The Implications for Law of User Innovation

Abstract

With growing frequency, people who acquire mass-produced products are modifying them. The producers of some of those products seek to curb this practice. The law currently enables the producers to prevent or penalize some but not all of the ways in which their creations are being modified. Should those doctrines be altered - either to expand or to contract the producers’ power? A substantial body of literature addresses this question with respect to modifications of what might be called cultural products - sound recordings, movies, photographs, and the like. This Essay seeks to enrich that literature in two respects. First, it argues that user modifications of more tangible products - what might be called “equipment” - are equally common and deserve equal attention. Second, it offers a critical review of the policy arguments that have been or could be deployed in this area. The primary conclusion of that review is that the most forceful argument in favor of encouraging user modifications with respect to both cultural goods and equipment is not that it would promote economic efficiency or distributive justice, but that it would advance a substantive vision of human flourishing.