STANFORD
UNIVERSITY PRESS
  



Against Progress
Intellectual Property and Fundamental Values in the Internet Age
Jessica Silbey

BUY THIS BOOK


Contents and Abstracts
Introduction: Is Progress More?
chapter abstract

Summarizing that IP law is a new terrain over which to fight about old problems—of equality, privacy, distributive justice, and institutional resiliency—in service of an updated form of "progress" focused on shared and vital resources in the Digital Age.

1 Everyone's a Photographer Now: The Case of Digital Photography
chapter abstract

Chapter 1 introduces the book's themes through a case study of professional photographers. This creative and entrepreneurial community has experienced industry-wide cataclysmic change in the digital age. Based on interviews with a wide range of photographers as well as observations at their studios and professional gatherings, chapter 1 describes their adaptive aesthetic and business practices and the particular problems they confront in order to continue to make pictures, work together, and earn a living with digital technology and internet platforms.

2 Equality
chapter abstract

Chapter 2 uncovers equality and anti-hierarchy principles structuring milestone intellectual property cases from the U.S. Supreme Court. This chapter reorients analysis of these cases from a market-driven intellectual property framework to one debating the contours of equality in our constitutional system that adapts to evolving technological contexts. Through famous Supreme Court cases about intellectual property, the chapter canvases categorical variations of equality's meaning, considering important distributional questions such as "equality of what?" and "equality for whom?" Applying that analysis to milestone intellectual property cases reveals new and urgent stakes for everyday creators and innovators grounded in contemporary equality concerns. As such, it begins the refinement of "progress" for the twenty-first century for those who aim to continue producing and distributing creative and innovative work.

3 Privacy
chapter abstract

Chapter 3 examines the large and growing set of disputes linking copyright and some patent law to privacy interests. These disagreements range from authors and heirs attempting to shield work from unwanted exposure (such as protecting diaries and unpublished manuscripts) to authors or subjects of copyrighted works or patented inventions suppressing dissemination for reputational and emotional reasons. The chapter explores many such intellectual property disputes in terms of privacy's constitutional contours—bodily privacy, spatial privacy, relational privacy, and informational and intellectual privacy—illuminating the transformation of conflicts between artists, inventors, and audiences in our new age of rapid distribution when privacy (if not creativity) feels scarce.

4 Distributive Justice (or "Fairer Uses")
chapter abstract

Chapter 4 examines how everyday creators and innovators consider a range of borrowing behaviors essential to their professional work and personal well-being. This range evidences a misalignment between formal intellectual property law, which would treat that borrowing as unlawful infringement, and grounded everyday practices, which do not. It generates from personal accounts of creative and innovative work nuanced and refined categories of borrowing, sharing, and adaptation that are explained by principles of moderation and reasonableness, mutual obligation and interdependence, fair apportionment, expanding opportunities, and avoiding undeserved windfalls. The variations described in this chapter provide a new lexicon for tolerated uses of intellectual property in the internet age, or "fairer uses."

5 Precarity and Institutional Failures
chapter abstract

Chapter 5 builds from the interviewees' diverse, personal accounts and focuses on descriptions of harms suffered within creative and innovative communities. Typically, intellectual property injuries (uncompensated benefits, foregone licensing fees, or substitutional rivalry) are conceived in individual terms and as economic harm. But accounts from everyday creators and innovators instead describe harms to communities, systems, and institutions. They concern patterns of violence, institutionalized corruption, incumbency biases, and disproportionality. The underlying concern is that these harms, which intellectual property law in the digital ecosystem appears to promote, erode the interdependent connections and mutual obligations that secure individuals in groups (communities, organizations, and institutions) on which we rely to live and work. This leads to a sense of personal and professional precarity that further degrades essential structures and relations as well as institutional trust and resiliency, threatening an essential faith in our shared fate in these times of hyperconnectivity.

Conclusion
chapter abstract

Summarizing that IP law is a new terrain over which to fight about old problems—of equality, privacy, distributive justice, and institutional resiliency—in service of an updated form of "progress" focused on shared and vital resources in the Digital Age.