Intellectual Property

Intellectual Property Article

Intellectual Property Law and the Sumptuary Code

Vol. 123 No. 4 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.
Intellectual Property Article

Foreseeability and Copyright Incentives

Vol. 122 No. 6 Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in certain ways, it recognizes that its incentive structure has outer limits and that failing to calibrate an entitlement or liability with these limits in mind is likely to prove inefficient. The principal mechanism that it employs to this end is the concept of foreseeability. Premised on the idea that individuals do not ordinarily consider consequences that are temporally or causally far removed from their actions, foreseeability allows courts to balance a regime’s ex ante incentive effects against its ex post costs when determining liability.