Against Progress by Jessica Silbey

Author:Jessica Silbey
Language: eng
Format: epub
Publisher: Stanford University Press
Published: 2022-10-15T00:00:00+00:00

5

Precarity and Institutional Failures

[Today] the level of photographs [in news and general media] isn’t as high. Bear in mind, they’re reaching into a pool that everyone else is reaching into, so a lotta times you’re seeing pictures you’ve already seen in other publications. Because they’re not careful about having unique content. The death of every publication . . . has always been lack of original content. Original content always drives the wagon. . . . Even in commercial [photography] . . . I think one thing that’s happened is that first off, resources are not as great, so they’re relying on subscription services. . . . [And] that material . . . has often been regurgitated in the newspapers or websites. . . . Even worse than repetitive content is the distrust lax photographic standards generate.

—Dan, a veteran sports and news photographer

INTELLECTUAL PROPERTY’S CONSTITUTIONAL aim is to achieve “progress of science and useful arts” by granting authors and inventors durationally limited property-like rights in their writings and inventions. But the foregoing chapters demonstrate that exclusivity and property-like rights in creative and innovative work may degrade, not develop, community sustainability. In the new century, intellectual property rights and the economic models that have sustained them are under critical scrutiny. Other fundamental rights deeply rooted in our constitutional system and new economic models of flourishing markets are also being reconfigured for our Digital Age. As intellectual property law develops from the new human and digital networks of the twenty-first century, everyday practices of creativity and innovation transpiring on these networks reform twentieth-century social and political values for the internet era. These values of equality, privacy, and distributive justice, as discussed in previous chapters, are central to human flourishing but have been largely absent from IP policy. This chapter focuses on the inverse of these values: intellectual property harms newly transfigured in the new century.

IP injuries are typically conceived in individual terms and as economic injuries. An infringer is a thief.1 A corporation overclaiming IP rights is greedy or engaged in immoral financial conquest.2 Usual IP harms include substitutional rivalry, forgone licensing fees, and loss of exclusivity.3 The individualized terms are unmistakable. Complainants suffer because of bad motives or bad acts, and volition and intent are critical components of the claims.4 Often, injuries sound like comic book–style combat complete with underdogs, heroes, and villains, perhaps a result of the adversarial system that structures disputes as individualized parties facing off against each other.5

The IP harms that this chapter highlights are distinct. They are harms to communities, systems, and institutions, not to individuals. Though they obviously concern individual people, intellectual property complaints nonetheless encompass harm to social structures. Accounts from everyday creators and innovators explain that IP harms in the twenty-first-century digital ecosystem erode the essential connections that secure individuals in meaningful and functioning groups—communities, organizations, and institutions—on which we rely to live and work. These stories of distress shift perspective from a focus on the legal interests of individuals to the interrelatedness and structure of social life.

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