lack of substantiation versus falsity

In re Bayer Phillips Colon Health Probiotic Sales Practices Litig., No. 11–3017, 2014 WL 5776153 (D.N.J. Nov. 6, 2014)

This is another case where Bayer argued that the plaintiff’s claims were merely based on “lack of substantiation” for Bayer’s scientific claims that the combination of 3 bacterial strains in its Phillips Colon Health Probiotic products “helps defend against” “constipation, diarrhea, [and] gas and bloating.”  Plaintiff argued that a wide range of advertising “consistently conveyed one message: Phillips’ Colon Health, with its probiotic bacteria cultures, is scientifically proven to provide all consumers with digestive and immune system health benefits.”  The court agreed that lack of substantiation couldn’t ground a private action under Illinois or California consumer protection law, but found that plaintiffs had stated a claim for falsity.  The court did not specifically note that plaintiff was trying to falsify the “scientifically proven” part of that, but the allegations on which it relied are instructive.

The complaint alleged that the European Food Safety Authority (EFSA) reviewed the scientific proof in relation to the strains of bacteria and concluded that the data didn’t demonstrate a cause and effect relationship between consumption and “improvement of intestinal transit within the normal range,” “decreasing potentially pathogenic intestinal microorganisms in infants and children aged between 0 and 36 months,” “immune system improvement,” or “maintenance of defenses against pathogenic bacteria.” The court found that these scientific studies allowed the court to draw the reasonable inference that Bayer’s claims were false or “at a minimum” misleading.  The misleadingness, I think, has to come from the implicit or explicit claim that the benefits of the product are scientifically proven.  As I often say, this isn’t a lack of substantiation theory; not all claims need to be scientifically proven.  But when health and similar claims are proven to be not founded in science, the inherent representation that they are so founded has been falsified.

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

Jessica Silbey’s _The Eureka Myth_

Book Roundtable at Notre Dame

November 7th, 2014

Notes from Peter DiCola

*Panel #1*

1) David Schwartz

— Praise for the book

— Will raise a few methodological issues

— Issue of representativeness of the sample.

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

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

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

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

2) Laura Murray

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

— This book offers thick description

— The book is clear about methodology

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

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

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

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

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

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

3) Kara Swanson

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

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

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

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

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

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

4) Zahr Said

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

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

— Different disciplinary methodology, happily

Point #1

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

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

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

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

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

— Here, close reading seems to be foreclosing multiple meanings

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

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

Point #2

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

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

Point #3

— Memory. Accounts shift. Myth-making.

*Question and Answer Session After Panel 1*

1) Nicole Garnett

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

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

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

— side jobs, distributional consequences

Jessica’s answer

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

— “Enabling” is the right word

2) Mark McKenna

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

Jessica’s answer

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

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

3) Peter DiCola

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

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

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

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

Jessica’s answer

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

4) Daniel Kelly

— Two questions for Jessica

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

— Geography — focused on the northeast?

Jessica’s answer

— Geography was Washington, DC and north.

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

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

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

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

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

— sent hundreds of letters, got some responses

— protocol is a bare-bones qualitative interview

5) Barton Beebe

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

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

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

Jessica’s answer

— gender and *hierarchy*

— particular audience

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

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

— sample is diverse ethnically and by class

6) Abraham Drassinower

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

— The fetish of cause vs. fluidity

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

Jessica’s answer

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

— There are moments of alignment

7) Kara Swanson

— Who is the audience for the book?

Jessica’s answer

— Law, policy, business people.

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

The Eureka Myth: Reputation

Fourth Session: Reputation and Policy Take-Aways

Abraham Drassinower: what does thinking about misalignment tell us how to think about IP?  Move from debunking eureka myth to debunking the myth of progress.  Misalignment of IP with its own justifications, needs of its creators. Whatever IP is, it’s not an instrument of progress.  Realign it with its own progressive purpose?

Because you’re talking about misalignment b/t interview data and progress, you’re not talking about whether progress should be the focus of our attention.  Quantity is the wrong metric.  Social engineer with balances can’t figure it out.  The concept of value, and circulation of value, can’t provide sufficient foundation for the specifically legal concept of IP.  Like Holmes in INS v. AP who tells us that property is a social category.  But will qualitative approach answer the question either? If the problem is indeterminacy, then lived experience may not help answer the question of value.  Then IP remains unjustified as instrument of progress.

One conclusion: strong IP/maximalism is not correlated with progress.  Correction of mistake: gather more data but the justificatory mechanism remains collecting data to achieve progress.  But it seems at least as plausible to ask whether your empirical observation that IP doesn’t align with progress doesn’t mean that IP isn’t an instrument of progress.  Maybe it’s about something else.  Hard to say in the US though. 

More subtly: it’s the meaning of progress, rather than the nature of evidence to be deployed, that requires interrogation. But that seems to require not a recalibration of IP but rather a reassessment of what it means to gather data when you’re trying to justify something.  It’s very hard to get rid of the incentive story by looking at evidence.

Questions: (1) What is progress? (2) Is progress the same for all three cardinal branches of IP?  (3) How can data collection answer normative/legal justification questions? Not saying it doesn’t, just saying it’s not self-evident.

Joe Bauer: Difference between individual and corporate aims: corporation aims at maximizing rewards. But corporation is a legal fiction. IP is directed towards wealth for owners.  Are we as a society acting at our peril if a reduction in those rewards significantly reduces willingness to invest in IP.  (Well, how are the relative returns?)  Also, corporations aren’t one size fits all—financial rewards may play greater or lesser role.  Significant investment/unclear payoff may be different: movies; pharmaceuticals.

Should we fine-tune the rules to differ across types of work, authors, inventors, owners?  Should we give more attribution rights, and if so is the European model appropriate or some American version?  Copyright and patent are exclusive; is the implication of your analysis that compulsory licensing would be better?

Barton Beebe: IP as enabling rather than incentivizing—a key insight.  Creating conditions for play—connection w/Julie Cohen’s work.  How that relates to process over product: good IP facilitates the process and doesn’t allow incentivization imperative to destroy facilitation. Facilitation applies to second-generation artists; importance of derivative works comes out.

Shifting away from process into trademark law: is trademark law the same as attribution and reputation?  Not quite. Open source communities is very anti-IP but get very fussy if you don’t honor attribution rights.  Creators (note it’s a charged term) accept less money if you offer them autonomy and attribution.  Unalienated labor can be had more cheaply; they also want connections with consumers.  Make the market human to them; you can pay them less.

Book reports overreach; people become aggressive and fussy whereas underenforcement prevails in the rest of the book.  Human attribution is dangerous in the corporate context—the whole point of TM these days is not to indicate source but to obscure it—no, this shoe was not made in the Phillippines by an underpaid child, it was made by Nike.  Branding as authenticating source—old strict source theory of TM law has been replaced by anonymous source rule.  Book shows that everyday TM law isn’t about branding or persuasion but defamation/right of integrity.  A name is a creative act (Laura Heymann). 

(1) Star systems/mere mortals.  (2) What about those who don’t rise to the level of pro paid artist or who give up?  Adolescents’ views?  (3) Concept of the romantic author and how it might fit in. Romantic author as solitary voice/artist struggling in face of massification and speaks ex nihilo, creating something out of nothing.  A concept created in response to new material conditions of industrial production—secularization of Protestant tradition per Martha Woodmansee.  Never actually bought this as explaining copyright law.  We use the trope of the author creating ex nihilo to justify IP rights—if the author didn’t create out of a community, then he deserves all this money.  Silbey’s book creates image of people opposed to the market, working for other reasons, in opposition to industrial capitalism, but is that opposition really as opposed as all that? 

Market aspect to reputation: people who get to construct themselves as playwrights/novelists while being supported by spouses—if they’re wealthy that’s cool, if not we judge them horribly.

Mark McKenna: very few people wanted to talk about reputation here.  Hard to figure out what to say.  Merges’ reaction: this book fully justifies a strong attribution right overruling Dastar. But reputation is used in a number of different senses throughout the book by interviewees. Some talk about their reputation as scientists/artists—for being creative/innovative. Others talk about reputation in business world/ability to get deals done. Then there’s reputation as source.  Reductionist move to either talk about TM or right of attribution. But different uses may have little to do either w/TM or ©.  Attribution right would do no work for most of these reputational issues—the things that bothered artists most were some of the things they had the least justified claim to control, and giving control over those things to the artists might well be unconstitutional.

The more you see in TM law, the more you should worry about a free floating right of attribution. What counts as a “work” deserving attribution?  A piece? Whatever the author says? Who gets to say who’s a source?  Experience w/TM law is not promising.  

Why is the impulse to provide an attribution right to an artist and not to the people who stitch the shoes, who are also vital to the creation and might care a lot too.

If you were designing a legal system to deal with all these kinds of reputation, would want to think more about harm. In some cases the harms might have economic consequences but in others they might be purely emotional. Under what circumstances are those harms real? Or are they just idiosyncratic harms to the author?  Might see inverse relationship between most significant dignitary harm and greatest willingness to provide rights; thus his deep suspicion of attribution. Reputation is not one thing.

Nicole Garnett:  Some people respond to incentives and the Q is whether they’re producing what we want.  Decide what the “more” is and then investigate how the incentive works. 

Overreach/leakiness—all about optimal enforcement.  Book seems to give sense that level of enforcement is not optimal, but we never want 100% enforcement of the law. Fact of exclusion rights enables community; owner can tolerate intrusion on lawn because that won’t actually dispossess her.  What’s optimal level of leakiness?  Especially in communities where norms do more work than law.

Loren: Likes Traffix because court is clear that it’s concerned with harassment value of IP right: default rules that don’t allow quick dismissal can harm competitors for lawful behavior.  It’s that harassment value that is the overreach. Twiqbal has helped dismissal for ridiculous copyright claims.  What’s the harassment suit value of an attribution claim? That’s what makes her nervous.

Garnett: rights always raise possibility of harassment suits. Is it particularly bad here?

McKenna: tied to the remedy. If there were statutory damages available there’d be nuisance value to suits.

Loren: harassment value used to be much higher because of possibility of preliminary injunction.

Golden: making inequalities worse through just providing attribution? 

RT: Carol Rose: rights are means of communicating.  If they aren’t clear or are misunderstood, trouble can arise. Or different communities w/different norms intersect and clash.

Silbey: could be very hard to understand what interviewees meant by reputation. It’s a category that didn’t make sense as a whole.  [RT: could see it as a cluster of concepts/prototypes.] Point about blowback of attribution right—agrees with McKenna’s assessment.

Said: underenforcement—we have no duty to police ©.

Silbey: may have given them the category by asking; there are still multiple issues w/ meaning.

Kelly: culture and habits; mixed motivation could be consistent w/law and econ, but here’s one place where assumptions miss the boat by starting w/individual instead of more social view of the person, in context/social setting.

Loren: © and patent as driving different types of innovation than trade secrets, live performance, etc. As long as there’s sufficient respect for the distribution models chosen, it can work. Price discrimination/arbitrage: if it avoids a chosen distribution model then maybe it’s not justified.

Drassinower: legal construct of moral rights limits their scope: not a general defamation protection.  Did interviewees have a defined sense of what a reputation was?

Beebe: we didn’t talk much about the chapter on lawyers.  Lawyers aren’t the talent; they’re a cost center, as one interviewee says.  Was there a class division?

Silbey: trying to be helpful to people who don’t think they need you but they do.

Schwartz: litigators are problem solvers—may be seen differently than transactional lawyers.

Silbey: necessary evil (litigators). In-house tended to be more transactional, but many had moved between roles over time, except for patent specialists who only drafted patents or did audits.  Even young ones generally had varied experience.

Golden: reputation among informed peers/reputation among consuming public might differ.  Lawyers drafting patents have to avoid becoming inventors themselves.  Lawyers can also have involvement w/designing around.

DiCola: one bit in the lawyer chapter that he really liked was a music agent convincing an artist to take the money for a 30-second spot.  That’s a representative story—there was a moment when VW started licensing indie rock and it became ok because VW was cool; shift from “don’t sell out” to “I need the money.” 

Cohen: IP lawyers have a choice: discipline the talent by normalizing output that can be monetized, or they’re mediating between creators and firms, taking into account that firm’s demands can’t just be ignored but that talent has demands as well.  The people whose stories seem happy are those who are mediating.  When we teach IP, are we teaching a hermetically sealed causality story or teaching the need to mediate?  We can do the latter.

Professional responsibility questions: the Model Rules are litigation focused; don’t get at this delicate negotiation at all.  Institution-building as a goal.  Contrast: MERS and professional responsibility—people are going in to foreclose with no evidence, and now it’s a professional responsibility issue at the individual foreclosure level.  But nobody in power is saying that Covington did this incredibly unethical thing by building this powerful institution, MERS, at the behest of the top banks, even when it was absolutely foreseeable from day 1 that it would screw up the real property system.  Lawyers build stuff: they built Spotify; they built Aereo. That’s a kind of mediation too.

Golden: see constant demand by clients for noninfringement/invalidity opinions in patent; some lawyers seem willing to provide those.  You might orally communicate your opinion if it’s unfavorable; they might shop around.  That’s a product that comes from the lawyers, though of course it’s to overcome a problem created by lawyers elsewhere.

Eureka Myth roundtable: Communities and Creativity

Third Session: Communities and Creativity

Rebecca Tushnet: Silbey’s choice of subjects are those who are the targets of IP law: inventors, artists, various types of intermediary facilitators like lawyers.  They are very important.  (Unsurprisingly, they are not utility monsters, such as you might find by examining billionaires; they want enough but they also want to leave as good for others.) 

I want to talk about who’s not in these stories.  Jordan Ellenberg’s book on math, How Not to Be Wrong, tells the story of the military trying to figure out where to armor their warplanes for greatest effect at least weight.  They saw all the bombers coming back from runs with lots of holes in their wings and relatively few in their engines.  Lesson: Armor the wings better, right?  No!  Armor the engines, because assuming a normal distribution of bullet strikes, the evidence shows that an engine with more than a few holes in it isn’t going to make it back.

Who’s not making it back?  Interviewee Ted, in house counsel for bioengineering company, says: “the most successful inventors here are the people who are constantly looking for an edge, and looking at how to buck the system…. Always looking to game the system or something like that…. They were probably horrible juvenile delinquents in their youth.”  In an age of school to prison pipelines for poor and brown Americans, that’s a very charged story.

White people--especially white men –can afford to be disruptive.  Consider Kate Losse’s article, The Unbearable Whiteness of Breaking Things:

What Stanford does not teach young white men …, in the course of teaching them about startups, is that everything they are being taught—about breaking rules, taking risks, and not asking for permission—works especially well for them, and often only for them, because of who they are, what they look like, and all the associations their appearance does and does not carry. On University Avenue, white men who break things look … “cute”, not delinquent or scary, and this is why privileged young men are brought to Palo Alto in droves to learn and practice the business of what Facebook calls “breaking things”. At every turn this breaking of things is celebrated and encouraged. If you’re not breaking things in Palo Alto, you’re not doing your job.

…unless you’re not a young white man.

As Losse points out, the consequences of moving fast and breaking things are, for other groups, likely to be unpleasant and possibly lethal.  See also Jen Dziura, When “Life Hacking” is Really White Privilege.

This is not a criticism of Silbey: she went to where the creative folks making a living were.  And If you’re lucky enough to earn a living from your art, you’re probably white, to quote one of a number of articles about a report by artists analyzing Census data showing that nearly four out of every five people who make a living in the arts in the US are white.

Aside from differential risks of taking risks, what else may be going on? Silbey identifies two features of ongoing creative work: (1) hard work and labor, and (2) autonomous time and personal space.  Who has those latter things?  Who doesn’t?  Sometimes the interviewees describe taking more lucrative other jobs to make ends meet, which apparently could always be had, jobs that still left time and energy over for art.  Where are the other origin stories, of people who didn’t have that time and money but made art anyway? Silbey discusses Virginia Woolf’s Room of One’s Own, but only as an individual aspiration, necessary to creativity but not structurally there for everyone. 

The interaction between the individual and the community also highlighted for me the importance of communities of artists who were listening when each other spoke—and the lost histories of female artists, the women who have been forgotten—and I mean that in a very active sense—so that women don’t know they’re working within a tradition, as Joanna Russ sets out in How to Suppress Women’s Writing. Without that community, it’s harder to survive as an artist.

If reputation is important and law isn’t, that also raises important distributional questions. Silbey discusses reputation as identity, as social glue, and as form of expression and self-representation: but some people have spoiled identities, to use Erving Goffman’s term. Reputation and misattribution: if women’s contributions are perceived as less important, if white artists become popular with black styles, then the reputation economy won’t work the way we want it to.  Who gets to trust that they won’t be misread or read out of the story?  Might be useful to bring in critical race theory discourses about why people with less structural power might prefer formalized rules, from which deviations can be more clearly identified and fought against.

Finally, who are the people against whom these creators construct themselves? Marketing professional: “We are different than other companies, where we don’t say, ‘All right, now we own your property.’ We partner with them …. [I]t’s an ethical thing for us…. [I]t’s their baby, it’s their child, and we don’t believe in taking it away from them.”  Who does? Whose children are sold into metaphorical slavery, and who’s doing the buying?

Side comment: book suggests TM/brand management is key concern, but all we want to talk about is copyright/patent.  Why is that?

Torie Bosch: John Scalzi’s Lock-In, sf detective novel in which a number of people have lock-in syndrome: can’t move, can talk; those who can afford it use robots to move around.  Scalzi wrote Unlocked, a short companion work filling in backstory.  Publisher behind these: Tor, fascinating case study.  (Owned by Macmillan itself owned by Holtzbrinck.)  Most successful sf imprint.  Sell books without DRM (after an initial failed experiment w/that, which Holtzbrinck shut down).  Publisher continues to go after “pirates.”  After they went DRM-free, no discernable increase in piracy.  Publisher says: For their readership, essential and fair: close-knit community w/huge online presence, and closer fan-pro contact; fans very upset by DRM. 

Tor.com: focused on novella-length works.  Clever branding.  Published first five chapters of Lock-in and made Unlocked free ($1.99 as ebook).  One of the interviewees in The Eureka Myth creates multimedia platforms that allow franchises to create ecosystems allowing fans to contribute.  Way to get and give value. 

Peter DiCola: Feedback loops in creative process, relation between law and creators/inventors.  “Work makes work”: interviewee says that doing the work itself shows where the work should go. Perceptions of law shape behavior with then shapes law.  Preference for the sake of choice and preference for the sake of welfare are two different things—but these narratives suggest that creators have preferences, make choices, decide how well off they are, may change their preferences.

Process: process does work through the tangible.  At every point the process does leave tangible traces.  But a greater emphasis on the physicality of work, the time and space it takes, is important.  Maybe quality of work experience is what we’re trying to maximize: maybe there’s something special about being a full-time musician that we want to be available to some people.  IP might enable that. 

Utilitarian story isn’t one story, it’s a family; you can alter the calculus to take into account lots of things/preferences. Can we tell a better incentive story if there is one to be made? 

Feedback loop idea is also useful for talking about under and overenforcement.  People react to and play with the boundaries of IP law, making it a moving target.

Silbey: Publishers claimed that primary revenue driver was TM/reputation. Recognize that they’ll be pirated, but cared more about TM than textbook.  Taking DRM off might not matter if people want to buy it from this publisher rather than another.  (Presumably it also matters that school districts largely would prefer not to buy unauthorized copies.)

Loren: Multimedia guy: people don’t want to watch Shawshank Redemption on their phone, but they will read ancillary content like the story of Andy’s trial; textbook publisher now making its money on test sheets etc. Did it happen because of the shifting platform or because of IP?  She thinks it’s really the shifting platform, not IP-driven.

McKenna: relates to Q of how you structure the way you want to make money. Add-ons may be more attractive when you’re less likely to make money on the sale of the core thing.  Who decides how that business is structured?  Even in biosciences, different models of service/product. 

RT: Note that ultimately it’s the consumer who decides how the business is structured.  You can have exclusive rights and consumers can stay away in droves.  McKenna: it’s a dialogue: which package the business offers, or its choice set, can be structured by law.  RT: sure, but careful of rhetoric that firm has the “right” to choose its own business model.

Beebe: back to survivors.  How do you study the ones who failed?

Silbey: there are stars in this dataset and then there are people who make a living; several people in the dataset identify as artists/inventors but haven’t yet made a living from it.  Been thinking about if you were going to form communities to support work that isn’t made sustainably now, they need time and space.  We don’t have community centers around our nation that provide innovation labs, kilns, craft rooms, access to computers. Colleen Chien says mayors can do this.

Beebe: Is that progress if the artist is enjoying herself but not disseminating?  All aesthetic experience as craft, fighting the art/craft divide and looking for aesthetic experiences.

McKenna: infrastructure for creation: we could just have art in schools, as we used to. We tend to think about how to get stuff out of fully formed people, but we should talk about infrastructure.

Silbey: You do need communities to survive. Space is finding people who are doing things you’re doing and are not being told to do it in school but are choosing it and finding validation.

DiCola: Most IP academics/IP policy folks have stopped coming to the Future of Music conference; but people from HUD and Dep’t of Education come because they’re interested in this question—not about “cool” cities, but deeper policies.  One program: pilot program in schools to get musicians and artists teaching – another program allows them to work as musicians by working in the schools. 

Said: interesting to track people w/artistic aspirations from adolescence.

Silbey: people who weren’t making a living didn’t perceive themselves as failures, just on the way to success.  Do people who disband bands perceive themselves as failures? Award winning photographer left the industry and works in a family business because he was disgusted w/how he was treated.

Cohen: Diversity in people who don’t support themselves with art.  Photographers have “photo salon” once a month, with juried shows allowing people to build reputation, and at the highest levels you might be carried by a gallery.  Worries about firm distinctions between survivors and “failures”—salon has everyone from the very new to the expert; take stock of the whole.  State-funded support for the arts in Maryland is fairly racially diverse.

Silbey: RT was talking about the problem of inequitable distribution of self-fulfillment. There are people in the study who by many external standards would be “failures” but they don’t consider themselves to be failures at all. What are we measuring? Who wishes they could live an authorial life but dies unfulfilled? Who is not getting the chance to develop in those ways?

Golden: some communities may be more likely to arise than others. Story: Grad student in physics who said “I really like being a grad student in physics. It’s like being part of an all-male club.”  Both explicit and implicit bias.  How we should be assigning value to work.

RT: I don’t support the survivor/failure binary either. Nor am I really interested in personal satisfaction w/one’s own work as such.  (Many pro authors would flunk that test.)  I wasn’t really talking about people who go to photo salon, but the people who got discouraged or never got started.  Who learns that experimentation might get you arrested, harassed or killed?  (1) Of course amateur work is not failure!  I kind of have a thing about that.  (2) We often valorize survival when it’s not the result of personal factors or even moral luck but just luck. 

DiCola: superstars/winner take all markets.  Did anyone talk about being stuck in such a market?  No one can name the second best violinist in the world even though Yo-Yo Ma is probably not 100x better than that person. 

Silbey: they talk about randomness but not that.

DiCola: What’s bad about winner take all markets? One claim: too many people compete for the big payoff.  Instead of basketball or music, we need more engineers.  But why would an economist be confident in saying that?

Silbey: agent says “it’s my job to help my clients make money, and I’ll do that however I can.”  Even her perception, w/many big and little clients, is that she gets them enough. Some get a lot, and she can’t explain why, and others don’t get as much as she thought they would, but there’s not a lot of winner take all discussion. 

Laura Murray: how people judge their own success: peer recognition is a big deal both for artists and grant-making authorities.  That can be turned into cash in various ways, direct and indirect.  Some definitions also say you’re a pro if you spend more time on art than on other things, but that doesn’t work for a lot of artists.  If people aspired to do that, or an aspiration to make money, could consider them pros.  Not always about paying the rent. Some were privileged and had support from a spouse or other, but they wanted money as a sense of achievement/making people take you seriously.  Complicated semiotics. Others said that being on the cutting edge made you a pro; many were invested in distinguishing themselves from hobbyists even if they hadn’t made money recently or ever.  These communities do make distinctions; partly a function of the way that the arts are so little valued—a way of trying to get taken seriously and get recognition of expertise.

Loren: in criminal area, Head Start is great way to prevent crime: invest early, not late.  Same here.

Drassinower: the woman in Silbey’s interviews who didn’t try to publish her work: if we think about process as what matters, and not result, then whether this becomes publicly available is a result-oriented process.  If you don’t have a result-oriented conception, the woman is just doing her process.  If we want to say that at the heart of progress there’s some inherent respect for the process, then respecting the dignity of her process is to let her not publish.  Right of first publication!  Key element of progress which requires respect for the dignity of the author in at least this way.

Silbey: that same interviewee said she needed to write every day the way some people need to exercise.

Drassinower: survivors are not IP problems but social/political problem—how do we distribute the possibilities for self-fulfillment equitably. Not sure IP is the vehicle for solving the problem; they are rights of exclusion.

RT: but if your theory built on survivors is wrong, then you won’t get the results you want when you write the law.  That’s the point of talking about the airplanes: if you theorize about what made your survivors survive, you may make mistakes.  Attribution is an example. Current mechanisms for attributing authorship disadvantage women/female roles, for example; so changing the rules won’t necessarily do what you want.

DiCola: Mechanism: music is an industry built on copyright, and its gatekeepers put 90% men on stage at Pitchfork. Then the teen girls in the crowd don’t see themselves on stage, and that plays a role in what happens next.

Drassinower: I wouldn’t start w/IP; this would be tinkering.  Counterproductive to focus on social inequality from IP standpoint?

RT: I’m not saying we can use IP to fix inequality. Rather, I’m saying if our theory is built on what gets currently successful groups to produce IP, then changing the rules in ways we think will encourage more creativity may not do so, like armoring the wings of the airplane.  (Or, you know, extending the term of copyright.)

Said: if “survivor” has a utility as a concept, we should also frame the problem of silence around the people whose voices aren’t heard.

Swanson: European IP Soc.—pilloried by economists when she suggested that IP systems were gendered and discriminatory; they said that JK Rowling was making plenty of money. But: If IP matters so little in these creators’ lives, am I wasting my time thinking so much about IP? 

McKenna: innovation beyond IP—trying to reframe the issue to include lots of things we traditionally don’t think of as relevant.

Drassinower: really hard to grow up in Latin America and think of copyright as a basic problem.  We want to think in a more disciplined way about the role of IP in society at large. Indeterminacy of progress is part of the problem; IP can’t be the engine of progress in every direction, though Constitution says science and art.  In the mode of strategies, IP is less likely candidate for a big mover.

Loren: we don’t know what we want: “more.”  “Progress.”  How do you know what you want when you don’t have it?  So instead we let the market tell us.

[Catharine MacKinnon’s retelling of John Stuart Mill is all about this: what would we be like if we were free?  There are things you can do to find out, and in © they’d center around derivative works.]

Cohen: platonic backhand, you clear away all the mess and simplify; platonic forehand: having extrapolated causality from artificially simplified dataset, you offer normative prescriptions. The backhand is not normative. The problem w/law is that we have melded legal realism with positivism with law & economics: technocratic social planning.  Silbey’s book discredits the platonic backhand—have to go and talk to people, not just tell a causality story. But when somebody does that, we have to figure out what to talk about.