Intellectual Property Law | Legal History
Political mobilization in the digital age often coalesces around opposition to the far-reaching protection of intellectual property. Both copyright and patent have materialized as the centerpiece of major political and legal debates that take a variety of forms, including the European pirate parties, NGOs such as the Electronic Frontier Foundation in the United States, and the call for Open Source software. The commonplace narrative is that self-interested stakeholders over the past century successfully fashioned an ever-expanding intellectual property system, and that resistance to such legal control of knowledge only emerged in our times. By contrast, this article recovers a little-known alternative story of patent law under siege. It focuses on the first United States intellectual property social movement, a late nineteenth-century attack by Prairie heartland populists on the patent system. In the course of this remarkable movement, protesters proposed a version of patent law centered around users rather than owners, invented an early form of a legal defense fund, convinced state governments to adopt patent infringement as public policy, and, ultimately, joined forces with political opponents to make court decisions less solicitous of patent rights. This article shows how a technical area of law was turned into politics in the nineteenth century. Yet it also provides a lesson for any future intellectual property movements. Through populist contestation at the grassroots level, patent was transformed from settled grants of rights to a fraught, even unstable, area of law.
Wilf, Steven, "How Patents Became Politics" (2023). Faculty Articles and Papers. 632.