The Making of the Post-War Paradigm in American Intellectual Property Law

        I can't recall quite when Steven Wilf was kind enough to share with me an off print of his Winter 2008 article "The Making of the Post-War Paradigm in American Intellectual Property Law" 31 Columbia Journal of Law and the Arts 139-207 (2008), but I am delighted that he did.  First and foremost, the article tells the history of how doctrines within Trademark, Copyright, and Patent Law were transformed during the middle portions of the twentieth century in ways that fit not only with the changing technologies of the time but also the changing conceptions of political economy and citizenship that characterized the New Deal era.

         A brutally reductionist recounting would go something like this: 1) Changing notions of the value of consumer branding in stimulating demand for goods helped mid-century lawyers, led by the brlliant lawyer/scholar Frank Schecter, come to terms with a broader notion of trademark protection.  Such protection  included anti-dilution notions (not simply notions of deceit and palming off) and was designed to help successful economic actors make use of their trademark to establish successful business lines.  Ultimately Schecter's ideas led to the passage of the Lanham Act, and decisions made mid-century form the backdrop of contemporary approaches to trademark law.   2)  Fierce battles among competing interest groups forced mid-century lawyers to forge compromises between record companies, authors and composers who wanted broad copyright protection, on one hand, and radio stations, night clubs, bowling alleys etc. on the other hand, who wanted freedom to play music for an audience without having to pay excessive royalties.  Similar struggles over the extent of protection for industrial design pitted designers eager to use legal protection for new styles as an economic engine against low-cost manufacturers who sought freedom to compete in lucrative markets.  These struggles took place against a backdrop in which the United States was becoming increasingly aware of the value of intellectual property as a spur to its own worldwide economic growth.  Accordingly, after this transformational period, Congress came to understand the drafting of copyright statutes as a complex balancing among competing interests in the name of sound economic policy. Steven contrasts this with earlier notions from the 1909 act that relied more heavily on formalities and the desire to protect literary creators associated with the "romantic author" (see work of James Boyle). 3) Finally, New Deal lawyers had inherited from their Progressive predecessors a much more hostile view of patent law as a tool for monopolists.  Steven tells here of how the mid-century period was characterized by legal skepticism of patents and a general willingness on the part of courts to take a tough stance. Yet he also shows how patent protection survived the period and later pro-patent developments such as the founding of the Federal Circuit find their roots in New Deal reforms.

         Such a recounting would cover only a tiny fraction of what Steven actually accomplishes in the article.  First, the article title, explicitly (see * footnote) borrowed from Katherine Stone's article "The Post-War Paradigm in American Labor Law, asks us to consider the topic of intellectual property  through the lens of a more political history.  In Steven's capable hands the post-war intellectual property paradigm built to satisfy the demands of competing interests groups is something to be applauded. (see below)   For Stone, you may recall, the Post-War labor law paradigm was built by judges eager to reverse political gains made by union interests in New Deal statutes.  Her equally capable hands have us decrying the fate of progressive gains lost to the dictates of conservative judges.  There can be no doubt Steven wishes us to consider whether law carefully emerging from competing interest groups is best painted as the product of a  certain legal wisdom rather than as a sell-out to the more powerful.

    Second, Steven brilliantly ties intellectual property history to the deepest issues that plague all of property law. These are particularly important today.  Put simply, market economies have two reasons to dread the improper setting of property rules.  Property protection can become too great giving property holders too much power.  Those who lack property will be forced to cater to the propertied in ways that will make them long for the Hobbesian state of nature in terms of being nasty, brutish and short.  In economic terms this is best described simply.  Too much property protection means prices will become too high.    In contrast, if property is insufficiently protected then it will become very easy to compete.  It will become harder and harder for producers to gain an edge sufficient to earn a profit.  In short, too little property protection means prices will fall too low.  With constant references to Keynes, Steven highlights the danger of low prices as central in the minds of New Dealers.  So lawyers in that era sought to build an IP regime that would be responsive to both the needs of inventors and authors (protect us or we'll stop producing) and the needs of competitors (give us free reign to keep the market humming).  What Steven's historical approach highlights is the way that culture and a notion of citizenship can be helpful in determining where to set the proper property balance.  He seems despairing of any alternative approach.

    Finally, this reliance on history (and it's no coincidence that Steven lauds Frank Schecter who tackled his own era's thorny IP problems by writing a history of trademark law) provides for Steven a stark contrast with the many approaches to IP law we have witnessed in the talks on the subject here at the school over the past ten years.  Having identified the core dilemma (too much protection leads to monopoly, high prices, clogged market, etc; too little protection robs producers of incentives etc.) many contemporary scholars seek solutions (where's the goldilocks line of "just right") in some sort of efficiency calculus or some sort of derivation of the right amount of protection from the nature of the technology.  This resembles the way naive land use lawyers sometimes hoped they could determine just the right real property rules by looking to the facts on the ground.  WIthout saying so directly, although the final section gives us hints, Steven's article is skeptical of the idea that we could ever determine the right level of IP protection based either on some efficiency calculus or some matching of IP rules to communications technologies.  Instead, and this is why his account of the New Deal era is ultimately so laudatory, Steven presents the question of IP protection as one best handled by asking deeper questions about the kind of society we wish to build.  What he likes about the New Deal lawyers isn't necessarily that they reached the best results, but that they had a very clear understanding of what they were fighting about and the stakes at hand.  Ultimately, Steven's turn to history here is to encourage us to tackle the same questions for the twenty-first century.  It's hard to imagine a better use for scholarly resources than this.  Congratulations Steven, and Happy New Year to all.   JP