A century ago, scarcity had to be endured; today, it has to be enforced.
2.1 Introduction
This chapter considers the potential social role of intellectual property law in a post-scarcity society. My focus will not be on the role of intellectual property law in promoting technological change (a role that is probably already familiar to many readers). Instead, I will consider how, even in a purported post-scarcity society, intellectual property law will likely work to preserve forms of social and cultural differentiation that are based on artificial scarcity, most notable among these the various signs of social distinction produced by the apparel fashion industry. My focus, in other words, will be on the role of intellectual property law in promoting not technological change but social stasis.
I will first discuss some leading examples of economic and social commentary on post-scarcity society and then some recent leading examples of legal commentary on post-scarcity society. I will then turn to the potential social role of intellectual property law in such a society.
2.2 The Dream of Post-scarcity Society
Economic, political and social commentators have spoken of post-scarcity society since at least the 1960s, as Google NGRAM data suggest (see Figure 2.1). It would appear from the data that hopes of post-scarcity society fell off considerably in the late 1970s with the global energy crisis, but the meme is gradually regaining momentum, not just in legal commentary but across the social sciences and in the popular press.Footnote 2
Google Ngram view of ‘Post-scarcity’, 1900–2010.
Figure 2.1 Long description
The horizontal axis represents a period from 1900 through 2000. The vertical axis represents the range of percentage from 0.000000000 through 0.000000180. The graph plots a fluctuating line which originates at (1963, 0.000000000), peaks at (1975, 0.000000152), drops at (1982, 0.000000018), fluctuates and terminates at (2010, 0.000000040). The values are estimated. The termination point is labeled post scarcity.
But it would be incorrect to focus only on the specific term ‘post-scarcity society’, because the dream of such a society has been with us for much longer than the term and arguably stretches back to the earliest religions. An important secular expression of the dream, though no less faith-based, comes to us from the depths of the Great Depression, when, in 1930, John Maynard Keynes penned the essay Economic Possibilities for Our Grandchildren.Footnote 3 There he explained that his purpose was ‘not to examine the present or the near future, but to disembarrass myself of short views and take wings into the future. What can we reasonably expect the level of our economic life to be a hundred years hence? What are the economic possibilities for our grandchildren?’Footnote 4 Keynes described the Great Depression and the ‘enormous anomaly of unemployment in a world full of wants’Footnote 5 as ‘a temporary phase of maladjustment’Footnote 6 – and in the long run, this turned out to be fairly accurate. His diagnosis of the times, quite prescient in some respects, was that ‘we are being afflicted with a new disease of which some readers may not yet have heard the name, but of which they will hear a great deal in the years to come – namely, technological unemployment’.Footnote 7 But this development ‘means in the long run that mankind is solving its economic problem. I would predict that the standard of life in progressive countries one hundred years hence will be between four and eight times as high as it is today’.Footnote 8 More generally, he wrote: ‘The course of affairs will simply be that there will be ever larger and larger classes and groups of people for whom problems of economic necessity have been practically removed.’Footnote 9 This would be ‘our destination of economic bliss’.Footnote 10
And yet Keynes recognised that this new stage of economic development would create new challenges. One of these I will detail more fully below. But in general, Keynes predicted that those who have solved the problem of economic necessity will face the ultimate, ethical question of how properly to pursue the art of living: ‘Thus for the first time since his creation man will be faced with his real, his permanent problem – how to use his freedom from pressing economic cares, how to occupy the leisure, which science and compound interest will have won for him, to live wisely and agreeably and well.’Footnote 11
Four decades after Keynes’ Economic Possibilities essay, a decidedly different political-economic thinker took up the theme of post-scarcity society. The American anarchist theorist Murray Bookchin declared in stirring terms that ‘for the first time in history we stand on the threshold of a post-scarcity society’.Footnote 12 For Bookchin, this was not a matter of Keynes’ ‘hundred years hence’. Bookchin saw even in what may now strike us as the primitive technologies of the 1960s ‘a technology of abundance that is capable of providing for the first time in history the material basis for liberation’.Footnote 13 But Bookchin emphasised that even though technological developments had already established the material preconditions for post-scarcity, a true ‘post-scarcity society’ had not yet been achieved.Footnote 14 With Keynes, he recognised that the condition of post-scarcity was fundamentally not an economic but an ethical, even aesthetic, condition: ‘Scarcity is more than a condition of scarce resources: the word, if it is to mean anything in human terms, must encompass the social relations and cultural apparatus that foster insecurity in the psyche.’Footnote 15 For Bookchin the post-Marxist anarchist, this insecurity was a function of the ‘exploitative class structure’Footnote 16 and the hierarchical property and power relations entailed by such a structure. Only when these were eliminated would post-scarcity society be achieved: ‘the word ‘post-scarcity’ means fundamentally more than a mere abundance of the means of life: it decidedly includes the kind of life these means support. The human relationships and psyche of the individual in a post-scarcity society must fully reflect the freedom, security and self-expression that this abundance makes possible.’Footnote 17
2.3 Legal Commentary on Post-scarcity Society
Keynes spoke in 1930 of ‘a hundred years hence’, which is 2030 and is not far off. Are we on schedule to have solved our ‘economic problem’ by then? Recent legal commentators seem to think so. Indeed, with Bookchin, some believe that we have already established the technological preconditions for post-scarcity.
I focus here on two leading examples of post-scarcity legal commentary, both part of the recent wave of legal writing on the development of 3D printing technology. The first is Mark Lemley’s article ‘IP in a World Without Scarcity’.Footnote 18 In it, he predicts a ‘coming economy of plenty’,Footnote 19 an ‘economics of abundance’Footnote 20 and the emergence of inexpensive, local 3D printing and bioprinting ‘not next year, but certainly in our lifetimes’.Footnote 21 Lemley focuses on four technologies, ‘the Internet, 3D printing, robotics, and synthetic biology,Footnote 22 and proposes that ‘it is entirely plausible to envision a not-too-distant world in which most things that people want can be downloaded and created on site for very little money – essentially the cost of raw materials’.Footnote 23 Such things would include not just standard industrial goods but also biotechnological goods: ‘It is certainly possible to imagine a time in which every doctor’s office can generate custom genes to order.’Footnote 24 Lemley is quick to emphasise that ‘this future is not a utopia. None of the technologies I have described is perfect, and each requires physical inputs that will in turn be subject to the laws of scarcity’.Footnote 25 But a rhetoric of technological optimism, even boosterism, runs through his article, as does a strain of what might be termed ‘threshold rhetoric’, consisting of urgent affirmations, as we saw in Bookchin, that we stand just on the threshold of a new technological age.Footnote 26 Such rhetoric is typical of legal futurist writing.Footnote 27
A second leading example of post-scarcity legal commentary is Deven Desai and Gerard Magliocca’s article ‘Patent Meet Napster: 3D Printing and the Digitization of Things’.Footnote 28 They assert that ‘advances in 3D printing technology are launching an Industrial Counter-Revolution … . The promise of 3D printing is that people will be free to make almost anything they want themselves’.Footnote 29 Like Lemley, Desai and Maglioca draw heavily on analogies to internet technology and digital reproduction in describing the implications of 3D printing. They explain: ‘3D printing is a general-purpose technology that will do for physical objects what MP3 files did for music.’Footnote 30 And like Lemley, they are given to threshold rhetoric: ‘In the not-too-distant future, your cell phone will be able to scan objects and produce 3D printer files.’Footnote 31
There are many such articles now in the American law reviews and elsewhere.Footnote 32 And there are a few extra-legal sources that they often cite. One is Jeremy Rifkin’s 2014 book The Zero Marginal Cost Society,Footnote 33 whose title speaks for itself. Another is Ray Kurzweil’s 2006 book The Singularity Is Near.Footnote 34 Kurzweil predicts that the ‘singularity’ will arrive in the 2040s.Footnote 35 What is this ‘singularity’? As Kurzweil explains, it is the time ‘when we will multiply our effective intelligence a billion fold by merging with the intelligence we have created’.Footnote 36
I should admit that I myself have previously addressed the possibility of post-scarcity society and engaged in the same threshold rhetoric. In a 2010 article, I queried whether a ‘universal printer’ was ‘not simply imaginable, but an increasingly realistic possibility’.Footnote 37 I further speculated that ‘in such an economy of universal printers, printing out a rhetoric of expressions and of things, all goods would be essentially intellectual goods (that is, embodiments of intangible designs) and all property, excluding space and the self, would be essentially intellectual property.Footnote 38 And I wondered what role, if any, intellectual property law and policy would play in such a world. In a moment, I will wonder some more about that question.
But before doing so, allow me briefly to register some degree of scepticism about the recent wave of legal writing, including my own, on 3D printing and similar emerging technologies. The Gartner Hype Cycle, albeit unscientific and perhaps a bit hyped itself in its language, is a helpful heuristic for thinking about how expectations regarding new technologies tend to progress over timeFootnote 39 (see Figure 2.2). The Hype Cycle suggests that soon after a new technology is introduced, there follows a ‘Peak of Inflated Expectations’ characterised by widespread media attention to the perceived enormous potential of the technology. The bubble then typically bursts as expectations for the technology descend into the ‘Trough of Disillusionment’ in which ‘interest wanes as experiments and implementations fail to deliver’ and ‘producers of the technology shake out or fail’.Footnote 40 Current legal writing on 3D printing and other technologies that herald post-scarcity arguably reflects the ‘Peak of Inflated Expectations’ phase of legal thinking on such technology, even as media accounts have already entered the phase of disillusionment.Footnote 41 No doubt as these technologies mature, expectations will gradually recover along the Hype Cycle’s ‘Slope of Enlightenment’ until they someday level off at the ‘Plateau of Productivity’.Footnote 42 Nevertheless, the widespread adoption of such technologies – widespread to the degree to constitute a qualitatively new era, a true ‘Industrial Counter-Revolution’ – now appears to be a far-off prospect.
The Gartner Hype Cycle.Footnote 43
Figure 2.2 Long description
The curve initiates with an innovation trigger, peaks for inflated expectations, followed by a decline in expectations labeled trough of disillusionment, the curve labeled slope of enlightenment increases again, followed by a plateau of productivity.
And yet, it may be worthwhile to be sceptical of one’s own scepticism. When assessed retrospectively, most predictions of the future turn out to be laughably wrong. But they are laughable both for what they say will happen that did not – and what they say cannot possibly happen that did. This is all to say that I am not embarrassed finally to ask, if Keynes, Bookchin, Lemley, Desai, Rifkin and Kurzweil (and countless others) are correct (and who am I to question them?), if we are in fact on the verge of a post-scarcity society, what would its implications be for law and specifically for intellectual property law?
2.4 The Role of Intellectual Property Law in Post-scarcity Society
The current conventional method of answering this question focuses on the economy and on technology. Specifically, scholars focus on how, in a post-scarcity society, intellectual property law may foster or impair further economic and technological progress. I will eventually suggest in this section that the more interesting – and also more difficult – question is what social role intellectual property law would play in a post-scarcity society.
2.4.1 Conventional Views: Intellectual Property Law as Spoiler
Lemley provides a good example of the scholarship’s standard focus on economic and technological progress. With many others, he predicts that current major intellectual property owners will, as he puts it, ‘fight the death of scarcity’.Footnote 44 Old incumbents will fight the new market disrupters that threaten to institute post-scarcity because these old incumbents profit from scarcity; more essentially and importantly, a regime of scarcity is a regime in which these incumbents have power, and they will seek to hold on to that power by maintaining the conditions of scarcity on which their power is based.Footnote 45 These incumbents will try to use restrictive forms of IP law to do so. Specifically, they will seek to strengthen intellectual property laws to inhibit 3D and bio-printing technology.Footnote 46 They will seek to impose severe forms of secondary liability on the producers of such technology and severe forms of primary liability on those who use this technology to infringe protected designs.Footnote 47
To ward off this possibility, Desai and Magliocca call for statutory reforms that would limit (or even eliminate) personal liability for 3D printingFootnote 48 – though, to be fair, they recognise significant difficulties with such a reform.Footnote 49 They also call for a DMCA for patent infringement.Footnote 50 Here they are referring to the Digital Millennium Copyright Act of 1998Footnote 51 in the United States – and specifically to section 512(c)(1) of the Act.Footnote 52 In short, they are calling for a notice-and-takedown system that would limit the liability of digital intermediaries that serve as repositories of patent-infringing 3D printing files. Their proposal is that such intermediaries would not be liable if, upon notice, they expeditiously take down the infringing content.
In essence, the view of these scholars is that in a post-scarcity society, intellectual property law will largely just be a spoiler. It will just get in the way of innovation, and we should seek to make sure that it does not.
2.4.2 The Social Role of Intellectual Property Law
The conventional view is thus that in a post-scarcity society, intellectual property law will be at least less important to innovation.Footnote 53 I remain ambivalent, maybe even pessimistic about this. But set that aside.
2.4.2.1 Intellectual Property Law and Social Scarcity
Instead, I’d like to talk about a different role that intellectual property law might play in a post-scarcity society. And it is not all that different from an important role that intellectual property law is already playing in some neighbourhoods in New York City, Hong Kong, Paris, or Singapore, neighbourhoods where many very affluent individuals already live in something like a post-scarcity world. If food is a problem for them, it is a problem because there is too much of it. And it may be that they have such an abundance of resources (and wisdom) that the only thing they truly feel a scarcity of is time.
But there is perhaps something else that may nevertheless always remain scarce for them. In his essay Economic Possibilities for Our Grandchildren, Keynes made an important qualification in his depiction of post-scarcity society:
Now it is true that the needs of human beings may seem to be insatiable. But they fall into two classes – those needs which are absolute in the sense that we feel them whatever the situation of our fellow human beings may be, and those which are relative in the sense that we feel them only if their satisfaction lifts us above, makes us feel superior to, our fellows. Needs of the second class, those which satisfy the desire for superiority, may indeed be insatiable; for the higher the general level, the higher still are they. But this is not so true of the absolute needs – a point may soon be reached, much sooner perhaps than we are all of us aware of, when these needs are satisfied in the sense that we prefer to devote our further energies to non-economic purposes.Footnote 54
Keynes imagined a world where our absolute needs would be met. Left to us would be the problem of relative needs, of what he apparently saw as an innate human need to express superiority or at least rank.
One standard way by which humans do so is through the possession of scarcity, or in its aestheticized form, rarity.Footnote 55 But how would this work in a society that has overcome scarcity and indeed rarity as well? How would it work in a society where at-home production technologies can easily scan and reproduce an item (or through robots, a service)? How do we distinguish ourselves if much of what is owned and done exists in effectively infinite supply?
Of course, one way is through conduct, through work, through production of what we create and give away, and indeed this is how social distinction is established in the open-source software world (and I think also in the academic world).Footnote 56 But at present we live in a global consumer society, where many (certainly not all, but many) distinguish themselves by what they consume rather than by what they produce. And post-scarcity would take this form of consumer society to a whole other level.
How will consumption-based social distinction survive in such a post-scarcity consumer society? Perhaps you will say that it simply will not. Individuals will no longer seek status through the possession of scarcity. But I think this view is one mistake of post-scarcity thinking. Here is an example of this mistake: ‘IP has allowed us to cling to scarcity as an organising principle in a world that no longer demands it.’Footnote 57 My intuition is that the world will always demand scarcity. If through our technology we eradicate the scarcities that beset us, we will no doubt seek to invent new ones.Footnote 58
But even if that were true, even if we would give up on the pursuit of rank, consumers will still seek something more essential than status, or superiority or rank. They will seek in the things they consume some form of individuality, identity, some degree of difference as against the crowd, and to do so, they will seek out things that somehow remain rare. Economists (for example Keynes in his talk of the search for ‘superiority’) seem always to conceive of society as a single vertical, lock-step status hierarchy that everyone is trying to climb. And you may not be surprised that American lawyers (and legal academics) tend to subscribe to a similar social theory.Footnote 59 But far more common, I think, particularly in massively multicultural global societies, is the individual’s pursuit not of superiority but simply of difference, of distinction understood not hierarchically but more broadly distinction understood qualitatively, as differentiation from sameness – as differentiation from what the French social theorist Jean Baudrillard called ‘the hell of the same’.Footnote 60 To achieve such difference and individuation in a consumer society, consumers will still turn to rarities and scarcities wherever they can find them. And as Dan Burk has recently emphasised,Footnote 61 consumers will continue to seek that greatest rarity of all in a society of superabundance: human authenticity, the sense of connection to and community with other humans, whether that community forms itself around supercars or pick-up trucks – or as Amy Adler has expertly explored, around the possession of non-fungible tokens.Footnote 62 And it cannot be emphasised enough, particularly to legal readers, that luxury goods are only a part, and a small part, of this story. Our habitual focus on hierarchical, ordinal status competition and on ‘Veblen goods’Footnote 63 can blind us to something far more essential, which is individuals’ efforts through their consumption somehow to assert horizontal difference in a modern consumer society of mass-produced sameness.
What I am driving at (and if you are in the fashion industry, you already know what I am going to say, because you already live it) is the social role of intellectual property law in a post-scarcity society. I refer not to its role in incentivising innovation, but rather its potential role in perpetuating consumption-based social difference and thereby in facilitating identity within a mass global consumer society.
Consider that intellectual property law is the one area of law that at its core is designed to maintain artificial scarcities in the face of superabundance. Intellectual property law is built to restrict access to often near-zero-marginal-cost physical embodiments of intangible works, designs, inventions or trademarks. We have built it in this way to incentivise innovation. But it turns out that intellectual property law is meanwhile perfectly suited to supplying post-scarcity society with the scarcities that individuals in such a society will continue to seek out.Footnote 64
It is as if intellectual property law in its technologically progressive guise, in which it incentivises new technologies, has all along been pushing us towards a post-scarcity society, which is the very form of society where intellectual property law will finally assume a dominant role in social ordering (if not also in technology policy). I am reminded of De Tocqueville’s comment on one of the peculiar characteristics of the Americans: ‘There is hardly any political question in the United States that sooner or later does not turn into a judicial question.’Footnote 65 That was the nineteenth century. In the twenty-first century, if the heralds of post-scarcity society are correct, there may hardly be any question that does not ultimately turn into a question of intellectual property and intellectual property law – and more specifically, of trademark law.
2.4.2.2 Intellectual Property Law Already Performs This Role
In essence, then, I am arguing that a primary role of intellectual property law in a post-scarcity society will be to perpetuate consumption-based social difference by facilitating the creation of various forms of artificial scarcity. Indeed, it will not just facilitate; it will incentivise the creation of artificial scarcity. Here, intellectual property law will very much be a spoiler. It will restore scarcity to a world that we would have thought could transcend scarcity. If technology is going to strip nature of its ability to enforce scarcity, then culture will do what nature no longer can, and culture will use intellectual property law to do so.
At this point, some proportion of readers may be thinking: this is crazy talk, science fiction, video game thinking, just like talk of post-scarcity society. But on reflection, I do not think that it is.
The social role that I am describing for intellectual property law in a post-scarcity society is very much one of the roles that intellectual property law is already performing in our own society, at least in the economies and cultures of the Global North. As I have explained in much more detail elsewhere,Footnote 66 a variety of cases and court opinions from around the world demonstrate intellectual property law’s differentiating function.
Take, for example, one of the earliest of such cases, from the United States. In the 1955 case of Mastercrafters Clock & Radio Co v Vacheron & Constantin-LeCoultre Watches, Inc,Footnote 67 the declaratory plaintiff Mastercrafters produced an electric-powered simulation of the Atmos clock. An Atmos clock is an ingenious device in which the clock is perpetually wound by changes in atmospheric pressure. Apparently, in its day, it was a status symbol – perhaps it still is. Vacheron had threatened suit against Mastercrafters for making electric-powered knockoffs. The cause of action at issue was trademark infringement, and the form of infringement was what is now called in some trademark systems ‘post-sale confusion’.Footnote 68 No purchaser of the electric-powered clock, costing US$30, was confused into thinking it was an authentic Atmos clock, costing US$175 (or US$2,000 in today’s dollars).Footnote 69 Still, in the post-sale context, there could be confusion, and the court found that this post-sale confusion would be harmful to Vacheron and its consumers. The American judge reasoned: ‘Some customers would buy the plaintiff’s cheaper clock for the purpose of acquiring the prestige gained by displaying what many visitors at the customers’ homes would regard as a prestigious article.’Footnote 70 The judge condemned Mastercrafters’ ‘intention thus to reap financial benefits from poaching on the reputation of the Atmos clock’Footnote 71 and enjoined Mastercrafters’ conduct.
There are many such cases like this in American trademark law as well as in American copyright law and design protection law.Footnote 72 We also see a plenitude of such cases in European intellectual property law, most notably L’Oréal SA v Bellure NV,Footnote 73 in which the European Court of Justice (as it then was) explicitly sought to protect L’Oréal’s efforts to create and preserve the artificial scarcity of its goods.
We also see such ‘post-scarcity cases’ in Singapore, though in the most prominent of these cases, City Chain Stores (S) Pte Ltd v Louis Vuitton Malletier,Footnote 74 the ultimate result, I am happy to say, was altogether different from the American or European case law. In brief, since 2004 Louis Vuitton had been selling in Singapore a watch bearing Louis Vuitton (‘LV’)’s so-called ‘flower quatrefoil’ design, which many consumers may recognise from LV’s repeating pattern logo. In 2006, City Chain began selling a watch with a very similar design but at a substantially lower price. The Singapore High Court found trademark infringement, passing off, and trademark dilution.Footnote 75 Its decision reads very much like the American cases I’ve just mentioned, particularly when, as the Court of Appeal explained, the trial court took ‘judicial notice of the fact that people do get put off certain luxury brands simply because there were so many fakes and cheap look-alikes in the market’.Footnote 76
On appeal to the highest appellate court, the Court of Appeal’s unanimous decision, by contrast, reads like a line by line repudiation of the American and European cases. In finding no likelihood of confusion, the Court of Appeal noted, among much else, that luxury goods ‘are bought after careful inspection and deliberation,Footnote 77 that the substantial price difference between the two watches meant that no LV consumer would be confused into buying a City Chain watch,Footnote 78 and more broadly, that the public’s mere association between the two products could not form the basis of a finding of likelihood of confusion where there was no confusion as to source.Footnote 79 In rejecting LV’s passing off claim, the Court of Appeal characterised as ‘wholly irrelevant’ the possibility that ‘the Solvil Flower pattern could be easily mistaken for the Respondent’s watches at a glance when worn on the wrist as people do not generally scrutinise another person’s watch at close range’.Footnote 80 As for the dilution claim, the Court of Appeal found, among other things, that that the flower quatrefoil design was not well-known to the public at large in Singapore.
All in all, it was a wonderfully wise opinion – though its wisdom would no doubt not be appreciated by purveyors of artificial scarcity, such as Louis Vuitton and other luxury fashion brands. City Chain benefitted not just from what was clearly some excellent lawyering but also from a court that was unwilling just yet to endorse an emerging social role of intellectual property law, and particularly trademark law, in an emerging post-scarcity society.
2.4 Conclusion
In brief conclusion, I should say a few words in the nature of review. I began by talking about the dream of post-scarcity society, particularly as envisioned by John Maynard Keynes and Murray Bookchin. I then focused on two leading examples of legal commentary on post-scarcity society and the conventional view that intellectual property law would either be a spoiler or just become irrelevant in such a society. Finally, I proposed that intellectual property law would actually become even more important – more relevant – in a post-scarcity society, not for its impact on technological progress but rather for the social function it would play (and that it already does play) in preserving the artificial scarcities that such a society would continue to demand.
We may someday solve Keynes’ ‘economic problem’. But what will remain is a social problem, the problem that the economist Fred Hirsch called ‘social scarcity’.Footnote 81 Though intellectual property law has long played a technologically progressive role in modern societies, it may be that its long-term role, as a social matter, will be essentially reactionary. It will function to preserve those structures and habits of social differentiation in our consumer society that are based on the consumption of scarcities. It will be used, as it already is being used, to restore scarcity to post-scarcity society.
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