Intellectual Property Wrongs

Abstract

Intellectual property has become a pervasive presence in society. Seeping into every nook and cranny of American life, intellectual property casts a protective haze over everything from the words of an email, to the shape of a phone, to the sequence of our genes. Increasingly, these rights are being used for schemes that have little to do with advancement of societal goals and much to do with societal waste. What should we do when rights that we have created with such lofty goals and noble heart are diverted toward less admirable pursuits, that is, when IP rights become the vehicles for IP wrongs? Currently, intellectual property rights are being used for purposes such as hiding embarrassing or illegal conduct, avoiding obligations, pressuring others into surrendering rights, harassing competitors, and engaging in complex anticompetitive schemes. This occurs because attributes of the system allow intellectual property rights holders to bargain for compensation beyond the value of the right — a process that is damaging innovation, creating dysfunction in markets, and wasting vast amounts of legal resources. This article describes the phenomenon of magnification and chronicles troubling behaviors in copyright, patent and trade secret. Many of these examples have not been described in academic literature and some have not been described anywhere. The article suggests that as the marketplace for ideas develops in uncomfortable ways, we should introduce a doctrine of inappropriate use of intellectual property. The article also suggests that the FTC invoke its rarely used power for economic investigations under Section 6(b).