IP3

Stanford Law Review

Volumn 59, Issue 2, 2006, Pages 257-332

  Sunder, Madhavi ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 33846575133     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (568)

1. See Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982).
2. 277 A.2d 369, 372 (N.J. 1971) (affirming the right of migrant farm workers to receive medical and legal assistance without the property owner's permission);
3. see also Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) (affirming that free speech may trump a property owner's right to exclude);
4. Javins v. First Nat'l Realty Corp., 428 F.2d 1071, 1080 (D.C. Cir. 1970) (Wright, J.) (iterating a "warranty of habitability" implied within every leasehold).
5. See JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY 2-19 (2001);
6. Stephen R. Munzer, Property as Social Relations, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 36 (Stephen R. Munzer ed., 2001).
7. Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 TEX. L. REV. 1031, 1075 (2005);
8. see also Robert S. Boynton, The Tyranny of Copyright?, N.Y. TIMES, Jan. 25, 2004, § 6 (Magazine), at 40 (pronouncing the same).
9. See JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 44 (1996) (characterizing economic incentives as a common justification for intellectual property);
10. William Fisher, Theories of Intellectual Property, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY, supra note 3, at 168, 169 (describing utilitarian theory as the "most popular" theory of intellectual property);
11. Lemley, supra note 4, at 1031 ("Intellectual property protection in the United States has always been about generating incentives to create.");
12. Jed Rubenfeld, Professor, Yale Law School, Remarks at the Duke Conference on the Public Domain (Nov. 9-11, 2001), available at http://www.law.duke.edu/pd/realcast.htm (calling economic analysis of intellectual property the "ruling paradigm" in the field);
13. cf. William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1214 (1998) (writing that while the judicial and scholarly writings on intellectual property are "rife with invocations of [the utilitarian] ideal," the theoretical bases of intellectual property are contested). Even the scholarship championing the public domain relies largely on utilitarian arguments regarding the importance of the public domain to the process of creation. I critique that scholarship's failure to integrate concerns for distributive justice.
14. See Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 CAL. L. REV. 1331 (2004);
15. Madhavi Sunder, The Invention of Traditional Knowledge, 70 LAW & CONTEMP. PROBS. (forthcoming Spring 2007).
16. Jed Rubenfeld, The Freedom of Imagination: Copyright's Constitutionality, 112 YALE L.J. 1, 30 (2002) ("Giant-sized First Amendment theories tend to start with one or both of two giant-sized ideas: either democracy or individual autonomy.").
17. The hegemony of law and economics in intellectual property scholarship does not reflect the discipline's deeper traditions. See, e.g., MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT 48 (1993) (describing the rise of authorship centered on notions of honor and reputation);
18. Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865, 1873 (1990) (describing early copyright law as a device for the promotion of learning);
19. Pam Samuelson, Copyright and Freedom of Expression in Historical Perspective, 10 J. INTELL. PROP. L. 319, 319-27 (2003) (detailing historical focus of copyright law, since the Statute of Anne, on public access to knowledge).
20. Notable exceptions include Margaret Chon, Intellectual Property and the Development Divide, 27 CARDOZO L. REV. 2821, 2900-09 (2006) (proposing a substantive equality principle for global intellectual property law);
21. William W. Fisher III. Reconstructing the Fair Use Doctrine, 101 HARV. L. REV. 1659, 1744-93 (1988) (offering a "utopian analysis" of copyright's fair use doctrine);
22. and Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 288 (1996) (arguing that "neoclassicism cannot serve as the basis for copyright doctrine because copyright's primary goal is not allocative efficiency, but the support of a democratic culture").
23. See also Julie E. Cohen. Copyright, Commodification, and Culture: Locating the Public Domain, in THE FUTURE OF THE PUBLIC DOMAIN 121 (P. Bernt Hugenholtz & Lucie Guibault eds., 2006);
24. Rosemary J. Coombe, Fear, Hope, and Longing for the Future of Authorship and a Revitalized Public Domain in Global Regimes of Intellectual Property, 52 DEPAUL L. REV. 1171, 1173 (2003);
25. Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287 (1988).
26. See Robert P. Merges, One Hundred Years of Solicitude: Intellectual Property Law, 1900-2000, 88 CAL. L. REV. 2187 (2000).
27. See Eldred v. Ashcroft, 537 U.S. 186, 254 (2003) (Breyer, J., dissenting) (saying of the Copyright Term Extension Act of 1998 that "no one could reasonably conclude that copyright's traditional economic rationale applies here");
28. id. at 257 ("[I]n respect to works already created... the statute creates no economic incentive at all.");
29. id. at 263 ("There is no legitimate, serious copyright-related justification for this statute.");
30. see also Brief for George A. Akerlof et al. as Amici Curiae Supporting Petitioners at 2, Eldred v. Ashcroft. 537 U.S. 186 (2003) (No. 01-618), 2002 WL 1041846 (stating the conclusion of economists, including five Nobel Laureates, that "[t]he term extension for existing works makes no significant contribution to an author's economic incentive to create...").
31. See Yochai Benkler, "Sharing Nicely": On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production, 114 YALE L.J. 273 (2004);
32. Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 YALE L.J. 369 (2002).
33. The creator of the World Wide Web shunned intellectual property rights in his creation. See TIM BERNERS-LEE, WEAVING THE WEB: THE ORIGINAL DESIGN AND ULTIMATE DESTINY OF THE WORLD WIDE WEB BY ITS INVENTOR (1999).
34. The question is by no means new. See, e.g., Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 286-87 (1970) (suggesting alternate methods of incentivizing creative work, including government subsidies).
35. Nations described as "least-developed" by the United Nations are given until January 1, 2016 to implement the provisions on pharmaceutical patents under a decision taken at the Doha Ministerial Conference in November 2001. See World Trade Organization, The Doha Declaration Explained, http://www.wto.org/English/tratop_e/dda_e/dohaexplained_e.htm. The United Nations excludes from the list countries with populations of 75 million or more.
36. See U.N. Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Developing States, The Criteria for the Identification of the LDCs, http://www.un.org/special-rep/ ohrlls/ldc/ldc%20criteria.htm. Thus, even though in 2003 India, Nigeria, and Pakistan had annual incomes per capita, respectively, of $530, $320, and $470 (as well as very low life expectancy and literacy and very high infant mortality), they are omitted, thus removing India's 1.1 billion people, Nigeria's 136 million, and Pakistan's 148 million from consideration.
37. See WORLD BANK, WORLD DEVELOPMENT REPORT 2005: A BETTER INVESTMENT CLIMATE FOR EVERYONE 256-57 (2004), available at http://siteresources.worldbank.org/INTWDR2005/Resources/complete_report.pdf.
38. Whereas, prior to TRIPS, many developing countries such as India did not recognize patents in pharmaceutical drugs and thus were able to produce cheap generics of drugs, they must now offer twenty-year patents for "products or processes... in all fields of technology," including essential medicines. Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 27(1), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments-Results of the Uruguay Round, 33 I.L.M. 1197 (1994) [hereinafter "TRIPS"];
39. see also discussion infra Part III.B.
40. Amartya Sen, Democracy Isn't 'Western,' WALL ST. J., Mar. 24, 2006, at A10.
41. This is the classic account of copyright and patent rights. See WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 37-165, 294-333 (2003). Recent understandings of trademark also encompass a version of the incentive rationale.
42. See id. at 166 ("[T]rademark law [is] highly amenable to economic analysis....").
43. The forces 1 explore here are parts, not the whole, of the world that is making intellectual property in the new millennium. Indeed, there are even other "IPs": e.g., indigenous people. IP does not tell a definitive story but rather seeks to deepen our understanding of modern phenomena through the addition of a cultural lens. See MARILYN STRATHERN, PROPERTY, SUBSTANCE, AND EFFECT: ANTHROPOLOGICAL ESSAYS ON PERSONS AND THINGS 163 (1999) (reminding us of "the power of connecting otherwise distinct domains of ideas" where we can observe "explicit parallels [that] have influenced the outcome of claims").
44. See infra notes 61-68 and accompanying text.
45. See, e.g., U.N. DEP'T OF ECON. & SOC. AFFAIRS, UNDERSTANDING KNOWLEDGE SOCIETIES, U.N. Doc. ST/ESA/PAD/SER.E/66 (2005), available at http://unpan1.un.org/intradoc/groups/public/documents/UN/UNPAN020643.pdf;
46. U.N. DEV. PROGRAMME, ARAB HUMAN DEVELOPMENT REPORT 2003: BUILDING A KNOWLEDGE SOCIETY (2003), available at http://hdr.undp.org/reports/detail_reports.cfm?view=712 (writing that social and economic development require access to knowledge and the ability to contest and create new knowledge);
47. UNESCO, UNESCO and the World Summit on the Information Society (WSIS): Towards Knowledge Societies, http://www.unesco.org/wsis.
48. I borrow Sun Microsystems's slogan for our era. See Jonathan Schwartz, President, Sun Microsystems, Free Software Has No Pirates (June 16, 2005), http://blogs.sun.com/jonathan/date/20050616 ("The Participation Age leaves behind the network as a tool for the uninformed to access great databases in the sky (known as the Information Age), and drives toward a network in which individuals can participate.").
49. Both blogs, which are Web-based journals published by individuals or groups, and podcasts, which are audio broadcasts published on the Web, permit the author to bypass entirely traditional channels of mass communication such as newspapers and radio stations.
50. See Renee Graham, Jay-Z, the Beatles Meet in 'Grey' Area, BOSTON GLOBE, Feb. 10, 2004, at E1.
51. See, e.g., B. Bennett, Watching Harry, http://www.sugarquill.net/ read.php? storyid=316&chapno=1 (Aug. 2, 2002) (describing Hermione's efforts to keep Harry safe from Voldemort);
52. Silvver Phoenix, The Sorceress Diaries, http://www.fanfiction.net/s/ 1449533/1/ (Oct. 29, 2003) (transforming Hermione's passivity into thoughtful introspection through a series of diary entries written from her perspective).
53. See Clive Thompson, The Xbox Auteurs, N.Y. TIMES, Aug. 7, 2005, § 6 (Magazine), at 23.
54. 125 S. Ct. 2764 (2005);
55. see discussion infra Part III.B.
56. Boynton, supra note 4, at 40. Intellectual property activism in the courts, for example, appears to be growing. When the Supreme Court heard the case testing 2 Live Crew's version of "Oh, Pretty Woman" in 1993 (the Court's holding setting the standard for parody), only a handful of third parties filed amicus briefs with the Court.
57. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 571 (1994). Today, an intellectual property case heard by the Court can draw a dozen briefs from both industry and social groups.
58. See, e.g., eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2006);
59. Grokster, 125 S. Ct. 2764.
60. IMMANUEL KANT, Answer to the Question: What Is Enlightenment?, in BASIC WRITINGS OF KANT 133, 136 (Allen W. Wood ed., Thomas K. Abbott trans., 2001) (1784).
61. The present Article forms the final part of a trilogy of works in which 1 have examined the relationship between contemporary law and the New Enlightenment. See Madhavi Sunder, Piercing the Veil, 112 YALE L.J. 1399 (2003);
62. Madhavi Sunder, Cultural Dissent, 54 STAN. L. REV. 495 (2001).
63. As Amartya Sen writes, "[W]hat is needed is not the privileging of culture as something that works on its own, but the integration of culture in a wider picture, in which culture, seen in a dynamic and interactive way. is one important influence among many others." Amartya Sen, How Does Culture Matter?, in CULTURE AND PUBLIC ACTION 37, 55 (Vijayendra Rao & Michael Walton eds., 2004).
64. Sharon LaFraniere, In the Jungle, the Unjust Jungle, a Small Victory, N.Y. TIMES, Mar. 22, 2006, at A1.
65. Frank Walusimbi, Uganda: Lion Sleeps Tonight's Linda Gains Posthumously, MONITOR (Kampala), Mar. 19, 2006, available at http://allafrica.com/stories/200603200463.html;
66. see also Michelle Faul, 'Lion Sleeps Tonight' Deal Likely To Boost Poor Musicians, CHI. TRIB., Mar. 23, 2006, at 14.
67. Faul, supra note 32. To this day. South Africans call this style "Mbube."
68. Rian Malan, In the Jungle, ROLLING STONE, May 25, 2000, at 54.
69. LaFraniere, supra note 31. Mr. Linda was buried without even a gravestone, which was beyond his widow's means. Id.
70. Id. ("Linda's children toiled as maids and factory workers, lived without indoor plumbing and sometimes had to borrow from their lawyer for food.").
71. Faul, supra note 32 (noting that assignment occurred "at a time when apartheid laws robbed blacks of negotiating rights"). The Linda family's lawyer relied on a colonial-era British Commonwealth law that reverted copyright to an author's children twenty-five years after his death.
72. Id.
73. PAUL GILROY, THE BLACK ATLANTIC: MODERNITY AND DOUBLE CONSCIOUSNESS (1993).
74. The Lion King itself bears remarkable similarities to a 1960s Japanese film Kimba the White Lion, recounting the adventures of an orphaned lion cub as he follows in the footsteps of his father, the lion king.
75. See Walusimbi, supra note 32 (detailing advice to register works and to keep sealed and postmarked copies with a lawyer or professional and in a bank safe deposit box).
76. At the time of this writing, the New York Times dedicated four editorials in a single week to the need to reform intellectual property law.
77. See Tina Rosenberg, The Scandal of 'Poor People's Diseases,' N.Y. TIMES.COM, Mar. 29, 2006 (decrying the lack of incentives for the creation of medicines that afflict the poor but not the rich);
78. Editorial, EBay at the Bar, N.Y. TIMES, Mar. 28, 2006, at A16;
79. Editorial, Free Trade and AIDS Drugs, N.Y. TIMES, Mar. 28, 2006, at A16;
80. Editorial, Patently Ridiculous, N.Y. TIMES, Mar. 22, 2006, at A24.
81. See, e.g., Rajindar Sachar, Wrong Medicine: Patent Ordinance to Drive Up Drug Prices, TIMES OF INDIA, Mar. 15, 2005, available at http://timesofindia.indiatimes.com articleshow/980623.cms (denouncing proposed patent revisions that would "virtually rule[] out access and availability of medicines at low cost").
82. See infra notes 195, 290-91 and accompanying text.
83. I presented an abridged form of this argument at the "Cultural Environmentalism @ 10 Conference" at Stanford Law School in March 2006. The conference celebrated a decade-long, progressive intellectual property "movement," in Yochai Benkler's words. The conference followed a day-long symposium on "Intellectual Property and Social Justice" held at UC Davis. In April 2006, scholars and activists from around the world met at Yak-Law School to develop the agenda for Access to Knowledge (A2K).
84. The revolution in real property law drew inspiration from the civil rights struggles of the day. Judge J. Skelley Wright candidly expressed this fact in a letter to Edward Rabin. a UC Davis colleague of mine: Unquestionably the Vietnam War and the civil rights movement of the 1960s did cause people to question existing institutions and authorities. And perhaps this inquisition reached the judiciary itself. Obviously, judges cannot be unaware of what all people know and feel.... 1 was indeed influenced by the fact that... most of the tenants in Washington, D.C. slums were poor and black and most of the landlords were rich and white. See Edward H. Rabin, The Revolution in Residential Landlord-Tenant Law: Causes and Consequences, 69 CORNELL L. REV. 517, 549 (1984) (reprinting the letter).
85. NANCY FRASER & AXEL HONNETH, REDISTRIBUTION OR RECOGNITION?: A POLITICAL-PHILOSOPHICAL EXCHANGE 8 (Joel Golb et al. trans., 2003);
86. see also BALAKRISHNAN RAJAGOPAL, INTERNATIONAL LAW FROM BELOW: DEVELOPMENT, SOCIAL MOVEMENTS, AND THIRD WORLD RESISTANCE 241 (2003) ("[S]ocial movements in the Third World emerged substantially as a response to the failure of Marxism as a liberatory discourse.").
87. Fraser describes the historic shift "in the terms in which justice is imagined": "the most salient social movements are no longer economically defined 'classes' who are struggling to defend their 'interests,' end 'exploitation,' and win 'redistribution.' Instead, they are culturally defined 'groups' or 'communities of value' who are struggling to defend their 'identities,' end 'cultural domination,' and win 'recognition.'" NANCY FRASER, JUSTICE INTERRUPTUS: CRITICAL REFLECTIONS ON THE " POSTSOCIALIST" CONDITION 2 (1997).
88. See generally FRANTZ FANON, THE WRETCHED OF THE EARTH (1963);
89. ASHISH NANDY, THE INTIMATE ENEMY (1983);
90. EDWARD W. SAID, ORIENTALISM (1979).
91. See Sunder, Cultural Dissent, supra note 29.
92. Charles Taylor, The Politics of Recognition, in MULTICULTURALISM 25 (Amy Gutmann ed., 1994) (describing a move by minority groups to have their cultural distinctiveness recognized and preserved).
93. See RICHARD THOMPSON FORD, RACIAL CULTURE: A CRITIQUE 18-19 (2005) (distinguishing the "politics of recognition" from "identity politics").
94. Taylor, supra note 50, at 25, 36 ("[W]ithholding of recognition can be a form of oppression.").
95. Salman Rushdie, Excerpts from Rushdie's Address: 1,000 Days 'Trapped Inside a Metaphor,' N.Y. TIMES, Dec. 12, 1991, at B8 (excerpts from speech delivered at Columbia University) ("[T]hose who do not have power over the story that dominates their lives, power to retell it, rethink it, deconstruct it, joke about it, and change it as times change, truly are powerless, because they cannot think new thoughts.").
96. See, e.g., CASS SUNSTEIN, REPUBLIC.COM (2001).
97. See FRASER, supra note 47.
98. See K. Anthony Appiah, Identity, Authenticity, Survival: Multicultural Societies and Social Reproduction, in M ULTICULTURALISM, supra note 50, at 149, 162-63 (asking whether, if we take autonomy seriously, identity politics does not replace "one kind of tyranny with another");
99. Janet E. Halley, Culture Constrains, in IS MULTICULTURALISM BAD FOR WOMEN? 100, 103-04 (Joshua Cohen et al. eds., 1999).
100. See ELIZABETH A. POVINELLI, THE CUNNING OF RECOGNITION 17, 33 (2002) (expressing concern that communities may conform themselves to rigid legal definitions, stifling cultural dynamism).
101. See Susan Moller Okin, Is Multiculturalism Bad for Women?, in IS MULTICULTURALISM BAD FOR WOMEN?, supra note 56, at 7 (arguing that multiculturalism is not in the best interests of women and children);
102. cf. SEYLA BENHABIB, THE CLAIMS OF CULTURE: EQUALITY AND DIVERSITY IN THE GLOBAL ERA 67 (2002) (seeking to balance women's rights to both equality and cultural community);
103. Sunder, Piercing the Veil, supra note 29, at 1432-33 (arguing that women seek equality and freedom within cultural community, not just without it).
104. See FORD, supra note 51.
105. See Sunder, Cultural Dissent, supra note 29, at 549-50 (criticizing the U.S. Supreme Court for treating Boy Scouts of America as homogeneous and static, and ignoring that the association is rife with conflict over the place of gays);
106. Sunder, Piercing the Veil, supra note 29, at 1421 (arguing that human rights law defers to claims of religious elites about law and meaning, inadvertently thwarting claims of dissenting women who offer alternative religious interpretations).
107. IRIS MARION YOUNG, INCLUSION AND DEMOCRACY 105 (2000). Young would recharacterize cultural or social groups in the structural or relational terms of social relations rather than in the psychological or biological terms that proliferated during the first wave of identity politics.
108. See id. at 82-83.
109. See FRASER & HONNETH, supra note 46, at 61, 62 ("[N]ominally cultural matters affect not only status but also economic position. In neither case, therefore, are we dealing with separate spheres.");
110. see also Nancy Fraser, From Redistribution to Recognition? Dilemmas of Justice in a 'Post-Socialist' Age, 212 NEW LEFT REV. 68, 79 (1995) (writing that cultural and economic subordination "intertwine to reinforce one another dialectically").
111. For more on this interpenetration, see Margaret Jane Radin & Madhavi Sunder, Foreword: The Subject and Object of Commodification, in RETHINKING COMMODIFICATION (Martha M. Ertman & Joan C. Williams eds., 2005).
112. As Amartya Sen writes: Taking culture to be independent, unchanging and unchangeable cap indeed be very problematic. But that, on the other hand, is no reason for not taking full note of the importance of culture seen in an adequately broad perspective.... [I]f culture is recognized to be nonhomogeneous, nonstatic, and interactive, and if the importance of culture is integrated with rival sources of influence, then culture can be a very positive and constructive part in our understanding of human behavior and of social and economic development. Sen, supra note 30, at 44.
113. See Sunder, Cultural Dissent, supra note 29, at 561-67.
114. Arjun Appadurai, The Capacity to Aspire: Culture and the Terms of Recognition, in CULTURE AND PUBLIC ACTION, supra note 30, at 59, 59 ("[T]here has been real refinement and academic progress [in the area of defining culture].... Today's definitions are both more modest, and more helpful.").
115. Indeed, I am much more hopeful today than I was several years ago about the prospects for a fruitful collaboration between intellectual property and identity politics, precisely because cultural theorists' earlier critiques are having some effect. See Madhavi Sunder, Intellectual Property and Identity Politics: Playing with Fire, 4 J. GENDER RACE & JUST. 69 (2000) [hereinafter Sunder, Playing with Fire] (warning that characterizing cultural identity in intellectual property terms would lead to static and homogeneous identity and culture).
116. See infra note 344 and accompanying text.
117. Appadurai, supra note 65, at 62-63 (citation omitted).
118. See, e.g., Regina Austin, Kwanzaa and the Commodification of Black Culture, in RETHINKING COMMODIFICATION, supra note 62, at 178 (arguing for social and economic empowerment for blacks by reclaiming market control of their cultural representations).
119. See Doris Estelle Long, The Impact of Foreign Investment on Indigenous Culture. An Intellectual Property Perspective, 23 N.C. J. INT'L L. & COM. REG. 229, 245 & n.42 (1998) (citing the efforts of Chief Crazy Horse's descendants to bar the unauthorized use of their ancestor's name as an alcoholic beverage brand);
120. Lakshmi Sarma, Biopiracy: Twentieth Century Imperialism in the Form of International Agreements, 13 TEMP. INT'L & COMP. L.J. 107, 128-29 (1999) (describing exploitation by transnational corporations of traditional communities in India and Nicaragua):
121. Lester I. Yano, Protection of the Ethnobiological Knowledge of Indigenous Peoples, 41 UCLA L. REV. 443, 472-73 (1993) (discussing contracting efforts between indigenous peoples and pharmaceutical corporations to ensure certain rights and compensations to a community for use of its ethnobiological knowledge);
122. Michael M. Phillips, Bitter Remedies: The Search for Plants That Heal Generates International Feuding, WALL ST. J., June 7, 2001, at A1 (chronicling a conflict between a Swiss research institute and the University of Zimbabwe over patent rights to a plant traditionally used in Zimbabwe).
123. See, e.g., Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96 (D.D.C. 2003).
124. See Nell Jessup Newton, Memory and Misrepresentation: Representing Crazy Horse in Tribal Court, in BORROWED POWER: ESSAYS ON CULTURAL APPROPRIATION 195, 211-12 (Bruce Ziff & Pratima V. Rao eds., 1997);
125. see also Hornell Brewing Co., Inc. v Brady, 819 F. Supp. 1227, 1230 (E.D.N.Y. 1993).
126. See Native American Tribal Insignia Database, 69 Fed. Reg. 55,415 (Sept. 14. 2004).
127. Trade Marks Act 2002, 2002 S.N.Z. No. 49 § 17(1)(c), amended by Trade Marks Amendment Act 2005, 2005 S.N.Z. No. 116 (allowing the trade mark commissioner to refuse to register a mark "likely to offend a significant section of the community, including Maori").
128. See WORLD INTELLECTUAL PROP. ORG., INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE 20 (2004), available at http://www.wipo.int/ freepublications/en/tk/920/wipo_pub_920.pdf.
129. See Chander & Sunder, supra note 5, at 1357-58.
130. See discussion infra Part III.B.
131. See Phil Patton, Trademark Battle Over Pueblo Sign, N.Y. TIMES, Jan. 13, 2000, at F1.
132. See Yumbulul v. Reserve Bank of Australia (1991) 21 I.P.R. 481; Milpurrurru v. Indofurn Pry Ltd. (1994) 130 A.L.R. 659 (holding that aboriginal artist's work was misappropriated and awarding communal damages for "culturally based harm" resulting from the desecration of the sacred work, which was reproduced on carpets upon which people would walk).
133. Lenore Keeshig-Tobias, Stop Stealing Native Stories, in BORROWED POWER: ESSAYS ON CULTURAL APPROPRIATION 71, 72 (Bruce Ziff & Pratima V. Rao eds., 1997).
134. See UNESCO, Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Oct. 20, 2005), available at http://unesdoc.unesco.org/images/0014/001429/142919e.pdf. The Preamble, for example, recognizes "the importance of traditional knowledge as a source of intangible and material wealth" and "the importance of the vitality of cultures, including for persons belonging to minorities and indigenous peoples, as manifested in their freedom to create, disseminate and distribute their traditional cultural expressions and to have access thereto, so as to benefit them for their own development...."
135. Id. pmbl.
136. The Convention requires parties to encourage "the strengthening of the cultural industries in developing countries." To this end, the Convention proposes: (i) creating and strengthening cultural production and distribution capacities in developing countries; (ii) facilitating wider access to the global market and international distribution networks for their cultural activities, goods and services; (iii) enabling the emergence of viable local and regional markets; (iv) adopting, where possible, appropriate measures in developed countries with a view to facilitating access to their territory for the cultural activities, goods and services of developing countries; (v) providing support for creative work and facilitating the mobility, to the extent possible, of artists from the developing world; (vi) encouraging appropriate collaboration between developed and developing countries in the areas, inter alia, of music and film.... Id. art. 14.
137. See id. art. 7 (urging parties "to create in their territory an environment which encourages individuals and social groups [to] create, produce, disseminate, distribute and have access to their own cultural expressions, paying due attention to the special circumstances and needs of women as well as various social groups, including persons belonging to minorities and indigenous peoples").
138. Id. art. 1 (including, as objectives, the desire "to encourage dialogue among cultures with a view to ensuring wider and balanced cultural exchanges in the world in favour of intercultural respect and a culture of peace; to foster interculturality in order to develop cultural interaction in the spirit of building bridges among peoples");
139. see id. art. 4, ¶ 8 (defining "interculturality" as "the existence and equitable interaction of diverse cultures and the possibility of generating shared cultural expressions through dialogue and mutual respect").
140. Id. pmbl.
141. See Statement of the Bellagio Conference, Cultural Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the Post Colonial Era (Mar. 11, 1993), available at http://www.case.edu/affil/sce/ BellagioDec.html [hereinafter Bellagio Declaration] ("Intellectual property laws have profound effects on issues as disparate as scientific and artistic progress, biodiversity, access to information, and the cultures of indigenous and tribal peoples. Yet all too often those laws are constructed without taking such effects into account....").
142. See J. Michael Finger, Introduction and Overview, in POOR PEOPLE'S KNOWLEDGE: PROMOTING INTELLECTUAL PROPERTY IN DEVELOPING COUNTRIES 1, 1 (J. Michael Finger & Philip Schuler eds., 2003) (characterizing TRIPS as "about knowledge that exists in developed countries").
143. See Sunder, The Invention of Traditional Knowledge, supra note 5, at 15.
144. See supra notes 31-37 and accompanying text.
145. WIPO, for example, outlines the key objectives of traditional knowledge ("TK") protection to include: • Recognition of value and promotion of respect for traditional knowledge systems • Responsiveness to the actual needs of holders of TK • Repression of misappropriation of TK and other unfair and inequitable uses • Protection of tradition-based creativity and innovation • Support of TK systems and empowerment of TK holders • Promotion of equitable benefit-sharing from use of TK • Promotion of the use of TK for a bottom-up approach to development WORLD INTELLECTUAL PROP. ORG., supra note 75, at 16;
146. see also DARRELL A. POSEY & GRAHAM DUTFIELD, BEYOND INTELLECTUAL PROPERTY: TOWARD TRADITIONAL RESOURCE RIGHTS FOR INDIGENOUS PEOPLES AND LOCAL COMMUNITIES 175 (1996).
147. See Laurence R. Helfer, Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking, 29 YALE J. INT'L L. 1, 55 (2004) (arguing that in the case of traditional knowledge, for example, developing countries have shifted focus from TRIPS to international legal fora in the areas of human rights and biodiversity, which offer greater access to NGOs and a discourse more aligned with developing country interests);
148. Kal Raustiala & David G. Victor, The Regime Complex for Plant Genetic Resources, 58 INT'L ORG. 277 (2004) (describing the increasing density of legal institutions governing plant genetic resources, from international intellectual property to trade, environmental, and human rights regimes, all of which now exert influence when a conflict over these resources arises).
149. See RAJAGOPAL, supra note 46, at 247 (describing the shift from first to third generation human rights).
150. STRATHERN, supra note 18, at 21.
151. Article 27 of the Declaration states: • Everyone has the right
152. International Covenant on Economic, Social, and Cultural Rights art. 15, opened for signature Dec. 19, 1966, 993 U.N.T.S. 3 (recognizing "the right of everyone... [t]o benefit from the protection of moral and material interests resulting from any scientific, literary or artistic production of which he is the author");
153. see also Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994) (declaring rights to artifacts, designs, ceremonies, technologies, visual and performing arts, literature, traditional medicines and health practices).
154. U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. and Cultural Rights, General Comment No. 17, at 9, U.N. Doc. E/C.12/GC/17 (Jan. 12, 2006) ("The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (article 15, paragraph 1(c), of the Covenant).").
155. Darrell A. Posey, International Agreements and Intellectual Property Right Protection for Indigenous Peoples, in INTELLECTUAL PROPERTY RIGHTS FOR INDIGENOUS PEOPLES: A SOURCEBOOK 225, 227 (Tom Greaves ed., 1994) (arguing that indigenous peoples need not accept existing legal concepts on their own terms-rather, "the term can be purposefully molded, expanded, or re-designed");
156. see also Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, June 18, 1993, available at http://www.ankn.uaf.edu/IKS/mataatua.html (recommending that indigenous peoples pursue intellectual property rights on different terms from traditional Western owners).
157. STRATHERN, supra note 18, at 23-24.
158. See MICHAEL F. BROWN, WHO OWNS NATIVE CULTURE? (2003).
159. See Elizabeth Povinelli, At Home in the Violence of Recognition, in PROPERTY IN QUESTION: VALUE TRANSFORMATION IN THE GLOBAL ECONOMY 185, 193 (Katherine Verdery & Caroline Humphrey eds., 2004) (bemoaning pressure on indigenous peoples to present their communities as "a synchronic structure" that comports to legal requirements for land based on colonial notions of authentic difference);
160. Michael Rowlands, Cultural Rights and Wrongs: Uses of the Concept of Property, in PROPERTY IN QUESTION: VALUE TRANSFORMATION IN THE GLOBAL ECONOMY, supra, at 209 (expressing concern about "the essentializing claim of a politics of recognition");
161. Sunder, Playing With Fire, supra note 66;
162. cf. Radin & Sunder, supra note 62.
163. Compare Matt Fleischer, Patent Thyself, AM. L., June 2001, at 84 (describing efforts by individuals to patent themselves or their children's cell lines),
164. with Moore v. Regents of the Univ. of Cal., 793 P.2d 479 (Cal. 1990) (holding individual had no property rights in a patented cell line derived from material removed from his body, but that doctors who derived the cell line did).
165. See, e.g., White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1514 (9th Cir. 1993) (petition for rehearing en banc denied) (Kozinski, J., dissenting) (denouncing court for erecting "a property right of remarkable and dangerous breadth" in finding actress Vanna White to hold an intellectual property right in any likeness of her image);
166. Hoffman v. Capital Cities/ABC, Inc., 33 F. Supp. 2d 867 (C.D. Cal. 1999), rev'd by 225 F.3d 1180 (9th Cir. 2001) (rejecting argument by actor Dustin Hoffman that Los Angeles Magazine's, unauthorized photograph of Hoffman dressed as character from the movie "Tootsie" violated his right of publicity).
167. Compare Lucasfilm Ltd. v. High Frontier, 622 F. Supp. 931 (D.D.C. 1985) (holding that dilution of mark "Star Wars" by use in publicity campaigns for and against Strategic Defense Initiative is not protectable under trademark law),
168. with San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522 (1987) (upholding statutory protections of the word "Olympic" against uses that threatened to "dilute" its wholesome meaning).
169. STRATHERN, supra note 18, at 134.
170. See generally YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 276 (2006) ("[T]he technical characteristics of digital information technology, the economics of networked information production, and the social practices of networked discourse qualitatively change the role individuals can play in cultural production.").
171. KANT, supra note 28, at 136.
172. ANDREW L. SHAPIRO, THE CONTROL REVOLUTION: HOW THE INTERNET IS PUTTING INDIVIDUALS IN CHARGE AND CHANGING THE WORLD WE KNOW 15 (1999).
173. Neal Netanel labels this the "speech hierarchy," which he describes as "the disproportionate power of wealthy speakers and audiences to determine the mix of speech that comprises our public discourse." Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. REV. 1879, 1884 (2000). Netanel observes that powerful private media corporations might themselves serve at times as a useful counterweight to governmental authority.
174. Id. at 1885.
175. See, e.g., A. Michael Froomkin, Habermas@Discourse.Net: Toward a Critical Theory of Cyberspace, 116 HARV. L. REV. 749, 855-71 (2003) (discussing blogs, wikis, and collaborative filtering as "hardware for democracy").
176. Reno v. ACLU, 521 U.S. 844, 870 (1997) (quoting Reno v. ACLU, 929 F. Supp. 824, 842 (E.D. Pa. 1996)).
177. See, e.g., SHAPIRO,supra note 107, at 16.
178. See discussion of "mash-ups" in Part III.B.5, infra.
179. See Mark A. Lemley & Lawrence Lessig, The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, 48 UCLA L. REV. 925, 930-33 (2001). 114. Id.
180. ANDREW F. WOOD & MATTHEW J. SMITH, ONLINE COMMUNICATION: LINKING TECHNOLOGY, IDENTITY, AND CULTURE 181 (2001).
181. See Anupam Chander, Whose Republic?, 69 U. CHI. L. REV. 1479, 1488-89 (2002) (arguing that the Internet empowers minorities who have not been reflected in traditional media to represent themselves and build new national and transnational communities).
182. See ERIC VON HIPPEL, DEMOCRATIZING INNOVATION 13 (2005) ("Users' ability to innovate is improving radically and rapidly as a result of the steadily improving quality of computer software and hardware, improved access to easy-to-use tools and components for innovation, and access to a steadily richer innovation commons.").
183. See Apple, GarageBand, http://www.apple.com/ilife/garageband/.
184. BERNERS-LEE, supra note 12, at 57;
185. Chander, supra note 116, at 1491.
186. For an overview of the use of modification or "mod" software in computer gaming, see generally Mod (Computer Gaming), WIKIPEDIA, http://en.wikipedia.org/wiki/Mod_%28computer_gaming%29.
187. See, e.g., Andrew Lavalee, Now. Virtual Fashion, WALL ST. J., Sept. 26, 2006, at B1 (describing "the fast-growing virtual world of Second Life" in which game players buy clothes for their avatars).
188. Carl Bialik, Measuring the Impact of Blogs Requires More than Counting, WALL ST. J. ONLINE, May 26, 2005, http://online.wsj.com/public/article/SB111685593903640572.html.
189. Wikipedia, WIKIPEDIA, http://en.wikipedia.org/wiki/ Wikipedia.
190. YouTube has rocketed to the top of the charts of World Wide Web sites in just a year's time. See Press Release, comScore Networks, Online Video Officially Goes Mainstream as YouTube.com Breaks Into the comScore Media Metrix Top 50 (Aug. 15, 2006), available at http://www.comscore.com/press/ release.asp?press=982.
191. JOHN FISKE, TELEVISION CULTURE 95, 236-39 (1987);
192. see supra note 29 and accompanying text.
193. See, e.g., LAWRENCE LESSIG, FREE CULTURE 37 (2004) (arguing that the twenty-first century could be both "read and write" because of technical advances that make creating and disseminating cultural products easier and cheaper);
194. Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. REV. 1, 37 (2004) (observing that "[d]igital technology makes the values of a democratic culture salient to us because it offers the technological possibility 01 widespread cultural participation");
195. Yochai Benkler, Lecture, Freedom i n the Commons: Towards a Political Economy of Information, 52 DUKE L.J. 1245, 1246-47 (2003) (tracing how the Internetows the growth of nonmarket production of cultural content through decentralized production and distribution);
196. Chander, supra note 116, at 1492-93 (criticizing CASS SUNSTEIN, REPUBLIC.COM (2001), for failing to recognize e benefits of the greater diversity of voices on the Internet);
197. Froomkin, supra note 109, at 798 (highlighting how Internet governance mechanisms conform to a high standard of discourse ethics as outlined by Jurgen Habermas).
198. FISKE, supra note 125, at 236-39.
199. Id. For a critique of Fiske,
200. see Mike Budd et al., The Affirmative Character of U.S. Cultural Studies, 7 CRITICAL STUD. MASS COMM. 169 (1990) (arguing that Fiske overestimates both the freedom of audiences in receiving popular media and the amount of oppositional cultural reading taking place).
201. SALMAN RUSHDIE, THE GROUND BENEATH HER FEET 95 (1999).
202. VON HIPPEL, supra note 117, at 123.
203. Id. at 123-24.
204. PAUL GOLDSTEIN, COPYRIGHT'S HIGHWAY 170 (2003) (quoting Charles Clark, the Legal Advisor to the International Publishers Copyright Council, in 1995). Clark envisioned a digital architecture that would "record and reward."
205. Id. Home users would pay to play through Internet applications coded to monitor identity and provide access in exchange for appropriate royalties. While Goldstein names the potential perfected form of this convention in digital media the "celestial jukebox," emerging trends in e-commerce, most evident in Apple iTunes and Real Rhapsody, confirm that this seemingly fantastic theory is closer to reality than science-fiction.
206. See Apple iTunes, http://www.apple.com/itunes/ (selling the right to download from its archive of popular songs for $0.99 per song and coding the songs to enable users to make three legitimate hard copies of each song); RealNetworks, Rhapsody, http://www.real.com/rhapsody (providing unlimited access to an archive of over one million songs in exchange for a monthly fee and enabling users to copy Rhapsody licensed songs to qualified mobile MP3 players while their subscriptions remain current).
207. See Fisher, Property and Contract on the Internet, supra note 5.
208. See U.S. COPYRIGHT OFFICE, THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998: U.S. COPYRIGHT OFFICE SUMMARY (1998), available at http://www.copyright.gov/legislation/dmca.pdf;
209. Jonathan Band, The Digital Millenium Copyright Act: A Balanced Result, STAN. TECH. L. REV. (1998), http://stk.stanford.edu/STLR/Events/dmca/index.html.
210. See LESSIG, supra note 126;
211. LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 122-41 (1999) [hereinafter LESSIG, CODE].
212. Cf. Justin Hughes, "Recoding" Intellectual Property and Overlooked Audience Interests, 77 TEX. L. REV. 923, 940-66 (1999).
213. See LESSIG, supra note 126.
214. See Wendy J. Gordon. Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1601 (1982) (acknowledging that "[w]hile other approaches to fair use may legitimately be advanced, much of fair use depends on the resolution of market-based concerns, in particular whether the "defendant could not appropriately purchase the desired use through the market").
215. See Glynn S. Lunney, Jr., The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act, 87 VA. L. REV. 813, 814 & n.4 (2001).
216. See id.
217. See William M. Landes & Richard A. Posner, Indefinitely Renewable Copyright, 70 U. CHI. L. REV. 471, 517-18 (2003) (arguing in favor of indefinite copyright protection, made constitutional through limited terms with an unlimited potential for renewal).
218. WILLIAM W. FISHER III, PROMISES TO KEEP: TECHNOLOGY, LAW, AND THE FUTURE OF ENTERTAINMENT 162 (2004);
219. see also LESSIG, CODE, supra note 135, at 135 ("[W]hen intellectual property is protected by code, nothing requires that the same balance be struck. Nothing requires the owner to grant the right of fair use.... Fair use becomes subject to private gain.").
220. See infra Part III.B.1 (discussing MGM v. Grokster, 125 S. Ct. 2764 (2005)).
221. Compare Gordon, supra note 138,
222. with Robert P. Merges, The End of Friction? Property Rights and Contract in the "Newtonian" World of On-Line Commerce, 12 BERKELEY TECH. L.J. 115, 134 (1997) (arguing that fair use has historically harbored a variety of non-market values and predicting that in the future fair use "will revolve less around market failure, and more around the idea of favoring certain classes of users with a statutory privilege").
223. See, e.g., LANDES & POSNER, supra note 17, at 37-70, 40 ("In the absence of copyright protection the marginal price of a book or other expressive work will eventually be bid down to the marginal cost of copying with the result that the work may not be produced in the first place because the author and publisher may not be able to recover their costs of creating it.");
224. see also id. at 166-209 (discussing the economics of trademark law);
225. id. at 294-333 (explaining economic theory underlying patents).
226. For one operationalization of philosophical utilitarianism in intellectual property law, see William W. Fisher & Talha Syed, Why We Should Reform Developed Nations' Drug Innovation Systems to Address the Health Crisis in the Developing World, 40 U.C. DAVIS L. REV. (forthcoming February 2007).
227. This recalls John Stuart Mill's distinction between "high" and "low" pleasures, and more recent discussions of "utility monsters." See generally JOHN STUART MILL, UTILITARIANISM (Roger Crisp ed., Oxford Univ. Press 1998) (1863);
228. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974).
229. See AMARTYA SEN, Equality of What?, in CHOICE, WELFARE AND MEASUREMENT 353, 354 (1982) ("The utilitarian objective is to maximize the sum-total of utility irrespective of distribution.");
230. id. at 356 ("Insofar as one is concerned with the distribution of utilities, it follows immediately that utilitarianism would in general give one little comfort.").
231. See R. Polk Wagner, Information Wants To Be Free: Intellectual Property and the Mythologies of Control, 103 COLUM. L. REV. 995, 1017-19 (2003) (arguing that dynamic incentive effects reveal that greater control by property holders leads to maximum production of cultural goods).
232. In May 2004, for example, India's Bharatiya Janata Party suffered a surprising electoral upset because its economic growth had not benefited the country's sizeable poor population. S. Nihal Singh, Indian Election: Of Computer Mice and Men, YALEGLOBAL ONLINE, May 17, 2004, http://yaleglobal.yale.edu/display.article?id=3887.
233. MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 61 (2000).
234. Id.
235. Id. at 60.
236. See DAVID HUME, A TREATISE OF HUMAN NATURE, bk. 3, pt 1, § 1 (warning writers to be on their guard when deriving prescription from description).
237. This is not unprecedented: economic critiques of maximalist intellectual property rights, which posit that strong intellectual property rights stifle future creators as a descriptive matter, are typically followed with prescriptive arguments to cut back on intellectual property protection and return to a prior optimal state of "balance" between private and public rights.
238. In so doing, it continued its earlier rejection of pure economic reasoning. See Eldred v. Ashcroft, 537 U.S. 186, 222 (2003) (finding that the Court is not in a position to second-guess Congress's policy decision to extend copyright protection). Indeed, Grokster represents the second time that Nobel laureate economists, including Kenneth Arrow, failed to convince the Court to set intellectual property law on a firm economic foundation.
239. Brief for Kennneth J. Arrow, Ian Ayres, Gary Becker, William M. Landes, Steven Levitt, Douglas Lichtman, Kevin Murphy, Randal Picker, Andrew Rosenfield, and Steven Shavell as Amici Curiae Supporting Petitioners at 8, MGM v. Grokster, 125 S. Ct. 2764 (2005) (No. 04-480). 2005 WL 176441.
240. MGM v. Grokster, 125 S. Ct. 2764, 2780 (2005) (citing W. KEETON ET AL., PROSSER AND KEETON ON LAW OF TORTS 37 (5th ed. 1984)).
241. Id.
242. See id. at 2781 (requiring evidence of "unlawful purpose" in order to find secondary liability where defendant lacks actual knowledge of infringement).
243. Brief for Internet Law Faculty as Amici Curiae Supporting Respondents, MGM v. Grokster, 125 S. Ct. 2764 (2005) (No. 04-480), 2005 WL 508098.
244. 464 U.S. 417 (1984).
245. See Brief for Internet Law Faculty as Amici Curiae Supporting Respondents, supra note 161, at 3 (arguing that "the Sony standard works well; the Court should neither change it, nor deem it inapplicable to today's technologies").
246. Id. at 11 (bemoaning the "impact of such a change... on technological innovation").
247. Here, the Court explains, "When a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement." Grokster, 125 S. Ct. at 2776.
248. Literally so, at times: secondary liability in copyright, of course, is entirely judge-made law, not hinted at in the Federal Register.
249. Creative Commons Japan, for example, permits people to disallow pornographic uses. Creative Commons in the United States has responded to diverse needs by developing new licenses for sampling and developing nations.
250. The license was designed in cooperation with the Silicon Valley law firm of Wilson Sonsini Goodrich and Rosati and other experts on intellectual property and development. See Press Release, Creative Commons, Developing Nations Copyright License Frees Creativity Across the Digital Divide (Sept. 13, 2004), available at http://creativecommons.org/press-releases/entry/4397.
251. Id.;
252. see also Creative Commons Legal Code, Developing Nations 2.0. http://creativecommons.org/licenses/devnations/2.0/legalcode [hereinafter DevNat Code]. The license will terminate automatically upon either a breach by the licensee or within five years of any Developing Nation ceasing to qualify as such.
253. Id. § 7.
254. Id. § 1(c).
255. Id. § 4(d) (The license expressly "does not authorize making the Work, any Derivative Works or any Collective Works publicly available on the Internet unless reasonable measures are undertaken to verify that the recipient is located in a Developing Nation, such as by requiring recipients to provide name and postal mailing address, or by limiting the distribution of the Work to Internet IP addresses within a Developing Nation.").
256. DevNat represents a voluntary version of the global democratic culture vision offered by Neal Netanel. See Neil Weinstock Netanel, Asserting Copyright's Democratic Principles in the Global Arena, 51 V AND. L. REV. 217, 224 (1998) (advocating compulsory licenses "for the production of export-restricted copies and translations of expressive works in countries in which... the works are... not available at reasonable cost").
257. See Press Release, Creative Commons, supra note 168.
258. Id.
259. See Architecture for Humanity, Sudan: Dying for Change, http://www.architectureforhumanity.org/programs/Sudan/index.htm (including an agriculture technology center, sand bag huts, water collection units, and food distribution centers).
260. Architecture for Humanity, Design[ER]: A Call for Ideas for an Earthquake Resistant Housing Manual for Kashmir, http://www.architectureforhumanity.org/ programs/South_Asia_Earthquake/designer_requirements.htm.
261. See, e.g., Darren Waters, Digital Citizens: The Activist, BBC NEWS ONLINE, July 22, 2005, http://news.bbc.co.uk/1/hi/ entertainment/4112004.stm (discussing the release of CORY DOCTOROW, SOMEONE COMES TO TOWN, SOMEONE LEAVES TOWN (2006), under the DevNat license).
262. For example, the West Africa Doctors and Healthcare Professionals Network, based in Accra, Ghana, makes information available under DevNat. See West Africa Doctors and Healthcare Professionals Network, http://www.wadn.org/wadn.
263. As Lessig himself states: "The fact is that most of the world's population is simply priced out of developed nations' publishing output. To authors, that means an untapped readership. To economists, it means 'deadweight loss.' To human rights advocates and educators, it is a tragedy. The Developing Nations license is designed to address all three concerns." Press Release, Creative Commons, supra note 168.
264. Email Interview with Richard Stallman, Founder, Free Software Foundation (Feb. 6, 2006), available at http://www.linuxp2p.com/forums/viewtopic. php?p=10771; see also Benjamin Make Hill, Towards a Standard of Freedom: Creative Commons and the Free Software Movement, ADVOGATO, http://www.advogato.org/article/851.html (July 29, 2005) (lamenting that the developing nations license and sampling licenses replace what could have been a call for a world where "essential rights are unreservable" with the relatively hollow call for "some rights reserved").
265. Lawrence Lessig, CC in Review: Lessig Letters on Creative Commons Important Freedoms, http://creativecommons.org/weblog/entry/5719 (Dec. 7, 2005).
266. I borrow this phrasing from my student, Leena Kamat, co-founder of the Intellectual Property and Social Justice student group at King Hall.
267. See Science Commons, http://sciencecommons.org.
268. See PIPRA, http://www.pipra.org.
269. The Green Revolution refers to the technological "transfer and diffusion of a package of improved agricultural practices involving high-yielding varieties of seeds, fertilizers, pesticides, controlled water, credits, and some agricultural machinery" to developing world countries such as India since the mid-1960s. Govindan Parayil, The Green Revolution in India: A Case Study of Technological Change, 33 TECH. & CULTURE 737, 753 (1992). This technology transfer responded to agricultural and development failures, including the threat of famine in India just preceding the transfer.
270. See id. The Green Revolution has been hailed as a successful social, economic, and technological policy, which assisted countries such as India in becoming "self-sufficient in food grain production."
271. Id. at 756. The Green Revolution has been critiqued by some, including Vandana Shiva.
272. See VANDANA SHIVA, THE VIOLENCE OF THE GREEN REVOLUTION (1991).
273. 277 A.2d 369 (N.J. 1971).
274. Id. at 372.
275. Id.
276. Id. at 373 ("[A]n owner must expect to find the absoluteness of his property rights curtailed... for the promotion of the best interests of others.... The necessity for such curtailments is greater in a modern industrialized and urbanized society....") (quoting 5 RICHARD POWELL, THE LAW OF REAL PROPERTY § 746 (1970)).
277. 428 F.2d 1071, 1072-73 (D.C. Cir. 1970) (Wright, J.) (establishing a "warranty of habitability" implied within every leasehold).
278. See Rabin, supra note 45, at 546-48.
279. Shack, 277 A.2d at 372.
280. Id.
281. Doctors Without Borders provides "treatment to more than 57,000 people living with HIV/AIDS in... 29 countries...." Médecins Sans Frontières, MSFs Projects for People with HIV/AIDS, http://www. doctorswithoutborders.org/news/hiv-aids/index.cfm.
282. The Least Developed Countries have until 2013 to be fully TRIPS compliant and until 2016 to grant patents in pharmaceutical drugs. See Press Release, World Trade Organization, Poorest Countries Given More Time to Apply Intellectual Property Rules (Nov. 29. 2005), http://www.wto.org/English/news_e/ pres05_e/pr424_e.htm.
283. Prior to 1970, India had strict, Western-style patent laws-a vestige of its colonial days-and, as a result, some of the highest drug prices in the world. After 1970, India saw a proliferation of generic drugmakers and lower prices. See Donald G. McNeil, Jr., India Alters Law on Drug Patents, N.Y. TIMES, Mar. 24, 2005, at A1.
284. Several recent studies "predict price increases of twofold or more with full implementation of TRIPS requirements in developing countries." E.g., THE SECRETARIAT, WORLD HEALTH ORGANIZATION, INTELLECTUAL PROPERTY RIGHTS, INNOVATION AND PUBLIC HEALTH, WHO Doc. A56/17 (May 12, 2003), available at http://www.who.int/gb/ebwha/pdf_files/WHA56/ ea5617.pdf. The negative effects of price increases are amplified in countries such as India, where health insurance is rare.
285. See Ouseph Tharakan, Access to Drugs the Key Issue, FIN. EXPRESS, Apr. 6, 2005, http://www.financialexpress.com/ fe_full_story.php?content_id=87106.
286. See Heda Bayron, WTO Warned Patent Rules Shrinking Access to Cheap Drugs for Poor Nations, VOICE AM., Dec. 13, 2005, http://www.voanews.com/english/archive/2005-12/2005-12-13-voa10.cfm.
287. World Trade Organization, Ministerial Declaration of 14 November 2001, ¶ 4, WT/MIN(01)/DEC/2, 41 I.L.M. 755 (2002) [hereinafter Doha Declaration].
288. Id.
289. Rosemary Arackaparambil, India's New Patent Law to Shake Up Drug Industry. REUTERS, Dec. 30. 2004, available at http://in.news.yahoo.com/041230/137/2ir3u.html ("There could easily be 70 to 80 million people [in India] who can afford expensive medicines, just as they go out and buy expensive cars, branded clothes and consumer goods.... That is equal to the size of a UK or a Germany," (quoting an anonymous pharmaceutical executive)).
290. Doha Declaration, supra note 199, ¶ 5.
291. Article 31 of TRIPS provides that countries can only evoke compulsory licenses "predominantly for the supply of the domestic market"- impairing a country such as India for example, from using a compulsory license to produce a drug for export to an LDC TRIPS, supra note 15, art. 31.
292. Press Release, World Trade Organization, Members OK Amendment to Make Health Flexibility Permanent (Dec. 6, 2005), available at http://www.wto.org/English/news_e/pres05_e/pr426_e.htm. Humanitarians have worried that the accommodation may not prove meaningful, given that no country to date has chosen to follow the TRIPS procedure to assert the waiver for exports or imports.
293. See World Trade Organization, Notifications by Exporting WTO Members, http://www.wto.org/english/tratop_e/TRIPs_e/ public_health_notif_export_e.htm (reporting no notifications for exporting have been made);
294. see also Frances Williams, WTO Eases Rules on Drugs for the Poor, FIN. TIMES, Dec. 7. 2005, at 12 (offering both praise and criticism of the amendment).
295. See McNeil, supra note 196;
296. Médecins Sans Frontières, Prognosis: Short-Term Relief, Long-Term Pain: The Future of Generic Medicines Made in India (May 4, 2005), available at http://www.accessmed-msf.org/prod/publications.asp?scntid= 452005121572& contenttype=PARA&.
297. See Siddharth Srivastava. Illegal Drug Trade Outsourced to India, Too, ASIA TIMES ONLINE, Apr. 27, 2005, http://www.atimes.com/atimes/South_Asia/GD27Df04.html.
298. See McNeil, supra note 196.
299. Brazilian generics, in contrast, had been used primarily for its domestic patients. See id.
300. Id.
301. The law, which seeks to make India fully TRIPS compliant, became effective as of January 1, 2005. See The Patents (Amendment) Act, 2005, No. 15, Acts of Parliament, 2005, available at http://www.patentoffice. nic.in/ipr/patent/patent_2005.pdf [hereinafter Patents Act 2005].
302. Id. ¶ 10.
303. Id. ¶ 55.
304. The Patents Act, 1970, No. 39, Acts of Parliament, 1970, § 84, available at http://www.patentoffice.nic.in/ipr/patent/patAct1970-3-99. html [hereinafter Patents Act 1970].
305. Id.
306. Id.
307. See Patents Act 2005 ¶ 55 (§ 92A) (allowing for exportation if the importing country has been granted a compulsory license or has notified India that its generics have been approved for importation). "In other words, an officer in India will sit judgement [sic] on another country's sovereign government before permitting a domestic company to manufacture and export the product."
308. See D.G. Shah, Impact of India's Patent Law on the Generics Industry, BRIDGES MONTHLY REV., Apr. 2005, at 19, available at http://www.ictsd.org/monthly/bridges/BRIDGES9-4.pdf.
309. Finding new incentives and methods for producing drugs for the developing world thus becomes an increasingly central concern. See Stephen M. Maurer et al., Finding Cures for Tropical Diseases: Is Open Source an Answer?, PLOS MEDICINE, Dec. 2004, at 183;
310. The Secretariat, World Health Organization, supra note 197;
311. Press Release, Bill and Melinda Gates Foundation, Gates Foundation Commits $258.3 Million for Malaria Research and Development (Oct. 30, 2005), available at http://www.gatesfoundation.org/GlobalHealth/ Pri_Diseases/Malaria/Announcements/Announce-051030.htm.
312. See Shah, supra note 216, at 19 (concluding that "[t]he dice seem loaded against the working of the compulsory license provision, but time alone will prove it").
313. See World Trade Organization, Notifications by Exporting Members, supra note 204. Ironically, the initial position of the United States resisting compulsory licensing of pharmaceutical imports was greatly undermined when it threatened to break the European pharmaceutical company Bayer's patent in the drug Cipro after facing an anthrax attack in the fall of 2001.
314. See Richard W. Stevenson, Reconciling the Demands of War and the Market, N.Y. TIMES, Oct. 28, 2001, at B1 (reporting Secretary of Health and Human Services Tommy G. Thompson's statement before Congress that "he was prepared to break Bayer's patent on the anthrax-fighting drug Cipro").
315. The Brazilian government has received worldwide recognition for its public health program to combat AIDS: since 1986, the government has provided free AIDS treatment to all who need it. An estimated 600,000 Brazilians are infected with the AIDS virus; Brazil's program helps maintain the life of some 170,000 AIDS patients annually, and it has increased the life expectancy of AIDS patients in that country twelvefold. See National STD/AIDS Program: The Government Declares Anti-Retroviral Kaletra To Be of Public Interest and Will Produce It in Brazil, PRNEWSWIRE, June 24, 2005, available at http://www.aegis.com/NEWS/PR/2005/PR050651.html. Brazil has effectively used the threat of compulsory licenses to negotiate lower prices for essential AIDS drugs to help pay for this expensive program, which costs approximately $400 million annually.
316. See Matt Moffett & Heather Won Tesoriero, Brazil Issues AIDS-Drug Ultimatum: Generic Production To Begin if Abbott Won't Lower Price; Bristol's African Initiative, WALL ST. J., June 27, 2005, at B4.
317. To begin with, the property owner in Shack had more of a relationship with the migrant workers: he employed them and even housed them. Merck and W.R. Grace, of course, have no specific relationship with millions who are sick but too poor to pay full price for essential drugs.
318. See, e.g., S. D. Naik, New Patent Regime: Discovering New Challenges, HINDU BUS. LINE, Apr. 12, 2005, available at http://www.blonnet.com/2005/04/12/stories/2005041200060800. htm;
319. see also Editorial, Better Now, But, BUS. STANDARD, Mar. 24, 2005, at 9 ("The general perception is that the flexibilities on drugs patenting and manufacturing, allowed under [TRIPS], have not been fully used."). The blame cannot be laid entirely on TRIPS. The India of 1970 was decidedly not the India of today. Following its independence, India went the socialist way, relying on the public sector at the expense of the private. But this experiment failed in India as it did elsewhere in the world. By the 1990s, India had a new mindset-its focus shifted to building its private sector. By the mid-1990s, the combination of TRIPS obligations and the country's own desire to bolster its corporate sector and attract foreign direct investment together worked to begin slowly changing the country's course on intellectual property rights.
320. See, e.g., Maureen Liebl & Tirthankar Roy, Handmade in India: Traditional Craft Skills in a Changing World, in POOR PEOPLE'S KNOWLEDGE, supra note 87, at 53, 56 ("The full potential of the role craft traditions can play in the development process, and specifically in the generation of income... has only recently begun to be appreciated."):
321. Int'l Chamber of Commerce, Comm'n on Intellectual Prop., Protecting Traditional Knowledge 2 (Discussion Paper 2006), available at http://www.iccwbo.org/uploadedFiles/ICC/policy/intellectual_property/Statements/ Protecting_Traditional_Knowledge.pdf ("[The] ICC supports initiatives to help holders of indigenous knowledge use the existing intellectual property system, including through education and studies of ways in which traditional knowledge can be protected by existing rights.").
322. Thomas Cottier & Marion Panizzon, Legal Perspectives on Traditional Knowledge: The Case for Intellectual Property Protection, 7 J. INT'L ECON. L. 371, 399 (2004);
323. see also id. at 381 ("[T]he introduction of new types of IPRs specifically aimed at developing countries could constitute a step towards a more balanced WTO.").
324. The Geographical Indication of Goods (Registration and Protection) Act. 1999. No. 48, Acts of Parliament, 1999 [hereinafter GI Act].
325. See Pochampally Paves the Way for Local IP Protection, BSNL PORTAL, Dec. 19, 2004, http://bsnl.in/business.asp?intNewsId= 44417&intDaysBefore=3.
326. See Tirupati Laddu, Nagpur Orange to Get Protection from Copycats, HINDU BUS. LINE, Dec. 18, 2004, available at http://www.thehindubusinessline.com/bline/2004/12/19/stories/2004121901300200. htm.
327. TRIPS defines GIs as "indications which identify a good as originating in the territory of a Member... where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin." TRIPS, supra note 15, art. 22(1).
328. "Champagne," "Tequila," and "Roquefort" present examples of the types of goods recognized as GIs. Under TRIPS, member states must provide legal means to prevent uses of a designated GI that either mislead the public as to the geographical origin of the good, or which constitute "unfair competition" under article 10bis of the Paris Convention. Id. art. 22(2).
329. In addition, TRIPS article 23 mandates that further protection be extended to GIs for "wines and spirits," which must be protected even in the absence of consumer confusion. Id. art. 23(1) (prohibiting use of the GI when the product does not originate "in the place indicated by the geographical indication... even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as 'kind,' 'type,' 'style,' 'imitation' or the like"). The designation "Napa Valley Champagne," for example, even when truthful as to the indication of the product's origin, would be impermissible under the heightened level of protection mandated by TRIPS for wines and spirits alone.
330. Historians believe that the Vedas, a vast collection of scientific, spiritual, and literary texts, first appeared in written form sometime between 2500 BCE to 1200 BCE. The most recent texts appeared no later than 500 BCE. The oral tradition of the texts, however, is said to predate the written forms by "several generations of poets and seers." See AN ANTHOLOGY OF INDIAN LITERATURE 13, 15 (John B. Alphonso-Karkala ed., Penguin Books 1971);
331. MORIZ WINTERNITZ, HISTORY OF INDIAN LITERATURE 310 (S. Ketkar trans., Russell & Russell 1971) (1927).
332. Kal Raustiala & Stephen R. Munzer, The Global Struggle Over Geographic Indications 3 (UCLA Sch. of Law, Pub. Law & Legal Theory Research Paper Series No. 06-32, 2006), available at http://ssrn.com/ abstract=925751 ("While economic concerns plainly loom large, the effort to entrench GI protection in international law also draws strength from more diffuse concerns about authenticity, diversity, culture, and locality in a rapidly integrating world."). Raustiala and Munzer conclude that "some modest legal protection of GIs is defensible under a mix of various justifications," including but not limited to utilitarian incentive-based rationales.
333. Id. at 15-16.
334. This is why the current two-tiered protection for GIs in TRIPS-a higher level of protection for wines and spirits and a lower one for everything else-has been a source of continuing conflict between Europe and the developing world. A handful of India's submissions in the WTO relating to TRIPS since 2000 document the dispute. See, e.g., Council for Trade-Related Aspects of Intellectual Property Rights, Communication from Bulgaria, Cuba, Cyprus, the Czech Republic, the European Communities and their Member States, Georgia, Hungary, Iceland, India, Kenya, Liechtenstein, Malta, Mauritius, Pakistan, Romania, the Slovak Republic, Slovenia, Sri Lanka, Switzerland, Thailand and Turkey, IP/C/W/353 (June 24, 2002), available at http://commerce.nic. in/wto_sub/TRIPS/sub_Trips-ipcw353.htm (focusing on "protecting all geographical indications equally");
335. Council for Trade-Related Aspects of Intellectual Property Rights, Proposal from Bulgaria, Cuba, the Czech Republic, Egypt, Iceland, India, Jamaica, Kenya, Liechtenstein, Mauritius, Nigeria, Pakistan, Slovenia, Sri Lanka, Switzerland, Turkey, and Venezuela, IP/C/W/247/Rev.1 (May 17, 2001), available at http://commerce.nic.in/wto_sub/TRIPS/sub_Trips-ipcw247R1.htm ("The TRIPS Agreement does not provide sufficient protection for geographical indications of products other than wines and spirits.");
336. Council for Trade-Related Aspects of Intellectual Property Rights, Communication from India, IP/C/W/196 (July 12, 2000), available at http://commerce.nic.in/wto_sub/TRIPS/sub_Trips-ipcw196.htm ("[A]dditional protection for geographical indications must be extended for products other than wines and spirits.").
337. Aruna Chandaraju, Modern MYSURU, HINDU, Mar. 1, 2005, http://www.hinduonnet.com/thehindu/mp/2005/03/01/stories/2005030100860100.htm.
338. Id.
339. Id.
340. Id.
341. Liebl & Roy, supra note 223, at 70.
342. Graham Outfield argues that "estimating the full value of TK in monetary terms is difficult if not impossible" because traditional knowledge "is often an essential component in the development of other products"; many products derived from traditional knowledge never enter modern markets, and thus are not included in GNP calculations; the replacement cost of traditional knowledge would be "quite high"; and the spiritual value of some traditional knowledge cannot be quantified. Graham Dutfield, Developing and Implementing National Systems for Protecting Traditional Knowledge: A Review of Experiences in Selected Developing Countries 7 (Oct. 30-Nov. 1, 2000) (unpublished manuscript), available at http://www.unctad.org/trade_env/docs/dutfield.pdf. Compare Graham Dutfield. Legal and Economic Aspects of Traditional Knowledge, in INTERNATIONAL PUBLIC GOODS AND TRANSFER OF TECHNOLOGY UNDER A GLOBALIZED INTELLECTUAL PROPERTY REGIME 495, 505 (Keith E. Maskus & Jerome H. Reichman eds., 2005) (suggesting that "the global value added to rice yields by use of [Indian] landraces can be estimated at $400 million per year"),
343. with Stephen B. Brush, Farmers' Rights and Protection of Traditional Agricultural Knowledge 26 (CAPRi Working Paper No. 36, 2005), available at http://www.capri. cgiar.org/pdf/capriwp36.pdf (noting there is "no estimate of value or widely accepted method to estimate value of crop genetic resources" developed by farmers).
344. See Liebl & Roy, supra note 223, at 54, 56 ("Crafts show tremendous potential in terms of employment generation and poverty alleviation in India. Handicrafts provide a livelihood, albeit modest, to large numbers of poor people in India, and especially to the rural poor.").
345. Coenraad J. Visser, Making Intellectual Property Laws Work for Traditional Knowledge, in POOR PEOPLE's KNOWLEDGE, supra note 87, at 207, 213.
346. See Mark A. Lemley, Ex Ante Versus Ex Post Justifications for Intellectual Property, 71 U. CHI. L. REV. 129, 131 (2004);
347. see also Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397, 405 (1990).
348. See discussion infra Part IV.
349. In a related article, I argue that while WIPO and TRIPS have focused on teaching the poor how to protect the intellectual property of the West, we need to now turn our attention to helping the poor to use intellectual property to protect their own inventions as well. See Sunder, supra note 5 (manuscript at 15-17, on file with authors).
350. The Indian GI Act defines "geographical indication" in relation to goods as an "indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be." GI Act, supra note 225, § 1(3)(e).
351. The cost to renew a GI is three thousand rupees. See The Geographical Indications of Goods (Registration and Protection) Rules, 2002, Gazette of India, Part II, Section 3, Sub-section (1) 29-31, available at http://www.patentoffice.nic.in/ipr/gi/geo_ind.htm [hereinafter GI Rules] (Rule 10(1), First Schedule). Once approved, GIs and all producers and authorized users of the GIs are listed in a national Register.
352. GI Act, supra note 225, § 6(1). Registration lasts for ten years and is renewable "from time to time" for periods of an additional ten years.
353. Id. §§ 18(1)-(3).
354. GI Act, supra note 225, § 11(2)(a).
355. GI Rules, supra note 244, at 45.
356. Id.
357. GI Act, supra note 225, § 21(1)(b).
358. Id. § 24.
359. Put another way: "And what happens when a weaver from another part of India moves to Kanjeevaram?" Liebl & Roy, supra note 223, at 65. Kanjeevaram is famous for its silk sarees.
360. See generally Raustiala & Munzer, supra note 230, at 18 ("The more a desert rationale for GI protection hangs on human improvements and inputs, the less central a given locality is to product quality. There is a fundamental tension between the claims of desert based on subsequent human improvement and maintenance and the underlying concept of geographic indications.").
361. See, e.g., Sunder, Cultural Dissent, supra note 29, at 540-41;
362. Sunder, Playing With Fire, supra note 66, at 94.
363. An interesting article by Christina Grasseni describes the pressures on cheese farmers in the Italian mountain regions to commodify not simply cheese itself, but rather the idea of local, authentically produced cheese. See Christina Grasseni, Packaging Skills: Calibrating Cheese to the Global Market, in COMMODIFYING EVERYTHING: RELATIONSHIPS OF THE MARKET 259, 260 (Susan Strasser ed., 2003) (quoting a local dairy farmer saying, "I don't sell my cheese because it's good. I sell it saying, 'Look at where we live, look at our landscape.'"). Grasseni concludes that the "alpine landscape, or rather its well-chosen representations, is the actual commodity underlying the marketing of cheese, the fabrication of authenticity, and the pinpointing of locality to specifically certified geographic areas."
364. Id.
365. See Povinelli, supra note 100, at 193 (describing pressure on indigenous peoples to present their communities as "a synchronic structure" that comports to legal requirements for land based on colonial notions of authentic difference).
366. See COMM'N ON INTELLECTUAL PROP. RIGHTS, INTEGRATING INTELLECTUAL PROPERTY RIGHTS AND DEVELOPMENT POLICY 22 (2002), available at http://www.iprcommission.org/papers/pdfs/final_report/CIPRfullfinal.pdf (finding that "rapid growth is more often associated with weaker IP protection").
367. Danger Mouse quickly took down the controversial description; the text offered here was copied from his website (http://www.dangermousesite.com) in early 2004.
368. See David Browne, The 10 Best, ENT. WKLY., available at http://www.ew.com/ew/article/commentary/0, 6115,1009259_4_0_,00.html (selecting The Grey Album as the best album of 2004);
369. Renee Graham, supra note 23, at E1 (describing Danger Mouse's The Grey Album as "the most intriguing hip-hop album in recent memory");
370. cf. Sasha Frere-Jones, 1+1+1=1: The New Math of Mash-ups, NEW YORKER, Jan. 10, 2005, at 85 (citing another mash-up album in the Billboard Top Ten).
371. Lauren Gitlin, DJ Makes Jay-Z Meet Beatles, ROLLING STONE, Feb. 19, 2004, at 18 (citing The Grey Album as "the ultimate remix record... an ingenious hip-hop record that sounds oddly ahead of its time").
372. Jay-Z's a cappella release, which coincided with his retirement, was his parting gift to the world, an invitation to make derivative works. Copyright law reserves for the owners of a copyright in musical compositions and sound recordings the exclusive right "to prepare derivative works based upon the copyrighted work." Copyright Act, 17 U.S.C. § 106(2) (2006);
373. see also 17 U.S.C. §§ 102(2), 102(7), 114 (2006). The author, of course, is free to waive that right through a license. Jay-Z has raised no objection to the myriad mash-ups of his work, including musical arrangements as far flung as classical to country.
374. See, e.g., DJ RESET, FRONTIN' ON DEBRA (DJ RESET MASH-UP) (Geffen Records 2004); Bass 211. Encore Blitz, available at http://64.105.15.105:9900/encoreblitz.mp3. A question remains as to whether the release of the a cappella version of the album itself amounts to an implied waiver of the derivative work right. The new Creative Commons sampling licenses make plain the author's intention.
375. See Creative Commons, Choose Your Sampling License Options, http://creativecommons.org/license/sampling (the Sampling Deed 1.0, for example, expressly grants the right to "sample, mash-up, or otherwise creatively transform [the] work for commercial or noncommercial purposes" under certain enumerated conditions).
376. EMI's copyright claim to The White Album, which was released in 1968, is questionable, at least under U.S. law, where federal copyrights in sound recordings before 1972 were not recognized. However, state law protections could apply here.
377. See generally Electronic Frontier Foundation, Grey Tuesday: A Quick Overview of the Legal Terrain. http://www.eff.org/IP/grey_tuesday.php.
378. See Grey Tuesday, http://www.greytuesday.org/.
379. Carly Carioli, Black + White = The Grey Album, PORTLAND PHOENIX, Mar. 5-11, 2004, available at http://www. portlandphoenix.com/music/other_stories/documents/03650069.asp.
380. See, e.g., Bill Werde, Defiant Downloads Rise from Underground, N.Y. TIMES, Feb. 25, 2004, at E3.
381. Joanna Demers, Sampling the 1970s in Hip-Hop, 22 POPULAR MUSIC 41, 41 (2003). A digitally stored sound can be played back either as an exact reproduction of the original, or, as is more common, can be manipulated through electronic editing. A common practice in rap and hip-hop music, for example, is to "extract a fragment of sound from one context and place it in a new one."
382. Thomas Porcello, The Ethics of Digital Audio-Sampling: Engineers' Discourse, 10 POPULAR MUSIC 69, 69 (1991).
383. See HENRY LOUIS GATES, JR., FIGURES IN BLACK: WORDS, SIGNS, AND THE "RACIAL" SELF 235-36 (1987) ("Signification is a theory of reading that arises from Afro-American culture; learning how to signify is often part of our adolescent education.");
384. see also Thomas G. Schumacher, 'This Is a Sampling Sport': Digital Sampling, Rap Music and the Law in Cultural Production, 17 MEDIA, CULTURE & SOC'Y 253, 267 (1995);
385. Joanna Demers, Sampling as Lineage in Hip-Hop (2002) (unpublished Ph.D. dissertation, Princeton University) (on file with author) ("Hip-hop's need to create lineage can be understood as a form of Signifyin(g), in which well-known musical materials are quoted, critiqued, and parodied.").
386. See JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 185 (1999). Butler seems to hold that freedom can only be exercised in this way-that is, from within existing cultural discourses rather than outside of them. Writes Butler: "To enter into the repetitive practices of this terrain of signification is not a choice, for the T that might enter is always already inside: there is no possibility of agency or reality outside of the discursive practices that give those terms the intelligibility they have."
387. Id. at 189. The "task" of the individual, continues Butler, "is not whether to repeat, but how to repeat or, indeed, to repeat and, through a radical proliferation of [meaning], to displace the very... norms that enable the repetition itself."
388. Id.
389. Sunder, Cultural Dissent, supra note 29, at 498 ("[C]ultures now more than ever are characterized by cultural dissent: challenges by individuals within a community to modernize, or broaden, the traditional terms of cultural membership. Today, more and more individuals are claiming a right to dissent from traditional cultural norms and to make new cultural meanings-that is, to reinterpret cultural norms in ways more favorable to them.").
390. "Musical borrowings, or samples, have long been a means of creating lineage between hip-hop and older genres of African-American music such as funk, soul, and rhythm and blues. DJs who sample from this so-called 'Old School' attempt to link hip-hop to older, venerable traditions of black popular music." Demers, supra note 264, at 41.
391. WALTER BENJAMIN, The Work of Art in the Age of Mechanical Reproduction, in ILLUMINATIONS 219, 223 (Hannah Arendt ed., Harry Zohn trans., Schocken Books 1969).
392. Schumacher, supra note 265, at 267 ("[S]ampling technology challenges the concept of the singular artist as the only embodied voice in the text.").
393. See Diane Werts, Really Stranger than Fiction: Legions of Serious Fans Take to the Internet to Let Their Imaginations Run Wild Writing Scenarios for Their Favorite Shows NEWSDAY, May 1, 2005, at C16;
394. see also Meredith McCardle, Fan Fiction, Fandom, and Fanfare: What's all the Fuss?, 9 B.U. J. SCI. & TECH. L. 433 (2003).
395. See generally HENRY JENKINS, TEXTUAL POACHERS: TELEVISION FANS & PARTICIPATORY CULTURE 35 (1992).
396. See, e.g., Posting of wolfgirlami, The OFA Series: Book One: The Miraculous Miracle (Aug. 7, 2005), http://www.fanfiction.net/s/2523593/1/ (imagining Hermione's home life);
397. see also Neva Chonin, If You're an Obsessed Harry Potter Fan, Voldemort Isn't the Problem. It's Hermione Versus Ginny, S.F. CHRON., Aug. 3, 2005, at E1.
398. See Manjira Majumdar, When Harry Met Kali, OUTLOOKINDIA.COM, July 7, 2003, http://www.outlookindia.com/full.asp? fodname=20030707/&fname=Cover+Story&sid=4 (describing Uttam Ghosh's Harry Potter Kolkataye-Harry Potter in Kolkata). In Ghosh's story, Harry meets fictional characters from Bengali literature, including Professor Shanku, a protagonist in science fiction stories by Satyajit Ray.
399. See Priyanjali Mitra, Bengali Babu, INDIAN EXPRESS, Apr. 2.0, 2003, available at http://www.indianexpress. com/full_story.php? content_id=22323. Harry also meets historical figures, such as Ray's father.
400. Id.
401. Posting of greendaychica365, Friends til the End, http://www. lotrfanfiction.com viewstory.php?sid=5770;
402. cf. Posting of MasterSareBabe, Daughter of Kenobi (July 24, 2005), http://www.fanfiction.net/s/2500645/1/ (introducing the daughter of Obi-Wan Kenobi).
403. See Posting of Pandora26, Cordé's Story, http://boards.theforce.net/The_Saga/b10476/19735339/ (May 16, 2005) (offering Star Wars fan fiction from the perspective of one of Senator Padme's body doubles; the doubles are frequently put in the line of danger to protect the life of the Senator).
404. The name comes from a famous series of stories by a female writer of Star Trek fan fiction more than twenty-five years ago (back then, the fan fiction was published in fan magazines known as "zines"). In those stories, an idealized Starfleet officer named Mary Sue steals the hearts of nearly all of the men on board-and takes over the stories as well. See Anupam Chander & Madhavi Sunder, Everyone's a Superhero: "Mary Sue" Fan Fiction as Fair Use, 95 CAL. L. REV. (forthcoming 2007).
405. Because Mary Sue becomes the star of fans' favorite programs, displacing the original heroes, Mary Sues are often criticized by fan fiction readers as "self-indulgent." But the fact that so many Mary Sues-or fan fiction writers-are women should make us question the claim of self-indulgence. Is it not, perhaps, mainstream media that is self-indulgent, repeatedly offering the same stories of white male characters as the heroes? (Wasn't Captain Kirk's interterrestrial philandering "self-indulgent?") Anupam Chander and I develop an analysis of the Mary Sue in another paper. See id.
406. Near the end of 2005, Disney announced that it would revise its most lucrative story, Winnie the Pooh, by replacing Christopher Robin with a six-year-old tomboy girl. See Marco R. della Cava, Disney Lets Girl into Winnie's World, USA TODAY, Dec. 7, 2005, at D1.
407. See Paul Goldstein, Derivative Rights and Derivative Works in Copyright, 30 J. COPYRIGHT SOC'Y USA 209 (1983);
408. Naomi Abe Voegtli, Rethinking Derivative Rights, 63 BROOK. L. REV. 1213 (1997).
409. Some of the underlying work of fan fiction is in the public domain. See, e.g., Nina Paley, Sita Sings the Blues, Apr. 21, 2005, http://www.sepiamutiny.com/sepia/archives/001393.html. Paley uses the blues and her beautiful animations to retell the ancient Hindu epic, the Ramayana, from the perspective of Rama's ill-treated wife, Sita. In Paley's version, Sita is the only character with a speaking part; the great Hindu god, Rama, is depicted as a muscle man of small brain. But Paley's Sita does not tread too far from the original inspiration; through the blues she pines for her man. But much that inspires fan fiction is protected by copyright. Under the Copyright Act of 1976, the copyright holder is vested with exclusive rights to not only reproduce and distribute the copyrighted work but also to create derivative works based on the original. Copyright Act, 17 U.S.C. § 106(1) (2006) (exclusive right to reproduce the work);
410. id. § 106(2) (exclusive right to prepare derivate works based upon the copyrighted work);
411. id. § 106(3) (exclusive right to distribute copies of the work). Fan fiction authors' act of reproducing characters from a copyrighted work and publishing the resulting derivative story may violate any or all of these rights under the Act.
412. See Rebecca Tushnet, Legal Fictions. Copyright, Fan Fiction, and a New Common Law, 17 LOY. L.A. ENT. L. REV. 651, 655-68 (1997).
413. Fan fiction authors have two potential affirmative defenses. First, they may assert implied consent of the copyright holder when the canon creator holds a public, positive attitude towards the fan fiction. J.K. Rowling, for example, says she is flattered by the extraordinary collection of Harry Potter fan fiction and, generally speaking, has allowed it without complaint. There are more than 200,000 entries of Harry Potter-inspired fan fiction available on the popular site, http://www.fanfiction.com. While these seem to be tacitly approved by the author, Rowling has expressed disapproval of possibly obscene or sexually explicit Harry Potter fan fiction available at slash sites, arguing that these stories may be harmful to young fans. See Darren Waters, Rowling Backs Potter Fan Fiction, BBC NEWS ONLINE, May 27, 2004, http://news.bbc.co.uk/1/hi/entertainment/arts/3753001.stm. Many authors and creators, such as Anne Rice, George Lucas, and Disney, object to the practice and have sought to stop it through cease-and-desist letters, and even lawsuits.
414. See, e.g., BOB LEVIN, THE PIRATES AND THE MOUSE: DISNEY'S WAR AGAINST THE COUNTERCULTURE (2003) (chronicling a lawsuit by Disney against the Air Pirates, a group of underground cartoonists who put out a comic book parody of Disney cartoons in 1971, in which Mickey Mouse Goofy, Bucky Bug and others get high, have sex and swear).
415. Because fan fiction is typically noncommercial, acknowledges the source of its characters, and is highly transformative, it may be absolved under copyright's fair use doctrine. Limiting use to canon characters further bolsters the fair use defense. But fair use is famously unpredictable and expensive to determine.
416. Not so with respect to his latest creation. DJ Danger Mouse's latest musical project, Gnarls Berkley, made musical history in April 2006 when its single, "Crazy," climbed to the top of British singles charts on digital downloads alone: in the week prior to the single's record store release, internet music sites recorded over 31,000 downloads of the song. One week after the single arrived in stores, the song had sold 121,000 physical copies and 147,000 downloads. See Crazy Song Makes Musical History, BBC NEWS ONLINE, Apr. 2, 2006, http://news.bbc.co.uk/1/hi/ entertainment/4870150.stm;
417. Neil McCormick, The Single Is Dead, Long Live the Single, DAILY TELEGRAPH (London), Apr. 13, 2006, at 34.
418. See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1269 (11th Cir. 2001) (characterizing Randall's work as an unauthorized parody that qualifies as fair use, despite the novel's "for-profit status").
419. See id. at 1276-77.
420. See Thompson, supra note 25, at 23.
421. See id. (describing machinima as a way "to comment directly on the pop culture" that game players "so devotedly consume").
422. See id. (characterizing the soldiers' dialogue as "existential").
423. "Red vs. Blue" has become lucrative for the filmmakers; well beyond a hobby, producing the series is now a full-time job. Thus far, Halo's copyright owner, the Microsoft subsidiary Bungie, has not sought any licensing fees, saying that it admires the "Red vs. Blue" series and is grateful for the attention-and new players-that the machinima has brought to the company. Bungie even hired the makers of "Red vs. Blue" to create advertisements for the game. See id. at 23-24;
424. cf. Frere-Jones, supra note 257, at 85-86 (describing growing number of authorized remixes).
425. World Intellectual Property Organization. Report of the WIPO General Assembly. 31st Sess., ¶ 218, WO/GA/31/15 (Oct. 5, 2005). The call is an about-face for an institution which, for the past half-century, has spread the gospel of utilitarian intellectual property law Since 1967, WIPO's mandate has been "to promote the protection of intellectual property"-it has done this through a philosophy many have criticized as "more is better." seeking upward harmonization of intellectual property rights around the globe.
426. See WIPO. Convention Establishing the World Intellectual Property Organization, July 14, 1967. 21 U.S.T. 1749, 828 U.N.T.S. 3.
427. See Geneva Declaration on the Future of the World Intellectual Property Organization, at 2, Sept. 29, 2004, available at http://www.cptech.org/ip/wipo/futureofwipodeclaration.pdf (seeking to broaden intellectual property to include concerns for "fairness, development and innovation");
428. see also World Intellectual Property Organization. Proposal by Argentina and Brazil for the Establishment of a Development Agenda for WIPO, WO/GA/31/11 (Aug. 27, 2004).
429. Draft Treaty on Access to Knowledge, pmbl., May 9, 2005, available at http://www.cptech.org/a2k/.
430. Id.
431. Id.
432. Id.
433. Id.
434. See id. art. 3-1 (presenting "General Limitations and Exceptions to Copyrights").
435. See id. art. 4-1 (offering limitations and exceptions to patent laws).
436. See id. art. 3-1(a)(ii).
437. See id. art. 3-1(a)(vi).
438. See id. arts. 3-1 (a)(vii), 3-3.
439. Id. art. 3-1(a)(iv).
440. Id. art. 3-12.
441. Id. art. 3-1(d).
442. Id. art. 4-1(b)(i).
443. Id. art. 4-1(c)(ii).
444. Id. art. 4-1(b)(iv).
445. See id. art. 3-6(i) (expressing concern that DRMs "may undermine traditional limitations and exceptions to exclusive rights").
446. See, e.g., RESEARCH FOUND. FOR SCI., TECH. & ECOLOGY, IMPACT OF WTO ON WOMEN IN AGRICULTURE (2005), available at http://ncw.nic.in/pdfreports/Impact of WTO Women in Agriculture.pdf (commissioned by the National Commission for Women, an Indian government agency);
447. see also PAUKTUUTIT INUIT WOMEN'S ASS'N, INUIT WOMEN'S TRADITIONAL KNOWLEDGE WORKSHOP ON THE AMAUTI AND INTELLECTUAL PROPERTY RIGHTS (2002), available at http://www.pauktuutit.ca/pdf/publications/pauktuutit/ Amauti_e.pdf;
448. INDIGENOUS WOMEN'S CONT'L NETWORK, PROTECTING INDIGENOUS WOMEN'S INTELLECTUAL PROPERTY: TOOLS FOR THOUGHT AND ACTION WITH REGARD TO PROTECTING THE TRADITIONAL DESIGNS AND PATTERNS OF INDIGENOUS WOMEN (2000), available at http://www.ichrdd.ca/english/commdoc/publications/ indigenous/introEnglish.html.
449. See FreeCulture.org, Free Culture Manifesto, http://www. freeculture.org/manifesto.php; FreeCulture.org, What Is Free Culture?, http://freeculture.org/wiki/index.php/What_is_free_culture%3F.
450. See McNeil, supra note 196 (quoting Loon Gangte, an AIDS activist in India: "I am using generic AIDS drugs because I can afford the price. Since the bill has passed, when I need new drugs, I won't be able to afford them. I could become one of the casualties.").
451. See generally SEN, Equality of What?, supra note 148 (highlighting limitations of the prevailing utilitarian and Rawlsian models of measuring inequality and proposing a new model founded on basic capabilities).
452. See NUSSBAUM, supra note 151, at 12 (describing her project as going beyond Sen's "to articulate an account of how capabilities, together with the idea of a threshold level of capabilities, can provide a basis for central constitutional principles that citizens have a right to demand from their governments").
453. See AMARTYA SEN, DEVELOPMENT AS FREEDOM 3 (1999) ("Development can be seen, it is argued here, as a process of expanding the real freedoms that people enjoy. Focusing on human freedoms contrasts with narrower views of development, such as identifying development with the growth of gross national product, or with the rise in personal incomes, or with industrialization, or with technological advance, or with social modernization.");
454. see also AMARTYA SEN, INEQUALITY REEXAMINED 37 (1992) (emphasizing "the gap between resources that help us to achieve freedom and the extent of freedom itself).
455. NUSSBAUM, supra note 151, at 5 (defining capability as "what people are actually able to do and to be" in a given society);
456. see also SEN, Equality of What?, supra note 148, at 367 (defining "basic capabilities" as "a person being able to do certain basic things").
457. Nussbaum's central capabilities include: the right to life, good health, and avoiding premature death; political, social, and cultural freedoms, such as the capability "to imagine, think, and reason"; the ability to receive "an adequate education including... basic... scientific training"; and the ability "to search for the ultimate meaning of life in one's own way."
458. NUSSBAUM, supra note 151, at 78-79. Finally, Nussbaum would have every individual be capable of holding property because it is necessary to have "[c]ontrol over [o]ne's [e]nvironment."
459. Id. at 80.
460. On playing with cultural icons, see Chander & Sunder, supra note 276.
461. Sen, supra note 30, at 39.
462. See id. ("The freedom and opportunity for cultural activities are among the basic freedoms the enhancement of which can be seen to be constitutive of development.").
463. See id. (recognizing economic value in cultural activity from music and art to tourism).
464. U.N. DEP'T OF ECON. & SOC. AFFAIRS, supra note 20, at xi (describing the principal assets of a Knowledge Society as "people... as creative beings and carriers of tacit knowledge" and "information... that triggers people's creative reflection").
465. Id. at xiv.
466. SEN, DEVELOPMENT AS FREEDOM, supra note 314, at 28. Advocates of traditional knowledge protection increasingly recognize the need to approach traditions critically.
467. Id. at 32.
468. During the last quarter century, in particular, property law has been reconceived from the static terms of absolute ownership to a "web of social relations," a complex and dynamic set of legal rights and responsibilities among various social actors. See Munzer, supra note 3, at 36-75 (outlining various arguments for a social relations theory of property).
469. See Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 IOWA L. REV. 1319, 1329 (1987) (arguing that from the beginning the constitutional understanding of property recognized the fair distribution of property as essential to democracy).
470. Cf. Clarisa Long, Dilution, 106 COLUM. L. REV. 1029 (2006) (finding that, contrary to current wisdom, trademark infringement claims based on the relatively new dilution theory are neither frequent nor robust).
471. SINGER, supra note 3, at xxv ("Property law is one of the ways we organize social life; it embodies some of the deepest and most cherished values we possess.").
472. Carol M. Rose, Property in All the Wrong Places?, 114 YALE L.J. 991, 1019 (2005) (book review).
473. For a thoughtful analysis of how intellectual property could reclaim balance and limits by adopting wholeheartedly the paradigm of property, see Michael A. Carrier. Cabining Intellectual Property Through a Property Paradigm, 54 DUKE L.J. 1 (2004).
474. SINGER, supra note 3, at xxv;
475. see also Munzer, supra note 3, at 41 (describing property as "a matter of constant pushing and shoving").
476. See, e.g., Munzer, supra note 3, at 13-16.
477. Id. at 3-4.
478. See Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979) (describing the right to exclude others as "one of the most essential sticks in the bundle of rights that are commonly characterized as property").
479. See SINGER, supra note 3, at xxv-xxvi ("Because others are entitled to limit what owners can do with their property, no property rights are absolute. Indeed, our property system confers, not absolute ownership, but shared ownership-with legal rights in a particular valued resource divided among several, or even many, people.").
480. Id. at 13 ("Both scholars and judges have adopted a variety of normative approaches to debating what the rules of property law are and should be.").
481. See MARGARET JANE RADIN, REINTERPRETING PROPERTY 15-16 (1993) (challenging the dominance of the economic theory of property rights).
482. See SINGER, supra note 3, at 13-19.
483. Id. at 12.
484. See Munzer, supra note 3, at 41 (writing that social relations theory recognizes that "[d]ifferences in power influence the relations among human beings and the property rights that result").
485. On property and power, see DUNCAN KENNEDY, SEXY DRESSING ETC. 103-04 (1993) (discussing how legal rules influence the relative bargaining power of men and women).
486. See SINGER, supra note 3, at 15.
487. See Munzer, supra note 3, at 49.
488. Radin, supra note 1, at 957.
489. Id. at 961.
490. Id. ("If there is a traditional understanding that a well-developed person must invest herself to some extent in external objects, there is no less a traditional understanding that one should not invest oneself in the wrong way or to too great an extent in external objects." (emphasis added)).
491. Radin advocated the use of community standards to judge which property relationships are healthy and normatively admirable, and which are not. Id. at 978-79.
492. Jennifer Nedelsky, Law, Boundaries and the Bounded Self, REPRESENTATIONS. Spring 1990, at 162, 168 ("The central question for inquiries into autonomy... [is] how to structure relationships so that they foster rather than undermine autonomy.").
493. See Yochai Benkler, There Is No Spoon, in THE STATE OF PLAY: LAW AND VIRTUAL WORLDS (Jack M. Balkin & Beth Simone Noveck eds., forthcoming 2006) (arguing that designing a communications architecture "requires that we define a range of social relations that we believe the platform will enable, and a normative belief about how those relations should go").
494. KANT, supra note 28, at 135.
495. Id. at 136.
496. Id. at 136-37.
497. See Sunder, Cultural Dissent, supra note 29, at 496.
498. See Sunder, Piercing the Veil, supra note 29, at 1404.
499. For the first time, the term "creator" was used to describe not only God, but the human artist. Paul Oskar Kristeller, " Creativity" and "Tradition," 44 J. HIST. IDEAS 105. 107 (1983). By the nineteenth century, conceptions of "originality" and "creativity" more fully embodied the Enlightenment's increasingly rationalized, bureaucratized, and individualized understanding of the self as fully developed outside of and against the confines of culture. Enlightenment sought "to free modern man (and woman) completely from all rules, restrictions, and tradition."
500. Id. at 107. To be sure, the pursuit of art and truth against tradition was more aspiration than fact. Much art supported and paid reverence to the establishment, including the religious establishment.
501. See id. at 113 (citing the Italian Renaissance as "evidence that creativity is not always stifled by tradition and must not always assert itself by denying the value of all tradition"). The advent of photography in the early twentieth century also contributed to an evolving "culture of novelty," or in Stephen Jay Gould's words, the "cult of novelty." Conversely, artistic movements from the sixteenth century followed a "developmental" model in which each new artistic "movement" drew upon and reacted to the movements that preceded it-from the Impressionism of Monet who represented the world as actually seen by the eye, with all of the eye's imperfections (depending upon light, shadows, etc.), to the Expressionism of Jackson Pollack, who didn't focus on literal representation, but rather on the internal world of feelings.
502. See Daniel J. Gifford, Innovation and Creativity in the Fine Arts: The Relevance and Irrelevance of Copyright, 18 CARDOZO ARTS & ENT. L.J. 569, 581 (2000). Photography freed artists in the twentieth century once and for all from established standards.
503. Id. at 585.
504. SABA MAHMOUD, POLITICS OF PIETY: ISLAMIC REVIVAL AND THE FEMINIST SUBJECT 15 (2005).
505. See DAVID SCOTT, CONSCRIPTS OF MODERNITY: THE TRAGEDY OF COLONIAL ENLIGHTENMENT 177 (2004).
506. See id. at 176;
507. DIPESH CHAKRABARTY, PROVINCIALIZING EUROPE: POSTCOLONIAL THOUGHT AND HISTORICAL DIFFERENCE (2000).
508. See MICHEL FOUCAULT, What Is an Author?, in LANGUAGE, COUNTER-MEMORY, PRACTICE: SELECTED ESSAYS AND INTERVIEWS 113 (Donald F. Bouchard ed., 1977). Foucault opined that while we ought to be suspicious of the alleged "sovereignty of the author,"
509. id. at 126, and the "problematic nature of the word 'work' and the unity it designates."
510. id. at 119, that "the subject should not be entirely abandoned,"
511. id. at 137. Rather, Foucault argued that authorship "should be reconsidered... to seize its functions, its intervention in discourse, and its system of dependencies."
512. Id. (emphasis added).
513. See Sunder, Piercing the Veil, supra note 29, at 1409;
514. Sunder, Cultural Dissent, supra note 29, at 508-09.
515. See generally WIRED, July 2005, available at http://www.wired.com/wired/archive/13.07 (providing several articles under the heading of "remix planet").
516. In March 2006, a conference honoring Boyle as the founder of the "cultural environmentalism" movement was held at Stanford Law School. See http://cyberlaw.stanford.edu/conferences/cultural.
517. LESSIG, supra note 126.
518. BENKLER, supra note 105, at 285
519. Balkin, supra note 126, at 39.
520. Fisher, supra note 8.
521. To be sure, the decision to critique intellectual property from within the utilitarian framework reflects a pragmatic need to confront rights maximalists on their own terms.
522. Many of the leading scholars do recognize more and more the need for broader perspectives in intellectual property law. In an important new book, Yochai Benkler argues that "[l]iberal political theory needs a theory of culture and agency." BENKLER, supra note 105, at 276 ("Culture is a social-pyschological-cognitive fact of human existence. Ignoring it, as rights-based and utilitarian versions of liberalism tend to do, disables political theory from commenting on central characteristics of a society and its institutional frameworks.");
523. see also Fisher & Syed, supra note 146;
524. Jack Balkin, Remarks at the Access to Knowledge Conference at Yale Law School (Apr. 2006) (transcript available at http://balkin.blogspot.com/2006/04/ what-is-access-to-knowledge.html) (arguing that A2K is "a big topic, and there is no one single rhetoric that captures all of it").
525. See, e.g., Fisher & Syed, supra note 146.
526. For an insightful critique of economic intellectual property's failure to understand creators as situated within particular cultural contexts, see Julie Cohen, Culture and Creativity in Copyright, 40 U.C. DAVIS L. REV. (forthcoming Feb. 2007).
527. My conception of autonomy overlaps with the continental concept of a moral right, or droit moral, but it remains distinct from this right. While the moral right emphasizes the creator's personal control over her work (affording a right of attribution and of integrity against the modification or mutilation of the work), autonomy in my cultural sense emphasizes the dynamic relationship between the individual and the community-the individual is inspired by the culture of the community, and in turn creates artifacts that take on meaning for others in the community. Cf. Adolf Dietz, The Moral Right of the Author Moral Rights and the Civil Law Countries, 19 COLUM.-VLA J.L. & ARTS 199 (1994-95) (describing the moral right as individualist).
528. Cf. Fisher, Theories of Intellectual Property, supra note 5, at 193 ("An attractive society is one rich in 'communities of memory.' Persons' capacity to construct rewarding lives will be enhanced if they have access to a variety of 'constitutive' groups-in 'real' space and in 'virtual' space.").
529. We may also call this a semiotic democracy, or the right "to participate in the process of making cultural meaning" in the world. Id.;
530. see also Balkin, supra note 126.
531. The license architects recognize that the "benefits of cultural heritage... are not shared equitably. Powerful groups often take and appropriate the cultural achievements of disadvantaged communities, without sharing rewards and recognition. Such abuses create incentives for secrecy, withdraw[al], and hiding information. Abuses inhibit cross-cultural communication and understanding and ultimately hurt everyone," Eric Kansa & Jason Schultz, Alexandria Archive Institute: Perspectives on Cultural Heritage and Intellectual Property 1 (Aug. 1, 2004), available at www. alexandriaarchive.org/AA1%20IP%20 Whitepaper.pdf [hereinafter Kansa & Schultz, Perspectives on Cultural Heritage].
532. For an academic analysis of the disparate effects of an open-access public domain on the poor, see generally Chander & Sunder, supra note 5.
533. See Eric C. Kansa et al., Protecting Traditional Knowledge and Expanding Access to Scientific Data: Juxtaposing Intellectual Property Agendas via a "Some Rights Reserved" Model, 12 INT'L J. CULTURAL PROP. 285, 289 (2005) [hereinafter Kansa et al., Protecting Traditional Knowledge] ("Inequitable sharing of these benefits creates disincentives for indigenous communities to grant researcher access and collaboration.").
534. Id. at 305.
535. Id. ("[A] 'some rights reserved' approach works better to encourage communication than the public domain, a context in where people feel (justifiably so) vulnerable to exploitation.").
536. Eric Kansa & Jason Schultz, 'Some Rights Reserved' and Traditional Knowledge: A Potential Strategy for Recognizing Indigenous Intellectual Property Rights (2004) [hereinafter Kansa & Schultz, 'Some Rights Reserved'] (summary of the AAI-sponsored workshop on "Cultural Heritage Licenses" on Nov. 19, 2004) (on file with author). I was one of almost two dozen participants at this workshop in San Francisco.
537. Meeting Agenda, Cultural Heritage License Working Group (Nov. 19, 2004) (prepared by Eric Kansa, Executive Director, Alexandria Archive Institute) (on file with author).
538. Kansa & Schultz, Perspectives on Cultural Heritage, supra note 373, at 1 ("Our cultural heritage should be more than the domain of a narrow elite of scholars, but a shared birthright enjoyed and used by all.").
539. Kansa & Schultz, 'Some Rights Reserved,' supra note 377 (internal quotations omitted).
540. I have been personally involved in the development of this license and am reflecting on these terms.
541. Sunder, supra note 5 (manuscript at 4-5, available at http://ssrn.com/abstract=890657).
542. See id.;
543. see also Anil Gupta, Intellectual Property, Traditional Knowledge and Genetic Resources Conserving Biodiversity and Rewarding Associated Knowledge and Innovation Systems: Honey Bee Perspective, WIPO/ECTK/SOF/01/3.8, May 2001, at 11 ("Not all the knowledge held by people in biodiversity rich economically poor regions and communities is (a) traditional, (b) carried forward in fossilized form from one generation to another but has been improvised by successive generations, (c) collective in nature, and (d) even if known to communities, is reproduced by everybody.").
544. See National Innnovation Found., Innovations, Incentives and Institutions: Honey Bee Network, http://www.nifindia.org/secondaward/ hbn_background.html.
545. See generally Gupta, supra note 383. Interestingly, the impetus for the Honey Bee Network and the Cultural Heritage License have been similar: both arose from the concerns of academics that they themselves unfairly benefited from local knowledge.
546. See id. at 5-6 (Gupta explaining his personal anxiety about failing to share the benefits of his research with the sources of that work).
547. See, e.g., ANIL K. GUPTA, WIPO-UNEP STUDY ON THE ROLE OF INTELLECTUAL PROPERTY RIGHTS IN THE SHARING OF BENEFITS ARISING FROM THE USE OF BIOLOGICAL RESOURCES AND ASSOCIATED TRADITIONAL KNOWLEDGE 13 (2004), available at http://www.wipo.org/tk/ea/publications/769e_unep_tk.pdf.
548. Id. at 35. Gupta writes of Honey Bee's founding in 1989.
549. Gupta, supra note 383, at 11. Honey Bee was spurred by the "belief in the correlation between science and local innovations."
550. GUPTA, supra note 385, at 28. "The scientific nature of much TK formed the basis and philosophy of grassroots innovators' own initiatives for benefit-sharing in their TK."
551. Id. Gupta continues, Researchers have often tried to portray TK systems as quite different and sometimes in opposition to so-called "modern" (i.e. western) knowledge systems. Nothing could be further from the truth. Many aspects of TK systems contain at least some of the elements that make a "modern" scientific proposition valid. At the same time, many scientific institutions use traditional cultural symbols and practices to generate an extra ounce of confidence or certainty.
552. Id.
553. The Honey Bee Network advocates this approach. See GUPTA, supra note 385, at 13 ("[T]he Honey Bee philosophy requires sharing by outsiders of any gain that may accrue to them from commercial or non-commercial dissemination of the raw or value added knowledge provided by the communities or individuals.").
554. Id. at 26.
555. Id.
556. Id. at 28 (bemoaning a "lack of incentives for creative people at the local level, and, most importantly in this context, inadequate intellectual property (IP) rights for local communities, informal innovators, etc.") (emphasis added). Gupta writes, "[I]t is possible that through flexibility, modification and mutual respect and trust, traditional knowledge experts can and may work with experts from modern scientific institutions to generate more effective solutions for contemporary problems."
557. Id. at 29. One particular problem is that knowledge held in poor communities is not passed down to current generations because the knowledge is not considered lucrative.
558. Id. at 26 ("Young people are not acquiring the skills of local experts because of a lack of incentives") (emphasis added).
559. Id. at 13.
560. Draft Treaty on Access to Knowledge, supra note 292, art. 4-1(b)(iv).
561. See Chander & Sunder, supra note 5, at 1340.
562. LESSIG, supra note 126, at xiv, 118 ("[I]f creative property owners were given the same rights as all other property owners, that would effect a radical, and radically undesirable, change in our tradition.");
563. see also James Boyle, A Manifesto on WIPO and the Future of Intellectual Property, 2004 DUKE L. & TECH. REV. 0009, 11 (2004): http://www.law.duke.edu/journals/dltr/articles/ 2004dltr0009.html ("The ideas proposed here are not radical. If anything they have a conservative strand-a return to the rational roots of intellectual property....");
564. LESSIG, supra note 126, at 118 ("We have always treated rights in creative property differently from the rights resident in all other property owners. They have never been the same. And they should never be the same....").
565. Lemley, supra note 4, at 1075 (concluding that intellectual property law does not "need an analogy at all [as we] have a well-developed body of intellectual property law, and a large and developing body of economic scholarship devoted specifically to intellectual property").
566. See, e.g., LESSIG, CODE, supra note 135, at 139 (expressing aspiration to "recreate the original space for liberty" that the Founding Fathers provided).
567. Vijayendra Rao & Michael Walton, Conclusion: Implications of a Cultural Lens for Public Policy and Development Thought, in CULTURE AND PUBLIC ACTION, supra note 30, at 359, 368.
568. As Amartya Sen writes, "one of the most important roles of culture lies in the possibility of learning from each other" while, at the same time, accounting for "the asymmetry of power in the contemporary world." Sen, supra note 30, at 38.