THE DISINTEGRATION OF INTELLECTUAL PROPERTY? A CLASSICAL LIBERAL RESPONSE TO A PREMATURE OBITUARY

This Article plays off the title of Thomas Grey's well-known article, The Disintegration of Property, which argued in part that the ceaseless consensual fragmentation and recombination of property rights revealed some inner incoherence of the underlying private property institutions. 1 take the opposite position and treat this supposed disintegration of private property as evidence of its robust nature, not only for land but for all forms of intellectual property. Low transaction costs facilitate the creation of efficient regimes of property rights. I use this framework to critique modern intellectual property rights cases that limit the use of injunctive relief in intellectual property cases, impose limits on the terms of private licenses of intellectual property, and compromise the protection that intellectual property receives against government confiscation. One common theme links these elements together. Once it is recognized that patents and copyrights should be subject to limited terms, it becomes possible to transfer most of the legal principles from the physical to the intellectual realm. Far from being dead, a unified system of property rights for tangible and intangible assets could be brought to health by intelligent legislative and judicial action.