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.