An Author/Reader Conversation about Jessica Silbey, Against Progress: Intellectual Property and Fundamental Values in the Internet Age (2022)
Robert Brauneis: Three layers—(1) object of discovery:
creator and innovator accounts, concerns, what kind of conditions support/hinder
them in their work; (2) thinking about IP rules, particularly © for
photographers; (3) economic & social vision; equality, dignity, privacy,
etc are contrasted to hierarchy, subordination, exclusivity, precarity,
commercialization. Changes to IP rules on their own in our world may have little
effect on whether we go towards the good vision or the bad—cloud computing,
network effects that cause convergence on a small number of intermediaries, and
important tech that is protected by secrecy/real and personal property
law/employment agreements. IP loosening could not have much effect/even help
strengthen corporate consolidation. Norms/inculcation of values and other
fields of law like antitrust might be more effective.
Questions about whether creators would agree—Lynn Goldsmith objects
to Warhol’s use; maybe that’s an effect of being an unusual use compared to how
photographers usually see their works adapted in art. Maybe it’s a sense of
breach of contract, but the book describes more tolerance for reuse.
Silbey: ©, TM or patent becomes a device to assert certain
things about yourself or your work. Insofar as people like Lynn Goldsmith or
the ACLU are using IP to argue for certain justice goals, what IP is and what
it’s for may be changing, even if the text doesn’t change.
Deepa Varadarajan: IP is a vital terrain for contesting fundamental
values. As fiction author, struck by community norms among creative
communities: creators routinely avoid the constraints of IP regulation and err
on the side of more promiscuous sharing—fairer uses. But also less willing to
tolerate uses “not in the same spirit.” Should IP law try to incorporate more
norms, especially when defining a community is getting harder and harder? (Compare
BookTok—are readers part of the fiction community?)
Trade secrecy: mixed up with commercial morality and relational
duties, not just incentives—is this more receptive to incorporating the broader
set of values described the book? Also intersects a great deal w/contracts. Contracts
imposed on people w/lower bargaining power can get rid of the limits on trade
secret doctrine; this is also a theme of the book—form contracts can undermine
the rights and recognitions that creators seek. Pro photographers agree to
onerous contracts from longstanding clients in order to retain them. NYT
theoretically lost Tasini, but led NYT and others to require fee-free transfers.
Giving more rights to authors didn’t give them more bargaining power against
aggregators.
Michael Burstein: seems like disorganization is an issue—Conde
Nast being able to impose terms on scattered photographers seems like a reason
for discontent w/ private ordering
Rebecca Curtin: Important difference from tech upheavals of
past. In manuscript to print, you can find readers anticipating what print will
facilitate—the concept of an authoritative edition, the professional editor;
readers wanted these things before the tech offered them. In Silbey’s book, the
tech has lapped creative communities and begun to unravel norms central to
creation and dissemination rather than coalescing them.
One lesson: Threats to privacy are threats to communities
and practices that sustain creativity. The “clean air and water” of culture are
at risk.
Michael Burstein: Presence in narratives of transactions as
central—IP might be in the back seat. How the values come into play is less in
creation and definition of IP rights and more in their flow, transfer through
ecosystems. Equality: in discussion of equality, in Tasini, Roche, and even
Kirtsaeng—the first two seem to have resurrected the romantic author not as
creator but as transactor: each case claims to protect small creator/inventor,
with little awareness of practical effects. IP law of creation isn’t telling
the whole story.
Open arrangements/commons-based accounts are largely devoid
of law and more about institutional structures/governance and self-ordering
that is more than just in the shadow of the law.
Institutional precarity: Declining trust in markets, not in
IP law. Creators experience these practices as coercive, hostage-taking, and
the effect is on attitudes towards market structure. That’s the domain of other
kinds of laws, like antitrust. Those markets obviously depend on definition of
goods sold in them, and that can’t be ignored.
Public interest is often missing in anti-discrimination
context like Eldred and Golan, and anti-subordination analysis like Tasini and
Roche. Individual interest v. public interest opposed in those cases and in
Kirtsaeng. Wonders if the baseline in IP renders issues of civil equality more
difficult. It’s easier to identify superior moral claim in race/gender
discrimination than in the public domain. These are policy choices, pushing IP
closer to regulation than to property regimes.
Rosenblatt: power imbalance and the importance of collective
action have become more central to our lives/scholarship. Ability/inability of
creators to work collectively seems a recurring theme in addressing power
imbalance. What does that mean for us as IP thinkers?
Josh Sarnoff: end of liberalism v. paternalism—we’re seeing
that play out in IP. Paternalism in IP can be things like preemption overriding
contractual waivers/overrides.
Silbey: wanted to reaffirm the idea of the public, not the
public domain—we are all in this together, interdependent.
No comments:
Post a Comment