Public Comment on Intellectual Property Assertion & MonetizationSubmitted to the Department of JusticeMarch 27, 2013Intellectual property has become a pervasive presence in society. Seeping intoevery nook and cranny of American life, intellectual property casts a protective haze overeverything from the words of an email,
to the shape of a phone,
to the sequence of genes
. In our jurisprudential tradition, these rights do not spring forth from some notionof a natural or moral entitlement. Rather, the underlying logic is decidedly utilitarian.
From the store of things that are theoretically available to anyone in society, we removecertain activity and expression, dedicating them to the province of one or a few in the
This comment is a draft of an article titled
Intellectual Property Wrongs,
which is forthcoming in 2013from the Stanford Journal of Law, Business & Finance. The draft is submitted as a public comment withthe permission of the Journal, and the final article will be published in the spring of 2013. Robin Feldman isProfessor of Law and Director of the Institute for Innovation Law at UC Hastings Law. I am deeplyindebted to N. Mark Lam who inspired the title of this article. I also wish to thank Michael Callahan, TomEwing, Genevieve Halpenny, Jenna Kelleher, Sara Jeruss, Zion Maffeo, Yi Wilkinson, JB Schiller, RyanWitthans, Jacob Zweig, and participants in the Stanford Program in Law, Science & Technology and the Yale Information Society Project. I am grateful beyond measure to Linda Weir for her research assistanceand insights.
Copyright law covers original expression fixed in a tangible medium of expression, which would includethe humble email (Julien Hofman, Introducing Copyright xi, 164 (2009); Ned Snow,
A CopyrightConundrum: Protecting Email Privacy
, 55 U. Kan. L. Rev 501, 503 (2007)), as much as the letter andmanuscripts of past generations.
Apple, Inc. v. Samsung Elecs. Co. Ltd,
678 F.3d 1314 (Fed. Cir. 2012
Ass’n for Molecular Pathology v. U.S. Patent and Trademark Office
, 653 F.3d 1329, 1334 (2011).
There are occasional exceptions to the general rule that intellectual property rights in the United Statesare grounded in utilitarianism. The United States adheres to several multinational treaties that refer to moralrights in the context of copyright and performing rights for singers and actors, including the BerneConvention, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty. See BerneConvention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Stockholm on July 14, 1967, 828 U.N.T.S. 222; World Intellectual Property Organization Copyright Treaty, Dec. 20,1996, S. Treaty Doc. No. 105– 17, 2186 U.N.T.S. 121; World Intellectual Property OrganizationPerformances and Phonograms Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105– 17, 2186 U.N.T.S. 203.