27. The most recent example of this phenomenon is multiple legal roadblocks in bringing GoldenRice to market. For a fascinating study of the various issues involved and the strategies for working around them, see R. David Kryder, Stanley P. Kowalski, and Anatole F. Krattiger, "The Intellectual and Technical Property Components of Pro-Vitamin A Rice (GoldenRiceTM): A Preliminary Freedom-to-Operate Review," ISAAA Briefs No. 20 (2000), available at http://www.isaaa.org/Briefs/20/briefs.htm. In assessing the economic effects of patents, one has to balance the delays and increased costs caused by the web of property rights against the benefits to society of the incentives to innovation, the requirement of disclosure, and the eventual access to the patented subject matter. When the qualification levels for patents are set too low, the benefits are minuscule and the costs very high—the web of property rights is particularly tangled, complicating follow-on innovation, the monopoly goes to "buy" a very low level of inventiveness, and the disclosure is of little value.
28. Michael A. Heller and Rebecca S. Eisenberg, "Can Patents Deter Innovation? The Anticommons in Biomedical Research," Science 280 (1998): 698-701.
29. Int'l News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting).
30. Yochai Benkler, "Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain," New York University Law Review 74 (1999): 354, 361, 424.
31. The so-called "business method" patents, which cover such "inventions" as auctions or accounting methods, are an obvious example. See, e.g., State St. Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368, 1373 (Fed. Cir. 1998).
32. Database Investment and Intellectual Property Antipiracy Act of 1996, HR 3531, 104th Cong. (1996); Collections of Information Antipiracy Act, S 2291, 105th Cong. (1998).
33. See, e.g., Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340, 350 (1991): "Copyright treats facts and factual compilations in a wholly consistent manner. Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted." To hold otherwise "distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of 'writings' by 'authors.' " Ibid., at 354.
34. See Eisenberg, "Patenting the Human Genome"; Haas, "Wellcome Trust's Disclosures."
35. Those who prefer topographical metaphors might imagine a quilted pattern of public and private land, with legal rules specifying that certain areas, beaches say, can never be privately owned, and accompanying rules giving public rights of way through private land if there is a danger that access to the commons might otherwise be blocked.
36. See Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001).