112 Yale L.J. 973 (2003)

112 Yale L.J. 983 (2003)

112 Yale L.J. 1179 (2003)

Focusing a discussion of intellectual property on a 300-year-old text may seem unusual, but John Locke's Two Treatises of Government has an uncommon place in American intellectual property theory. Historically, Lockean natural rights informed the Framers' understanding of intellectual property law. Courts also have a long history of using natural law justifications in intellectual property cases. The Lockean perspective has been particularly appealing to theorists because of its ability to justify widely varying property systems, ranging from expansive communitarianism to subsistence-worker-based capitalism. Although modern intellectual property doctrine has attempted to disavow its association with natural law justifications, some debate the ability of courts to adjudicate intellectual property claims without consulting natural law principles.

Revisiting Locke for a theory of intellectual property has become vital because of two important recent shifts in doctrine and scholarship. First, statutory and doctrinal innovations have continued to expand private intellectual property rights. Second, academics have increasingly advocated the importance of the public domain as a way of limiting the expansion of private property rights. One recent example of the conflict between private intellectual property rights and the public domain is Eldred v. Ashcroft, upholding the Sonny Bono Copyright Term Extension Act, which extended the duration of a copyright to the life of the author plus seventy years. While the government's brief advocating for the copyright extension emphasized the need for fairness to authors, the petitioners' brief highlighted that "[p]etitioners are various individuals and businesses that rely upon speech in the public domain for their creative work and livelihood." These arguments were mirrored by amici, including the Recording Industry Association of America (RIAA) on the government's side, which emphasized the importance of "fair compensation of authors," and a group of fifty-three law professors, who stated that "[a]mici are in particular concerned about the recent, rapid expansion of copyright scope and duration, at the expense of the public domain."

Scholars have seen Lockean theory as an essential tool in reconciling these arguments because the main thrust of Locke's theory is the reconciliation of strong private property rights with a common of materials available to all. Locke argues that laborers have a private property right in the products of their labor because individuals mix their labor with materials from the common that are free for all to use. The private property right in an individual's labor is mixed into the product of labor, and thus the private property right also attaches to the product of labor. He supports this argument by adding natural law principles that must be followed to maintain exclusive property rights. The natural law principle that has been most commonly considered by scholars is the sufficiency proviso, which requires that the laborer not take too many materials out of the common.

Two substantial criticisms are often directed at Lockean theory. First, scholars argue that even though Locke claims to reconcile a robust common with strong private property rights, his property rights swallow the common. Thus, the object of Lockean theorists, as mirrored in the title of this Note, is often concerned with limiting the scope of the Lockean property right. Second, scholars argue that the sufficiency proviso cannot be fulfilled in a morally compelling way because the common of tangible goods is inherently scarce.

Previous scholarship concerning Lockean theories of property rights in intangible goods has focused on the ability of the nonrivalrous characteristic of intangible goods to eliminate the scarcity problem. This scholarship began with the publication of two influential articles, one by Justin Hughes in 1988 and another by Wendy Gordon in 1993, and has been refined in the last decade. A fundamental difference between tangible goods and intangible goods, however, is that intangible goods are nonrivalrous, which means that they can be used by an infinite number of people in an infinite number of ways without harming the use value of any other person, including the initial producer. Previous scholarship has persuasively argued that because intangible goods are nonrivalrous, the common of intangible goods contains materials that are not subject to a scarcity problem and thus that Lockean theory does not fail when it is applied to intangible goods. Scholars have tended to overemphasize the importance of this claim, however, by conflating the Lockean common with a public domain. The Lockean common contains undeveloped materials, whereas a public domain is composed of developed goods. Although the Lockean common is quite useful for independent production, the nonrivalrous nature of intangible goods means that a public domain can be used to foster incremental innovation, which is much more valuable.

This Note takes a different direction than previous scholarship by focusing on another of Locke's natural law principles, the waste prohibition. The waste prohibition forbids a laborer from wasting products of labor or portions of such products, with the violation resulting in the loss of private property rights in the portion of the product wasted. I define Lockean waste in the following way: Waste occurs where a unit of a product of labor is not put to any use. When scholars have considered the application of the waste prohibition to intangible goods previously, they have arrived at polar conclusions, with some asserting that waste rarely occurs and others claiming that waste always occurs.

The waste prohibition is of negligible importance for tangible goods, but is immensely important when constructing a Lockean theory of intangible goods. The waste prohibition is largely a nonissue for tangible goods because one can exchange money--by definition a nonwasting good--for units of a product of labor that may be prone to waste. Laborers will thus have incentives to sell all the units they possess that they will not use and violations of the waste prohibition will be rare. The nonrivalrous nature of intangible goods can be characterized as the production of an unlimited number of "intangible units" at the initial creation of any intangible good. Although the limited number of units of a tangible good can usually be converted into nonwasting money, the unlimited number of intangible units suggests that the laborer will not be able or willing to convert all of the intangible units into money whenever any intangible good is produced. The combination of nonconversion and nonuse constitutes a violation of the waste prohibition. As the waste prohibition is enforced through the loss of property rights in the wasted intangible units, the waste prohibition creates what I call a Lockean fair use right. Price discrimination allows greater conversion of intangible units into money but is an imperfect solution due to practical difficulties in attaining perfect price discrimination.

This Note also examines the implications of government regulation on Lockean intellectual property rights and compares a Lockean regime with current U.S. intellectual property doctrine and theory. The establishment of a government allows much more variety in the scope of private property rights under Lockean theory, but the Lockean fair use right binds civil governments in much the same way that it binds individuals in the state of nature. Although the theory and doctrine of copyright fair use shares many characteristics with Lockean fair use, the current U.S. fair use right is more limited than the Lockean right. One example considered in this Note is that strong government support for anticircumvention measures may violate Lockean principles if the ability to police the waste prohibition is not protected. An even larger difference is that there is no coherent patent fair use right in the United States, although such a right would be demanded under a Lockean regime.

This argument will be fleshed out in the remainder of this Note. Part I introduces general Lockean concepts, focusing on the impacts of the nonrivalry of intangible goods on the common and the waste prohibition. Part II applies Lockean concepts in an economic framework, demonstrating a fair use right in a Lockean state of nature. Part III considers the transition of society into a civil government, with its attendant changes in the scope of property rights in intangible goods. Part III also applies the Lockean analysis of this Note to two areas of current intellectual property debate--the anticircumvention provisions in the Digital Millennium Copyright Act (DMCA) and the enforcement of drug patents in developing countries. Part IV concludes.

112 Yale L.J. 1257 (2003)

Title VII of the 1964 Civil Rights Act, as it has been interpreted by the courts, is an uncompromising statute. It bars adverse employment actions taken on the basis of race, color, religion, sex, and national origin, with only one exception: in cases where an employer can demonstrate that sex, religion, or national origin is a "bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of that particular business or enterprise." Much of Title VII's impact, of course, depends upon the scope given to this exception, and, in particular, upon whether employers are allowed to claim inconvenience, cost, or customer preference as legitimate components of the BFOQ analysis. Because a broad exception would swallow the rule, the Supreme Court has held that the BFOQ provision was "meant to be an extremely narrow exception to the general prohibition of discrimination" and established a stringent test for its application. An employer seeking a sex-based BFOQ must have a "'factual basis'" to believe that "'all or substantially all women [or men] would be unable to perform safely and efficiently the duties of the job involved,'" or, alternatively, demonstrate that the qualification in question relates to "the 'essence,' or to the 'central mission of the employer's business.'"
 
Courts have also strongly rejected attempts to define the "essence of a business" in ways that allow sex discrimination in through the back door of customer preference. The logic is the same as that justifying a narrow BFOQ: As one court put it, "[I]t would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid. Indeed, it was, to a large extent, these very prejudices the Act was meant to overcome." Thus, courts have refused to allow the preferences of airline customers to justify rejection of men for flight attendant positions, or the biases of customers or associates in other countries to justify refusal to promote women to positions directing international operations.
 
To date, only a few kinds of sex-based BFOQs have been approved. The Supreme Court has authorized only one: In 1977, the Court granted a sex-based BFOQ to an Alabama maximum security prison, allowing it to exclude women from certain positions to ensure the safe administration of the prison. Lower courts and commentators have suggested that there may be many other kinds of BFOQs, including an "authenticity" BFOQ, which, for example, allows employers to hire only women for special undercover operations or theater productions, a "role model" BFOQ, and a BFOQ for rehabilitation purposes.
 
Sex-based BFOQs are of interest not only because they authorize acts that would otherwise be considered discriminatory, but because they are a key location where sexual difference is symbolized in the law. If the law "interpellates" us, or recruits us into identities and ideologies that it names for and as us, then sex-based BFOQs offer us a unique vantage point from which to understand how we are created as legal subjects of sex. This Note examines one sex-based BFOQ, which eclipses all others in terms of its legitimacy, persistence, and breadth: the same-sex privacy BFOQ, which allows employers explicitly to exclude men or women from certain positions or employment opportunities to protect the privacy interests of customers of the opposite sex. It excuses a wide variety of overtly sex-based employment actions, from the seemingly trivial--the refusal to assign women to clean men's bathrooms --to the relatively extreme--the refusal to hire qualified men to fill any of the nursing positions in labor and delivery rooms.
 
In 1991, the Supreme Court explicitly suggested that same-sex privacy could be the basis for a BFOQ, and both before and after that, lower courts have granted same-sex privacy BFOQs in a variety of contexts including labor and delivery rooms, mental hospitals, youth centers, washrooms, and nursing homes. Some courts have also granted same-sex privacy BFOQs in prisons, although many others have rejected them. Recently, employers have begun claiming--if not obtaining--BFOQ defenses in a variety of new settings, including weight-loss centers, health clubs, and spas.
 
This Note addresses same-sex privacy cases because in them Title VII's strong command to remake the world in favor of employment equity and at the expense of discriminatory customer preferences meets its limit. These cases are striking not only because they appear to be the strongest category of sex-based exceptions to Title VII, but also because they are deeply untheorized and impossible to square with Title VII's much-vaunted rejection of customer preference. As Robert Post has pointed out, same-sex privacy cases illustrate how "Title VII does not simply displace gender practices, but rather interacts with them in a selective manner," and they also "force[] us to ask which gender practices are to be reshaped by Title VII, in what contexts, and in what ways."
 
But how are we to know or decide which gender practices Title VII should challenge? This Note derives two teachings from same-sex privacy cases: first, that we must consider the symbolically as well as materially discriminatory effects of gender norms to decide which norms to challenge, and, second, that our inquiry must not end there. These cases make clear that costs attach not only to gender norms but also to their transformation. At times, courts will need to mediate between the discriminatory effects of a norm and the discriminatory effects of the attempt to change it. In such cases, I contend, effective resolution of this dilemma will usually not reside in sex segregation, but rather in non-sex-specific measures to alleviate the kinds of risks and costs we too quickly identify with sex itself.
 
Part II demonstrates that the same-sex privacy doctrine fails to meet the stringent requirements established for BFOQs. There is no evidence in most same-sex privacy cases that all or substantially all members of one sex cannot perform the essential functions of the job in question. In fact, same-sex privacy BFOQs are simply concessions to customer preference, and they undermine employment equity in just the way that courts usually have held Title VII opposes.
 
Courts in search of a principle that distinguishes the grounds of this BFOQ from forbidden customer preference typically turn to the law of privacy, but as Part III shows, this turn is too quickly made. Upon examination, it becomes clear that there are in many cases no relevant privacy rights at stake. Even in cases where there are privacy rights at stake, there is no logical reason to collapse privacy rights with sex and status as same-sex privacy doctrine does.
 
If same-sex privacy cases are really about customer preferences, and cannot be defended via recourse to legally recognized privacy rights, how can they be explained? Part IV contends that there are two interrelated justifications at work in these cases. First, courts insist that same-sex privacy norms are so deeply held and so fundamental to our sense of identity that they are legitimately cast beyond the reach of antidiscrimination law. Second, courts imply that same-sex privacy norms should be respected because they are necessary for the physical and psychological protection of individuals.
 
Part V asks whether either line of reasoning adequately justifies the exclusion of same-sex privacy norms from the set of gender norms that Title VII contests. It contends that they do not and that same-sex privacy doctrine is both materially and symbolically discriminatory. The claim of material discrimination is straightforward: The same-sex privacy BFOQ disadvantages women in the labor market because it facilitates the steering of women into low-status jobs. The notion of symbolic discrimination is less familiar, and one that I attempt to define against the background of these cases. Same-sex privacy cases, I argue, reinforce a symbolic order of gender that has a discriminatory effect upon women, because, for example, it casts them as constitutively vulnerable to sexualized attack, and as essentially and necessarily modest in a way that resonates with tendencies to propertize women and deny them sexual agency. These and the other symbolically discriminatory effects of the doctrine should concern us, and Title VII. These cases, however, suggest that it is not enough to ask which norms to challenge: We must also consider where and when to challenge them. Where changing gender norms will occasion costs such as the fear or risk of sexual abuse, we should take these costs seriously. Sex segregation, however, will rarely be the most effective way of avoiding these costs. Because of this, I conclude, same-sex privacy BFOQs should rarely, if ever, be judged legitimate.