February 4 - Amy Kapczynski on "Free Beer, and the Cost of Price"

You are cordially invited to the next ISP Speaker Series, scheduled for February 4 at 12:10 p.m. in Room 120 at Yale Law School. Our guest speaker will be Amy Kapczynski, Visiting Associate Professor of Law and Irving S. Ribicoff Fellow in Law at Yale Law School & Assistant Professor of Law at the University of California, Berkeley, School of Law (Boalt Hall).

Free Beer, and the Cost of Price

IP scholarship today is characterized by a kind of normative Demsetzianism - by the assumption that price is a virtue wherever it can cheaply be arranged. One camp urges that price should be extended as far as possible, and the other raises the cry of transaction costs and externalities. Both assume that price is valuable; they just disagree about when we can afford it. Is price invariably a virtue in the context of information, or does price itself have costs? This paper argues that although price is often treated in the IP literature as a kind of neutral technology, price is not neutral. It has certain affordances, certain structural implications for the values that we care about in the context of information policy. The conventional value of price comes from its ability to act as an inducement and a signal, but price will also have costs to the extent that it fulfills these aims. In efficiency terms, price may in fact induce too much, or at too great a cost. It may also distort, crowd out, or redirect non-market information production. When it acts as a signal, price generates costs for distributive justice, because price is not neutral to underlying resource endowments. While this is also true for material resources, in the context of information price is particularly troubling, because it is not obvious that it advances efficiency. Finally, when price acts as a signal it sets up a logic of surveillance that is in tension with information privacy, because, for example, of the relationship between price discrimination and privacy. The aim of the paper is to help us recognize the costs of price itself in the context of information, not to determine where these costs outweigh the possible benefits. But because the benefits in efficiency terms are more obscure than the IP literature generally acknowledges, compromises with the logic of price, made, for example, in the name of distributive justice or privacy, may be more readily justified that we have perhaps assumed.

About Amy Kapczynski

Amy Kapczynski is a Visiting Associate Professor of Law and Irving S. Ribicoff Fellow in Law at Yale Law School. She is also Assistant Professor of Law at the University of California, Berkeley, School of Law (Boalt Hall). Her research interests center on international law, intellectual property, and global health. She helped lead efforts that resulted in Yale University and Bristol-Myers Squibb permitting generic competition and providing steep price discounts for an important anti-AIDS drug in South Africa. Drawing on this experience, she co-founded Universities Allied for Essential Medicines with other students in 2002. She received her A.B. from Princeton University, M. Phil. from Cambridge University, M.A. from Queen Mary and Westfield College at University of London, and J.D. from Yale Law School. At Yale Law School, she was Articles Editor of The Yale Law Journal and co-founder and Advocacy Director of the Yale AIDS Network. She was awarded a post-doctoral fellowship at Yale Law School and the Yale School of Public Health.