AALS Section on Law and Anthropology, part one

2006 AALS Meeting, Jan. 6
Section on Law and Anthropology
A Cultural Analysis of Intellectual Property

The panel was arranged by Madhavi Sunder, but was chaired in her absence by Mark Lemley. Standard disclaimer: this report is transcribed from my notes, not complete or necessarily completely accurate. With respect to Julie Cohen’s work in particular, I may have missed a helpful concept or two.

The basic topic was whether and how to construct a cultural analysis of IP that would counter the dominant economic analysis. A better, and longer, description is available at the AALS site (scroll down).

My colleague Julie Cohen began by talking about the recent methodological debate of which the panel was a part. IP has had a fairly insular debate over whether one should start with a law and economics view or a natural rights view; law and economics has been opposed to deontological, Lockean, individual-oriented theories of IP rights. With those two theories setting the terms of the debate, natural rights theories have made the case for the self while law and economics presents itself as looking at overall structure and society. Economics, however, also refers ultimately to the individual by making individual preferences king; one needs a theory of utility to make sense of the rest of the analysis.

(Wendy Gordon, in the comments period, referred to her own work building a Lockean case for IP limitations. I think the dominant meaning of natural rights has been IP expansionism, just as the dominant meaning of law and economics has been IP expansionism; within both theories there is room to criticize the relentless growth of IP, and Gordon’s work is the foremost example of that criticism within the natural rights tradition.)

The natural rights v. law and economics divide ignores social and cultural theory, which can talk about other things. Such theories are empiricist in orientation, focusing on thick description of cultural practices. They promise insights not so much into the behavior of cultural goods after production (supply and demand), but into the process of creation. One still needs a normative argument at the end of the day, but social and cultural theory have rigorous tools to bring to the table (to the shop?).

What can these theories add? (1) Attention to the endogeneity not just of preferences but of processes and products as well; the world looks different under regimes that enable different kinds of practices. (2) Focus on everyday practices that contribute to the production of creative and intellectual culture. (3) Attention to processes of creation that are relational, that involve networks of individuals, artifacts, and groups. Cohen mentioned narrative and myth, spatiality and physicality – you make new things by using what’s around you, which often involves creative and unpredictable play. This type of creation is hard to model in law and economics because of its lack of intentionality, and hard for natural rights theories to comprehend for similar reasons (and perhaps because of its incrementalism; it is both accidental and cumulative).

Cohen’s preference is for using the toolkit from science and technology studies (STS). STS builds on Kuhn’s central insight, the paradigmatic quality of scientific knowledge; artistic practices also evolve cyclically. STS has as a central concern how artifacts are configured for everyday life and how they configure the user. (I have a piece on libraries coming out soon that relates to this, including how the metaphor of DRM as “speed bump” turns out to be richer than you might think – speed bumps themselves are highly contested technologies that have prompted the creation of technical workarounds, which then forces regulators back to using law to make sure people obey the rules.)

Cohen called her view a milder version of actor-network theory (ANT): Artifacts crystallize more or less durable relations of power; though they are not actors, they exert causal control over others in the network. Further work to be done: How do artistic works crystallize patterns of belief and practice?

Larry Lessig’s Code, Cohen said, does not make the same arguments as the ones she wants to see. The idea of code = law has become very technocratic and is used in debates over how to design technology for regulatory purposes. ANT is more about unintended consequences that, while not inevitable, come to seem natural and determined.