The path toward an alternative consequentialist framework for IP and related fields of law that affect social and cultural life

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2 Responses

  1. Deven says:

    “But I suspect that going down the CA path could lead to profound and systematic changes to IP and other related legal regimes.”

    Care to name one or two?

  2. Brett says:

    Well, this is the topic of a book I want to write, but unfortunately, have not yet written! And after reading Sunder’s book, I am even more inspired to do so.

    I think the systematic changes depend to some degree on how which capabilities you emphasize or how you work out priorities among capabilities. But one idea, which relates to something Mark McKenna mentioned in his post, is that going down this path could lead to a significant rethinking of how, when, and to what degree we rely on the market mechanism itself to allocate resources and satisfy needs related to cultural and social life. Most economic theories of IP, whether narrowly focused on incentives or more broadly focused on facilitating market exchanges, providing attribution and financial feedback to those who create, and so on, depend heavily on property-enabled markets as the means-system. As Mark noted, Sunder seems to embrace this aspect of the economic framework and seeks to reorient/repurpose and leverage it.

    However, to the extent that the market mechanism systematically fails to account for, value, or support certain capabilities, or to the extent that it distorts allocation of the resources upon which capabilities/opportunities depend, we might need to rethink that basic relationship. Perhaps copyright could/should be designed to facilitate another means/system, such as commons based peer production. Or perhaps the emphasis should be on designing copyright so that only impacts market economies and does not interfere with alternatives.

    Alright, this is a bit of a rambling reply, and I dislike writing in these comment boxes. I might need to write another blog post …