Purposive Hopes for Better IP
Golden, John M., Texas Law Review
Purposive Hopes for Better IP CREATION WITHOUT RESTRAINT: PROMOTING LIBERTY AND RIVALRY IN INNOVATION. By Christina Bohannan & Herbert Hovenkamp. New York, New York: Oxford University Press, 2012. 440 pages. $45.00.
In Creation Without Restraint,1 Christina Bohannan and Herbert Hovenkamp add to the growing body of books on what academics have commonly come to call a "crisis"-namely, the current state of United States' intellectual property (IP) laws and their interaction with policies of promoting both innovation and free-market competition. Bohannan and Hovenkamp embrace the terminology of "crisis,"2 but more fundamentally focus on a series of specific problems with how our modern patent, copyright, and antitrust laws operate and how their operation might be improved. Although they might not have hit on a cure-all, their diagnoses and proposed cocktail of reforms are well worth considering regardless of whether one accepts the crisis terminology. At least Justice Stephen Breyer of the United States Supreme Court seems to agree. Through multiple citations of Creation Without Restraint in an opinion for the Court he authored in Mayo Collaborative Services v. Prometheus Laboratories, Inc.,3 Bohannan and Hovenkamp's book has already made a notable appearance in public debate.4
The breadth of Bohannan and Hovenkamp's project impresses. They do not openly confine themselves to any particular type of innovation and define the term "innovation" broadly to encompass "any human idea that adds something important to what we already have."5 Further, the authors do not confine themselves to analyzing how one particular form of government action helps foster or impede innovation. Instead, the authors substantially take on at least three such regimes: modern patent, copyright, and antitrust laws. In some ways, they might be criticized for taking on too much at too fine a level of granularity: as Robert Merges has recently observed, presentday IP law by itself "is like one of those sprawling, chaotic megacities of the developing world"6-diverse, protean, and resistant of uniformly firm handles. Fortunately, the authors can draw on a depth of experience and knowledge in analyzing questions relating to IP and antitrust topics.7 The result is a combination of information and thought that should enrich the understanding of any reader.
Needless to say, a brief review cannot hope to do justice to such a book's contents.8 I start with a quick overview followed by a sampling of some of the book's more detailed contents.
The book has thirteen numbered chapters plus an introduction and epilogue. To my eye these fifteen subdivisions coalesce into essentially five parts. The first runs from the introduction through Chapter 3. This part presents relatively general thoughts about intellectual property, antitrust, and the workings of markets9 and concludes by arguing generally for a requirement of cognizable "IP injury" before the awarding of remedies for IP infringement.10 The second part, Chapters 4 and 5, focuses on the patent system, denies that antitrust "offer[s] a global fix" to its problems,11 and suggests a variety of reforms. The third part, Chapters 6 through 8, turns to copyright. This part describes how, to the apparent detriment of social welfare and free speech interests, the Copyright Act has come to "favor rentseeking special-interest groups rather than the general public,"12 and then outlines how courts might interpret the Constitution and Copyright Act "to reclaim copyright law for the public interest."13 The fourth part, Chapters 9 through 13, returns to more general concerns with competition, innovationsupporting policy, and various forms of "commons" or "semicommons" for the sharing of information resources.14 Finally, the book's fifth and shortest part-the "Epilogue"-provides a summary list of eleven reform proposals that draw on prior discussions.
What are some of the book's more specific contents? …