Fed Soc on Property vs. Policy

Last November at the Federalist Society's annual lawyer conference its intellectual property practice group held a panel on whether IP should be treated as a property right or regulatory policy. Peter Menell and Richard Epstein have duked it out in Cato and elsewhere over the validity of intellectual property rights, which this panel sort of takes as a given.

The video speaks for itself, though I think Epstein's response to Bell at 46 minutes in says a lot. He justifies any exceptions to the patent and copyright system with social welfare, and is more concerned with free speech restraints on copyright than he is on property rights on patent law, since it's unlikely that a free user of patented technology will use it except as a free rider. I think this treatment of these exceptions is at the core of the property/regulatory distinction: does the rule restrict what you carve out (property right)?

This rests on positive/negative language, which can be a matter of semantics, but I think it can have real consequences in the debate. It's easy to see how, when IP is caked in the language of property rights as opposed to regulatory policy, a strong supporter of property rights may forget that IP rights involve a confiscation of other, more established common law property in the name of economic efficiency. And for conservative policy, which generally wants to strengthen property rights while scaling back the administrative state, semantics do matter.