Intellectual Property

Pushing Back On Progress

Perhaps nowhere is the tension in IP felt as acutely as in copyright law.

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intellectual property law

(Image via Getty)

A few weeks ago, I was asked if I would be interested in doing a book review on a new IP-related release called “Against Progress: Intellectual Property and Fundamental Values in the Internet Age,” published by Stanford University Press. The author, Jessica Silbey, is a law professor at Boston University, as well as the holder of a Ph.D. in comparative literature from Michigan. As her bio notes, her newest work “argues that intellectual property law is becoming a central framework through which to discuss essential sociopolitical issues, extending ancient debates over our most cherished constitutional values, refiguring the substance of ‘progress’ in terms that demonstrate the urgency of art and science to social justice today.” As I am drawn to anything IP-related, I eagerly agreed to read the book and offer a review. In my view, the work makes a significant contribution to our understanding of how IP laws interplay with technological development over time — while also making clear that the winners and losers of that progress may not be so obvious to the average person.

Perhaps nowhere is the tension in IP felt as acutely as in copyright law. Having spent many an hour in my law school copyright and IP theory classes discussing the challenge of digitization and the Internet to creative industries, it struck me reading “Against Progress” that we are still grappling with many of the same issues. Napster may be a thing of the past, but the impact of digitization on industries as disparate as photography, music, and other creative arts continues. And with the advent of NFTs, which effectively add a third “ownership” layer to the traditional two-layer copyright cake, the questions around the limits of IP continue to resonate even as we enter into a Web3-based economy. (Credit to past interviewee Jeremy Goldman for the three-layer NFT cake concept, which I find very useful.) That said, the book does a very good job weaving in important cases and discussion around the other areas of IP as well, even as copyright issues garner most of the attention throughout.

Arising as it does out of Silbey’s academic research, “Against Progress” is directed at a legal and philosophical audience, in contrast to the more popular style embraced by another recent IP release profiled on these pages, “Mine!” In particular, Silbey’s analysis of landmark Supreme Court IP cases is of particular interest and usefulness for lawyers and policy makers who find themselves giving thought as to how the “debates over equality” can manifest themselves in discussion of IP disputes.

In one very interesting example, “Against Progress” discusses the rise of disputes over inventorship in patent cases; a rise sometimes motivated by direct economic concerns, but which can “sound also in reputational harm” in certain professional contexts. As an example, the book discussed the case brought by an academic researcher against Johns Hopkins medical school for failing to include a junior researcher — with whom he was or had been linked romantically — as a co-inventor on his patent. Even though his case was dismissed for lack of standing, with the court rejecting the idea that researcher would face reputational harm if inventorship for a junior colleague were not corrected, the link between conceptions of reputational interests and IP rights remains a salient consideration in disputes across the IP spectrum.

Similarly, the importance of proper attribution when it comes to IP is discussed later in the book — and once again, inventorship is mentioned as a frequent scenario whereby proper attribution can be critical to preservation of legal rights. As the book notes “[A]ttorneys and business managers are especially careful about attribution practices because they facilitate the collegial functioning of companies.” At the same time, patent law places a premium on getting inventorship attribution right, even as, like authorship, inventorship is “not ranked in law.” Which can lead to tension between business goals of collegiality — or even ego-seeking behaviors by superiors over their subordinates — and the legal imperative to get inventorship right. Adding to the tension are cultural sensibilities around the Internet, including a historical wariness over prioritizing personal IP rights over those of the public. Or the “ethic of sharing” that pervades many academic communities, particularly in the sciences. Still, cultural mores around attribution practices continue to take a backseat at sophisticated companies and universities, driven by the need to properly protect innovations of value to the institution.

There is of course much more in the book that should be read and considered. But I would not want to conclude this brief review without highlighting what I found most interesting in its contents. For me, the interview excerpts from actual discussions with creators are worth the price of a copy alone. I have long thought that we as IP lawyers would do well to listen to the voices of creators — especially when those creators are not clients of ours. “Against Progress” does a fantastic job of letting those creators express, in their own voices, the struggles they face trying to adapt their professional lives to a changing technological environment. Kudos to Silbey for letting their voices be heard, framed by high-level legal discussion of whether our IP laws are doing the work of advancing progress — or pushing back on it.

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Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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