Texas Law Professor Oren Bracha studies the history of intellectual property, through its current-day legal challenges.
Bracha earned his bachelor’s in law from Tel Aviv University, before clerking for Chief Justice Aharon Barak of the Supreme Court of Israel and Judge Esther Kovo of the District Court of Tel Aviv, and a doctorate in juridical science from Harvard University. He then worked on teaching and research projects for Harvard Law School’s Berkman Klein Center for Internet and Society.
On the faculty at The University of Texas at Austin since 2004, Bracha is the William C. Conner Chair in Law. He’s a legal historian and an intellectual property law scholar whose fields of interest also include cyberlaw and legal theory.
He first became interested in the overlap of intellectual property law and legal history in the early 2000s. It’s since become what he labels a “vibrant” area for scholarship. “Intellectual property is the application of capitalism to the realm of information,” Bracha says, “which means it goes back about 300 to 400 years.”
We recently spoke with Bracha about the origins of his study of intellectual property, what happens when its law clashes with legal trends, and why he loves teaching.
Intellectual property is the application of capitalism to the realm of information.
You study intellectual property law, with a specific emphasis on copyright law, and legal history. What initially sparked your interest in those areas?
Early in law school, I took a very engaging and interesting legal history seminar. And my second year, taking the general property law class, I found the whole idea of intellectual property—that is, intangible property—intellectually stimulating and challenging. Then back in Israel, I clerked for two different courts, and at the District Court of Tel Aviv I was involved with some very interesting patent cases. Those interests met when I decided to write about the history of intellectual property.
Back then, there was relatively little work done on the history of intellectual property, especially in the U.S. context. We’ve come a long way since. It’s become a very vibrant field in which quite a few people are working on the history of intellectual property.
On that subject, how do you describe your new essay, “Pointless IP”?
It’s about the meeting between intellectual property law and recent trends in the U.S. Supreme Court. The recent trends—which are much broader than developments in intellectual property law—are in legal reasoning: how to understand what the law is, reason about the law, support legal opinions, and make arguments. To some extent, those trends are stronger in public law—constitutional law, for example—but they’re not limited to that area.
What are those trends?
I’m talking about what are known as “originalism” and “textualism.” To keep it simple, originalism is the idea that we should determine the meaning of the law today by reference to what the law meant at some historical, usually critical, time like the drafting of the Constitution, when the relevant part of the law came into being. What the law should mean today is basically determined by what it meant historically, say in 1790.
Textualism is a different approach that says, “How do we know what the law means? We simply look at the text of the law and nothing else. It’s very important not to look at anything else, because texts have meanings that are somewhere inside. And people who reason about the law like judges most importantly, but lawyers as well, should limit themselves to the text alone.”
When considering those trends, is anything different now?
Those trends have been around for quite a while, but they’ve seen a renaissance in Chief Justice John Roberts’s Court, and even more so in the last decade or so. They’ve gone beyond the realm of constitutional law. In “Pointless IP,” I’m looking specifically at the extension of originalism and textualism into intellectual property law. I argue it doesn’t work: It’s a very bad idea that produces very bad results. When I say “bad,” I don’t just mean substantively, but conceptually, in terms of the coherence, any reasonable meaning of the law, and the ability to use the law for its purpose. The same problems of originalism and textualism that you see everywhere else are present with respect to intellectual property. But it’s also somewhat unique, because intellectual property functions as sort of a canary in a coal mine. Intellectual property is a very dynamic area of the law. It has a built in, structurally grounded tendency for fast change.
When you couple that with very static jurisprudential approaches—the whole point of originalism and textualism is to find some static grounding, either in history or text—their shortcomings are quickly brought to light.
Originalism and textualism are always ill-advised, and intellectual property law, because of its intensely dynamic character, dramatically exposes their more general inadequacies.
When you couple that with very static jurisprudential approaches … their shortcomings are quickly brought to light.
What’s the alternative you’re proposing?
I see originalism and textualism as subset of a more general approach to law, which can be referred to as formalism. There, what matters is a logical form rather than looking at the substance of the law, and more importantly, the purpose of the law. The alternative is a purpose-based approach—alluding to the underlying purpose of the law to give it meaning. What do we care about? Economic efficiency or individual rights or social equality? Purpose does not immediately translate into policy on a particular issue. There’s some level between the completely formal, detached-from-substance level and the immediate, most concrete policy debate, and that’s what purpose is about.
In other words, if you have a concrete question about any area of intellectual property—how long should a copyright last? What kinds of subject matter can you get a patent for?—the only coherent and acceptable way of thinking about those questions is with reference to the underlying purpose of the rules in that area. And once you lose touch with that, you get all kinds of very problematic, sometimes perplexing, and even paradoxical results.
That’s a fascinating topic. Meanwhile, there’s also a classroom portion of your role. So, does your scholarship impact your teaching? And vice versa?
Yes, and it’s bi-directional. Teaching forces one to be on top of things. Intellectual property, for example, is a field in constant change, so teaching requires you to keep up. But more than that, teaching a subject is very different from reading about a subject and thinking you understand it. To teach a subject properly, you have to wrestle with it on a deeper level. To some extent, that happens during the teaching itself and interacting with students, but much of it happens in preparing for teaching—setting up your notes and thinking about the issue and how you’re going to convey it to other people. That’s where you suddenly meet all the interesting issues, problems, questions, and sometimes puzzles or perplexing issues. And that is the ground for starting a scholarly project.
It also works in the opposite direction. My scholarship certainly informs my teaching, because I don’t think that you can just teach the black-letter law, the rules as rules and how to manipulate them in some technical way. To understand and apply the law, you need to understand what it’s about, the purpose behind it, and the human interests being served by a particular area of the law in the moment. I incorporate that into my teaching. I often find myself talking to my students about not just what the rules are, but what the rules were designed to do. That inevitably connects to your own scholarship, but also to scholarship in general, which is often about trying to understand what the rules are about, their effects, and evaluating them from one or another perspective. So, it flows in both directions, from teaching to scholarship and from scholarship to teaching.
To teach a subject properly, you have to wrestle with it on a deeper level.
Do you enjoy teaching?
I enjoy it very much for many reasons, including the ones I’ve just explained. But even beyond that, I love the interaction with the students. I’ve been teaching for over 20 years. When I started, the main attraction was scholarship, research, and a scholarly life, and teaching was something that came with it. But I discovered that I love the teaching aspect as well. Now, don’t take my word too strongly and increase my teaching load to 20 credits next year! But the fruitful combination between research and teaching, I love it.
Among your courses, you teach an Equality Seminar. How does that fit into your interest areas?
My research interests also encompass legal theory, including political theory and political philosophy. The seminar is about the political philosophy ideal of equality. I’m guessing most of us would agree that equality and treating people as equals is a very important value. But what does it mean, specifically? What does it mean for liberal political philosophy, and then for some critics of liberal political philosophy? Liberal political philosophy does not go far enough in both explaining and ameliorating social inequity. Treating questions of accommodation for disability as being about “discrimination,” for example, only encompasses cases of treating a certain group with hostility or as inferior either expressly—aka “disparate treatment”—or surreptitiously—aka “disparate impact.” As a result, this only justifies prohibiting behavior which is procedurally wrong in terms of bad motives or supporting measure that benefit everybody—where “raising all boats” further raises the boats of the winners versus those of the losers.
So, a third of the seminar is reading hardcore philosophical texts. Another third of the semester is what law schools have to add the discussion: translating moral and political ideals into concrete terms in society. The last part of the seminar is focusing and working hard on the individual projects of students who are expected to do some original research in this area.
What else is keeping you busy?
I’ve spent a lot of time on a very hot topic, copyright law and infringement as applied to artificial intelligence—Chat GPT spitting out a copyrighted poem, for example. But an even more contested issue is training AI systems on copyrighted materials, even if none of the material appears in the output. That kept me busy for a while with different projects, but I’ve had enough of that for now. I’m going back to more traditional projects about copyright law, revisiting various familiar and fundamental issues in copyright law, everything from originality to what it means to infringe copyright to other basic questions.