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.