Intellectual Property and Corrective Justice

Abstract

THESE remarks are stimulated by Professor Wendy Gordon's ambitious and extremely interesting article On Owning Information: Intellectual Property and the Restitutionary Impulse.' Professor Gordon identifies some current trends in the law of what she variously refers to as intangible or property.2 In doing so, she emphasizes the expansion of legal protection afforded certain property claims in intellectual resources3 and considers possible motivations for the change in legal attitude, notably the increasing economic importance of intangibles.4 Professor Gordon rightly notes that more protective common law causes of action may be economically counterproductive.5 In her view, legal protection of intangibles has increased in two important ways. The first concerns the domain of protected interests; the second concerns the nature of the protection given the relevant interests.6 Professor Gordon identifies two principles underlying the expansion of both the domain and the nature of intellectual property law. These are: (1) the principle of reap/sow,7 and (2) the principle of unjust enrichment.8 The reap/sow principle itself contains two components. On the one hand, the principle posits that those who have not sown have no right to reap; on the other hand, it claims that those who have sown have a right, therefore, to reap.9 These claims are vastly different. One could advance the view that those who have contributed to the value