Guest post: Peter DiCola's notes from Notre Dame roundtable on The Eureka Myth

Jessica Silbey’s _The Eureka Myth_

Book Roundtable at Notre Dame

November 7th, 2014

Notes from Peter DiCola

*Panel #1*

1) David Schwartz

— Praise for the book

— Will raise a few methodological issues

— Issue of representativeness of the sample.

— Need to trust Jessica’s selection of the quotes as well.

— There are about 50 interviews. When we want to discuss particular communities of creators or inventors, such as inventors (i.e., not lawyers, not creators), we are slicing the sample pretty thin. The number of observations is small, limiting our ability to draw inference.

— If every one in the small sample is consistent, then that may tell us something

— Concern that interviewees will tell the interviewer what she wants to hear

2) Laura Murray

— In Laura’s department, when she has done work on interviews, she gets questions about whether the results can be reproduced

— This book offers thick description

— The book is clear about methodology

— Organization: Jessica’s book goes through the creative process step by step. By contrast, Laura’s book was organized case by case. Each approach to organizing the discussion has advantages and disadvantages. The advantage of Jessica’s approach is that it shows the commonalities across different creators.

— Concern about copyright being an object of scorn in selecting interviewees — Laura, in her book project, handled this by asking about copyright last. Copyright fluttered away — the interviewees’ topics of discussion went in other directions.

— “Mis-“ prefix & under-/over-enforcement discussion vs. terms that are not law talk

— Less emphasis on groups in the structure Jessica chose; less information on where ideas came from. But of course this is just a lumper vs. splitter issue.

— Why creators don’t discuss money as a motivation. Conditioning (of us scholars) not to question this. Other people supporting the work — the artist’s spouse or mother. Place of privilege.

— Finally, a question about choosing pseudonyms. Most of the names seemed to have Anglo origin.

3) Kara Swanson

— When reading, started counting for gender representation within each field

— Comparison between Jessica’s interview data and what historians are able to ask

— Post-1790 Eureka myth. Stories of Archimedes and Isaac Newton are not related to IP. Then, after 1790, the myth gets tied to IP.

— Kara looked at two works: (1) F.M. Scherer’s study of composers, 1650-1900 and (2) Christine McLeod’s book on the industrial revolution 1660-1800. Similar questions: why compose? why invent? Jessica’s data aligns with these pre-1790 studies.

— Scherer looks at the shift from patronage. Variation across countries. Does copyright aid the shift to freelance work? Scherer finds questionable support for this. No evidence on rate of creation or commercialization/distribution. Petra Moser has a recent paper that does not discuss and does not appear compatible with Scherer’s findings.

— McLeod discusses reasons to patent, e.g. patent to escape guild, patent to replace a failing guild; prestige; preemption. IP as legal insurance.

4) Zahr Said

— Book needed to be written. Lots of threads for future work

—What do we do about the data? Incentive story assumes money should play a role.

— Different disciplinary methodology, happily

Point #1

— Literary study. Bifurcated argument. (1) accept data gathered carefully, proxy these data for misalignment. (2) interpretive layer. Jessica is asking us to accept her readings. textual interpretation, but not a lot of discussion of multiplicity of meanings.

— Part (1) of the argument is convincing, part (2) not as much.

— Example on p. 186: how works arise vs. how they are disseminated. Only in footnote 11 of the appendix is there an acknowledgement of the textual interpretation issue, the possibility of alternative readings of the quotes.

— distant reading vs. close reading. Debate in literary theory. Franco Moretti as exemplar of strategy to treat literature as data. Distant reading. Digital tools. Analyzing different amounts of data.

— For example, IP as fluid. Jessica is characterizing the views, not relying on metaphor

— Here, close reading seems to be foreclosing multiple meanings

— Example, in chapter 1 on inspired beginnings, “find THE point.” Destabilizes larger categories?

— Maybe not such a law and humanities approach; maybe trying to write for a partly law & econ or patent-focused audience.

Point #2

— change happens across time. but this study is a narrative balance sheet, i.e. a snapshot. would love to see a narrative about income flow, i.e. a dynamic picture. Copyright law knows this happens.

— example from recent Diane von Furstenberg interview on NPR in which the designer discussed her career at different times and how she made different assessments of her work at different times

Point #3

— Memory. Accounts shift. Myth-making.

*Question and Answer Session After Panel 1*

1) Nicole Garnett

— deeper and broader knowledge in follow-up studies. fluidity in follow-up questions.

— motivating vs. enabling in IP. things that occur because of IP, what could you/would you do without IP, who would/could do this without IP.

— Robert Johnson contrasted with modern hip-hop artists in their relationships to IP

— side jobs, distributional consequences

Jessica’s answer

— Not all creators rely on copyright. Commissions play a huge role, for example, and those are not copyright.

— “Enabling” is the right word

2) Mark McKenna

—Simultaneously arguing against a narrative, but the interpretive lens ends up incorporating it

Jessica’s answer

— All interviews transcribed in a database. Boolean searches, etc. are possible

— One becomes invested in the words, and there’s a path-dependence to that.

3) Peter DiCola

— having used different empirical methods (interviews, surveys, case studies, observational quantitative studies), I have found personally that interviews provide the most solid foundation

— qualitative studies allow one to rule things out, especially about objective facts. more difficult when subjects are discussing their motivations.

— quotes are still available in the text for the reader to interpret. Jessica offering her interpretation does not foreclose the reader’s. we still have to trust Jessica’s selection of quotes.

— discussion of Petra Moser’s recent paper on opera; might be compatible because it focuses on a particular change in the legal regime in some Italian states. (Kara responded that she thinks Scherer discussed this same change and that he had different findings.)

Jessica’s answer

— Not overly concerned about cause in this research, as the economists Scherer and Moser are.

4) Daniel Kelly

— Two questions for Jessica

— How did you identify the interviewees? Book mentions snowball sampling.

— Geography — focused on the northeast?

Jessica’s answer

— Geography was Washington, DC and north.

— Identified relevant variables and select candidates based on this. Ask a lot of people. Confidentiality was provided.

— Interviewees had to self-identify as a creator or someone supporting creative work

— Variables included copyright vs. patent, new vs. old, independent vs. employee

— had to find a few people for each box created by these dichotomies

— based on preliminary interviews, rejected those who seemed too close to previous interviewee

— sent hundreds of letters, got some responses

— protocol is a bare-bones qualitative interview

5) Barton Beebe

— Race, class, and gender. Will focus on gender.

— How does this fit into the methodology. Theory as “soft,” quantitative as “hard.”

— Appreciated the “Mis-“ words. Prefix. Minor words to the major words. Exceptions to the rule.

Jessica’s answer

— gender and *hierarchy*

— particular audience

— women are in the sample. the genders denoted with the pseudonyms are accurate.

— in earlier drafts of the book, no names were used.

— sample is diverse ethnically and by class

6) Abraham Drassinower

— The fetish of the normative. Part of the world, descriptively. Hard for lawyers to avoid normatively. The fetish of the empirical opposes this.

— The fetish of cause vs. fluidity

— Law is part of the everyday. Tension between law and life. Law must cut life to make sense of it.

Jessica’s answer

— binary is false in other disciplines (they don’t feel traumatized), but there is this binary in law.

— There are moments of alignment

7) Kara Swanson

— Who is the audience for the book?

Jessica’s answer

— Law, policy, business people.

— Some business people have shown interest in restructuring employment situations.