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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.

Friday, September 21, 2012

On Information Justice (Book Review)

This is a cross-post of my response to Madhavi Sunder's book From Goods to a Good Life in a blogging symposium over at Concurring Opinions.

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.

Plaudits.  In the spirit of showing-not-telling, Professor Sunder's concrete examples of borrowing practices across the world and in different creative and innovative sectors give force to the argument that all culture is participatory and that the real question is who is allowed to participate and under what terms. I particularly enjoyed the fan fiction chapter (and the article upon which it is based), the Hollywood/Bollywood chapter, and the engagement with the thorny topic of "traditional knowledge".  On this last, like others, I'm less sanguine about the prospects for greater propertization than is Professor Sunder, but certainly there are ways in which the poor might more effectively use the existing legal structure to exercise greater control.

I also think that building out the case for cultural participation as self-actualization (at both the individual and community levels) is nicely done.  To the extent that this book is a response to selected scholarship and the work of certain public intellectuals, Professor Sunder rightly critiques unstated assumptions upon which traditional law-and-economics work is built, while also critiquing the romance of the public domain.

I did not read Professor Sunder to be making an argument for specific law reform - although some options are mentioned - rather than to advocate for a vision of the good.  I took this to be a political argument about why and how the cultures, contributions, and productive capacity of marginalized populations deserve greater recognition in society, first, and in law to the extent that this is not already done.

Challenges. On this last point, I would like to understand better the relation between Professor Sunder's cultural critique and her legal critique. Somewhat like a cultural fitness instructor, Professor Sunder urges us to get off the couch, flex our creative muscles and ensure that everyone in society is equipped with a cultural gym pass and the time and support to put it to use.  But, time and attention are limited resources.  When living the good life, what is the right mix of "writing" and "reading" culture?  Can we have both a participatory and a popular culture?  Writing in a moment when so much time and attention around the world is devoted to corporate-produced mass culture, I understand why Professor Sunder focuses her energy on the case for participation. "[T]he end is participation in meaning-making and in having the capacity to earn a livelihood to achieve the life one scripts for herself." [100] But, there are trade-offs.  A shared experience as audience plays an important role in promoting cultural cohesion.  I would like to know whether there could be a point of too much participation within Professor Sunder's conception of the good life.

This book is directed at the law-in-selected-scholarship, and, very generally, at the law on the books, rather than at the law in action.  Fair enough.  But, the version of efficiency from the scholarship that Professor Sunder targets is assuredly an artificial one that emerged when Professor Landes and Judge Posner made their move from welfare to wealth as the unit of measure.  They, and their followers, made this move without taking any meaningful account of the gap between the willingness-to-pay and ability-to-pay, the distortions caused by money's declining marginal value, the incommensurability problem, and the gap between partial and general equilibria, among other shortcomings.

Moreover, as I and others have written at greater length elsewhere, even when one accepts this version of efficiency, its internal logic, if fully explicated, would likely lead the law on the books to align more closely with that suggested by Professor Sunder's approach than is readily appreciated.  The first order question is why promote progress, and how does one define it?  Second is whether intellectual property law or a direct investment policy would better achieve efficiency, however measured. The law and economics literature lacks a general framework for arriving at the most efficient choices among these approaches.  This point gets a brief mention in the discussion of prizes in the last chapter, but I would have thought it to be more central to Professor Sunder's thesis. Third, even to the extent that creating and enforcing intellectual property rights is justified on efficiency grounds, the subject matter, scope, and duration of these should vary sufficiently to leave more room than existing law does for participatory culture.

Finally, I was expecting a more explicit human rights turn or at least more thoroughgoing engagement with the body of international human rights law in which Professor Sunder's thesis sounds.  She does acknowledge the link at pp. 90, 92-93, and 101, but I would have been particularly interested to understand how Professor Sunder would resolve the conflict between the moral rights justification for authors' rights and her argument for a fair and participatory culture.  Human flourishing cuts both ways.  Your right to preserve the integrity of your work on personhood grounds limits my ability to participate in culture by mashing it up.

Future Directions. My sense is that those interested in efficiency as measured by welfare and those approaching intellectual property from Professor Sunder's approach might well come to incompletely theorized agreement about the proper delineation of most rights.  The values conversation may provoke greater disagreement about what other policies might be desirable to support broader cultural participation.  Moreover, the values conversation is directly relevant to how one conceives of, and chooses to pursue, the good life within the legal framework.  I would submit that this conversation should lead toward a working theory of information justice, which would certainly draw from more general theories of justice, including those upon which Professor Sunder relies.  On this point, I would put in a plug for Peter Drahos' elegant and, at the moment, ridiculously scarce A Philosophy of Intellectual Property, which lays a rich intellectual foundation upon which this conversation could fruitfully build.  That said, thank you, Professor Sunder, for a good read and much food for thought.

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