It doesn’t spoil any of the movie to note that the two main characters share a moment talking about memories of eating ice cream in front of “Fenton’s” and counting passing cars of different colors.  When I heard the reference the first time in the film, I made a mental note.  When I saw the reference the second time — there’s a “Fenton’s” sign on an ice cream store — I said a silent [...]]]> I just came back from seeing the new Pixar animated film Up .  It’s a charracteristically charming Pixar effort; all thumbs up!  Plus, I got these neat-o 3D glasses.  There’s a little IP angle to the film, though, and I want to use that to anchor this last of my guest posts.

It doesn’t spoil any of the movie to note that the two main characters share a moment talking about memories of eating ice cream in front of “Fenton’s” and counting passing cars of different colors.  When I heard the reference the first time in the film, I made a mental note.  When I saw the reference the second time — there’s a “Fenton’s” sign on an ice cream store — I said a silent “whoa.”  The fictional Fenton’s of the film is indisputably modeled on the real Fenton’s, which is a local ice creamery and landmark on Piedmont Avenue in Oakland, California, only a few miles from Emeryville, where Pixar is located and where much of the film was made.  When I lived in Oakland, Fenton’s was a late night haunt for me and my family.  If you’re in the neighborhood today, by all means stop in.  Have a crab salad sandwich.

As I usually do, when the film ended I stayed to the end of the credits, and not surprisingly, the producers acknowledged the cooperation and/or permission of all sorts of third parties whose material appears incidentally in the film.  But there was no acknowledgement of Fenton’s.  Piracy?  Homage?  An inside reference?  You be the judge.  Well, don’t:  It’s approved product-placement-as-homage, which you can contrast with more subtle un-approved product-placement-as-homage — the hamburger cake produced by Oakland’s legendary Merritt Bakery — that appears elsewhere in the same film.

Permission to use the name and sign of the ice cream store, but no permission obtained to reference the bakery?  Are there rules here?  (“Rules?  In a knife fight?“)  When is a thing sufficiently public (colloquially, on some fuzzy sliding scale, or more technically, under trademark law) that even the industry’s bend-over-backwards-to-clear-rights way of doing business will look the other way?  Sometimes even courtesy and industry custom give way; the thing is simply there for the use or the taking.

To be sure, the Fenton’s reference is far more salient and recognizable than the Merritt Bakery reference, but homage is homage, and if the filmmakers were trying to do the right thing when they called Fenton’s, why not do the same with the Merritt?

We might analogize this to the public goods problem that provides a standard point of reference in justifications of much intellectual property law:  “Public” goods will be undersupplied in the absence of some market intervention — usually proprietary rights or government subsidies, or both — that assures that producers of the goods can recover their costs.  But sometimes, “public” goods get supplied all the same, without being wrapped in proprietary rights or government subsidies — or industry norms — because there are plenty of ways for producers of related goods (and services)  to recover costs and make a living.  That’s an opportunity to drop in this quotation from the same recent New Yorker piece about watchmakers that I mentioned recently in the context of private legal systems. “Time is free.  Why should you pay for it?” asked the watchmaker, rhetorically.

The point being that “time” is a public good only in the sense that we treat it as such. Public goods, like other things, are created by us, given various attributes of law, technology, and, as in the case of the Merritt Bakery and Up, by practice. Remove clocks from public places and public services — as AT&T withdrew its free telephonic “time of day” service on the West Coast a couple of years ago — and time’s up. (Save for those who can derive to-the-minute time by watching the sun.) Check your watch, if you still wear one, or your relevant portable digital device, but now you’re paying for what’s “free,” in an abstract sense.

This doesn’t solve the tiny puzzle that piqued my interest in Up; it only shows that the tiny puzzle is emblematic of a problem that all of us — not just IP lawyers dealing with the collapse of the newspaper industry, or the music industry, etc. etc. — deal with all the time.  And we, and the institutions around us, manage that problem just fine — sometimes muddling through, sometimes achieving spectacular results.  Somewhere out there, someone may be willing to pay more than $1 million for a watch.  Some of the rest of us are satisfied (smug, even) believing that we’re insiders in a game of cultural cross-references.  IP law, related rules, and those who interpret them sort out most of the rest.  The distribution of wealth evolves; the sun will come up tomorrow, and both Fenton’s and the Merritt will still be there.

I wear a Timex, as it happens, but otherwise I’m out of time.  The end of my guest month arrived more quickly than I expected; family duties, and other opportunities of summer, beckon too soon for me to linger longer.  Thanks again to Dan and the gang for the invitation to hang out here for a little while.  Sometime, I hope to get the chance to come back.  In the meantime, you can find me at madisonian.net (for law stuff) and  Pittsblog (for stuff about the host of the next G20 summit).  As a minor Pittsburgh-born celebrity used to say, I am outta here.

True enough, Baselworld includes a limited-time, limited-purpose private arbitration forum, translated in English as “the Panel.” Here’s the Baselworld page about “the Panel”: “The Panel is an arbitration board within the show that deals with complaints about violations of intellectual property rights during the BASELWORLD Watch and Jewellery Show. The complaints procedure is provisional in nature. It grants the successful applicant temporary legal protection within 24 hours and ensures that intellectual property rights are respected and that peace [...]]]> This recent New Yorker piece about “Baselworld,” the annual watchmakers’ confab in Switzerland (Patricia Marx, “Face Value,” May 25, 2009) included a throwaway line that I found fascinating.  Baselworld is so large that it has its own police force and “a judiciary to settle trademark disputes.” Whoa. Huh?

True enough, Baselworld includes a limited-time, limited-purpose private arbitration forum, translated in English as “the Panel.” Here’s the Baselworld page about “the Panel”: “The Panel is an arbitration board within the show that deals with complaints about violations of intellectual property rights during the BASELWORLD Watch and Jewellery Show. The complaints procedure is provisional in nature. It grants the successful applicant temporary legal protection within 24 hours and ensures that intellectual property rights are respected and that peace is maintained at the show.”

Exhibitors are required to consent to the “jurisdiction” of the Panel. Its powers cover the full range of IP claims and related rights (trademark, copyright, patent, unfair competition), but procedures are relatively informal, and sanctions are limited to removal of the offending item(s), and perhaps closure of the offending exhibition pavilion, during Baselworld itself. The online summary notes, “If the legal dispute is continued before an ordinary court, the decisions of the Panel may be used as expert opinions if need be.” I don’t know what that means.

Justifications for special purpose tribunals like this one often rely on blends of private interest (my paraphrase: “the participants consented to the panel’s authority”) and public rule (again: “the panel is empowered to adjudicate claims regarding patent rights”). I wonder whether we have a persuasive general account of these hybrids.  (Some of the “New Governance” work in the US, and its European cousin, focuses in part on this question, but only in part.)  They’re increasingly common, and in some areas, quite important. For domain names, there is the Uniform Domain Name Dispute Resolution Policy (UDRP). For screenwriters, there is the arbitration system administered by the Writers Guild of America. Major League Baseball players submit to “baseball arbitration.”   (Since “baseball arbitration” has become an ADR term of art, linguists will note the redundancy.  What kind of arbitration would baseball players submit to – other than baseball arbitration?)  Not suprisingly, with fantasy baseball comes fantasy baseball arbitration. The sporting world also brought us a special purpose tribunal at the edge of fantasy, the “Eagles Court” that operated at the old Veterans Stadium in Philly to deal with fans who had an uneasy relationship with reality. 

Of course the “Eagles Court” was a real court, with a real judge. It just happened to be located in a stadium, not in a courthouse. Baselworld, the UDRP, the WGA procedures, and “baseball arbitration” are forms of private arbitration. So to some folks, the interesting questions don’t have to do with the public/private blends that generate the authority of special purpose tribunals (those questions might be answered easily). Instead, the interesting questions have to do with institutional design.  How “closed” does the relevant community need to be (if it needs to be “closed” at all)?  Relatedly but distinctly, what kind of assent to the authority needs to be present?  How transparent and fair do relevant procedures need to be, and whose standards of transparency and fairness apply?  What is the “right” relationship between the rulings of the special-purpose tribunal and traditional public authority?

Curiously, the one question that the Panel might answer authoritatively at a watchmakers’ convention appears *not* to be part of its mandate. 

There is no Baselworld procedure for settling disputes over what time it is.

For 20 years, the eagle has been the mascot of athletic teams at UW-L. Only earlier this month, however, did students at the campus get around to voting on a name for the bird, and the name they chose was “Eddie.” Unfortunately, “Eddie” is also the trademarked name of the mascot of the NRA’s “Eddie Eagle GunSafe Program,” which is aimed at students in pre-K through the third grade.  Apparently claiming that marketplace confusion would likely result from use of “Eddie the Eagle” in a post-secondary educational setting, when benchmarked against the elementary educational programming [...]]]> The world is again safe for trademark law, now that the National Rifle Association has put an end to efforts at the University of Wisconsin-La Crosse to name the university’s eagle mascot “Eddie.”

For 20 years, the eagle has been the mascot of athletic teams at UW-L. Only earlier this month, however, did students at the campus get around to voting on a name for the bird, and the name they chose was “Eddie.” Unfortunately, “Eddie” is also the trademarked name of the mascot of the NRA’s “Eddie Eagle GunSafe Program,” which is aimed at students in pre-K through the third grade.  Apparently claiming that marketplace confusion would likely result from use of “Eddie the Eagle” in a post-secondary educational setting, when benchmarked against the elementary educational programming offered by the NRA, the NRA forced the university to stand down.

Undeterred by possible claims of intellectual property rights in alternative names, the students re-voted and named their eagle “Colbert.” Apparently, neither the actor nor the character objects to the use of a name that is likely protected by trademark law and right of privacy and/or publicity law, or both — despite the obvious and ubiquitous association of “Colbert” with eagles.  This seems to put Stephen Colbert squarely at odds with the National Rifle Association, at least when it comes to symbolic representations of birds of prey. 

There is no word on the matter of the validity of the NRA’s mark from the original Eddie the Eagle – Eddie Edwards, former ski jumping champion of Great Britain and world-famous competitor in the Calgary Olympics, who taught all of us important life lessons.

Earlier this Spring, the law review’s online supplement, In Brief, published a series of responses to that article, by me, Katherine Strandburg, Jennifer Rothman, and Henry Smith: Jennifer E. Rothman, Custom, Comedy, and the Value of Dissent Henry E. Smith, Does Equity Pass the Laugh Test?: A Response to Oliar and Sprigman Katherine J. Strandburg, Who’s In the Club?: A Response to Oliar and Sprigman Michael J. Madison, Of [...]]]> Late last year the Virginia Law Review published a provocative and entertaining article by Dotan Oliar and Christopher Sprigman (both on the Virginia law faculty) on copyright law and the social norms of stand-up comics. There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008).

Earlier this Spring, the law review’s online supplement, In Brief, published a series of responses to that article, by me, Katherine Strandburg, Jennifer Rothman, and Henry Smith:
Jennifer E. Rothman, Custom, Comedy, and the Value of Dissent
Henry E. Smith, Does Equity Pass the Laugh Test?: A Response to Oliar and Sprigman
Katherine J. Strandburg, Who’s In the Club?: A Response to Oliar and Sprigman
Michael J. Madison, Of Coase and Comics, or, The Comedy of Copyright

And In Brief just published Oliar and Sprigman’s great response to all of the critiques, From Corn to Norms: How IP Entitlements Affect What Stand-Up Comedians Create.

The collection of pieces makes up an engaging virtual symposium on a topic that is simultaneously important (the relationship between law and social norms) and entertaining (how often do legal scholars get to dedicate professional energy to Lenny Bruce?). 

This kind of extended public colloquy among scholars is among the best uses of the online supplements that many of the top law reviews have created.   The “virtual symposium” could be even more effective if the elements of virtual symposia were collected (tagged, perhaps) and publicized as such (“Symposium on Law and Social Norms in Stand-Up Comedy”, or something like that) in both new and traditional electronic media (Westlaw, Lexis/Nexis, CILP, the law review websites themselves and their posts to this blog and others, SSRN, etc.) 

That suggestion is directed to all those students, librarians, indexers, and bloggers who contribute to the ecology of online information about scholarship, and it comes from the perspective of the reader.  Here’s a suggestion from the perspective of the author.  If your piece is being pitched at a journal that hosts an online supplement, consider offering to partner with the student editors in soliciting critiques and responses, and designing an issue of the supplement that constitutes, in effect, a low-cost symposium on your work.

The Code itself is one of four recent ”best practices” statements supported by AU (in particular, by Pat Aufderheide at the CSM and Peter Jaszi at the law school) and/or inspired by the “best practices” model.

The first is the “Documentary Filmmakers’ Statement of Best Practices in Fair Use,” released [...]]]> Yesterday, the Program on Information Justice and Intellectual Property at American University’s Washington College of Law and the Center for Social Media at AU’s School of Communication released “Remix Culture: Fair Use Is Your Friend,” a video that accompanies and explains the Code of Best Practices in Fair Use for Online Video, released jointly by the two centers last July. The video was underwritten by Google and was produced in collaboration with Stanford Law School’s Fair Use Project.

The Code itself is one of four recent ”best practices” statements supported by AU (in particular, by Pat Aufderheide at the CSM and Peter Jaszi at the law school) and/or inspired by the “best practices” model.

The first is the “Documentary Filmmakers’ Statement of Best Practices in Fair Use,” released in late 2005.

The others are the Code of Best Practices in Fair Use for Online Video, the Code of Best Practices in Fair Use in Media Literacy Education, and the recently-released “Statement of Best Practices in Fair Use of Dance-related Materials: Recommendations for Librarians, Archivists, Curators, and Other Collections Staff,” produced by the Dance Heritage Coalition.  Full disclosure:  Law faculty and practicing lawyers who specialize in copyright law vetted each of these publications, and I was one of vetters.

None of these publications claim to state definitive rules for what is or is not fair use even within the domains of practice to which they refer, let alone for all purposes.  Instead, they offer guidelines for practices that are believed likely to be legally acceptable, given a fair reading of the law of fair use and a fair survey of actual creative practices in the relevant domain.  And they also offer guidelines for what likely crosses the fair use line, again given fair readings of both law and practice.  The relevant audiences include not only practitioners in each field but also relevant gatekeepers — ISPs and insurance companies among them — who play major roles in determining what may or may not be published, promoted, displayed, and distributed.

Among other things, the best practices approach is one way of rendering concrete an emerging sense that fair use in copyright law is neither as radically indeterminate nor as toothless in operation as the conventional wisdom might suggest.  For scholarship that bolsters that view, see a recent paper by Pam Samuelson and slightly older papers from Barton Beebe and me. 

The best practices approach is not a panacea, and it is far from costless.  Producing these statements and working with gatekeepers to acknowledge them is time-consuming, challenging work.  And there is no assurance that if tested in court, a copyright defendant’s reliance on a Best Practices approach or publication would be persuasive to a judge or jury.  The hope, however, is that the more robust the set of Best Practices followed by creators in these fields, the less likely it is that litigation will ensue.

For most purposes, neither the story nor the interview that preceded it have anything to do with my academic life, though the Times gives me credit for being a professor at Pitt Law.  Instead, [...]]]> By popular request, I’m posting this link to my brief appearance in this morning’s New York Times.  (Well, the link is popular in certain quarters, and I did receive a request to post it!)   The story has to do with tomorrow’s mayoral primary, in which Pittsburgh’s young mayor, Luke Ravenstahl, front man for an emerging Democratic Party machine that someday may do the elder Daley proud, is certain to defeat his two challengers, Patrick Dowd, current darling of local progressives, and Carmen Robinson, a well-liked but under-funded African American lawyer and former police officer.

For most purposes, neither the story nor the interview that preceded it have anything to do with my academic life, though the Times gives me credit for being a professor at Pitt Law.  Instead, the Times piece, like a recent interview that I gave Dutch TV (watch for it!) and a piece earlier this Spring for CNN (teased here, then preempted by the tragic death of a certain skiing actress and replaced by this blog post) are the products of what one Burghosphere colleague (Burghosphere is the extravagant name that we Pittsburgh bloggers have given ourselves) calls my status as an “ambassador” for the city.  My five-year-old blog about the many futures of Pittsburgh, Pittsblog, was one of the first local blogs, and while it now has plenty of company, it is still one of the dozen or so that try to bring a little light to the heat generated by Steelers and Penguins fandom.  Media search for light-generating media; they find me; I become a momentary local celebrity because I’m in the paper of record.  Rinse and repeat.

Still, underneath the hood, there is a connection to my research interests, whether or not you care about the Steel City itself. 

I began writing Pittsblog in 2004 because I had discovered that (i) Pittsburgh is a really great place, with lots of engaging history (as a young British officer, George Washington lost a battle nearby and thereby earned a reputation!) and amazing current resources and potential (Pitt!  CMU!  UPMC! amazing philanthropic traditions and accumulations of private capital!), but (ii) Pittsburgh was stagnating.  None of its potential was being realized, and no one seemed to care.  Part of the problem was structural (Pittsburgh had long been always a big-company, top-down kind of place, economically, politically, and culturally); part of the problem was conceptual, or you might say psychological.  Pittsburgh has little recent experience with the kind of bottom-up, let’s-build-a-company-and-change-the-world mentality that flourishes in some other parts of the U.S.    Having moved to the area from the Silicon Valley, where I grew up and which is a leading domestic example of that alternative mindset, I wanted to be a cheerleader for different ways of thinking about economic development, technology development, and the continuing post-steel hoped-for revival of the Pittsburgh region.  Above all, I wanted to spread the idea that risk, and the risk of failure, which Pittsburghers have long loathed, could be a useful addition to the civic mix. 

As my conversations with local friends and colleagues had it, how do you change the psychology of a city?  That has been my Pittsblog theme for the last five years.  One short answer is that you can’t, really (the long answer requires sifting through my older posts).  But you can subtly help shift the frame of the conversation, both locally and nationally (thanks, CNN!), and you can push here and there indirectly on the idea that in-migration and “salmon” (native Pittsburghers returning from exile, or what some local wags call “gumbanders,” adopting a piece of Pittsburgh dialect) would really help move the local economic needle, because those folks have seen how it’s done in other parts of the world.  Failure is a lousy thing, but failure is something that healthy economies need, and it’s something that can be woven successfully into ways of thinking about prosperity.  Pittsburghers who have lived elsewhere have seen failure, and they’ve survived.  To map this on to my recent posts about law school faculties and institutional culture, getting individuals to see the path of the institution as something that is related to but distinct from their own work is — difficult, but essential.  Sometimes the best way to do it is not to retrain the existing population, but instead to import folks who know about different ways of seeing and thinking. 

A second answer is structural rather than cognitive, and it gets closer still to my ongoing interest in commons institutions.  I’ve blogged at Pittsblog about what I refer to as the “entrepreneurship commons,”  by which I mean that local economic development efforts need to focus not only on what I call “retail” development (for example, the incubator helps to find funding for one start-up at a time) but also on what I call “wholesale” development (for example, the legal profession assembles and makes available an array of firms and professionals who accessible to local technology developers, entrepreneurs, and investors at attractive prices).  One of my favorite examples of the latter is a technology fair that a local tech umbrella organization put together with the Pittsburgh Penguins, as part of the Pens’ planning of its new arena.   

It is still very much a work in progress (the city and the region, as well as the blog).  And a third answer is that for a city that is a sports-mad as Pittsburgh, winning a championship or two (or six!) certainly helps the psyche.  So, while I’m no ice hockey fan, I’ve learned to appreciate Sid the Kid (Crosby) and Geno (Malkin) and the rest of the Penguins, who just finished a magnificant NHL playoff series with the Washington Capitals and are now gearing up to face the Carolina Hurricanes in the conference championship.  Let’s go Pens.

I’m convinced that these interests are distinct, though they overlap. Here’s a possible example of the gap in action: At your law school, do faculty members regularly attend and participate in workshops presented by speakers who specialize in fields other than their own? Do they make, in other words, what might be characterized as “karmic” contributions to the intellectual life of the school? Are they [...]]]> My post on the challenges facing the law school Research Dean contained an implicit and unexamined assumption regarding a gap between the interest of the individual faculty member in producing and distributing research and scholarship, on the one hand, and the interest of that faculty member’s law school in the research and scholarly activities of its faculty, on the other hand.

I’m convinced that these interests are distinct, though they overlap. Here’s a possible example of the gap in action: At your law school, do faculty members regularly attend and participate in workshops presented by speakers who specialize in fields other than their own? Do they make, in other words, what might be characterized as “karmic” contributions to the intellectual life of the school? Are they good scholarly citizens?

Not everyone is always available to show up, and having too many people show up could undermine the value of the workshop. Yet there are folks who don’t show up because they don’t care, or can’t be bothered, or don’t see the value in taking time to kick around the ideas of someone who can’t help them with their own work. I believe that the interest of the individual (absent) faculty member may be served by that judgment, at least in a sense, but the interest of the school is not. A lively workshop culture means an intellectually engaged faculty, which can have tangible benefits for those local faculty; which can generate reputational benefits among other law schools; and which can have payoffs in the classroom for students.

In short, I’m aware of a kernel of Chandler’s Visible Hand at work in my Research Dean-ing. Other things being equal, I’d like to get more colleagues to attend more workshops.

Am I overstating the case? Have my metaphors run roughshod over important distinctions?  I admit that I like going to workshops, even workshops in fields far removed from mine, and not just because it’s part of my role as Research Dean. It’s entirely possible that my view of the matter is colored by my own idealized vision of an academic community. I also recognize that by putting “karmic” participation in the life of an institution onto the table, I complicate the sizable expectations that already confront would-be and new professors. Institutional interests have distributional consequences.

Thoughts?

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have [...]]]> From the Department of Paradoxes in Sporting Jurisprudence:

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs Nuggets would have in-bounded the ball.)

As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.

After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.

That prompts this question: Is there a right to be punished? If so, when, and if so, why?

Even casual basketball fans know that the final minute or two of many basketball games is a choreographed ballet of intentional fouls and foul shots. Players, coaches, fans, and referees have come to expect them. It’s part of the game, like Michael Jordan’s tongue or LeBron James’s talcum powder. In a way, Wright and the Mavericks played by the rules, and they were justifiably upset when the referees didn’t.

In a different, formal way, of course, Wright and the Mavs weren’t playing by the rules at all. Viewed from a third-party perspective (perhaps from the referees’ perspective), Wright’s disappointment and the Mavericks’ outrage seem out of place. Wright broke the rule. Having broken the rule, it seems to me that neither he nor the team has any legitimate expectation regarding the form of his punishment. Why, in other words, should the wrongdoers benefit by stopping the clock) and the victims suffer when the rules are broken? This seems to be the perfect case for the maxim “No harm, no foul.” Wright fouled Anthony but didn’t cause Anthony or the Nuggets any harm. Why reward Wright?

It’s easy to imagine a scenario in which where Anthony and the Nuggets might have a stronger case, even granting the possibility that Anthony might still have made that final shot. If Wright had fouled Anthony recklessly or with an intent to injure Anthony, that is, if Wright acted with a different sort of mens rea, then Wright might have been liable for a flagrant foul (with some interesting jurisprudential twists of its own), and protecting the health or safety of Anthony and similarly situated players, by calling the foul, might well take precedence over the game’s competitive flow. But this grants Anthony a stronger case for punishment, not Wright; we don’t want to encourage Wright to injure Anthony in order to obtain his team’s reward. The punishment in this scenario might be adjusted upward to an extent that it deters the strategic use of flagrant fouls, or it might be deferred until after play has concluded.

I pause here to note Wright’s interest in punishment, which in Kantian or Hegelian terms might flow from Wright’s own status as an autonomous agent.  (I’m answering my (rhetorical) question with assistance from an interesting article by Markus Dubber, The Right to Be Punished: Autonomy and its Demise in Modern Penal Thought, 16 Law & History Rev. 113 (1998). ) It might be said that whether Wright’s foul was flagrant or merely intentional, his claim for punishment is grounded in his claim to status as an autonomous moral agent, intending to bring on himself the full consequences of his actions.  That logic falls apart, I think, on the ground that in context Wright is no autonomous moral actor; he is an agent, or an instrument, of his coach or of the team, or both.  Wright didn’t choose to foul; he was told to foul. 

The more challenging question, it seems to me, is how basketball society should enforce its collective expectations regarding the tactical use of wrongdoing.  A sporting event between two teams is a kind of competitive commons.  Only one team can win the game (usually, and almost always in basketball), but both teams have kind of shared duty to perpetuate the sport.  That involves both playing by formal rules and playing by the informal rules, or the collective expectations of the relevant sporting community.  ”Ordinary” fouling in basketball is a weird way of giving back to the game.  *Tactical* fouling, on the other hand, might be said to do a kind of violence to the particular competition, but it might be part of the scheme of the sport.  Does Wright’s wrong make a right?

Personally, I don’t think so, but I’d be interested in hearing from folks who can think of both analogous and distinguishable situations in other contexts. My instincts here are informed by my deeper experience with soccer, where officiating practices are quite different. As I understand the matter, officiating in basketball, like officiating in football, is supposed to be judgment-free: If the rule is broken, the referee is supposed to call a foul. Everyone knows that basketball and football officials really do exercise discretion, but that discretion isn’t part of the rules or the ethos of the sport. In fact, if the officials in the Mavs/Nuggets game exercised discretion by observing Wright’s intentional foul yet deciding not to call it (cf. the current NHL playoffs), then they may have broken their own rules.

Contrast this with officiating in soccer, which has no “rules.” Soccer has laws, and it is understood by the soccer community that the center referee typically has broad discretion in interpreting and applying those the laws, especially when it comes to penalizing serious infractions with cautions and ejections and when it comes to deciding whether a violation of the laws is serious enough to warrant a penalty kick. In those cases, a penalty is not merely awarded, but earned. Soccer referees have discretion to delay calling a foul or to defer it altogether, if the victimized team retains possession of the ball and an attacking advantage.  Soccer players dispense their own justice, as when one team voluntarily relinquishes the ball to the other after the ball has been deliberately been put out of play in order to enable an injured player to be treated.  The team that stops play is entitled to the return of the ball – by universal custom, not by law or order of the referee.

Soccer and basketball are, in other words, different sorts of sporting commons.  Soccer seems to be governed by equity, and basketball seems to be governed by law. My critique of the NBA’s post-game reversal of Wright’s  intentional foul non-call involves applying equitable maxims to a legal case (“One who seeks equity must do equity”; “One who comes into equity must come with clean hands”; “Equity will not allow a statute to be used as a cloak for fraud”). It’s plausible to object that the civil procedure of sports hasn’t merged the two.  One wonders, however, which model is better suited to adapting a single sport across a multiplicity of cultures.

My last post pointed to a recent short piece on comics and the relationship between “anti-plagiarism” social norms that encourage comic creativity and the emergence of those norms in the context of commodified comedy.  Comics sold and consumers bought LPs by the boat-load. The success of record albums had a clear if unmeasurable impact on comics’ incentives to produce and innovate.

A generalizable point is this: Record album sales are an objective and observable characteristic of this particular environment. The data is mostly external to the comics themselves. What scholars describe as social norms among comics are, by contrast, mostly subjective. Norms are personal to each comic. We “observe” the existence of [...]]]> What’s the connection between law professors and stand-up comics?

My last post pointed to a recent short piece on comics and the relationship between “anti-plagiarism” social norms that encourage comic creativity and the emergence of those norms in the context of commodified comedy.  Comics sold and consumers bought LPs by the boat-load. The success of record albums had a clear if unmeasurable impact on comics’ incentives to produce and innovate.

A generalizable point is this: Record album sales are an objective and observable characteristic of this particular environment. The data is mostly external to the comics themselves. What scholars describe as social norms among comics are, by contrast, mostly subjective. Norms are personal to each comic. We “observe” the existence of social norms them by inferring their existence from regular behavior and from anecdotal reports. That interplay between observable, objective, and “external” dimensions of an innovation environment and subjective, “internal” dimensions of that environment is central to understanding its mechanics.

In fact, that interplay is probably central to understanding the mechanics of any cultural context. It’s a central theme in the work that I’ve begun on “cultural commons” with Brett Frischmann and Kathy Strandburg. And it connects stand-up comedy and law faculties. More below the fold.

In a comment on my last post, Jacqui Lipton asked about the greatest challenge that I’ve faced as Research Dean at Pitt. The short answer is that it is relatively easy to design, implement, and manage objective, observable dimensions of the faculty’s research and scholarship environment. It is very difficult to change the subjective, “internal” dimensions of that environment. Much of the job reminds me of my years teaching six- and seven-year-olds to play soccer: I could teach the rules of the game. I could teach basic skills and some rudimentary strategy. These were the objective, observable pieces. I could not teach instinct or passion, and I could not teach the idea that individual investment and collective success are inextricably linked. These were the subjective, “internal” pieces. Some girls would collect the ball at their end of the field and tear toward the other goal. Some of these were more skilled than others. Many of them intuited the proposition that individual effort and team success were linked. I’d call these players the naturals, “natural” in the sense that skills would come in time but they had a nose for getting to the right place, at the right pace. Some of them were skilled but selfish, human highlight reels, at least in their own minds, but in roughly equal portions both detrimental and helpful to the team. And there were the dandelion pickers, who would stab at the ball if it happened to roll in their direction.

Much of this maps on to the Research Dean question. (I am not the inaugural Research Dean at Pitt; one colleague held the position before I did. When I was appointed three-plus years ago, however, our (then new) Dean charged me with scaling things up.) On the objective, observable side, we have added a number of things, few of them really unique or innovative but most of them useful in one way or another: We instituted a program of regular faculty workshops, including faculty exchanges with some other law schools. We established an SSRN Research Paper Series and a program of stocking it with faculty scholarship. I built a Faculty Blog (which consists of my posting about my colleagues’ research and scholarship). I produce an annual internal report of faculty research and scholarship, including future research directions, that is independent of the information collected annually by the Dean and that is circulated to the whole faculty. I’ll save for another time, perhaps, the additional two or three paragraphs that would describe the programming and activities that I undertake or support.

All of that, however, is the relatively easy part. The challenging part is persuading the faculty dandelion pickers, as it were, to collect the ball in their own end and tear toward the other goal. The metaphor is a little overwrought, of course; I’m not misdescribing our faculty when I claim that we have no real dandelion pickers. Our faculty does, however, house a group of individuals with a broad range of subjective beliefs and expectations regarding their own research and scholarship and an equally broad range of beliefs and expectations regarding the relationship between their work and the institutional interests of the school. Changing either set of beliefs and expectations, if that is something that I’d like to do (and sometimes, it is) is very, very difficult. I can’t take for granted that every faculty member is motivated by the same goals, or that any of them necessarily subscribes to my goals, or to the Dean’s goals. Every faculty has its own range of beliefs and expectations, and its own history. There can be no assurance, as the saying goes, that lots of objective, observable programs that support research and scholarship will, in fact, produce more or better research and scholarship, or that it will produce more engaged scholars, or that the research and scholarship that a faculty produces will have greater impact in the world.

There are two obvious exceptions.  One is appointments; if a faculty (or a Dean) really wants to turn the ship, then hiring people who bring the desired set of beliefs and expectations with them is a direct way to do so. But there can be no assurance that the views of the Research Dean will have a strong bearing on the conduct of the Appointments Committee. There are always other important interests and goals at work.  Two is the scholarship of the Research Dean.  It’s important, I think, for the Research Dean to model what is expected from the rest of the faculty, and it certainly helps if the objective, observable features of the environment enrich the Research Dean’s beliefs and motivations.  For me, they certainly do.

It’s implicit in what I’ve summarized that some of the pieces of my Research Dean role are in tension with each other. It’s also implicit that if one of the things that I’m trying to do is to nurture the role of a law faculty as a kind of cultural commons (knowledge goes in to a community, gets stirred and shared, and new knowledge comes out), then measuring success – if there is such a thing in this context – requires a long-term perspective.  And it’s implicit that the Research Dean isn’t simply an appointment that any person can fill with equal success; the person who serves as Research Dean is a kind of focal or anchoring personality, a cheerleader as well as a teacher and an organizer.  A law faculty commons, like any commons (11 players, or 22, on a soccer field?), doesn’t simply happen; it’s created and managed, sometimes with greater success and sometimes with less.

In short, my biggest challenge as Research Dean — and probably an insurmountable challenge — is getting my colleagues to behave the way that I described in this older post:

I played competitive soccer until I finished high school. I played on horrible teams and magnificent teams; for coaches I had tactical masters, experienced former professionals, veterans of soccer on several continents. The best pure leader of the bunch, however, was Mark Speckman, who was my coach during my junior year of high school.

Mark was only about five years older than we were, and he was just starting his coaching career. He knew next to nothing about soccer. He had been a football player in college, earning national recognition as a linebacker at Azusa Pacific in the old NAIA. He was hanging around our school helping with the football team, when he was asked to take the reins of the soccer program for a year.

I should mention at this point that Mark Speckman was born without hands.

So picture a non-soccer playing linebacker, without hands, coaching a bunch of kids whose job it was to put a ball in the back of a net — without using their hands. He didn’t teach strategy, or tactics, or skills; he couldn’t. He was smart and a quick study, and he put 11 men on the field in mostly the right places. We did the rest. But at every practice and at every game, he was on fire. En fuego. With his energy and enthusiasm for us and for the cause, and partly simply by his own history and presence, Mark Speckman was a one-man force of nature.   One-to-one, in the group, whatever it took, Mark Speckman goaded us, cheered us, and validated us loudly and publicly whenever we made great plays and sometimes when we were merely OK but he and we all knew that better was there for the taking, with more effort. His was always the loudest, most positive, and most relentless voice on the sideline. No hands for him; no hands for us.

I honestly don’t remember our record, though we did pretty well. We were competing against schools that were five and ten times our size. Occasionally there was a college coach lurking here or there, but to my knowledge none of us went on to college careers (and a number of our opponents did). What I do remember, however, is that just about to a person, we would run through walls for Mark, and for each other.

The other blogs?  In addition to madisonian.net, which is familiar to many law professors who work in IP (and which is the part-time home of Co-Op first teamers Frank Pasquale and Deven Desai), I [...]]]> Thanks to Deven for the generous introduction and to Dan and the Co-Op team for inviting me to spend some time here this month.  The introduction intentionally saves space by not including a couple of things that I’ll talk about during my stay:  My other blogs, and my appointment as Research Dean at Pitt.  Both have something to do with my current work on commons institutions.  Over the course of this guest stint I hope to explain some of the connections and to generate suggestions and feedback that might help me see others.

The other blogs?  In addition to madisonian.net, which is familiar to many law professors who work in IP (and which is the part-time home of Co-Op first teamers Frank Pasquale and Deven Desai), I write for and administer Pittsblog (on the futures of Pittsburgh, PA, with a special focus on economic development) and for Blog-Lebo (a community blog that challenges the traditional suburban orthodoxy of Mt. Lebanon, PA, where I live).  As Research Dean at Pitt, I write the Pitt Law Faculty Blog, which chronicles the scholarly activities of our faculty.  And because the IP field is bursting with conference activity, I use a blog platform to maintain a conference and workshop calendar for IP and IT law events for scholars in the US and, occasionally, elsewhere.

Each of these started in a distinct way and for distinct reasons, but over time I’ve come to see them as part of a pattern, as a set of informal institutions that serves different communities or groups in related ways.  Exploring that pattern and teasing out those relationships is the theme of my current scholarship, too, so while it might appear to some that I push myself in lots of disparate directions, I usually feel that I’m working on one big thing that has lots of specific payoffs.

For an illustration and lead-in to my next post, here’s a link to my most recent writing, which is a comment in the Virginia Law Review’s online “In Brief” that responds to Dotan Oliar’s and Chris Sprigman’s very interesting article in the Virginia Law Review, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy. (My piece is called Of Coase and Comics, or the Comedy of Copyright.) I suggest that social norms alone can’t explain the apparent absence of formal copyright claims among modern stand-up comics. Comics’ “no plagiarism” norms emerged roughly around the same time that comedy LPs became million-sellers, in the early 1960s.   Is there a connection?  I suspect that there is, and I suspect that connections among record albums and comics’ norms are related in some way to connections among blogs and communities.

More shortly.  In the meantime, a bit of trivia:  Historians of comedy usually think of Mort Sahl and Lenny Bruce as pacesetting stand-up comics.  In researching Of Coase and Comics, I was pleasantly surprised to learn that the first comedian to have a gold record was accountant-turned-comedian Bob Newhart, the same Bob Newhart who later acquired iconic status for communities of college students via the phrase “Hi, Bob” and who eventually uttered the immortal TV sitcom line, “You really should wear more sweaters.”