STS and IP: Attribution

Session 2: Paper by Catherine Fisk (“Attribution and Human Capital in the Twentieth Century: How Professional Reputation Became the New Intellectual Property”)

Von Hippel and the like tend to be utopian. They emphasize that creators care more about attribution than they do about ownership—people/businesses will forego IP protection for the sake of enhancing reputation/celebrity. Attribution has become the one form of IP that even zealous defenders of the public domain will defend. How did that happen?

She is writing a history of attribution in work relationships. By about 1930, any aggressive employer could claim ownership of a large amount of employee-generated IP as well as devices. So what’s left for employees? She’s less interested in how attribution affects the value of the item/the credibility of scientific work and more in how attribution affects labor relationships and the idea of knowledge as human capital. As people began to think of workers as more than muscles, and as valuable for tacit knowledge, we used attribution to create people and their worth to the things they created.

The paper has two examples: (1) archives of J. Walter Thompson ad agency, which was the largest American ad firm for most of the 20^th century, employing thousands of people. JWT and its competitors sold themselves on reputations for creativity—advertising employees’ human capital. Yet JWT was interested in maintaining a culture of nonattribution—employees didn’t even have their names on their doors. Excessive self-promotion was unprofessional, gauche, bad management. Talent was to be collective, not just an individual attribute.

JWT would produce entire radio shows for corporate clients—they’d recruit talent, including famous actors; hire tech people. They didn’t have written contracts with any employees, even when hiring people to create IP, nor did they have any explicit agreement on who owned the music, etc. The norm was that the creator wouldn’t reuse the work within a specified time. Later in the century, they did get much more protective over IP ownership; they negotiated with clients over what they could do with non-used ad concepts/layouts. They relied on moral obligation to keep clients from using ads that the clients initially rejected.

JWT did do attribution for purposes of salary reviews and the company newsletter. They maintained gender-segregated departments for a long time—Helen Landsdowne, widely attributed to be the genius behind ads appealing to women, insisted (with backup from other women) that if women worked with men in the firm, the men would get all the credit. This, the women argued, destroyed incentives to create as well as disserved the women. This history shows negotiation between individual and collective attribution.

(2) Idea submission by employees. The law basically treated idea submission by employees as gratuitous, no matter what the company said about compensating employee ideas as long as it gave itself some room to maneuver, even if it regularly did pay employees for ideas. One former IBM worker sued IBM, and lost, but created a website documenting his claim that IBM promised to pay for his ideas, didn’t do so, and thus treated him badly—pervaded with IP metaphors and stealing metaphors. IBM sought to encourage creativity and initiative.

Wants to link this to the right of publicity. Thinking of celebrity as an IP resource that can be managed. On the one hand, there’s the idea of romantic authorship—one is the author of oneself (or one’s work), entirely in control of one’s output. The Midler case adopts a highly romantic view of authorship—a voice is like a great work of art, something reflecting the genius of the self. But there’s another view in the publicity cases, such as the White case, where finding White’s essence to be protectable doesn’t rely on any romantic notion but just on the investment in the creation of the persona. There may be no authorship, but there’s value, and the law protects those too.

When those 2 views collide in an employment relationship, the results are interesting: the Lugosi case. Is Lugosi’s Dracula a reflection of his essential self, as the heirs argued? To say that anyone but him owns that is like taking the soul out of his body. Or is it an investment, where the investment in marketing came mostly from the studio? Is a work created in an employment context still somehow inalienable, or not?

Commentator Jessica Riskin: These developments represent a conjunction of IP/labor and expressive selfhood, where people understand themselves to be authors/owners in a particular way. The precursor idea, the philosophical prerequisite, was an Enlightenment idea coming largely from John Locke: the human mind works from the senses, rather than from God, which means that humans are creators and not just transmitters.

The notion of corporate IP was also very much the ancestor of IP—the notion of guild ownership of printing rights to a work. Printers in the US and France bought and sold these rights in the 16^th century. In the 1700s, secular literature exploded and “authors” were born, people who tried to make a living selling their works. Drawing on Locke, this new generation of commercial authors argued that ideas were the natural property of their creators, rather than the royally bestowed property of the printer. The countering argument was that ideas don’t originate in individual human minds but in nature, and come into human minds by collective experience (an intrinsically social process), which makes them public property twice over. This could be the ancestor of JWT’s emphasis on joint credit.

Carla Hesse has argued that the publishing reforms of the 18^th century that resulted from these battles were usually a compromise between the claims of authors and the public good, though tensions remained. Nations that were net exporters of ideas such as France and Germany favored the natural rights view, while importers like the US favored the social utilitarian argument. Then of course the US shifted its view.

Fisk describes a similar trajectory over a shorter timescale, from uncertainty about where ideas come from to a greater focus on individual genius. But the authors are still employees. How might one connect the older story to this more recent one? Are there continuities with the old guild privilege, or the social utilitarian/natural rights stories?

Madison: Fights over whose name goes in the office/on the website for law firms are well-known. And standardizing the services of a professional firm is a longstanding debate—he mentioned a law firm whose color scheme is white on white in every office all over the world, creating the appearance of uniformity.

Lemley: It’s increasingly difficult for one person to come up with a computer program. How does attribution work in a mostly-collective environment?

Fisk: Small software companies do a lot to make employees feel like they belong. If you can’t have attribution, maybe you need a strong collective identity.

Lemley: The relationship between private norms and employee mobility: In a world of low mobility, internal norms work fine. You may need an IP regime precisely at the point at which we break open the firm.

Biagioli: In some areas, having your name on an article isn’t a good guarantor of actual work—it’s not a good signal because of practices. It’s opaque because real attribution is done through letters of recommendation. (Comment: it’s a tragedy of the commons! Everyone wants credit but that destroys the coin!)

Lemley: Though we can imagine a “more the merrier” scheme, can’t we? If we don’t require attribution to serve a comparative/distinction function, at least.

Science and Technology Studies and IP

Science & Technology Studies (STS) and IP Law, St. Helena, CA May 9-10, 2008

Session 1: Papers by Brett Frischmann (“Intellectual Infrastructure and Commons”) and Mike Madison (“Constructing Commons in the Cultural Environment: A Theoretical Framework and Research Agenda”)

Frischmann’s book project brings together his work on infrastructure. Infrastructure that he’s interested in is something that produces lots of downstream outputs that vary a lot, that generate positive spillovers, and that are often public or nonmarket. Access to such infrastructure is beneficial. Criteria: the resources are (1) potentially shareable at low or zero marginal cost, meaning that owners may price above socially optimal costs; (2) likely to give rise to an assortment of demand-side market failures—transactions costs, externalities, information costs.

STS-related issues: Across many areas, we fail to notice, value, weigh, etc. things that can’t be captured in market values. We know that ecosystems generate substantial value, and they’re necessary for our survival, but we have limited resources so ecological policy is done generally through cost-benefit analysis. And ecosystem valuation is just a rough proxy; at best it reflects our current preferences. We have trouble valuing what we don’t understand. We need to direct our activities to learning what’s good for us—how environment affects welfare.

Some argue that assigning some value is better than assigning no value, while others contend that this falsely accepts the premises of cost-benefit analysis. This is an ongoing debate.

The same thing is going on in intellectual infrastructure debates. The natural environment is congestable, depletable and inheritable, not produced, but if you’re thinking about how social value is generated in complex systems and how institutions play a role in structuring that value there are important similarities.

So is his scholarship really situated within economic analysis? Or should it attempt to stand aside? Can economics be used in a functional way without becoming normative, and without emptying out nonmarket values?

Indirect costs/social opportunity costs—costs associated with the systems we choose. The systematic difference between a spillover-rich and a spillover-dry environment. One might call it a difference in degrees of freedom, which you have when you don’t have to pay for/negotiate every transaction. But there are deeper differences that have to do with democracy, speech, and other fundamental values. Spillovers may be connected with theories like those of Martha Nussbaum: society is better off investing in the capabilities of everyone, especially certain groups whose capabilities have traditionally been suppressed and undervalued.

Many questions remain open, including the problems of change over time.

Madison: presenting a research agenda, and a paper written with Frischmann and Kathy Strandburg. It’s the empirical cousin of Frischmann’s theoretical project. An extended series of case studies of knowledge/information commons in the cultural environment. These cases are extremely diverse, widespread, and heterogenous—they borrow different features from proprietary markets, government subsidy, norms, etc. So categorizing them might help us figure out which drive good spillovers. They also exist at a variety of scales, nested within one another—you can look at microlevel examples like a specific academic conference or the cyberprof listserv, and scale that up to a department or a discipline or the concept of the research university.

Much of this has been studied before, but not organized in this way. Studies of patent pools, for example, which have a lot of attention from economists and economic historians; they’ve been analyzed for antitrust purposes, but not for how they work to produce spillovers that are fundamental to an innovation environment. We’re not trying to identify the set of variables that matter, but rather clusters of questions to ask.

Types of questions to ask: Do you have a commons/pooling arrangement/cultural construct that involves people contributing creativity/knowledge/cultural goods at the front end and then extracting value at the back end? Ostrom’s investigations of fisheries, grazing lands, and other natural resources have been foundational—the analogous move here is to find the resource. What is the baseline? Is patent law part of the baseline of the resource, or a cultural construct added in to a preexisting commons? That is, what is the default role played by copyright/patent?

What are the functional problems that the commons or pool is designed to solve? E.g., transactions costs; problems introduced by IP; collective resources that exist to manage interfaces between two adjacent systems of cultural production, e.g., the open source development community and the market-driven commercialized world. What are the cultural goods/rights being contributed/extracted? Who is participating in the commons structure, individually and institutionally?

What are the governance mechanisms of the commons itself? What are the rules and standards that define how materials get contributed to and extracted from the commons? Is there a historical/metaphorical narrative driving any of this? Much may be functional, but it’s possible/likely that there’s a traditional dimension. What are the legal structures surrounding this? The membership rules? The conflict resolution/sanctioning mechanisms?

The benefits of the system? The negative externalities?

The first step is to collect examples.

Rebecca Tushnet

Information commons theorizing I’ve been reading recently: Shirky, Benkler, von Hippel. Like these works, Frischmann, Madison and Strandburg say value isn’t where you think it is, isn’t created where you think it’s created, if you subscribe to standard economic theories of innovation.

The standard economic model assumes scarcity, but the theories that emphasize user innovation are more about an economy of surplus—the surplus is not in success but in attempt or perhaps in consumption (nonrivalrousness). There are nearly infinite points of failure for individual uses of roads, the internet, etc., where failure can be measured by any criterion you want, whether it’s informational, educational, market-based or what have you. When we speak of spillovers or downstream uses, we are often treating those failures as costless, or at least as the ordinary costs of attaining success for the few good downstream uses. If you want an evolutionary analogy, valuing the downstream uses is like the strategy of having zillions of offspring and having a few survive and thrive (r-selection), versus having a few high-investment offspring with individually greater chances of success (k-selection): both strategies may produce successful results for the population. And here’s an interesting tidbit from Wikipedia: “In unstable or unpredictable environments r-selection predominates, as the ability to reproduce quickly is crucial, and there is little advantage in adaptations that permit successful competition with other organisms.” Scarcity, or lack thereof, and stability intertwine.

In the information environment, open source (for example) has lots of failed projects, but that doesn’t mean that open source is a failure any more than, rats, say, are a failed species because most males don’t breed.

So I am interested in stories about individual failure as systemic success. This could help us get beyond a model in which open access types focus on individual successes, while detractors say that they’re unlikely. (Sturgeon’s law—90% of sf is crap, but 90% of everything is crap—extending the innovation environment drives the percentage of crap up, but doesn’t change the basic rule.)

Another variant of this question: What is foreground and what is background? Von Hippel and Shirkey focus on the relatively ungoverned producers and users, not the relatively governed products/works—the process more than the product. Individual organisms and/or species aren’t commons, nor does it necessarily help the analysis to speak of them in terms of a commons. There is very little coordination, very few rules, and a lot of competition between members of an ecosystem. Raises the broader question: how do people understand their roles in these systems of innovation and production? Do they need to be conscious of the theories that we think explain their behaviors, and if not, does it make sense for policy to promote any particular understandings?

Relatedly, and here I am very much in tune with Frischmann, is economic analysis the right language? I’m working on the difference between the concepts of incentives and preferences. Incentives are usually figured as external, and preferences are usually figured as internal but can also be shaped by interactions with others. Preference talk emphasizes individual variability, but I still find it a limited way to talk about creativity. What’s notable about individual narratives of creation, from open source software to fan fiction to modifying factory supplied equipment, is that they repeatedly and consistently mention two concepts highly resistant to economic analysis: addiction, aka obsession, and joy, aka love. When your producers are producing because they can’t not produce, is economic theory really your best explanation? It leaves off at exactly the point that is most important—and if you are concerned with dynamically encouraging the formation of more people who create, that’s a bad idea even from an economic perspective.

And this unpredictable, often inexplicable story of obsession and love brings me to a related point: Innovation is factal. Within each community—windsurfers, surgeons, chip manufacturers—user-directed innovation is vital. Identifying infrastructure as a tipping point for commons management seems either underinclusive or unhelpful in that by the time infrastructural status is clear interests in keeping it propertized will be entrenched.

Kristen Eschenfelder: She does case studies—why groups create various access and use norms for their digital IP/cultural property, and how it changes over time and why. The introduction of new tech vastly changes what’s possible.

Two stories: (1) 2-D public domain art. Subject of a vicious fight in the museum world. Resistance to openness comes from desires to maintain exclusivity, and a hidden labor narrative. People argue that they’re helping researchers/preserving culture so they deserve to be able to control images. (2) Digitized versions of Native American materials—photos, oral histories, etc. There’s a lot of interest in digitizing for access, but also worry about cultural sensitivity—in a lot of cases, this is stuff that the community currently doesn’t think should be recorded—photos that wouldn’t be taken today. Digitization would definitely advance scholarship, but could also lead to remixes that would be culturally offensive (and the scholarship might be too).

Madison: The historical point is really important—looking at pre-1990s is going to be vital; there’s an intersection between materiality and conceptual structures. The tangible, physical things are important features of information environments, both in the cultural goods themselves or the tools we use to get to them. Stability and dynamism intertwine—we need to look at specific instances.

Lemley: On the shaky use of “natural” anywhere here: We could imagine a world without IP, but the thing that we actually care about is the commons as it operates in the world in which IP exists, and changes in one regime affect the other. Perhaps unfortunately, it’s hard to treat anything as exogenous, whether tech or IP.

Strandburg: There’s no such thing as “the” commons. And there may be no universally useful place to stand as a start. The Ostrom approach rejects answering that question on a global scale. There are some places where IP is a key part of the structure, and places where it’s not.

Frischmann: We’re interested in pooling arrangements that are constructed against a background of patent, copyright, etc. However, a lot of constructed commons exist where IP is at best incidental to the system. This meeting: IP is functionally irrelevant even as a baseline.

Tarleton Gillespie: “Nature” is a dangerous concept because it makes changeability hard to see. Natural is also a key concept for the people who build the commons—not just the analysts. We need to have both conversations, one assuming that everything is up for grabs and one more “practical” in terms of accepting existing structures.

Pam Samuelson: She’d like to see a mapping of the commons similar to what she did with mapping of the public domain. That would give us a richer vocabulary for analyzing and comparing commons.

Strandburg: That’s pretty much the Ostrum project: what are the axes of analysis?

Gillespie: But we don’t want to start with prefab categories derived from ontological assumptions. One STS solution: actors/categories—look at who calls themselves a commons. Wittgenstein’s family resemblance—there’s probably something there, however messy. Another: what work is being done by calling something a commons? Authority, legitimacy. Third: as you develop axes, having chosen groups, you then identify components from the groups; then you’re allowed to ID other groups that do the same things even if they don’t use the language. You then ask what work it does to not call something a commons (e.g., calling it a standard-setting organization).

Mario Biagioli: The person who can’t not create can be conceptualized as purely a genetic mutation—it just happens. The intellectual mulch is just there to be used. He wouldn’t necessarily use these metaphors—but cultural environmentalism could. Mapping is a good idea, but when people start mapping out little variations, we are doing natural history. It doesn’t get to the crucial issue: what’s the relationship between this thing called the commons, which is understood as culturally constructed, and this thing called the public domain, which is most of the time understood as natural? We are naming that which we don’t know how to explain (commons as “coconstructed”).

Dan Burk: Don’t forget translations: the word “open” can be different in different languages.

Lemley: Example: “copyright” is “author’s right” in other languages. (Comment: The Organization for Transformative Works is similarly having interesting debates over how to translate “transformative.”)

Gillespie: Methodological risk: if most of your case studies come from people who’ve been working in an economic lens, will you be able to get past that when you analyze patent pools? An STS answer: send students out to do case studies themselves.

Biagioli: What’s the added value of “commons” over infrastructure, if what you’re interested in is the value of infrastructure?

Frischmann: It’s connected but different—when he writes about infrastructure, “commons” means a rule of nondiscrimination among uses or users. It’s a narrower definition than that in the project here. Commons is not necessarily collective in the infrastructure context.

Lemley: Frischmann is really interested in cases where people opt out or change the rules of existing IP regimes.

Burk: Most of society functions in terms of various types of collectives—we don’t worry about my copyright, my trade secret, my attribution of things I said at the cocktail party. IP is a very odd exception to the general rule—the project is huge because it’s looking at the rule and not the exception.

Recent reading: standing

Robert C. Bird, The Impact of Legal Standing Rules on Deceptive and Legitimate Advertising Activity: Two parts of this article don’t quite cohere into a whole. If your concern is that private plaintiffs will sue too often in order to crush competition, what good does it do you to have a standing rule limiting access to the courts to direct competitors only, who you’ve just identified as the primary bad guys?

recent reading: California's true name law

Excerpts (footnotes omitted) from Brian McFarlin, From the Fringes of Copyright Law: Examining California's “True Name and Address” Internet Piracy Statute, 35 Hastings Const. L.Q. 547 (2008):

In 2004, California Governor Arnold Schwarzenegger signed into law California Penal Code section 653aa, which became effective on January 1, 2005. Under the statute, anyone located in California who, “knowing that a particular recording or audiovisual work is commercial, knowingly electronically disseminates all or substantially all of that commercial recording or audiovisual work to more than 10 other people without disclosing his or her email address, and the title of the recording or audiovisual work” is guilty of a misdemeanor.

. . . . ISPs that enable their users to share files are also exempt if they keep their email address or other means of electronic notification on their website. It is noteworthy, though, that there is no specific exception for fair use of the copyrighted material as there is under federal copyright law.

A stated purpose of the statute was to “allow state law enforcement authorities to pursue copyright violations, since the vast majority of individuals who are using P2P networks to violate copyright law are unlikely to comply with the bill's true name and address requirement.” In short, legislators were attempting to build a trap for the unwary designed to allow the state to essentially enforce copyright law in state courts.

I’d never heard of this law, but it would make a great exam question.

Attorney ads lead to SLAPP suit; anti-SLAPP motion succeeds

Simpson Strong-Tie Co., Inc. v. Gore, --- Cal.Rptr.3d ---, 2008 WL 1886602 (Cal. App. 6 Dist.)

An opinion with some very broad language rejected claims against an attorney who sought to draw clients by warning them about potentially defective products. Defendant ran the following ad in two local California papers:

ATTENTION:

WOOD DECK OWNERS

If your deck was built after January 1, 2004 with galvanized screws manufactured by Phillips Fastener Products, Simpson Strong Tie or Grip Rite, you may have certain legal rights and be entitled to monetary compensation, and repair or replacement of your deck.

Please call if you would like an attorney to investigate whether you have a potential claim: [contact information]

Simpson sued defendant Gore and his firm for defamation, trade libel, false advertising, and unfair business practices. Defendants moved for dismissal under California’s anti-SLAPP statute. The trial court granted it, and the appellate court affirmed.

Background facts: galvanized screws are risky to use with modern pressure-treated wood, because the chemicals tend to corrode the screws, which can cause serious problems. The metal and coating for a screw should be carefully matched with the wood for a deck. Simpson can’t control what people who build decks do, though it warns about this issue extensively in its materials.

Gore saw three local news reports suggesting that owners of recently built outdoor decks were at risk of premature failure and collapse because new pressure treatments for wood were more corrosive than earlier versions. His research included conversations with a Contra Costa County District Attorney’s inspector who’d in the news reports. Once he learned about a Massachusetts lawsuit against another manufacturer of galvanized fasteners, he ran the ad. To date, he hasn’t filed suit against any manufacturer.

Simpson argued that its claims were exempt from the anti-SLAPP statute because of the recent amendment excluding claims (1) arising from representations of fact about the speaker’s or a competitor’s products or services, and (2) statements made in the course of delivering the speaker’s products or services.

Plaintiff had the burden of proving its claims fell within the exception. Though courts have referred to the exception as one covering “commercial speech,” it’s not that broad. The defendant has to be a person primarily engaged in the business of selling or leasing goods or services (which defendants were) and the statement has to be addressed to or intended for an appropriate audience (which it was).

The statements, however, were not representations of fact about defendants’ or a business competitor’s operations, goods, or services, though they were made for the purpose of promoting defendants’ business. Rather, the statements related to plaintiff, and plaintiff isn’t a competitor. Plaintiff argued that the ad represented that defendants had investigated the named companies, and thus made factual representations about defendants’ services. But the court disagreed—there was no express or implied statement about any investigation. “Some readers might surmise that Gore conducted an investigation. ... Some might fancy he was making things up out of whole cloth. Reasonable readers would refrain from any such speculation, since the advertisement affords no basis for it. The statutory exemption does not extend to every statement that might precipitate unbridled guesswork about the speaker’s business-related activities by unusually imaginative readers.”

Moreover, even if the ad had reported an investigation, the claim would not arise from the statement about the investigation, but from the statement about its results, which targeted the plaintiff. Without competition, there was no exception.

The other alternative for applying the exception would be if the statement were made in the course of delivering defendants’ services. The court ruled, however, that advertising for clients does not constitute delivering services for purposes of the anti-SLAPP statute. Advertising, like buying inputs, is a typical component of running a business, but that doesn’t make it delivering services. The court distinguished this case from a hypothetical in which a lawyer made a phone call “on behalf of a prospective client by whom he had not been formally retained.” But that would be delivering services to a prospective client, not seeking business from that client.

The court went on to hold that rejecting the exemptions in this case was entirely consistent with legislative purpose; indeed, “it would be absurd, if not perverse, to grant Simpson the shelter of the statutory exemptions.” This is so because the exemptions were enacted to combat “the growing use of anti-SLAPP motions by commercial enterprises seeking to impede or obstruct litigation brought against them by public-interest or consumer class plaintiffs.” The legislature concluded that meritless anti-SLAPP motions, which are immediately appealable and can take up to two years to resolve, were being used “‘as a litigation weapon,’” turning the law on its head. “[S]ince a SLAPP suit depends for its effectiveness on the economic burden and risk it imposes on the defendant, the concept has little if any application to actions against large commercial enterprises, which ‘have far greater resources to defend themselves when sued, and as a group are far less likely--or not likely at all--to be chilled in the exercise of their First Amendment Rights.’” This was a classic SLAPP suit.

Thus, to proceed, Simpson had to establish a probability of prevailing on the claim with a sufficient prima facie factual showing. This required Simpson to show a provably false statement of fact; statements that are substantially true are not false. Only if the “gist” of a truthful statement would have been different can there be defamation. The gist is to be assessed from the perspective of an ordinary observer.

Simpson argued that the ad was provably false because Simpson gave ample warnings of the risk of misuse of galvanized screws with pressure-treated wood. Thus, there could be no failure to warn claim, and therefore no product liability, there being no indication of any design or manufacturing defects. The court rejected the idea that the ad would only be true if Simpson could be held liable in a products liability suit. To the average newspaper reader, “defective” is not a term of art but a common word.

Moreover, the court held, the gist of the ad is not that the screws are “defective,” a word absent from the ad. Rather, the ad indicates that some of Simpson’s screws were unsuitable for use in certain decks and people who used them might have a remedy against someone. This isn’t provably false because (1) it’s not substantially different from the truth as Simpson puts it; (2) it’s explicitly a possibility; and (3) in speaking of legal rights, it’s “explicitly predictive and thus cannot be understood to assert a proposition of fact because it is almost universally understood that no one knows the future.”

The court used some rather strong language on this score:

[W]hen a prediction is not borne out by events, we do not ordinarily characterize it as false, but as inaccurate, meaning only that it missed its mark, as an arrow misses its target. This linguistic difference reflects the universal understanding that the future does not exist. Like anything that does not exist, it cannot be spoken of in factual terms, but only in suppositional or probabilistic ones. In general, therefore, a prediction of future events is intrinsically incapable of conveying a provable (or disprovable) assertion of fact.

Comment: predictions can be statements of fact when they come from a person who has reason to know. A lawyer who advertises “I will get you your money” is making a prediction, but could easily be subject to attorney ad regulations. But this ad wasn’t that explicit. Indeed, the court also noted the ad’s reference to “investigat[ion]” of “potential claims.”

As such, the ad didn’t imply any facts, but rather a possible state of fact subject to the contingencies of (1) investigation and (2) litigation. “A statement will not ordinarily be deemed factual when it is ‘cautiously phrased in terms of apparency’” (citation omitted). Once again, the court used strong language, followed by a retreat. The ad uses the word “may”:

An assertion that “X may be Y” posits only some possibility that X is Y. Such a statement is true so long there is any possibility that X is Y. To prove it false, one must establish that X could not be Y. That is why one who speaks carefully will concede almost any proposition couched in terms of “may” or “might,” perhaps with a grudging, “Anything is possible.” Here, insofar as Gore’s advertisement conveys the assertion that users of its galvanized screws “may” be entitled to legal relief, proof of literal falsity would require a demonstration that no reader could possibly be entitled to any relief, from anyone, on any theory or state of facts.

By its nature such a burden is practically impossible to carry. (emphasis added)

Stopping there would have made any sort of defamation practically impossible to prove: e.g., “my enemy may be a child molester.” But doctrine makes clear that statements of opinion may be the basis of liability where they imply knowledge of additional undisclosed defamatory facts.

Thus, the court analyzed the specific statements at issue here. Simpson’s own literature established that the choice of correct hardware was difficult. “It would be astonishing if no deck owner or contractor used galvanized hardware in a situation where it created a danger of property damage and even personal injury.” Even assuming without analysis that Simpson was completely shielded against liability, deck owners could have viable claims against others involved in the deck construction process. “It would therefore be astonishing if it were not substantially true, and indeed literally true, that some readers of the advertisement might be entitled to legal relief. Indeed, it would be highly surprising if none of them were in fact entitled to relief.”

Moreover, the ad conditioned any potential claim on further investigation. Rather than implying defamatory facts, it directly implied that defendants didn’t know, and needed further investigation to come to a conclusion on, whether Simpson or anyone else was liable.

Simpson also offered a consumer survey of Lowe’s Home Improvement shoppers on the issue of harm. The results indicated that the ad decreased respondents’ ratings of the quality of Simpson screws, increased their estimate of the likelihood that the screws would be “defective,” and decreased their willingness to purchase the screws.

Remember how defamatory meaning was supposed to be assessed from the perspective of a reasonable observer? As it turns out, survey respondents don’t count, only judges:

The requirement of a provably false assertion of defamatory fact is grounded in the constitutional entitlement to speak truthfully. That entitlement is not subject to defeasance by plebiscite, let alone by private opinion survey. It is for the courts, as guardians of our constitutional liberties, to say whether a statement is the type that will permit a judgment for libel. That function cannot be delegated to anonymous citizens questioned by anonymous interrogators in public parking lots.

The rhetoric here is stirring, except that it contradicts the idea that defamation depends on whether average observers believe that something defamatory has been said. This contradiction isn’t uncommon, but it’s rarely exposed so starkly by the presence of a survey.

Naturally, the court also had multiple criticisms of the survey itself, finding the questions nebulous; the possible answers unhelpful; and the context (interrupting one’s shopping/errands to answer an unrelated survey versus choosing to read an ad in a newspaper) unlikely to encourage comprehension. Note here the resurgence of the idea, rejected in advertising law for many years, that surveys are hearsay: “The law rightly mistrusts leading questions. It should not trust them more when they are posed out of court by anonymous interrogators to unsworn anonymous declarants.” I am not arguing that the criticisms of this survey were invalid. Rather, the court also made judgments that go to the relevance of all surveys, and that’s a bit more problematic if we think (which we might not) that defamation is about audience perception.

Anyway, without a provably false assertion of fact, the libel, trade libel, and unfair business practices claims failed.

Simpson also argued that defendants falsely advertised their own services by implying that they’d investigated the companies named in the ad and discovered that those companies were selling defective screws. The court concluded that the second part (discovery of defect) couldn’t reasonably be attributed to the ad, while the first part wasn’t false—the ad says Gore is a lawyer and that he’ll investigate potential claims by people who call him. Thus there was no false advertising claim.

IP without IP part 4

Session IV: At the Boundaries of IP (II): Between Tangible and Intangible Property

Cori Hayden & Alain Pottage

Pottage: Like software, norms need their own kind of maintenance.

In plant patents, courts initially required evidence that a cutting had come from a particular plant. Why was this problematic? It was a failure of normative production—an inability to incorporate a particular kind of industrial product within the patent scheme. There was a failure of description, highlighting the problems of the tangible/intangible divide and the ways in which IP doesn’t fit into either category. The plant right is in something that exists as a platonic ideal and that can be fixed in any number of instances without being used up.

Recent example: the automation of IP, in which the right is written into the genetic template. When you reproduce the thing you reproduce the right. Law is transcribed into new (old) media, in this case, biological media. This breaks down the distinctions on which patent law depends.

Hayden: She is also interested in how distinctions become materialized through law. Often we fetishize the notion of creativity or innovation as the goal of IP. We can also define what IP does by saying that IP, particularly patents, tells us what a copy is, and gives us the line between a proper copy and an improper copy.

There was a major Mexican initiative to increase the use among consumers and prescriptions by physicians of generic drugs. There are a number of copied drugs on the Mexican market that are all legal in that they don’t infringe. They’re defined against the original, but also in relation to each other: Generic; interchangeable generic; branded generic; similars. Generic and interchangeable generic are different in Mexico—different proofs of equivalence (chemically v. biologically equivalent). Branded generic has someone’s TM. Similars are a commercially popular category with no regulatory equivalent; what they are is hard to pin down—the generics sold by a popular pharmacy, Farmacias Similares. They popularized the notion that you can buy a cheaper substitute for a well-known drug.

But FS lost control of the semiotics of similarity and substitutability. The narrative: “It’s the same, but …” FS slogan: “the same, but cheaper.” A different slogan: “the same substance, but cheaper.” Another: “it is equal, but more economic.” Replicating the drug and the syntax. There is repeated use of “similares” as a term for the local pharmacy, whereas FS is “Simi.” What similarity means is highly contested, both commercially and by regulators. Side effect: FS declares there are only three types of drugs—innovators, interchangeable generics, and generics—it advertises that “similars” don’t exist. There is a battle to establish which is a “good” copy, not legally but in terms of quality.

The government is setting up as interchangeable generics as the only proper standard—bioequivalence, not just chemical equivalence. Similars always fall to the bottom of the contest for the best copy, even though similars don’t exist and even though they’re always one of the other kinds of copies as well as being similar.

(Comment: This is not a Mexican issue alone. There is a huge battle in the US over exactly the same debates for drugs where, for one reason or another, the generic versions didn’t follow the modern ANDA procedure.)

Debate in Europe and US over whether exact copies of biologics are possible when the biologics go off-patent. Thus we get a parade of terms to talk about the thing that is made after the patent expires: biosimilar, biogeneric, follow-on protein, follow-on biologic.

What does it mean to think about similarity as a mark of distinction—a mark you want to distance yourself from/a mark you want to achieve? Similarity is then not a mark of innovation, but of sameness. (Sweat of the brow? Reminds me of the skill debate over Bridgeman v. Corel.)

Generic is usually treated as a term that means lack of difference, but all sorts of differences are appearing at the moment a drug becomes “generic.”

Coombe: Hayden has shown that there is no such thing as the undifferentiated public sphere—there are major hierarchies of value. This is an opportunity for branding. The IP impetus is strong; this is not a place of freedom but of different constraints.

And then I had to leave. Thanks so much to the conference organizers!

IP without IP part 3

Session III: At the Boundaries of IP (I): Traditional Knowledge

Rosemary Coombe & Peter Jaszi

Jaszi: If you have a new scheme, who gets the rights? One notion: take traditional understandings of the allocation of authority and apply them in the new legal regime. That’s now formally represented in the WIPO draft guidelines for traditional cultural expression/folklore.

Jaszi told a story about a traditional fishery management scheme where the managers (a local adat council in Indonesia) told him about effective measures used to prevent overfishing by locals. He asked what they did about outsiders, and they thought of it as entirely outside their remit. He now asks whether it makes sense to translate a traditional scheme that was purely internal to legal rights against the rest of the world, which was never part of the tradition one way or another.

On the whole, local adat regulation without any statutory regulation did a pretty good job of protecting the boundary between the secret and the public. His argument applies to public and disclosed traditional cultural expressions, not secret ones.

Coombe: She is engaged in a meta-ethnography regarding marks that designate origin. She rejects the idea of tradition as something that precedes IP. Tradition comes into being through networks of attention, in negotiation with IP and international governmental regimes. It’s called upon to recognize and reify itself in response to larger pressures.

She’s especially interested in how weird versions of IP are deployed in the service of particular values, and positioned in relation to other human rights.

Concerns for gender, class, generational, etc. equity. You can’t expect IP to do everything, but it should be subject to the same analysis as other regimes that govern social accumulation.

Marks certifying sustainability are starting to proliferate. They’re trying to restructure market incentives to achieve social aspirations—linking environmental and equity concerns under the rhetoric of sustainability.

You always have to ask about the regulation of such terms. The Peruvian government is using these marks in a completely cynical way, destroying communities by creating conflicting interests and encouraging modern ceramics. For tequila, the GI used to encourage monoculture, destroying other crops; now they’ve begun GIs for other forms of mezcal and revitalized varieties that had previously been nearly extinct, creating new economic enterprises. There are success stories—including museums for learning about the different histories of agave cultivation. It’s a rural development project—a lot is being built around a fairly thin IP protection.

Gordon: From what she knows of GIs, she thought that they don’t require a particular quality—making something absolutely identical in the wrong place, it’s not allowed to use the name (e.g., feta). She thinks that Coombe’s optimism about the effects of GIs, when done well, is leading her to exaggerate how much sense they make.

Coombe: She disagrees—a GI is a word you use when a product has characteristics that are uniquely tied to the area or the producers.

Dreyfuss: but how do you tell? She thinks (the beverage sometimes known as) champagne tastes the same no matter where it’s from.

Coombe: The ones she’s interested in have extensive quality controls.

(Benkler put up a news story about residents of Lesbos objecting to the use of “lesbian” by a gay rights group.)

Jaszi: the label gets us confused, pushes us to classic European IP categories which may not always have the same meaning in new places.

Coombe: Even the TRIPs definition is very confused.

Sprigman: Doesn’t like the Euro. view, which is an attempt not just to prohibit the use of “roquefort” on Maine cheese but to prevent “roquefort-style.”

Coombe agrees this is nuts, but thinks that GIs can provide development opportunities. One of Sprigman’s examples, in which development in Portugal is opposed to development in South Africa, illustrates her point: we need to assess the equity components by building in distributional considerations.

Dreyfuss: The Europeans don’t believe that cheese from Maine can be roquefort-style—there is a public-regarding function to keeping the word from being more generic.

Sprigman: But different champagnes taste different—it’s a method, not a thing. So what are the French complaining about?

Dreyfuss: They’re afraid the meaning will change, and it will be less good at doing what words are supposed to do. (Comment: the problem is that there’s no necessary connection between the halves of that sentence. Words change meaning all the time, and still do what they’re supposed to do. We have standards for judging when the change in meaning has been harmful instead of just different—many of them provided by George Orwell. If there really aren’t differences between Maine feta and Greek feta, then the GI is a lie, and people will wrongly treat them differently. Fred Schauer’s writings on the meaning of discrimination come to mind.)

Jaszi: In many places, traditional artists are afraid of competition from nearby, semi-mechanized production. That raises strategic questions.

IP may always be a bit of a sideshow—what else will government do to support these practices? That’s often what’s missing—funding, market access, etc.

Coombe: True, but people who come up with non-IP solutions usually offer contractual solutions that look just like GIs.

Biagioli: Interesting that here there is no author at all, for the first time in IP.

My comment: From the discussion, I have the thought, which is far from original, that the argument for GIs is not about information at all. The European rule is designed to keep consumers valuing—or really, not even knowing that they are valuing, just presuming it in the background—the idea of local production, regardless of any effects on tangible or measurable qualities.

Oliar: The goal of GIs is not consumer information, but preserving certain types of production. It doesn’t make any sense from a TM perspective to say that anything made in Scotland is Scotch, or that you can’t advertise “roquefort-style.” If your goal is encouraging sales of products produced by disadvantaged groups, it would be even better to say that no one else can make that particular cheese. (Copyright/patent, not TM.)

Participants talked about this proposition for a while. Framed this way, the argument for GIs sounds a lot like a classic tariff/barrier to trade, whose distributional effects are highly debatable because of the efficiency costs (not to mention the effects on other groups that would like to make the cheese and might have distributional claims of their own).

IP without IP, part two

Session II: Norm Development

Chris Sprigman & Kathy Strandburg presented a bibliography on norms in IP.

Strandburg is interested in the change of norms over time. In academic science, there’s been a shift to “ignore patents” more consciously, whereas material transfer is subject to very different, stringent rules.

Sprigman has done research on the fashion industry; fashion designers have their own myths (if I make 4 changes in a garment, it’s ok) and it doesn’t matter so much what the actual law says, because the industry behaves according to its norms.

New work: Sprigman & Oliar are writing on the norms of standup comedians. They don’t settle disputes with copyright law, for doctrinal (difficult to protect jokes) and expense reasons. So they do it with norms.

How do communities that have their own norms deal with other communities? Strandburg recommends Siobhán O’Mahony and Beth Bechky, “The Role of Boundary Organizations in Managing the Problem of Incommensurability,” submitted to Administrative Science Quarterly, May 2007.

Sprigman: Most of the papers to date employ some sort of rational choice, behavioral law and economics, game theory, or other law and economics model. Are there other ways to look at it? Towards what end is this research directed? He was thinking of a bunch of case studies that would show a great deal of heterogeneity in using IP’s negative space, operating outside formal IP for different reasons—history, inherent suitability, one powerful actor’s decisions, etc.

Strandburg: Questions to ask: what’s the background? Is there no protection by default (fashion) or high protection (open source software)? Who belongs to the communities and how do they draw membership boundaries (professional characteristics, participations)? Are roles differentiated—leaders/members; jamband bands/audiences? What is shared (tacit knowledge, cultural goods), and on what terms? Is reciprocity required? Are things shared horizontally, among people who reach a certain level (example: French chefs), or vertically with everyone? Does a group share its results or keep it within the group (magicians)?

These are questions of governance; we’re not talking just about IP law, but contract, licensing, structures of leadership within a community, etc.

Rosemary Coombe: The concept of moral economy, in use in fan culture studies, has a history that ties it to real property. Moral economies emerged in the shadow of laws governing real property, but ultimately affected the formal doctrine. How will these norms filter back into formal law? Instead of negative space, let’s think of these as dangerous supplements. Is there a doctrine of estoppel? Adverse possession?

Strandburg: A community can sanction its own members. What happens when it starts dealing with other communities, or “trolls” who reject the community and can’t be sanctioned from within? That’s where law can support norms. The difficulty is that if you have such heterogeneous systems, the question of how to support them with law is tricky.

Coombe: Real property managed to do it; why not IP?

Sprigman: IP law is structured as a top-down high-level theory, subjecting very different creative practices to pretty much the same rules. Even divergences (music compulsory licensing) are generally the result of history—fear of monopoly—rather than a belief that the relevant communities had norms and practices that deserved special treatment.

Strandburg: Michael Carrier has a paper comparing IP and real property law limits.

Benkler: Peter Jaszi’s documentary filmmaker project is a way of mobilizing norms to speak to law.

Rai: Keep in mind that norms are inherently unstable. Studying them doesn’t fix them.

Strandburg: And that’s probably a good thing, since they’re so dependent on technology.

Wesley Cohen: How do we know they’re unstable?

Rai: Increasing secrecy w/r/t scientific materials; secrecy in the 1960s v. secrecy now.

Oliar: Anticopying norms among comedians have emerged over time. Law is dynamic too; why be bothered by instability?

Sprigman: It doesn’t bother him, but it is a salient feature. In vaudeville, people appropriated like mad, and neither law nor tech could help. Modern comedy is so personalized that copying is harder, and frowned on.

Kevles: Tech changes the norms, now that comedy can reach more people.

Sprigman: Yes, tech matters, but so does the nature of the comedy—Henny Youngman’s jokes about mothers-in-law are interchangeable in a way that Sarah Silverman’s aren’t. What is causing the shift in comedy? Hard to tell, but there’s a coincident shift to “branded” jokes along with the penetration of technology to disseminate once-local comedians.

Strandburg: IP law seems particularly slow to change. We need to focus beyond IP law; once we start thinking about different communities and governance, a lot of other law is implicated—contract, competition—and might evolve more quickly than IP law.

Biagioli: Communities inevitably mix up—we should toss “community” out of the toolset and think instead of networks and clusters rather than bounded entities.

Sprigman: You’re coming from scientific research. What about musicians—same argument?

Biagioli: Absolutely. You’re dealing with overlapping groups, clusters of people who believe they are the community but that community disappears as soon as things get contested. The boundaries of the nation are nice and tight until the war starts.

Strandburg: Actually agrees—networks are a good way of describing things. Some things are densely connected—what we might call a community—but members are also generally loosely connected outside of their dense connections as well. “Cultural commons” is a possibility—not about the people who belong, but the material/resources being shared according to certain rules.

Christopher Kelty: But then what are norms from?

Biagioli: Norms do emerge, but not from a bunch of people with a boundary around them.

Oliar: One thing about norms is that people are sanctioned for violation. If there’s no community that sanctions, there’s no norm.

Benkler: People do things to others that are painful and unpleasant. When they understand themselves to be enforcing norms, that’s where there’s a norm.

Dreyfuss: People do care about expulsion from some groups—magicians, chefs.

Biagioli: That has to be specified in each case, though. What do they care about and why?

Suzanne Scotchmer: What would lead us to believe that the norms that emerge informally are good ones? Have better norms ever driven out worse ones?

Strandburg: We have antitrust to deal with norms that are great for the people who adhere to them, but not for the rest of us. Also, people with power routinely violate norms, but they remain norms for other people.

Fiona Murray: People evolve their views both consciously and unconsciously. She’s had a lot of scientists tell her in great detail why the research exemption for patents allows them to do exactly what they want to do.

Gordon: Varieties: There are communities where the members distrust outsiders and don’t want them to use the same norms. Comedians may have simple rules (jokes are owned by one person forever) but novelists and poets have much more complex takes. A moral system is one in which many sanctions are self-administered.

Peter Jaszi: Orphan works legislation raises the issue of what is a good enough search. Whether communities ought to be able to form their own norms is in political contention right now.

Sprigman: Consumers and producers will have different norms in orphan works. The RIAA wants a forum, the Copyright Office, where it has more power to set the norms—this is a danger of moving to formal law.

Kevles: Told a great story about the attempt to control the sale of apple varieties. The proprietor tried to control dissemination of apples by contract, but some people refused to abide by the contract. Ostracism by major organizations didn’t help. Result: the proprietors lobbied for and succeeded and getting a plant patent act. Norms reflect and serve the interests of the people who hold them. Other people have other norms: why should you own this apple? Sanctions don’t work.

IP without IP, part one

IP Without IP: a seminar at the Radcliffe Institute for Advanced Study led by Mario Biagioli & Rochelle Dreyfuss

Rochelle Dreyfuss asked us to talk about issues in IP’s negative space—the many examples where IP rights don’t apply. Over time, she’s been convinced that such examples pervade production all over; they aren’t just limited to academia and publicly funded research. Among the questions: Authors and composers used to work in IP’s negative space, and lobbied very hard to get rights. Are the people who work in IP’s negative space truly volunteers? What are the problems with negative space? Also, how fragile is negative space—can it be easily destroyed?

Session I: Informal and Sequential Collaborations

Arti Rai

Synthetic Biology and Sequential Innovation

Most biotech firms claim a need for patent protection to get VC funding. But in academia, patents aren’t playing the same role. Theme: the interaction between negative space and formal IP, working in parallel in the same area of endeavor, as in software. People who are involved in “biobricks” open regimes are also involved in entrepreneurial endeavors, trying to make money in some areas.

Synthetic biology—some might call it genetic engineering on steroids; the genetic engineering of the past didn’t involve standardized parts, but synthetic biologists hope to fit segments of DNA and RNA together in a predictable way on a standard chassis. Biologists traditionally reinvent the wheel every time they have a new task, and much knowledge is tacit. Synthetic biologists want to be engineers, treating their parts like Legos that fit together.

One example: genetically engineered bacterial systems that change color in the presence of arsenic. Another: a cheaper way of producing the malaria drug artemisinin in bacteria and yeast. A company: Synthetic Genomics—its goal is to develop clean fuel from cellulosic ethanol and algae.

On the academic side, an attempt to create a registry of standard biological parts, and have the parts be open. These DNA sequences probably read on lots of patents. There are about 16,000 US DNA sequence patents and a whole lot more genetic patents. But academics don’t much care about that, and so far there hasn’t been a problem. Generating parts to put into public domain in part through international competitions. Last year, 700 students from 20 countries—you have to commit to put your results into the public domain.

Will the public domain be enough to avoid patent problems? Will people attempt to patent small changes? It’s the same problem the GPL tries to avoid in software. BioBricks (great url: openwetware) has a draft open-source license requiring you to make “freely available” (undefined) information about all the BioBrick components in a product you make. The draft wasn’t written by lawyers, so there are many ambiguities. The lawyers are looking it over now, though. The Samuelson clinic did interviews with stakeholders—they were worried about any viral component; concerned with the definition of an improvement that would be covered by the license. So far there have been 150 licenses, but no improvements given back.

At the same time, the BioBricks founder also has the for-profit Codon Devices company, which has many patents and has litigated against competitors. This is the hardware on which these parts would be produced. The more parts produced via open source, one could argue, the more business Codon Devices gets. This is similar to IBM’s promotion of Linux. It provides us a microcosm of the difficulties of negative space.

Note: Given my limited technical background, I missed many nuances of the comments specific to synthetic biology and the patent law applying to it.

Rebecca Tushnet: I’m interested in works created based on other copyrighted works circulating in the formal economy. As law professors, we’re attracted to political remixes, but some of the most fascinating work is going on in cultural critique and remix.

Research questions: the relationship between noncommerciality and content. Benkler has written about the crowding out effect that payment can have on voluntary provisioning. The classic example is the blood supply, and the thing I want to focus on here is that when you pay for blood you get worse-quality blood: different people give blood for free versus for pay. When you translate that to creative works, you get different works, though quality becomes a harder thing to define.

I am interested in unpublishability as a virtue—the freedom to be anything, including the freedom to be bad, as fan scholars have said. It’s much easier to produce short-form content for free than to get paid for it.

Incentives v. preferences: Though both terms are unsatisfactory, the first is worse. Copyright’s standard model is that you need exclusive rights to get creative works: copyright is necessary and sufficient for creativity. But really people are impelled to create; they have a preference to create up to the point at which they are somehow made to stop.

The economy of desire: what does it mean to operate in a non-scarcity economy, of 300,000 fan fiction stories about Harry Potter? Lewis Hyde has written about art as a gift. By giving away the artwork, you access further creativity and become more of an artist.

The gift economy is tied into the social meaning of money, as explained by Viviana Zelizer. A friend of mine received a notice from YouTube that a music company had claimed rights to the audio in her video, and they wouldn’t take it down but they would run ads next to it. How does it change creativity, if at all, to have a music company standing over your shoulder?

Exploitation: Does working in noncommercial forms keep women poor? This is a key question—I don’t think it does, ultimately, but it’s important not to discount the issue of who gets paid and who doesn’t for the same or similar kinds of work.

Wesley Cohen: Negative space as a concept suggests mutual exclusivity. But nonpecuniary incentives/motives interact with more conventional incentives. Recent work measuring 11,000 scientists and engineers working in R&D shows that intellectual challenge is a huge motive. Desire for salary is associated with positive productivity, but intellectual challenge is blazingly important to productivity, meaning there’s more result per unit of work, not just more work. There isn’t crowding out. But what if you eliminated all pecuniary advantage; what would be sufficient to generate results? (He doesn’t believe his data can answer that hypothetical.) Is negative space really negative?

Benkler: Perhaps intrinsically motivated people are working under conditions where monitoring is impossible (e.g., thinking about the problem in the shower), whereas nonintrinsically motivated people are working only to the monitoring level. So you don’t need psychology at all.

My comment: You don’t need psychology only if you don’t care what it means to have “intrinsic” motivation, where it comes from, how to cultivate it. A dynamic account of production probably needs a thicker theory of intrinsicness than just positing it as a variable. (Benkler clarified that yes, he cares about psychology.)

Wendy Gordon: What makes for gift failure? Law and economics people get you to think about market failure because markets are their starting point. So why not ask what makes for an unsuccessful gift regime? Here’s a brief list: reciprocity is lacking; your preferences are different—for money, or not for sharing, or not for feedback; gift economies usually need side economies for money (as with the Christian European treatment of Jews, who provided money and were disdained for it); people who don’t get a kick from being outside the system; the thing that needs to be provisioned is boring; someone works as an isolate; someone’s day job cannot support this extra gift-giving.

My thoughts: Absolutely. What we have is not so much negative space as a circuit pattern, where threads of commodification penetrate gifts and vice versa. And people without power have trouble in both formal and informal systems—African-American artists were treated horrifically by the music industry, but that doesn’t mean that they would have been better off in a pure gift economy. Sometimes we should use examples of power problems in creative works to develop ways to change non-IP law and norms.

Fiona Murray: People think they can have a boundary around sharing with academics and then another boundary in commercial space, and it’s just not as smooth as they think it can be.

Chris Sprigman: For a sculpture, the space that it doesn’t fill can be key to understanding the space it does fill. Areas that formal law doesn’t reach may be structured by formal law, just not regulated by it.

Comment: Tipping/network effects are very important. The investment in the part is mainly in sanding it and fitting it to others—knowing how to make it work with others. You make one drug at cost out of these modular parts, and the next project costs 20-30% less because you know how to work with them. Berkeley now has a multimillion-dollar deal with BP to develop projects in this area, without an open parts clause (mostly by inattention). It’s not clear what BP’s incentives are—it might be more a consumer of parts than a producer. Berkeley has capped its own royalties per year, which means its incentives to claim all rights are limited. The individual scientists doing the research might be comfortable being merely very rich rather than obscenely rich. As a result, there’s an opportunity to tip the market towards open parts. There’s a lot of public money in Berkeley’s deal; maybe we should demand open parts as a matter of public policy. At least Bill Gates had the decency to build his monopoly with private shareholder money.

Rai: The goal must be maximum transparency to get others to adopt your standard—getting implicit knowledge out of the system is part of the point.

Comment: The current BioBricks strategy is to be toys for academics; they don’t want to know the IP status of their parts, which is all well and good for academics but won’t work when you start to commercialize, especially at the multibillion-dollar level.

Rai: Yes, when the Samuelson students interviewed businesspeople, they were immediately concerned with the third-party rights being infringed.

Biagioli: He is a recovering gift economist, since it’s so prominent in the history of science. Everyone talks about Hyde on text, but one step behind Hyde is the ethnography on which he draws—Pierre Bourdieu, Marilyn Strathern. Looking at those, the gift economy is a construct of those who believe in the economy. Bourdieu: gifts can’t be returned too quickly, otherwise they’re working like payments, which is inappropriate; gifts can be completely ruinous, as a potlach—the arms race between the US and the Soviets that bankrupted the Soviets had the same form. The gift economy is not an economy, but a series of practices labeled as such by those who come from the world of “the economy.”

Gordon: Of course you’re right. The background is much more complex. Women tend to be used as gifts. But Hyde is trying to describe a particular kind of gift system. A cultural gift economy may be quite different from the gifts in science.

Madhavi Sunder: One big question is how small the building blocks that are open are—if they are atom-like, then there’s a lot that can be commercialized when you build bigger things with it.

On the gift economy: the issue of choice is very important. Do people have the choice to move in and out of the different economies? To what extent are we talking about incentives in the context of the work, or are we talking about the participatory aspect that we want to encourage (in some ways regardless of what people actually produce)?

Eric Von Hippel: There’s a distinction between the incentive to innovate and the incentive to contribute. When you as user develop a new mountain bike, you benefit by using it. Whether you contribute to a commons is then up to you. It seems that, when you actually measure all forms of investment, most investment in innovation comes from users. If so, then the idea that we’re motivated by the opportunity to sell is cast into question. (This reminds me of my argument that copying is often in the service not of creating expression, but of doing something useful. A police report, though copyrightable, is not interested in copyright, and copyright really shouldn’t be interested in it.)

Yochai Benkler: On the use of the software metaphor—look at the revenues from software support, which are huge: tacit knowledge is an enormous part of the value of software, so using it as the gold standard for comparison with biological materials is interesting.

It’s important to distinguish money from exclusive rights. We’re really talking about exclusive rights rather than whether something is related to money or not. It would be interesting to see whether people who care both about money and interesting work are at firms that depend on patents, rather than first-mover advantages etc.

Tying Rai & Tushnet together: what are the forms of making money that are not based on exclusive rights? Can that help us address exploitation? There is an aspect of “not making money” that deals with play, freedom, critique and the like. But there are a lot of ways to make money indirectly through writing free and open source software. People who make money through their music by sharing it openly on the internet and charging for their shows can make $15,000 a year, which turns out to be a pretty good living compared to most non-star people in the standard music industry.

The gift economy, misleading as the phrase is, does point us towards important questions of structure. We should look at how to manage nonmarket, nonexclusive collaboration and deal with all these emotions and issues of power, which are present of course even in gift exchanges.

Dotan Oliar: Attribution might be an exclusive right that everybody wants outside the payment economy, including the noncommercial vidders.

Rosemary Coombe: What is the relevant scale for these economies? Gold farming in MMORPGs is a great place to examine the intersection of play, oppression, and disadvantage. She’s not sure whether gift or formal economies are more likely to produce this kind of low-paid work; is the low pay of the gold farmer an externality to the game?

Gordon: Of course we have to look at the side effects. One question is which is our default, and which gives us the rhetorical high ground.

David Kevles: In the scientific field, there aren’t people who are being exploited with no way forward—the graduate students are investing in their future earnings; whereas in the cultural field there are people whose work will never be highly rewarded. This is a big difference that shouldn’t be overlooked.