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I am a Professor of Law and the Director of the Program on Information Justice and Intellectual Property at the American University, Washington College of Law and am a founding member of the Creative Commons board.

Tuesday, January 06, 2009

A Thought on the Theory of the Firm

While participating in a conference at Vanderbilt Law School on "user generated content," the following thought occurred in the context of discussions how platform providers such as YouTube, Wikipedia, Facebook, derive value from user contributions.

Here's what's familiar to some. In a famous article, Ronald Coase suggested that in a capitalist economy, productive activities are organized either by a hierarchically-managed firm or through market exchange. The firm manager has to decide whether to "make or buy" a resource, and that choice will be guided or governed by the relative transaction costs associated with each option. See

Recently, Yochai Benkler, generalizing from the experience with Linux and other large-scale free or open source software projects, argues that a third mode of production - "commons based peer production" - has been made feasible by the Internet and is superior to the firm or market exchange for the production of information and cultural goods.

Benkler acknowledges that projects such as Linux and Wikipedia have hierarchical structures, but these are more flexible and are designed to manage contributions from a large set of producers who need not have a relation to the project that is governed either by an employment or purchase contract.

I see a hybrid development in which the boundaries of the traditional, hierarchically managed firm are becoming more porous. While there is nothing new in firms' soliciting suggestions from consumers or responding to unsolicited suggestions, the scale of this activity has increased noticeably and the economic theory of these kinds of transactions has become more sophisticated.

On the economics, Eric von Hippel's book Democratizing Innovation moves us in the right direction. He points out that users face an innovate-or-buy decision when they need/want customized products. In his concluding chapter, he remarks about the failure of managers who rely on user innovation to acknowledge these inputs and a corresponding failure in management training to formalize processes for soliciting and managing user contributions to product development. Kathy Strandburg is doing interesting work on how patent law should respond to these insights.

I think we need to generalize von Hippel's insight further. User generated inputs extend beyond product development. How about marketing? Should the brand manager hire an advertising firm to develop a campaign, to manage a user-generated campaign, or should the campaign be fully outsourced to consumers? Are "consumers" inside or outside the boundary of the firm in options 2 and 3?

It seems to me that forward-looking firms are co-opting Benkler's and von Hippel's insights, and I suspect the future of management training will not limit the manager's choice to make or buy, but instead to extend the choices to make, buy, receive (user contributions) or collaborate (with user innovators). The last two options come with their own transaction cost structures, and so the initial Coasean insight remains valuable. Since many of these user contributions are likely governed by copyright, and reliance on user contributions may be incompatible with some firms' trade secret or patenting strategies, there is plenty of room for those concerned about the role that intellectual property law plays in managing these transaction costs to take these into account more explicitly in discussions about how to adapt/tailor IP law in these settings. (Paul Heald and Dan Burk also have done good work on the transaction cost perspective on IP).


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