Purposive Hopes for Better IP
13 Pages Posted: 4 Jun 2013 Last revised: 29 Dec 2013
Date Written: May 1, 2013
In Creation Without Restraint, Christina Bohannan and Herbert Hovenkamp add to the growing body of books on what academics have commonly come to call a “crisis” — namely, the current state of United States’ intellectual property (IP) laws and their interaction with policies of promoting both innovation and free-market competition. Bohannan and Hovenkamp suggest a variety of ways in which our modern patent, copyright, and antitrust laws might be improved to better promote the creation and distribution of new matter. Drawing on the example of U.S. antitrust law, they argue that private plaintiffs seeking to enforce IP rights should have to show “IP injury” — i.e., “likely interfere[nce] with IP holders’ decisions to create or distribute their works.” In this and other proposals, Bohannan and Hovenkamp might not have hit on a cure-all. Further, in the wake of the “new textualism,” their contentions might benefit from more extended and forceful argument for the purposive approach to statutory and constitutional interpretation that they embrace. At the very least, however, Bohannan and Hovenkamp’s discussion, analysis, and prescriptions add rich perspective to debates about how to manage what Robert Merges has characterized as the “sprawling, chaotic megacit[y]” of IP law.
Suggested Citation: Suggested Citation