Roundtable on Jessica Silbey’s The Eureka Myth

Roundtable on Jessica Silbey’s The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property

University of Notre Dame Law School

[I was very sorry that I arrived late due to a missed connection the previous night]

Second Session: Distribution Models and Design Principles

John Golden: rule of law concerns: if there’s not a good fit between law’s underlying assumptions and what people think, they might lose respect for the law complicating legal compliance. Law & economics: if people do have different motivations not reflected in IP regime, we might redesign law and grab some low-hanging fruit. More protection for attribution, w/o restricting dissemination/exploitation by others.  Desire to curate/protect like children. Mixed motives: baseline interest in survival, income allowing them to continue doing the work they wanted to do.  Scientists/engineers often chose steady income of salaried employee instead of going on their own: moderates upside and downside. Honor/scientific reputations—seems to operate across the board in many creative areas.

How do we make systems approximate their models w/out resistance etc.?  The concepts of misfit and leakiness.  Leakiness is sometimes a good.  Attribution/credit protections are missing and people think they should be there.  There are also carveouts: swiss-cheese-like contributions to leakiness, such as fair use.  Even more rifle-shot carveouts like medical method patents & limits on liability for doctors performing the method.  Rules v. standards—some carveouts are one, some the other.  If we think leakiness is desirable, as the book suggests in some respects, we have design choices on how to achieve that.

Leakiness can also be created through counterbalancing policies.  Example of land/mineral rights where information sharing can be mandated, benefiting others, but returns can be received by exploiting the minerals.  Different actors can figure out what’s the most efficient way to move forward.

Lydia Loren: Problem finding is sometimes the inventive part; but the fact that copyrighted works are sometimes solutions to problems really comes out in these stories. 

Should we care about misalignments if they don’t affect behavior?  Venture capitalists also misunderstand IP; focused on firms that have patents that don’t really mean much in the end.

Silbey suggests that IP results in glorifying individual over collective, which is a distortion of the facts. But IP is an administrative mechanism for vesting rights, and if you vest it in too many it becomes hard for capital to organize around it. So it makes sense to identify an individual owner, because of the need to organize capital.  Needs of the firm: only part of those are made up of the needs of the creator.  The firm needs manufacturing, marketing, sales, distribution, employment to put the pieces together.  Many creators need and want the firm for the steady paycheck/freedom from managing the details.

Independent creators express a desire in these interviews for help: in marketing, in studio—to take over the parts they find yucky. And one source of help is the firm.  IP used to be taught as part of competition policy.  Now IP has become more personal.  IP is still part of the support—may not motivate, but it can enable. 

Book does good job acknowledging how IP shapes creative work into something recognizable in the business world: self-consciously pursued and woven into business strategy.  Move away from formalities in © has made it easier to defer that strategy to later date.  Becomes a latent asset.

Firms need to figure out how to provide the right conditions for innovation/creation. Need for rich creative environment to work on.  Weeds out pure rent-seekers w/exception of firms w/a back catalog. Increasingly getting a variety of firms.  Try new forms: B corporation (public interest as one goal) is a result of firms realizing there’s more to this than the bottom line.

Example of finding herself in the book: in the lawyer, in the author, but also in the firm: w/a colleague, wrote an IP book but couldn’t stomach the traditional distribution model, so created a pay-what-you-want model w/a suggested price.  Ton of work to write & keep up to date, so financial incentives matter and remuneration is justified.  Website, allowing others to distribute their work too: now have harnessed capital to provide authors freedom to create w/out having to deal w/business side. Students really appreciate the alternative.

Be careful in saying that contracting around IP defaults is reckless.  Shrinkwrap contracts may be wrong, but contracts that leverage IP into rights artists want, like attribution, may be justified.  Chits to be traded for something the creator values more.

Steve Yelderman: Some subjects struck him as taking IP core rights for granted, while at the same time saying that IP wasn’t important to them.  One example: textbook publisher talks about IP not being nearly as important as getting on an approved curricular list in a few big states.  But that presumes that competitors can’t just copy the textbook and sell perfect substitutes.  First-mover advantage might be some protection, and there’s no way that anyone needs a right to control the right to make a fourth-grade history textbook (that is, idea/expression), but the basic reproduction right seems important there.  Other interviewees seem to reason similarly.  Need for caution in terms of trying to draw conclusions.

Antitrust: customer reviews, asking whether a merger would be good or bad for customers’ business.  Customers are infamous for being unable to anticipate harm from merger of their suppliers.  Party documents say: we intend to raise prices 25%.  Customers will still say “they always take good care of us.”  This is a context where we’re asking them to imagine a world that’s not the world they live in; we all have these blind spots.

Mismatch between IP values and creative values: They don’t have rights they do want and do have rights they don’t want.  Benefits to recalibrating?  On the too strong front, the book uses “underenforcement,” implying departure from some optimal level of enforcement, but book doesn’t seem to mean that.  Forbearing on enforcement of privately held right—let neighbor walk across lawn—but that doesn’t mean we have real property law wrong.  Tax, criminal law have different undertones about optimality of high level of enforcement.  Framing matters.  Holder choosing to include/share w/others something w/in the core of what she could exclude, have to ask if that’s IP working or IP failing, and that will depend on circumstance.  In many cases, voluntary forbearance has inefficiencies: others can’t rely on it; operating in gray area and uncertainty may be needless.  But there are different implications depending on reasons for forbearance.  What might we permanently want to take away because forbearance is so uniform?  Hard to tell.

Also, different situation when there is provisionally tolerated infringement but rights held in reserve to discipline later uses.  Users bear the risk, but IP could be doing work underground.  Maybe it’s enabling certain kinds of disclosures/interactions w/works.  Publishers removing DRM, when books are sold for profit.  Boon for company; better for customers who hated DRM; but in a world w/o copyright, would they be taking DRM off?  Is that backstopped by other rights. Similarly w/ disclosure/enabling aspects of patent law in allowing more transparency and collaboration.  Couldn’t tell from interviews whether they thought DRM was w/in the penumbra of IP, or trade secrecy.

Core case: infringement is actually welcome but users have to take the risk. Ask why rightsholders haven’t given explicit permission: maybe they do want to hold rights in reserve; or they don’t know how to get it done.  Potential solution: make it easier/cheaper to modify rights in reliable way. Those concerns are real, but balance against unknowns in potentially productive conditional forbearance. How serious are these harms/how inefficient?

We’re moving to a world of collaborative creation: “users” are melding into creators. But not sure which way that cuts. Maybe makes middle category more important than it was.

Julie Cohen: Loren sees IP as administrative means of vesting asset, that’s functionally how it works, but then there’s a question of what IP is for.  Not only whether it is benefiting mainly firms but whether it should be doing that.  Risk of concluding that IP isn’t for creators at all and thus ignoring their interests still further.

Narratives we tell about IP influence the way people say they think about IP, so expressed motivations are very important but also may not rest on a completely firm foundation.

Clusters of problems/questions in need of unpacking: (1) relationships between creative employees and firms.  Silbey tries to defuse worry about IP mainly benefiting firms by talking about how corporate employees speak about corp. motivation; “we’re not just sharks” and we depend on the creativity of our employees.  More empirical study is warranted.  Companies harness employee innovations in particular ways/directions (Google and privacy-destructive technologies). 

(2) Managed performance, sharing, and other distribution strategies: Juxtaposition w/other literature on change in relation between corporation and individuals. Example: playbor: you get people to play & do unremunerated stuff and profit.  Screwed up deeply rooted assumptions about how labor and employment markets work.  These people aren’t employees and they aren’t even freelancers because they’re giving their work away.  How you get money? Self-promotion, apparently.  On one level we can tell a story about misalignment of IP, but also about the strategies of extraction of surplus in the digital economy; not all of the stories are happy stories.

Casebook Connect v. Cohen’s Aspen casebook—managed performance strategy in Silbey’s typology—tether the book, but you have to give back the physical copy at the end of the year.  You have permanent digital access unless/until they discontinue the platform. They do offer untethered hard copy at an extremely high price relative to the tethered product.  Managed performance is at one level not about IP, but at another level absolutely is—trying to make used book market go away/become only source for the product and tethered service.

(3) Discourse/framing.  There’s been some talk about getting out of the loop of the causal narrative of IP.  Trade associations have historically talked about the individual creator to bolster their own interests (though now they are more likely to abandon that and talk about trade deficits).  Discourse is constructed by people with interests and maintained for a purpose.

(4) “If we think a leaky regime is desirable” … for whom? In physics you design to get closer to the model; so much lobbying and rentseeking in IP is designed to do that—if your model is that everything should be licensed you design the derivative works right that way and maybe eventually you convince people to behave.  Merges & Nelson have long discussion of way patents can’t be expected to affect software industry because of the way the industry works (1990s article), and Lemley etc. talk about how the software industry responded to patenting in really significant ways—the industry responds to law. These are two different snapshots from when an institutional lever was used: now the industry looks very different.

If this is about relation between creative employees and firms, it can’t be good enough to say “that’s contracts” or “that’s employment.”

RT: Echoing Cohen.  Loren says firms have an incentive to create the right conditions for innovation: or you can try to free ride on your suppliers.  (American firms are not currently known for their long-termism.)  Kindle Worlds as an attempt to get rid of paying tie-in authors and Amazon’s broader attempt to get rid of legacy publishers, whose advances were the nearest thing to a regular salary a midlist author could hope for; crowdfunding; arguably these firms are eating not their but our seed corn. (It’s not accidental that this is marginal income for Loren & other law profs.)  Offloading promotion to individual authors even w/in traditional publishing houses—you have to hire your own press agent.  Artist as firm in herself: you hire the people to do the work; we do the distributing and take our share.  Compare to the model of treating employees as independent contractors, as w/UPS. Individualized risk, corporatized benefit.  We’re not just sharks says one interviewee, but that person is drawing a within-industry contrast.  Query: in a generation, who will Silbey be interviewing and who will be paying them? 

McKenna: one significant shortcoming of incentive-based theory is impoverished view of what it is we’re trying to incentivize.  “More” is not a thing. Whatever you design you get more of some things and less of others.  What “more” do we want?  Many of Silbey’s examples involved markets where, whatever the rule is, people can organize around it and find other ways to extract money like ancillary services. Law defines what that structure will look like—it’s how you’re going to make money, not whether.  Picking winners and losers; we should think more about the fact that IP doesn’t work well for creators—normative underlay is that it should.  But why?  Why are creators special?  If the answer isn’t “more,” why should our rules promote certain peoples’ interests?

Silbey: Howard Gardner talks about “aligning” interests of individuals and firms.  Organization is disembodied entity, but people can speak to you. 

Mark McKenna: notion that creators should be able to earn a living creating: but why?  I want to make a living playing football, but I’m not entitled to a set of rules that makes it possible for me to do so.   Thinks justification can be done but rarely is.

Cohen: IP people talk about “more” simplistically.  Churning out lots of work might not result in as good work as taking time.  Firms aren’t trying to maximize the production of IP; they’re trying to maximize production of value, and you can’t maximize for both.

Golden: Some creators’ interests might encourage overreaching in control. Maybe there’s a need for education.  Need to calibrate our arguments so we don’t encourage abandonment of creators if we think they’re valuable.

Barton Beebe: Process v. results in Silbey’s work: book emphasizes aesthetic process and not ends; unalienated labor is enjoyable even if in the end the resulting thing is not successful. People definitely reveal a preference for aesthetic process; should we work to maximize that? How would we do that? 

Said: it’s not a lack of a legal regime for subsidizing football that keeps McKenna from playing football, is it?  (He was a Notre Dame QB, by the way.)  But that analogy gets us to think about means-end relationship.  You could decide to stay home and play touch football, but football is collaborative.  Or any other example: writer could decide to stay home and write, but the practice is not just about that.  It’s also about engaging through the practice/work with an audience—dissemination is important in that conception.  [But cf. the interviewee who’s an unpublished novelist and doesn’t yet want to share her work.]  [I thought Said was going to talk about how you can’t get economic rewards just with exclusive rights; you have to convince other people that it is worth paying you to allow them access.  I guess talking about distribution is the same point seen from the creator’s POV.]

Silbey: the distribution chapter is most aligned with the IP system as it is. Managed performance and many/more (selling as many copies as possible) are standard IP stories.

Dan Kelly: Struck in the idea origination chapter—not about the incentive system, at least in the characterization that it’s all about money.  People care about many things; even though quotes were inconsistent w/ caricature of incentive theory, if you take a broader view of preferences there might be nothing inconsistent.

Different ways of setting up income: creators care about steady stream for survival and also b/c they are working constantly so they feel the work should be rewarded, not just the big payout at the end.  But creators sometimes don’t like to go to firms where there is drudgery. Are there other possibilities to bring capital to creators? Hard to identify who’ll be good.

On McKenna’s “more of what?” If you don’t subsidize IP, the idea is undersupply (McKenna: but of what? There will never be an undersupply of creativity, but types would differ) but we think your private incentive to become a QB is sufficient. 

Abraham Drassinower: Constitution does single out authors/inventors, not QBs.  Also suggests connection with progress, art, and science.  It’s plausible to say that in © the concept of process has a lot of attraction. © isn’t as concerned w/result as it appears to be economically—doctrine of independent creation for example.  We care that you create, not what.  Patents: invention seems to be about product, not result.