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Category: Symposium (From Goods to a Good Life)

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A Response to Madhavi Sunder’s From Goods to a Good Life

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.”

 

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Internet Governance and the Good Life

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.

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What Is IP Good For? Madhavi Sunder Has an Answer: The Good Life

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.

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Symposium on Madhavi Sunder’s From Goods to a Good Life, September 11-13

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.