Document Type
Student Article
Abstract
In this Essay, I consider the “why” and “how” of Professor Snow’s controversial, countercultural, important, and relevant position that immorality may result in the denial of intellectual property protection. First, I highlight how surprising it is that Professor Snow’s argument springs from the theories underlying intellectual property protection, rather than the theories underlying the morality and ethics he believes ought to be considered in determining intellectual property protection. No one (that I know, at least) goes to the Environmental Protection Agency seeking better regulations to protect the environment and uses the labor desert theory of property rights as an argument. I would expect to see arguments against protective regulations to be based on Lockean theories about ownership of the fruit of labor. But, upon reflection, Professor Snow’s argument is not just surprising, it is persuasive. Second, I consider Professor Snow’s proposal for how morality and ethics might be injected into intellectual property enforcement. Professor Snow and I seem to agree that judicial discretion is not the best way to incorporate morality into the determination of what creative works deserve intellectual property protection. But we part ways with respect to his position that it is prudent for judges to consider morality in intellectual property cases based on the Constitution’s Intellectual Property Clause. In the end, I conclude that Congress and the President should enact legislation—or to be more precise amend the patent statute—when necessary to address moral aspects of inventions with clarity and precision.
DOI
10.37419/JPL.V11.I1.7
First Page
191
Last Page
208
Recommended Citation
David O. Taylor,
On Snow’s Intellectual Property and Immorality,
11
Tex. A&M J. Prop. L.
191
(2025).
Available at:
https://doi.org/10.37419/JPL.V11.I1.7