the article I found important implications for the public domain (distinctive from open source and free software) as well as fair use aspects of copyright law and and various reforms under consideration in patent law, including: a reverse engineering right for patented software and raising the non-obviousness standard as a means of improving patent quality. Overall, this is a good paper, but similar to other academic works, I wish Judge Posner would have distiniquished the kind of private investment needed for frontier-ground breaking innovation compared to the minimal investment needed for smaller scale inventions.

According to Judge Posner, the main differences between intellectual and real property include: scope, with only some subject matter falling under IP doctrines; time limitations in IP, fair use allowing “some appropriation of IP without the permission of the owner.” 175.

The important effect of these three aspects of IP is the public domain: “there is a significant public domain of IP...a significant area of unappropriable property--a mass of valuable ideas and expressions that are available for anybody to borrow, copy, use, freely but not exclusively.” 176. Judge Posner regards IP doctrine reflecting a policy that the law “insists that there should be a large public domain” of IP. 176. His justifications for strengthening the public domain are:

-The “invisibility” of IP can raise transaction costs, thereby preventing “the shifting (of) property into more valuable uses.” 177.
-Greater monopoly potential for IP possibly causing increased transaction costs due to the need for securing licensing rights. 178.
-The public goods aspect of IP: “something that more than one person can use... without reducing the value of the product to... other users.” 178.
-Some innovating activity will occur without IP. 180.

Judge Posner advocates a balance between “increasing the length of the property right or the scope of the property right” and ensuring that IP does not “impair the economic goals that underlie the IP laws.” 184. His proposals are steadier than some drastic policy views. Citing his opposition to the “Mickey Mouse” copyright act, Judge Posner argues for enlarging the “boundaries of the fair use” doctrines as a means of reducing transaction costs in securing rights to protected works. 183. In patent land, Judge Posner supports raising what he deems as lax standards at the USPTO and Federal Circuit, thereby implying that improving patent policy must consider the current players involved.