In Duke Law Journal

Right now, it seems to me that, in a number of respects, we are at the stage that the American environmental movement was at in the 1950s or 1960s. At that time, there were people-supporters of the park system, hunters, birdwatchers and so on-who cared about what we would now identify as "environmental" issues. In the world of intellectual property we now have start-up software engineers, libraries, appropriationist artists, parodists, biographers, biotech researchers, and others. In the 1950s, there were flurries of outrage over particular environmental crises, such as proposals to build dams in national parks. In later years, the public was shocked by burning rivers and oil spills. In the world of intellectual property, we currently worry about Microsoft's allegedly anti-competitive practices, the uncertain ethics of patenting human genes, and the propriety of using copyright to silence critics of the Church of Scientology. We are notably lacking two things, however. The first is a theoretical framework, a set of analytical tools with which issues should be analyzed. The second is   perception of common interest among apparently disparate groups, a common interest which cuts across traditional oppositions. (Hunter vs. Birdwatcher, for example.)

What kinds of tools am I talking about? Crudely speaking, the environmental movement was deeply influenced by two basic analytical frameworks. The first was ecology, the study of the fragile, complex and unpredictable interconnections between living systems. The second was welfare economics, which revealed the ways in which markets can fail to make economic actors internalize the full costs of their actions. The combination of the two ideas yielded a powerful and disturbing conclusion. Markets would routinely fail to make economic actors internalize their own costs, particularly their own environmental costs. This failure would routinely disrupt or destroy fragile ecological systems, with unpredictable, ugly, dangerous, and possibly irreparable consequences. These two types of analysis pointed to a general interest in environmental protection, and thus helped to build a large constituency that supported governmental efforts to that end. The duck hunter's efforts to preserve wetlands as a species habitat turn out to have wider functions in the prevention of erosion and the maintenance of water quality. The decision to burn coal rather than gas for power generation may impact everything from forests to fisheries.