Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This Article turns the traditional discussion on its head and shows that intellectual property’s putative costs can actually be benefits. It does so by recognizing that not all innovation is good—that there are certain industries that society may prefer to suppress. If intellectual property reduces production and impedes innovation in those industries, then its protection would be a net gain for society. We examine a handful of such industries (tax planning, biotechnology, fashion, and pornography) and demonstrate that keeping (or bringing) them under the intellectual property umbrella may be the best way to stifle them. In short, we describe the circumstances under which intellectual property’s downside is society’s upside.
Christopher A. Cotropia & James Gibson, The Upside of Intellectual Property's Downside, 57 UCLA L. Rev. 921 (2010).