Ronald Mann, Columbia Law professor and contributor to SCOTUSBlog, recently addressed the rising proportion of intellectual property cases on the Supreme Court’s docket. After evaluating the statistics, Mann proposes two possibilities for the long-term trend he identifies toward a more central role for intellectual property disputes on the Court’s docket.
The first possibility refers to the emergence of a “new-economy” covered in a recent New York Times feature entitled “The iEconomy”— a series of articles “[examining] challenges posed by increasingly globalized high-tech industries.” The emergence of new economic sectors and the ensuing high-stakes litigation may also explain the rising emphasis on intellectual property, as one article suggests. As global barriers to exchange and communication fall, the importance and centrality of the technologies that advance such connections will increase. As value is defined more by content and ownership and less by scarcity and possession, the Court’s docket and newspaper headlines alike will reflect that shift.
Mann’s secondary alternative highlights what may be a contentious relationship between the Supreme Court and the Federal Circuit. Though ultimately belied by the numbers, there is an argument that the Supreme Court has found it necessary to review more Federal Circuit cases in order to maintain its hierarchical primacy. The same claim may be more plausible with respect to the Ninth Circuit, another preeminent jurisdiction for intellectual property.
Despite the appealing simplicity of this explanation, Mann’s first argument makes the most intuitive sense. Building on his focus on a new economy, I seek to establish the possibility that broader, non-legal trends have increased the centrality of intellectual property in our society and its reflection on the Supreme Court docket. Within the global economy, it is indisputable that vast new areas of innovation and development have emerged over the last three decades. The technologies we rely on have introduced new modes of interaction, new cultural practices, and new markets. As one example, an article from early 2011 estimated the market for mobile apps to be over seven billion dollars, shared by a few major platform owners and tens of thousands of varied, dynamic content creators.
The historical divide between content owners and consumers, supported by a legacy of special interests, has blurred through the ever-increasing ability of individuals to find content and make their own creations accessible. Crowd-funding initiatives have empowered individual entrepreneurs, just as the potential for additive manufacturing realized through inexpensive and accessible 3D printers is becoming clearer. Regardless, the strong political position maintained by entrenched industries with the most at stake has always been in tension with emerging technologies that empower consumers in new ways.
Politically and economically, the national focus on job creation, advanced manufacturing and outsourcing has reflected a similar international dichotomy between inventors and manufacturers. The dominance of China’s manufacturing and production capacity has led to a loss of American jobs which may best be offset by expanding the lead in technology, innovation, and design—in other words, intellectual property. With respect to international cooperation, initiatives like ACTA in Europe aim to more stringently enforce IP laws across the world.
Domestically, opposition to the Stop Online Piracy Act (SOPA) considered by Congress this past January faced a grassroots internet backlash that pushed the bill out of consideration in an apparent victory for the public. International tech giants with the most at stake were able to outmatch the effort of industry groups by facilitating that movement.
Of course, there is the inescapable fact that, in all likelihood, a majority of Americans are IP infringers in the course of their daily lives. Everything from content sharing in journalism or social networking to consumer spending risks labeling us all pirates, technically if not morally. Accepting that many of us may be infringers, new enforcement measures like the Copyright Alert System will soon make that fact much clearer for the average American. Despite this reality, one hopes that new ownership and distribution models may eventually emerge, protecting the potential of expansive new technologies while retaining the constitutional incentive for authors and inventors.
Ultimately, the rising visibility of intellectual property cases on the Court’s docket is likely to be as Mann concludes: an indication of the Justices’ belief in its importance exacerbated by a declining overall caseload. I consider the ideas above to be in support of that assertion, although I also propose another more imaginative alternative. As the base technological competency of society rises, judicial engagement with the underlying technologies will increase in depth and frequency, perhaps leading to demand for a more unified approach and even spurring legislative involvement. While new legislation may provide clarity to emerging areas of law, it isn’t likely to greatly reduce the volume of litigation. Where facts and a balancing of equities may decide early and exceptional cases, the growing mass of decisions (and novel circumstances) will inevitably produce inconsistency at the appellate level. How the Supreme Court will rise to that occasion remains to be seen; what is certain is that they will have plenty of opportunities.