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.
