Abstract: Intellectual Property and the Firm Dan L. Burkt Since its articulation by Ronald Coase, the economic theory of the firm has generated an enormous body of literature in corporate law and related fields.' That literature has become increasingly domi- nated by property-based theories of the firm that consider the alloca- tion and disposition of institutional assets. Given this influence and di- rection, it is curious that the theory of the firm has received relatively little attention in intellectual property scholarship. In a so-called in- formation age, where the most important assets of firms increasingly are intangible assets, one might expect that property-based theories of the firm would be readily applied to intellectual property. While the dearth of such analysis might suggest that theories of the firm have little to tell us regarding intellectual property, this sup- position is not only counterintuitive, but belied by scholarship employ- ing these theories in the intellectual property context, which is now beginning to emerge. Some work in this regard has already been done by Robert Merges, considering the law of ownership applicable to in- ventions created by employees.' Although Merges does not explicitly invoke the theory of the firm, his analysis has elements common to such theories. Merges has also explicitly applied the theory of the firm to consider the control of innovators over inputs into their produc- tion.' More recently, David McGowan has considered theories of the firm in relation to the licensing of copyrighted open-source soft- ware. He suggests that the purportedly decentralized open-source programming community operates more as an economic firm than romanticized visions of this community might suggest. 4 McGowan's t Oppenheimer, Wolff & Donnelly Professor of Law, University of Minnesota.The author thanks Brett McDonnell, David McGowan, D. Gordon Smith, and participants in the University of Chicago Intellectual Property Colloquium for helpful comments in the formulation of this Es- say. I See generally Jason Scott Johnston, The Influence of The Nature of the Firm on the The- ory of Corporate Law, 18 J Corp L 213 (1993). Robert P. Merges. The Law and Economics of Employee Inventions, 13 Harv J L & Tech 1 (1999) (arguing that economic theory justifies the legal rule denying employees ownership of innovations developed while on the job). 3 Robert P. Merges. Intellectual Property Rights, Input Markets and the Value of Intangible Assets (draft Feb 9. 1999), online at http:llwww.law.berkeley.edulinstituteslbcltlpubslmergesl iprights.pdf (visited Dec 16, 2003). David McGowan, Legal Implications of Open-Source Software, 2001 U Ill L Rev 241,
Publication Year: 2004
Publication Date: 2004-12-01
Language: en
Type: article
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Cited By Count: 20
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