Welcome and Introductions (Mark McKenna)
Session I
Barton Beebe (NYU School of Law)
The KE raises
fundamental questions about what we mean by “innovation” and about what kind of
innovation industries without intellectual property are able to produce. Dave Fagundes’ work on roller derby
naming, Aaron Perzanowski’s work on tattoo
artists fit into the book’s framework.
Many of the industries in the book aren’t technological but
appeal to taste/aesthetics: cooking, standup comedy, fashion, fonts—may be high
tech but still based on aesthetic choice.
Football strategies, financial instruments, open source/database—separate
from his comments.
Can one’s thinking be directed by the divide between the
aesthetic and the technological? If so,
what do we mean by aesthetic innovation?
The Constitution apparently instructs us to seek aesthetic
progress. Slippage in the book between
innovation and creativity: do you really want to talk about innovation in
standup comedy? Case studies: innovation
seems to mean “more,” diversity, quantitative definition rather than
qualitative. More stuff out there as a
result of sharing communities that allow copying or regulate it via internal
norms. Some of the more might be better,
but that’s not the focus.
Maybe that’s no problem but in fact all we can ask for. Let me push against that: excellence should
be part of our definition of innovation.
Something that is new and that has value.
Fashion: troubled by the basic argument that copying allows
the churning of fashion and thus demonstrates innovation. The core example
of the book is the fashion industry, but Beebe sees an industry of renovation,
not innovation. Oprah to Ralph Lauren:
How do you keep reinventing? He’s not a
pioneer. He’s a tweaker, but not even a
tweaker of fashion. Vintage-inspired
women’s clothing: another example from the book. Ralph Lauren is a great innovator in branding
and the sale of distinction, but not in fashion. How many pioneers have there been in fashion,
or is it just infinite tweaking? Susan
Scafidi would reel off names of true innovators, but he’s not sure he’d call
that apparel fashion; at some point it becomes art.
Book recognizes this problem; discusses how design patents
don’t work because so many designs are reworking. Fashion houses don’t claim this season’s
offerings are “better” than last season’s, just that they’re different. If this is the core example of innovation,
Beebe considers the thesis not proven.
Creativity, yes; innovation, no.
If there were more copying, would there be more innovation?
Innovation seems to be in branding/commodifiable forms of rarity. Normatively: Is this the kind of innovation
we want? Standup comedy or better food,
sure, but he wonders in fashion whether we should be concerned about it. [I
note there’s a gender piece here in what kinds of variety Beebe appreciates.]
Renee Gosline (MIT Sloan School of Management):
The “Real” Value of “Fakes”: Resilience in the Face of Brand
Imitations
Power dynamics reflected in the way we signal identity,
membership, status, Anglophilia, etc. Counterfeits are democratizing on the surface,
but a lot of the walls are resilient to this process. Brooklyn Museum discovered that some of its
antiquities were fake: decided to display them along with the originals. It showed people how to value the real thing
by juxtaposing it with the fake.
Her research is on the consumer side. Regulation works with norms and cognitive
processes; until those work with the regulation, you don’t truly have an
institution.
Does counterfeiting result in contamination for consumers of
authentic brands? Are consumers
substituting counterfeits for authentic products? Her study asked people to figure out whether
a product was real or fake—they often had a hard time at least via
pictures. In the real world, you often
can’t inspect the lining of another woman’s purse. When you don’t have social cues, confidence
in ability to discern real/fake goes down, and willingness to pay thus goes
down.
When you show the product in context, people are more
confident in determining whether or not a product is real or fake. Authenticity is a product of the social
context; who seems inauthentic to the product.
Willingness to pay also is affected by social context.
FB group: “Darling, I can tell by the rest of your outfit
that your Louis Vuitton is fake.” Social
shaming: mock imitators. In the absence
of successful regulation, norms still protect the brand.
Consumer interviews: response to raids in Chinatown:
consumers say “This is a waste of time for everyone.” Bostonian said: buying fakes doesn’t put you
into the rarefied air of rich people.
People on the ground decide what authenticity is and penalize those who
try to step into the “wrong” place.
Having the receipt from the store isn’t enough. [That famous Pretty Woman scene?]
Many times, counterfeits don’t impact willingness to pay. If
there’s no social context, though, there’s a significant impact on willingness
to pay. If the product is counterfeit
but the user is high-status, then people do change willingness to pay. Fertile area for investigation: those are the
people who others want to imitate.
What about consumers of counterfeits? 2.5 years of ethnography on a street market
(82 transactions, 32 interviews); social network (Tupperware party with
counterfeits instead; upper middle-class): 112 consumers at 14 events, 43
interviews. Finding: Counterfeits aren’t
substitutes. People who use the fake
start to realize how far away from the real they really are; the brand becomes more
salient, people pay more attention to it, and people experience cognitive
dissonance. They start to think: if my
possessions are fake, what am I? 46%
dumped the fake and converted to the real, even though they started off
thinking they were too clever to pay that much money. You can come to love the real through the
fake; see people with the fake and love your real more.
Pam Samuelson told a story about a trip to Hanoi with grads,
when the richest people on the bus wanted to know where the counterfeits
were—she was fascinated with their fascination.
One woman who was among the most adamant was a senior partner at an LA
law firm who’d bought a pirate Bridge Over the River Kwai DVD and it ended
before the movie did! Why was it so
important: because it was so exciting!
Gosline: Yes, it’s the high going low (and the low going
high) that provides the thrill.
Linda Przybyszewski (Notre Dame Department of History)
Ralph Lauren is not an innovator! “Designer” is the term used in fashion for
true innovators; giant conglomerates travel the world for boutiques looking for
reference items to copy. Hungering for
the fashion study equivalent of French chef study. The garment industry is so segmented,
enormous, and complicated; many young designers celebrated as innovators get
eaten up. One reason is that they don’t know much about finance, but another
reason is copying.
Elizabeth Hawes: American dress designer, active from the 20s;
she was first sent to Paris to copy, but was then kicked out for the copying,
and then started to do her own designs. In the Depression, she found it
impossible to survive on her own, so she started contracting with wholesalers. Some would give her royalties. Other designers were destroyed by wholesalers
who didn’t keep their promises of royalties.
She found the “churn” of fashion soul-destroying: didn’t have time to
design/innovate. The cry for something
new dulls the senses and stops the imagination.
Ended up writing books, some bestsellers—appreciated the copyright
rights she got! Complained: French
designers were financed, protected, and publicized by the gov’t and the fabric
industry; not so in America. So do we have a way to measure/compare French v.
American innovation? Hawes ends up
advising would-be designers to give up the idea.
What is the alternative?
In industries in which copying is rampant, there’s no point in taking
entrepreneurial risk, and at least some people will know that and write books
instead.
Rebecca Tushnet (Georgetown Law Center) Norms no less than
laws are products of power, and in studying nonlegal regimes for defining and
defending creativity we should also be attentive to the power relations
expressed, challenged, and reinforced in various fields of "IP without
IP."
Innovation in sports as example: innovation in football v.
basketball, where preference for the current system has apparently been strong
enough to prevent the success of the full-court press even though weaker teams
can use it to beat more skilled ones. Compare
Pierson v. Post, which I just taught: Post’s problem with someone swooping in
to deprive him of the benefits of the hunt could be solved by gearing up the
way fishermen gear up, which is to say by innovating (perhaps adding sniper
rifles to the hunt), but that would’ve changed the meaning of the hunt in ways
inconsistent with its signification of aristocracy. So what innovations are considered within
bounds depends on the operations of power, and the question is regularly whose
preferences about the meaning and scope of a particular field will be put into
practice, even in the absence of a formal monopoly like AT&T.
Malcolm Gladwell suggests that “When underdogs choose not to
play by Goliath’s rules, they win.” So
one question is why they ever decide to play by the rules! Gladwell talks about the effort of breaking
the rules, but there’s also social disapproval/norms. In Beebe’s terms: someone gets to judge
excellence, and sometimes their rules are different from those of the
creators. Sometimes the creators are
really bad judges (my 5-year-old does great work … for a 5-year-old giving
stuff to her mom), but I am attracted to the benefits of quality neutrality
from a regime perspective.
Another important point in the book is that people who the
authors call “tweakers”—not the drug addicts, the other kind--are often
directly responsible for refining a leap by a pioneer and making it much more
productive/valuable, and this both incentivizes tweakers and leads to big
debates over credit allocation.
Copyright and patent don’t favor tweaking because of the control they
give patentees and copyright owners over follow-on innovation/derivative
works. Compare this with how fan creators
in noncommercial spaces solve the problem: they don’t generally make formal IP
claims or contest ownership of the core products—though they sometimes do label
themselves better custodians of the spirit and meaning of a franchise, like Star Wars, than the formal copyright
owners. But they do follow robust norms
of attribution and often even permission within their own communities, thus
trying to manage disputes in a space where only law’s shadow reaches. Fan authors are recognized by other fans as entitled
to credit for their particular contributions, though these norms are often
contested and changing as new fans come in and new technologies change the
means by which fan productions are disseminated.
One regularly encounters attempts to formalize norms in some
way—in the softer sense through best practices statements such as those put out
by AU’s Center for Social Media, and in a harder sense through proposals to
recognize certain sorts of norms in the law.
Having just reviewed Demsetz for my property class, I kept thinking of
the ways in which the formation of explicit property allocations through law
can be slowed, or perhaps more importantly changed, by struggles between
different groups based on their beliefs about proper allocations, in other
words, based on their expressed norms. Special
rights for session musicians in the new digital sound recording performance
right is an example of encoding norms about fair compensation into law.
But when only certain groups show up to the formal lawmaking
process, of course, their interests are unlikely to be represented. The case studies the book illuminate how
poorly copyright law’s standard incentive theory describes a large number of
creative endeavors. Why is that? One key insight is that, in Madhavi Sunder’s
words, identity politics interact with intellectual property concepts:
intellectual creations regularly have as much to do with the first kind of “IP”
as they do with the second. Put differently,
authors understand their works to express and form an identity that is both
unique to themselves and part of a larger culture. This cultural context both incentivizes
creativity even in the absence of conventional IP ownership and shapes the content
of what gets created.
Intellectual property, like property generally, allows some
claims to power and authority and deauthorizes others. I’m going to talk here about comedians: modern
comics think of their jokes as being intrinsically tied to their own identities,
often invoking specifics of race, gender, sexuality, and class. Oliar and Sprigman, in an argument adapted by
the authors here, argue that comics have achieved a sort of self-help
propertization of their jokes by moving to identity-specific routines that are
not as easy to appropriate. But not only
are the enforcement mechanisms tribal and more effective for men willing to
threaten physical violence, but this definition of comedy depends on valuing
certain kinds of comedy and
preventing certain kinds of copying—as
with chefs, comics don’t seem to mind if individuals retell jokes to each
other, like my husband retelling a certain hilarious Louis C.K. line. Norms tend to be directed at other group
members and uninterested in the behavior of nonmembers, not just because of the
inability to control nonmembers but because a nonmember’s activity doesn’t
implicate the same kind of issues of respect and acknowledgement.
Even where norms govern instead of law, there is always a
question of whose claims count and whose claims, though an alien might think
them similar, are not even recognized as such.
The norm comedians articulate is that it’s not permissible to deliver
material that isn’t theirs. But that’s
not, in point of fact, true. (I’m not
questioning their research nor the sincerity of their sources: the point is
that their sources believed something that was self-evidently untrue. This is always a signal that something very
interesting—usually something about status—is going on.) In fact, comedians often provide material for
other comedians.
The authors give us two common situations of this type. First, comedians may help others create
jokes. There is no joint authorship norm. People who provide parts of jokes to comics
have given a gift. And as Carol Rose and
Lewis Hyde among others have noted, a gift can also be a burden, because it
creates an obligation for the recipient.
The anxiety generated by a gift can be managed by reciprocal norms: the
contributor will perhaps someday receive assistance in creating his own jokes,
and also be able to claim complete ownership of those jokes. The contributor’s creativity and labor when
she helps out, however, are not her own.
They disappear into the primary comedian’s joke.
Second, comedians may use jokes created by other people, who
submit them and get paid if their jokes are used. Like the singer/songwriter model in music,
the stand-up character can be as constructed as any boy band. Now, the authors maintain that the practice
of using writers is much less common than it used to be for comedians, and
relatedly that comedians today invest relatively less in performative aspects
(costume, movement, props) and relatively more in individualized schtick. One reason comedians invest more in writing
their own jokes is, they suggest, that it is naturally harder to write for
another person with a unique persona than it is to write generic jokes. This extra difficulty can be expected to
raise the relative price of buying modern, identity-specific jokes.
Yet buying jokes is apparently a perfectly legitimate means
of becoming their exclusive owner even among stand-up comedians. Writers can’t claim the jokes they wrote even
in seeking to prove their comic credentials. Some creative work counts in
producing property claims; other creative work doesn’t. It’s about power.
There’s more: all this depended on a particular definition
of “comedian.” There’s actually a gap
between what The Knockoff Economy calls “rival creators” and the group known as
“consumers.” Expand the frame, and a
property norm may only apply to a subset of broadly similar activities—a truly
local ownership norm. This matters,
among other things, because copying may work very differently in the other
subsets, most obviously in advertising where becoming a political slogan
(“Where’s the Beef?”) can be confirmation of fame and value. Sitcoms have extensive writing staffs devoted
to producing jokes for hire, as do The
Daily Show and The Colbert Report,
customized to their public personae. I
therefore have doubts about the proposition that writing for another specific
person is more difficult than writing generic jokes, and thus relatively more
expensive. Even accepting that this is
harder to do than to write for oneself, the supply of aspiring writers
outstrips demand so greatly that it seems unlikely that writers can demand much
of a premium for writing in a different voice. Indeed, the assumption that writing for a
specific character is especially difficult may itself be an effect of the
ideology of romantic authorship in which genius is individual, unique and
nontransferable.
I greatly enjoyed the book and its examples; my comments are
designed to point out that when we look at creative situations, it never hurts
to keep in mind Lenin’s question about the meaning of history, translated as “who
does what to whom?”
Fagundes: maybe slowing the fashion cycle would get us
better clothes. Scorecasting: football has it all wrong, and there’s a better
strategy to be adopted. But people haven’t
done it because if you tried this and lost even once you’d be fired: fear/other
forces constrain and affect innovation.
The team that did the most innovating in pro football was the worst, the
Cincinnati Bengals—being bad forced them to innovate.
Nicole Stelle Garnett: is this innovation or churning? As a land use person, her question was
whether we were getting more or better?
Not just laws that prevent copying but those that require certain
aesthetic taste—not uncommon in real property, where codes often require
old-looking houses because architects have decided that there was a certain
perfect point in time. Having nice
houses will make us better people!
Miami, Denver, El Paso have adopted these New Urbanist codes focused on
aesthetic choices, freezing things in time.
In art, they favor crazy/new aesthetics, but in land use they may require copying!
McKenna: we will always get innovation; the inescapable
question is what kind. The legal rules can shape/force a path. There’s no such
thing as neutrality in the legal rule, and it’s better to make that choice on
the surface. This also matters to rights
v. utilitarianism. We are picking
winners: downloading has been bad for some players in the music industry and
good for others; we have to decide what matters.
Sprigman: Defense of more v. better: deepest fountainhead of
innovation is natural selection. Just doesn’t know what beauty might look like
in 20 years.
Przybyszewski: Technological fabric innovations: Gore-tex
etc.—these are clearly better than
what preceded them within their segment, not just different.
Yi Qian: Theory: competitors lead innovators to innovate
more in searchable qualities—surface materials of shoes, workmanship;
experiential/functional attributes that take more time to discover would get
less innovation—durability—even if quality of those attributes would stay the
same. Confirmed by Chinese data. Pharma: see innovation more on shape and
color. Music: innovation on packaging.
Welfare implications may differ by industry. In fashion, where people
derive benefit from appearance, this may be all good, but maybe not so much in
pharma.
Samuelson: agrees with Beebe about the slippage between
creativity and innovation. Is there also
slippage between innovation and improvement?
Is innovation just newness?
Patent = novelty. But new and
inventive may not be better; patent is agnostic about improvement. Though we expect that people won’t take the
time to patent things that aren’t improvement, if you actually look at patents
that’s not true at all. Improvement
innovation can be measured on the tech side only sometimes. Rube Goldberg patents. Copyright side: we can judge whether a movie
is good, but it’s just much harder.
Sprigman: patents may be improvements or not depending on
the circumstances: a water pump good for an undeveloped area might be a
terrible idea for South Bend. Fashion:
some years are good and some aren’t; he thinks we tend to undervalue change.
Raustiala: some people push back on fashion churn: isn’t it bad
for social/environmental reasons? He
thinks it is kind of bad. Book takes a
catholic view of saying that we don’t know what counts as good; we aren’t
social planners so we said more is better and elided innovation and creativity.
Michael Heller: the dichotomy real/fake also has a spectrum—there’s
a world of fake Rolex connoisseurs. What’s
the implication of the specturm of fakes?
Reinforces Gosline’s work.
Also, thinks Przybyszewski was too pessimistic about Hawes’
message. Her reputation allowed her to
make money. And most of us don’t make
money on our books! They’re collateral effects of other things we do.
Beebe: Evolution as a model of innovation is
provocative. Darwinian view: there was
no progress in evolution—that’s what was so shocking about it! If we’re just meandering along, what’s the
point?
Sprigman: survival.
Lea Shaver: acting and music are like fashion: just as hard
to make it there even with copyright protection! (I wonder what the relevance of the “cost
disease” is here.) As for Gosline: are
these insights only applicable to showoff goods? Recounts her experience of starting with
cheap smartphone and converting up to the iPhone after learning more about
smartphones/getting sold on the features.
Innovation: can we say a field has advanced in 20
years? Easy to say in computing. Can we say that comedy is improved from 20
years ago? Football seems to have
improved in sophistication. What about
fashion? [What about teaching?] If you looked quantitatively and
qualitatively in people’s clients, they can afford more of what they like—a big
part of innovation is making stuff cheaper.
Thus inclined to the “more” is better thesis.
Gosline: “gateway drug” thesis has come up before as a
phrase people use to describe their experiences. More likely in the case of signalling goods
because the social reaction helps to make the comparative aspect more fertile.
Even with nonsymbolic, functional goods, it can still occur if your experience
with the cheap version is suboptimal.
Even things that aren’t seen can make people feel a certain way about
themselves—buy Tide to show they care about their families.
In terms of what’s real or fake, the binary is problematic,
which is why her research looks at that—but she emphasizes that people who’ve
paid for the real thing also get called fakes.
Some of the judgments on the FB page were wrong; people were deemed
fakes even if they owned the real thing.
Christopher Buccafusco: Surprised at willingness to accept
anything goes, given that preferences are (Sprigman has argued!) shaped. Systems are embedded in systems. Football: internally, wins and losses are
equal/zero-sum in football so it’s tough to talk about progress. Individually, progress is possible. Externally, you can expand the size of
football’s pie. In baseball, steroid use
expanded the audience for baseball, which was good for baseball! Within and across fields there will be
different kinds of welfare.
Sprigman: true, taking preferences as given here. Consistency is overrated (unlike
change). His experiments look at
preferences structured by law; preferences structured by nonlaw sources may be
resilient. Not terribly interested in debiasing here though confident that
their preferences are not exogenous.
David Opderbeck: we’re all circling around
teleology/progress. Darwin upset the
watchmaker universe and showed that evolution produces waste. Using that metaphor might be helpful.
Avishalom Tor: in competition, we don’t question that
consumer demand drives it all. If we
give up that idea, our structures of analysis become unstable (which might be the
right result).
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