IPR can’t spur innovation now and only creates bad innovation, but rejecting the embedded logics of it allows for good innovation

Jessica Silbey, “Against Progress”, Stanford University Press, Pages 306-308, 7 June 2022

A third hypothesis explaining the effect of IP’s mainstreaming in everyday culture is that intellectual property law is a new terrain over which to fight about old problems in service of an updated form of “progress” focused on shared resources, resources that are not limited to clean air and water but also include information and privacy. 13 This new terrain reframes old debates. I do not mean to imply it is a return to an idyllic past or that this evolution “against progress” reflects the cyclical rise and fall of dominant industries, a push and pull of history. 14 My point is simpler but also time-sensitive. Interrogating emerging fundamental values deeply rooted in our system of constitutional democracy within the new contexts of intellectual property reminds us that we have not achieved equality, protected privacy, fortified our democratic institutions, or provided a fair opportunity to thrive for all in this age of rapid technological innovation, and these failures are spreading and becoming potentially cataclysmic. The contemporary intellectual property stories in this book undermine the optimism of Information Age capitalism, born of individualism and market freedom, and urge us to shift gears. The stories emphasize instead a kind of egalitarianism, structured around a revitalization of public interests and human interconnectedness that the Digital Age makes more urgent and possible. These new intellectual property stories re-center and extend the public domain’s importance and situate our shared fate within it as a measure of hopeful progress for the twenty-first century.

This is another way of saying that intellectual property has become a legal and cultural touchstone for contemporary problems. Intellectual property originally provided opportunity for economic and social mobility as an antidote within a market system of entrenched class hierarchies. It was both a lottery ticket and evidence of creator and inventor status. When the lottery ticket hit, the winners felt justified in their efforts and embraced the system that helped them. But the massive accumulation of intellectual property over the twentieth century has not helped the majority of everyday creators and innovators. Conceived in consequentialist and utilitarian terms —collect IP to enable financial freedom and admirable social status for the most people possible—IP’s failure to produce those consequences has led to its transfiguration in moral, value-based terms that cannot be measured in numbers or with cost-benefit calculations. Some IP owners still assert control to bring about financial rewards or prevent financial ruin. But as this book shows, many IP owners and the arguments wielded on their behalf ground IP assertions in non-negotiable moral imperatives—equality, selfdetermination, privacy, and community-based human flourishing.

We can sustain simultaneous commitments to both consequentialist and absolutist moral reasoning in law and society by allocating them to separate jurisdictions or social categories (for instance, by distinguishing rules among strangers from those within families). But in the twenty-first century, intellectual property debates are a site of clashing jurisdictions and social categories, challenging boundaries and proposing reform. When intellectual property looks like a consequentialist system and partners with the view of technological progress driven by accumulation, it denies or obscures the material and moral risks of “progress as more.” When harms and risks are inevitably exposed, IP claimants then depart the consequentialist and utilitarian script and look elsewhere for justification. Courage is required to experiment with ethical justifications and new forms of governance (new rules or jurisdictions) that limit private acquisition and instead promote public-mindedness, especially given rising levels of precarity. 15 But it turns out that pursuing technological innovation and accumulation without ethical constraints, as IP law has over the twentieth century, produces identifiable human devolution and devastation.

Intellectual property law and culture has pursued a manifest destiny approach to capitalist acquisition in the twenty-first century. It homogenized cultural tastes and polarized politics and journalism, all the while paying lip service to diversity, democratic self-governance, and individualized identities. The new IP stories in this book reject the malevolence that characterizes manifest destiny’s “aggressive land acquisition and imperialism”16 by inflecting intellectual property law with the constitutional ideals of equality, privacy, distributive justice, and inclusive democratic institutions. These IP stories are against progress insofar as it means more, and they pursue a better future by rejecting as wasteful, excessive, and unfair the outsized and imbalanced wealth our nation’s current system produces. These new IP stories help reimagine and reshape debates about the role of fundamental values in a pluralistic society in support of creativity and innovation in the internet age.