Locke for the Masses: Property Rights and the Products of Collective Creativity

Intellectual Property and Networks, the Internet, and Cloud Computing

Article Snapshot


Robert Merges


Hofstra Law Review, 2009


This article asks how the law should protect the value created by users of technology.

Policy Relevance

The law could recognize that software users “own” the value that they create using programs, and assign a representative to the users to handle decisions.

Main Points

  • In a 1995 copyright case, the court decided that a software maker could not copyright the structure of its menu; one judge emphasized that part of the value of menus is the investment that users make in learning to use them.

  • This raises the question of whether the law could give rights to large groups of dispersed creators, such as contributors to Wikipedia, or users who put effort into adapting their work to a standard technology.

  • New technologies have not made intellectual property (IP) obsolete; we still need ground rules to support creativity, and can design hardware and software to support them.

  • Most property and IP rights, including copyright, are designed so that the asset can be managed by one central entity.

  • Managing rights through many dispersed creators might be costly, because it is hard for large groups to make decisions. Identifying a representative for the group helps.

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