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Intellectual property policy requires balance between the goal of motivating innovation and the need to prevent that motivation from stifling further innovation. The constitutional grant of congressional power to motivate innovation by securing "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" is qualified by the requirement that congressional enactments under the Intellectual Property Clause "promote progress."

The speed of technological change, particularly in the converging fields of computer software, music, video, television, and communications, coupled with the power of technology industry lobbying, have left the statutory balance tilted in favor of rewarding innovators at the expense of further innovation and of consumers. A particularly vulnerable class of consumers consists of "early adopters," consumers who buy early stage technology before an industry standard is established. These consumers invest not only in the machinery of the early stage technology but also in the acquisition of libraries of data (including audio and video libraries) which are specific to the technology platform. These early adopters contribute significantly to the ultimate success or failure of new technologies and do so at the risk of losing their investment, and needing to reacquire their libraries, if a different technology prevails as the industry standard and renders their early choice obsolete.

The Supreme Court has already recognized a time-shifting exception to the intellectual property rights of innovators and lower courts have recognized a place-shifting exception. It is now the time and place for a general technology-shifting exception which would allow consumers to shift their media libraries from one format to another without violating intellectual property law.

This Article begins with a brief history of the Intellectual Property Clause, congressional implementation of the clause, and judicial responses. It then summarizes the role of early adopters in "promoting progress" and argues that while Congress has broad discretion in balancing "promoting progress" with securing authors and inventors "exclusive rights," protection of the early adopters' role is constitutionally required. Next, it illustrates how securing a right of technology-shifting (transferring patented or copyrighted works from an older, obsolete, technology to a new technology) satisfies the requirement of promoting progress and fits within the historical model. Finally, it proposes both statutory and judicial steps toward protection of this right.



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