The Genius of Common-Law Intellectual Property

Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common-law intellectual property. In it, we see his attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common-law intellectual property refers to different judge-made causes of action that create forms of exclusive rights and privileges in intangibles, interferences that are then rendered enforceable through private liability. In this essay, I examine Epstein’s writing on two such doctrines, hot-news misappropriation and cybertrespass, which embrace several important ideas to which modern discussions of intellectual property would do well to pay greater attention: the private-law nature of intellectual property claims, the interconnectedness of intellectual property and other basic areas of law, the compatibility of instrumental and noninstrumental considerations, and the valorization of judicial creativity in rule development.