Keith Sawyer: Token nonlawyer. Underlying social and human process is
creativity/innovation. Huge amount of
research in past 10-20 years. Explaining Creativity is his big book on
this. The creative process is the same
regardless of the discipline—writing a novel or technological invention. There’s
an individual cognitive process; group dynamics (organizational behavior)—a lot
of research on incentives and motivations in individuals and groups. At organizational level: culture, leadership
style. Started to look at
diffused/distributed networks of innovation.
All creativity is based in the same cognitive processes. Creativity
comes from constantly moving stuff around—lots of small moments. Mismatch between tiny little moments and how
they build together over time to result in something that’s patentable or
copyrightable. KSR makes a distinction between ordinary and real innovation—but there’s
no such distinction in creativity research.
Distinction between problem finding and problem solving.
Famous inventors say: most important thing is to formulate a really good
question. As opposed to identifying a good solution. Patentable = the
solution. KSR: defendants’ counsel seemed to be arguing that finding the
problem was the real innovation, but the Court didn’t like that argument. That’s problem finding. The process is long, hard work; you don’t
just meditate and have a brilliant insight from above; it requires doing a lot
of work. Thus he studies intrinsic
motivation: what keeps you going through this long process? Distinction between extrinsic motivation and
intrinsic motivation that gets you through the long hours and small sparks of
insight.
His research on groups: jazz ensembles, theater groups,
business groups. Small ideas don’t all have to come from the same
individual. Well functioning
organizational dynamics can build up a successful innovation. Then the issue is how do you
distribute/attribute creativity to individuals who participated? Can be difficult to identify percentage
contributions. With ensembles, it’s almost impossible to reductively analyze
one individual’s contribution, which is similar across many group systems if
they are functioning well.
Two colleagues at Wash U. wrote Against Monopoly, arguing that IP provides exactly the wrong
incentives for the type of innovation that we want. Finds this thesis provocative.
Jessica Silbey: Does IP incentivize progress? Fieldwork with artists, scientists,
engineers, filmmakers, lawyers, etc. IP
doesn’t come up as a driver: Serendipity, luck, problem-solving, intrinsic
motivations are the sources of beginnings in IP industries. But law wants dissemination of the result—the
IP clause isn’t so much about the making as about the dissemination—so does IP
prevent a market failure? For her
dataset, the answer is that IP plays a very small role in successful
dissemination and commercialization of most things protected by IP, from film
to pharmaceuticals to novels to medical devices. Both individual creators and
their firms make a living through reputation, loyalty, market share,
complementary products, first-mover advantages.
Contracts for services play a huge role. IP plays one of the many roles
in the livelihood of these people as defensive: freedom to operate/room to run.
Rarely use a royalty stream to make their living. Comparing statutory prerogative and case law
to the empirical grounded descriptions of innovation shows a real inverse
relationship.
Do they care about copying?
When do they care? Answer: not
all that much. They tolerate it—cf.
literature on tolerated uses. Never
asked directly about IP until the end of the interviews. They eventually get around to why and how
they claim work as theirs and not someone else’s. Most of the time the litigation is around ego
and reputation and not business necessity. Of course business necessity claims
exist, but the ones that they described to her are patent claims about
authorship or copyright claims about attribution. There’s a misfit between this
kind of claiming and the law.
They’ll tolerate unlawful copying because it maximizes other
goals, like dissemination; because it’s a way to collaborate; because it’s a
way to get ongoing revenue. They don’t
care about the copying if it’s not going to harm them—if the copier isn’t
making money/hurting my reputation.
(These include publicly traded Fortune 500 companies.)
Q: some companies, like Apple, focus on protection of IP
rights. Maybe not everyone, but there
are a group of companies that seem to be motivated hugely by IP.
Silbey: there definitely are such companies. Medical device companies require a patent
portfolio. That doesn’t mean that’s where they make the money—it’s first-mover
advantage and trade secrets, even though the investors require a patent
portfolio. It’s just not the most
dominant game in town. The IP regime is
blunt and one-size and it’s not the most important thing for most creative
industries. The diversity of mechanisms
by which many companies make money undercut the claimed necessity of IP.
Big publishing, big pharma: hard to believe when she heard
them, but she did. Doesn’t think you can
talk about organizations’ motivations without talking to the individuals who
actually do the work. If we are going to
talk about patents v. copyrights, across the board motivations are the same for
sciences and expressive arts. Employees and shareholders in entities that have
patents seem to recognize why companies need the patents and how the value of
the patent flows back to the employee. With copyright industries, the flow
between the creative and the company is less obvious to the makers. She sees a difference between individuals and
organizations there.
Brett Frischmann: incentives arise in different ways. IP mitigates a particular kind of risk
(though there are many other market risks) that could distort incentives that
already exist in the market, or for cultural reasons. Whether/when/how this
risk actually distorts incentives is incredibly ambiguous. If we just say “IP incentivizes” then we don’t
address the ambiguity. Framing access/incentives and static/dynamic grossly
oversimplifies. In almost all cases, access provides incentives for other
people to do other things. This has
effects on dynamic efficiency as well.
These frames systematically bias our thinking.
Also, the incentive paradigm muddies the empirical picture.
If we don’t know what we want, we don’t know how to count it. Counting patents
is useless.
We adopt Bleistein’s
nondiscrimination principle writ large and say “we don’t care about the
objectives.” “Creating incentives” is
ambiguous: incentives to invest in what?
Which industries? We fear picking winners, which is a good fear. But adopting access/incentives rhetoric
precludes us from asking what our objectives are.
Rebecca Tushnet: my interests lie specifically in noncommercial
production, so I’m interested in protecting those sources of production from
being suppressed or crowded out by commercialization: crowding out is, among
other things, a risk of substitution of one, worse incentive for a better
source of creativity. Research on
rewarding creativity with direct payments: it often doesn’t go very well. After the reward, people seem less likely to
go on and continue creating on their own.
So that’s a direct kind of crowding out that seems to hurt both quality
and quantity.
Intrinsic motivations: why does one person become a
journalist and another a poet, and
another an engineer? Indirect/lottery
style rewards that are consistent with intrinsic motivations to create might do
a bunch better: Justin Bieber’s rise to fame came from performing cover songs
on YouTube and only later getting a recording contract. Brett’s picking winners issue: thinking of
only commercial rewards therefore means
picking winners; it’s not an issue you can avoid.
Noncommercial production is often understood in the legal
discourse around copyright as another source of utility you get from other
people. That is, instead of money you get reputation, which is sometimes
valuable in itself (YouTube famous) and sometimes you can later cash it in
(some accounts of open source software).
One interesting feature of reputation, at least in the form of positive
feedback: it’s a truism that there’s a declining marginal utility of wealth; new study on
Yelp reviewers by Edward McQuarrie et al. also suggests there’s a declining
marginal utility of positive feedback. At
a certain point, a good reputation isn’t good at incentivizing new production,
even though it helps when you start out.
Instead or alongside, many enduring motivations seem to be
internal. There is simply a benefit people
get from having a new thing they made in the world, which is more like a
preference than an incentive. Eric von Hippel has studied this with respect to
innovation in the patent space. User
innovation is the source of major leaps forward in various fields (and users
here include manufacturers who are also consumers of, say, large-scale
computers and manufacturing equipment), and then commercializers and upstream manufacturers
refine it and make it simpler/more widespread. I’ve done some work on similar internally
motivated processes in copyright. Creators
often experience creativity as both effortful and required—they write because they
have to, because not writing or singing or whatever would hurt them. And the thing about preferences is that we
have a much more limited set of theories on how to affect and shape
preferences. Affecting preferences is a
matter of education and marketing—and aside from antipiracy education
campaigns, which Tarleton Gillespie has so trenchantly critiqued, we really
haven’t thought much about encouraging the development of citizens who
create. Which is funny since America is
known for its creativity and innovation.
Normative considerations: empirically it may well be true
that negative feedback discourages further creation. But that’s not enough of a reason to set up a
regime to suppress negative feedback.
Fromer: how does literature on pecuniary reward map on to
copyright/patent? Chance of making money—do
artists and scientists see this as the same thing?
Silbey: several IP lawyers and VPs talked about how they
incentivized disclosures of petty inventions: contests like American Idol
within the company. For a $10 gift certificate and the approbation of
colleagues, you’d share your cool idea—and it was incredibly productive for the
company. Most innovative engineers were
juvenile delinquents—always trying to break the rules. Reputational and collaborational benefits
incentivized productive behavior.
Frischmann: If you think more about processes, you think
about users differently: fair use and mapping fair use into patent law. If we decide that in patent law what we’re
trying to do is enable cost recovery and facilitate competition instead of
trying to induce more investment in areas than market would otherwise support,
that would shape patent law, the patent/antitrust interface, and help justify
an independent invention defense. Could
also matter for scope.
James Quarles: many clients, esp. in high tech, complain
bitterly about inability to get scientists to turn in bench disclosure
forms. They’re not motivated by $1500,
but the company wouldn’t pay them if they couldn’t get them to work. Can’t imagine an ANDA case in which ego would
matter. Disconnect between inventors and
financing?
Gregory Lavorgna: someone is getting some reward from the
creativity, whether it’s the scientist’s psychic reward or recognition from
peers. He didn’t need financial
encouragement. But the company can’t
afford to make products if they can’t protect the return on investment. Does protect innovation. (But that’s not really what Silbey’s research
shows: that’s only true in some cases and it ignores the other sources of
protection.) Isn’t designing around what
the patent system was intended to do.
Lemley: flags industry-specific stuff: see different
attitudes among different engineers. The way Twitter gets engineers to disclose
is that it promises not to sue anyone and gives the inventor the right to veto
a lawsuit. Individuals are often
philosophically opposed to the idea of patent trolling.
Von Lohmann: Google: disclosure is hard because engineers
despite the patent system. Our GC has to
reassure them that their work is defensive.
We should think about preferences and how we encourage the creation of
people who are creative. In patents, a
lot of the most creative people in tech view patents with disdain—may differ in
pharma and other industries. On the
copyright side, fair use: we have a system where we encourage criticism and
parody, which people cringe from. The
law discourages hagiography/praise, even though expression of love is all over
the place. We should encourage that too.
Arti Rai: In copyright, we have values that are entirely
noneconomic: foundation of democratic society. No discourse about that for
patent law. Can patent law incorporate
noneconomic incentives? At the systemic
level we conventionally don’t think of patents as having anything other than an
economic end goal. Myriad: access
questions are part of the SCt’s motivation, but the rest of the discourse is
missing.
Silbey: she did hear a lot of folks talk about democracy—encouraging
invention disclosures/participation in the legal system through the story of
the American inventor—the heroic story of making something useful and good for
the world. That ideology is a mechanism
by which incentives were affected.
Rai: but our case law talks about democracy in copyright,
not so in patent. Why?
Ronald Lee: Open source illustrates how difficult it is to
make generalizations about which business model encourages innovation. Both open source and patent pools are
responses to address problems that applying the doctrine won’t do because it
assumes a single solitary person/company in the lab. Private creators aren’t the only ones out
there. Gov’t employees’ work goes instantly into the public domain: a different
set of incentives. Sovereign immunity: affects remedies.
Jason Schultz: people resisting the patent system who are
engineers—are we inhibiting some of the goals of the system itself if some open
source has in fact ID’d a problem and solved it, it should be public
domain/prior art. If that is hard to find, someone else might get an
overbroad/invalid patent. So we should also think about incentives to disclose
even unpatented innovation. Mozilla has
a bug tracking program. 350,000 bugs
fixed, zero patents. That’s a lot of
potentially patentable things not even in the patent system.
Dreyfuss: Medical practitioners did raise democracy-type
arguments about patents on medical procedures standing between doctors &
patients, and patents on tax havens that would create inequality. We solved
these problems quickly with a statute, but not so with copyright. More
statutory, civil law approach in patent law.
European Patent Convention has specific exclusions for morality, diagnostics,
etc. Copyright is more standard-based
than patents, in “popular” conception.
Rai: interesting that Congress is trying to come up with
diagnostic exceptions, but courts don’t feel comfortable making exemptions
based on a non-innovation-related argument.
Michael Traynor: recommended increased attention to
attribution and small claims. Can we consider attribution in close fair use
cases/building attribution into small claims.
(I’m happy to use attribution as a factor in favor of fair use where
appropriate—may not work so well with a parody as with a quote.)
Samuelson: research across fields—biotech ranked patents
second in importance, software dead last—qualitative and quantitative evidence
that patents serve different functions in different spaces.
Roedel: if they’re not using the patent system, then the
patent system can’t function.
Samuelson: no one reads software patents! They’re useless
for notice.
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