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Author: Zahr Said

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A Response to Madhavi Sunder’s From Goods to a Good Life

Madhavi Sunder’s new book, From Goods to a Good Life, offers an interdisciplinary reframing of intellectual property law oriented around the normative view that IP law can be a powerful source for increasing human flourishing. Her title suggests a movement away from a view of IP as an area of law focused on trade in goods, and toward a view of IP as a tool for increasing global social justice for all. Sunder’s project, in other words, seeks to reorient IP, in a way I would characterize as moving from things to people. As part of that return to the drawing board, Sunder both recognizes the extent to which law and economics has directed much of the scholarship and policy produced in this area and she advocates for a weakening of its hold. If a word cloud for the prevailing conception of IP included efficiency, utility, and output by the few for consumption by the many, a word cloud for Sunder’s normative vision would instead feature justice, human flourishing, and participation by the many for the many.

The defining feature of Sunder’s conceptualization of IP may be its breadth. For example, her view is not limited to remix culture or the often irreverent creative practices of those born-digital; she sees IP as having the capacity to influence humankind much more broadly, from health and education to cultural freedom and a host of human capabilities whose articulation draws on the work of Amartya Sen, Martha Nussbaum, and Peggy Radin. In her words: “[I]ntellectual property laws bear considerably on the ability of humankind to flourish, affecting everything from the developing world’s access to food, textbooks, and essential medicines, to the ability of citizens everywhere to democratically participate in political and cultural discourse, to the equal opportunity to earn a livelihood from one’s intellectual contributions toward making a better world” (22). As a normative matter, then, Sunder situates IP law squarely at the center of “a free and democratic society.” Consequently, there is a sense of urgency in the book’s assessment of the current law and its many imperfections. Perhaps most central to Sunder’s vision is her criticism of current IP policy’s failure to prioritize distributive justice, which leads it instead to the mechanistic and reductive view of incentives creation as the stated rationale most crucial to IP.

I am entirely in sympathy with Sunder’s assessment of the need to incorporate, together with the economic metanarrative of IP, competing metanarratives whose broader and different implications ought to allow us to prioritize values other than those outlined by the law-and-economics agenda. I share Sunder’s vision of the importance of facilitating cultural participation and equalizing gross trade imbalances, such as those that defined an illustrative and, in many ways, very disturbing dispute between Starbucks and Ethiopian coffee farmers (pp. 40-43). Finally, I celebrate Sunder’s interdisciplinary approach to the set of complex legal, economic, and cultural problems she describes. To the extent that, in the conversation that emerges over the next couple of days during this online Symposium, I offer questions and critiques, I do so in the spirit of seeking to elaborate on and to refine crucial parts of a shared progressive discourse whose goal is to improve IP law on behalf of a greater good.

I want to close with an overarching question I was left with at the end of the book, a question that circles back to its start. Does it matter whether the status quo of IP is, in fact, as strongly utilitarian and economic as Sunder paints it? It strikes me that the characterization of IP as wholly driven by efficiency (25) is something of a caricature that does more to undermine Sunder’s claim than to strengthen it. Yet at a number of points, Sunder reiterates and forcefully rejects the dominance of the economic school of thought, lamenting that it is the only one to have gained traction in the scholarship in recent years. Immediately, I found myself thinking of a counternarrative, in the great wealth of scholarship by–to cherry pick a few examples from different corners of IP law—Funmi Arewa, Margo Bagley, Barton Beebe, Julie Cohen, Christine Haight Farley, Laura Heymann, Sonya Katyal, Roberta Kwall, Rebecca Tushnet, and Fred Yen. Sunder herself ought to be named on the list, and it would also include, among so many others, Rob Merges, who has most recently joined its ranks by producing a book-length apologia of sorts, Justifying Intellectual Property, in which he seeks to correct some of his own earlier entrenchment in the economic take on IP. These scholars have all challenged economic modes of approaching IP or have sidestepped them altogether in favor of other approaches, such as moral rights, law and morality, law and aesthetics, semiotics, literary theory, and so on.

Sunder is familiar with all of their work, and that such work can be characterized as a “counternarrative” surely supports Sunder’s claim that the dominant strain is more economic than not. Still, it’s not clear to me that the IP academy is quite the one-party nation the book makes it out to be. Further, even if the scholarship were as monofaceted in method as Sunder paints it as being, a great deal of Sunder’s book concerns itself with the practical implications of theories of IP. That is, scholarship in theory and law in practice need not mirror one another; indeed, they rarely ever do. Sunder herself admits that the narrow focus on incentives that seems to characterize the law-and-economics school has had less influence on actual case law outcomes than it has had in theory (29). (It scarcely needs stating but we ought perhaps to acknowledge together that the law-and-economics approach is not reducible solely to its incentives story; it has highlighted many other important elements in real-world instantiations of IP, such as transaction costs, free-riding, rent-seeking, signaling functions, and so on.)

It strikes me that among Sunder’s many valuable contributions, her most powerful one lies in helping her reader understand how amplifying current intellectual property discourse to include other metanarratives can potentially increase global social justice and serve many more constituents than IP law does now. Even if the economic discourse constitutes only one of many central discourses shaping the regulation of culture, Sunder’s work encourages us to move in a direction that broadens beyond law and economics, and does not define itself in opposition to it. Instead, Sunder’s view of human capabilities has the potential to diversify the rights and interests and even the very notion of culture that provides the basis for IP law. Our participation in this project might help to shift attention to loftier goals Sunder lays out, such as promoting free and fair cultural exchange; facilitating mutual understanding; nourishing the capacity for creative work even among those who lack the means to pursue such work otherwise; encouraging individual expression; and curating knowledge for the generations that have come before and for the generations that will follow. It is, of course, a lot to ask of a simple copyright symbol, or a not-so-simple trademark registration. But here the effort to reframe IP will provide its own rewards as the discourse shifts over time. Simply striving for such goals in our IP policy has at least the potential to bring us ever closer to Sunder’s articulation of “the good life.”