Surden on Technological Cost & IP Governance
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Harry Surden (University of Colorado Law School) has postedTechnological Cost as Law in Intellectual Property (Harvard Journal of Law and Technology, Vol. 27, No. 1, 2013) on SSRN. Here is the abstract:
Changes in the scope of IP legal rights are generally thought to be linked to changes in positive law. This Article argues that shifts in the scope of IP laws are often driven by changes in technological feasibility and not by changes in positive law. Diminishing technological constraint is an under-acknowledged factor driving changes in IP law
This Article proposes the term “Technological Cost” to capture how activities important to IP governance can be implicitly constrained by limitations inherent to technological processes of the past. Technological limitations of the past often have a practical constraining effect on IP-relevant activities, such as copying in copyright law or manufacturing goods in patent law. Positive IP laws may be structured upon the premise that such activities will remain implicitly constrained and Technologically Costly. However, as new technologies emerge, such implicit constraints often dissipate, and activities can become dramatically more expansive in capacity and can acquire entirely new and expansive properties that were previously infeasible. As this occurs, IP laws that are linked to these activities can subtly but meaningfully shift in scope. Such technologically induced shifts in legal scope may be hard to observe because positive law often remains unchanged. This Article offers a framework for reifying relationships of implicit constraint by technological limitations of the past, and how decrease in implicit technological constraint can subtly impact substantive IP law.
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