Design Law Scholars Roundtable (Notre Dame) part 1

I have just now gotten around to my notes from this excellent roundtable.

Introduction: Mark McKenna & Graeme Dinwoodie

Why do a roundtable like this? Putting together scholarly discussion for long-term outputs rather than particular works in the short term. Also developing a reading list/canon, which is particularly useful for design where there are a lot of different fields involved/don’t need to jump straight to legal doctrine.

Session 1: What is “Design”?

Introduction: Laura Heymann: IP thinks most of things, objects, the work; by contrast, designers mostly say that their work is about solving problems, and experience/interactions.  Design not as craft but as hypothesis.  Considerations: User response, inputs—not unidirectional; focus is on audience not designer. Social, economic, political effects of design: e.g., camera film that didn’t work as well on nonwhite skin, algorithms that produce differential outputs. Standardizing sizes of bricks: standardized to a male hand, and face masks and crash test dummies were similarly gendered. (Invisible Women, Caroline Criado Perez.)  Policies are also designed, e.g. the snow removal policy that is designed to help out most those who commute in and out, two car trips a day, while the paths for people who are making multiple small trips on side roads and sidewalks remain uncleared—gender and age effects.  It’s easier to drive through 3 inches of snow on a major artery than to push a baby carriage through 3 inches on a sidewalk, so reversing the priorities helps equity and decreases health costs. That is design.

Shifting from product to process means attention to what the process looks like. Design is often “good enough”—the minimum viable product—the idea is that there will be versions of it.  Moved from “waterfall” process of handing off the product at each step in the chain . Now the idea is “agile,” breaking down a project into “sprints,” w/different iterations. Discovery, design, testing, feedback, repeat, all working at the same time.

Questions for group: what we think about constraints. Constraints as hampering innovation, versus constraints as a form of spurring creativity. Second, if design is more about iteration and less about creating a design for all time that will be in MOMA, how does that cohere w/our focus on the work and not the process. Third, how do we respond to design that doesn’t just accommodate behavior but changes it?  An app that is designed to get you to exercise more/save more money might influence behavior away from the app. It is both the thing and what the thing does/how it affects people.

Jessica Silbey: One way to answer “what is design?” is to ask what designers do. Design as a profession—characterized by education, principles, ethics. But you could also ask for a history of design: what is design over time? Art historians/cultural historians: could trace industry trends and aesthetic patterns, as well as political patterns. We could also study design semiotically, as a form of aesthetic craft—Bruno Latour talks about design having characteristics of modesty, a meaning, a hermeuneutics, and a morality. When you have a designed object, you can interpret its features the way you might interpret a novel or a poem: what it means/the role it plays in culture. We could also study design as a social process, institutional practice—trying to figure out the mechanisms in society that produce design: economic, political, domestic institutions. That could help w/why design seems ascendant today. We could also think about doctrinal and statutory rules, maybe over time/comparatively: we have to talk about why it’s a category of legal attention in the first place.

Some of these methods are not normative at all. More of a how. Law cares more about the why. Need to choose the other frameworks/knowledge systems on which we will rely to justify the treatment in law—whether that’s art history, sociology, etc.  W/McKenna, working on ethnography: when designers talk about design, they say they’re designing experiences not just objects; human-centered design is the focus of design work, even if designing a washing machine/stove. Minimizing waste, improving lives, getting inspiration from other things in life—empathetic design. There is an ethics/view of what good design is, and that’s a feature of a professional standard. If there is a metric of good design/bad design, thinking of the law’s role in promoting that would be one way of justifying the standards.

Chris Buccafusco: could we benefit from thinking about other, distinguishable concepts? E.g., innovation or creativity or engineering. W/in institutions (schools, guilds, etc.) differences b/t the kinds of people who call themselves engineers and those who call themselves designers—histories, including gendered histories, of this.  Carl Ulrich at Penn has a nice book, free on his website: Design: Creation of Artifacts in Society. His definition: Design is conceiving/giving form to artifacts that solve problems. So broad a definition as to be almost meaningless, but allows us to ask interesting questions.  He describes design in stages—designers sense gaps in users’ experiences. They then define the problem, explore alternatives to solve it, and select a plan. Any step can be iterative w/in itself and w/other steps. Very often “users,” both for Ulrich and the law, can mean firms themselves, not just customers. Or users could be regulators, third party payors, etc.

Law enters at each stage, not just at the end where there is an artifact. E.g., law requires certain MPG for fleet of cars. Problems can also include avoiding upstream IP rights or desire to create downstream IP rights. Desirable qualities themselves will vary according to different users’ inputs into the design problem. When designers explore alternatives, grammars, rules, and norms of claiming affect the realms of exploration and the paths of exploration.  Designs are interactive w/other designs in society. Disability in design: the creation of mobile/foldable wheelchair is transformative in some ways but deeply limited in others; law and society shapes the environment in ways that are responsive to demands of wheelchair users.

Graeme Dinwoodie: Implicit in discussions: we have a different understanding of design now than we did in prior stages of history. What is the value, if there is a value, of looking for something intrinsic versus looking for what it means to us now. 1920s version: “most advanced yet acceptable” as measure of design—is that just historically contingent?  Agile design: what prompted that shift from waterfalling? Have consumers become comfortable w/a product that is in many respects incomplete?

Design compared to what: Max Planck Institute folks in the 80s tried to distinguish design from marketing, but since the 80s we’ve become more comfortable merging them.

Design as externally driven: responsive or reactive. Connected to different justifications for IP: tends to mesh better with instrumental justifications for IP rather than deontological/expressive ones.

Law entering into different stages of the process: tort and environmental law, not IP law, in many of the examples. Law is a social force like any other, not surprising that it enters the design process. IP has very little to do w/what many designers are doing. They only think of IP when the lawyers show up (agreement from McKenna on that from research with designers).

Jeanne Fromer: Don Normal, the Design of Everyday Things, original title The Psychology of Everyday Things: good design tells people how to use an artifact; users aren’t stupid but there’s a lot of bad design out there, like doors that look like you should push them but you’re really supposed to pull. This also goes to the issue of integrating form and function.

Industrial organization point: if you look at companies, you see designers/design departments in very different places. They can be in engineering, marketing, design departments—it’s hard to categorize. How a company is organized can affect what comes out as the final design. Toyota famously has alternative designs for cars that get handed over to engineers, who pick the one that works best for them. At Microsoft, Surface/X-box designers/engineers had very different structures. Surface: the designers were leading the show. They wanted the hinge to be unseen, and the engineers said that was impossible, but they ended up doing a lot of engineering innovation at the prodding of designers. X-box: the engineers ran the show and the designers were constrained to follow. Overall: Design and its effect only can be assessed in relation to the whole process, which can differ a lot.

Sarah Burstein: “Design” goes back to 1790s in utility patents. The industry/marketing has changed, but don’t treat the bullshit as real. Not that different from other regimes: artists think that they live as artists and just produce things as spinoffs (compared to Michelangelo who was hired to paint a chapel and move on). And what we want to encourage in terms of innovation is similar. Everything that wasn’t “art” or “craft” was called design. But the term gets in our way—we’ve lumped dissimilar things together for hundreds of years, and not everything that is, has been, or can be called design should be treated the same way in law.  The “professional identity” of designer is new.

Dinwoodie: it was a list of things that rent-seeking industries in the UK sought and received protection for, and eventually the list was called “design” (cutlery, pottery, etc.).

McKenna: Whirlpool’s designer they talked to: discussed workarounds for industrial organization based on personal relationships to get around constraints on design imposed by structure of organization. Collaborative team w/different disciplines working together so it doesn’t get thrown over the wall to the engineers. Even so, designers didn’t lose track of who was a designer, regardless of where they were in the organization.

Also, extraordinary breadth of what they mean by “artifact,” which could be a thing but could also be an experience or brand: it’s something produced by the process. Chicken and egg problem: do we shift to process b/c the outputs are so broad? 

Problem finding: how do designers know what needs to be solved? His sense is: designers don’t have a strong sense of that, they just feel like there’s a problem to be solved.

Heymann: it may depend on whether there’s an existing backdrop/specific clients for which they’re working. The background may produce the problems.

McKenna: sometimes the problem is: this isn’t selling enough. That’s a marketing problem, not a deep human need in the world.

Mark Janis: struck by the magnetism of “designer” now: everyone wants to be one! Does its breadth deprive it of the ability to be an organizing principle? In law: the visual appearance of artifacts, a tiny subset of what we’re kicking around here.

Jerry Reichman: to what extent is functional standardization of products still a driver of design? He thought that standardization rather than technical superiority was important w/in any given price range. To what extent do designers care about aesthetic impact regardless of what corporate/engineering people are saying?

Silbey: responding to Dinwoodie about problem solving: many designers we talk to talk about problem finding. Two masters: they have a client who thinks they have a problem, but also they have a set of disciplinary/pedagogical goals to uphold as designers. A lot like law: you have obligations to the law and to the client, and those two things can conflict. Sometimes those are aesthetic conflicts: they want to design something optimally beautiful but the client doesn’t want to go to that level. “Just scary enough” for the client to want to do it.  Problem finding = they are thinking about a set of standards from their background/discipline along w/the client’s wants. We have been asking what the canon of design is, and they very much believe their origins are in art & architecture even when doing human centered design. They studied drafting, font design, architecture—even when they’re designing apps. They don’t talk about articles of manufacture. We haven’t figured out yet when they describe the ascendancy of design in the 60s and 70s as a pro field, whether that is a change or shift that is meaningful beyond as an educational model (this is when design was hived off educationally).  Introduction of ethnography into their work today is different from being an artist/architect: studying how people eat in a fast food restaurant/how they interact w/their computers—they describe that as a new wave in design that implicates what it means to be a designer.

Role of constraints from law: if what is happening is ethics/client management/marketing, the idea that anti copying protection will facilitate professional standards is sort of orthogonal.

Buccafusco: there are lots of designs that come from people who aren’t pro designers in firms—3D printing, Eric von Hippel, etc.

McKenna: has asked whether anyone who uses design process is a designer; “designers” tend to be skeptical about that.

Silbey: like photographers! It’s not just someone who takes a photo. Many were educated before there were design schools; form & function were integrated in a particular field, such as architecture/car design—they came out of fields w/a particular utilitarian/aesthetic balance.

Younger designers: their sketching skills are less developed but what drew them to design school is now the ethnographic elements.

Dinwoodie: surprised by how little of the description has been about aesthetics given that the law is going to focus on that.

Silbey: evaulation of aesthetics as a driver has been harder to create standards around.

McKenna: we do hear over & over that their own evaluations of good design have aesthetic components. Sometimes the problem they have is an aesthetic problem, so the distinction is not clear; one medical device designer was frustrated by her inability to spend more time making things beautiful.

Felicia Caponigri: When/where does design end? Does someone who puts in a fountain in front of an historic building in its style engage in design?

Jonathan Masur: design practice as sensing a gap in user experiences—that could be an aesthetic gap (and thus connected to deontological motivations/internal drives, contra Dinwoodie). Industrial organization: even w/in the confines of for profit consumer product firms, you see designers in different roles w/different ends related to design of product, user experience, or how the product is marketed. That brings me to the idea of Janis/Burstein that this is such a big category that it may not cohere in a legally useful way. Design as process: thinking of the how of design—that is a coherent whole that we can talk about sociologically as having commonalities across design, but that’s not how law thinks—law is interested in the what, and also the why, and also the who (what skills they bring to bear, what background do they have), rather than the how. Do we think that law is right to engage in this kind of sectioning and fragmentation? Is there something broader to be said as design as a process (& its relation to law).

McKenna: relevant to what we talk about when we talk about © v. utility patents.

Masur: Right, we can throw around the word innovation in the same way. Design as a how is potentially coherent; then the Q is how law should think about that coherent category.

Chris Sprigman: Design as in part the result of increasing standardization of physical artifacts—that goes to why we engage in this process. We tend to valorize design but there is probably an optimal level of design, and we may have too much in some markets. EU design registry: has few fashion items, but many portable generators.  He spoke to a guy in a Japanese company: this is a very mature company, so these things are all about the same regardless of who makes them. So we are in a commodity market w/price competition. We engage in design to manufacture desire for a particular producer to price above marginal cost. This is a debate from 50 years ago about TM: is this socially good? Or is this a dissipation/transfer of consumer surplus to producers with associated deadweight loss? This Q pertains to design as well.

Heymann: one change over time is explicitly noticing that design is a process; another is in thinking about other disciplines’ knowledge like psychology as relevant. More sympathetic than Sprigman to value of brand as design: it does produce welfare for at least someone.

Just as © has different meaning for publishers than for authors, design law may have different meanings to firms than to designers: who are we doing this for?

Masur: if people are willing to pay for a beautifully designed generator, we would hope that they’re getting value out of it, at least as long as there is still the ability to buy a plain vanilla generator.

Sprigman: but it’s in every producer’s interest to engage in conscious parallelism. Rational choice is a matter of faith; he doesn’t think a preference is a preference is a preference; some preferences are manufactured. We should be careful about interfering w/preferences but other people (sellers) are already interfering with preferences, and we have put the law at their disposal to do so.

Masur: the Q is whether the user is getting more value, enjoyment, whatever out of the designed product than they would out of the standardized commodity.  It’s certainly true that producers can create desires and that law facilitates it. But the desire is still real/its satisfaction still makes the person better off. All this could be said about cars [or novels, Silbey says] as well as generators. 

Sprigman: yes, but that’s shallow. The law shapes preferences by creating markets that makes things available. People are inherently conservative: it’s hard to envision what they don’t have. Preferences depend on what’s available/what you know. There may be good policy reasons for the Chicago view to prevail, but it can’t be defended based on what we know.

Estelle Derclaye: There are engineers who would not call themselves artists or architects who would still consider themselves designers. They draw! In Europe, if the appearance of the product has not been the main concern, we have said that you should use [utility] patent.

Design of processes: that gets to “systems,” but that should make us think of patent—methods of operation—or even of exclusions from patent [and from ©].

McKenna: designers we talk to identify an intrinsic motivation to make things beautiful, but also a recognition that their own sense of what is beautiful can’t measure success if design is about solving problems, so it has to be something that others find beautiful.

Mid-point discussants: Ed Lee: We often describe what lawyers do as problem solving. Does that mean we’re doing the same thing as design thinking? Human centered design could be called “empathy.” Relevant goals: usability, nondiscrimination (including in AI).  Something that goes unsaid: designers design things that are new, whether as problem to be solved or as method for solving.  The design process is not necessary for pure copying.  [Or is it?]  Designers are trying to do something that is not just a repetition of what others are doing. Not just solving a problem, then, but solving a problem in a way that hasn’t been done.

Dinwoodie: you’re saying that’s an artistic vision. [I don’t hear that, necessarily; it might just be a professional norm or self-concept.]

Reichman: we should accept low levels of novelty because those can still be valuable.

Stacey Dogan: Definition of design: not always what we talk about in legal context, but goes well beyond it in doctrinal and practical contexts. We should all be thinking about network design. There is no satisfying single definition. She’d define it something like deliberately trying to solve a problem/create a demand.

Thinking critically: designers are often portrayed as altruistic, trying to solve a problem “for us.”  But programmers/cryptographers think about the world in terms of adversaries; they don’t assume that everyone is acting in society’s best interests. We have been assuming problem solvers for the general good, but there are all sorts of situations in which designs may not promote overall well being of society. [See “dark patterns.”]  Bad actors in antitrust context: 9^th Cir. case in which a design/patenting of biopsy needle gun was made specifically to create barriers to entry, so they were no longer compatible w/after market replacement parts sold at a lower cost. Similar concerns w/evergreening pharma patents. Old Microsoft litigation: Microsoft designed the OS in a way making it virtually impossible to extricate the browser from the OS, creating barriers to entry. These days, we’re all thinking about the design of tech in ways that promote addiction. Serve the economic goals of the firm, but we need to think critically about whether they’re promoting or disserving social goals. Infinite scroll, autoplay, inducements to keep posting.

Relation b/t consumer demand and social welfare: difficult problems we’re only beginning to ID let alone understand. Our laws have been built on presumption that expressed preferences say something about the value that products or services have for the people purchasing them. There’s a temporal aspect to that. Law/gov’t as producer of regulation should pay attention to the fact that short-term pleasures often don’t translate into medium and long term well being and can even degrade it.  To what extent should the law be incentivizing particular types of design and why? And how should it regulate the iterative process of design as described? To what extent does/should the law place limits on design, and should those limits focus on the design itself in isolation as artifact, the intent behind the design (interesting Q in antitrust), the effects of the design?

Jeanne Fromer: Lawyers like all inclusive definitions, but that will lead us into a trap here w/broad definitions of design. We do have some canonical sense of design: we should think about the prototypical “design/s.”  Household products, devices, furniture; then we can focus on what the heartland means and also about borderline categories like systems. The heartland might not be static over time.

What makes good design? A beautiful chair can be uncomfortable; would we all agree that was good or bad design? Are there different theories? Is it about the market deciding? We need a framework for that to get a sense of the law’s role.  Designers and consumers might have different answers; different time horizons would give different answers.

There are different invocations of design w/in different legal regimes, just as an “is” and not even considering “ought.”  A lot of what law is doing, explicitly/implicitly, is having a sense of what design is and lawyers/claimants have to articulate their claims in a particular way for ©, TM, design patent, utility patent.  What role if any can IP law have in inclusive design: what we want designers to think about, given that many of them are not thinking about, e.g., women’s interests in the design of sidewalks, inclusive sizing. Market alone? Or law, perhaps including IP?

McKenna: one way of defining design is to ask what design is not. Copying is not design. Every single designer we’ve talked to has talked about widespread consumption of precedent across a huge set of areas—furniture designers don’t just look at furniture. They feel mostly quite free to incorporate lots of pieces from others, and feel that small changes/small repurposing is enough to create a new design. Resists the idea of copying, but the line is a narrow one.

B/c he’s been teaching privacy, seems quite obvious that not all design is socially beneficial. Often used in harmful ways. But the design is created b/c it fits a need—the companies value it. Like designs meant to prevent compatibility/interoperability/to create deliberate obsolescence. Should be obvious that some designs in immediate interest of purchaser do not promote social welfare. “Persuasive design” is a concept; designer had some discomfort b/c they had a self-concept of solving problems rather than creating them.

Sprigman: though that’s a story they’re telling themselves.

McKenna: and yet they believe it; they think they have lines, though you might draw them elsewhere.

Reichman: article 3(d) of Indian law can deal w/evergreening—expressly precludes evergreening. We should adopt that. European unregistered design right of 3 years is the most brilliant solution.  There’s a relation b/t design and appropriation art.

Dinwoodie: Law is more normative than descriptive. System has to be workable at some generalizable level, which may interfere w/our desire to be granular about which designs are good/bad for society.

Heymann: similar issues arise in ©. Maybe it’s tort/administrative law that decides what’s good.

Dogan: don’t think about good/bad categorically, but limits on things like scope. Those are designed to limit the adverse effects of the regime, and we can use them here.

Ansgar Ohly: Similar debate in patent law about environmentally friendly/unfriendly innovations. Could leave it to market/extralegal factors like designers’ beliefs about the acceptability of copying.

Buccafusco: search, experience, and credence qualities as useful ways to think about design. Visual characteristics are often search goods, but value often derives from experience over time. And w/credence qualities we may not know at all. If we think that search is king, markets are likely to do well and supply side rules like IP are good. But to the extent that experience and credence matter, demand side regulations may do better at maximizing those values. Copying: will be important to think about how audiences think about levels of abstraction. Experts may see more differences than nonexperts. His students tend to see more similarities for downmarket copiers (Sketchers copying Stan Smith) than upmarket (Gucci copying Stan Smith).

Burstein: Designers may well object to copying of ideas and think that’s what the relevant level of abstraction is.

Derclaye: in EU, we have morality embedded in all regimes except ©. Possibility of excluding sexist/racist design from protection. 

Ohly: judges may have different senses of morality from designers/general population. Successful movie in Germany: using Fuck Goethe in the title. General Court decided the TM was against public morality.

Derclaye: I agree—the law should be based on a criterion other than leaving it to the judge. Empirical/scientific approach to public perception.

Silbey: maybe some parts of design should be more common law based, evolutionary in response to some of these concerns. Separately: design is a process, but designers also describe design as a story; a design has a narrative behind it, whether it’s the precedent of the things that have been made or a narrative connecting the pieces of brand identity. Design is intimately tied to self-justificatory story for how you get from A to B. Is that different from how © owners talk about © and patentees talk about patents? There are often mythical origin stories; maybe the design story’s uniqueness is the way it talks about solving a problem based on things that came before.

Sprigman: notion of authenticity is noticeable in designers’ talk, but not sure it’s unique.

Silbey: brand requires a cohesive narrative, but a lot of designed things are described in narrative terms without brand.

Heymann: idea of customer journey is also relevant. Compare: audience experience in ©.

Silbey: yes, but in design the user/customer is always part of the story. A stock story of how a novel was created wouldn’t include the audience, and a design would.

Derclaye: if we recognize artistic design then we raise the issue of moral rights. Architecture: France limits the ability of the designer to prevent the alteration of the building; the users’ interests will come into moral rights in different ways than in traditional nonutilitarian artistic works.

McKenna: the legal Qs we ask depend on the systems into which we’ve sorted design: design patent, ©, TM. But if design doesn’t sort conventionally into those categories on their own terms, why are those the right categories/constraints? We romanticize designers in a way we don’t romanticize plumbers, but we have to figure out who fits in the category designer and why. When we get to doctrine, we should live with the messiness of these definitions and not just jump straight to separability. Lots of stuff from other areas fits the definition of design, and do we really want to corral that all into design law? A lot of the rules we have come from very particular subject matter that lawmakers were trying to cover and not from some attempt to define what design was in general.