Clearing Up the Court’s Confusion About License Plates

Corey Brettschneider

Corey Brettschneider & Nelson Tebbe


Posted 4:01 PM by Corey Brettschneider [link]

Excluding Religion from Government Support

Guest Blogger

Posted 1:29 PM by Guest Blogger [link]

Incentives and Competition in Innovation Markets: A Study of the FAA UAS Test Sites Competition

Guest Blogger

Robert Heverly

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

The (commercial) drones are coming. Amazon wants to deliver packages with them, as does Google, and utilities want to monitor their infrastructure with them. Known more properly as Unmanned Aircraft Systems (UAS), the Federal Aviation Administration has proposed new rules to regulate commercial drone use, and states have passed laws in an attempt to protect privacy and prevent alleged misuse of the drones (for example, preventing hunting by UAS).

In 2012, Congress passed the Federal Aviation Administration Modernization and Reform Act (FMRA), in which it directed the Federal Aviation Administration (FAA) to begin integrating Unmanned Aircraft Systems (UAS, or drones) into the national airspace. Section 332(c) required the FAA to designate six UAS national test ranges to allow testing to begin at those sites (without this authority, UAS cannot be used for commercial purposes without specific FAA authority). No funding was included in the test range designation; instead, UAS could fly at the ranges pursuant to a local, streamlined approval process, avoiding the otherwise relatively lengthy existing FAA procedure). Fifty applicants initially sought FAA authority to open test ranges, a number the FAA first reduced to 24 and finally to the six awardees (the FAA has since issued proposed rules for more general commercial UAS use, and even more recently approved use of certain UAS below 200 feet without significant restrictions).

The UAS industry is an innovative industry. We can contrast UAS with industries, such as manufacturing or even gambling facilities, that states may seek to entice to locate within their borders for purposes of encouraging economic development. Silicon Valley was not built by luring employers into the region. It was built – and succeeds – because of the benefits that innovation bring to the region (and it is so successful that there are now various “Silicon” and “Valley” themed regions throughout the world as others attempt to recreate Silicon Valley’s success).


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Labels: Beyond IP

Posted 12:00 PM by Guest Blogger [link]

The Path of Robotics Law

JB

I have posted a draft of my latest essay, The Path of Robotics Law, on SSRN. Here is the abstract:

This essay, written as a response to Ryan Calo's valuable discussion in "Robotics and the Lessons of Cyberlaw," describes key problems that robotics and artificial intelligence (AI) agents present for law.

The first problem is how to distribute rights and responsibilities among human beings when non-human agents create benefits like artistic works or cause harms like physical injuries. The difficulty is caused by the fact that the behavior of robotic and AI systems is "emergent;" their actions may not be predictable in advance or constrained by human expectations about proper behavior. Moreover,the programming and algorithms used by robots and AI entities may be the work of many hands, and may employ generative technologies that allow innovation at multiple layers. These features of robotics and AI enhance unpredictability and diffusion of causal responsibility for what robots and AI agents do.

Lawrence Lessig’s famous dictum that “Code is Law” argued that combinations of computer hardware and software, like other modalities of regulation, could constrain and direct human behavior. Robotics and AI present the converse problem. Instead of code as a law that regulates humans, robotics and AI feature emergent behavior that escapes human planning and expectations. Code is lawless.

The second problem raised by robotics and AI is the "substitution effect." People will substitute robots and AI agents for living things—and especially for humans. But they will do so only in certain ways and only for certain purposes. In other words, people tend to treat robots and AI agents as special-purpose animals or special-purpose human beings. This substitution is likely to be incomplete, contextual, unstable, and often opportunistic. People may treat the robot as a person (or animal) for some purposes and as an object for others. The problem of substitution touches many different areas of law, and it promises to confound us for a very long time.

Finally, the essay responds to Calo's argument about the lessons of cyberlaw for robotics. Calo argues that lawyers should identify the “essential characteristics” of robotics and then ask how the law should respond to the problems posed by those essential characteristics. I see the lessons of cyberlaw quite differently. We should not think of essential characteristics of technology independent of how people use technology in their lives and in their social relations with others. Because the use of technology in social life evolves, and because people continually find new ways to employ technology for good or for ill, it may be unhelpful to freeze certain features of use at a particular moment and label them “essential characteristics.” Innovation in technology is not just innovation of tools and techniques; it may also involve innovation of economic, social and legal relations. As we innovate socially and economically, what appears most salient and important about our technologies may also change.
Posted 8:35 AM by JB [link]

Commemorating the Joint Committee on Reconstruction

Gerard N. Magliocca

This is a year filled with sesquicentennial anniversaries of the Civil War.  Lee's surrender to Grant, Lincoln's assassination, and the ratification of the Thirteenth Amendment all occurred in 1865.

But another transformative event of 1865 may not be celebrated at all.  In December 1865, Congress created the Joint Committee on Reconstruction, which gave us the Fourteenth Amendment.  As far as I know, this conclave, which amounted to a Second Constitutional Convention, has never received any official recognition.  Given that Reconstruction was condemned as a disaster until the 1960s, this lack of respect is unsurprising.  We are well past that point now, though, and thus I hope that many elected officials, law schools, and bar associations will work to rectify that wrong.
Posted 11:49 AM by Gerard N. Magliocca [link] (24) comments

IP and Other Regulations

Guest Blogger

Mark A. Lemley [1]

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School


Intellectual property (IP) is a form of regulation. As I have argued elsewhere, [3] IP laws are deliberate government interventions in the market to try to shape how people participate in that market, encouraging new creation by rewarding it with above-market returns and discouraging imitation by imposing damages or even barring it altogether.

Once we understand IP laws as government social policies that seek to alter market outcomes, we can start to think of those laws as part of a broader tapestry of government rules that affect innovation in a complex variety of ways. Daniel Hemel and Lisa Ouellette have already situated IP regimes among a variety of other government policy levers designed to affirmatively encourage innovation and market entry, including prizes, grants, and tax incentives. [4]
 
But the potential role of regulation in encouraging market entry is not limited to offering various forms of government-sponsored largess to innovators. More traditional forms of regulation restrict market entry. Doing so offers supracompetitive returns to market incumbents who benefit from the entry barriers regulations impose. Taxi drivers benefit – or did until quite recently – from the absence of a truly competitive market, propped up by government limits on market entry. So too do the learned professions, which limit entry into their fields, sometimes in quite blatantly anticompetitive ways. [5] Pharmaceutical companies benefit from the limits the FDA puts on generic entry, over and above – and sometimes regardless of – the existence of patents. [6]

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Labels: Beyond IP

Posted 1:00 PM by Guest Blogger [link]

Innovation Law Beyond IP 2: Bringing the State Back In

Guest Blogger

Amy Kapczynski

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

I’m looking forward to welcoming a superb group here to Yale this weekend for our second annual “Innovation Law Beyond IP” conference. I’m particularly excited about the main theme of our gathering this year: bringing the state back in.

I’ve puzzled for many years about the reflexive pessimism about the state that prevails in the field of IP.  The dominant justification for IP law, in fact, relies at its core on a particular view of the state.  As Kenneth Arrow noted long ago, IP rights create necessary inefficiencies, and these make the state a plausible competitor to the market on efficiency grounds.  Why, then, should we use IP rather than the state?  Because, as one of the leading IP law casebooks tells us:

Intellectual property rights have the advantage of limiting the government’s role in allocating resources to a finite set of decentralized decisions: whether particular inventions are worthy of a fixed period of protection. The market then serves as the principal engine of progress. Decentralized consumers generate demand for products and competing decentralized sellers produce them. By contrast, most other incentive systems, especially large-scale research funding, require central planning on a mass scale. (Merges, Menell & Lemley, 18)

This image of the state casts a long shadow in the field.  So long, in fact, that it reaches deep into the “beyond IP” literature.  Larry Lessig, for example, argues that “[I]f the twentieth century taught us one lesson, it is the dominance of private over state ordering.” (Future of Ideas, 12).  We should rebel against IP law in part, Lessig says, because we should “limit the government’s role in choosing the future of creativity.” (Id. at xvi).


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Labels: Beyond IP

Posted 9:30 AM by Guest Blogger [link]

The Innovation State: "No Country" for Old Rules, only Experimental Ones?

Guest Blogger

Sofia Ranchordás

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

We love the word innovation. We pronounce it endlessly and, very often, meaninglessly. It seems like everything can be qualified as an innovation these days, and hence escape the legal control and the heavy hand of the state. Law and innovation are often presented in the popular media---and a portion of the literature---as two realities that shouldn’t mix. While innovation is an intangible, evolving, and trial-and-error process, law is made of stable and predictable rules.

Regulators seem to aim at a form of legal certainty which is not compatible with the inherent uncertainty that characterizes innovation. Therefore, whenever law tries to regulate innovative products and services, it often ends up stifling innovation by applying rigid and obsolete rules that constrain the freedom of innovators. As I have explained in my previous work on sharing economy, we have witnessed this problem with the prohibition of Uber in Europe, where the ‘old rules’ designed for taxi regulation have been used to prohibit this innovative form of peer-to-peer economy.

However, is this tension between law and innovation truly due to the inherent uncertainty of innovation, or to the normative uncertainty that confronts regulators? In other words, in many cases, clinical trials and ex ante evaluations may already provide regulators with sufficient information as to the potential risks and benefits of an innovation, but this may still not say much about the rules to be enacted in a concrete case, or the timing of such rules.


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Labels: Beyond IP

Posted 8:00 AM by Guest Blogger [link]

Property Rules and Liability Rules for Genetic Data

Guest Blogger

Jorge L. Contreras

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

In 2009, the Texas Department of Health agreed to destroy a research biobank containing approximately 5.3 million infant blood samples. The samples, stored on index cards as dried blood spots, were collected over an eight-year period as part of a state program to screen newborns for genetic disorders and birth defects.  The parents of each infant consented to the blood draw and the testing.  Nevertheless, when four Texas parents discovered that the state retained the infant blood spots for future research, they sued (Beleno v. Lakey (W.D. Tex. 2009)).  Andrea Beleno and the other parents alleged that the state’s use of infant blood spots for research purposes without their express consent violated their right to privacy under the Fourteenth Amendment, among other things. To settle the litigation, the state agreed to destroy its entire repository of more than five million infant blood spots, an invaluable and irreplaceable resource for biomedical research. 

The result in Beleno is not unique.  Individuals have been asserting the right to control the use of biological samples and data with increasing frequency. In a highly-publicized case involving the Havasupai tribe, Arizona State University agreed to return DNA samples and discontinue several lines of research following objections from tribe members (Havasupai Tribe v. Ariz. Bd. of Regents, 220 Ariz. 214, 217 (2008)). They argued that, although they may have consented to the use of their DNA for diabetes research, they did not consent to other uses, including research on schizophrenia and ancient human migration.  After the tribe brought suit seeking $50 million in damages, the university settled, notwithstanding the fact that tribe members signed broad consent forms potentially authorizing the research.

It is axiomatic under U.S. law that there is no property interest in mere facts. Nevertheless, as these cases show, with respect to human genetic data, a de facto property regime has emerged in all but name. This regime has enabled individuals to exert strong proprietary rights over the use of data obtained from them, leading to instances in which research has been hindered or stopped, and in which valuable resources have been destroyed.  The mechanism by which individuals have been able to assert control over “their” data is informed consent.

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Labels: Beyond IP

Posted 1:00 PM by Guest Blogger [link]

Creative Production Without Intellectual Property

Guest Blogger

Kate Klonick

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

The problem of the commons has existed as long as humans have formed communities: how do you protect against overfishing in an ocean no one owns, but everyone uses? How do you prevent pollution in a sky that belongs to no one, but everyone breathes?

In talking about more traditional natural resource-based commons problems, economists and lawyers have largely debated the relative merits of two approaches to solving the commons problem:

1. letting the state resolve the problem (through laws); or
2. letting the market resolve the problem (through privatization).

An alternative approach, developed by Elinor Ostrom — and which won her a Nobel Prize in Economics in 2009 — escapes this binary, and suggests that a voluntary self-governing citizenry will create its own institutions and solutions to commons problems. Ostrom created a framework for analyzing and studying these institutions, as a means of creating societal preconditions to support their development.

But protecting and allocating natural resources like fish or air or land is slightly different than allocating culture and knowledge.  “Knowledge commons” — as Brett Frischmann, Michael Madison, and Katherine Strandburg explain in Governing Knowledge Commons — are created by humans and are both intellectual and cultural. In natural resources, the problem of the commons stems from the self-interest individuals have in depleting a common resource; but in intellectual and cultural resources, the problem of the commons stems from the challenge of incentivizing the ongoing creation of these resources, while also recognizing that such contributions are public goods.

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Labels: Beyond IP

Posted 10:30 AM by Guest Blogger [link]

Understanding Value in a Black Box Society

Frank Pasquale

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Posted 7:55 AM by Frank Pasquale [link]

Centralization, Fragmentation, and Replication in the Genomic Data Commons

Guest Blogger

Peter Lee

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

Genomics—the study of organisms’ entire genomes—holds great promise to advance biological knowledge and facilitate the development of new diagnostics and therapeutics. Genomics research has benefited greatly from various policies requiring the rapid disclosure of nucleotide sequence data in public databases. The result is a genomic data commons, a widely-accessible repository of information from which all members of the scientific community can draw. Notably, this intensely productive space operates almost completely outside of formal intellectual property law through a combination of public funding, agency policy, and communal norms.

The genomic data commons has attracted significant scholarly interest both because of its great potential to advance biomedical research as well as its broader lessons about the nature of commons-based productivity. For instance, Jorge Contreras has charted the evolution of the genomic data commons from a system that essentially disseminates information into the public domain into a more complex, “polycentric” governance institution for managing knowledge resources. This paper, which grows out of Brett Frischmann, Michael Madison, and Kathy Strandburg’s project to study commons governance, explores less appreciated but highly significant complexities of managing genomic information. In so doing, it seeks to shed greater light on the nature of commons in general.

In particular, this paper focuses on the governance challenges of correcting, updating, and annotating vast amounts of sequence data in the commons. Most legal accounts of the genomic data commons focus on researchers’ initial provisioning of data and access to such data by other scientists. Delving into the science of genome sequencing, assembly, and annotation, however, this paper highlights the indeterminate nature of sequence data and related information. Quite simply, the genomic data commons is full of errors and incompleteness. Accordingly, this paper examines four approaches for correcting, completing, and updating existing data: contributor-centric data management, third-party biocuration, community-based wikification, and specialized databases and genome browsers. It argues that these approaches reveal deep tensions between centralization and fragmentation of control within the genomic data commons, a tension that can be mitigated through a strategy of replication.

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Labels: Beyond IP

Posted 1:00 PM by Guest Blogger [link]

The Hidden Wisdom of Architectural Copyright Before the AWCPA

Guest Blogger

Kevin Emerson Collins

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

My project follows through on an intuition about the value of architectural copyright that dates from my days as an architect before I went to law school. When I was an architect, I believed that copyright would be valuable to me not because it prevented other architects from borrowing from my designs but rather because it gave me more bargaining power in relation to the building owners who were my clients. More specifically, my current project identifies the hidden wisdom of architectural copyright before the adoption of the Architectural Works Copyright Protection Act (AWCPA) of 1990—an odd copyright regime that, to date, no one has sought to justify. Formalizing my old intuition, I argue that the primary benefit of pre-AWCPA copyright was not an augmented incentive to create but rather the resolution of a variant of Arrow’s information paradox. That is, pre-AWCPA architectural copyright was a well-engineered copyright regime because it allowed strangers to free ride on design information while it prevented building owners who were contractually related to architects from opportunistically appropriating disclosed information without full payment.

Before the AWCPA, copying original expression from an architectural drawing amounted to infringement, but copying the exact same original expression from a constructed building did not. Economically speaking, pre-AWCPA architectural copyright was therefore a defeasible right because it lost much of its economic value upon the construction of a building. Pre-AWCPA copyright was a facially odd copyright without an analog in any other copyrightable subject matter. Imagine protecting the drawings used to design useful articles, but not the conceptually separable aspects of the useful articles themselves. Alternatively, imagine protecting the sketches made in preparation for large-scale murals or mosaics, but not the completed murals or mosaics.

Pre-AWCPA copyright has been widely criticized by critics who evaluate it under the incentives-access tradeoff that underpins conventional economic justifications of copyright. Aspiring to a maximalist regime, some copyright scholars criticize pre-AWCPA copyright directly, arguing that its defeasible rights are too paltry. Because free riding on constructed buildings is permitted, they posit that it does not generate meaningful incentives to invest in creative architectural design. Others, aspiring to a minimalist regime, argue in favor of thin—or perhaps even non-existent—copyright protection for architecture. However, they do not defend the defeasible nature of pre-AWCPA rights as a good way to limit an architect’s copyright rather than, say, a strictly administered substantial similarity test. In sum, pre-AWCPA architectural copyright was not only weak, but runtish as well. If the point of copyright is to generate incentives for creativity and tamping down on the most egregious free riding is the most palatable way of having copyright augment the incentive to create, pre-AWCPA copyright simply misses the mark.

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Labels: Beyond IP

Posted 8:00 AM by Guest Blogger [link]

We Don’t Need No State! Wait. The State Funds That? Never Mind.

Guest Blogger

Deven Desai

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

The sub-theme for Innovation Law Beyond IP 2 is “Bringing the State Back In.” That theme prompted me to submit a proposal in part because I am not sure the state ever left. The assumption of bringing the state back in seems to be that it has been pushed out or ignored. Marianna Mazzacuto’s white paper on the state and innovation and her follow-up book, The Entrepreneurial State, on the topic offer another perspective: that society has under-valued the state’s role in innovation.

As I kicked around the conference theme, I thought about the number of times I had said the term. "Innovation" has been gutted of meaning. When I worked it Silicon Valley, I was constantly hearing that everything and everyone was "innovative." What do you want to be? Innovative. Why should we fund you? We are innovative. Why shouldn’t we tax you? We will stop innovating. It reached a point that I’d not be surprised if someone claimed to be innovative in the way they crossed a street. The ever-present invocation of innovation made me think: what exactly do we mean by innovation? And are some innovations more important than others? Furthermore, from where do innovations come?

Part of the problem is that the focus on innovation in general misses that any given innovation is part of a system, and it is the system that matters. If we think about systems that support innovation, it appears that there are three parts to such a system:

1. discovery
2. invention
3. innovation.

The state plays a role for each part. The problem today seems to be that as soon as one talks of the state being involved in anything, what Fred Block has called “market fundamentalism” rises to challenge and deny that the state has any role to play. In addition, the Schumpeterian idea of gales of creative destruction has been claimed by many sides of the innovation policy debate and confuses the debate further. As I read Schumpeter, I found that he recognized the differences between invention and innovation. He also recognized that not all innovations are equal.

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Labels: Beyond IP

Posted 1:00 PM by Guest Blogger [link]

Ceci N’est Pas Un Taxi: Definitional Defiance as Innovation in the Platform Economy

Guest Blogger

Orly Lobel

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

Over 10,000 new platform companies have sprouted and mushroomed in less than a decade and they continue to pop up daily. The platform economy, while not easy to define or quantify, was valued in 2013 at $26 billion with predictions of an exponential growth to $110 billion in the next few years. A recent Price Waterhouse report predicts that globally, revenues from the platform sectors could hit $335 billion by 2025.

So what’s your business? You don’t need to open a restaurant to host cooking events; you don’t need to become a taxi driver to offer paid rides; you don’t need to open a hotel to be a lodging host; you don’t need to start a moving company to get paid for helping someone relocate. Platform businesses are challenging conventional industries in every realm, including hotels (Airbnb, Couchsurfing, Homeaway, VRBO), office space (Liquid Space, ShareDesk), parking spaces (ParkingPanda, Park Circa), transportation (Lyft, Sidecar, Uber), restaurants (Eatwith, Feastly, Blue Apron, Munchery), used clothing (ThredUp), household tools (Open Shed), outdoor gear (Gearcommons), capital (Zopa; Prosper, Kickstarter, Bitcoin), broadcasting (Aereo, FilmOn.com), co-developing (Quirkly, Etsy), legal services (Upcounsel), medical services (Healthtap), academic tutoring (Uguru), everyday errands such as grocery shopping and laundry (TaskRabbit, Instacart, Airtasker, Washio), and specialized errands, such as  flower delivery (BloomThat), dog-walking (DogVacay) and package delivery (Shyp).

New digital technologies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. It’s been called the sharing economy, the disaggregated economy, the peer-to-peer economy (P2P), human-to-human (H2H), the community marketplace, the on-demand economy, the app economy, mesh economy, gig economy, and the "Uberization of everything."

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Labels: Beyond IP

Posted 8:00 AM by Guest Blogger [link]

Publishing without Property

Guest Blogger

Lea Shaver

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

In "Copyright and Inequality," I explored the ways in which copyright protection often – perhaps inevitably – fails to incentivize books for certain audiences, because they are too poor, speak the “wrong” languages, or require niche content or formats. The project I will present at the Beyond IP 2 conference examines a possible solution to copyright’s inequality problem, one which holds the potential to finally bring books to billions of readers long neglected by the mainstream publishing industry.

In India, Pratham Books pursues the mission of “A book in every child’s hand,” producing more than 1000 titles in over 15 languages, and reaching 52 million children. The African Storybook Project distributes openly licensed stories on a digital platform that facilitates translation to help young children develop a love of reading. First Book provides low-cost new books to over 160,000 schools and community programs, and leverages its buying power to demand more diverse books.

Social publishers are defined by the centrality of a social mission rather than the pursuit of profit. For this reason, they often rely heavily on social subsidies and treat their product as a social good to be distributed free or at cost. Often, but not always, social publishers also engage in social production. These alternative content-production models leverage intrinsic motivations, social networks, and peer production enabled by digital platforms.

My project analyzes this emerging phenomenon to understand how law and policy can help social publishers reach their fullest potential, and to derive broader lessons from this example of intellectual production without IP.

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Labels: Beyond IP

Posted 1:00 PM by Guest Blogger [link]

Governing Knowledge Commons

Guest Blogger

Michael Madison

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

Empirical investigation into different modalities of knowledge production, distribution, access, and preservation has accelerated in recent years.  Much of the energy behind that effort emerges from the intuition that formal intellectual property law frameworks are inadequate and/or incomplete to describe what one observes in the world when examining the governance of innovation.  “Peer production” frameworks, and frameworks simply “beyond intellectual property,” are likewise inadequate and/or incomplete; broad, simple labels cannot themselves correct for the errors and omissions of IP as such and cannot capture the significance of diverse ground-level details.

Yet policymaking cannot proceed effectively if it tries to align law with micro-level experience, or if researchers advance policy arguments based on isolated case studies of innovation “beyond intellectual property.”  What is needed is an empirical strategy for investigating the mechanics of innovation systems that encourages both micro-level and system-level inquiry and invites comparing and eventually synthesizing lessons across diverse innovation domains, accepting linkages among commons-based production, user-innovation, IP-based production, and state-sponsored production.  Commons-based production, sometimes in part referred to as “peer production,” is widespread and heavily theorized, yet commons governance is under-researched.  One-off studies and anecdotes have been collected without a strategy for using that data to build a larger model of knowledge and innovation governance.

My colleagues Brett Frischmann, Kathy Strandburg and I proposed the first part of such a strategy in our 2010 paper, Constructing Commons in the Cultural Environment, and we refine that strategy and demonstrate its potential in Governing Knowledge Commons, the edited collection that is the subject of my presentation at the Innovation Law Beyond IP 2 conference.

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Labels: Beyond IP

Posted 8:00 AM by Guest Blogger [link]

Trademark Innovation to Support Open Collaboration

Guest Blogger

Stephen LaPorte and Yana Welinder

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

Next week, scholars from around the world will gather at Yale Law School to discuss different institutions that impact knowledge production at the Innovation Law Beyond IP 2 conference. One of the topics will be how legal rules and infrastructure can sustain or undermine commons-based peer-production. Trademark law is one such legal regime that is rarely discussed in this context. Unlike copyright law’s Creative Commons and open source licenses, trademark law has not generated new inventions to support collaborative production on the internet. Trademark law provides some support for collaborative projects like Wikipedia and Linux by protecting their brands from imposters and making the brands distinguishable so that the projects can use them to recruit new contributors. But brand protection can also impose restrictions that go against communities’ values and slow down their work. Over the past decade, communities and their lawyers have found different strategies to reconcile their novel forms of knowledge production with the stringent requirements of trademark law.

The core tension between collaboration and trademark law is the requirement of quality control. The quality control requirement is based on the theory that a trademark should be a reliable indicator of a good’s origin. When trademark holders provide permission for someone to use their mark, they usually retain the right to inspect the quality of the goods that carry the mark and impose restrictions on how the mark may be used. Open source and free culture communities, on the other hand, thrive on openness and decentralization. These communities rely on technical tools and social norms to maintain the quality of their project.

In 2010, collaborative communities got a wake-up call with a Ninth Circuit ruling that the Freecycle Network had lost the legal rights in its logo due to non-traditional brand management. Freecycle had failed to enter into proper quality control provisions with affiliate organizations when they gave the organizations general permission to use the Freecycle logo without specific restrictions. The Court found this to be naked licensing, a form of trademark abandonment, that limited the Freecycle Network’s ability to enforce their trademark. This case served as a warning of the risk of naked licensing to collaborative communities that were too open. Since then, collaborative communities have been grappling with how to protect their marks in a manner that fits open source and free culture values.

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Labels: Beyond IP

Posted 9:00 AM by Guest Blogger [link]

The Cost of Free and Paradoxes of Informational Capitalism

Guest Blogger

Guy Pessach

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

Among other aspects and dimensions, the frame “Beyond IP” summarizes two key complementary insights in contemporary politics of intellectual property. The first insight touches upon the limits, shortcomings and social costs that are associated with legal ordering of cultural/information production through intellectual property regimes. The second insight lists alternative structures, institutions and regulatory options for the promotion of innovation and ubiquitous cultural flourishing. Both insights reside upon concrete and persuasive arguments.

At least to some degree, the shift from an IP-centric approach to alternate methodologies that go beyond IP was stimulated by the emergence of digitization and networked communications platforms. New methods and reduced costs of producing, storing and distributing content/information provide fertile grounds and constant demonstration that there are enhanced schemes, beyond IP, for cultural and knowledge sustainability.

“Beyond IP” is not just a frame for mobilization but also a descriptive term that captures and summarizes contemporary information, creative and cultural activities, which rest upon concepts of free content, free access and openness as their building blocks.

Yet, it is at this juncture that another, less noticed, aspect of “Beyond IP” is being revealed: the political economy of certain “Beyond IP” realms, and particularly market-oriented realms, may be counterintuitive to the above-mentioned premises.

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Labels: Beyond IP

Posted 9:00 AM by Guest Blogger [link]

The Political Safeguards of Horizontal Federalism (continued)

Heather K. Gerken

Yesterday I noted that Ari Holtzblatt and I have recently put forward the first account of the political safegaurds of horizontal federalism. While the literature on horizontal federalism is growing quickly, no one has proposed a safeguards account to match the account routinely lauded in the context of vertical federalism.

The reason for this striking disconnect underlines the differences between these two fields of inquiry. Conflict, after all, is a recurring feature of both vertical and horizontal federalism. What divides the two fields is how we should respond to the ineluctable fact of friction. State-federal friction has long been understood to be both a problem and a valuable part of a well-functioning democracy. Moreover, most vertical federalism scholars think that the political arena, not the judiciary, is the right forum for these fights. Political institutions, not the courts, represent the true “safeguards” of federalism.

Scholars of horizontal federalism are much less sanguine about interstate conflict – lawyers, after all, hate spillovers -- and most of them look to the judiciary to referee state-to-state conflict. Congress, administrative agencies, political parties, networked interest groups – all are thought to safeguard vertical federalism. But even though those same institutions are available to mediate conflict among the states, there is no safeguards account to be found in horizontal federalism.

 The current state of the law and literature makes clear why no one has thought to develop a safeguards account to match the one that dominates debates over vertical federalism. Why bother with the political safeguards if politics are the problem and the judiciary is the solution? Because we lack a descriptive and normative argument that interstate conflict serves productive ends, there is no reason to think that spillovers can or should be left to the free play of politics.

Our paper begins to build the descriptive and normative arguments necessary for a safeguards account. First, we debunk that me arguments routinely invoked for cabining spillovers and the interstate conflict they generate, including principles of territoriality, equality among the states, and democratic self-rule (all of which are typically grouped under the larger rubric of “sovereignty”). Second, we build the affirmative case for valuing the role that spillovers play in a well-functioning democracy, many of which have to do with the values associated with “living under someone else’s law.” Finally, we spend some time identifying the political institutions and can and do safeguard horizontal federalism.
Posted 12:48 PM by Heather K. Gerken [link]

Intellectual Property as Global Public Finance

Guest Blogger

Lisa Larrimore Ouellette

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

The conventional justification for IP is that information is a public good (i.e., it is non-rival and non-excludable), and making information excludable through IP allows it to be efficiently supplied by private markets. Both sides of this account have been questioned: not all information has the characteristics of a public good or can be made excludable through IP, and propertization is not the only way the state compensates public-goods providers. As Daniel Hemel and I analyzed in Beyond the Patents–Prizes Debate, the state also encourages information production through mechanisms such as tax incentives and direct spending. One challenge for domestic innovation policy is recognizing that, like conventional public finance mechanisms, IP facilitates a transfer from consumers to innovators, and that the off-budget nature of this IP “shadow” tax should not affect the innovation policy choice.

In our paper "Intellectual Property as Global Public Finance," Daniel and I examine information production at the global level, where conventional public finance mechanisms are lacking. Many information goods are global public (or quasi-public) goods, so under the conventional account, global coordination is needed to prevent countries from free-riding on each others' information production. Global IP treaties such as the TRIPS Agreement help solve this global coordination problem by requiring countries to contribute to the extent that they use the information produced under IP laws, with defection punished by trade sanctions. In the global context, the off-budget nature of IP laws may be an asset, as it facilitates creation of this stable Nash equilibrium in a way that maps onto very different national public finance regimes.

If this were the full story, one would expect to find little state investment in non-IP innovation mechanisms for which free-riding cannot be prevented. And yet governments at all levels do invest significant resources beyond IP in producing information goods. Daniel and I offer a number of hypotheses to explain these investments. For example, producing information goods has local production externalities, so nation-states may compete to attract innovative individuals and firms. Relatedly, rent-seeking may cause countries to use information subsidies to circumvent free-trade limits on industrial subsidies, and may cause industry interest groups to lobby for grants and tax credits to extract subsidies from the state. Non-pecuniary motivations such as altruism and the pursuit of prestige may supplement these incentives for high-profile goods.

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Labels: Beyond IP

Posted 8:00 AM by Guest Blogger [link]

The Political Safeguards of Horizontal Federalism

Heather K. Gerken

Yesterday and the day before, I blogged about the unexpected benefits associated with spillovers – when one state’s policy affects citizens in another state -- and the friction they generate. Today, I want to connect those observations to a larger set of questions about federalism. 

What’s so striking about the near-universal hostility to interstate spillovers is that it stands in stark contrast to one of vertical federalism’s central tenets. While we mourn friction between the states, friction between the states and the federal government has been a celebrated feature of American democracy for centuries. When federal policy spills over into a traditional state domain or state policy spills over into the federal realm, it causes the same kind of friction that arises from interstate spillovers. This friction has led to all sorts of problems, including inefficiency, conflict, and division. Federalism scholars don’t deny these harms. They simply insist that we also pay attention to the productive possibilities associated with state-federal friction. 

In a recent article entitled “The Political Safeguards of Horizontal Federalism,” Ari Holtzblatt and I argue that it’s time to apply this lesson to the horizontal realm. Like friction between the states and federal government, friction among the states comes with both costs and benefits, and it’s here to stay. Our goal, then, shouldn’t be to eliminate interstate friction, but to harness it—taking advantage of its many democratic benefits while avoiding its more serious costs. In the spirit of this observation, my co-author and I build a case for the political safeguards of horizontal federalism. 

For decades we’ve debated whether “political safeguards” preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state-federal tussles. But no one has made such an argument about relations among the states, and the few scholars to have considered the question insist that such safeguards don’t exist. Our Article takes the opposite view. 

Although the literature on horizontal federalism has been burgeoning, it’s not surprising that the literature is missing an account of the political safeguards of horizontal federalism given the field’s core commitments, all of which push against a safeguards account. Developing a political safeguards account for horizontal federalism, then, involves both excavation and construction. First, we must dig into the doctrine and scholarship in order to account for the puzzling differences between the fields. Second, once we’ve examined (and debunked) the arguments that have prevented scholars from even thinking to develop a safeguards account, we must build it. I’ll talk about both projects tomorrow.
Posted 11:10 AM by Heather K. Gerken [link]