Law vs. Culture in Intellectual Property
posted by Gerard Magliocca
On Friday and Saturday I’ll be at a conference at GW Law School on “Patents and Entrepreneurship in Business and Information Technologies.” As I prelude to my talk there (about Bilski), I thought I’d write about an aspect of innovation policy that probably deserves more attention.
When people think about how to improve public education, the debate tends to break down along the lines of “money” vs. “values.” In other words. some people say that the problem with schools is that we don’t spend enough money on them or that the money that is spent is unequally distributed. The other view is children don’t work hard enough, parents are not involved in their children’s lives, or society emphasizes other values at the expense of education. Both of these criticisms have merit, and you cannot get successful education reform without responding to both.
When it comes to promoting innovation, though, lawyers focus almost entirely on the “money” side of the equation. We ask “How can we give firms better incentives to innovate?” The tools of choice involve strengthening IP rights, providing new IP rights, or reducing transaction costs to get these rights. Now obviously this is important, but I wonder whether the real bottleneck in innovation is now cultural. (Put another way, are we past the point of diminishing returns on IP rights?) 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. It involves things like corporate structure, leadership, and worker training. Business schools and management scholars are clearly interested in these questions, but I don’t think there is enough interdisciplinary dialogue between these folks and lawyers.
Here’s a simple example. The best free throw shooter in NBA history was Rick Barry. He shot free throws underhanded. How many NBA players shoot free throws underhanded today? None. Why? The only answer I can come up with is that players just think it looks goofy. A cultural norm is blocking the adoption of a superior technique. The problem is not a lack of creativity and would not be solved through new property rights. (To be fair, I don’t think that the NBA is particularly hostile to change — there are lots of counterexamples.) These issues need more scrutiny.
June 10, 2009 at 12:26 pm
Posted in: Intellectual Property
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Responses (6)
Bobo Linq - June 10, 2009 at 1:20 pm
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.
James Grimmelmann - June 10, 2009 at 3:26 pm
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?
Frank Pasquale - June 10, 2009 at 5:27 pm
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
A.J. Sutter - June 10, 2009 at 7:57 pm
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.
Aaron Titus - June 15, 2009 at 8:19 am
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.
A.J. Sutter - June 15, 2009 at 6:16 pm
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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