Author: Zahr Said

A Response to Madhavi Sunder’s From Goods to a Good Life

A Response to Madhavi Sunder’s From Goods to a Good Life

Madhavi Sunder’s new book, From Goods to a Good Life, offers an interdisciplinary reframing of intellectual property law oriented around the normative view that IP law can be a powerful source for increasing human flourishing. Her title suggests a movement away from a view of IP as an area of law focused on trade in goods, and toward a view of IP as a tool for increasing global social justice for all. Sunder’s project, in other words, seeks to reorient IP, in a way I would characterize as moving from things to people. As part of that return to the drawing board, Sunder both recognizes the extent to which law and economics has directed much of the scholarship and policy produced in this area and she advocates for a weakening of its hold. If a word cloud for the prevailing conception of IP included efficiency, utility, and output by the few for consumption by the many, a word cloud for Sunder’s normative vision would instead feature justice, human flourishing, and participation by the many for the many. The defining feature of Sunder’s conceptualization of IP may be its breadth. For example, her view is not limited to remix culture or the often irreverent creative practices of those born-digital; she sees IP as having the capacity to influence humankind much more broadly, from health and education to cultural freedom and a host of human capabilities whose articulation draws on the work of Amartya Sen, Martha Nussbaum, and Peggy Radin. In her words: “[I]ntellectual property laws bear considerably on the ability of humankind to flourish, affecting everything from the developing world’s access to food, textbooks, and essential medicines, to the ability of citizens everywhere to democratically participate in political and cultural discourse, to the equal opportunity to earn a livelihood from one’s intellectual contributions toward making a better world” (22). As a normative matter, then, Sunder situates IP law squarely at the center of “a free and democratic society.” Consequently, there is a sense of urgency in the book’s assessment of the current law and its many imperfections. Perhaps most central to Sunder’s vision is her criticism of current IP policy’s failure to prioritize distributive justice, which leads it instead to the mechanistic and reductive view of incentives creation as the stated rationale most crucial to IP. I am entirely in sympathy with Sunder’s assessment of the need to incorporate, together with the economic metanarrative of IP, competing metanarratives whose broader and different implications ought to allow us to prioritize values other than those outlined by the law-and-economics agenda. I share Sunder’s vision of the importance of facilitating cultural participation and equalizing gross trade imbalances, such as those that defined an illustrative and, in many ways, very disturbing dispute between Starbucks and Ethiopian coffee farmers (pp. 40-43). Finally, I celebrate Sunder’s interdisciplinary approach to the set of complex legal, economic, and cultural problems she describes. To the extent that, in the conversation that emerges over the next couple of days during this...