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Law vs. Culture in Intellectual Property

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Bobo Linq says:

    Another possibility is that the marginal benefit of practicing the underhanded technique is not high enough, given that practicing the underhanded technique cannot help your outside shooting.

    As I recall, Chris Dudley, a backup center in the mid- to early nineties, was so bad at free throws that he got private lessons from Rick Barry and did in fact shoot underhanded for a while. I don’t think it helped, and Dudley went back to shooting normally.

  2. Some firms are very innovative. Other firms are not. The car industry in the United States is derided as a haven for dinosaurs, while other industries are on the cutting edge. None of this is attributable to law.

    None?

  3. Frank Pasquale says:

    To chip in on James’s comment; It’s often said that when emissions standards were introduced, Toyota hired a 1000 engineers to meet them, and GM hired a 1000 lawyers to fight them. I think those diverging strategies explain a lot about their current positions:

    http://www.concurringopinions.com/archives/2007/04/dont_cry_for_g.html

  4. A.J. Sutter says:

    I think you\’re focusing too much on \”norms\” inside academia, and not in the real world. E.g., there seems to be some confusion about who \”lawyers\” are. Maybe a few law professors ask “How can we give firms better incentives to innovate?,” but most practitioners do not. Most clients engage practitioners to help them to strengthen IP rights, provide new IP rights, or reduce transaction costs to get these rights. That is, the orientation towards IP often starts with company management.

    Moreover, the methodology of many academic and institutional studies of innovation exacerbates this problem, since patent apps are often used as a proxy. Most innovation is difficult to see — it\’s one thing to point to hybrid cars, which are highly salient, but what about modifications to chucks in etch chambers used for chip manufacturing, or to slurry for chemical mechanical polishing? And as anyone who has worked in industry knows, innovation is *qualitative*. Is a composition-of-matter patent on a me-too drug an innovation? Did the Sony Walkman, long a poster-thing for innovation, involve any new technology? (Nope.) But because quality is so difficult to judge, and is so often invisible to most people anyway, a brute quantitative proxy is preferred.

    Your focus on cultural norms as blocking innovation is also too narrow. You might consider the impact of monopolies, and of the vaunted, but not necessarily benign, \”network effects\”. Basketball may be business, but business ain\’t basketball.

  5. Aaron Titus says:

    The Open Source and Creative Commons movements are legal expressions of cultural norms which repudiate traditional IP rights, in the quest for innovation. Here, individuals purposefully contract away IP rights they would otherwise have, in order to spawn innovation through collaboration.

  6. A.J. Sutter says:

    Aaron’s comment is an example of the usage of “norm” that inspired me to put quotes (though not slashes) around the word in my earlier comment. At what point does an action or a behavior become a “norm”? Are there any boundaries on the usage of “norm”?

    My copy of Garner’s Dictionary of Modern Legal Usage 2nd suggests that a norm (in a legal context) “establishes acceptable and unacceptable standards of behavior.” Given that Open Source and Creative Commons users are in the minority compared to users of traditional IP, it seems fair to infer that people who feel it’s unacceptable to use traditional IP rights are in the minority. Then while perhaps informative as to the minority group’s delineation of acceptable vs. unacceptable, this usage of “norm” seems highly relativistic, leading to dozens, hundreds or thousands of conflicting “cultural norms” even within the same state or county (e.g., the cultural “norms” of not putting mayonnaise on the bread when preparing an egg salad sandwich, or of not wearing blue pinstripe suits). That is, “norm” degenerates into simple taste.

    Without a careful identification of the group within which the purported norm is in force, “norm” is just a jargon word. Save it for something more truly normative (e.g., the cultural norm of not putting mayonnaise on bagels).

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