(AGENPARL) – BOSTON dom 19 giugno 2022

The 20th-century expansion of IP law – its growing importance and centering in law practice and law school curricula – rode along with an exuberant economic boom between the 1930s and the 1990s, partnering to maximize the benefits of a consumerist society by amplifying values such as individuality, consumer choice, and opportunity. Never mind that underneath this economic growth were foundational and game-changing social welfare programs also new to the United States, such as Medicare and Medicaid, Social Security, the Agricultural Adjustment Act protecting the nation’s farmers, and securities and antitrust regulation promising to protect consumers and small businesses from deceptive, manipulative, and monopolistic business practices.

The internet’s emergence in the 1990s profoundly disrupted this trajectory by democratizing the mechanisms of making and distributing all forms of creative and innovative work through digital affordances. In Alvin Toffler’s words, we are all “prosumers” – producers and consumers – and that is what the internet has wrought. We might embrace such a de-hierarchization of markets and market opportunities – who doesn’t love Etsy, YouTube, and email? (Maybe we don’t love email, but can we live without it?)

However, the incumbent industries that claim to serve the people with their innovations and creativity don’t appreciate the competition and claim to be fighting for their lives – be they telecom, movie studios, music producers, manufacturing, or medical device and pharmaceutical companies. And so, these industries started doubling down on intellectual property laws that could slow down the internet and lock-down digital technologies to prevent copying, remaking, and iterating. Peer-to-peer file sharing sites were shut down; pharmaceutical companies would extend the lives of patents to ensure monopoly pricing of essential medicines; and our cars, phones, and computers would be subject to copyright, patent, and trademark laws preventing basic repairs and raising the prices of these everyday devices.

Resistance to this trend to lock down the new tools of the digital age has puzzled intellectual property lawyers. This legal resistance is grounded in intellectual property cases that are not the “usual” kind, such as patenting human genes or the seeds of major crops like soybeans. Traditional cases are usually about unlawful copying as a kind of theft or unfair market competition but now we are seeing more and more cases that concern more complex questions of intellectual property relating not to markets but to morals. How the courts handle them can impact our access to health care, free speech, and self-determination.

For example. when PETA sued a photographer for licensing a photo that a monkey took with the photographer’s camera, the case was not about copyright royalties. It was about environmental sustainability and the dignity of animals whose lives on this planet are increasingly threatened by wasteful consumption and greed.

In another case, Monsanto sued Farmer Vernon Bowman for using the beans he grew from lawfully purchased patented seeds to plant for the late-harvest crop. Monsanto may have been complaining about losing a small amount of money from the handful of beans to be used as seeds that Bowman saved, but Bowman was complaining about Monsanto’s interruption of the age-old practice of seed-saving as a necessary, frugal form of farming that sustains independent farmers.

In yet another case, Cindy Lee Garcia sued Google to take down a short film in which she was defrauded to play a part that featured an anti-Muslim screed and that directed hundreds of death threats toward her. Rather than taking down the video, Google hid behind copyright law’s rigid rules of authorship and ownership, which excludes film actors like Garcia from its privileged regime and has traditionally protected movie studios as sole owners of films. Garcia pleaded with the court to equitably expand the copyright rules or find a way to protect her privacy and bodily autonomy, which were infringed by the misrepresentation and oppression of the filmmaker. She also made arguments about the exacerbation of privacy invasion by platforms generally, like YouTube, Twitter, Facebook, and Amazon whose policies prioritize efficiency and growth over other values. Garcia’s case was about how the essential digital institutions of the 21st century have failed ordinary people like her and serve only the powerful.

These are strange IP cases by twentieth-century standards because they are not about market efficiency and transaction costs. They are debating moral narratives that urge us not to outsource our morals to markets. These cases are built by plaintiffs seeking justice for everyday people, not only for the capitalized incumbents. They are grounded in narratives searching for an ethical consensus about what we should be caring about when we award intellectual property rights. They are about equality, privacy, and distributive justice. And they are about the inclusivity of institutions and their ability to protect everyday people from violence and financial precarity through systems that should be transparent, accountable, and measured. In other words, these cases are rethinking “progress” toward which the constitutional goal of “science and the useful arts” is aimed.

And this brings me back to abortion access and gender equality. Strange as it may seem on the surface, intellectual property law today is one of the areas of legal study where fundamental values of bodily autonomy (such as health care access) and equal dignity (as a necessary means by which women live free lives) are frequently at stake and adjudicated.

Whether similar debates are happening in other federal statutory regimes such as bankruptcy law or environmental law is for another legal scholar to study. As a constitutional law and IP scholar, I understand what is happening now as a reaction to the fading of old-world privileges and assumptions. Samuel Alito’s draft opinion with its reverence for the 17 and 18th-century rules of couverture and a faulty original understanding of the open-ended constitutional text is a swan song of dated legal theory and practices. His draft opinion reminds me of Big Tech or Big Pharma complaining about any government regulation of access and price or when the legacy entertainment companies complain about easy internet streaming ignoring the interests of and inputs from all of us.

Don’t misunderstand me. I know that overturning Roe v. Wade is going to kill women. It is going to send more women and their children into poverty, and women with children already comprise a substantial portion of the economically disadvantaged in the United States. But the arguments about access to the essential products and mechanisms of digital age creativity and innovation, which are controlled by the most powerful and wealthy companies in the world, are also about lives on the line and the self-determination, privacy, and equal dignity of all of us relying on those tools.

Roe v. Wade’s impending demise is visceral. I believe it is a declaration of war. But it is a war happening on many fronts. To prevail, we must draw the parallels between the leaked draft’s oppressive worldview of women necessary to a “domestic infant supply” and the bloated private property regime that 20th-century IP law has generated to protect the economically powerful. Privatizing the internet’s affordances and demeaning the importance of the public domain and sustainable, shared resources threaten us all.

We must directly engage in the moral, ethical, and legal arguments to expose the larger intention of the leaked opinion and fortify our hard-won fundamental rights. The Supreme Court underestimates how things have changed. We will not go back. We will fight for these fundamental rights – all of them – as we have for decades until the old world has faded from view. 

Fonte/Source: https://www.smerconish.com/exclusive-content/what-can-we-learn-from-intellectual-property-law-about-protecting-abortion-access