Property, Intellectual Property, and Free Riding
2004 · paper · Law
Argues that treating intellectual property like real property, and aiming to let creators capture the full social value of inventions, is misguided. It says the traditional U.S. view gives only as much protection as needed to encourage innovation, and free riding is not inherently wrong.
Checked: PDF from law.stanford.edu, fetched 5 Oct 2026. Page numbers are those of that PDF.
6 findings
Reference or label Footnote 58 cites Gordon, "Of Harms and Benefits ... , 21 J. LEGAL STUD. 449 (1982)". The year does not fit volume 21.
- p. 15 Footnote 58
21 J. LEGAL STUD. 449 (1982)
- p. 15 fn 58
Of Harms and Benefits: Torts, Restitution, and Intellectual Property, 21 J. LEGAL STUD. 449 (1982).
- p. 22 fn 87 (later cross-reference to note 58)
But cf Gordon, supra note 58,
Only the authors can say what is right here.
Judge's note: Rests on outside knowledge: the article appeared in 1992. The paper's own citations already point that way: J. Legal Stud. vol. 9 is dated 1980, vol. 18 is 1989 (fn 33), vol. 23 is 1994 and vol. 31 is 2002. On that sequence vol. 21 is 1992, not 1982. Image checked.
Second check: another model agreed
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Reference or label Fn 106 cites "Robert A. Heverly, The Information Semicommons, 18 BERKELEY TECH. L.J. 1127 (2004)", but fn 129 cites "19 BERKELEY TECH. L.J. 785, 800 (2004)". By the paper's own pattern, volume 18 would be 2003.
- p. 27 Footnote 106
18 BERKELEY TECH. L.J. 1127 (2004)
- p. 33 Footnote 129
19 BERKELEY TECH. L.J. 785, 800 (2004)
Only the authors can say what is right here.
Judge's note: Rests on outside knowledge: that Berkeley Tech. L.J. publishes one volume a year, so volume 18 is 2003. I checked the crops for fn 106 (p.27) and fn 129 (p.33). The paper's other citations to this journal are vol. 15 (2000) in fn 68 and vol. 16 (2001) in fn 127. With one volume a year, vol. 18 = 2003, so the 2004 date for vol. 18 clashes with the 2004 date for vol. 19. Only the authors or the journal can confirm the correct year.
Second check: another model agreed
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Wording Introduction p.2: "Analogously, I argue that full internalization of positive externalities is not a proper goal of tangible property rights except in unusual circumstances". The context calls for "intellectual property rights".
- p. 2 Introduction, third paragraph
proper goal of tangible property rights except in unusual circumstances
- p. 2 Introduction, second paragraph
Analogously, I argue that full internalization of positive externalities is not a proper goal of tangible property rights except in unusual circumstances
- p. 2 Introduction, final sentence of the paragraph beginning "In this Article, I suggest"
full internalization of positive externalities is not a proper goal of tangible property rights except in unusual circumstances
- p. 2 intro, para 2
is not a proper goal of tangible property rights except in unusual circumstances
Judge's note: Checked crop C001-b. The sentence before makes the real-property point. "Analogously" and reasons (1)-(3) ("no need to fully internalize benefits in intellectual property") are about IP, and so is the next paragraph ("ill-suited to the unique characteristics of intellectual property"). "Tangible" looks like a slip for "intellectual". Context makes the intended meaning clear, so rated as wording.
Second check: another model agreed
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Wording Text on p.14 says owners capture uses of "even their golf handicap system", but the supporting fn 56 describes the "PGA Tour's real-time scoring system".
- p. 14 Main text, first paragraph
and even their golf handicap system.
- p. 14 Footnote 56
upholding proprietary nature of the PGA Tour's real-time scoring system, which collects golf scores as they occur on the course
Judge's note: Checked p.14. Footnote 56 (and fn 51) describe Morris Communications v. PGA Tour as being about real-time scoring information. Neither mentions a handicap system, so the text misdescribes its own cited authority.
Second check: another model agreed
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Wording p.20 says "Real property has two ways of accommodating the need for such fixed-cost investments" but then lists three ("First", "Alternatively", "Finally").
- p. 20 Part II.A, first paragraph
Real property has two ways of accommodating the need for such fixed-cost investments.
Judge's note: Checked p.20. The passage lists three ways, each with its own example: government provision (roads and bridges), a granted right to exclude (toll roads), and private organization in a functioning market (shopping malls).
Second check: another model agreed
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Wording Footnote 82 reads "there is nothing nonrivalrous about copyrighted information—my use of words or phrases simply doesn't use them up"; the argument requires "nothing rivalrous".
- p. 21 Footnote 82
there is nothing nonrivalrous about copyrighted information—my use of words or phrases simply doesn't use them up in any sense
Judge's note: Checked the crop. The clause after the dash, the next sentence (physical copies "are rivalrous"), and the rebuttal of Yoo's "partially nonrivalrous" claim all need "rivalrous". As printed the sentence contradicts itself.
Second check: another model agreed
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9 minor (typos and the like; most checked by the judge only)
Reference or label Footnote 52 cites "H.R. 3261, 108th Cong. (2d Sess. 2003) § 3(a)(3) (2004)", pairing the 2d session with 2003.
- p. 13 Footnote 52
H.R. 3261, 108th Cong. (2d Sess. 2003) § 3(a)(3) (2004)
- p. 41 Footnote 160
97th Cong., 2d Sess. 65 (1982)
Only the authors can say what is right here.
Judge's note: Rests on outside knowledge: the 2d session of the 108th Congress was 2004 and 2003 was the 1st session. The paper's own fn 160 ("97th Cong., 2d Sess. ... (1982)") follows the even-year convention, and the extra "(2004)" adds to the confusion. Only the authors can say which version they meant.
Second check: another model agreed
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Wording The text says Table 2 "shows a significant growth pattern as a percentage of total cases", but the table header reads "(Compared to Common Term)" and fn 30 says the ratio is to the term "wrench".
- p. 9 Text before Table 2
shows a significant growth pattern as a percentage of total cases
- p. 9 Table 2 header and footnote 30
(Compared to Common Term)
Judge's note: Checked p.9. Footnote 30 says the ratio to "wrench" is meant to capture growth in the number of cases generally, so the text's wording is a loose shorthand for that proxy. Read literally, though, the values (e.g. 59.1%) are not percentages of total cases.
Second check: another model agreed
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Wording p.23 says "Figure 2 demonstrates the problem by comparing average fixed costs and marginal costs", but Figure 2 plots MC and ATC curves ("2 ATC (Ind.)", "3 ATC (Info.)").
- p. 23 Text introducing Figure 2
Figure 2 demonstrates the problem by comparing average fixed costs and marginal costs
- p. 24 Figure 2 legend
2 ATC (Ind.)
- p. 23 text introducing Figure 2
comparing average fixed costs and marginal costs
- p. 24 Figure 2 legend
ATC (Ind.)
Judge's note: Checked pp.23-24. The legend shows MC and ATC lines only, and the next sentences of the text call lines 2 and 3 "average total costs". No average-fixed-cost curve is plotted.
Second check: another model agreed
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Wording The benchmark for justified IP is "recover their average total costs" ("fixed and marginal expenses") on p.27, but "cover their average fixed costs" on pp.28, 35 and 38.
- p. 27 Part II.B
necessary to recover their average total costs
- p. 28 Part II.C, opening
cover their average fixed costs
- p. 35 Part II.D
creators to cover their average fixed costs
- p. 38 Part II.D
to cover their average fixed costs
Judge's note: Checked the crops for pp.27 and 28. The author may mean that marginal cost is already recovered through price, but the same threshold is named with two different cost measures and the paper does not reconcile them.
Second check: another model agreed
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Wording The deadweight-loss passage reads "some consumers who are not willing to pay more than it costs to make a copy of a work will be denied access to that work". That describes consumers who would be excluded even at competitive prices, not the deadweight loss.
- p. 29 Part II.C, deadweight loss paragraph
some consumers who are not willing to pay more than it costs to make a copy of a work will be denied access to that work
Only the authors can say what is right here.
Judge's note: Checked on the page-29 crop; the text is as quoted. The paragraph is about the deadweight loss from pricing above marginal cost. That loss falls on consumers willing to pay more than marginal cost but less than the IP price. Consumers unwilling to pay even marginal cost go without at a competitive price too. As literally written the sentence is true, but it does not describe the loss under discussion. Probably 'not' is a slip or a clause is missing. This is a wording problem, and the authors should confirm the intended reading.
Second check: another model agreed
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Typo Footnote 8 reads "Shuhba Ghosh, Deprivatizing Copyright"; footnote 153 spells the same author "Shubha Ghosh".
- p. 5 Footnote 8
Shuhba Ghosh, Deprivatizing Copyright
- p. 38 Footnote 153
Shubha Ghosh, Copyright as Privatization
Judge's note: Both crops checked. The image shows "Shuhba" in fn 8 and "Shubha" in fn 153, so the paper spells the same name two ways.
Second check: none (judge only)
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Typo p.11 reads "chock full of opportunites to free ride"; should be "opportunities".
- p. 11 Main text, last paragraph
opportunites to free ride
Judge's note: The page image shows "opportunites".
Second check: none (judge only)
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Typo Fn 133 reads "expenditures on research in development"; it should read "research and development".
- p. 34 Footnote 133
expenditures on research in development
Judge's note: The page-34 crop of fn 133 shows "expenditures on research in development or changes in productivity". The obvious fix is "research and development", the phrase the article uses elsewhere (e.g. fn 119).
Second check: none (judge only)
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Typo The main text on p.43 reads "support from the National Endowment of the Arts"; the agency's name is the National Endowment for the Arts.
- p. 43 Main text, last paragraph
National Endowment of the Arts
Only the authors can say what is right here.
Judge's note: Rests on outside knowledge: the agency's official name is 'National Endowment for the Arts'. The page-43 crop confirms the printed wording "National Endowment of the Arts". This is a minor name slip and does not change the meaning.
Second check: none (judge only)