Federal courts pay close attention to recent shifts.

Matthew Pangle, “A Modern Reconceptualization of Copyrights as Public Rights,” Vanderbilt Journal of Entertainment and Technology Law, 07-xx-2020, https://cdn.vanderbilt.edu/vu-URL/wp-content/uploads/sites/356/2022/07/20025356/2.Pangle-Article_FINAL_Master.pdf

In recent years, both Congress and the Supreme Court have demonstrated efforts to synthesize legal doctrines with contemporary intellectual property developments. For example, in 2012, Congress passed the America Invents Act (AIA), implementing a major and much-needed overhaul of patent law.130 Additionally, in 2018, Congress passed the Music Modernization Act (MMA), a comprehensive statute attempting to facilitate more accurate royalty payments to music professionals in an increasingly digital music industry.131 The legislation came as a much-needed update to copyright law which had been thrown off balance by the emergence of digital streaming services like Spotify.132 The Supreme Court has similarly been willing to reconsider certain legal principles to account for new intellectual property developments. As recently as 2017, the Supreme Court struck down the Disparagement Clause of the Lanham Act as a facially unconstitutional viewpoint-discriminatory restraint on trademarks.133 The Court held that because trademarks are private—rather than government—speech, First Amendment protections apply to their use.134

Both Congress and the Supreme Court’s recent actions point to the ongoing need to rethink the purpose of intellectual property regimes and ensure their alignment with society and the economy’s use for intellectual property. Perhaps, just as Justice Holmes posited in 1922,135 the time has come for another reconceptualization of property rights—this time sparked by intellectual property. The momentum for such a reconceptualization of intellectual property rights has already begun in patent doctrine with Oil States. 136