Prof. Michael Risch on “Paths or Fences”

Professor Michael Risch, of Villanova (congrats Wildcats, BTW!), has a review of “Paths or Fences: Patents, Copyrights, and the Constitution” up at Written Description. “Well-reasoned” is about the nicest thing one can possibly say about an article, and the rest of the review is similarly generous, thoughtful, and thought-provoking. Prof. Risch is also a frequent Twitter commentator on IP, at @ProfRisch.

Prof. Risch pushes back on two points that deserve a bit of elaboration. First, he is absolutely correct that not all fences constrain equally: there are brick fences, hurricane fences, cheap plastic garden fences, amazing border fences, and so forth. I suspect that there is a second-order dialogue going on here, both with the other co-equal branches and the public. For example, in Golan v. Holder, the court’s majority opinion could readily be shortened to four words: “Re-read Eldred v. Ashcroft.” The point, I suspect, was that litigants ought not to try to identify new “traditional contours of Congress” that the legislature might have altered, since there are only two: fair use, and the idea-expression dichotomy. The similar point to Congress was the inverse, though – leave sections 102(b) and 107 alone, and everything else gets rational review (= passes constitutional muster). [Added 10 Apr 2018, 8:55PM: It might help the paper to address when fences ought to be more iron-like versus Teflon-like, though I’m a bit scared of winding up in the “rules versus standards” literature, where far better minds than my own have foundered.]

The second point, which I need to play up, is that I suspect a paths or fences system would look quite different for a commentator committed to a natural rights / Hegelian / Kantian / personhood theory of property. There might well be places where the Court should be stringent in setting boundaries for the legislative under those rationales, but I think they would be differently located and divergently reasoned. Both of my core goals – information disclosure (patent) and generativity (copyright) – are pretty instrumental in nature. So, I have to make sure the paper’s claims are appropriately qualified based on the philosophical rationale one sees as most powerful for intellectual property.

Thanks again to Professor Risch!