Generative Interests and Legal Relations: Permission, Capability Impairment, and Remedy

This paper is analytic jurisprudence. It states no proposition about the law of any jurisdiction, and its single positive-law citation is a regulatory record used only for the dates it records. Its subject is a family of inferences that recur in argument about whether and how generative capacity could be legally protected, and its claim is that several of them are invalid on grounds that do not depend on any jurisdiction's content. The first is the inference from the absence of an intellectual-property exclusion right to a general permission to use. On a Hohfeldian analysis, the absence of a claim-right establishes at most a privilege, held by one party, against one party, with respect to one act, under one body of law, and revocable by anyone holding a power to alter the relation. Reading it as a permission commits five distinct and separable fallacies, which the paper enumerates and proves. The second concerns the object of protection. Generative capacity is directed at futures, and argument that protects the specific futures a party would have realized is argument from a counterfactual whose content is not merely uncertain in magnitude but indeterminate in identity. The paper argues that the available object is a presently existing generative position, and that this substitution reduces the counterfactual burden without eliminating it. The third concerns proof. Present impairment, elevated risk to future trajectories, and the value of unrealized trajectories form a strict entailment chain with nested evidentiary requirements, so a liability rule that conditions the recognition of injury on proof of value renders established impairments unremediable — which is a choice about remedial architecture rather than a consequence of the injuries. The fourth concerns instruments. The candidate interests — attribution, confidentiality, portability, participation, benefit sharing, access, and non-foreclosure — are pairwise independent, and an exclusive right to exclude is neither necessary nor sufficient for any of them, which is an argument against inventing a property form rather than for it. The fifth concerns remedies: those whose content is a state of affairs are determinable from impairment-level facts, while those whose content is a sum are not, so a compensation-only repertoire can address none of the injuries identified here. The paper closes with five research obligations stating what any doctrinal claim in this area would require and recording that none is discharged.