Sunder, Madhavi, Stanford Law Review
INTRODUCTION I. IDENTITY POLITICS A. From Redistribution to Recognition B. The Property Turn in Identity Politics C. The Identity Turn in Intellectual Property II. INTERNET PROTOCOL A. The Technology of Semiotic Democracy B. Techonomics and Technocracy III. INTELLECTUAL PROPERTY A. The Failure of Utilitarianism as a Comprehensive Theory of Intellectual Property B. Case Studies 1. MGM v. Grokster 2. New from the Creative Commons: The developing nations license 3. Access to essential medicines 4. Geographical indications 5. Fan fiction, mash-ups, machinima 6. A2K: Access to knowledge IV. TOWARD A CULTURAL ANALYSIS OF INTELLECTUAL PROPERTY A. Development as Freedom B. Intellectual Property as Social Relations C. The New Enlightenment D. Foundations and Applications of a Cultural Theory E. IP Originalists' Demurral CONCLUSION
A quarter century ago, Margaret Jane Radin interrupted the hegemonic law and economies discourse on property with a theory of personhood. (1) Earlier, the New Jersey Supreme Court had declared in the historic ease of State v. Shack that "[p]roperty rights serve human values." (2) From these our modern social relations" theory of property was born. (3) Property rights today balance myriad values, from efficiency to personhood, health, dignity, liberty, and distributive justice.
Now, the pundits declare that "[i]ntellectual property has come of age...." (4) But is intellectual property mature enough to face the world? Unlike its cousins property law and the First Amendment, which bear the weight of values such as autonomy, culture, equality, and democracy, in the United States intellectual property is understood almost exclusively as being about incentives. (5) Its theory is utilitarian, but with the maximand simply creative output. Intellectual property utilitarianism does not ask who makes the goods or whether the goods are fairly distributed to all who need them. To put it bluntly, there are no "giant-sized" (6) intellectual property theories capable of accommodating the full range (7) of human values implicit in intellectual production. (8) But there should be.
Intellectual property has grown, (9) perhaps exponentially, but its march into all comers of our lives and to the most destitute comers of the world has paradoxically exposed the fragility of its economic foundations while amplifying its social and cultural effects. It is increasingly evident that utilitarianism fails as a comprehensive theory of intellectual property, either descriptively or prescriptively. Scholars in both economics and law are unable to make economic sense of new rights. (10) Meanwhile, rapid-fire technological advances and new forms of creative output, from the advent of open source collaborative networks (11) to garage bands, remix culture, and the World Wide Web itself, (12) undermine utilitarian intellectual property law's very premise: that intellectual property rights are necessary to incentivize creation. (13)
At the same time, the legal regime of intellectual property has insinuated itself more deeply into our lives and more deeply into the framework of international law, affecting everything from the recreational home user's ability to share music, to the farmer's ability to replant seed, to the production and distribution of life-saving drugs. Indeed, with full compliance to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement now required (as of January 1, 2005) in all but the world's very least developed countries, (14) intellectual property law becomes literally a question of life or death. (15)
Despite these real world changes, intellectual property scholars increasingly explain their field through the lens of economics. Giving evidence to Amartya Sen's observation that "[t]heories have lives of their own, quite defiantly of the phenomenal world that can be actually observed," (16) legal scholars continue to understand intellectual property as solely a tool to solve an economic "public goods" problem: nonrivalrous and nonexcludable goods such as music and scientific knowledge will be too easy to copy and share--thus wiping out any incentive to create them in the first place--without a monopoly right in the ideas for a limited period of time. …