[11-58] Ibid., 27.

[11-59] Ibid., 30.

[11-60] I do not address the reach of trademark law in this area, but it would only strengthen
the argument I am making. Unlike traditional intellectual property, trademarks are per-
petual, and their effective power has expanded dramatically. This has become especially
significant as the domain name system has had to deal with the conflict between trade-
marks and domain names. This has tempted the World Intellectual Property Association
to build control for trademark interests into the very architecture of the network. See
##23-28, "Executive Summary of the Interim Report of the Second WIPO Internet Do-
main Name Process," available at http://wipo2.wipo.int.

[11-61] The origin of modern economic work here is Kenneth Arrow's "Economic Welfare
and the Allocation of Resources for Invention," in National Bureau Committee for Eco-
nomic Research, _The_Rate_and_Direction_of_Inventive_Activity,_Economic_and_Social_Fac-_
_tors,_ Richard Nelson, ed. (Princeton, N.J.: Princeton University Press, 1962), 609.
Harold Demsetz responded to this by arguing in favor of a stronger property-based
regime. See Harold Demsetz, "Information and Efficiency: Another Viewpoint," _Journal_
_of_Law_&_Economics_ 12 (1969): 1. On the question of optimal protection, see Richard
Gilbert and Carl Shapiro, "Optimal Patent Length and Breadth," _RAND_Journal_of_Eco-_
_nomics_ 21 (1990): 106.

[11-62] For a careful account of the Framers' view of the patent power, see Edward C. Wal-
terscheid, "Patents and the Jeffersonian Mythology," _John_Marshall_Law_Review_ 29
(1995): 269. Professor Pollack makes a persuasive argument that the conception is lim-
ited by Lockean conceptions of the property right. See Malla Pollack, "The Owned Pub-
lic Domain: The Constitutional Right Not to Be Excluded -- or the Supreme Court
Chose the Right Breakfast Cereal in _Kellogg_ v. _National_Biscuit_Co.,_" _Hastings_Commu-_
_nications_&_Entertainment_Law_Journal_ 22 (2000): 265. For an introduction to the ratio-
nale, see Richard A. Posner, _Economic_Analysis_of_Law,_ 4th ed. (Boston: Little, Brown,
1992), 38-41.

[11-63] Steven Shavell and Tanguy van Ypersele, "Rewards Versus Intellectual Property
Rights" (NBER Working Paper No. 6956, February 1999), 27. Shavell and Ypersele sug-
gest a reward system to replace a patent system. A similar proposal has been made by Mi-
chael Kremer, "Patent Buy-Outs: A Mechanism for Encouraging Innovation" (NBER
Working Paper No. 6304, December 1997). Chicago professor Douglas Lichtman has a
related proposal to subsidize access to patented drugs. See Douglas Lichtman, "Pricing
Prozac: Why the Government Should Subsidize the Purchase of Patented Pharmaceu-
ticals," _Harvard_Journal_of_Law_&_Technology_ 11 (1997): 123. For criticism of the reward
alternative, see F. Scott Kieff, "Property Rights and Property Rules for Commercializing
Inventions," _Minnesota_Law_Review_ 85 (2001): 697, 709-721.

[11-64] Though the economic argument about the effect of patents on innovation remain
ambiguous at best. See, e.g., Roberto Mazzoleni and Richard R. Nelson, "Economic
Theories About the Benefits and Costs of Patents," _Journal_of_Economic_Issues_ 32 (De-
cember 1998): 1031.

[11-65] Adam B. Jaffe, "The U.S. Patent System in Transition: Policy Innovation and the
Innovation Process" (NBER Working Paper Series, August 1999), 24-25.

[11-66] Ibid., 26.

[11-67] Ibid.

[11-68] A similar skepticism has been raised about strong property rights where network ex-
ternalities are strong. See Pamela Samuelson et al., "Manifesto Concerning the Legal
Protection of Computer Programs," _Columbia_Law_Review_ 94 (1994): 2308, 2375, citing

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