Intellectual Property’s Leviathan

Neoliberalism is a complex, multifaceted concept. As such, it offers many possible points of entry into my primary field of study, that of intellectual property (IP) law. We might begin by investigating tensions between IP law and a purely economic conception of neoliberalism, for example. Or we might consider whether or how IP law might be “insulated from democratic governance” while also being rapidly assembled. In these few pages, I want to focus instead on a different line of inquiry, one that reveals the powerful grip that one particular neoliberal conception has on our contemporary imaginary: the neoliberal conception of the state. Today, both those who defend robust private IP law and their most prominent critics, I will show, typically describe the state in its first instance as inertial, heavy, bureaucratic, ill-informed, and perilously corruptible and corrupt

Access to Medicines: the Role of Intellectual property Law and Policy

Intellectual property (IP) policy is an important structural determinant of health. Patent policy influences the rate and direction of innovation for health, playing a positive or negative role depending on how it is shaped and implemented. Patent policy also has critical implications for access to existing medicines and medical technologies. This has been illustrated most dramatically in the context of the global Acquired immunodeficiency syndrome (AIDS)/ Human immunodeficiency virus (HIV) pandemic. Prices for a three-drug combination of anti-retroviral (ARV) HIV therapy in 2000 from patent-holding companies exceeded USD $10,000 per person per year, ensuring that treatment could not be extended to the vast majority of those living with HIV around the world. Generic competition led to precipitous price reductions, so that today treatment can be provided for less than USD$75 per person per year. This history has contributed to the growing recognition that strong patent law applied to pharmaceuticals in developing countries undermines access to medicines and compromises the human right to health. While the relationship between IP and innovation is covered in a separate paper, it is worth noting here that there is little reason to expect that stronger patent rights in developing countries will lead to any substantial offsetting gains in innovation for the affected countries. Developing countries represent a very small share of the world’s pharmaceutical market, meaning that the marginal added value of stronger patent protection will be small, and is unlikely to outweigh the costs to access

Queer Brinkmanship: Citizenship in a Time of War

In 1994, Congress passed a law commonly known as the Solomon Amendment, threatening universities and law schools with loss of federal funding if they deny or effectively prevent military recruiters from accessing campuses and directory information about students. It was the opening salvo in what has become a voluble expressive battle between the military and law schools. This fall, under cover of war, the Department of Defense (DoD) attempted to bring a decisive end to the conflict. Helping themselves to millions of dollars of ammunition from the coffers of their fellow agencies—with ambiguous authority at best—the military successfully forced Judge Advocate General (JAG) recruiters onto campuses around the country, upending carefully wrought compromises in favor of a show of force. This Comment takes this queer brinksmanship as its subject. There are numerous ways to criticize both the Solomon Amendment and the recent DoD enforcement campaign. It appears, for example, that the DoD is operating in violation of its own regulations, and relying upon statutory interpretations that raise serious constitutional questions under the Spending Clause. There are also potential First Amendment problems with the Solomon Amendment, particularly because of the special zone of speech protection that universities enjoy. From a pragmatic point of view, Solomon and the recent escalation look like colossal cognitive error. By refusing to hire openly gay, lesbian, and bisexual individuals, and by adopting tactics that generate protests and ethical dilemmas for potential recruits, the military sharply undermines its own recruiting efforts. This Comment contends, however, that we cannot measure Solomon’s success or failure against its pragmatic impact on military recruiting, because Solomon is not and has never been about effective military recruiting. Rather, Solomon and its recent enforcement are maneuvers in an expressive battle, fought over the role that homosexuals play in a community, the purpose of the modern university, and the meaning of good citizenship. But if Solomon is a symbolic conflict, who is winning? This Comment suggests a surprising possibility: The military may be serving the cause of homosexuals by calling attention to its discriminatory policies in their most transparently homophobic context (the JAG Corps). The military also may have done universities a favor by returning them to their heritage of dissent: Forced to relinquish the accommodations upon which they relied to manage the conflict, universities and law schools now have little choice but simply to confront it. Finally, I suggest that those of us dedicated to nondiscrimination principles that include sexual orientation should welcome this opportunity for engagement—but also think seriously about what it would mean to win, and what we are willing to risk to do so

Same-Sex Privacy and the Unexamined Limits of Antidiscrimination Law

Title VII of the 1964 Civil Rights Act, as it has been interpreted by the courts, is an uncompromising statute. It bars adverse employment actions taken on the basis of race, color, religion, sex, and national origin, with only one exception: in cases where an employer can demonstrate that sex, religion, or national origin is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of that particular business or enterprise” Much of Title VII\u27s impact, of course, depends upon the scope given to this exception, and, in particular, upon whether employers are allowed to claim inconvenience, cost, or customer preference as legitimate components of the BFOQ analysis. Because a broad exception would swallow the rule, the Supreme Court has held that the BFOQ provision was meant to be an extremely narrow exception to the general prohibition of discrimination” and established a stringent test for its application. An employer seeking a sex-based BFOQ must have a \u27factual basis \u27 to believe that \u27all or substantially all women [or men] would be unable to perform safely and efficiently the duties of the job involved,’” or, alternatively, demonstrate that the qualification in question relates to the \u27essence,\u27 or to the \u27central mission of the employer\u27s business. \u27 Courts have also strongly rejected attempts to define the essence of a business in ways that allow sex discrimination in through the back door of customer preference. The logic is the same as that justifying a narrow BFOQ: As one court put it, “[I]t would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid. Indeed, it was, to a large extent, these very prejudices the Act was meant to overcome.” Thus, courts have refused to allow the preferences of airline customers to justify rejection of men for flight attendant positions, or the biases of customers or associates in other countries to justify refusal to promote women to positions directing international operations

Order Without Intellectual Property Law: Open Science in Influenza

Today, intellectual property (IP) scholars accept that IP as an approach to information production has serious limits. But what lies beyond IP? A new literature on intellectual production without IP (or IP without IP ) has emerged to explore this question, but its examples and explanations have yet to convince skeptics. This Article reorients this new literature via a study of a hard case: a global influenza virus-sharing network that has for decades produced critically important information goods, at significant expense, and in a loose-knit group-all without recourse to IP. I analyze the Network as an example of open science, a mode of information production that differs strikingly from conventional IP, and yet that successfully produces important scientific goods in response to social need. The theory and example developed here refute the most powerful criticisms of the emerging IP without IP literature, and provide a stronger foundation for this important new field. Even where capital costs are high, creation without IP can be reasonably effective in social terms, If it can link sources of funding to reputational and evaluative feedback loops like those that characterize open science. It can also be sustained over time, even by loose-knit groups and where the stakes are high, because organizations and other forms of law can help to stabilize cooperation. I also show that contract law is well suited to modes of information production that rely upon a supply side rather than demand side model. In its most important instances, order without IP is not order without governance, nor order without law. Recognizing this can help us better ground this new field, and better study and support forms of knowledge production that deserve our attention, and that sometimes sustain our very lives

Order without Intellectual Property Law : Open Science in Influenza

Today, intellectual property (IP) scholars accept that IP as an approach to information production has serious limits. But what lies beyond IP? A new literature on “intellectual production without IP” (or “IP without IP”) has emerged to explore this question, but its examples and explanations have yet to convince skeptics. This Article reorients this new literature via a study of a hard case: a global influenza virus-sharing network that has for decades produced critically important information goods, at significant expense, and in a loose-knit group—all without recourse to IP. I analyze the Network as an example of “open science,” a mode of information production that differs strikingly from conventional IP, and yet that successfully produces important scientific goods in response to social need. The theory and example developed here refute the most powerful criticisms of the emerging “IP without IP” literature, and provide a stronger foundation for this important new field. Even where capital costs are high, creation without IP can be reasonably effective in social terms, if it can link sources of funding to reputational and evaluative feedback loops like those that characterize open science. It can also be sustained over time, even by loose-knit groups and where the stakes are high, because organizations and other forms of law can help to stabilize cooperation. I also show that contract law is well suited to modes of information production that rely upon a “supply side” rather than “demand side” model. In its most important instances, “order without IP” is not order without governance, nor order without law. Recognizing this can help us better ground this new field, and better study and support forms of knowledge production that deserve our attention, and that sometimes sustain our very lives

The Access to Knowledge Mobilization and the New Politics of Intellectual Property

Intellectual property law was once an arcane subject. Today it is at the center of some of the most highly charged political contests of our time. In recent years, college students, subsistence farmers, AIDS activists, genomic scientists, and free-software programmers have mobilized to challenge the contours of intellectual property (IP) law. Very recently, some from these groups have begun to develop a shared critique under the umbrella of access to knowledge (A2K). Existing accounts of the political economy of the field of IP have suggested that such a mobilization was unlikely. This Article takes the emergence of the A2K mobilization as an opportunity to develop a richer and less deterministic account of the contemporary politics of IP. It draws upon frame mobilization literature, which illuminates the role that acts of interpretation play in instigating, promoting, and legitimating collective action. The frame-analytic perspective teaches that before a group can act it must develop an account of its interests and theorize how to advance these interests. These acts of interpretation are both socially mediated and contingent. Ideas can be a resource for those engaged in mobilization, but one that is not fully in their control. Frames thus can lay the scaffolding for a countermovement even as they pave the way for a movement\u27s success. Law is a key location for framing conflicts because it provides groups with symbolic resources for framing, and because groups struggle within the field of law to gain control over law\u27s normative and instrumental benefits. Law thus exerts a gravitational pull on framing processes. Engagement with law can influence a group\u27s architecture, discourse, and strategies, and can also create areas of overlapping agreement and as importantly-a language of common disagreement between opposing groups. The Article closes by suggesting some implications of this point, which should be of interest to those who design legal institutions and who engage in social mobilization. Most intriguing, perhaps, is the role it suggests that law may play in the creation of global publics and polities