This article contributes to a symposium issue on the Philosophical Foundations of Intellectual Property. In a popular Saturday Night Live skit, a famous record producer helps a rock band record a rock anthem by demanding maniacally that the band put more cowbell on the recording. This article reviews Justifying Intellectual Property (2011), by Robert Merges, in a similar spirit.
Justifying Intellectual Property challenges contemporary IP scholarly sensibilities by arguing that IP is better justified on moral, rights-based foundations than on economic or other utilitarian foundations. The book provides an excellent moral defense of property rights in copyright and patent. It provides an excellent account of at least one set of rights-based foundations for IP, i.e. Lockean theory. It also provides an extremely helpful framework for explaining how rights-based foundations get implemented into specific IP doctrines. However, as the record producer could have used a little more cowbell on the rock anthem, so Merges could have used a little more property theory in his account of how IP law implements rights-based foundations in practice. This article illustrates its praises and criticisms using the damages-versus-injunction remedy question considered by the U.S. Supreme Court in eBay v. MercExchange (2006).