Carliss Baldwin: Drawing the Boundaries of Intellectual Property
Competing social arrangements for innovation. Producer innovation: independent inventor, vertically integrated firms in an oligopoly, strategic alliances for knowledge creation, and modular clusters of forms have grown up along with user/collaborative innovation, all in competition and interaction/hybridity. Hybridity where one provides a platform: Valve Software provides an engine for Counterstrike, a user-created game. Modular cluster of firms around Linux: open source sitting within firms making different pieces of the system. Users might also be able to subcontract with firms to do their work for them. Hybrid social relations require IP modularity.
All innovations are new designs or changes in existing designs, therefore designs are the basis of much (but not all) IP. Design’s structure can be represented as links between design dependencies: if A changes, then D, F, Q, and Z need to be reviewed and might need to be changed. Modules of the design exist in a matrix that can be graphically represented. Different designs with the same functionality can exhibit different structures.
Knowledge is an overlay on the design structure, associated with individual elements or groups of elements. Knowledge “chunks” are given an IP status by their owners. Incoming IP you might be using, outgoing IP you might be generating. IP status is the combination of legal protection chosen by owner and owner’s access policies. The IP status of different chunks can be incompatible—shared can’t be secret. Proprietary licenses may be incompatible with GPL licenses. One example of a violation of IP modularity: licensed-in code was distributed throughout the codebase; license was about to expire, creating a classic holdup problem. Solution: redesign the codebase to modularize so that there were no dependencies between the new platform and the licensed code, changing the transaction situation dramatically and allowing the company to get a new license on favorable terms. And quickly they began to use open source instead of licensed code in that module.
Andrew J. Nelson: The Musician-Engineer: Lessons from Three Eras of Technology Development and IP Management in Stanford’s Music Department
Music department has a center for computer research in music and acoustics. Hundreds of compositions, performances, visiting composers, publications. Also has over 100 patents, 39 industrial affiliates, over $25 million in cumulative tech licensing income, which is unusual for a music department.
How does an academic music department come to engage in leading-edge technology development? How has their status as user-innovators affected their attitudes towards IP?
Frustrated by the limited timbre of the 100 usual orchestra instruments, one guy turned to the computer to compose. He wanted to write a new composition and created frequency modulation synthesis, which was cheap digital synthesis. The tech licensing office thought it was an interesting technology and licensed it to Yamaha in 1975. Other contributions to things like surround sound.
1970-1983: applied for only four patents in this period. Almost all the discourse to outsiders is focused on new compositions. New technologies not incremental advances.
1984: revenues start pouring in from the Yamaha deal, and that changes the attitudes. 1984-1997, 100 patent applications. Discourse centered on new tech and commercial possibilities; established an industrial affiliates program and formalized external relations; Office of Tech Licensing develops a TM program and identifies the music dep’t as the likely source of the next blockbuster tech to replace Cohen-Boyer rDNA—poured millions of dollars into developing new tech. Massive failure: department nearly loses its shirt.
1998-now: the educational entrepreneur. 3 patent applications; full embrace of open source; logo now has the Linux penguin! New approach to monetization: summer programs with experts to learn the open source tech in a hands-on way. Dozens/hundreds of industry reps at $10,000/head—nets more for the department than any IP management they’d done before.
Projects: looking at longitudal diffusion mechanisms and the role of public v. private orientations; multivocality in grant applications—how do you pitch the same project to the Defense Department and the National Endowment for the Arts at the same time? And measuring knowledge flows in network evolution and geographic reach.
Joachim Henkel: Optimizing the Trade-off between ‘Open’ and ‘Proprietary’
Profiting from innovation is commonly assumed to require exclusion mechanisms: patents, secrecy, complementary assets. Shortcomings: “free revealing” isn’t included in standard models; no account is taken of interaction effects. How to integrate free revealing into a study of profiting from innovation?
Different control mechanisms (rights, secrecy, revealing, complementary assets, learning-curve advantages, subsidies) and different appropriation mechanisms (use in own products/processes, exclude others, license others, benefit indirectly from others’ use, intrinsic benefit from innovation). Empirical setting: private branch exchanges in the communications industry. They don’t do much free revealing, but he studied contributions to open standards.
Interviews with industry experts: size of patent portfolio turned out to be important. There are interactions between patents and lead time advantage—if you’re ahead in research you can file for patents others won’t have, and inventing around your patents increases your lead times over other competitors—people who say that patents aren’t that important may be ignoring interactions between patents and lead time. New software to capture interactions. Respondents are asked to tell which company will profit more; companies are said to differ in things like patent portfolio, contributions to open standards, time to market, and sales/service quality.
Geertrui Van Overwalle: Patent-based Collaborative Licensing in Genetics
Empirical question: what is the impact of patents related to genetic diagnostic testing on access to diagnostic testing services? 22 top genetic diseases; looked for relevant patents and blocking effects. 250 relevant patents, 145 active, 267 independent claims.
Findings: 15% of claims were almost impossible to circumvent (blocking), 49% difficult to circumvent, 36% easy to circumvent. Expected that there would be lots of blocking patents on genes, but that was not the case (3%). Instead, there were lots of blocking patents on methods (roughtly 30%). What is the best way to deal with patent thickets? Hypothesis: Formal rules of contract.
All collaborative models in genetics are based on the preexistence of IP rights: open source uses IP as a platform; licensing clearinghouses; patent pools. IP can leverage access. Different models may be appropriate for different types of uses—universities; if owners are both producers and users (v. NPEs, I guess).
Sheryl Winston-Smith: IP Rights and Entrepreneurial Innovation in the Medical Device Industry: David, Goliath, and the Patent Office in Between?
Highly concentrated industry: top 4 companies have 80% of sales and of R&D, but there are a lot of start-ups where competition plays a big role—corporate venture capital is key. Big companies are worried about a competitor acquiring a startup and dominating the market, so they take equity stakes. It matters who the founder is. Entrepreneurial clinicians are able to produce more directly relevant innovations. Intersection between human and financial capital: how does that influence outcomes down the line?
How and when do IP rights align interests between outsiders and incumbents? How would IP be addressed if an outside user modified a device substantially? Open/user and entrepreneurial innovation in medical devices involves significant attention to allocation of IP rights. Sometimes it’s done by contract: paying the clinician; consulting relationships in which the company owns the work. Sometimes the entrepreneur licenses the right to innovate. Billion-dollar settlement for entrepreneur who sued Medtronic: interests are not always aligned. Entrepreneurs need capital to get ideas to market—as users they may have insights about unmet market needs. The corporate venture capitalists need innovations—they want breakthroughs every 3-4 years, and the cycle is shortening.
Entrepreneur can usually get a patent; this provides a basis for negotiation. What is the optimal timing of the approach of the entrepreneur to the corporate VC? Patent protection may be insufficient if they approach the VC too early; the corporation may be able to reverse engineer, build around, or find components elsewhere. Or the entrepreneur may hold on too long and never get to market, or the CVC might get the idea anyway and never reward the entrepreneur. She is researching optimal timing now.
Jeff Furman: Who Benefits from Openness in Science?
Standing on the shoulders of giants requires institutions to preserve knowledge: the loss of the Library at Alexandria set the world back. Have to separate selection effect (how does certain information end up within the institution) from treatment effect (the effect of the institution on how the knowledge is used). Knowledge is not randomly designed, for example university v. firm patents. University patents are cited more broadly than firm patents; we could conclude that universities are better at diffusing knowledge, or just that the sets of problems worked on are different—if firms were working on the same problems and still not cited as much, there’d be better evidence for the “better diffusion” hypothesis.
So, look for reasons that are exogenous to the knowledge itself that shift knowledge between types of institutions and see how the knowledge behaves. Biological resource centers: they collect and offer access to biological organisms for research/commercial development—cell lines, microorganisms, tissue cultures, animal models. Peer-to-peer networks function for research tools, but they can break down for personal or discriminatory reasons. A public deposit may work differently/better. 300+ BRCs around the world; the largest in the US is in Manassas, VA.
So, these cells existed in the P2P network, and then they got transferred to BRCs for exogenous resources. Look at how that affects citations to the foundational work related to the cells. Citations rise after deposit in BRCs, but were flat before the transfer. Moreover, the type of publications generated changes—non-US researchers generate more publications; researchers at non-elite US institutions generate more publications; citations in top journals to papers not in top journals rise, as do citations by elite academics to papers by non-elite academics.
Q&A:
Q: given the costs of preserving BRCs, there’s no long tail—so what do people want to invest in preserving?
Furman: People running these want to preserve everything forever, because they are interested in biological diversity. Costs are relatively low for any one material, but large overall. Federal funding in US has been declining, which has made them pare down the collections that don’t circulate much.
Session 6: Law and Policy
(Moderator: Andrew W. Torrance)
Michael Meurer: Dividing the Spoils: Fair Division
Game theorists investigate: what is the appropriate/expected division of benefits from joint action that produces aggregate benefits in excess of individual action?
Suppose A, B, and C could collaborate: A+B+C or A+B or A+C produce 6 units, whereas B+C or any of the three standing allone produce zero. How to allocate if they all cooperate? Egalitarian = 2 for everyone. Proportional: can’t do it because standalone product is 0. Shapley value: 4 to A, 1 to B and 1 to C. Nucleolus: 6 to A, because A is the key in any solution and neither B nor C is required.
The “contested garment” rule in Talmudic discourse: when A claims ½ of a garment and B claims the whole, how do we divide it up? ½ is uncontested and goes to B, and ½ is contested and is split. The nucleolus is plausible because people actually come to it, and to the Shapley value, without any knowledge of game theory: TVA asked how to allocate the benefits of its dam and came up with the Shapley value, a generalized version of the Aristotelean proportionality rule that is sensitive to concerns about team play. Shapley value and nucleolus tend to minimize group defection, where it’s possible to do so.
Do the axioms for the Shapley value or the nucleolus appeal? They may appeal under different conditions.
Wendy Seltzer: Intermediated User Innovation
Even when we’re engaged in P2P file transfer, we’re actually using intermediaries to accomplish the transfer, and those intermediaries have their own incentives: make money, avoid litigation, avoid costs of mediating disputes. Chillingeffects.org looks at the costs of those misaligned user/intermediary incentives. Example: McCain/Palin campaign dispute with YouTube over DMCA takedown; YT had to comply with the DMCA and wait 10-14 business days, at the height of an election campaign, before restoring a video for which notification had been submitted; YT professed to be unhappy with this and invited McCain to do something about the DMCA after the election. Recently, another spat over Miss California and Perez Hilton—Hilton sent a takedown to the National Organization for Marriage’s spot showing him discussing gay marriage. After NOM protested, YT restored the video without waiting the 10-14 days, on the grounds that this was a clear case of fair use.
Possibilities: new intermediaries like the OTW, with their interests more aligned with users.
Eric von Hippel: Policy Implications of a User-Centered, Open Innovation System
Strong brands, based on TM, are a major source of firm profits: strong brands get a premium, 30-40%. What do you do to create a brand? Repeated impressions/creating links. Communities have link-creating behaviors they engage in for reasons other than creating brand communities: entertaining/interesting—they create brand strength, costlessly. There are many community-owned backpacking logos. Among backpacking communities, 85% have their own logo, 20% have identity products (what I’d call promotional goods). Often, they buy backpacks, and sew their own logos over the commercial brand. Wasn’t an attempt to create a “brand,” but people were hanging out together and creating an association between a logo/brand and an activity.
[I don’t think this behavior is properly defined as costless. The things that people do to signal participation in a community may have a spillover effect on backpacking “brands,” or you might say there’s no marginal cost to creating the brand, but then you’d also have to say there’s no marginal cost to most forms of creating a standard commercial TM (though we might categorize certain forms of advertising as pure brand-building).]
These backpacks are all made in about 5 factories in China and Vietnam, with variations specified by each brand owner.
Survey: which would you prefer to buy, a commercial backpack with logo, or a commercial backpack with community logo? 34% of community members preferred the latter, and it had a brand premium for them over the market price. If it could be sold 1/3 cheaper, 2/3rds of people would buy it instead—which it could afford to do because brand creation was costless.
John Wilbanks: Science Commons
Extending CC approach beyond the CC license: standard contracts tilting towards sharing in human- and machine-readable form. Work with people who already want to share stuff and connect them, rather than (directly) trying to change people’s minds. CC0—a waiver of rights in a database collection. Machine-readability allows people to integrate databases and licensing in articles, so you can click through and find the provenance of data.
Next question: can a commons automate pharmaceutical workflow outside a pharmaco? It can help coordinate legal rights and desired behaviors. About 350 vendors are registered, from people involved in publishing to people who ship the raw materials. The financing crisis has actually been helpful in getting people on board, because there seem to be efficiencies from coordination.
Approached by Nike to share information related to sustainability technology. A virtual clearinghouse. Nike has a patent on water-based adhesives and they gave it away; then another manufacturer took it and advertised that it was the first to convert all its factories to water-based adhesive, without giving Nike credit. Nike didn’t like that.
Designing a one-click public license: not viral. Allows anyone to license, requires attribution, and if your revenues are greater than X you pay a yearly fee of Y. Informal working number, $30 million/$50,000. Another, private license doesn’t allow people to take the license if they’re competing with the patent owner. Science Commons is also taking the opportunity to reconstruct a research exemption as part of both licenses. Communities can execute/sign licenses until they hit the revenue cap.
Jeroen de Jong: Statistical Indicators to Inform Policies for User Innovation
User innovation is everywhere, except in innovation policy or statistics: EU innovation policy from the EC doesn’t acknowledge user innovation; OECD doesn’t provide guidelines for collecting user innovation.
Policy makers want to answer these Qs: (1) Frequency: is it huge? (2) Social welfare implications/spillovers. (3) Are there existing (market) failures? (4) What do you want me to do?
Frequency: there are many user innovators out there. Social welfare implications are positive: users tend to develop different products with new functionality, and in emerging industries; user innovation is marked by knowledge spillovers, free revealing, and innovations are often transferred to producers without compensation.
Market failures: no work yet systematically documents market failures in user innovation. Educated guesses: capabilities—user innovators tend to have technical capabilities, so if they don’t, they won’t be able to innovate. Network failures (communication). Indivisibility (modularity). But more systematic and empirical work is needed on what goes wrong.
Demark has a program for user-driven innovation. Grants for Danish companies—hiring ethnographers to document user needs and support them. Dutch innovation performance contracts: subsidize collaborative innovation at 50%. Innovation by a group of 15-35 small firms, under the supervision of a coordinating organization such as an industrial association. They contract with each other. In practice, most contracts focus on user process innovation—e.g., lightweight design of boats to reduce fuel consumption. However, external sharing/publication is not mandatory.
Statistical indicators are very important. Statistics is a main reason the linear model of innovation still exists today, despite criticism: policymakers have no other data. Without changing the indicators of innovation that policy entities measure, we can’t expect policy change. However, OECD is changing.
My question for Eric: What is the problem you want to address with the branding idea?
Von Hippel: Overcharging via brand premium.
Keynote Talk: Mario Biagioli (“The Author as Vegetable: 
Environmental Metaphors in the Discourse of the Commons and the Public Domain”)
Interested in organic/environmental tone of images, not just rhetoric but almost a necessity of a movement that defines itself as being about protecting. If you go back to David Lange’s foundational text, he uses environmental analogies that figure creative production (and thus producers) as grass/cattle etc. Same with Wendy Gordon on Lockean property theory—the use of implicit environmental metaphors.
How the politics of discourse about IP has changed as a result of cultural environmentalism: if you buy into this set of metaphors, IP is less contentious, because we’re no longer talking about criticizing the logic of IP, but only the excessive use of IP that might deplete the public domain, which makes cultural environmentalists like Clinton Democrats.
Problems with the metaphor: Traditional cultural knowledge ends up being put in the public domain and naturalized. See Madhavi Sunder. This is a substantial misrepresentation.
Another problem: the relationship between the commons and the public domain. The commons has been treated as a piece of legal history that can be reinterpreted and used in the IP context. The articulation of the notion of the commons seems to be going in many directions. One could use the semantic openness of the commons/the public domain to put an evolutionary spin on the concepts themselves—we’ll see what shape they take at the end of the debate. A less cheerful take: the proliferation of different meanings points to difficulty reconciling the environmental framework with the IP notions themselves. Are these natural resources or socially constructed infrastructures?
The real problems: Cultural environmentalists seem to stereotype the commons the way Hardin did, but for opposite reasons. Hardin: they’re natural and thus doomed. The cultural environmentalists: they’re natural and thus productive. There are reasons to be suspicious of the deployment of natural categories to discuss the production of knowledge.
Creation stories/myths about the origin stories of property are never neutral. 18th-century debates over literary property, including Locke: adding labor to nature creates property. “Every man has a property in his own person,” etc. The brain as an estate that yields produce—flowers growing from the author’s creativity (a GI avant la lettre, Biagioli said as an aside). Jefferson described literary creation as a “fugitive fermentation” of an individual brain. Lots of agricultural, naturalizing metaphors. Land provides the structuring metaphor, either positively or negatively.
Critics of IP suggested that publication was equivalent to opening the land to everyone, allowing any squatters and any destruction of value. Blackstone responded by analogizing the book to a key; being given the key to land doesn’t mean you can make lots more keys and let anyone else in.
IP environmentalism confirms the nature/society divide by emphasizing culture as that which is damaged by IP law. It doesn’t question the discovery/invention dichotomy at the heart of IP law but reinscribes it by relying on the author as creator, as with the GPL license. The cultural environmentalist needs IP law to be strong enough to enforce the license.
STS has gone through problems with its own assumptions about the dichotomy between nature and society, and the dichotomy between human and nonhuman agency. Progressive IP is going through the same problems, but instead of pursuing the critique of the romantic author, Jamie Boyle and colleagues are reinstantiating the romantic author.
Martha Woodmansee and Mark Rose looked at the romantic genius as a legal fiction—a cover-up for a move in copyright law. But look at what else was going on in attempts to establish the author as genius—the concepts of author as vegetable; genius as mountain spring; patronage as sunlight; social culture as soil. The oyster does not know that it contains a pearl; genius does not know that it is borrowing. This is apparently the opposite of the flash of genius, which foregrounds human consciousness, but the act of creation is instantaneous so there’s no awareness of copying. In the case of the plant, the plant does borrow, but lacks consciousness so cannot infringe.
Edward Young (discussed in Woodmansee, supra): In Biagioli’s reading of Young, genius means the virgin birth of artifacts that can’t be born from predictable routines of artisanal practices—creative works are born, not made. They are not the result of craft, but of the copious variety of nature—the way that no face is alike. This is the difficulty faced by one defending copyright/patent: one can construe intangible property only by emphasizing that the author produced an artifact that didn’t exist before. But there are potential endless challenges to originality. So you need to come up with something that defends the author against appropriators and appropriatees—and the answer turns out to be to turn the author into a plant or a face. The difference between individual species members may be tiny, but it exists. It has nothing to do with creativity because it has nothing to do with choice, yet provides irreducible difference. Creating the authorial genius kills it in the same move, because genius is supposed to be human and chosen.
Calling collaboration the true source of authorship leaves the invention/discovery dichotomy intact and the source of genius just as mysterious as ever.
Lemley: If growth is the metaphor, what role for IP? Why would we need it? Is it just mulch? And if so we’d want to fertilize all the possible roots, not just the plants that succeeded. An IP regime based on this would be a subsidy for all authors/inventors at an early stage, not a reward for those who succeeded. (Comment: Mark is an economist from top to toe, isn’t he?)
Biagioli: This is a critical project; I’m pointing out that the critics of copyright are in the same boat as the defenders, because both refuse to locate anything volitional in the individual author.
In 1930, the Plant Patent Act for asexually reproduced plants: he likes it because the law acknowledges that inventorship is not human. The Golden Delicious Apple: someone finds it and grafts it.
Lemley: That’s just imprecise genetic engineering.
Biagioli: But who modified the apple? Nobody!
Burk: Testimony in Congress focused on effort.
Biagioli: Yes! Nature came up with a sport, but could not reproduce it. The inventor is the one who allows nature to reproduce itself. The law is explicitly recognizing the changeable meaning of “creator” status.
Gillespie: Reminds him of Jane Gaines on photography: light creates the photo, but the artists then reframe the creative act as one of setting up/framing.
Frischmann: Is your critique applicable to all cultural environmentalism, or to particular proponents? The environmental metaphor need not be handicapped by its connection to land metaphors. It may have historical ties, but can’t we build it differently going forward, with our reference point the environmental movement, which is not necessarily linked to land? Maybe the naturalization misstep can be separated from environmentalism as a framing device.
Biagioli: You can use social construction to define your project, but look at Sunder’s work: revitalization of the public domain casts traditional knowledge as nature. What looks progressive here has a colonial effect elsewhere. His interests would be in developing a notion of environmentalism that doesn’t replicate the nature/society divide and that doesn’t divide human and nonhuman agency. We need a more sophisticated notion of the environment.
Gillespie: In discussions earlier, we weren’t talking about the environmental movement as Boyle suggested, but about enclosure. Rather than having a political model, where we try to give apparently disparate things a single name and bring people with different interests together under an umbrella concept, we’ve slipped into analogy to the environment. Environmentalism has specific features, and we emulate them and all these familiar naturalistic concepts slip in.
Biagioli: It could well be that the environment and the public domain are going to be articulated in the same way as the movement grows. Naturalization happens in several ways: Sunder’s example; the example of Young who can only talk about individual creative choice by reference to plants—not naturalizaton but an aporia, where he can’t actually talk about individual creative effort. It’s not because he’s a bad thinker, but because there’s a problem at the basis of IP.
Session 3: Andrew Torrance (“Coevolution of Gene Concepts and Gene Patents”)
Begin with quote from Walter Gilbert, a pioneer in gene sequencing (though not the winner): you’ll be able to put your genes on a CD, and pull it out and say “this is me!” Lots of people say that genes make us (or genes make proteins and proteins make us). Evelyn Fox Keller says that biologists have a whole different way of talking to each other about genes in the lab than they do in public.
The gene is a very powerful idea in science, in industry, in public consciousness, even as the concept of what a gene is (named 1909) has evolved over time. Consensus over what genes are has been unraveling—lots of people are throwing up their hands and saying there may not be such a thing as a gene. Gene talk, however, hasn’t unraveled. Investors want to know how many genes a company has patented; ordinary people want to know what genes put them at risk for disease or determine the capacities of their kids.
Patent gene talk is simplified; biologists use it to explain why they should be funded. Does that reflect back on the internal use of the gene as a concept? He needs more evidence on this point.
History of the gene: what was known changed over time, to make boundaries between genes harder to define (genes skip around; genes can be within other genes; etc.), and the relationship between the gene and the expressed protein was also quite complicated, very far from gene = protein.
A trick of patent law: genes must be isolated and purified to be patented; you can’t patent a gene as embedded in someone’s body. Biotech as an industry produces genes and patents, not drugs. Another story: genes are a way to make the biotech industry valuable: they allow people to identify (and inflate) value in particular companies. Genes themselves are not products. Gene talk is a shorthand that helps market products.
Based on the complexity of genes, definiteness is a problem for patents that claim “genes” specifically. One might think that patent litigation must have dealt with this, if the science of genes undermines gene talk. However: 16,000 gene patents, but very few definitions of genes—and they’re generally throwaway, e.g. a gene is a DNA sequence. Only two cases get into the definition of genes, and they’re both very limited/just plain wrong.
What is a gene? A prominent article, but cited only one time in patents. Public certainty—could it be convincing biologists unconsciously that genes do exist and are simple? This could coincide with their economic interests in patenting. Internal and external views don’t match up—if the internal views were aired, that would undermine biologists’ authority when speaking outside.
Jenny Reardon: If Craig Venter says genes are worth nothing, as Torrance mentioned, it’s important to ask him “what is worth something?” She doesn’t think that the concept of genes will be useless. Maybe the creation of archives of genes, which involves an attempt to create a common language to talk about genes, will help define terms. Also, maybe the term is valuable as long as either side (internal and external) has some use for it. A productive foil: “gene” is good to think against, even if it’s not necessarily good to think with—a gene could be a boundary object.
Mark Lemley: The strong deconstruction story is “there’s no there there”—don’t build a legal construct around it. The weak deconstruction story is that we’ve oversimplified a complex concept by throwing stuff into the gene bucket. He’s skeptical of the strong story, because if you take a particular set of DNA out of the human body and put it in the right medium it will express human growth hormone. It works for some purposes. The weak deconstruction story is probably true.
What would that mean for patent law? (1) Patent law might simply ignore the scientific question because and to the extent that the gene concept leads to reproducible, consistent, functional results. What’s required for enablement is not that we understand the fundamental concepts; we patent things where we don’t understand the underlying concept. If you create a new practical thing that works and works consistently, that’s all we care about. The biological context puts stress on this because the patented thing isn’t created from scratch but taken from some living thing; what this justifies is a strong version of the utility doctrine. Thus, you can’t and shouldn’t be able to grab a chunk of sequence and claim ownership without proof of a particular result. Morse got a patent when his and our understanding of electricity was wildly wrong—but it worked.
(2) Patentable subject matter: you might say we shouldn’t have DNA patents if there’s no such thing as a DNA gene sequence, but you can go in the opposite direction. If the relation between nucleotide sequences and the human body is complex and contingent, perhaps we should patent other source of complex functional relationship claims in the human body, claims that are currently very controversial (Labcorp v. Metabolite or patents on Prozac’s functional effects on the human body as examples).
(3) Effect of patent law on PHOSITA: If our scientific understanding changes over time, we need to know what the PHOSITA knows at the time—patent law is backward-looking. If people in 1992 didn’t understand that the gene concept was as amorphous as we now understand that to be, how do we account for that?
Torrance: He’s definitely making the weak claim—believe in genetics? He’s seen it! Maybe what we need to do is move towards function, not structure. But as a patent attorney, he got his hand slapped for making functional claims when the client hadn’t yet figured out the full structure.
Burk: Of course genes don’t exist in nature! They’re purely human constructs. Be careful about functionality, because we don’t know what that means—patents work because you put the structure in and describe what it is that you own. Isolating the function without the structure would require going through the genome and pulling out all the enhancers—that’s problematic.
The product of nature doctrine comes in—the human intervention in the patents here is to pull something specific out, and that counts as human creation. That’s the implication of what you’re saying, but do you want to go there? It could make everything patentable. This ties in with our earlier discussions of nature and the commons.
Reardon: Gene patents are microsites where our anxiety about genetic engineering plays out—our uncertainty about what genes do and how, and about who will control that.
Lemley: Some genes are predictable, others aren’t; one should only be able to patent the predictable ones. The question is whether the patent system is outrunning our understanding.
Burk: Electricity was a black box for a while, and then the box opened—we should draw on that historical analogy.
Riskin: The unraveling of the gene may be part of an unraveling of understanding of the natural world which underpins both the standard IP regime and critiques thereof. The natural world doesn’t necessarily work in the way that our 18th-century roots have encouraged us to believe.
Biagioli: We used to require only reduction to practice, not understanding.
Lemley: But of course our concept of what was patentable was much narrower—I had to give a machine to the patent office; under those circumstances, reduction to practice and utility are pretty much all you need.
Madison: The object-ness of the thing that is patented is challenged by the modern system.
Strandburg: One thing that might be going on is that scientists feel assaulted from outside—creationism/evolution, etc. If they were to admit how complex the issues were, that would hurt their authority. (Comment: More, the uncertainty would be misunderstood—as if scientists were debating whether DNA makes proteins or whether it’s God’s will.)
Burk: But every undergrad who takes a biology course knows that we don’t understand what a gene is. The cat’s out of the bag.
Torrance: Not very far out.
When synthetic genes start getting patented, that will move us away from nature; the concept of genes might be rescued by the very future of biotech.
Science & Technology Studies (STS) and IP Law,
Session 1: Papers by Brett Frischmann (“Intellectual Infrastructure and Commons”) and Mike Madison (“Constructing Commons in the Cultural Environment: A Theoretical Framework and Research Agenda”)
Frischmann’s book project brings together his work on infrastructure. Infrastructure that he’s interested in is something that produces lots of downstream outputs that vary a lot, that generate positive spillovers, and that are often public or nonmarket. Access to such infrastructure is beneficial. Criteria: the resources are (1) potentially shareable at low or zero marginal cost, meaning that owners may price above socially optimal costs; (2) likely to give rise to an assortment of demand-side market failures—transactions costs, externalities, information costs.
STS-related issues: Across many areas, we fail to notice, value, weigh, etc. things that can’t be captured in market values. We know that ecosystems generate substantial value, and they’re necessary for our survival, but we have limited resources so ecological policy is done generally through cost-benefit analysis. And ecosystem valuation is just a rough proxy; at best it reflects our current preferences. We have trouble valuing what we don’t understand. We need to direct our activities to learning what’s good for us—how environment affects welfare.
Some argue that assigning some value is better than assigning no value, while others contend that this falsely accepts the premises of cost-benefit analysis. This is an ongoing debate.
The same thing is going on in intellectual infrastructure debates. The natural environment is congestable, depletable and inheritable, not produced, but if you’re thinking about how social value is generated in complex systems and how institutions play a role in structuring that value there are important similarities.
So is his scholarship really situated within economic analysis? Or should it attempt to stand aside? Can economics be used in a functional way without becoming normative, and without emptying out nonmarket values?
Indirect costs/social opportunity costs—costs associated with the systems we choose. The systematic difference between a spillover-rich and a spillover-dry environment. One might call it a difference in degrees of freedom, which you have when you don’t have to pay for/negotiate every transaction. But there are deeper differences that have to do with democracy, speech, and other fundamental values. Spillovers may be connected with theories like those of Martha Nussbaum: society is better off investing in the capabilities of everyone, especially certain groups whose capabilities have traditionally been suppressed and undervalued.
Many questions remain open, including the problems of change over time.
Madison: presenting a research agenda, and a paper written with Frischmann and Kathy Strandburg. It’s the empirical cousin of Frischmann’s theoretical project. An extended series of case studies of knowledge/information commons in the cultural environment. These cases are extremely diverse, widespread, and heterogenous—they borrow different features from proprietary markets, government subsidy, norms, etc. So categorizing them might help us figure out which drive good spillovers. They also exist at a variety of scales, nested within one another—you can look at microlevel examples like a specific academic conference or the cyberprof listserv, and scale that up to a department or a discipline or the concept of the research university.
Much of this has been studied before, but not organized in this way. Studies of patent pools, for example, which have a lot of attention from economists and economic historians; they’ve been analyzed for antitrust purposes, but not for how they work to produce spillovers that are fundamental to an innovation environment. We’re not trying to identify the set of variables that matter, but rather clusters of questions to ask.
Types of questions to ask: Do you have a commons/pooling arrangement/cultural construct that involves people contributing creativity/knowledge/cultural goods at the front end and then extracting value at the back end? Ostrom’s investigations of fisheries, grazing lands, and other natural resources have been foundational—the analogous move here is to find the resource. What is the baseline? Is patent law part of the baseline of the resource, or a cultural construct added in to a preexisting commons? That is, what is the default role played by copyright/patent?
What are the functional problems that the commons or pool is designed to solve? E.g., transactions costs; problems introduced by IP; collective resources that exist to manage interfaces between two adjacent systems of cultural production, e.g., the open source development community and the market-driven commercialized world. What are the cultural goods/rights being contributed/extracted? Who is participating in the commons structure, individually and institutionally?
What are the governance mechanisms of the commons itself? What are the rules and standards that define how materials get contributed to and extracted from the commons? Is there a historical/metaphorical narrative driving any of this? Much may be functional, but it’s possible/likely that there’s a traditional dimension. What are the legal structures surrounding this? The membership rules? The conflict resolution/sanctioning mechanisms?
The benefits of the system? The negative externalities?
The first step is to collect examples.
Rebecca Tushnet
Information commons theorizing I’ve been reading recently: Shirky, Benkler, von Hippel. Like these works, Frischmann, Madison and Strandburg say value isn’t where you think it is, isn’t created where you think it’s created, if you subscribe to standard economic theories of innovation.
The standard economic model assumes scarcity, but the theories that emphasize user innovation are more about an economy of surplus—the surplus is not in success but in attempt or perhaps in consumption (nonrivalrousness). There are nearly infinite points of failure for individual uses of roads, the internet, etc., where failure can be measured by any criterion you want, whether it’s informational, educational, market-based or what have you. When we speak of spillovers or downstream uses, we are often treating those failures as costless, or at least as the ordinary costs of attaining success for the few good downstream uses. If you want an evolutionary analogy, valuing the downstream uses is like the strategy of having zillions of offspring and having a few survive and thrive (r-selection), versus having a few high-investment offspring with individually greater chances of success (k-selection): both strategies may produce successful results for the population. And here’s an interesting tidbit from Wikipedia: “In unstable or unpredictable environments r-selection predominates, as the ability to reproduce quickly is crucial, and there is little advantage in adaptations that permit successful competition with other organisms.” Scarcity, or lack thereof, and stability intertwine.
In the information environment, open source (for example) has lots of failed projects, but that doesn’t mean that open source is a failure any more than, rats, say, are a failed species because most males don’t breed.
So I am interested in stories about individual failure as systemic success. This could help us get beyond a model in which open access types focus on individual successes, while detractors say that they’re unlikely. (Sturgeon’s law—90% of sf is crap, but 90% of everything is crap—extending the innovation environment drives the percentage of crap up, but doesn’t change the basic rule.)
Another variant of this question: What is foreground and what is background? Von Hippel and Shirkey focus on the relatively ungoverned producers and users, not the relatively governed products/works—the process more than the product. Individual organisms and/or species aren’t commons, nor does it necessarily help the analysis to speak of them in terms of a commons. There is very little coordination, very few rules, and a lot of competition between members of an ecosystem. Raises the broader question: how do people understand their roles in these systems of innovation and production? Do they need to be conscious of the theories that we think explain their behaviors, and if not, does it make sense for policy to promote any particular understandings?
Relatedly, and here I am very much in tune with Frischmann, is economic analysis the right language? I’m working on the difference between the concepts of incentives and preferences. Incentives are usually figured as external, and preferences are usually figured as internal but can also be shaped by interactions with others. Preference talk emphasizes individual variability, but I still find it a limited way to talk about creativity. What’s notable about individual narratives of creation, from open source software to fan fiction to modifying factory supplied equipment, is that they repeatedly and consistently mention two concepts highly resistant to economic analysis: addiction, aka obsession, and joy, aka love. When your producers are producing because they can’t not produce, is economic theory really your best explanation? It leaves off at exactly the point that is most important—and if you are concerned with dynamically encouraging the formation of more people who create, that’s a bad idea even from an economic perspective.
And this unpredictable, often inexplicable story of obsession and love brings me to a related point: Innovation is factal. Within each community—windsurfers, surgeons, chip manufacturers—user-directed innovation is vital. Identifying infrastructure as a tipping point for commons management seems either underinclusive or unhelpful in that by the time infrastructural status is clear interests in keeping it propertized will be entrenched.
Kristen Eschenfelder: She does case studies—why groups create various access and use norms for their digital IP/cultural property, and how it changes over time and why. The introduction of new tech vastly changes what’s possible.
Two stories: (1) 2-D public domain art. Subject of a vicious fight in the museum world. Resistance to openness comes from desires to maintain exclusivity, and a hidden labor narrative. People argue that they’re helping researchers/preserving culture so they deserve to be able to control images. (2) Digitized versions of Native American materials—photos, oral histories, etc. There’s a lot of interest in digitizing for access, but also worry about cultural sensitivity—in a lot of cases, this is stuff that the community currently doesn’t think should be recorded—photos that wouldn’t be taken today. Digitization would definitely advance scholarship, but could also lead to remixes that would be culturally offensive (and the scholarship might be too).
Madison: The historical point is really important—looking at pre-1990s is going to be vital; there’s an intersection between materiality and conceptual structures. The tangible, physical things are important features of information environments, both in the cultural goods themselves or the tools we use to get to them. Stability and dynamism intertwine—we need to look at specific instances.
Lemley: On the shaky use of “natural” anywhere here: We could imagine a world without IP, but the thing that we actually care about is the commons as it operates in the world in which IP exists, and changes in one regime affect the other. Perhaps unfortunately, it’s hard to treat anything as exogenous, whether tech or IP.
Strandburg: There’s no such thing as “the” commons. And there may be no universally useful place to stand as a start. The Ostrom approach rejects answering that question on a global scale. There are some places where IP is a key part of the structure, and places where it’s not.
Frischmann: We’re interested in pooling arrangements that are constructed against a background of patent, copyright, etc. However, a lot of constructed commons exist where IP is at best incidental to the system. This meeting: IP is functionally irrelevant even as a baseline.
Tarleton Gillespie: “Nature” is a dangerous concept because it makes changeability hard to see. Natural is also a key concept for the people who build the commons—not just the analysts. We need to have both conversations, one assuming that everything is up for grabs and one more “practical” in terms of accepting existing structures.
Pam Samuelson: She’d like to see a mapping of the commons similar to what she did with mapping of the public domain. That would give us a richer vocabulary for analyzing and comparing commons.
Strandburg: That’s pretty much the Ostrum project: what are the axes of analysis?
Gillespie: But we don’t want to start with prefab categories derived from ontological assumptions. One STS solution: actors/categories—look at who calls themselves a commons. Wittgenstein’s family resemblance—there’s probably something there, however messy. Another: what work is being done by calling something a commons? Authority, legitimacy. Third: as you develop axes, having chosen groups, you then identify components from the groups; then you’re allowed to ID other groups that do the same things even if they don’t use the language. You then ask what work it does to not call something a commons (e.g., calling it a standard-setting organization).
Mario Biagioli: The person who can’t not create can be conceptualized as purely a genetic mutation—it just happens. The intellectual mulch is just there to be used. He wouldn’t necessarily use these metaphors—but cultural environmentalism could. Mapping is a good idea, but when people start mapping out little variations, we are doing natural history. It doesn’t get to the crucial issue: what’s the relationship between this thing called the commons, which is understood as culturally constructed, and this thing called the public domain, which is most of the time understood as natural? We are naming that which we don’t know how to explain (commons as “coconstructed”).
Dan Burk: Don’t forget translations: the word “open” can be different in different languages.
Lemley: Example: “copyright” is “author’s right” in other languages. (Comment: The Organization for Transformative Works is similarly having interesting debates over how to translate “transformative.”)
Gillespie: Methodological risk: if most of your case studies come from people who’ve been working in an economic lens, will you be able to get past that when you analyze patent pools? An STS answer: send students out to do case studies themselves.
Biagioli: What’s the added value of “commons” over infrastructure, if what you’re interested in is the value of infrastructure?
Frischmann: It’s connected but different—when he writes about infrastructure, “commons” means a rule of nondiscrimination among uses or users. It’s a narrower definition than that in the project here. Commons is not necessarily collective in the infrastructure context.
Lemley: Frischmann is really interested in cases where people opt out or change the rules of existing IP regimes.
Burk: Most of society functions in terms of various types of collectives—we don’t worry about my copyright, my trade secret, my attribution of things I said at the cocktail party. IP is a very odd exception to the general rule—the project is huge because it’s looking at the rule and not the exception.
A perfect storm of my favorite things: One of my favorite fantasy authors, Steven Brust, has written a Firefly novel. But it’s not an official tie-in, in part because official tie-ins got tied up in the publishing process. Instead, he released it to the world under a Creative Commons license (which, of course, can only license the rights he has, and thus does not not affect the overall rights to Firefly/Serenity.) If it contains scenes in which River Tam Beats Up Everyone, I may melt with happiness.
More generally: I have trouble understanding people who consider fan fiction to be something under than “real writing.” What do they think it is, chicken salad? Brust is a successful writer, in official/publishing terms, but he wrote this book because it was a story he had to tell. (As he said: “I couldn’t help myself.”) Sometimes – often – the stories we have to tell are stories we have to tell, and the storytelling parts of the brain don’t check with the Copyright Office first. There are reasons to give copyright owners more rights over commercialization of sequels and tie-ins, but those reasons don’t justify suppressing free distribution.
Alessandro Acquisti: He’s been researching user privacy preferences on Facebook. Read his position paper – people will disclose potentially embarrassing information in fairly open spaces, including photos of themselves drunk and behaving badly. Why?
The very people who post pictures of themselves in their underwear may object to Facebook’s new contextual ads. There are contrasting, coexisting needs for privacy and for fame; even bad publicity sometimes satisfies. Also, control – bad information is not so embarrassing if we are the ones who hand it out. In economics, this is a matter of signaling. It may be reputation-enhancing in some circles but reputation-diminishing in others.
Studies on willingness to pay v. willingness to accept: people assign different values to their personal information depending on whether they’re focusing on protecting it or revealing it. You can get different decisions in offering people an anonymous $10 gift card or an identified $12 card, based on the endowment effect and framing of options.
Danielle Citron: Malevolent crowds are denying women in particular the benefits of their online reputations, and the online environment accelerates the problems by removing some of the traditional checks on harassing behavior. (Read her position paper for discussion of the social psychology literature on how anonymity in crowds liberates people to express aggression.) Individuals who write under female pseudonyms are 25 times more likely to receive sexually threatening comments than individuals who write under male pseudonyms.
How to diffuse dangerous group behavior? (1) Fear of getting caught, especially when group leaders reinforce that fear; (2) perception of need for victims; (3) difficulty organizing. Online, the accelerants are present, but none of these inhibiting factors. This dynamic is not self-correcting, as some things might be (as elaborated by Benkler).
William McGeveran: The privacy panel is often the “sky is falling” panel. We want to make sure that the internet is a space that everyone can take advantage of; if privacy concerns interfere with that, that’s a problem. Here, he wants to talk about reputational piggybacking.
Web 1.0 was devoted to profiling users to find better ways to address them directly: to sell to them. Data was being collected massively, but basically for the collector to use in its dealings with the collectee. The 2.0 shift is towards selling not just attention but endorsement. Entities want to use your reputation to promote their offering to others, not just to you. Facebook, of course. Netflix; others who try to sell either to others in your network or others who “look like you” in some way. (This is the flipside of my presentation, which is more about the perspective of the owners of the properties being promoted or disparaged in this process.)
The piggybackers have incentives to get you to transmit your preferences as widely and as often as possible. Of course there’s a tragedy of the commons problem – if everyone piggybacks, it loses effectiveness. The piggybackers also want to do this seamlessly – so they go for opt-out solutions, and create problems of consent and privacy. (And here he makes me think about manufacturing consent – when we talk privacy, we usually talk about consent as something manifested privately between contracting parties. But now our consent has been used in a new way, to create public opinion. Not just manufactured, but advertised.)
Daniel Solove: People are writing about their private lives (and others’ private lives) – the blogosphere is mostly personal, only a smaller part political. This creates persistent records so that people can’t escape a moment that has come to live in infamy. And a lot of these people creating these potentially embarrassing records are young. It should not be impossible to escape the shackles of our past.
The law can’t do everything, but can operate as an incentive to shape norms and to push people to work problems out informally. Privacy torts exist, but are weak and insufficient incentive for online responsibility. We need a viable threat of lawsuits to create better incentives.
Traditional notions of privacy have been binary: public/private. If information is somehow revealed to others, it’s no longer private. But that’s not really true: information is usually somewhere in the middle, as are places. Buying medication in a drugstore: that’s a public place; we still don’t expect high-res photos of our names and prescriptions to be posted online. If we don’t do something to protect that middle ground, it will be lost.
In England, there is a tort of confidentiality (ours is much more limited). If an ex-spouse or ex-friend reveals your secrets, they can be liable.
Control: Dr. Laura Schlessinger’s nude photos, taken by a lover decades ago – she wanted them gone, but was unable to control their dissemination. But the voyeur website that posted them successfully asserted rights against republication – copyright was stronger than privacy! It is possible for the law to give rights to control that are stronger than privacy currently is (though he thinks copyright goes too far).
Jonathan Zittrain: Various horror stories of privacy and persistent reputation. Qatar shares one IP address, and one bad apple got that IP address banned from Wikipedia for a while! These automated/semiautomated systems for determining reputation have powerful effects; Cyworld, popular in Asia, has nontransparent rating systems that effectively train people to behave.
Zittrain finds it fascinating that search engines generally respect robots.txt. This is a norm that addresses a potential problem, and it works pretty well through voluntary compliance. It would be great to have more advanced tagging – “I don’t want this widely distributed” or something like that. A gentle opt-out – this might be embarrassing if it got passed around widely – could be a helpful extension of the robots.txt success.
He also likes the idea of reputational bankruptcy, or at least something like eBay’s system in which more recent data counts for more in a reputation. IP addresses have reputations that attach for far too long, because they shift: we should be able to flush the cache.
Web 2.0 can mean UGC, or it can mean a shift of computing cycles from the desktop to the web. The aggregators who do that create new points of control that could be salutory for privacy/control: Google Maps reserves the right to stop your mashups of maps for any reason. Facebook can control how Facebook Apps uses sensitive personal data – it’s extra control, but possibly useful. (As long as Google and Facebook behave as we the public want them to!) Google now allows subjects of news stories to add comments – this is a promising development.
Question: some of these things require technical ability. Does this increase the digital divide? Also (perhaps contradictorily) are there architectural techniques for improving norms, e.g. for anti-harassment?
Citron: Section 230 fosters irresponsibility and discourages the development of such tools.
McGeveran: Sometimes technical and industry customs can help, though not in the situations Citron is talking about.
(But isn’t that part of her point? That is, the differential impact of various technical innovations gets played out on real human beings. Robots.txt is awesome for Yale and the New York Times. Less so for people whose concerns are harassment. Reference to robots.txt is sort of like looking for your keys under the lamppost because that’s where the light is, unless we can brainstorm other ways to use it that aren’t obviously useless (“no-harass.txt”).)
ETA: McGeveran thinks that softer solutions, like asking nicely for material to be taken down, can work in certain circumstances, especially if you can ask an intermediary. Formalized procedures for doing so might help.
Solove: We can’t have lawsuits over everything anyone says. But law can help shape norms. Maybe a limited cutback on 230 would be to remove immunity from sites that abuse 230 by being set up precisely to take advantage of it and soliciting gossip. (Wow, do I not like that idea. “Abusing” an immunity -- that would get litigated every time.)
People are sometimes nasty. The best way to protect against that is to keep your information away from them.
Zittrain: Some of the viral nature of this is people, not tech. People like watching the Star Wars Kid. Mashup culture makes these practices more acceptable (not clear to me whether he was speaking normatively or descriptively) – data is data, anything is input. An ability to remind people of the human dimension, to hear from the people who are in the photos or took the photos, would be really helpful. Maybe the viral takeup of Star Wars Kid wouldn’t have happened if the Star Wars Kid had had an ability to attach a statement about what he wanted early on in the process. (A special kind of digital attribution right?) That’s the utility of a CC license: it expresses preferences that travel with the digital content.
But such preference statements can’t stop the bad apples, like the people who harassed Kathy Sierra. (I’m interested in this statement – implicit seems to be that a reminder of her humanity wouldn’t have mattered – and I agree, though it might have mattered early on to some of the jerks who piled on her. The reason this statement troubles me, though, is that it seems at least consistent with a “men will be men” attitude – we can think about how to help Star Wars Kid, but Kathy Sierra is just out of luck? Not all problems can be solved by technology, but I don’t think we ought to accept that internet affordances can’t work even on bigots.)
Zittrain continues, in response to a question: Something just as basic as “ask me first” might have a shot at shaping norms.
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