Copyrights and "Design-Around" Scholarship

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A patent is a formidable thing. In the United States, it affords twenty years of nearly ironclad protection to an inventor who can prove, after considerable expenditure of time and money, that some new process for manufacturing widgets is a novel and non-obvious addition to what legal practitioners call the "prior art"—all those processes for manufacturing widgets that others have thought up in the past. Once the federal government has conferred a patent upon an inventor, competitors must have a care. A successful invention inspires imitation, but if the imitation is too close, its author may get slapped with a lawsuit. In the high-dollar world of patents, losing an infringement suit can mean facing damages of millions or even billions of dollars. ¹

So imitators have to be as ingenious as the inventors they seek to imitate. Patent law encourages such ingenuity by permitting a clever competitor to "design around" a patent in such a way as to create a product that is the functional equivalent of the protected idea but narrowly avoids entering the forbidden zone of infringement. Economic policy also favors design-arounds. While non-infringing copycat products may threaten patentees' revenues, they also make the marketplace more competitive and drive down the price of products—consequences that are widely considered to be socially desirable. ² It takes skill and legal acumen to come up with a successful design-around. Many have devoted their careers to brainstorming these legitimate knockoffs.

The humanities are perhaps the last place we would expect to [End Page 563] encounter this art of the barely legal approximation, but the past few years have witnessed the growing phenomenon of design-around scholarship. As copyrights grow longer and their owners become more chary of permissions, as publishers retreat from the exercise of fair use and take refuge in parsimonious word counts and rigid