Takes Five Richard Posner

Impact of intellectual property law growing
Meg Jones
Milwaukee Journal Sentinel
March 29, 2005

Richard A. Posner has been a judge on the U.S. Court of Appeals for the 7th District in Chicago since 1981 and teaches part time at the University of Chicago Law School. He has written more than 30 books, mostly about how economics can be applied to legal subjects such as antitrust laws, public utility regulations and contracts. Posner founded the Journal of Legal Studies to encourage economic analysis of law. Posner, 66, a Yale and Harvard Law School graduate, spoke about copyright and patent law Monday afternoon at Marquette University Law School. Before his speech, he talked to Journal Sentinel reporter Meg Jones.

Q. You're visiting Marquette to talk about your concerns about copyright and patent law - what are your concerns about copyright and patent law?

A. The concern is that there has been such a rapid expansion in intellectual property rights that we have too-extensive protection of intellectual property, and it impedes new creation of intellectual property if you can't draw freely on previous creative works. So the more intellectual property protection we have, the more the public domain from which authors and artists draw shrinks, and it becomes difficult to create new work. That's true also in the patent area. If (there is a) huge thicket of patents out there, then a new inventor will find it difficult to build on existing inventions because they'll have to negotiate with all sorts of patents.

Q. I'm assuming when you were in law school in the early '60s, there were few courses on intellectual property. How have American laws changed as technology has rapidly evolved over the last few decades?

A. There's no question intellectual property has become a much more important field for a variety reasons. One is the rise of software, which is not only a valuable form of intellectual property, but it also enables very cheap copying. And that, of course, has created a lot of tension, especially with the popular music industry because they're worried that file-sharing software programs enable copyrighted music to be copied basically costlessly (and) instantaneously with no loss of quality. The other reason is just the rise of entertainment, the hugely profitable character of many forms in the entertainment field.

But also with science and technology, there's more rapid and extensive technology developments and more pressure to grant patents, but also to circumvent patents.

We've passed from an industrial economy to an information economy and information is the domain of intellectual property. It's a much more important field of law than it was years ago.

Q. Do you foresee legal battles over intellectual property rights from stem cell research?

A. Already there are intellectual property fights involving research tools which would be organic material used in scientific research. For example, Harvard has a patent on something called the OncoMouse. The OncoMouse is a mouse that's very susceptible to cancer. It's very useful to use in research. So since you can patent living things, sections of DNA and so on, sure stem cell research leads to, as they hope it will lead to, important medical therapies. Then, yes, there will be fights over the commercial use.

Q. You worked as a law clerk for Supreme Court Justice William Brennan. Do you think Justice Antonin Scalia should be the next chief justice to succeed William Rehnquist?

A. (Laughs.) I'm not permitted to speculate about such matters or make such recommendations.

Q. The slayings of Judge Joan Lefkow's family in Chicago have shocked many people, particularly after the killer committed suicide in West Allis and left a note explaining he wanted to kill her because she ruled against him in court. As a judge in Chicago's 7th Circuit Court of Appeals, are you worried that judges are becoming more of a target from people upset about their rulings?

A. There hasn't been a study to suggest increased frequency. Since the federal judiciary was created 216 years ago, there have only been three assassinations of federal judges. Now the incident involving Judge Lefkow's family, of course she wasn't assassinated, but you can treat this as four. So, four in 216 years. That's obviously very few.

Now it's true that these four are all since about 1960 or 1970, so they're concentrated, but even so there's been a substantial increase in the number of federal judges in that period. But in any event, a sample of four is too small to draw conclusions about a pattern of increased risk. There's been an even larger increase in federal litigation, and really the more litigation you have, the more unstable people (you have.) That seems to be the problem really you're going to have. So it may be that there's somewhat of an increased risk, but it's very small.

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Richard A. Posner