Property, Intellectual Property, and Free Riding

Intellectual property protection in the United States has always been about generating incentives to create. Thomas Jefferson was of the view that "[i]nventions... cannot, in nature, be a subject of property;" for him, the question was whether the benefit of encouraging innovation was "worth to the public the embarrassment of an exclusive patent."' On this long-standing view, free competition is the norm. Intellectual property rights are an exception to that norm, and they are granted only when-and only to the extent that-they are necessary to encourage invention. The result has historically been intellectual property rights that are limited in time, limited in scope, and granted only to authors and inventors who met certain minimum requirements. On this view, the proper goal of intellectual property law is to give as little protection as possible consistent with encouraging innovation.