This Article assesses intellectual property law’s emerging role as a modern form of sumptuary law. The Article observes that we have begun to rely on certain areas of intellectual property law to provide us with the means to preserve our conventional system of consumption-based social distinction, our sumptuary code, in the face of incipient social and technological conditions that threaten the viability of this code. Through sumptuary intellectual property law, we seek in particular to suppress the revolutionary social and cultural implications of our increasingly powerful copying technology. Sumptuary intellectual property law is thus taking shape as the socially and culturally reactionary antithesis of the more familiar technologically progressive side of intellectual property law. The Article identifies the conditions that are bringing about this peculiar juncture of intellectual property law and sumptuary law and evidences this juncture in various evolving intellectual property law doctrines. The Article further predicts that intellectual property law cannot succeed in sustaining our conventional system of consumption-based social distinction and identifies in this failure the conditions for a different and superior system of social distinction, one characterized more by the production of distinction than by its consumption and one in which intellectual property law promises to play a crucial – and progressive – social role.
Ninth Circuit Requires Analysis of Fair Use Before Issuing of Takedown Notices.