Technological Cost as Law in Intellectual Property

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 substantive IP law. More specifically, there are certain activities that are core to IP law. Such activities include, for example, the copying of creative works in copyright (e.g. duplicating books or music), or the manufacturing of products in patent law. Traditionally, IP legal theory has not directly accounted for how these activities can become easier (or harder) to do, over time, with technological change. This Article proposes the term “Technological Cost” to capture how activities central to IP legal governance can expand in capacity over time as technology changes. This is important to consider because core IP activities are often implicitly constrained by limitations inherent to technological processes of the past. Positive IP laws, in turn, may be built upon the unstated assumption that such activities are (and will remain) implicitly constrained. However, the Technological Cost of such core IP activities often decreases over time with technological change. For example, the copying of creative works was initially Technologically Costly, and assumptions about Technological Cost were implicitly built into the structure of the Copyright laws and doctrines. Similarly, the Technological Cost of research in certain inventive areas – such as gene sequencing research - was initially Technologically Costly, and assumptions about such high Technological Cost were implicitly built into the substance and structure of patent doctrines or laws governing these areas. Importantly as new technologies emerge Technological Cost decreases, and the implicit technological constraints that effectively constrained activities in the previous era dissipate. Thus, previously limited activities can become dramatically more expansive in capacity and can acquire entirely new properties that were previously infeasible. As this occurs, IP laws that were based upon earlier assumptions of inherent constraint and that are linked to these activities can subtly but meaningfully shift in legal scope. Thus, both doctrines in copyright law and patent law have effectively shifted in legal scope over time as the Technological Cost of central activities such as copying creative works or manufacturing goods decreased. 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