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Transaction Publishers
New Brunswick (U.S.A.) and London (U.K.)
Copyright © 2008 by Transaction Publishers, New Brunswick, New Â�Jersey.
All rights reserved under International and Pan-American Copyright
Conventions. No part of this book may be reproduced or transmitted in any form
or by any means, electronic or mechanical, including photocopy, recording, or
any information storage and retrieval system, without prior permission in writing
from the publisher. All inquiries should be addressed to Transaction Publishers,
Rutgers—The State University of New Jersey, 35 Berrue Circle, Piscataway,
New Jersey 08854-8042. www.transactionpub.com
This book is printed on acid-free paper that meets the American National
Standard for Permanence of Paper for Printed Library Materials.
Library of Congress Catalog Number: 2007037421

ISBN: 978-1-4128-1376-1 (E-Book)
Printed in the United States of America
Library of Congress Cataloging-in-Publication Data
Who owns knowledge? : knowledge and the law / Nico Stehr

and Bernd Weiler, eds.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-7658-0337-5
1. Science and law. 2. Law and economics. 3. Culture and law.
I. Stehr, Nico. II. Weiler, Bernd.
K487.S3W46 2008
340'.11—dc22 2007037421
Contents
Preface vii
Nico Stehr
Introduction: Knowledge and the Law: Can Knowledge be Made Just? 1
Nico Stehr, Christoph Henning and Bernd Weiler
Part 1
The Social Contexts of Knowledge and the Law
Introduction to Part 1 17
Steve Fuller
Warwick University
1. The Law and Economics of Rights in Valuable Information 25
Edmund W. Kitch
University of Virginia, USA
2. Scientific Norms, Legal Facts, and the Politics of Knowledge 67
Alfons Bora
University of Bielefeld, Germany
3. Is a Just System also Fair? Traversing the Domain of Knowledge,
Institutions, Culture, and Ethics 87
Anil K. Gupta
Indian Institute of Management, Vastrapur, India
Part 2
Major Social Institutions, Knowledge and the Law

Steve Fuller
Warwick University
4. Fundamental Ignorance in the Regulation of Reactor Safety and Flooding:
Risks of Knowledge Management in the Risk Society 107
Michael Huber
London School of Economics, UK
5. Science in Whose Interest? States, Firms, the Public, and Scientific
Knowledge 125
Renée E. Marlin-Bennet
American University, Washington, USA
Part 3
The Social Context of Knowledge and the Law: Who Owns Knowledge

J. Rogers Hollingsworth
University of Wisconsin, Madison, USA
6. The Difficult Reception of Rigorous Descriptive Social Science in the Law 169
Christoph Engel
Max-Planck Institute for Research on Collective Goods, Bonn, Germany
7. Inexplicable Law: Legality’s Adventure in Europe 215
Alexander Somek
University of Iowa, USA
8. In Search of the Story 237

Viktor Mayer-Schönberger
Harvard University, Cambridge, MA, USA
9. Does the Category of Justice Apply to Drug Research Based on
Traditional Knowledge? The Case of the Hoodia Cactus and
the Politics of Biopiracy 255
Wolfgang van den Daele
Wissenschaftszentrum Berlin, Germany
10. Profiles and Correlatable Humans 265
Mireille Hildebrandt
Free University Brussels, Belgium
11. Research Ethics as the Latest Moral Panic in the Governance of
Scientific Knowledge 285
Steve Fuller
University of Warwick
12. Concluding Observations 307
Ralf Rogowski
Warwick University, U.K.
Contributors 315
Index 321
Preface
Nico Stehr
The age of industrialization approaches its end. The structures of the traditional
social order are losing their meaning. Its elements, such as work and property,
are being overwritten by a new social order already visible on the horizon. The
bases of this social order rest on knowledge — as much on everyday knowledge
as, increasingly, on scientific knowledge. As the capacity to take action, as
the possibility to “get things rolling,” knowledge is not only constitutive for
economic activities, production and consumption. It is also the basis of any
communication between human beings, and represents the means of organizing
and integrating modern global society. It is meaningful, therefore, to describe
this society as a knowledge society. That is to say, we mold reality by virtue of
our knowledge.
While industrial societies give way to knowledge societies, the institutional
architecture of modern societies, in terms of basic social structure — in the
form of major social institutions, the political system, civic society, the law,
science, the economy and religion, to mention the most formidable institutions
— remains part of the basic structural arrangement of society. But the relations
among major social institutions change. The growing importance of knowl-
edge for social institutions is unevenly distributed among them. Yet all social
institutions have to cope with and respond to the growing societal significance
of knowledge. This is certainly also the case for the legal system.
The major interests of this anthology center on the ways in which the legal
system deals with knowledge: in light of its enhanced significance for oth-
er social institutions, for example, especially the state, civil society and the
economy; but also for science itself as the “author” of much of the additional
knowledge that is the motor of modern social change and social problems.
More concretely, two of the apparently incompatible, and in this context
competing, but fundamental perspectives on the role of knowledge between
the legal and economic systems are: (1) The notion that the most important
basis of new knowledge is available knowledge. But in so far as access to
parts of the existing knowledge base is protected (e.g. through patents, copy-
right, etc.), the growth of knowledge is impeded. (2) If new knowledge is not
vii
viii Who Owns Knowledge
protected, however, it is not profitable to invest in the production of additional

knowledge. The growth of knowledge slackens.
In such a situation it is unavoidable that knowledge becomes reflexive: The
situation demands that the contours of knowledge be set and delimited from
such apparently parallel concepts as information and human capital. Sociology
has already carried out a good deal of the preliminary work in this regard. The
sociology of knowledge has thus dealt with the genesis of knowledge, and un-
derscored in particular the associated significance of the social construction of
reality and the production of ignorance. The sociology of risk has been able to
work out that the expansion of knowledge, and thus of the possibilities of tak-
ing action in modern society, entails new and barely assessable uncertainties
on a daily basis. And broad sectors of the sociology of science proceed from
the premise that even scientific knowledge can provide no truths (in the sense
of strictly provable causal chains or universal laws), but only more or less well-
founded hypotheses and probabilities.
These developments have not failed to leave their mark on the legal system
in modern society. This anthology examines the extent to which the transfor-
mation of modern society into a knowledge society is accompanied by a re-
structuring of its legal system. In this connection, changes in the regulation of
legal ownership above all will be investigated: Thus, under the present condi-
tions, classical property ownership by no means still enjoys the exclusivity that
it possessed in the golden age of industrialization. Rather, rights of ownership
have for quite some time also been extended to knowledge, as for instance in
matters of patent, copyright or trademark law; or, formulated more generally,
in intellectual property law. These circumstances prompt a question to which
legal economists must provide an answer: What significance does the distinc-
tion between public and private goods, as once conceptualized by Adam Smith,
retain for the law in a knowledge society (knowledge as a public good)?
Hand in hand with the restructuring of the regulation of legal ownership,
technical security law has developed its own mechanisms to defend against
potential dangers posed by new technologies: After nuclear technology, it is
above all disasters in the chemical industry (Bhopal, Seveso) as well as recent
discoveries in the biosciences (such as the decoding of the human genome) that
have become the focus of legal attention. In this connection, the concepts of
danger, risk, and residual risk, as well as hypothetical causal processes, serve
as the basis of discussion. Since corresponding causal constructions can also
be found in criminal and in civil law, the question of their compatibility with
scientific parallel constructions should be raised and answered.
Further, on this basis the role of scientific and technical experts in the law
in modern society should be evaluated. Does this law produce new self-regula-
ting forms by taking over scientifically compatible hypotheses and probabili-
Preface ix
ties, and does this really demand, as is claimed, alternatives to state-centered

constitutional theory?
Answering these questions requires the cooperation of acknowledged ex-
perts not only from the fields of the legal and social sciences, but also from
the technological sciences. The anthology therefore pursues a decidedly in-
terdisciplinary approach. Its opening questions, regarding the power we have
over knowledge and regarding the justiciability of scientific knowledge, have
thus consciously been ambitiously framed. Nevertheless, in the current situa-
tion this anthology can provide, and seeks to provide, only an initial impetus
to open up hitherto largely uncultivated areas of legal and social science re-
search in the still young field of knowledge policy. Beyond this, however, lies
the hope of joining these areas in a process of further development under one
roof, in order to make the concept of knowledge the main pillar of a theory of
modern society. A society that sees itself as a knowledge society is in urgent
need of such a theory.
This anthology originated in an international conference organized by Nico
Stehr and Martin Schulte (University of Dresden, Germany) at the Center for
Advanced Study in the Humanities (Kulturwissenschaftliches Institut) in Es-
sen, Germany (April 21–23, 2005). We are grateful to the Essen Center for its
continuing support. Once again, Doris Almenara’s exceptional organizational
talents were instrumental in making this conference in Essen a great success.
The conference was supported by a generous grant from the Alcatel Founda-
tion, Stuttgart, Germany. Special thanks have to go to Steve Fuller and J. Rog-
ers Hollingsworth, who have not only been generous in their editorial advice,
but who have by now contributed immensely to the coherence and quality of
a number of these anthologies with their introductions to the different sections
of each book. The constructive comments on the preface and the introduction
by Paul M. Malone and Volker Meja are also acknowledged. Laura Botsford
assisted greatly in seeing the volume to print.
I dedicate this volume to the memory of our friend and colleague Bernd
Weiler who suddenly died while jogging at the age of 35 in Friedrichshafen,
Germany on March 31, 2006. Bernd Weiler, who had joined the Karl Mannheim
Chair for Cultural Studies at the young Zeppelin Universiy only two years ago,
was without doubt one of the already very accomplished social scientists who
had many exciting projects on his mind and on our joint agenda. We will miss
him greatly.
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Introduction
Knowledge and the Law:
Can Knowledge be Made Just?
Nico Stehr, Christoph Henning and Bernd Weiler
The empires of the future are the empires of the

mind.
Winston Churchill (cited in Allee, 1997:91)
If we are to believe Winston Churchill’s vision of the nature of future empires

and the bases of their influence and power, and if future societies will bear
a resemblance to modern societies with their extensive social differentiation
among major institutions, then it will not be too difficult to anticipate that the
legal system will not only continue to be called upon to “adjudicate” in matters
of creative minds, but will also have to do so to an increasing degree. The link-
ages between the legal system and knowledge — mediated by other social in-
stitutions in modern societies, in particular the economic system — are bound
to multiply. It is the awareness of these emerging linkages between knowledge
and the law that we intend to briefly address in the introduction to our anthol-
ogy.
Some may well consider it to be a paradox that modern society increasingly
relies on knowledge, yet it is on the verge of investing much of its resources
in the control of knowledge (cf. Lessig, 2005a; Moore, 2004). Other observ-
ers may see developments directed toward the legal governance of knowledge
simply as an extension, and perhaps an enlargement, of the growth of modes of
governance that in this case take the form of regulative legal codes, challenges
and judgements that have generally accompanied the evolution of modern soci-
ety and, in this case, the transformation of knowledge into a productive force.
Indeed, in the course of the development of industrial society, liberal democ-
racies have increasingly institutionalized legal norms that governed the status
of labor and property, and that limited and determined ever more precisely the
ways in which both productive factors could be employed by their owners.
For example, the liberty of individual economic actors to enhance their
power on the basis of their individual or collective ownership of the means of
1
2 Who Owns Knowledge?
production, or their labor power, is extensively curtailed through many state

regulations and self-administered controls. The ability of the owner of the
means of production is “spontaneously” constrained not only by market forces,
but also by policies of the state, norms of the legal system and organizations
situated in the vicinity of these productive forces. The social control of owner-
ship is not necessarily neutral, because the legal restrictions on ownership do
not merely refer to constraints; in the eyes of the non-owners they also involve
limitations on the privileges associated with property. The uneven access to
the policy-making process of legal norms pertaining to property and labor, and
therefore any form of stratification of the ways of influencing this process, rests
on the unequal distribution of the means of production in industrial society.
The elaborate legal apparatus surrounding property and labor only symbolizes
and reflects the unique societal importance of the particular means of produc-
tion in industrial societies. But what are we to expect when knowledge itself
turns into both a new sort of capital — intellectual capital, but also the so-
called “human capital” — and a new way of working — “knowledge-work,”
or even, as some may say, as a new and independent factor of production? Will
access to knowledge also be regulated by law (cf. Rifkin, 2001:56–72)?
The experiences of industrial societies allow for the prognosis that policy
making, legal norm setting and legal disputes in knowledge societies will turn
more and more toward the regulation and control of new knowledge, and, in-
directly, the fabrication of knowledge. We stress the control of knowledge by
means of legal norms (as, for example, the patent statute; cf. Burk and Lemley,
2003), and not only through informal sanctions or self-regulatory measures
that are already typical for the everyday system of social control of the science
system and its societal regulation.
Organized opposition to political measures to control and restrict both
the use of knowledge and the autonomy of science (see, for example, Klein,
2001:81–89; Bollier, 2002) will be as formidable as the opposition to legal
restrictions on the unencumbered use of property in the past, or to laws that
aimed to regulate the disposition of labor by the owners of the means of pro-
duction. But who is to arrive at decisions that affect the use of knowledge in
society, and how? Knowledge politics and knowledge disputes are not a matter
of ethics or best left to ethics committees only; rather, they refer to the ways in
which collective issues are decided, and how these decisions are managed and
implemented in democratic societies.
Creative Activities and the Legal System
In a recent decision (June 27, 2005), the US Supreme Court ruled in favor
of some major film and music companies. This means that Internet platforms
Introduction: Knowledge and the Law 3
such as Morpheus and Grokster, which offer tools that could be used to distrib-
ute music and films for free, are endangered1; or, put differently, that the law
protects the music industry from losses through piracy. But how and why did
the results of creative activities come into the purview of the legal system in
the first place? And how, for example, did creators, imitators and consumers of
“knowledge” respond then and now to the establishment and the enforcement
of property rights attached to their creations?
In the 1980s, the video player was allowed onto the market even though it
enabled users to produce copies of video films. Two decades later, major com-
panies seem to have a much higher impact on our conceptions of justice, or at
least to have such an influence on the legal system. In a current Supreme Court
case (Laboratory Corp. vs. Metabolite), a diagnostic blood test is claimed as
“property” by two different parties — companies who claim royalties due to
different patents (Andrews, 2006:B20; Kintisch, 2006:946ff.). What is at stake
here? As most theories mainly focus on the inventor (“incentives”) and the
consumer (the “public good”), it is important to distinguish the relevant stake-
holders more carefully. There are not only these two, but at least four different
parties involved.2
First, there is the artist or inventor as the initial producer of creative content.
Second, there is the industry that promotes the artist and profits from sales of
records and movies. Sometimes there are intermediary traders between them,
buying and selling patents or copyrights, which makes the issue even more
complicated. Third, we have the users who buy and consume these products.
And finally, we have associations of users who share these products amongst
themselves. It is important to see that in the case in question it was the second
party against the fourth, not — as standard economic theory often portrays it
— the first against the third party. Businesses want to “force” users to buy cop-
ies from them, and not to exchange copies amongst themselves. The question
is whether they have a right to do so, and on what grounds. In other words:
How can knowledge become a property that is protected by law? And what are
the varying interests of the different actors involved?
In some cases, as in the case of the rock band “Metallica” against the plat-
form “Napster,” it is the artists themselves suing the Internet platforms. This
touches the very notion of property: usually an owner can use his property in
whatever way he likes. But in this case, there are different dimensions of prop-
1 As a documentation of this case, see the blog www.scotusblog.com/movabletype/

archives/2005/06/grokster_stream.html, as well as the “Brief Amici Curiae of
Computer Science Professors Harold Abelson et al. suggesting affirmance of the
judgement,” online at http://www.eff.org /IP/P2P/MGM_v_Grokster/ 20050301_
cs_profs.pdf
2 For a broader stakeholder approach, see Andersen and Konzelmann (2005).
erty: on the one hand the material property of the product, the single product,
on the other hand the intellectual property, or the prototype, which usually
belongs to the industry or to the artist.
The reasons for conflicts like these are manifold. Some of them have to
be looked for in the technological changes of the last decades. Usually, mate-
rial property means that if somebody owns something, nobody else can physi-
cally use the same thing at the same time. Therefore every second user has to
buy another copy of the good in question — its use is exclusive. In terms of
many knowledge-based products, this social relation between consumers has
changed. It is technically possible to move the frontiers: goods such as music
or films are becoming intangibles. Their use is no longer exclusive if you can
reproduce them on your computer and distribute them through the Internet. Of
course this conflicts with the interests of the industries that had formerly mo-
nopolized the distribution of these products, both technically and legally. Now
that the technical matters have changed, it is a contested area whether the law
should try and suppress these possibilities to the benefit of the companies and
artists (which is what has happened in most cases so far); or whether it should
allow for this non-market distribution to the benefit of customers. In any case,
these conflicting interests, which are induced by knowledge, call for a new
legal framework.
We find a similar situation in the scientific community. Usually supported
by state funds, researchers did not have to focus on the business side of sci-
ence, which was even considered to be against the ethic of science, for example
in Robert Merton’s well-known norms of science. A “capitalization of knowl-
edge” was called for only when universities and researches had to organize
their own funding, due to the privatization of the system of education.3 Now
that scientists depend more and more on private funding, they have a greater
incentive to “sell” and “market” their products (which clearly was the motive
for Korean Woo-Suk Hwang to publish his faked stem-cell research in Science
and Nature; Wade, 2006).4
There is a complicated relation between science, economic progress, and
the law. Early on, the American Constitution granted a limited protection of
intellectual property:
Congress shall have power . . . to promote the progress of science and useful arts,
by securing for limited times to authors and inventors the exclusive right to their
respective writings and discoveries. (Constitution of the United States of America,
Article 1, Section 8; see www.constitution.org/constit_.htm)
3 For this notion, see Etkowitz and Webster (1995:480–505).

4 For the commercialization of science, see The Economist, October 22, 2005: “A
Market for Ideas. A Survey of Patents and Technology,” also online at www.econo-
mist.com/surveys.
The main argument is the economic incentive for inventors to invent, for cre-
ators to be creative, and for scientists to do research (cf. Scotchmer, 2004). This
is an argument concerning the action tendencies of individuals; yet the assump-
tion of a “homo economicus” is currently contested even in economics itself.
For this reason some — as, for example, the open-source movement (Weber,
2004) — call the incentive theory of patents into question, arguing that creativ-
ity is an end in itself and not an economic means. Given that artists and scien-
tists are publicly funded, they would hardly bother to “capitalize” their knowl-
edge — yet exactly this is what is not given in the real world any longer.
Moreover, the steady growth of the economy — and related to this, of the
public welfare in general — depends on constant innovation. This is a macro-
argument, not about individual behavior, but rather about the behavior of com-
plex social systems. Often it is simply assumed that patents are the best way to
spread new productive technologies (which can to a certain extent simply be
called “knowledge”) across the industries. Though this is a reasonable assump-
tion, it remains an empirical question, and recent research shows that the “leak-
ing” of science through patents is actually slower than the standard distribution
of knowledge via the scientific institutions: “the priority publication system in
science appears to distribute information more rapidly than the patent system”
(Adams, Clemmons, and Stephan, 2006). Some have even argued that — due
to corporate strategic behavior, legal bureaucratization and other reasons — at
this very moment, the US Patent System is even “endangering Innovation”
(Jaffe and Lerner, 2004).
The Social Control of Knowledge
In all modern societies, we now find elaborate drug regulations and correspond-
ing agencies that register, test, control, or permit pharmaceutical substances to
enter the market as legalized drugs. Until a few decades ago, decisions about
the production and marketing of chemicals as drugs were made by corpora-
tions, by individual pharmacists or by physicians (Henk, Henk, and de Vries,
1987:243–259).5 As scientific knowledge is “applied,” it becomes embedded in
social contexts external to science. As a part of such embeddedness, knowledge
is subject to the kinds of (latent) control mechanisms and social constraints
found in and constitutive for these contexts. It simply cannot escape the selec-
tivity that issues from such external contexts, even if only in efforts designed to
generate trust toward a certain artifact or solution offered by novel knowledge.
The whole area of national and international intellectual property and copy-
right protection is another arena in which legislation to control the deploy-
5 A discussion and analysis of the grants economy may be found in Boulding
(1981).
ment of scientific and technical knowledge is already extensive. In many ways,

such controls date back at least to the 1883 Paris Convention for patents and
related industrial matters, and to the 1886 Berne Convention for copyrights.
The acceleration in the speed with which inventions reach the market, their
shortened economic life-span and the extent to which recent inventions raise
apprehensions in society — for example in the field of microelectronics, the
organization of production, medical treatments and biotechnology — make it
rather difficult to protect such inventions from copying efforts. Nonetheless,
such experience will increase pressures to enact further protective legislation
(Vaitsos, 1989:157–189). One way to do this is to extend patents’ scope to fu-
ture discoveries in the same field. But here again the problem is that this may
discourage, rather than stimulate, research. A recent example that is often men-
tioned in the literature is the semi-conductor industry. One firm tried to control
a whole industry for memory chips on the grounds of a patent that at the time
was already 15 years old (cf. Teece, 2000; Jaffe and Lerner, 2004).
In social theory, the institutions generating knowledge and the institutions
contemplating and executing political action were once regarded as entirely
unrelated domains. At the beginning of the 20th century, the dilemma of the
indispensable separation of science and politics found perhaps its most influen-
tial expression in Max Weber’s essays on science and politics “as a vocation”
(Weber, [1921] 1948:77–128; [1922] 1948:129–156). Today, the intellectual
foundations that allowed Weber to legitimize the fundamental division between
the practices of knowledge and politics have fallen into disrepute. Confidence
in the impartiality, instrumentality, and political neutrality of science has been
thoroughly eroded. Reference to the politics of knowledge therefore no lon-
ger constitutes a violation of the norms of scientific action and the essentially
means-like attributes of scientific knowledge. Science is deeply implicated in
social action, and political agendas hold sway over science. It appears that
the difference between science and political debate and policy processes has
become redundant.
In as much as knowledge becomes the constitutive principle of modern so-
ciety, the production, distribution and especially the application of knowledge
can avoid political struggles and conflicts less than ever. The distribution and
implementation (and with it the fabrication) of knowledge increasingly become
domains of explicit legislation and targets of political and economic decisions.
Such a development is inevitable, because “as the institutions of knowledge
lay claim to public resources, some public claim on these institutions” (Bell,
1968:145–246) and their results are unavoidable. Even more significant is that,
as the importance of knowledge as a central societal resource increases, its
social, economic, and political consequences for social relations grow rapidly,
together with demands to regulate and adjudicate the specific utilization of and
access to knowledge.
The dissemination and application of knowledge do not occur in the imagi-
nary world of perfect, unimpeded competition and equality of opportunities.
As a result, a politics of knowledge must confront the consequences of the
social distribution of knowledge, especially the stratified access to and utiliza-
tion of knowledge.6 It remains an open question, for example, to what extent
dispossession of knowledge generates social conflicts, and in what specific
ways such struggles manifest themselves. Several decades ago, Daniel Bell
(1964:49) warned that right-wing extremism may “benefit” from any exclusion
of social groups from access to and acquisition of technical expertise.
However, such predictions of the intellectual, social, and economic gaps
sustained by knowledge overestimate the extent to which knowledge and its
use can in fact be controlled. It will be increasingly difficult to control knowl-
edge, in spite of the many efforts that will undoubtedly be made. Efforts to
control knowledge encounter contradictions. Sustaining economic growth, for
example, requires an expansion of knowledge. And knowledge that expands
rapidly is difficult to control. The expansion of knowledge enlarges the seg-
ment of knowledge-based occupations. Knowledge expansion and knowledge
dissemination rely on conditions that are themselves inimical to control. None-
theless, as we have observed, the typically expressed fear that an inevitable
outcome of such developments is the greater ease with which knowledge (and
information) can be monopolized and effectively employed for repressive
(even totalitarian) purposes, or even as a tool of maintaining the benign status
quo, had been a widely accepted premise of discussion of the social control
of knowledge, even before Orwell’s classic book on the subject. What exactly
nourishes this point of view? What is the basis for the widespread conviction
that knowledge and technical artifacts are relatively easy to control, and that
access to knowledge can be easily denied (Weingart and Pansegrau, 1999)?
The Economic System and the Law
Modern economies are mainly based on the market system, as opposed to other
forms of allocation like planning, gift exchange, or grants.7 But a market is nei-
ther a purely self-organizing entity, as it is often argued in mainstream textbook
economics, nor is it a universal structure that is simply given as such. There is a
broad variety of concrete markets. First, there are different markets according
to the goods traded and the services exchanged: the financial market operates
6 For a more complex approach, see Kitch (2000:1727–1741).
7 For the history of the market system, see Karl Polanyi (1944); Marcel Mauss
([1950] 1990); Belshaw (1965).
differently from the market for raw materials, the market for industrial goods,
the one for services or — last but not least — the labor market. Secondly, as the
property-rights approach stresses, every market depends on a legal framework.
Different countries or supranational institutions may very well “choose” quite
different institutional frames, and this is bound to have a significant impact on
the nature of markets.8
In the recent past, another market form has acquired greater and greater
economic significance; namely, the market for knowledge-based products
and services, often referred to as the foundation and the evolution of the
“knowledge economy” (see, for example, Stehr, 2002). Though more a grad-
ual leap than a qualitative inception, knowledge-based means of production,
knowledge-related products such as computer programs, new productive
technologies like nano- and biotechnology, pharmaceutical products — but
also films, CDs, and knowledge contingent services — continue to gain ever
higher market shares. The social sciences are challenged to ask how the exist-
ing legal frames adapt to these evolving markets, and how the legal system
might cope in the future in order to inject a measure of fairness and equity
into the distribution of knowledge, as well as into products and services em-
bedded in knowledge.
These questions are difficult ones. Some of the unique and salient attributes
of knowledge-based products and services are different from other commodi-
ties exchanged in the marketplace: “knowledge-based products are intangible,
non-excludable and non-rivalrous goods” (Cowan and Harrison, 2001; Cornes
and Sandler, 1986; Romer, 1993:345–399). Once dispatched to the market,
knowledge, it is argued, does not need to be acquired again and again; it is
freely available to everyone. It becomes a “public good.” The use by one agent
does not preclude its use by another agent (non-excludability), and there is no
competition when it comes to its use; or it is difficult, if not impossible, for the
creator of the claim, for example, to preclude others from using it (rivalry).
That is, if A sells such information/knowledge to B, it is unlikely that B will
enjoy the exclusive use of the information purchased. It is also unlikely that A
and B will compete for access to the general stock of knowledge.
In addition, the material base in which information is inscribed, and which
thus restricts in some way the non-rivalrous or non-excludable nature of
knowledge, may affect these relations and transactions involving knowledge/
information. For economists, these attributes of knowledge/information make
it a prototypical example of a public good. The inability to appropriate or com-
mand all the returns on knowledge is presumably a general disincentive to
8 For a public choice approach, see James Buchanan (1968). For the sensitivity of
markets to non-economic motives, see Nico Stehr, Christoph Henning, and Bernd
Weiler (2005). Also, Hernando de Soto (2000).
the private sector, and therefore to the private fabrication as well as supply
of knowledge. Given these special characteristics of knowledge, the World
Bank concludes that “public action is sometimes required to provide the right
incentive for its creation and dissemination by the private sector, as well as to
directly create and disseminate knowledge when the market fails to provide
enough” (World Bank, 1999:17).
Yet exactly this causes a dilemma: Because capitalistic markets are not
need-driven, but rather profit-oriented, this raises the question of how prof-
its can be made in the case of non-excludable and non-rivalrous goods and
services. Prima facie there are two possibilities. Either the initial price of a
knowledge product has to be so high that the first sold product covers not only
the investments into research and development as well as the production costs,
but also a “decent” profit — and in a way, this is what patent law does. But the
economic disadvantage in this case is that demand and supply may not match:
who is willing to pay such a high price, especially when everybody knows that
the second (third, etc.) user will get access to the product for free? Therefore
the second possibility is to sell its products for “normal” prices, but to try and
restrict the access to the product in question instead, even after it is sold. This
is the aim of copyright: a user may read the book she bought, but as long as it
is protected by copyright she must not copy it. But this would mean a serious
obstacle to the dissemination of new technologies.
This is a classical dilemma: on the one side there is the immediate public
welfare associated with a new knowledge-based good: if access to this good is
restricted — technologically, by law, by monetary mechanisms, or all — the
public welfare (or its “social value,” as Cowan and Harrison put it) is dimin-
ished, as only a few producers or consumers have the right to use the new
technology or the new product, or the price of these products rises due to the
addition of royalties on top of production prices. This may tighten social in-
equality and lead to monopolies that may reduce the total market outcome (net
productivity).9 On the other hand, if access to the knowledge-based products is
not restricted, the incentive to produce them in the first place may be in ques-
tion, as it is very unlikely to make a profit. At least, this is how some authors
view the matter.10
But this only raises new questions. Is it really a primarily monetary interest
that drives scientists and artists? One could easily imagine that they might be
willing to distribute their products freely, because they — in most cases no
9 For this argument see, for example, Peter Drahos (1996); R.V. Bettig (1996); Law-
rence Lessig (2005b).
10 See, for example, A.D. Moore (2001). As an overview to these discussions see Pe-
ter S. Menell (1999); Daniel Andriessen (2004); and, for German readers: Brigitte
Hilmer (2004:708–792).
entrepreneurs themselves — have other interests in the matter, be it status, phi-

lanthropy, or other reasons. In the music industry, one may find many examples
where bands give away their music for free, or at least for rather low prices.
Robbie Williams may serve as an example for this: he assumes that giving
away music for free increases sales for other merchandising products (concert
tickets, t-shirts, etc.).
In economic terms, this is a positive economic effect, as it reduces trans-
action costs, simply by bridging intermediate trade by more intelligent and
cheaper mechanisms. This is exactly the effect of the market as an evolution-
ary mechanism as described by Hayek (1969; see also Kinsella, 2001:1–53;
Stallabas, 2002:141–146). It happens all the time, so why should it suddenly
be prevented just because a few major companies are in danger of losing their
market shares? How is it possible that the same economists who usually call
for a free market without regulation in other cases are now calling so openly
— and as some may say: in self-contradictory fashion — for state intervention
in this case?
There is yet another reason why scientists and artists themselves are not
necessarily interested in patenting their knowledge-based products, at least as
long as there are big companies between the producers and the users of these
products. This is so simply because the producers/inventors mostly do not
profit from the patents themselves, if they are pursued by large companies. So
some critics have asked: Who really profits from patents: the public, creative
individuals, or major companies? Moreover, what does “justice” mean here in
the first place? Is it “just” to increase inequality in order to increase the GNP?
Or do we need a Rawlsian mechanism that is sensitive to Pareto’s criterion that
everybody has to benefit?
This question becomes even more drastic where it is not inventions or mu-
sic that are appropriated by private individuals (persons or companies) and
as such protected by law, but “nature” itself: this touches the issues of biopi-
racy and bio-colonialism. The United States Supreme Court ruled in 1980 that
“anything under the sun that is made by man” is patentable.11 Yet the ques-
tion is: are minor, but very effective inventions concerning complex organisms
(genetic engineering, pharmaceutical products) an entitlement for a property
claim covering the whole organism, as it was the case in the example of the
Harvard onco-mouse in 1985? Certainly the mouse is not “made by man”;
it is only some of its gene sequences that have been manipulated. But what
happens if laws like this are applied on a global scale, when there are differ-
ent cultures that do not focus so much on property and patents (cf. Dworkins,
1997:1077–1086; Pottage, 1998:740–765; Safrin, 2004:641–685; Koo, Not-
11 Diamond v. Chakrabaty, 447 U.S. 303 (1980), online at http://laws.findlaw.com/
us/447/303.html.
tenburg, and Pardey, 2004:1295–1297)? Some critics foresee the danger of a

new colonialism, a mechanism of “enclosure” at work here.12
There are a lot of open questions connected to this topic. We are proud to
have gathered a group of well-known sociologists and law professors to dis-
cuss these and related issues in this book. The papers in this volume discuss the
following questions: what is the public interest in this question, what are the
private interests, and do they still dialectically serve the common good in the
long run, as Adam Smith’s “invisible hand” proclaimed in the 18th century?
If not, what needs to be done? Can patent law be shaped in a way that a bal-
ance between private and public good can be found? How can creative powers,
natural resources, and indigenous knowledge be protected from exploitation,
either by the public, or by private companies? Has law the power to prevent
this, or do we need to adapt technologically? How, on the other hand, can the
right of the individual be protected against a policy that allows access to any
kind of information, even intimate ones, as in the case of “profiling” technolo-
gies? Further research in these and related questions is needed, and we hope
that the current volume may contribute to this issue.
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Part 1
The Social Contexts of

Knowledge and the Law
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Introduction to Part 1
Steve Fuller
The papers in the first part of Who Owns Knowledge? are organized from the
least to the most embodied conceptions of knowledge countenanced in con-
temporary social science. The first paper, a reprinted classic by Edmund Kitch,
epitomizes a widely held view among economists, and increasingly lawyers,
that knowledge escapes any easy characterization in terms of the qualities of
ordinary privately owned material goods. Next comes Alfons Bora, a soci-
ologist in the tradition of Niklas Luhmann, who treats the body of scientific
knowledge as constituting one of several institutional sectors in the modern
social system. Finally, Anil Gupta, an expert in Indian agricultural policy, re-
gards all knowledge as derivative on people’s modes of being. The commercial
extraction of such knowledge potentially undermines their integrity as human
beings. We shall briefly review the issues that these conceptions raise.
Kitch’s pioneering attempt to integrate the legal and economic dimensions
of knowledge production is very much a product of its time and place: 1980,
University of Chicago. Back then and there Richard Posner was spearheading
the “law and economics” movement, which subsequently gained considerable
recognition, perhaps even more in economics than law itself. A legacy of this
movement has been the economic justification of institutions on grounds of
minimizing transaction costs. It is clear that Kitch partly has this issue in mind
when considering why judges associate keeping markets open and allowing
knowledge to flow freely. But before examining Kitch’s argument, readers
used to a sharp distinction between empirical and normative matters should be
warned that they are bound to be frustrated.
Kitch’s argument begins by assuming Gary Becker’s Nobel Prize-winning
human capital theory. In particular, Kitch accepts Becker’s distinction between
general and specific human capital. The former refers to knowledge that is of
use to the worker regardless of the firm that employs her services, the latter to
knowledge that has value only in the context of a specific firm. The difference
between the knowledge imparted in an academic degree course and on-the-job
training captures the spirit of Becker’s distinction. According to Becker, work-
17
ers will find it in their interest to the bear the cost of acquiring general capital,
which may include payment to the employer, whereas employers will find it in
their interest to bear the cost of having workers acquire specific capital.
However, Kitch observes that the rationality of Becker’s distinction has
been historically undermined by the Anglo-American common law tradition,
which for the last five centuries has ruled strongly in favor of the free mobil-
ity of labor. Thus, the law has made it easy for workers to undo the advantage
that employers hope to gain by investing in the workers’ acquisition of specific
capital. Indeed, workers become attractive to other firms — and acquire an in-
centive to shift employers — precisely because they can take with them all they
have learned. That the prior employer might suffer competitively from her local
secrets being divulged to the new employer has failed to sway judges in most
cases. On the contrary, judges have interpreted their role as ensuring the overall
competitiveness of the market. In this context, an important mechanism is the
removal of bottlenecks in the transmission of knowledge, especially of the sort
that would maintain the advantage currently enjoyed by one competitor.
Kitch is puzzled by this state of affairs, a response that is itself prima facie
puzzling. Judges clearly realize that the public’s interest in the protection of
markets pertains primarily not to the interests of particular traders but to the
overall dynamism in the system of exchange — that is, the ability for infor-
mation to circulate freely so as to enable agents to be as informed as possible
when making choices in line with their respective interests. In practice, this
concern inclines judges to remove blockages resulting from attempts to hoard
knowledge — in this case, by employers. I say “in this case” because judges
equally allow employers to undermine the attempts by individual workers to
gain power within a firm by commissioning “knowledge engineering” projects
that involve the construction of “expert systems” that attempt to make explicit,
however imperfectly, workers’ so-called tacit knowledge.
Despite his initial, perhaps Socratically feigned puzzlement, Kitch ultimate-
ly believes that the economists can learn from the judges. Kitch traces their
common law wisdom to a realization that knowledge lacks some of the basic
qualities that would enable its literal treatment as “intellectual property.” In
particular, knowledge is not really “divisible”: The fact that you know some-
thing does not exclude me from knowing it. In fact, if I come to know what
you know, the value of your knowledge diminishes because you lose whatever
advantage it held over me in my prior state of ignorance.
Here it is worth observing that, strictly speaking, Kitch’s analysis really
does apply to knowledge, and not to what he prefers to talk about, namely,
information. A key distinction between knowledge and information, clarified
by the Shannon-Weaver theory of communication, is that it is in the nature
of information to resolve the uncertainty that its receiver experiences about a
decision she must take. On this definition, what is informative for one receiver
may not be so for another if the two receivers possess different background
knowledge and action contexts. Under the circumstances, information can be
easily subject to a proprietary regime, once one targets those whose posses-
sion of the information would clarify their action context. For everyone else,
it is presumed that the same information would be of little or no operational
value.
Knowledge, in contrast, is what I have called, following Fred Hirsch, a
pure “positional good” whose value is tied exclusively to its scarcity. Kitch
recognizes the negative consequences of this definition, which he summarizes
as knowledge’s “self-protective” character. In other words, whatever positional
advantage a solitary knower might have is dissipated as more people come
to know the same thing. Thus, the “power” that philosophers from Plato and
Bacon onward have associated with knowledge pertains only to the fact that
at first it is possessed only by the few. Kitch justifies this phenomenon solely
on empirical grounds, noting the difficulty in maintaining trade secrets, both
at the level of business practice and formal legislation. In the latter case, the
key feature of intellectual property legislation is the time limit placed on the
rights bestowed to the property holder. Any incentive to invention putatively
provided by the prospect of property rights must ultimately recognize the nec-
essarily artificial restrictions they pose to the free flow of knowledge.
However, Kitch leaves open the possibility of a more philosophically prin-
cipled reason for knowledge’s so-called self-protectiveness. One such reason
might be that the metaphysics presupposed by the very idea of intellectual
property is wrong. Patent law is an outgrowth of the 18th century Enlighten-
ment view that, courtesy of Newtonian mechanics, science had nearly com-
pleted human comprehension of nature. In this frame of mind, it made sense to
speak of fixed — and known — “laws of nature” that was an intellectual legacy
of all human beings, as equal products of the same divine creator. Thus, intel-
lectual property would be a temporary right based on a demonstrated ability to
work over a determinate part of that commons so as to benefit oneself in the
short term but everyone in the long term. This line of thought, famously en-
shrined in Article 1, Section 8 of the US Constitution, assumes easy analogical
transfers between “conceptual space” and “physical space.” Thus, an applica-
tion of the laws of nature is like the application of labor to a plot of land. In this
context, a property right is meant to provide an incentive for perhaps otherwise
lazy people not simply to live off the work of others.
However, the analogy between conceptual and physical space does not make
sense if the laws of nature are still thought to be up for grabs. It suggests that
the fundamental principles that were originally used to assign a patent to an
invention may be later shown false. Taking such fallibility seriously, as is rou-
tinely done in the history, philosophy, and sociology of science, calls into ques-
tion the need to create a specially regulated domain of “intellectual property”
beyond the ordinary regulation of market transactions. The arguments for a
distinct category of intellectual property would then have to be restricted to the
purported socio-economic benefits of innovation, regardless of the epistemic
security of the principles on which it might be based. To be sure, these revised
arguments might work, but they would be no different from the arguments the
state uses to justify financial incentives for any risky private investments.
Moreover, notwithstanding the lip service that continues to be paid to New-
tonian “laws of nature,” intellectual property legislation has adapted to their
fallible character in its own perverse way. I refer here to the increasing willing-
ness of courts to grant patents for mathematical proofs and biological species,
typically on the basis of some unique codification that permits the proof to
be demonstrated or the species to be created. Such “codification” requires a
specially equipped computer or laboratory through which the patented object
can be presented as the product of a step-by-step process. It matters more that
the proof or species can be reliably produced by this process than that it repre-
sents or instantiates one or more laws of nature, the state of our exact access to
which may be suspended for purposes of making the strictly legal point about
property rights.
Bora agrees with Kitch on one — and perhaps only one — aspect of what
Bora calls the “reflexive politics of knowledge.” Both agree that once knowl-
edge is known, its character necessarily changes. For Kitch, this points to the
futility of institutionalizing any robust sense of intellectual property. For Bora,
on the other hand, the lesson veers in the opposite direction: Knowledge comes
to be more sharply differentiated as an institutional sector in the social system,
and hence its influence can be felt more determinately in other social sectors.
For Bora, a weakness of much of recent science and technology studies, espe-
cially that which relies uncritically on Ulrich Beck’s “risk society” idea, is its
one-sided treatment of reflexive modernization that stresses the politicization
of science but not the scientization of politics. In particular, Bora is concerned
with the emergence of “legal facts” to which scientific practice is increasingly
held accountable. Just as scientists increasingly defend their normative autono-
my on political grounds, legislators and jurists determine their attitude towards
science in terms of known or anticipated consequences of scientific activities.
In other words, science and politics have internalized aspects of each other’s
orientation to the social system. Bora imagines that such “structural coupling,”
as he calls it, both complicates and harmonizes the relationship between two
otherwise possible conflicting sectors.
Bora’s narrative has many attractive, perhaps even wishful features. While
it certainly makes sense of the evolution of legal discourse relating to sci-
ence in the postmodern condition, nevertheless, pace Bora, science’s overall

tendency may be towards “de-differentiation.” However, pace Ulrich Beck,
that process is not well grasped by the equally wishful populism of the anti-
globalization movement. Rather, the relevant sense of de-differentiation that
is currently folding science back into the matrix of social life may be simply
the default expression of the Marxist dynamic of capitalist commodification,
whereby, in the absence of a strong state, distinct use values are reduced to a
homogeneous exchange value. Thus, science is neither autonomous from other
societal sectors nor the final court of appeal when it comes to rationalizing the
social order. Rather, science is simply one more agent in an amorphous social
field that is always open to bids from other agents who believe they stand to
gain from an alliance.
In this respect, the rather different French social theorists of the decline
of the welfare state — notably, Pierre Bourdieu and Bruno Latour — offer a
more reliable guide to the emerging entanglements of science in society than
the equally different German social theorists — say, Habermas and Luhmann
— who continue to presuppose a strong state-maintained social system with a
clear sense of functionally differentiated subsystems. Thus, what Latour might
describe as an exchange of properties between particular scientists and politi-
cians, Bora presents as an interpenetration of distinct spheres of activities — as
if the boundary dividing science and politics, however porous, exists in more
than a verbal sense. Nevertheless, Bora appears to wish to derive intellectual
support from Latour as well as Luhmann. One possible source of consonance
may be that both stress the “performative” character of social life: Social life
is nothing more than what its agents collectively determine it to be, which im-
plies that if scientists and politicians are social agents, then they will be among
those who define social life. While this provides a fine account of social life
“on the ground,” it avoids addressing the long-term, large-scale consequences
of such performances: To what extent, and in what form, is science reproduced
when scientists perform their roles in certain ways? After all, what enables
the short-term gain of particular scientists may undermine science’s long-term
prospects.
This is a good point to introduce Gupta, who is concerned with the larger
consequences of an international intellectual property regime that is, in terms
of Max Weber’s sociology of law, procedurally just but substantively unfair.
Gupta’s analysis is based largely on transnational agribusinesses that contract
with Indian peasants to gain access to their traditional knowledge of the land,
which the firms then treat as raw material to convert into patentable life-forms,
teachable skills, and commercial products. Even if the peasants enjoy short-
term windfalls from the transactions, they have effectively sold their birthright
and compromised their political position in the wider society where they must
continue to live. Before turning to the merits of Gupta’s eloquently expressed

concerns, one of their implications is worth noting: The difference between
justice and fairness (or formal and substantive rationality) is a matter of degree
rather than kind – specifically, that substantive unfairness may be an emergent
feature of many procedurally, locally forged knowledge exchanges. It is the
dark flipside of Mandeville’s original thesis that “private vices make for public
virtue.” But further discussion along these lines must wait another occasion.
Gupta’s analysis of the appropriation of indigenous knowledge for both
commercial and scientific purposes makes two interrelated yet problematic as-
sumptions. The first is that the natives are spontaneously inclined to share their
knowledge, from which Gupta concludes that claims to intellectual property
for techniques used to extract the relevant knowledge are largely exaggerated.
The second is that the preservation and extension of indigenous knowledge re-
quires promoting the welfare of the people who are currently the main possess-
ors of that knowledge. These two assumptions are interconnected in Gupta’s
argument because he tends to treat the appropriation of indigenous knowledge
as a potential restriction, if not violation, of human rights. However, it is pos-
sible to grant Gupta that the human rights of indigenous peoples should be pro-
tected and that the integrity of the knowledge traditionally possessed by such
peoples should be maintained, yet also hold that these are matters best handled
as two separate legal issues. Pace Gupta, knowing and being are not identical,
and hence knowledge policy is not reducible to identity politics.
Put bluntly, indigenous peoples deserve to be respected as human beings
even if they are not best placed to continue the forms of knowledge native to
them. For example, the future of a minority language may be in safer hands
at a world-class university linguistics department specifically dedicated to its
preservation than in the last remaining community of native speakers who are
forever tempted to abandon the language for the sorts of social and economic
reasons they share with majority language users. Similarly, the harvesting of
DNA from near-extinct biological species may provide a more secure route to
species survival than the much more costly and less certain maintenance of
living species members in their natural ecologies. Gupta evades this point by
presuming that the indigenous impulse to share knowledge amounts to mak-
ing it universally available. However, the natives’ spontaneous impulse in this
direction is not sufficient to constitute an active policy of universalization, just
as the sheer removal of restrictions to knowledge access does not ipso facto
turn knowledge into a public good. Contrary to those still in the sway of the
Scottish Enlightenment, freedom and benevolence cannot make up for a lack
of incentive and material resources. Whatever their ultimate motives, commer-
cial firms and scientific disciplines are well designed to globalize knowledge
in a way well-meaning indigenous peoples are not.
Behind my unwillingness to grant Gupta the prerogatives of indigenous

knowledge is a concern to take seriously a general point about human evolu-
tion, namely, the fundamentally contingent character of the specific assortment
of genes that enables a relatively enclosed population to survive in a given
region over a long period, during which they may develop distinctive forms of
knowledge as part of what Richard Dawkins calls their “extended phenotype”
(aka culture). The mark of this contingency lies not only in theoretical points
about population biology but also in the very fact that indigenous peoples can
successfully transfer both their knowledge and their genes to other humans in
other places. In short, Gupta fails to recognize the degree of “positive racism”
that remains embedded in the concept of indigenous intellectual property. To
recall our earlier discussion of Kitch, regardless of whether one believes that
the laws of nature are fixed or known, an implication of knowledge’s univer-
sality is its resistance to all proprietary restrictions. If progress in the law in
the modern era has been marked by the removal of hereditary privilege, then
the prospect of indigenous intellectual property rights may constitute the final
challenge that needs to be overcome.
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Intentionally
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1
The Law and Economics of Rights in
Valuable Information
Edmund W. Kitch*
This essay describes and analyzes the welfare consequences of the law
governing the ownership of information by firms and their employees and
the transmission of information from one firm to another. Because I have
elsewhere discussed the welfare consequences of the patent system, (Kitch,
1977; McFetridge and Smith, 1980; Kitch, 1980) the focus here is on the many
kinds of information required for the efficient operation of enterprises other
than new technology. The essay is intended to draw the attention of economists
to the importance of the institutional arrangements, other than patents, that
shape the production and dissemination of industrial information.
The first section describes the legal rules and discusses the arguments tra-
ditionally offered for them. The ideas used to organize this description are
drawn from the modern literature on human capital and theory of the firm. The
section argues that in spite of the law’s development under such diverse head-
ings as trade secrecy, covenants not to compete, corporate opportunity, fraud
and restitution, there is a coherent functional pattern to the common law rules.
This pattern has, however, been altered by the federal securities and freedom
of information acts. The second section deals with the welfare consequences of
the law described. Although a definitive welfare analysis of the rules is not of-
fered, welfare arguments for the common law rules are developed. A principal
contribution of this section is to relate recent developments in price theory and
finance to these problems. The section also speculates on the implications of
the institutional structure of information generation and transmission for some
basic issues in industrial organization and monetary theory.
I. The Law
Anglo-American law governing the subject may be divided into two sections:
information embodied in human capital and information embodied in firms.
* The assistance of Dennis Carlton and Roger Patterson is gratefully acknowledged.

This article was originally published in The Journal of Legal Studies (1980) 9(4):
683–723.
25
Both workers and firms are carriers of information, and the legal issues have
centered on the relationship between them.
A. Information Embodied in Human Capital
The human capital of a worker includes the information he has. The following
two paragraphs briefly summarize Becker’s (1975) pioneering analysis.
General human capital is capital of value to many firms, and a worker is in
a position to capture its value at any of those firms (Becker, 1975:19–26). He
will, therefore, pay the costs of acquiring this capital, either through payments
(tuition) or reduction in salary. A firm providing training that adds to general
human capital can arrange its payment schedule so that at any given time it has
provided the worker with the amount of training for which he has paid. Thus
the free movement of workers need not be restrained to generate incentives for
training that provides general human capital.
Specific human capital is human capital with value only to a particular firm
(Becker, 1975:26–37). In the information context, an example is knowledge of
the firm’s operating procedures and personnel. Because this information is of
value only to the firm, the firm will pay for the necessary training, and an em-
ployee cannot steal the information for use elsewhere. There is thus no need to
restrain the free movement of workers to generate incentives for training that
provides specific human capital.
Since at least 1800, Anglo-American law has provided no protection to a
firm for the value of the human capital of its employees. Employees have been
free to change employment at will. This law displaced an earlier legal regime,
centered on the Statute of Laborers of 1492, which significantly restricted the
free movement of labor (see Becker, 1975:379–87; Holdsworth, 1936:459–
66).
More interesting, and more difficult to analyze, is the severe limitation in
this modern law on types of contractual arrangements that can be used to re-
strict the movement of employees.1 The issue has been litigated most frequently
in the context of post-employment covenants not to compete. These covenants
are written agreements providing that in the event of termination of employ-
ment the employee cannot work for a competitor for a specified length of time
in a specified area. The courts have applied strict standards of reasonableness to
these contracts and have upheld them only in the case of employees who pos-
1 While this essay was in preparation Rubin and Shedd (1981) were writing “Human
Capital and Covenants not to Compete.” We share a common dissatisfaction with
the traditional explanations for judicial reaction to covenants not to compete. Ru-
bin and Shedd explain invalidation of such contracts on grounds of opportunistic
behavior.
The Law and Economics of Rights in Valuable Information 27
sess secret technical information or who have customer contact responsibility.

A common example of the latter type of case is a route or delivery man who, as
the sole contact between the firm and its customers, is in a position to take the
customers with him to a new firm — sometimes without the customers even
being aware of it.2 The courts have required that the restraint be reasonable in
time and scope in relation to the protectible interest of the employer. A sales
employee, therefore, can only be restrained from working for a competitor in
the same area that he has worked for the firm. The courts have until recently
applied this rule in a particularly harsh way, holding that if they determine,
after the fact, that the restraint is unreasonable, the restraint will be void, not
simply cut back (or “blue penciled”) into a reasonable one (Blake, 1960).
It is difficult to explain why the courts have been so hostile to these con-
tracts. There are economic reasons why such contracts could be desirable. In
the case of general human capital, an employee may be unable to finance train-
ing that enhances his capital unless he is able to borrow against the promise
of his future services. The employer would loan the employee funds during
the training period by paying him wages above his marginal productivity and
collect the loan in a later period by paying wages under marginal productivity.
But if the employee is free to leave at any time, he will be attracted to other
employers by wages equal to his marginal productivity during the “pay-back”
period, and the employer will have no incentive to make the loan. In the case of
specific human capital, training costs will be reduced if the employer can use
contractual devices that reduce turnover (Becker, 1975:29–30. This problem
can be partly resolved by timing the compensation stream so that the employee
always has an incentive to stay. But again it is not clear why arrangements
that restrict the employee’s options are not among the range of permissible
contractual solutions.
Harlan Blake, whose article “Employee Agreements Not to Compete”
(1960) is the most authoritative exposition of the Anglo-American law on this
point, sees the question for the courts in each case as one of balancing the
interests of the employer as against the interests of the employee. The reasons
such covenants should not always be enforced are:
that postemployment restraints reduce both the economic mobility of employees and
their personal freedom to follow their own interests. These restraints also diminish
competition by intimidating potential competitors and by slowing down the dissemi-
nation of ideas, processes, and methods. They unfairly weaken the individual em-
2 Contemporary distribution methods have made these cases something of an anach-

ronism. The hold of a routeman on his customers is suggested by Olschewski v.
Hudson, 262 Pac. 43 (Cal. Ct. App. 1927), where the receiver for a bankrupt laun-
dry complained that his efforts to sell a route had been foiled by the routeman’s
having sold it.
ployee’s bargaining position vis-a-vis his employer and, from the social point of
view, clog the market’s channeling of manpower to employments in which its
productivity is greatest. (Blake, 1960:627)
The central issue is not the desirability of such contractual arrangements

in particular cases but why employer and employee are not free to enter into
arrangements that they consider desirable in light of the circumstances. Why
doesn’t the usual assumption that contracting parties can protect their own in-
terests control here as elsewhere? There are two basic answers in the legal
tradition, accurately summarized by Blake’s statement. First, employees lack
the capacity to contract in this way. And, second, such contracts impair com-
petition.
1. Lack of capacity. This explanation is not entirely consistent with the ap-
proach of the courts, since the courts uphold the enforceability of such cov-
enants in the area of customer contact and trade secrecy. This inconsistency
is not to be explained on the ground that such employees are high-level ex-
ecutives with the background and sophistication necessary to appreciate the
significance of a restrictive covenant that impairs employment options for a
long time. A low-level employee who falls within the trade secret or customer
contact exceptions is held to the terms of a reasonable restrictive covenant. A
laboratory technician or routeman can be bound not to engage in competitive
activities. Conversely, a highly paid and sophisticated management employee
not involved in sales and not in possession of trade secrets cannot be effec-
tively bound by any covenant.
The view is sometimes expressed that if such clauses were generally per-
mitted they would be routinely exacted from employees.
It [a post-employment restraint] is particularly distasteful if there is no effective

bargaining between the parties — as in the situation in which the employer
knows that everyone else in the industry insists on the covenant too, or when the
employment officers have no authority to change the provisions of the employment
contract form. (Blake, 1960:650)
This view assumes either that such clauses are usually in the interest of the
employer or that employees would not value, and hence not charge for, the
right to future freedom of choice. Such clauses are not in the interest of an
employer unless he makes significant investments in the employee’s human
capital. If the employee offers general skills that can be provided by others on
the labor market, the employer is indifferent to who provides those skills since
he will have to pay the market wage in any case.
The complexity and difficulty of a restrictive covenant do not seem to ex-
ceed other issues on which employers are permitted to bargain freely. For in-
stance, fringe benefits or pension plans involve judgments about future events
and needs of the employee. The congressional pension reforms imposed by the
Employee Retirement Income Security Act suggest the modern consumerist
response to problems of this type — mandated disclosure, standardized con-
tractual arrangements, and special formation procedures. The Truth in Lending
Act imposes similar requirements on lending arrangements, which often have
term features well in excess of the likely relevant term of covenants not to
compete. These responses, however, have not included outright prohibition of
the form of contract.
One easy explanation why the lack of capacity argument has such appeal
is the judicial rule restricting the contract form. The courts have refused to
enforce the contract, so the contract is seldom used. Because it is seldom used,
society has no stock of “received wisdom” about the advantages and disad-
vantages of such contracts. If the rule were suddenly changed, employers and
employees would have to learn about such contracts and during the learning
process there would be more mistakes than with other well-established contract
forms. In this view, the rule creates the conditions of its own social desirability.
Blake has persuasively shown that the rule’s origins lie not in the contractarian
structure of the 19th century common law but in the older status law of master
and apprentice (Blake, 1960:629–37). The early cases involved apprentices
whose masters had made them promise not to pursue their craft, as masters,
after the end of the fixed term of apprenticeship. The courts held that the status
of master was inconsistent with such contractual restraints. The 19th century
cases analogized the position of the newly contractually autonomous worker
to that of a master and held that the precedents forbade such agreements. The
rule, once adopted, became its own justification.
It is difficult to put much weight on the capacity argument in light of three
anomalous regimes of employment: entertainment,3 professional sports,4 and
military enlistment.5 In these cases, entering workers sign contracts that restrict
their employment options for significant periods of time. The young ballplayer
or military volunteer seems to be able to understand the implications of such
contracts and bargain for offsetting terms. Not surprisingly, these special re-
gimes are justified on the basis of the need for the employer to invest in spe-
cialized training for the employee.
3 Courts have been willing to uphold exclusive contracts in the entertainment indus-
try because of the unique nature of the services involved and to issue injunctions
against competitive employment to enforce them. These injunctions date back to
Lumly v. Wagner, 1 DeG., M. & G. 604, 42 Eng. Rep. 687 (Ch. 1852). Materials
on modern practice are to be found in Frackman (1979) and Note (1980:489).
4 These special employment institutions are summarized in Sobel (1977).
5 The law is summarized in Schlueter (1977). The cases of validity of the contract
have focused on parents trying to undo the enlistments of their minor children.
2. Reduction of competition. This argument is a form of the frequently en-

countered fallacy of confusing spot markets with competition and considering
long-term contracts a form of monopoly. The question is not whether there will
be competition among employers for labor and vice versa, but whether that
competition will take the form of a spot market for hours of labor or the form
of a single contract for many services. A specific form of the fallacy is Blake’s
argument above that contracts which restrict the right to change employment
will prevent labor from moving to its highest valued use. This is not the case,
since the parties to the transaction can always retransact. If an employee has a
higher valued activity in some other employment, he can offer a payment to his
employer to obtain release from his contract, as is done in professional sports.
It is usually assumed that such contracts have a significant impact on com-
petition because the employees of the firm possess knowledge or skill not pos-
sessed by others. If these employees were indistinguishable from other em-
ployees in general, their presence or absence as potential entrants would make
no difference. But if the employees do have special skills or information, what
matters is how they acquired it. If they acquired it as the result of investments
by the firm, then their departure is a loss to the firm on that investment. The
question is not whether there will be competition but whether such contracts
would serve a useful purpose in permitting firms to capture the returns from
investments in human capital and, thus, create the appropriate incentives to
make such investments.
B. Information Embodied in Firms
Firms also possess information. This is easy to see in the case of a trade secret
written on a piece of paper locked in the firm’s safe or existing as part of the
human capital of the employees who know the secret. It is less easy to see when
information exists only in the form of the memories and habits of employees.
Assume, for instance, that six employees of a firm know a particular piece of
information. If the employees are paid a competitive wage so that they are
unlikely to leave, and if they are effectively constrained from communicating
the information to others, then the firm has an asset apart from the human
capital of the employees. Firms carry information in a web of contractual
relations and property rights.
Information held by firms, unlike information embodied in human capital,
is not self-appropriating. Becker (1975:26) recognizes this feature explicitly
for technological innovations,6 but it is true of all information that can exist
6 “The difference between investment in training and in research and development

can be put very simply. Without patents or secrecy, firms in competitive industries
may have difficulty establishing property rights in innovations and these innova-
apart from human capital. For instance, a firm that has prepared a competitive
bid can lose the value of the preparatory material if the bid is communicated
to a competitor who bids one dollar less. Similarly, a firm that loses a training
manual to a competitor suffers a reduction in value.
The law has given special protection to a class of information called trade
secrets. This section will discuss, first, the law of trade secrets and then the law
protecting other kinds of information.
1. Trade secrets. The courts protect trade secrets with both damage and
injunctive remedies. The first English cases, involving formulas for medicines,
date from the second decade of the 19th century, and the first American cases,
involving manufacturing processes, from the middle of the century.7 “A trade
secret,” says the Restatement, “may consist of any formula, pattern, device or
compilation of information which is used in one’s business, and which gives
him an opportunity to obtain an advantage over competitors who do not know
or use it.” 8
The question of whether information should be protected is decided by the
courts. They require that the information have value, be used in the firm, and
not be generally known by others. Firms sometimes obtain contractual agree-
ments from employees that certain information disclosed to them is confiden-
tial. Courts will accept these agreements as evidence that the firm valued the
information and attempted to preserve its secrecy, but they decide for them-
selves whether the information should actually be protected.
The rules of trade secrecy law suggest that the law’s coverage is broad but
an overwhelming number of the reported cases deal with appropriated process
technology — how to make something.9 There are a small number of cases in-
volving knowledge of the identity of customers, and after that, nothing (Blake,
1960:667).10
tions may become fair game for all comers. Patent systems try to establish these
rights so that incentives can be provided to invest in research. Property rights in
skills, on the other hand, are automatically vested, for a skill cannot be used with-
out permission of the person possessing it.’’
7 Newberry v. James, 2 Merivale 446, 35 Eng. Rep. 1011 (Ch. 1817). The first re-
ported American case suggested that an injunction could not issue on the ground
that it would be impossible to enforce. Deming v. Chapman, 11 How. Prac. 382
(N.Y. Sup. Ct, 1854). The case involved a process for marbleizing iron, slate, and
other articles. That dictum was not followed in Hammer v. Barnes, 26 How. Pr.
174 (N.Y. Sup. Ct. 1863), involving a process for brewing ale. The leading early
American case, Peabody v. Norfolk, 98 Mass. 452 (1868), involved a process for
manufacturing gunny cloth from jute buffs.
8 Restatement of Torts § 757 (1939).
9 The restrictive covenant cases, on the other hand, most frequently deal with cus-
tomer contact situations.
10 Thus, as a practical matter, the domains of patent law and trade secrecy appear to
be congruent, except that patent law does not extend to customer relations. The
How meaningful the law’s protection of trade secrets is to firms is an open

question. The “how to steal it” books 11 make it clear that the essence of effec-
tive trade secret theft is leaving the victim unaware. In this respect the per-
vasive availability of modern copying or photographic equipment has been
a great aid. Since the subject of a secret is something that competitors cannot
detect in the course of normal competition, conversely the victim cannot de-
tect the acquisition of the secret by his competitor. For example, production
processes are protected by trade secrecy because they can be used but are not
disclosed to the world by being used. A stolen process can thus be used by a
competitor without alerting the victim to the theft. In one reported case a firm
discovered that its trade secrets had been stolen only after it acquired the firm
that had received them.12 But if the victim does not detect the theft, he cannot
institute legal proceedings.
This detection problem explains the importance of restrictive covenants. It
is often impossible to determine whether a former employee who has gone to
work for a competitor has taken trade secret information, and whether he has
disclosed that information to his new employer. The former employee may
give the information to the new firm without disclosing its confidentiality and
represent the information as his own to impress the new firm with his value. A
restrictive covenant keeps the ex-employee away from the competitor. He can
still sell the information, but an explicitly tainted transaction is then required.
The effectiveness of legal proceedings to protect trade secrets is further af-
fected by the risks such proceedings present to the secret. The courts require
a plaintiff in a trade secret action to prove that the subject matter of the theft
was not generally known in the industry, and that the firm made systematic ef-
forts to keep the information secret. This requires the disclosure of the subject
ways in which the patent system offsets the deleterious effects of trade secrecy
protection are analyzed in Kitch (1977:75–80). The near congruence of the two
regimes may, therefore, reflect an understanding that trade secrecy protection is
more desirable when its negative effects are offset by a property rights system.
However, the explanation offered below for the scope of trade secret protection is
that the types of information not covered by trade secrecy law have high deprecia-
tion rates that make legal protection unnecessary. See pp. 53–54. Unlike the pat-
ent-related explanation, this explanation can encompass the protection allowed to
customer lists.
11 The label is facetious since the purpose of the books is to persuade firms of the
need for security measures, but they make their point by illustrating how easy it
is to obtain a competitor’s secrets. I have located Arnold and McGuire (1975);
Harvard University, Graduate School of Business, Competitive Intelligence (C.I.
Assoc. 1959); Greene (1966); Hamilton (1967); Hickson (1968); Payne (1967);
Smith (1970). I have found Smith the most helpful. I have seen references to Ber-
gier (1975), but I have not obtained a copy.
12 Northern Petrochemicals Co. v. Tomlinson, 484 F.2d 1057 (7th Cir. 1973).
matter of the secret and its related technology to those involved in the litiga-
tion process. The courts have developed elaborate confidentiality procedures to
deal with this situation.13 The information may be disclosed, for instance, only
to the defendant’s attorney and not to his client, the accused thief (Milgrim,
1979). But even assuming the effectiveness of these procedures, they violate
basic precepts of security. Information relating to the secret must be specially
assembled and circulated to a new group of individuals, and the litigation itself
will signal the value that the firm places upon the information.14
There is no remedy for trade secrecy theft against a firm using the trade
secret if the firm acquired the information without being aware of its tainted
origin.15 Once a secret gets out, problems of tracing will practically assure the
victim’s inability to stop competitive use. If the perpetrator of the theft is judg-
ment proof and the present holders of the information are innocent, there may
be no effective relief.
Another formidable threat to trade secrecy may be foreign espionage. The
governments of foreign powers that maintain intelligence services have an in-
terest in upgrading the technological base of their own industries. One peace-
time function of an intelligence service is obtaining otherwise unavailable
technological information.16 It is likely that foreign intelligence services are
less sensitive to legal restraints than a domestic competitor would be.
The difficulties of detection and enforcement make this a logical area for the
use of strong criminal penalties. Since the number of detectable thefts is small,
the activity can only be effectively deterred if heavy penalties are imposed on
thieves who are caught. Trade secrecy skillfully executed is not a crime under
the traditional criminal statutes. Entry only to copy is not entry with felonious
intent and hence not burglary. Information is not the kind of property that falls
within the scope of traditional theft statutes. Bribery of an employee to provide
information, but not property of the employer, is not a crime. When property
13 These are discussed in Roger M. Milgrim (1979). Milgrim observes: “Perhaps the
greatest single drawback to trade secret litigation is the disclosure which plaintiff
often must make during the course of the case.” Id. at § 7.06 [I].
14 A dramatic recent example is the action brought by the US Government to enjoin
the publication of plans for the construction of the hydrogen bomb. The litigation
revealed that the plans were genuine and led to the revelation that numerous details
about construction of the bomb were available to the public in US government
libraries.
15 Restatement of Torts § 758 (1939).
16 Payne (1967:156–95) describes some of the extensive industrial espionage activi-
ties of the iron curtain countries. West Germany recently claimed that a major fo-
cus of the East German intelligence organization is obtaining information about
microelectronic technology. Wall Street Journal, June 6, 1980:16, c. 1.
is taken, a crime has been committed.17 In the late 1960s and early 1970s,
twenty-six states passed statutes to make trade-secret theft a crime.18 There
have, however, been very few prosecutions under these statutes.19 The statutes
came about as the result of a ring organized to systematically steal process
secrets and materials from an American drug company and sell them to Ital-
ian manufacturers who at that time operated under an umbrella created by the
lack of drug patents under Italian law.20 The ring proved very difficult for the
company to break, and the problem highlighted a gap in the criminal laws that
many legislatures were willing to fill.
The new statutes require the theft of a trade secret. Therefore, in the criminal
prosecution determining whether what was taken was a trade secret is a central
issue. The defense must prove that what was taken was not kept secret by the
company nor known to other concerns in the industry. To defend on that issue,
the defense must ask for large amounts of material relevant to the technology
in issue. Procedures for protecting the confidentiality of this material exist, but
its assembly and dissemination during the litigation process obviously increase
the risk of further loss.21 In a California case, a convicted thief of trade secrets
from IBM argued that his conviction should be set aside because he was the
only one who had ever been prosecuted under the statute. Rejecting the argu-
ment as frivolous, the court observed:
The record in this case dramatically suggests the reason why it may be true that
section 499c is a statute which has rarely been enforced. Defendant’s prosecution
and conviction were the result of an extremely difficult, complicated and expensive
investigation instigated by IBM. It is apparent why a private company such as IBM
would engage in such an undertaking only rarely and only where, as here, the value
of the stolen trade secrets was extremely great. The legal problems involved in
prosecuting such an action are also apparent. The record on appeal itself contains
thousands of pages of transcript. (62 Cal. App. 3d 24–25, 133 Cal. Rptr. 153)
The issue of appropriate proportion between the remedy and the wrong in
trade secrecy cases has recently concerned the courts in the area of injunctive
17 When the thief uses a copying machine or takes pieces of paper, the charge may be
theft of services or of the paper. Where these thefts are of low value, the crime will
be a misdemeanor.
18 Milgrim (1979:vol. 12, at § 1.10), describes this development. See Annot., 84
A.L.R. 3d 967 (1978).
19 Six cases are cited in the A.L.R. Annotation.
20 Payne (1967:35–68) describes this incident.
21 In People v. Serrata, 62 Cal. App. 3d 9. 133 Cal. Rptr. 144 (Ct. App. 1976), the
court observed that the trial court did authorize extensive defense discovery of
IBM documents and other materials in the possession of the prosecution. IBM also
made extensive documentation available voluntarily.
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Hydrochloric acid and gastro-enteritis, 266.
Icterus, 457.
Icterus, from lupin poison, 476.
Icterus nouveaux nés, 473.
Impacted cloaca, 209, 319.
Impacted rumen, 108.
Impaction of colon in solipeds, 203.
Impaction of large intestine, soliped, 197.
Impaction of omasum, 123.
Indigestion, acute gastric in solipeds, 150.
Indigestion, gastric, in carnivora, 158.
Indigestion, gastric, in swine, 159.
Indigestion in abomasum, 135.
Indigestion in fourth stomach in sucklings, 136.
Indigestion, ingluvial, 94.
Indigestion, intestinal, 193.
Indigestion, intestinal in birds, 209.
Indigestion, intestinal, in solipeds, 197.
Indigestion with impaction, in dog, 205.
Indigestion, tympanitic, of rumen, 96.
Ingluvial indigestion, 94.
Intestinal atony, 314.
Intestinal calculi, 323.
Intestinal congestion, from verminous embolism, 210.
Intestinal congestion in solipeds, 220.
Intestinal indigestion in birds, 209.
Intestinal indigestion with impaction, 197.
Intestinal invagination, 344.
Intestinal obstruction in birds, 209.
Intestinal obstruction in dog, 205.
Intestinal pain, 308.
Intestinal strangulations, 356.
Intestinal tympany, 193.
Intestine, abscess of, 336.
Intestine, dilation of, 340.
Intestine, hyperplasia of, 378.
Intestine, rupture of, 332.
Intestines, foreign bodies in, 328.
Intestines, hair balls in, 320.
Intestines, strangulation of, by ovarian ligament, 380.
Intestine, stricture of, 342.
Intestine, tumors of, 374.
Intestine, ulceration of, 338.
Intestine, volvulus of, 351.
Intussusception, 344.
Invagination of bowel, 344.
Iodine poisoning, 276.
Iodism, 276.
Iron, poisoning by, 279.
Jaundice, 457
Jaundice, catarrhal, 463.
Jaundice, catarrhal, in dogs, 467.
Jaundice from ferments in fodder, 476.
Jaundice from lupins, 476.
Jaundice from obstruction, 458.
Jaundice from poisons, 459.
Jaundice in cattle, 472.
Jaundice in new born, 473.
Jaundice without bile obstruction, 459.
Juniperus sabina, poisoning, 286.
Kidney, degeneration of, 431.
Laburnum poisoning, 286.

Laceration of intestine, 332.
Lambs, infective gastro-enteritis in, 138.
Lampas, 19.
Lathyris, poisoning by, 286.
Leather in stomach, 188.
Lips, actinomycosis of, 7.
Lips, epithelioma of, 6.
Lips, indurated, 5.
Lips, inflammation of, 5.
Lips, polypi on, 6.
Lips, treatment of inflammation of, 5.
Lips, trombidiosis of, 7.
Lips, warts on, 6.
Lips, wounds of, 5.
Lipoma of intestine, 374, 377.
Lipoma of Liver, 533.
Lipoma of stomach, 191.
Liver abscess, 495.
Liver, actinomycosis of, 536.
Liver, acute yellow atrophy of, 491.
Liver, amyloid, 511.
Liver, brown atrophy of, 513.
Liver and circulatory disorders, 431.
Liver and gastro-intestinal disease, 431.
Liver and kidney disease, 431.
Liver and nervous disease, 431.
Liver and respiratory disorders, 431.
Liver and skin diseases, 432.
Liver, as a destroyer of toxins, 415.
Liver, calcareous nodules in, 534.
Liver, chronic atrophy of, 507.
Liver congestion in dog, 486.
Liver congestion in horse, 484.
Liver, congestion of, 483.
Liver, cirrhosis of, 502.
Liver disease, secondary results of, 430.
Liver, diseases of, 407.
Liver, effect on leucocytes, 409.
Liver, effect on red globules, 409.
Liver, fatty degeneration, 508.
Liver, fibroid degeneration, 502.
Liver, foreign bodies in, 525.
Liver, functional diseases, treatment, 432.
Liver, functional disorders, 416.
Liver, infective inflammation of, 498.
Liver, inflammation of, 490.
Liver, metabolism in, 410.
Liver, parasites of, 537.
Liver, pigmentation of, 513.
Liver, rupture of, 487.
Liver, sanguification in, 408.
Liver, steatosis of, 508.
Liver, tumors in, 527.
Liver, yellow atrophy of, 476.
“Loco” weeds, poisoning by, 287.
Lupinosis, 476.
Lupinosis in solipeds, 482.
Lymphadenoma of liver, 529.
Lymphadenoma of the spleen, 563.
Maize, poisoning by damaged, 289.

Male fern poisoning, 286.
Marsh’s test for arsenic, 271.
Maxillitis, 44.
May apple, poisoning by, 286.
Meadow saffron poisoning, 284.
Melanoma of gullet, 93.
Melanoma of liver, 528.
Melanoma of spleen, 562.
Melanosis in pancreas, 544.
Melia azedarach, poisoning by, 286.
Melilot poisoning, 286.
Mellituria, 416.
Mercurialis annua poisoning, 286.
Mercurialism, 32.
Mercurial poisoning, 274.
Mercurial stomatitis, 32.
Mercury, test for, 275.
Mesenteric hernia, 368.
Metabolism in liver, 410.
Meteorism, gastric, 150.
Meteorism of the intestines, 193.
Meteorism of rumen, 96.
Microbes in gastro-enteritis, 144.
Milk in infective gastro-enteritis of sucklings, 141.
Milk of woman, and animals, 143.
Marc, stomatitis from, 27.
Monocercomonas gallinæ, 71.
Moulds, poisoning by, 289, 290.
Mouldy bread, poisoning by, 296.
Mouth, diseases of, 4.
Mouth, functional disorders, 4.
Mouth, general inflammation of, 8.
Mouth, injuries to, 4.
Muguet, 27, 36.
Muriatic acid and gastro-enteritis, 266.
Mustard, poisoning by, 287.
Musty grain, poisoning by, 290, 296.
Myoma of intestine, 375.
Myxoma of intestine, 375.
Narcissus poisoning, 284.

Nails in stomach, 188.
Necrobiosis of liver, 498.
Needles in stomach, 188.
Neoplasms of intestine, 374.
Nervous ergotism, 298.
Neuralgic colic, 309.
Nitrate of soda poisoning, 268.
Nitric acid and gastro-enteritis, 266.
Nux vomica, poisoning by, 286.
Oat-hair balls in stomach, 187.

Obesity, 427.
Œnanthe crocata, poisoning by, 286.
Œsophagean tumors, 93.
Œsophagismus, 90.
Œsophagus, paralysis of, 92.
Œsophagus, spasm of, 90.
Omasum, impaction of, 123.
Omasum, inflammation of, 131.
Omasum, tumors of, 133.
Omental hernia, 368.
Osteomalacia, 78.
Ovarian ligament, strangulation of intestine by, 380.
Oxalic acid and gastro-enteritis, 266.
Oxalic acid diathesis, 430.
Oxytropis, poisoning by, 287.
Palatitis, 19.
Pancreas, diseases of, 537.
Pancreas, foreign bodies in, 542.
Pancreatic abscess, 541.
Pancreatic calculi, 543.
Pancreatic tumors, 544.
Pancreatitis, catarrhal, 538.
Pancreatitis, interstitial, 540.
Pancreatitis, suppurative, 541.
Paper-ball in stomach, 188.
Papilloma of gullet, 93.
Papilloma of omasum, 133.
Papilloma of stomach, 191.
Paralysis of gullet, 92.
Paralysis of rectum, 371.
Paralysis of the pharynx, 83.
Paralysis of tongue, 37.
Parasites of liver, 537.
Parasites of rumen and reticulum, 122.
Parasites of spleen, 564.
Paris green poisoning, 269.
Parotid gland, inflammation of, 41.
Parotitis, 41.
Pecking feathers, 76.
Pelvic hernia in ox, 357.
Perforating ulcer of stomach, 179.
Perihepatitis, 500.
Perisplenitis, 554.
Peritonitis, 380.
Peritonitis, chronic, 392.
Peritonitis, general causes, 380.
Peritonitis in birds, 399.
Peritonitis in carnivora, 397.
Peritonitis, infection of, 385.
Peritonitis in ruminants, 395.
Peritonitis in solipeds, 383.
Peritonitis, traumatic, 383.
Pharyngeal abscess, 58.
Pharyngitis, catarrhal, 49.
Pharyngitis, chronic, 73.
Pharyngitis, microbes in, 50, 56.
Pharyngitis, phlegmonous, 54.
Pharyngitis, pseudomembranous, 60.
Pharyngitis, pseudomembranous, in birds, 67.
Pharyngitis, pseudomembranous, in cattle, 63.
Pharyngitis, pseudomembranous, in dogs, 66.
Pharyngitis, pseudomembranous, in sheep, 64.
Pharyngitis, pseudomembranous, in solipeds, 61.
Pharynx, paralysis of, 83.
Pharynx, tumors of, 84.
Phenol poisoning, 281.
Phlegmonous gastritis in horse, 162.
Phosphatic calculi in stomach, 188.
Phosphorus poisoning, 272.
Phrenic hernia, 359.
Phytolacca, poisoning by, 286.
Pica, 76.
Pins in stomach, 188.
Pip in birds, 18.
Plants, paralyzing element in, 95.
Playthings in stomach, 188.
Podophyllum, poisoning by, 286.
Poisoning by acetic acid, 266.
Poisoning by aconite, 286.
Poisoning by acorns, 286.
Poisoning by aloes, 286.
Poisoning by American water hemlock, 285.
Poisoning by ammonia, 264.
Poisoning by anemone, 286.
Poisoning by antimony, 273.
Poisoning by army worm, 288.
Poisoning by arsenic, 269, 271.
Poisoning by artichokes, 286.
Poisoning by astragalus, 287.
Poisoning by azedarach, 286.
Poisoning by bacteria, 289.
Poisoning by barium, 279.
Poisoning by bluestone, 276.
Poisoning by box leaves, 284.
Poisoning by brine, 268.
Poisoning by bromine, 276.
Poisoning by bryony, 286.
Poisoning by buckwheat, 286.
Poisoning by cantharides, 288.
Poisoning by carbolic acid, 281.
Poisoning by castor seeds, 282.
Poisoning by chickweed, 286.
Poisoning by chromium, 280.
Poisoning by cicuta maculata, 285.
Poisoning by cicuta virosa, 286.
Poisoning by clematis, 286.
Poisoning by cockroach, 288.
Poisoning by colchicum autumnale, 285.
Poisoning by conium maculatum, 286.
Poisoning by copper, 276.
Poisoning by creosote, 282.
Poisoning by croton seeds or oil, 283.
Poisoning by cryptogams, 290, 292.
Poisoning by daffodils, 284.
Poisoning by digitalis, 286.
Poisoning by ergot, 289.
Poisoning by euphorbia, 283.
Poisoning by fungi, 289, 291.
Poisoning by galega, 286.
Poisoning by giant fennel, 286.
Poisoning by honey dew, 292.
Poisoning by horsetail, 286.
Poisoning by iodine, 276.
Poisoning by iron, 279.
Poisoning by laburnum, 286.
Poisoning by lathyrus, 286.
Poisoning by lolium temulentum, 286.
Poisoning by male fern, 286.
Poisoning by melilot, 286.
Poisoning by mercurialis annua, 286.
Poisoning by mineral acids, 266.
Poisoning by moulds, 289, 290.
Poisoning by muriatic acid, 266.
Poisoning by mustard, 287.
Poisoning by nitrate of soda, 268.
Poisoning by nitric acid, 266.
Poisoning by nux vomica, 286.
Poisoning by œnanthe crocata, 286.
Poisoning by oxalic acid, 266.
Poisoning by oxytropis, 287.
Poisoning by Paris green, 269.
Poisoning by phosphorus, 272.
Poisoning by phytolacca, 286.
Poisoning by podophyllum, 286.
Poisoning by poppy, 286.
Poisoning by potash, 265.
Poisoning by potatoe beetle, 288.
Poisoning by potatoe tops, 286.
Poisoning by ranunculus, 284.
Poisoning by resinous plants, 286.
Poisoning by rhododendron, 286.
Poisoning by ryegrass, 286.
Poisoning by salts of mercury, 274.
Poisoning by saltpeter, 268.
Poisoning by savin, 286.
Poisoning by silver, 278.
Poisoning by smut, 289.
Poisoning by snapdragon, 286.
Poisoning by soda, 265.
Poisoning by sodium chloride, 267.
Poisoning by spoiled potatoes, 296, 300.
Poisoning by spurge laurel, 283.
Poisoning by spurry seeds, 286.
Poisoning by St. John’s wort, 286.
Poisoning by strychnia, 286.
Poisoning by sulphur, 275.
Poisoning by sulphuric acid, 266.
Poisoning by tares, 286.
Poisoning by tartar emetic, 273.
Poisoning by tobacco, 286.
Poisoning by toxins in food and water, 292.
Poisoning by trefoil, 286.
Poisoning by vetches, 286.
Poisoning by veratrum viride, 285.
Poisoning by white vitriol, 277.
Poisoning by yew, 286.
Poisoning by zinc, 277.
Poisoning, chronic, by arsenic, 271.
Poke root, poisoning by, 286.
Polypi on lips, 6.
Poppy poisoning, 286.
Postpharyngeal abscess, 58.
Potash and gastro-enteritis, 265.
Potato beetle, poisoning by, 288.
Potato tops, poisoning by, 286.
Pseudomembranous enteritis in birds, 226.
Pseudomembranous enteritis in cattle, 223.
Pseudomembranous enteritis in dogs, 225.
Pseudomembranous enteritis in sheep, 224.
Pseudomembranous enteritis in solipeds, 221.
Pseudomembranous pharyngitis in cattle, 62.
Pseudomembranous pharyngitis in dogs, 66.
Pseudomembranous pharyngitis in pigeons and chickens, 67.
Pseudomembranous pharyngitis in sheep, 64.
Pseudomembranous pharyngitis in solipeds, 61.
Pseudomembranous pharyngitis in swine, 65.
Ptomaines and toxins of brine, 268.
Ptyalism, 39.
Rank vegetation as a cause of stomatitis, 9.

Rape cake, stomatitis from, 27.
Ranunculus poisoning, 284.
Rectum, paralysis of, 371.
Red dysentery in cattle, 258.
Resinous plants, poisoning by, 286.
Rhododendron, poisoning by, 286.
Ricinus communis poisoning, 282.
Reticulum, hernia of, 367.
Reticulum, tumors of, 122.
Retropharyngeal abscess, 58.
Rumen, actinomycosis of, 123.
Rumen, balls of vegetable fibre in, 116.
Rumen, foreign bodies in, 118.
Rumen, gaseous fermentation in, 96.
Rumen, hair balls in, 116.
Rumen, impacted, 108.
Rumen, inflammation of, 114.
Ruminitis, 114.
Rumenotomy, 113.
Rumen, overloaded, 108.
Rumen, parasites of, 122.
Rumen, puncture of, 104.
Rumen, tumors of, 122.
Ruminants, chronic gastric catarrh in, 171.
Ruminants, cryptogamic poisoning in, 295.
Ruminants, impaction of colon in, 203.
Rupture of intestine, 332.
Rupture of stomach, solipeds, 182.
Ryegrass poisoning, 286.
Saccharine diabetes, 416.

Sacculated bowel, 340.
Saliva, excessive secretion, 39.
Salivary calculus, 40.
Salivary ducts, dilation of, 40.
Salivary fistula, 40.
Salivary glands, diseases of, 38.
Salivary glands, surgical lesions, 46.
Saliva, suppression of, 38.
Salivation, 5, 39.
Salivation, mercurial, 32.
Saltpeter poisoning, 268.
Sand and gravel in stomach, 188.
Sarcoma in liver, 527, 531.
Sarcoma of intestine, 374, 377, 379.
Sarcoma of omasum, 133.
Sarcoma of spleen, 562.
Sarcoma of stomach, 191.
Savin poisoning, 286.
Schweinsberg disease, 503, 504.
Sclerostoma equinum, 210.
Scouring, 303.
Sequestrum in spleen, 564.
Silver salts, poisoning by, 278.
Smut, poisoning by, 289.
Snapdragon poisoning, 286.
Soda in gastro-enteritis, 265.
Sodium chloride, poisoning by, 267.
Soft palate, injuries to, 48.
Solipeds, acute catarrhal gastritis in, 160.
Solipeds, chronic gastric catarrh in, 170.
Solipeds, cryptogamic poisoning in, 290.
Solipeds, phlegmonous gastritis in, 162.
Solipeds, toxic gastritis in, 164.
Spanish flies, poisoning by, 288.
Spasm, intestinal, 308.
Spasmodic colic, 309.
Spirillum Metchnikowi, 256.
Spiroptera in gullet, 93.
Spleen, abscess of, 557.
Spleen, amyloid degeneration of, 563.
Spleen, anæmia of, 546.
Spleen, chronic congestion of, 550.
Spleen, diseases of, 545.
Spleen, foreign bodies in, 558.
Spleen, gangrene of, in swine, 564.
Spleen, glander nodules in, 564.
Spleen, hyperæmia of, 547.
Spleen, infarction of, 555.
Spleen, parasites of, 564.
Spleen, rupture of, 559.
Spleen, tubercles in, 564.
Spleen, tumors, of, 562.
Splenic hemorrhagic infarction, 555.
Splenic hypertrophy, 550, 551, 552, 553.
Splenic hypertrophy in dogs, 553.
Splenic hypertrophy in ruminants, 552.
Splenic hypertrophy in solipeds, 551.
Splenic hypertrophy in swine, 553.
Splenitis, 554.
Spurge laurel poisoning, 283.
Spurry seeds, poisoning by, 286.
Staggers, 124.
Stale fish, poisoning by, 302.
St. John’s wort, poisoning by, 286.
Stomach, bristle balls in, 116.
Stomach, dilatation of, 180.
Stomach, feather concretions in, 116.
Stomach, foreign bodies in, 187.
Stomach, hair balls in, 116.
Stomach, perforating ulcer of, 179.
Stomach, puncture of, 156.
Stomach, rupture of, solipeds, 182.
Stomach staggers, 124.
Stomach, torsion of, in dog, 184.
Stomach, tumors of, 191.
Stomach, tympany of, 150.
Stomach, ulceration of, 175.
Stomatitis, aphthous, 21.
Stomatitis, catarrhal in birds, 18.
Stomatitis, follicular, 21.
Stomatitis from buccal fermentation, 10.
Stomatitis from caustics, 35.

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Who Owns Knowledge Knowledge and

the Law 1st Edition Nico Stehr Bernd

Who Owns Outer Space?: International Law, Astrophysics,

Who Owns Haiti People Power and Sovereignty 1st Edition

Basic Knowledge and Conditions on Knowledge 1st Edition

Who Owns the News A History of Copyright 1st Edition

Patent Law and Women: Tackling Gender Bias in Knowledge

Knowledge-Guided Machine Learning: Accelerating

The Right to Housing in Law and Society 1st Edition

The Knowledge Café : Create an Environment for

Library of Congress Catalog Number: 2007037421

Library of Congress Cataloging-in-Publication Data

Who owns knowledge? : knowledge and the law / Nico Stehr

Introduction to Part 2 101

Introduction to Part 3 153

8. In Search of the Story 237

protected, however, it is not profitable to invest in the production of additional

ties, and does this really demand, as is claimed, alternatives to state-centered

Nico Stehr, Christoph Henning and Bernd Weiler

The empires of the future are the empires of the

If we are to believe Winston Churchill’s vision of the nature of future empires

production, or their labor power, is extensively curtailed through many state

Creative Activities and the Legal System

1 As a documentation of this case, see the blog www.scotusblog.com/movabletype/

3 For this notion, see Etkowitz and Webster (1995:480–505).

The Social Control of Knowledge

ment of scientific and technical knowledge is already extensive. In many ways,

The Economic System and the Law

entrepreneurs themselves — have other interests in the matter, be it status, phi-

tenburg, and Pardey, 2004:1295–1297)? Some critics foresee the danger of a

Moore, A.D. (2001) Intellectual Property and Information Control: Philosophical

The Social Contexts of

ence in the postmodern condition, nevertheless, pace Bora, science’s overall

continue to live. Before turning to the merits of Gupta’s eloquently expressed

Behind my unwillingness to grant Gupta the prerogatives of indigenous

* The assistance of Dennis Carlton and Roger Patterson is gratefully acknowledged.

A. Information Embodied in Human Capital

sess secret technical information or who have customer contact responsibility.

2 Contemporary distribution methods have made these cases something of an anach-

The central issue is not the desirability of such contractual arrangements

It [a post-employment restraint] is particularly distasteful if there is no effective

2. Reduction of competition. This argument is a form of the frequently en-

B. Information Embodied in Firms

6 “The difference between investment in training and in research and development

How meaningful the law’s protection of trade secrets is to firms is an open

Kidney, degeneration of, 431.

Laburnum poisoning, 286.

Maize, poisoning by damaged, 289.

Narcissus poisoning, 284.

Oat-hair balls in stomach, 187.

Rank vegetation as a cause of stomatitis, 9.

Saccharine diabetes, 416.

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