Intellectual Property and the Myth of Nonrivalry

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James Y. Stern*

The concept of rivalry is central to modern accounts of property.  When one person’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary.  It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all.

This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments.  Within that framework, it argues that rivalry should be understood as a function of the extent that any one person’s desires with respect to the disposition of a given resource are incompatible with the desires of others, and it criticizes the assumption that rivalrousness should only concern clashes between two people’s desire to make active use of the same resource.  In a range of contexts, such as land conservation or ideological disagreement, conflicts arise because one person wants to use a resource and another simply wants that person to refrain from doing so.

This Article then applies this understanding to intellectual property.  It shows that although the notion that information goods are nonrivalrous is treated as a statement of self-evident fact, the basic claim depends upon either unsubstantiated, and often improbable, empirical assumptions about individual preferences or, more likely, a substantial element of normative judgment about different motivations to restrict use.  Ideas and information can generate the sort of conflicts property law exists to mediate, and if the law should generally favor rights to use over rights to withhold access, more than a reflexive invocation of nonrivalry is needed to explain why.  The rivalrousness of informational goods is apparent in many contexts ranging from trademarks to privacy to digital assets like cryptocurrency, and the potential for rivalry remains for other objects of intellectual property protection like inventions and expressive works.  In borrowing from the conceptual vocabulary of public goods economics, the literature on intellectual property has tended to mischaracterize and conflate different public goods issues, thereby obscuring the nature of the conditions that might justify or undermine rights in information goods.  This Article concludes by looking at ways these insights bear upon several specific legal problems, such as copyright’s fair-use doctrine, remedies for IP infringement, and the question of whether copying information constitutes a seizure for Fourth Amendment purposes.

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© 2024 James Y. Stern.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, William & Mary Law School.  I am grateful to numerous people for helpful discussions and draft comments including Will Baude, Avi Bell, Oren Bracha, Molly Brady, Lynda Butler, Michael Carroll, Eric Claeys, Bryan Cwik, Hanoch Dagan, John Duffy, Sam Erman, Chris Essert, Lee Fennell, Joe Fishman, Janet Freilich, Brett Frischmann, Andrew Gilden, John Golden, Patrick Goold, Dan Hemel, Laura Heymann, Kenneth Himma, Steve Horowitz, Justin Hughes, Aziz Huq, Keith Hylton, Dmitry Karshtedt, Doug Lichtman, Jake Linford, Glynn Lunney, Irina Manta, Jonathan Masur, Mark McKenna, Adam Moore, Alan Meese, Tom Merrill, Peter Menell, Adam Mossoff, Christina Mulligan, Neil Netanel, Nate Oman, Jeff Pojanowski, Michael Pollock, Sarah Rajec, Sally Brown Richardson, Arthur Ripstein, Zvi Rosen, Jennifer Rothman, Mike Seidman, Chris Sprigman, Lior Strahilevitz, Andrew Verstein, Stephen Yelderman, Christopher Yoo, Benjamin Zipursky, and participants in the American University Law School Faculty Workshop, the annual conference of the Association for Law, Property, and Society, the Center for the Protection of Intellectual Property’s Philosophy and IP Colloquium, the Hofstra Intellectual Property Colloquium, the Intellectual Property Scholars Conference, the North American Workshop in Private Law Theory, the Notre Dame Law School Faculty Workshop, the Property Works-In-Progress Conference, the Tulane Property Roundtable, the UCLA Law School Faculty Workshop, and the University of Chicago Law School Faculty Workshop.