• January 19, 2012
    Creation without Restraint
    Promoting Liberty and Rivalry in Innovation
    Christina Bohannan and Herbert Hovenkamp

    By Christina Bohannan and Herbert Hovenkamp, law professors at The University of Iowa College of Law

    Promoting rivalry in innovation requires a fusion of legal policies drawn from patent, copyright, and antitrust law, as well as economics and other disciplines. Creation without Restraint looks first at the relationship between markets and innovation, noting that innovation occurs most in moderately competitive markets and that small actors are more likely to be truly creative innovators. Then we examine the problem of connected and complementary relationships, a dominant feature of high technology markets. Interconnection requirements, technological compatibility requirements, standard setting, and the relationship between durable products and aftermarket parts and supplies all involve interconnection, or “tying.” But views about the practice tend toward two extremes. Some see tying as inherently anticompetitive, while others view it as unexceptionally benign. In fact, bundling products or technologies is essential in high technology markets and most of it is socially beneficial, but some possibilities of abuse nevertheless remain. 

    Identifying good substantive legal rules for facilitating innovation is often very difficult. Two generations ago antitrust law addressed problems of complexity by shifting the focus to harm. The courts reasoned that they could often avoid unmanageable substantive doctrine by considering whether the plaintiff had suffered the appropriate kind of injury. Plaintiffs who are injured by more rather than less competition should be denied a remedy. In the case of patent and copyright law, the appropriate question is whether an infringer’s conduct served to undermine the right holder’s incentive to innovate, with incentives measured from before the innovation occurred. Some IP infringements do no harm to the incentive to innovate; others actually make the right more rather than less valuable. In these situations relief should be denied without inquiry into the merits of the infringement case.

    Patent and copyright law are both in crisis today – major problems include overissuance, overly broad and ambiguously defined protections, and rules that permit both patentees and copyright holders to make broad claims on unforeseen innovations that lie in the future. The result has been that many patents are valueless, while others have very considerable value precisely because they enclose ideas or technologies that rightfully belong in the public domain. Patent law could be greatly improved if inventions were tied to real, nonobvious technology actually in the patentee’s possession at the time its application was filed, and if patentees were obliged to give comprehensible and timely notice of their inventions. Copyright law would be greatly improved by an aggressive theory of harm that reduces the scope of the derivative works right and increases the scope of fair use. In Eldred the Supreme Court suggested that the First Amendment should not be an important copyright infringement defense because the Constitution’s IP clause and the initial copyright act were passed “close in time,” leading to an inference that Congress must have considered these concerns. But the original copyright act bears little resemblance to the expansive coverage granted by the current Act, passed almost two centuries later.

  • October 8, 2009
    Moral Panics and the Copyright Wars
    William Patry

    I wrote Moral Panics and the Copyright Wars with the bold goal of changing the way we think about copyright. I set this goal not out of arrogance, but out of despair - despair over the way debates over the important social issues raised by the creation and use of works of authorship have degenerated into little more than election-year mudslinging. Language has been an important weapon in these tussles, as the warring parties attempt to demonize each other.

    I examine the history and myths surrounding the copyright, as well as various origin stories that attempt to find in the past people's present ideologies. I assert that copyright is a set of social relations, intended to serve the important social goals of furthering knowledge and creativity. Approaching copyright this way avoids the "them versus us" dichotomy we currently face where copyright owners claim copyright is a form of Blackstonian private property over which they can exercise absolute dominion, and conversely, where those attacking what they regard as excessive copyright protection regard copyright as an evil monopoly to be repealed.

    Instead, the book explains why copyright should be regarded as a government program, intended to provide incentives for socially useful purposes. As a set of social relations, we must accept that copyright should be regulated in order to ensure it is serving its valuable public purpose. This means that calls for stronger copyright, just like calls for weaker copyright miss the point entirely; we have need only of effective copyright laws, with "effective" being measured by whether our copyright laws are serving their intended purpose. I reject therefore the copyright equivalent of free market fundamentalism, in which it is asserted markets will always represent the most rational - and therefore best - outcome.