jsheff

For example: Mark takes a very strong position in his essay against “rights-talk” in IP: the idea that the market interventions IP law makes in favor of authors and inventors (and those in privity with them) are “some kind of prepolitical right to which inventors and creators are entitled” “regardless of the social cost that granting that right imposes” (pp. 10, 15). But I think very few if any IP scholars–even Rob–are willing to take such an extreme theoretical position in favor of strong IP rights. Rob’s foray into rights-based justification for IP rights is hardly the stuff of doctrinaire deontological theory; it is suffused with concerns over consequences that a strict Kantian might shrug off as either the rational implication of self-consistent moral duties or the sphere of practical reason rather than moral theory (take Rob’s entire chapter on what he calls “The Proportionality Principle,” for example).

I think it is clear that Rob thinks very highly of authors and inventors, and is willing to privilege them over users and consumers in many contexts where Mark would prefer to allow competition to do its consumer-friendly work at the expense of the professional creative class. But it isn’t clear that in choosing the language of Kant and Rawls to justify his preference, Rob is shutting himself off to evidence that would persuade him that any of Mark’s particular policy preferences are well-founded, any more than I think Mark would dismiss out of hand the idea that some of the benefits of creative activity might be overlooked in particular forms of cost-benefit analysis. Instead, I think these two scholars are simply disagreeing over the appropriate domain of empirical inquiry–chiefly with respect to the measurement of value.

The line between the empirical and the normative is not so clear here. Take a seemingly simple example: How much is fan fiction worth to society? How should we even go about trying to answer this question? Is revealed preference through market transactions a reliable empirical measure in this context? Is there some way to measure imputed foregone income of fanfic authors, and if so would that be a good measure? Might there be some legitimate value in the freedom of fans to express themselves through transformative works that can’t be measured economically or even empirically?  And on the other side of the ledger, how much value is generated by giving the commercial author the right to control the production of such works? Again, are the commercial author’s own preferences revealed through market transactions a useful measure? Is the psychological reward authors feel when exercising control over their own creations something that we can empirically measure? If so, should we count it? And If so, how do we weigh that psychological reward against the psychological reward experienced by fanfic authors? And finally, what value do those of us who neither create commercial works nor use them as a basis for our own expression derive from a world in which fanfiction is liberally allowed? Or strictly controlled? Again, how would we measure that value? How would we compare it to the other forms of value already discussed?

We can ask similar questions about most areas of innovation and creativity–from pharmaceutical patents to federal research grants to streaming audio royalties. Mark would have us obtain the relevant data and follow where it leads, which sounds good in the abstract. But the first step in answering any question in these areas of policy empirically is figuring out whether there is even anything useful to measure, or whether the relevant questions are too deeply enmeshed in questions of subjective value that empirical measurement cannot meaningfully capture. These are, in the language of moral philosophy, the problems of interpersonal comparison and aggregation. And the debate over them is an old one, in law, in philosophy, and even in literature; it goes back at least to Dworkin and Posner; to Parfit and Scanlon (and, yes, Rawls); to Dostoyevsky and to Captain Spock. And ultimately, as I noted above and will be arguing in a book I’m currently working on, these problems are not theoretical or empirical; they are political (in the non-pejorative sense). That is, when two parties fundamentally disagree over questions of value that cannot be resolved empirically, the only tools we can feasibly use to resolve the disagreement are political ones. (Of course, this observation thrusts us into the knot of dilemmas handed down to us from Arrow, Sen, and the rest of the social choice theorists, but that is a separate issue for another day.)

There are good reasons why a thinker in the area of IP might dispute the relevance of empirical evidence on many of the questions we deal with–though it would be the poor scholar indeed who shuts out relevant empirical data entirely on those issues to which it is relevant. I don’t think Rob has done that; I think he and Mark simply disagree as to which of the questions that we must confront in setting innovation policy can be helpfully answered by reference to empirical evidence. We may not ultimately agree on that particular problem–on whether a particular predicate for a policy decision is properly considered empirical or normative. Indeed, I don’t agree entirely with Rob or with Mark on that problem, let alone on the policy positions that they might derive from their particular approaches to the task.  But I am quite certain that this is something we can indeed talk about in a common language if we turn the temperature down a bit.