an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Intellectual property reform most often questions the most effective levers for “promoting progress” by incentivizing creativity and innovation. However, substantial ambiguity exists as to what “progress” means, particularly in some of the most notable (and critiqued) court cases interpreting intellectual property statutes (e.g., Aereo, Golan, Eldred, Bowman). What is the content of “progress” towards which IP law reaches?
I have been thinking about this question from multiple levels, beyond the drafting and legislative history of the Constitution’s clause. If we think that it matters that those engaging in creative and innovative work perceive an alignment between IP protection and “progress” in their field or culture generally, presumably we would think it important to ask those people and qualitatively measure and analyze their answers. I have done that to some extent over several years in dozens of interviews with creative and innovative professionals and their business managers or lawyers. It may perhaps be unsurprising that many people who make, distribute and commercialize creative or innovative work otherwise protected by IP do not think that IP promotes “progress” as defined by facilitating more and better work. Perhaps less surprising, however, is that “progress” to them appears to resonate less with quantity and quality of work and more with equality and distributive justice regarding their practices and experiences of working.
To be sure, mining the empirical data set for substantive and narrative themes about how IP helps or hinders “progress” of science and art reveals a diversity of “progress” values. This presents an opportunity and perhaps several puzzles. Insofar as the mandate to Congress is to “promote progress of science and useful arts” through certain exclusive rights, if the kind of progress that creative and innovators care about and toward which they strive is better known, it may be easier to tailor regulation to achieve those goals. Similarly, urging a more specific articulation of what “progress” might mean for congressional legislation aimed at it, would also be an improvement in government transparency.
Puzzles may nonetheless exist in the way that courts resolve intellectual property disputes as regards IP legislation, sometimes focusing on a narrow view of “progress” in terms of IP scope while also relying on broader and more fundamental values, such as dignity and equality, in the application of the facts to the statute at issue. I see this happening quite clearly in certain copyright cases, such as Aereo, Golan v. Holder and Eldred v. Ashcroft, and Grokster. In the paper for this conference, written as a book review of three books exploring distributive justice in IP, I describe how several equality modalities (Aristotelian equality and anti-subordination equality) frame these Supreme Court cases but do so contrary to how an evaluation of substantive or formal equality would ordinary proceed.
Most theories of IP explain how exclusive property entitlements incentivize art and science production by facilitating rent through exclusivity. In contrast to this utilitarian theory of IP, my qualitative data, read alongside the Supreme Court cases, suggests that equality is a governing principle for the just distribution of IP rights (as well as IP’s exceptions and limitations). Insofar as equality (or equal protection) is a national value or a governmental mandate, whether and how it is furthered through IP regulation and, vice versa, how IP regulation is shaped by equality norms, becomes a governance issue with repercussions beyond the particular material instantiation of creativity and invention.
But what might be the pitfalls to applying equality theories to IP regulation? The Supreme Court’s analyses about the proper scope and strength of IP statutory provisions explicitly elaborates upon constitutional modalities of equality as developed in other areas of law, such as in gender and race discrimination. What risks or analytical anomalies exist in reading IP through these lenses? If critiques of some of the recent Supreme Court cases that broaden and strengthen IP exclusivity are persuasive, can we better understand what went wrong (and what could go better in the future) by attending to the equality discourse they contain? And although the qualitative data from the interviewees reveals norms of fairness and equal dignity central to the interviewees’ professional wellbeing, what are the risks of leading a reform effort based on grounded norms and expectations of creative and innovative practices rather than on first principles around which our IP laws were structured?
I do not have answers to these questions, but this developing project aims to address many of them as I continue to study the data and look closely at series of cases and case-sets organized around various common themes and disputes in creative and innovative fields.
Jessica Silbey is Professor of Law at Suffolk University Law School. She can be reached at jsilbey at suffolk.edu.