From Volume 79, Number 5 (July 2006)
Because we learn from history, we also try to teach from history. Persuasive discourse of all kinds is replete with historical examples – some true and applicable to the issue at hand, some one but not the other, and some neither. Beginning in the 1990s, intellectual property scholars began providing descriptive accounts of a tremendous strengthening of copyright laws, expressing the normative view that this trend needs to be arrested, if not reversed. This thoughtful body of scholarly literature is sometimes bolstered with historical claims – often casual comments about the way things were. The claims about history, legal or otherwise, are used to support the normative prescription about what intellectual property law should be.
One normative approach to arrest the growing strength of copyright has been through “constitutionalizing” copyright. This approach produced meaty theoretical ideas with practical implications, but failed to capture the judicial imagination and largely ran aground on the Eldred v. Ashcroft and MGM Studios Inc. v. Grokster, Ltd. decisions. In contrast to this constitutional critique, many legal scholars have recently written about the increasing “propertization of intellectual property” – this is both a descriptive account and a normative critique that describes recent developments as unwisely moving copyright toward a property paradigm. Whereas the constitutional critique of copyright provided specific prescriptions, the propertization critique may now be cresting because it has failed to present clear alternatives to what it criticizes and, in some sense, the critique boils down to one of intellectual life’s most familiar lessons: be careful that the terminology you use does not become the master of your thinking process.