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.