Category: Symposium (From Goods to a Good Life)

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On Information Justice

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.

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Is IP for People or Corporations?

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).

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Questions About From Goods to a Good Life

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.
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For whom does IP work?

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.

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Fair Culture and Cultural Welfare

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.

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What’s IP Good For?

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.

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Super-Sizing IP Values

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.

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Intellectual Property Theory: An Homage and Reply

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.

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The path toward an alternative consequentialist framework for IP and related fields of law that affect social and cultural life

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.

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From Madhavi to Mad Men

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.

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