Archive for the ‘Symposium (From Goods to a Good Life)’ Category
On Information Justice
posted by Mike Carroll
Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said. I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.
September 21, 2012 at 11:13 am
Posted in: Book Reviews, Civil Rights, Culture, Cyberlaw, Economic Analysis of Law, Innovation, Intellectual Property, Jurisprudence, Law and Humanities, Law and Inequality, Politics, Property Law, Symposium (From Goods to a Good Life), Technology, Trade
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Is IP for People or Corporations?
posted by Madhavi Sunder
Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.
Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).
September 14, 2012 at 1:15 am
Posted in: Civil Rights, Constitutional Law, Culture, Cyber Civil Rights, Education, Feminism and Gender, First Amendment, Jurisprudence, Law and Humanities, Law and Inequality, Media Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0
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Questions About From Goods to a Good Life
posted by Michael Madison
I’m a little late to the From Goods to a Good Life party, and as a result I have a slightly different take than the other contributors here. I appreciate their contributions, and I enjoyed the book. Mostly, though, I have a couple of questions.
At least twice, I stopped reading and wondered what the book was about. Here are the sentences that stumped me:
“The essence of innovation is critical thinking.” (p. 68) and
“[P]articipatory culture demystifies knowledge itself.” (p. 71)
The two sentences don’t express precisely the same thought, but they strike me as closely related, and they puzzle me for a couple of reasons.
Read the rest of this post »
September 13, 2012 at 6:03 pm
Posted in: Intellectual Property, Symposium (From Goods to a Good Life)
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For whom does IP work?
posted by Jessica Silbey
One of the major questions Professor Sunder’s book asks is whether IP works for the people who make it. This is a question that US law does not grapple directly with, but assumes and then glosses over. It is an important question. As Molly Van Houweling mentions, drawing on Julie Cohen’s fantastic article on IP as corporate property, IP certainly works for some companies some of the time. Insofar as companies are intermediaries (distributors of IP protected goods) and the licensees of the creators of those goods (either through work for hire or assignment), firms can and do make some of their money from IP revenues, which IP is generated by individuals working alone or in groups.
The story of Solomon Linda is an example of what can go wrong from the initial creation to the widespread distribution of creative expression that has commercial value. Firms will say that without intellectual property, they cannot harness or nourish the creativity to reproduce, commercialize and distribute it, that the conditions of their productive and distributive business require exclusive rights in the intangible goods. (I think this in part right, but it is largely overstated in light of the the many other ways in which companies make money, such as first to market, complementary products, contracting for services, reputation. And the extent to which the company depends on IP is industry specific.) Individuals will say that the best environment for their creative work is a situation in which autonomy and collaboration are optimized. Individuals want time and space to do their work, and they need some funding to pursue it, but that funding may come from a day or night job that does or does not directly relate to their creative or innovative activity. Ideally, the way the individuals earn a living derives from the creative or innovative work they do, and if that is the case, they still seek autonomy and collaboration, which are often at odds with corporate structure and IP exclusivity. Sunder’s book points out many of these conflicts between individual welfare and corporate welfare. My puzzle, these days, is why there must be such inconsistency. How (when and why) does the corporate interest so greatly diverge from the individual’s interest and what, if anything, can be done about it to maximize IP’s functionality in our global system of creative and innovative production? Sunder’s book goes a long way to putting these issues front and center.
September 13, 2012 at 3:51 pm
Posted in: Corporate Law, Innovation, Intellectual Property, Law and Inequality, Symposium (From Goods to a Good Life), Uncategorized
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Fair Culture and Cultural Welfare
posted by Molly Van Houweling
I began reading From Goods to a Good Life while flying to Johannesburg. I finished reading on the return flight, having during my first visit to South Africa caught a brief but bracing glimpse of the country’s beauty, hospitality, dire income inequality, and unrest. Professor Sunder’s distinctive and engaging prose would have drawn me in wherever I picked up the book, but in the midst of this journey I was especially taken by her opening and recurring example of Solomon Linda. She introduces Linda as “[a] black migrant worker living in a squalid Johannesburg hostel in 1939″ who “composed a song based on his own childhood experiences protecting cattle from lions in the jungle.”
The song borrowed the syncopation of American jazz from across the Atlantic and mixed it with an a cappella melody to create what would become Africa’s first recorded pop hit. Linda’s song soon crossed the Atlantic and was reborn, as “Wimoweh” and later as “The Lion Sleeps Tonight.” It would go on to be recorded over 170 times, eventually finding its way into Disney’s immensely popular film and Broadway production The Lion King. But while the song eventually produced millions of dollars for Disney and others, Linda died destitute, suffering from a curable kidney disease at the age of fifty-three. One of Linda’s children died of malnutrition and another died of AIDS.
Sunder returns to Solomon Linda’s story throughout the book. Here I want to focus on the way she deploys Linda’s story in her third chapter, Fair Culture. As she does elsewhere, Sunder here critiques “intellectual property utilitarianism.” She laments that “[t]he utilitarian approach to intellectual property does not ask: Who make the goods? Who profits, and at whose expense?” I appreciate Sunder’s attempt here to inject IP policy with alternative values–including distributive justice and cultural pluralism–that tend to get short shrift in IP scholarship (although I agree with Professor Said that the shrift is not quite as short as Sunder sometimes suggests). But–and perhaps this reflects my own inability to break out of conventional utilitarian thinking about IP–what I find most striking about this chapter is how it enriches the utilitarian account on its own terms.
To see how, start with an extremely simplistic version of the utilitarian incentive logic as applied to copyright: the exclusive rights of copyright are justified to the extent they give authors incentives they would not otherwise have to make creative works. On this logic, one might be skeptical of exclusive rights that benefit authors who write not for money but for love (as Professor Sibley so eloquently puts it in her post, “because it is what they do—it is how they process the world, it is what they love, it is the solution to a problem, it is important to them or their community”). But there is a version of the utilitarian story of copyright that understands promotion of creativity to encompass more than just incentives for authors. Julie Cohen, for example, argues in Copyright as Property in the Post-Industrial Economy that “copyright is about the proper industrial policy for the so-called creative industries.” “Copyright creates a foundation for predictability in the organization of cultural production, something particularly important in capital-intensive industries like film production, but important for many other industries as well.” Cohen thus suggests that whether or not copyright incentivizes authorial creativity (she is skeptical), it can be important to the continued survival of industries that play an important role in financing cultural production and broadly disseminating cultural output. Cohen calls this “incentives for capital” (as opposed to “incentives for authors”). But to me the point seems to be more about sustenance than incentives. Or, as Cohen elsewhere puts it: “copyright is centrally about corporate welfare.”
Time to return to Sunder, to South Africa, and to human—as opposed to corporate—welfare. It is remarkable and humbling to me that until reading Sunder’s account of Solomon Linda and her vision of “Fair Culture,” I had never before focused on how intellectual property does (or doesn’t but ought to) promote the survival (not just the creative incentives) of human beings who contribute to culture. Perhaps, as Cohen suggests, some corporations cannot support the production and dissemination of mass culture without copyright-enabled profits that sustain their businesses. Sunder makes the stronger and more compelling case that individuals cannot devote their attention to preserving, participating in, and producing culture without livelihoods that sustain their bodies and minds. Of course, we need not look to intellectual property policy to justify (or to provide) the necessities of human survival. Solomon Linda’s untimely and unnecessary death would be just as tragic even if he had not been a talented composer. But if he had been a compensated composer it might not have happened. As Sunder tells us, “cultural participation helps secure livelihood.” “[T]remendous wealth may be generated from cultural production . . . . This wealth may, in turn, be used to promote basic needs, such as health and safety.” And promotion of those basic needs may in turn enable continued cultural participation. But it is easy for those of us with both love and money to lose sight of this fundamental point.
September 13, 2012 at 1:35 am
Posted in: Symposium (From Goods to a Good Life)
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What’s IP Good For?
posted by Jessica Silbey
I am glad to be participating in this virtual symposium and reading Madhavi Sunder’s book. Professor Sunder has been thinking, reading and writing about these issues for a long time in a crowded academic space of intellectual property, economic justice and cultural contest. This book distinguishes her yet again as a strong and clear-headed voice for what we mean when we talk about IP in the public interest. For what else is law about than promoting social welfare? All law, be it public or private law, is theoretically for enhancing the “good” society. The questions lawyers and legislators and policy folks debate is what constitutes that “good” (or certainly “goods”) and how (or whether) law should be structured to promote it/them. On this precise issue I have a point of clarification, however: do we wonder whether IP (whether as a tool or a right, p. 15) is at all necessary or even important for promoting the values Professor Sunder identifies (those central human capabilities from Nussbaum)? I have been wrongly accused (on more than one occasion) of being an anti-property person (fill in your own epithet relating to dead communist and socialist leaders). I am not. But I am also not convinced that intellectual property as it exists as a regulatory mechanism in the United States (or elsewhere) in fact promotes human flourishing to the extent that justifies the exclusivity and withholding that exists with regard to scientific and cultural products around the world.
By this I mean at least the following. Professor Sunder is for sure right when she calls out “efficiency” and “incentives” as straw figures in the quest for theoretical clarity in the legal model for optimally producing and distributing goods such as medicine and music. Most people who make things – either for a long time and after intense investment in a laboratory or studio or after a short time after a walk or good nap – are not doing it in order to protect it through intellectual property laws to maximize revenue. Both qualitative and quantitative empirical work bears this out. People make things because it is what they do – it is how they process the world, it is what they love, it is the solution to a problem, it is important to them or their community. What role does law really have in this kind of making and doing process? IP law has little to do with it, unless IP funds the underlying venture (as in pharmaceutical companies’ research, and even there the figures are unclear whether 20 year patent monopolies are necessary, as opposed to leakier business tools). Labor and employment law, contract law, welfare laws (including the regulation of public utilities, in which I would include the Internet) have more do to with whether people can and do pursue creative and innovative work. The notion that because someone will have the ability to exclude others from copying their work incentivizes folks to in fact engage in the work and distribute it is simply not born about by the data.
However, there is a fine line between (1) plural incentives (p. 21) and culture as a participatory community (p. 17) which in fact generate and perpetuate creative and innovative work, and (2) the deep-seated feelings of possessive individualism that stir in so many of us, which also propel us as inevitably ego-centric individuals to make and share in ways that will be recognized and rewarded. Professor Sunder talks about “fairness through recognition” (p 96) and certainly questions of attribution and credit are central to discussions of copyright, and to a lesser extent trademark and patent law. And so it is that being seen as a person who makes and contributes is paramount to most creators and innovators (what some would call reputational interests). IP law doesn’t help with this. That is surprising to most creators and innovators, be they individuals or corporations. And it is deeply frustrating to them. But here again is an example where IP law seems orthogonal to the interests at stake.
I have more to say about how IP works (and how it doesn’t) in terms of Professor Sunder’s excellent book. But I will wait to see what others write.
September 12, 2012 at 9:54 pm
Posted in: Culture, Intellectual Property, Law and Humanities, Symposium (From Goods to a Good Life), Uncategorized
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Super-Sizing IP Values
posted by Mark McKenna
In a 2006 Stanford Law Review article, Madhavi Sunder despaired that “there are no ‘giant-sized’ intellectual property theories capable of accommodating the full range of human values implicit in intellectual production.” But, she argued, there should be. From Goods to a Good Life is her full response to her own challenge, pushing intellectual property scholars to conceive of IP rights not through the narrow lens of incentives to create and distribute, but as tools to promote human flourishing broadly understood.
I am quite sympathetic to Sunder’s goals here, and we share an affinity for the capabilities approach most prominently associated with Amartya Sen and Martha Nussbaum. Indeed, Brett Frischmann and I have also suggested (only in much broader and tentative terms than Sunder) that IP theory needs to open up to a broader range of goals. Yet in spite of the ambition of Sunder’s project, I was struck by how traditional her project ultimately seemed. For notwithstanding her avowedly liberal goals, Sunder embraces property as much as she rejects it, and many of the tools on which she would rely to promote development depend heavily on the very market mechanisms she criticizes for having led to the exploitation and inequality she wants to address.
To be sure, Sunder has different ideas about the scope of IP entitlements – particularly when those entitlements run up against concerns about access to medicines or other cultural products. But fundamentally what she wants is a principle of equal recognition that operates in practice and not just in theory. She wants poor people’s inventive/creative contributions to be recognized, both in the sense of attribution and in the sense that those contributions deserve the status of property that can be traded to improve material conditions. Hers is a freedom-promoting conception of property that, as Jedediah Purdy has written, traces to the “Enlightenment period of the mid-to-late eighteenth century, when it was exemplified in the thought of the Scottish jurist, moral philosopher, and proto-economist Adam Smith.” This notion that the ability to own property can enable individual creators to make a life for themselves is prominent in certain threads of IP literature. But notably, most proponents of that view (Rob Merges comes to mind most significantly here) favor more IP protection than do the cultural critics of IP on whose work Sunder draws when she argues, persuasively in my view, for greater recognition of the need to engage with, and even to subvert, creative works.
This is not to say that Sunder would come to the same conclusions as these scholars about how a freedom-promoting conception of IP should play out in practice – clearly Sunder would balance the competing interests of creators and users differently, at least in some cases – only that I am struck by how resonant her approach is with those understandings of property, and indeed by how much actualizing her views would depend on property as an institution. Thus, I had the feeling reading the book that Sunder is deeply conflicted about the role of the market as the mechanism for promoting human flourishing.
Sunder, for example, suggests many times throughout the book that people in the developing world might rely on geographical indications (or some variant thereof) as means of gaining recognition for their creative accomplishments and as a lever for economic development. But GI’s, as Sunder notes, are brands – they work only to the extent they are valued by consumers because they denote (or reify) some characteristic consumers care about. And getting consumers to notice and care about a new GI won’t be easy, because they are swimming in GI’s already. There are well over 100 American Viticultural Areas in California alone; the names of thousands of counties in the US are protected appellations of origin; hundreds of wine-related indications are protected just in France; and thousands more GI’s (counting the several varieties) are protected in Europe.
To succeed with a GI in this marketplace, you need a megaphone. That will be even truer for indications that refer to places in the developing world, since as Sunder ably demonstrates, we in the developed world have a skewed sense of the sources of creativity. And of course those who will need the biggest megaphones have the least access to the marketing machinery they will need to compete.
Lea Shaver wrote in her review that “MAD MEN is the perfect antonym for the better world that Professor Sunder’s work envisions. Marketing executives, practically dripping in 1960’s-era white male privilege, strive to endow branded commodities with hegemonic symbolism. The protagonists of this drama view their fellow Americans not as citizens to be democratically engaged or individuals creating their own lives, but as minds to be manipulated. To achieve that goal, they fund the creation of one-way cultural media, which offers its audience no opportunity to challenge the message that the most important way of making meaning in the world is through passive consumption.” The irony of Sunder’s book is that, having shown so well the problems with one-way cultural media, some (many?) of her solutions would rely on the very same mechanisms of one-way cultural media.
September 12, 2012 at 9:37 pm
Posted in: Culture, Cyberlaw, Innovation, Intellectual Property, International & Comparative Law, Symposium (From Goods to a Good Life)
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Intellectual Property Theory: An Homage and Reply
posted by Madhavi Sunder
I am moved and honored by this deep engagement with my book by this amazing array of scholars. Let me reply to each that has chimed in so far, and seek to situate my work within the broader IP discourse at the same time.
What a difference a few years make! Professor Said, who is younger than I am, arrived on the IP scene more recently, and happily she found a more plural discourse than I saw several years back. In the first few years of the new century, scholars on both the Right and Left seemed unified in their commitment both to the incentives rationale and the ultimate goal–innovation. Scholars on the Left saw the incentives rationale as limiting IP rights, because they argued that intellectual property need not offer rights beyond those necessary to incentivize creation. They also argued that too many property rights might result in an anticommons and erode the public domain. Some public domain scholars—to whom my book is both homage and reply—worried that opening IP to alternative discourses such as human rights might bolster property owners’ arguments rather than limit them.
The public domain scholars opened a space for critique in a field that was “coming of age.” In my new book, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012), I seek to both consolidate and expand that critique. I argue that we need to rethink the ultimate goal of intellectual property itself. We should seek not simply to promote more goods, but rather the capability of people to live a good life. To that end, we need to ask new questions beyond just how much intellectual production law spurs, and turn to disciplines beyond law and economics for guidance. Which goods are being produced and which are neglected under market incentives? Even when goods are produced, like AIDS medicines, how can we ensure just access to these knowledge goods? Surely access to essential medicines for people who cannot afford them is important if we believe in the dignity of all human beings. But what about access to culture, such as films, music, and literature? I argue that participation in these cultural activities is just as important – singing and dancing together and sharing stories are activities central to our humanity. They promote learning, sociability, and mutual understanding.
September 12, 2012 at 9:37 pm
Posted in: Civil Rights, Feminism and Gender, Health Law, Intellectual Property, Jurisprudence, Property Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0
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The path toward an alternative consequentialist framework for IP and related fields of law that affect social and cultural life
posted by Brett Frischmann
Madhavi Sunder’s From Goods to a Good Life is an important book. It contributes in significant ways to understanding our complex relationships with each other and the world we live in, share, and construct. I especially love her use of vivid, real examples throughout the book. To do this well involves a special skill and a willingness to dig into facts and contexts that are too easy to ignore for the sake of convenience or because the facts do not fit neatly into pre-existing models.
As others have noted, the book fits nicely in a rich stream of scholarship that challenges narrow economic frameworks and a host of unwarranted assumptions about culture – including the distorting but common assumption of a fixed culture in the “background.” Although previous commentators have mostly mentioned scholars in the stream who have developed external critiques that challenge narrow economic frameworks from outside economics, there are many internal critiques as well. I mention this in part because my recent book falls into this category, and as I read From Goods to a Good Life I kept seeing interesting convergences in our ideas. But more importantly, I mention the internal critiques because in following Amartya Sen, Sunder does not reject economics or an economic framework; rather, she expressly seeks to develop and defend a broader economic framework that better reflects reality and accommodates a broader range of values.
The book does not offer a framework that is set to compete with the economic framework she seeks to displace. It is not quite there yet. Drawing on Martha Nussbaum, Amarya Sen and others, Sunder articulates some features of such a framework. Critically, she justifies deeper interrogation and rigorous development of an alternative consequentialist framework for IP and related fields of law and policy that affect social and cultural life. These are important contributions. Much like Julie Cohen and others in the stream (including me), Sunder has turned to the Capabilities Approach (CA) as a source of normative guidance and the roots of an analytical framework. But much work remains to be done. The CA helps us to conceive, recognize, and analyze normative values that are at stake in IP and related fields of law and policy that affect social and cultural life. To develop an alternative consequentialist framework, however, we need to see more on how the CA helps us to evaluate various commitments, how to prioritize them, how adjusting the “ends” impacts our understanding and design of the “means,” how to implement and operationalize the CA in the cultural environment, and even how the CA intersects and interacts with the welfare economic framework in these fields. Sunder examines many of these issues in specific contexts (from fair use to essential medicines), and this is important. But I suspect that going down the CA path could lead to profound and systematic changes to IP and other related legal regimes.
Madhavi Sunder’s From Goods to a Good Life has encouraged me to explore this path in future work, and I hope others will do so too. I am grateful to Sunder for paving the way and illustrating the urgency.
September 12, 2012 at 5:49 pm
Posted in: Symposium (From Goods to a Good Life), Uncategorized
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From Madhavi to Mad Men
posted by Lea Shaver
As Zahr Said points out, Madhavi Sunder is by no means the first to critique intellectual property from the perspectives of distributive justice or liberty. Indeed, the author of From Goods to a Good Life: Intellectual Property and Global Justice not only gives due credit to the IP scholars who have written in this vein before her, but provides a compelling intellectual history of the field. What is striking about this particular book project is not so much its break with past approaches, but its breathtaking ambition in positioning the future of the field.
September 11, 2012 at 9:21 pm
Posted in: Culture, Innovation, Intellectual Property, Movies & Television, Symposium (From Goods to a Good Life)
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A Response to Madhavi Sunder’s From Goods to a Good Life
posted by Zahr Said
Madhavi Sunder’s new book, From Goods to a Good Life, offers an interdisciplinary reframing of intellectual property law oriented around the normative view that IP law can be a powerful source for increasing human flourishing. Her title suggests a movement away from a view of IP as an area of law focused on trade in goods, and toward a view of IP as a tool for increasing global social justice for all. Sunder’s project, in other words, seeks to reorient IP, in a way I would characterize as moving from things to people. As part of that return to the drawing board, Sunder both recognizes the extent to which law and economics has directed much of the scholarship and policy produced in this area and she advocates for a weakening of its hold. If a word cloud for the prevailing conception of IP included efficiency, utility, and output by the few for consumption by the many, a word cloud for Sunder’s normative vision would instead feature justice, human flourishing, and participation by the many for the many.
The defining feature of Sunder’s conceptualization of IP may be its breadth. For example, her view is not limited to remix culture or the often irreverent creative practices of those born-digital; she sees IP as having the capacity to influence humankind much more broadly, from health and education to cultural freedom and a host of human capabilities whose articulation draws on the work of Amartya Sen, Martha Nussbaum, and Peggy Radin. In her words: “[I]ntellectual property laws bear considerably on the ability of humankind to flourish, affecting everything from the developing world’s access to food, textbooks, and essential medicines, to the ability of citizens everywhere to democratically participate in political and cultural discourse, to the equal opportunity to earn a livelihood from one’s intellectual contributions toward making a better world” (22). As a normative matter, then, Sunder situates IP law squarely at the center of “a free and democratic society.” Consequently, there is a sense of urgency in the book’s assessment of the current law and its many imperfections. Perhaps most central to Sunder’s vision is her criticism of current IP policy’s failure to prioritize distributive justice, which leads it instead to the mechanistic and reductive view of incentives creation as the stated rationale most crucial to IP.
I am entirely in sympathy with Sunder’s assessment of the need to incorporate, together with the economic metanarrative of IP, competing metanarratives whose broader and different implications ought to allow us to prioritize values other than those outlined by the law-and-economics agenda. I share Sunder’s vision of the importance of facilitating cultural participation and equalizing gross trade imbalances, such as those that defined an illustrative and, in many ways, very disturbing dispute between Starbucks and Ethiopian coffee farmers (pp. 40-43). Finally, I celebrate Sunder’s interdisciplinary approach to the set of complex legal, economic, and cultural problems she describes. To the extent that, in the conversation that emerges over the next couple of days during this online Symposium, I offer questions and critiques, I do so in the spirit of seeking to elaborate on and to refine crucial parts of a shared progressive discourse whose goal is to improve IP law on behalf of a greater good.
I want to close with an overarching question I was left with at the end of the book, a question that circles back to its start. Does it matter whether the status quo of IP is, in fact, as strongly utilitarian and economic as Sunder paints it? It strikes me that the characterization of IP as wholly driven by efficiency (25) is something of a caricature that does more to undermine Sunder’s claim than to strengthen it. Yet at a number of points, Sunder reiterates and forcefully rejects the dominance of the economic school of thought, lamenting that it is the only one to have gained traction in the scholarship in recent years. Immediately, I found myself thinking of a counternarrative, in the great wealth of scholarship by–to cherry pick a few examples from different corners of IP law—Funmi Arewa, Margo Bagley, Barton Beebe, Julie Cohen, Christine Haight Farley, Laura Heymann, Sonya Katyal, Roberta Kwall, Rebecca Tushnet, and Fred Yen. Sunder herself ought to be named on the list, and it would also include, among so many others, Rob Merges, who has most recently joined its ranks by producing a book-length apologia of sorts, Justifying Intellectual Property, in which he seeks to correct some of his own earlier entrenchment in the economic take on IP. These scholars have all challenged economic modes of approaching IP or have sidestepped them altogether in favor of other approaches, such as moral rights, law and morality, law and aesthetics, semiotics, literary theory, and so on.
Sunder is familiar with all of their work, and that such work can be characterized as a “counternarrative” surely supports Sunder’s claim that the dominant strain is more economic than not. Still, it’s not clear to me that the IP academy is quite the one-party nation the book makes it out to be. Further, even if the scholarship were as monofaceted in method as Sunder paints it as being, a great deal of Sunder’s book concerns itself with the practical implications of theories of IP. That is, scholarship in theory and law in practice need not mirror one another; indeed, they rarely ever do. Sunder herself admits that the narrow focus on incentives that seems to characterize the law-and-economics school has had less influence on actual case law outcomes than it has had in theory (29). (It scarcely needs stating but we ought perhaps to acknowledge together that the law-and-economics approach is not reducible solely to its incentives story; it has highlighted many other important elements in real-world instantiations of IP, such as transaction costs, free-riding, rent-seeking, signaling functions, and so on.)
It strikes me that among Sunder’s many valuable contributions, her most powerful one lies in helping her reader understand how amplifying current intellectual property discourse to include other metanarratives can potentially increase global social justice and serve many more constituents than IP law does now. Even if the economic discourse constitutes only one of many central discourses shaping the regulation of culture, Sunder’s work encourages us to move in a direction that broadens beyond law and economics, and does not define itself in opposition to it. Instead, Sunder’s view of human capabilities has the potential to diversify the rights and interests and even the very notion of culture that provides the basis for IP law. Our participation in this project might help to shift attention to loftier goals Sunder lays out, such as promoting free and fair cultural exchange; facilitating mutual understanding; nourishing the capacity for creative work even among those who lack the means to pursue such work otherwise; encouraging individual expression; and curating knowledge for the generations that have come before and for the generations that will follow. It is, of course, a lot to ask of a simple copyright symbol, or a not-so-simple trademark registration. But here the effort to reframe IP will provide its own rewards as the discourse shifts over time. Simply striving for such goals in our IP policy has at least the potential to bring us ever closer to Sunder’s articulation of “the good life.”
September 11, 2012 at 5:38 pm
Posted in: Symposium (From Goods to a Good Life)
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Internet Governance and the Good Life
posted by Laura DeNardis
Madhavi Sunder’s thought-provoking new book, From Goods to a Good Life, creates an opportunity to rethink many areas of global knowledge policy, including how the Internet’s technical architecture is governed. Global Internet governance is often viewed through the lens of technical expediency and innovation policy, especially concentrating attention on the international institutions that coordinate critical Internet resources and infrastructure. Sunder’s book provides a refreshing theoretical basis for shifting this frame to place culture and human rights at the center of Internet governance debates. Technologies of Internet governance, although concealed in technical complexity and generally outside of public view, are the new spaces determining some of the most important cultural freedom issues of our time.
Sunder’s book suggests the technological features necessary for participatory culture to thrive. Some of these include many-to-many interactivity, amenability to manipulation and revision, and an architecture that shifts cultural production from the top-down hierarchical control of popular media to a distributed system in which cultural creation can reside at endpoints. As Sunder explains, “This open architecture facilitates democratic resistance to dominant cultural discourses.”
Some trends in Internet governance are discordant with these crucial features. Internet governance control points are neither legal control points nor are they confined within nation-state boundaries. They are often manifested through the design of technical architecture, the decisions of global institutions of Internet governance, and through private business models.
I’ll offer a few Internet governance questions with implications for the future of participatory culture. The first is the evolving, behind-the-scenes architecture of online advertising practices. Relinquishing information about ourselves, consciously or not, is the quid pro quo bargain for free culture. The companies that operate platforms supporting distributed cultural production obviously require massive annual operating budgets. They provide free distributed products (e.g. YouTube, social media, blogging platforms) but are supported by online advertising models predicated upon the centralized collection and retention of data (contextual, locational, behavioral) about individuals that use these products. The removal of material barriers to cultural production is predicated upon these information goods, which are in turn predicated upon the hidden and mechanized monetization networks that support them. Information collected about individuals routinely includes unique hardware identifiers, mobile phone numbers, IP addresses, and location as well as content and site-specific information. In what ways will these evolving practices eventually constrain participatory culture and human freedom? There is a cultural disconnect between the perception of online anonymity and the actuality of a multi-layered identity infrastructure beneath the layer of content.
A second Internet governance trend potentially agonistic to the future of participatory culture is the turn to the Domain Name System (DNS) for intellectual property rights enforcement. The DNS has always served a clear technical function of translating between the alphanumeric names that humans use and the binary Internet addresses that routers use. Right now, the authoritative Internet registries that resolve these names into binary numbers are already being asked to enforce trademark and copyright laws, essentially blocking queries from websites associated with piracy. If this practice expands to ISPs and other DNS operators (as SOPA/PIPA seemed to propose), what will be the collateral damage to free expression and participatory culture?
Finally, an emerging Internet governance challenge to participatory culture is the trend away from interoperability. The ability to exchange information regardless of location or device is a necessary ingredient for participatory culture. Some social media approaches actually erode interoperability in several ways: lack of inherent compatibility among platforms; lack of Uniform Resource Locator (URL) universality; lack of data portability; and lack of universal searchability. In all of these cases, standard approaches are available but companies have explicitly designed interoperability out of their systems. Cloud computing approaches seem to be lurching away from interoperability in a similar manner. These trends concentrate control and intelligence in medias res rather than at end points. These centralized and proprietary approaches mediated by gatekeepers are what the market has selected but this selection has consequences for cultural as well as technical interoperability.
Madhavi Sunder’s book is a reminder to think about these architectural and economic shifts with attention to their effects on participatory culture and to engage public input into these debates.
It might not be immediately obvious how issues as varied as essential medicines, viral Internet videos, and technical architecture are connected to each other and to human liberty. Drawing from theorists as diverse as Durkheim, Foucault, and Habermas, From Goods to a Good Life convincingly makes this connection. Congratulations to Professor Sunder for so insightfully helping us to connect issues of intellectual property and human freedom across diverse areas of global knowledge policy.
Dr. Laura DeNardis, Associate Professor, American University in Washington, D.C.
September 11, 2012 at 11:45 am
Posted in: Culture, Cyber Civil Rights, Cyberlaw, Intellectual Property, Symposium (From Goods to a Good Life), Uncategorized
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What Is IP Good For? Madhavi Sunder Has an Answer: The Good Life
posted by Deven Desai
Why bother to have intellectual property rights? That question is the question for IP. Madhavi Sunder has answers. Some excellent work on the subject has looked at whether economics has new answers about IP rights and their structure. Others have taken a hard look at whether any economic argument works. Like books by James Boyle, Brett Frischmann, and Julie Cohen, Sunder’s book runs right at intellectual property law and tackles the hard question. Sunder proposes that we have left off asking what is the good; not just the good produced but the good for all of us. In the tradition of critique she asks about power dynamics and whether free culture is also fair culture. She forces us to consider the realities of exchange culture and rules that bind our ability to engage and thus limit our freedom to author ourselves. In my work on trademarks, brands, and culture, I looked at specific ways we have moved from one-way mass market systems to two-way interactive ones as I questioned whether trademark rules make sense and improve society. I love this book because Sunder takes this point and drills into local, national, and global levels. She challenges current narratives about how and why we create with concrete examples of overflowing creation, unfair results, and troubling societal outcomes all of which abound despite claims about incentives and social welfare creation in IP law. Still, she believes the law has the foundations for “plural values at stake in cultural production.” Her prescription is that we should be “ripping, mixing, and burning” law to get to the world where we have not only goods, but a good life. I recommend the book and look forward to our discussion here at Concurring Opinions.
September 11, 2012 at 1:40 am
Posted in: Culture, Cyberlaw, DRM, Economic Analysis of Law, Innovation, Intellectual Property, Symposium (From Goods to a Good Life), Web 2.0
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Symposium on Madhavi Sunder’s From Goods to a Good Life, September 11-13
posted by Deven Desai
This week Concurring Opinions is hosting a symposium on Madhavi Sunder’s From Goods to a Good Life (Amazon) published by Yale Press which offers a preview. Madhavi’s work has pushed how many colleagues and I think about intellectual property. I am honored to organize this discussion.
I have more to say about the book, but to whet your appetites, I offer this quote:
The full cultural and economic consequences of intellectual property policies are hidden. We focus instead on the fruits of innovation—more iPods, more bestsellers, more blockbuster drugs—without concern for what is being produced, by whom, and for whose benefit. But make no mistake: intellectual property laws have profound effects on human capabilities…
The symposium will include contributions from Mike Carroll, Laura DeNardis, Brett Frischmann, Mike Madison, Mark McKenna, Frank Pasquale, Zahr Said, Lea Bishop Shaver, Jessica Silbey, and Molly Van Houweling.
September 10, 2012 at 11:24 pm
Posted in: Culture, Cyberlaw, DRM, Economic Analysis of Law, Innovation, Intellectual Property, Political Economy, Symposium (From Goods to a Good Life), Web 2.0
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