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Chicago-Kent College of Law




This symposium essay is adapted from my forthcoming book Against Progress: Intellectual Property and Fundamental Values in the Internet Age (Stanford University Press 2021 forthcoming). The book’s primary argument is that, with the rise of digital technology and the ubiquity of the internet, intellectual property law is becoming a mainstream part of law and culture. This mainstreaming of IP has particular effects, one of which is the surfacing of on-going debates about “progress of science and the useful arts,” which is the constitutional purpose of intellectual property rights.

In brief, Against Progress describes how in the 20th century intellectual property legal doctrine and scholarship focused on economic models of progress, which were framed in terms of wealth accumulation and market theories facilitating economic growth. The rise of digital technology that facilitates all sorts of copying at the turn of the century puts pressure on the anti-copying regulations defining intellectual property. Combine this technological development with the focus on economic rationales and incentive-based reasons for exclusive rights, and federal intellectual property rights expand to regulate more of the behavior that technology enables. The result is an increase in the amount of intellectual property itself: more copyrighted works, more patents and more trademarks.

Despite expanding scope and the rise of “more” intellectual property, Against Progress explains how turn-of-the century intellectual property practice challenges the “progress as more” paradigm. Through various methodological interventions – close reading of cases, doctrinal analysis, and various qualitative empirical methods – Against Progress demonstrates how contemporary accounts of intellectual property are not primarily anchored by claims of “more” or in economic growth terms. Instead, creative and innovative practices (and disputes concerning them) revolve around adjacent values and principles central to our constitutional system such as equality, privacy, and community or general welfare.

In this short essay, I provide only two examples of the shifting narratives at play in intellectual property disputes that are refocusing concerns from economic resource allocation to fundamental values that ground the rule of law in the United States. These examples are drawn from the chapter on equality, which traces themes of equal treatment and substantive equality doctrine through intellectual property cases at the United States Supreme Court. This essay concerns two controversial copyright cases, but the chapter discusses cases about patent,

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