University of Chicago Law Review

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The standard justification for intellectual property is ex ante: the goal of intellectual property is to influence behavior that occurs before the right comes into being. It is the prospect of the intellectual property right that spurs creative incentives. Of late, new justifications for intellectual property protection have begun to appear in the literature and in court decisions. These arguments focus not on the incentive to create new ideas, but on what happens to those ideas after they have been developed. I refer to these new arguments as ex post justifications for intellectual property because they defend intellectual property rights not on the basis of the incentives they give to create new works, but on the basis of the incentives they give to manage or control works that have already been created. I divide ex post justifications into two basic groups: arguments that intellectual property rights give the owner efficient incentives to do further work improving or developing an existing creation, and arguments that intellectual property rights control overuse of information. Neither argument strikes me as particularly persuasive. While the two arguments are somewhat different, both rely on a misleading appeal to a well-established but inapplicable principle, both depend on unproven (or sometimes disproven) empirical claims, and both are in the end strikingly antimarket arguments. In the final analysis, both arguments reflect a fundamental misunderstanding of the economics of private ordering.