Reading Intellectual Property Reform Through the Lens of Constitutional Equality

22 Pages Posted: 18 Feb 2015  

Jessica M. Silbey

Northeastern University School of Law

Date Written: 2015

Abstract

In reviewing three books, Robert Spoo's Without Copyright, Bill Herman's The Fight for Digital Rights, and Aram Sinnreich's The Piracy Crusade, for Tulsa Law Review's annual book review volume, this paper explores new themes and structures in Supreme Court cases about intellectual property. Studying the new histories and processes described in the books under review helps reveal constitutional equality frameworks in Supreme Court cases about intellectual property usually understood as cases about congressional deference and property rights.

This article explains how many of these Supreme Court cases about IP reflect a range of equality modalities - e.g., Aristotelian, anti-subordination and distributive justice (basic capability equality) - to make sense of IP regulation as consistent or inconsistent with the constitutional prerogative of “progress.” Concerns over dignity interests, anti-hierarchy values, and a preference for a legal regime that leans more explicitly towards distributive justice than an unregulated market populate the Supreme Court cases. This paper looks closely at a handful of Supreme Court cases - such as Eldred, Grokster, and Golan - to show how each reveals arguments with one (if not more) of these constitutional modalities of equality as their central structuring mechanism.

Keywords: intellectual property, copyright, trademark, patent, constitutional law, equality, distributive justice, legal history, Supreme Court

Suggested Citation

Silbey, Jessica M., Reading Intellectual Property Reform Through the Lens of Constitutional Equality (2015). Tulsa Law Review, Vol. 50, p. 549, 2015; Suffolk University Law School Research Paper No. 15-8. Available at SSRN: https://ssrn.com/abstract=2566424

Jessica M. Silbey (Contact Author)

Northeastern University School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

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