My copyright professor once said that when you study copyright law, you naturally become a cynic. My patent professors have both stated in class that they are legal realists, and their International IP class focuses heavily on the realpolitik and the dubious sausage-making of various IP treaties. It got me thinking: is there something intrinsic about IP law that leads toward realism and cynicism?
My public interest friends have very lofty, idealistic goals. They want to be public defenders and help the poor, or fight for the rights of *insert group here*, or fight against corruption in politics. All noble and valid purposes, I make no light of their career paths. But if there’s a single trait they all share, it’s that there’s some moral or ethical underpinning that trumps all other motivations. While I applaud their efforts, I find it hard to discuss policy with them because every debate tends to devolve into “helping people is awesome, man.” When your sole motivation is helping a certain group, it can be hard to look at the greater ramifications of a decision or action.
My friends who want to do corporate law aren’t much better. They want to create mergers between major companies, or lobby in Congress, or draft multimillion dollar secured transactions. Again, all lofty goals and I appreciate everything these lawyers do for our businesses, but I tend to find their single trait to be a fascination with the process of being a corporate lawyer. It’s as if there’s this cursus honorum that all corporate lawyers must take: work 90 hours a week in a big NY firm, jump ship after 5-6 years to an in-house counsel position, and climb the corporate ladder until you can tell young attorneys how this circle starts again. And maybe it’s true, I’m not familiar with big corporate law. Even if it is true, it’s almost autistic the way that my corporate law friends approach their careers: this is the way that we do things, this is the way things happen, and this is how our system runs. Debating policy with them tends to devolve into “but that’s how it’s done.” I appreciate a predetermined process, but I’ve seen enough lawyers to know that the law market is vast and that legal careers take many forms other than “the process.”
So what about IP law? The presumption is that I’m going to write a paragraph telling you why IP lawyers are somehow superior because we don’t fall into blah blah blah no. We are just as guilty as the rest of the lawyers. But there are a few things that explain why IP law and those who study it have certain views on the law.
IP law is not founded on moral or ethical grounds; it is purely economical. Patents are not granted because we like inventors, but because we like inventions. Copyright is not a protection of the author but a bargain that trades a temporary monopoly for future use by the public. Because of this amoral attitude, those who write IP laws (and those who lobby for them) are very frank about why they want these laws: money. It’s no secret that the purpose of IP law in general is to give creators monopoly prices now in exchange for giving something useful to the public, and admitting that motivation honestly makes everything so much easier. We’re honest about our motivations, which makes the process of creating IP laws more clear. This motivation encourages us to cut through the things we see as bullshit, like morals or processes, and makes us feel grounded because we know “how stuff really works.” It forces us into a cynical, realistic attitude because IP law is founded on cynical, realistic principles. When Disney is blunt about why it wants to extend copyright laws (Steamboat Willy is about to become public domain and they don’t want Mickey Mouse out of their control), you can’t help but be a little cynical.
Public interest and corporate law could use a dose of cynicism every now and then; keeping one foot on the ground and recognizing the true motivations of actors can be a useful skill to ground a lawyer’s actions in reality. Conversely, I often worry that IP lawyers may be too cynical for their own good. Within IP law, it makes sense, but what I find is that such an attitude can bleed into other parts of life where cynicism and economics are not the sole motivators. Sometimes there is a cursus honorum to navigate, and sometimes the bullshit exists for very good reasons. I think that since many IP lawyers have science or engineering backgrounds, the tendency to be cynical about legal theories that seem too theoretical is very tempting.
I don’t have any major insights; most of what I’ve seen is fairly obvious. But I’m always intrigued by how and why people act, and finding trends in personalities among subsections of a profession is an interesting exercise I like to do. So yeah, those of us who study IP tend to be cynical. The motivation behind our laws and the personality traits of those who practice it tend to lean in a legal realism/legal cynical manner. The obvious next step would be to see if European IP scholars, where moral rights and other ethical considerations are given much more consideration, have different personalities, and if so, how they are different.