Commentary: The Social Costs of Rent-seeking by Intellectual Property Owners

• Author: Michael J. Meurer
• Pages: 156-164

156

Commentary: he Social Costs of

Rent-seeking by Intellectual Property

Owners

Michael J. Meurer1

In her interesting paper, Teresa Scassa analyzes some of the meth-

ods that intellectual property (IP) owners have used to expand their

rights “beyond what was originally contemplated” by policy-makers.

She puts these methods in two categories: (i) exploitation of overlap-

ping rights, and (ii) assertion of weak or uncertain rights. I agree with

most of the doctri nal analysis in her paper and I share her concern

about u nwarranted expansion of IP rights. In this comment, I aug-

ment her policy analysis by f‌itting it into a fami liar and more general

framework — the “private-attorney-general framework.”

e private-attorney-general framework applies to situations i n

which a private party is encouraged to bring suit to advance the pub-

lic interest. People often think of IP as a property regime, but it also

makes sense to think of IP as a regulatory regime. In particu lar, IP

laws are regulatory laws designed to encourage the priv ate produc-

tion of information. IP owners are given standing to sue parties who

engage in “unfair competition.” If the IP owner is rational, then these

suits are prof‌itable. If the law is well designed, then these suits are also

socially desirable, and the threat of suit achieves the regulatory object-

 Professor and Michaels Fac ulty Scholar, Boston University School of L aw.