Jefferson’s Taper at IPSC 2018 (Berkeley)

In researching my in-progress monograph on value pluralism in knowledge governance, I made a fascinating discovery about the history of ideas of American intellectual property law. That discovery is now the basis of an article-length project, which I am presenting today at the annual Intellectual Property Scholars Conference, hosted this year at UC Berkeley. The long title is “Jefferson’s Taper and Cicero’s Lumen: A Genealogy of Intellectual Property’s Distributive Ethos,” but I’ve taken to referring to it by the shorthand “Jefferson’s Taper.” Here’s the abstract:

This Article reports a new discovery concerning the intellectual genealogy of one of American intellectual property law’s most important texts. The text is Thomas Jefferson’s 1813 letter to Isaac McPherson regarding the absence of a natural right to property in inventions, metaphorically illustrated by a “taper” that spreads light from one person to another without diminishing the light at its source. I demonstrate that Thomas Jefferson directly copied this Parable of the Taper from a nearly identical parable in Cicero’s De Officiis, and I show how this borrowing situates Jefferson’s thoughts on intellectual property firmly within a natural law tradition that others have cited as inconsistent with Jefferson’s views. I further demonstrate how that natural law tradition rests on a classical, pre-Enlightenment notion of distributive justice in which distribution of resources is a matter of private beneficence guided by a principle of proportionality to the merit of the recipient. I then review the ways that notion differs from the modern, post-Enlightenment notion of distributive justice as a collective social obligation that proceeds from an initial assumption of human equality. Jefferson’s lifetime correlates with a historical pivot in the intellectual history of the West from the classical notion to the modern notion, and I argue that his invocation and interpretation of the Parable of the Taper reflect this mixing of traditions. Finally, I discuss the implications of both theories of distributive justice for the law and policy of knowledge governance—including but not limited to intellectual property law—and propose that the debate between classical and modern distributivists is more central to policy design than the familiar debate between utilitarians and Lockeans.

Slides for the presentation are available here.

Progress for Future Persons: WIPIP Slide Deck and Discussion Points

Following up on yesterday’s post, here are the slides from my WIPIP talk on Progress for Future Persons. Another take on the talk is available in Rebecca Tushnet’s summary of my panel’s presentations.

A couple of interesting points emerged from the Q&A:

  • One of the reasons why rights-talk may be more helpful in the environmental context than in the knowledge-creation context is that rights are often framed in terms of setting a floor: whatever people may come into existence in the future, we want to ensure that they enjoy certain minimum standards of human dignity and opportunity. This makes sense where the legal regime in question is trying to guard against depletion of resources, as in environmental law. It’s less obviously relevant in the knowledge-creation context, where our choices are largely about increasing (and then distributing) available resources–including cultural resources and the resources and capacities made possible by innovation.
  • One of the problems with valuing future states of the world is uncertainty: we aren’t sure what consequences will flow from our current choices. This is true, but it’s not the theoretical issue I’m concerned with in this chapter. In fact, if we were certain what consequences would flow from our current choices, that would in a sense make the problem of future persons worse, if only by presenting it more squarely. That is, under certainty, the only question to deal with in normatively evaluating future states of the world would be choosing among the identities of future persons and of the resources they will enjoy.

Slides: Progress for Future Persons WIPIP 2016

Zika, the Pope, and the Non-Identity Problem

I’m in Seattle for the Works-In-Progress in Intellectual Property Conference (WIPIP […WIPIP good!]), where I’ll be presenting a new piece of my long-running book project, Valuing Progress. This presentation deals with issues I take up in a chapter on “Progress for Future Persons.” And almost on cue, we have international news that highlights exactly the same issues.

In light of the potential risk of serious birth defects associated with the current outbreak of the Zika virus in Latin America, Pope Francis has suggested in informal comments that Catholics might be justified in avoiding pregnancy until the danger passes–a position that some are interpreting to be in tension with Church teachings on contraception. The moral issue the Pope is responding to here is actually central to an important debate in moral philosophy over the moral status of future persons, and it is this debate that I’m leveraging in my own work to discuss whether and how we ought to take account of future persons in designing our policies regarding knowledge creation. This debate centers on a puzzle known as the Non-Identity Problem.

First: the problem in a nutshell. Famously formulated by Derek Parfit in his 1984 opus Reasons and Persons, the Non-Identity Problem presents a contradiction in three moral intuitions many of us share: (1) that an act is only wrong if it wrongs (or perhaps harms) some person; (2) that it is not wrong to bring someone into existence so long as their life remains worth living; and (3) a choice which has the effect of foregoing the creation of one life and inducing the creation of a different, happier life is morally correct. The problem Parfit pointed out is that many real-world cases require us to reject one of these three propositions. The Pope’s comments on Zika present exactly this kind of case.

The choice facing potential mothers in Zika-affected regions today is essentially choice 3. They could delay their pregnancies until after the epidemic passes in the hopes of avoiding the birth defects potentially associated with Zika. Or they could become pregnant and potentially give birth to a child who will suffer from some serious life-long health problems, but still (we might posit) have a life worth living. And if we think–as the reporter who elicited Pope Francis’s news-making comments seemed to think–that delaying pregnancy in this circumstance is “the lesser of two evils,” we must reject either Proposition 1 or Proposition 2. That is, a mother’s choice to give birth to a child who suffers from some birth defect that nevertheless leaves that child’s life worth living cannot be wrong on grounds that it wrongs that child, because the alternative is for that child not to exist at all. And it is a mistake to equate that child with the different child who might be born later–and healthier–if the mother waits to conceive until after the risk posed by Zika has passed. They are, after all, different (potential future) people.

So what does this have to do with Intellectual Property? Well, quite a bit–or so I will argue. Parfit’s point about future people can be generalized to future states of the world, in at least two ways.

One way has resonances with the incommensurability critique of welfarist approaches to normative evaluation: if our policies lead to creation of certain innovations, and certain creative or cultural works, and the non-creation of others, we can certainly say that the future state of the world will be different as a result of our policies than it would have been under alternative policies. But it is hard for us to say in the abstract that this difference has a normative valence: that the world will be better or worse for the creation of one quantum of knowledge rather than another. This is particularly true for cultural works.

The second and more troubling way of generalizing the Non-Identity Problem was in fact taken up by Parfit himself (Reasons and Persons at 361):

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What happens if we try to compare these two states of the world–and future populations–created by our present policies? Assuming that we do not reject Proposition 3–that we think the difference in identity between future persons determined by our present choices does not prevent us from imbuing that choice with moral content–we ought to be able to do the same to future populations. All we need is some metric for what makes life worth living, and some way of aggregating that metric across populations. Parfit called this approach to normative evaluation of states of the world the “Impersonal Total Principle,” and he built out of it  a deep challenge to consequentialist moral theory at the level of populations, encapsulated in what he called the Repugnant Conclusion (Reasons and Persons, at 388):

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If, like Parfit, we find this conclusion repugnant, it may be that we must reject Proposition 2–the reporter’s embedded assumption about the Pope’s views on contraception in the age of Zika. This, in turn, requires us to take Propositions 1 and 3–and the Non-Identity Problem in general–more seriously. It may, in fact, require us to find some basis other than aggregate welfare (or some hypothesized “Impersonal Total”) to normatively evaluate future states of the world, and determine moral obligations in choosing among those future states.

The Repugnant Conclusion is especially relevant to policy choices we make around medical innovations. Many of the choices we make when setting policies in this area have determinative effects on what people may come into existence in the future, and what the quality of their lives will be. But we lack any coherent account of how we ought to weigh the interests of these future people, and as Parfit’s work suggests, such a coherent account may not in fact be available. For example, if we have to choose between directing resources toward curing one of two life-threatening diseases, the compounding effects of such a cure over the course of future generations will result in the non-existence of many people who could have been brought into being had we chosen differently (and conversely, the existence of many people who would not have existed but for our policy choice). If we take the non-identity problem seriously, and fear the repugnant conclusion, identifying plausible normative criteria for guiding such a policy choice is a pressing concern.

I don’t think the extant alternatives are especially promising. The typical welfarist approach to the problem avoids the repugnant conclusion by essentially assuming that future persons don’t matter relative to present persons. The mechanism for this assumption is the discount rate incorporated into most social welfare functions, according to which the well-being of future people quickly and asymptotically approaches zero in our calculation of aggregate welfare. Parfit himself noted that such discounting leads to morally implausible results–for example, it would lead us to conclude we should generate a small amount of energy today through a cheap process that generates toxic waste that will kill billions of people hundreds of years from now. (Reasons and Persons, appx. F)

Another alternative, adopted by many in the environmental policy community (which has been far better at incorporating the insights of the philosophical literature on future persons than the intellectual property community, even though we both deal with social phenomena that are inherently oriented toward the relatively remote future), is that we ought to adopt an independent norm of conservation.  This approach is sometimes justified with rights-talk: it posits that whatever future persons come into being, they have a right to a certain basic level of resources, health, or opportunity. When dealing with a policy area that deals with potential depletion of resources to the point where human life becomes literally impossible, such rights-talk may indeed be helpful. But when weighing trade-offs with less-than-apocalyptic effects on future states of the world, such as most of the trade-offs we face in knowledge-creation policy, rights-talk does a lot less work.

The main approach adopted by those who consider medical research policy–quantification of welfare effects according to Quality-Adjusted-Life-Years (QALYs)–attempts to soften the sharp edge of the repugnant conclusion by considering not only the marginal quantity of life that results from a particular policy intervention (as compared with available alternatives), but also the quality of that added life. This is, for example, the approach of Terry Fisher and Talha Syed in their forthcoming work  on medical funding for populations in developing countries. But there is reason to believe that such quality-adjustment, while practically necessary, is theoretically suspect. In particular, Parfit’s student Larry Temkin has made powerful arguments that we lack a coherent basis to compare the relative effects on welfare of a mosquito bite and a course of violent torture, to say nothing of the relative effects of two serious medical conditions. If Temkin is right, then what is intended as an effort to account for quality of future lives in policymaking begins to look more like an exercise in imposing the normative commitments of policymakers on the future state of the world.

I actually embrace this conclusion. My own developing view is that theory runs out very quickly when evaluating present policies based on their effect on future states of the world. If this is right–that a coherent theoretical account of our responsibility to future generations is simply not possible–then whatever normative content informs our consideration of policies with respect to their effects on future states of the world is probably going to be exogenous to normative or moral theory–that is, it will be based on normative or moral preferences (or, to be more charitable, commitments or axioms). This does not strike me as necessarily a bad thing, but it does require us to be particularly attentive to how we resolve disputes among holders of inconsistent preferences. This is especially true because the future has no way to communicate its preferences to us: as I argued in an earlier post, there is no market for human flourishing. It may be that we have to choose among future states of the world according to idiosyncratic and contestable normative commitments; if that’s true then it is especially important that the social choice institutions to which we entrust such choices reflect appropriate allocations of authority. Representing the interests of future persons in those institutions is a particularly difficult problem: it demands that we in the present undertake difficult other-regarding deliberation in formulating and expressing our own normative commitments, and that the institutions themselves facilitate and respond to the results of that deliberation. Suffice it to say, I have serious doubts that intellectual property regimes–which at their best incentivize knowledge-creation in response to the predictable demands of relatively better-resourced members of society over a relatively short time horizon–satisfy these conditions.

Don’t Hate the Player, Hate the Game

Via engadget, here’s an IP-related story that brings me back to middle school. A redditor who (currently) goes under the handle XsimonbelmontX has clearly spent a lot of time building and testing a board game based on one of my favorite 8-bit side-scrolling platformers from the 1980s, Castlevania:

It’s an impressive bit of work. The game involves co-operative play, and in addition to the progressive board game format it seems to incorporate elements of card-based role playing games like Magic: The Gathering in addition to die-based roleplaying elements reminiscent of Dungeons & Dragons. Responses on Reddit are quite positive; the general tenor is captured by the current leading comment, from redditor “Canadianized” which reads: “I would buy the fuck out of this.”

But of course, Canadianized can’t buy XsimonbelmontX’s game, because it’s not available for sale–there’s just the one prototype.  And some redditors, predictably, blame IP (see here, and here). But the IP story appears to be somewhat complicated.

Continue reading…

A Personal Take on Aereo

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Until yesterday, I was an Aereo subscriber. My family lives in a fairly large co-op apartment complex in Upper Manhattan. Our building’s residents have collectively contracted for our own broadband internet service, so we get a cheap, reliable high-speed connection without having to deal directly with a cable company or purchase all their bundled services at retail. For entertainment, we pay for subscription streaming services like Netflix, Amazon, Hulu, and Spotify, supplemented with occasional purchases of content not available to stream. Collectively these subscriptions actually cost us quite a bit less than the basic cable TV package offered by our local monopolist, TimeWarner Cable (soon to be Comcast), and offer more variety, convenience, and reliability.

One thing we don’t get from this array of IP-based streaming services is live broadcast television. So a few months ago I purchased a digital TV antenna to catch the occasional live sporting event, pbs kids show, or network drama. But our apartment is on a low floor, in a hilly area of the city, surrounded by other late Art Deco-era buildings all built of steel and thick poured concrete sheathed in brick and stone. No matter where in our apartment I put the antenna, I couldn’t pick up the over-the-air broadcast TV signals being transmitted from just a few miles away in midtown Manhattan–signals that are reliably received in homes across the street, or a few stories above mine, or in less-densely built areas as much as eighty miles away.

If I were able to pick up such transmissions using the antenna I bought, copyright law would afford me the right to view the broadcasted programs in my home with “a normal circle of a family and … social acquaintances“, and even “time-shift” by recording them for viewing later. But my television set is in a physical space that happens, due to particularities of the physics of the propagation of electromagnetic waves, to differ from the physical spaces all around it in that broadcast TV signals have particular trouble reaching it.

What I needed was to put my antenna slightly outside my apartment and send the received signal inside to my television set. Enter Aereo. As described by the Supreme Court in its opinion (with some simplification on my part):

Aereo’s system is made up of servers, transcoders, and thousands of dime-sized antennas housed in a central warehouse…. [O]ne of Aereo’s servers selects an antenna, which it dedicates to the use of [a] subscriber (and that subscriber alone) for the duration of the [subscriber’s] selected show. A server then tunes the antenna to the over-the-air broadcast carrying the show. The antenna begins to receive the broadcast, and … Aereo’s server begins to stream the … show to the subscriber over the Internet.

Two commentators I admire and respect have written (here and here) that this system can be seen as analogous to a homeowner putting their TV antenna on the roof of their house to get better reception.  There’s a bit more to Aereo than that, but truly, that’s all my family wanted: an antenna in a more suitable location than our living room, with a wire connecting it to our TV.  We signed up.

Yesterday the Supreme Court decided that city-dwellers like me who use Aereo’s remote antennae are more like cable customers subscribing to a common antenna than like suburban homeowners who put antennae on their roofs, and that Aereo is more like a cable company than a property owner renting us some useful space and equipment. Justice Breyer’s decision for the majority was deeply purposivist, relying on an interpretation that the community-antenna (CATV) provisions of the Copyright Act of 1976 reflected a broad-brush Congressional policy about what types of uses of broadcasted content require a license. Those policies appear to depend less on “technological difference[s]” than on social ones–the different permutations of arrangements between content owners, users, intermediaries, and the physical resources under their control.

The key phrase in the opinion, to my mind, is the one that implies that families like mine “lack any prior relationship to the [copyrighted] works” transmitted over the air by their broadcasters.  To be clear, my relationship to the works is based on real estate: I own a home situated a few yards away from where television broadcasts can be pulled from the air, for free, by means of a consumer-grade antenna.  This appears not to be the type of relationship that the Supreme Court thinks entitles me to contract with a third party for the use of nearby real estate and equipment to pull those same broadcasts from the air.  As a consumer of entertainment content, this conclusion strikes me as a minor inconvenience–the content is not worth that much to me, and I suppose I will simply go without it now.  As a law professor though, the conclusion strikes me as…curious.

Most commentators are focused on the implications of the Court’s ruling for cloud-based services, and that is an interesting question.  But for me the more interesting question is what Aereo says about the framework of laws and practices by which we allocate responsibility for the creation of new knowledge.  In the classic telling, copyright is a tool by which we purport to satisfy a social obligation to creators of new works of authorship.  Depending on whom you ask, this obligation is either a collective obligation to establish appropriate incentives for authors, or a moral one in recognition of the authors’ desert or dignity. Aereo certainly didn’t call into question whether such an obligation exists, and I don’t either.  My question is how a society allocates among its members the burdens of satisfying that obligation.  This is a question that, as it turns out, is occupying a lot of my research and thinking lately.

Through a combination of the principles of electromagnetism played out across the natural and built environment and the historical accidents of technological progress and time-worn statutes, we seem to be in the position of allocating the burdens of supporting authorship at least in part via the real estate market.  That seems to me an arbitrary basis by which to allocate these burdens. Indeed, it seems so arbitrary that there must be some quite important reason why the Aereo majority–which took a rather free-wheeling approach to determining statutory purpose–would feel the need to preserve it.

Understanding what those reasons might be is a bigger project than a blog post can contain.  I will continue to work on the problem. For now though, I think I’ll watch some TV.