Well, this is a very nice surprise. It looks like my current research project, “Who Should Pay for Progress?”, has been selected as the first presentation of the opening plenary session of the 14th Annual Intellectual Property Scholars Conference at UC Berkeley in two weeks. IPSC is the largest annual gathering of the intellectual property law academy, with over 150 scholars from all over the world presenting this year. As in past years, the organizers seem to have reserved the six plenary spots for relatively junior scholars–one of the more generous practices of an unusually generous scholarly community. Obviously I’m extremely grateful to the conference organizers for selecting my project; I’ll do my best not to disappoint.
[…] But if you are one of the faithful, I probably haven’t persuaded you. The psychology literature suggests that while people are willing to be corrected about factual inaccuracies—things they think are true but are not—they are essentially impervious to correction once the thing that turns out to be untrue crosses the line into a belief. And that leads me to the last—and, to me, most worrisome—problem with faith-based IP. If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong. The inevitable result of a move toward faith-based IP is that we will make policy based on our instincts without being able to engage in a meaningful conversation about the wisdom of that policy. The accusation Mark is making here is of epistemic closure: that his antagonists are unwilling to entertain the possibility that they are mistaken, or to candidly weigh evidence that would tend to prove such a mistake. For an academic, them’s fightin’ words. And I think they’re unfortunate. I think the problem here is neither epistemic nor methodological; it’s political (in a non-pejorative sense). I suspect we are dealing with two academic camps that simply value different things in different measure, as humans are wont to do. This disagreement might lead to the conclusion that the two sides “have nothing to say to each other.” But we might also conclude that the apparent absence of a shared language between moral theorists and consequentialists is precisely the type of problem academics in an applied discipline like law are particularly well-suited to solve, by looking beneath the language each camp uses to identify the ideas and disagreements underneath, and frame the issues in a language that both sides can engage on the merits. Indeed, that’s precisely what I’ve been working on lately. […]
[…] normative commitments regarding distribution and the choice of a knowledge-governance regime as the opening plenary presentation at IPSC in Berkeley–these musings will now be more fully developed in Chapter 4 of the book: […]