Earlier this month at the annual Intellectual Property Scholars Conference, I presented a piece of my long-running book project, Valuing Progress. This piece deals with what I call Reciprocity Failures. Slides can be found here.
This part of the project is a window into its theoretical heart: the basic idea that when designing a legal or policy regime to govern the production and dissemination of new knowledge, we cannot have all the things we want. We have to choose, and accept that the choice will inevitably leave us disappointed in some ways. In the past, IP scholars have identified one such choice as a tradeoff between efficiency and fairness, or perhaps between incentives and access. But the challenges of value pluralism–the idea that values are plural and incommensurate–run deeper, to the very concept of fairness (or justice) itself. We may want to make sure that knowledge creators enjoy adequate material support in exchange for the knowledge they provide, and we may want to make sure that those who benefit from new knowledge contribute adequate resources to support its production, and we may want to make sure that those who contribute resources to the cause of knowledge production derive an adequate benefit therefrom. We may want to ensure that material support for knowledge creators is allocated based on desert rather than luck, and that access to new knowledge is not denied for arbitrary reasons. But even though all these goals may be implicated in our notions of fairness, we cannot serve them all at once. In pursuing any one of these diverse fairness-based values, we inevitably discard one or more others. This is a particular problem for knowledge governance regimes, because knowledge is both durable and cumulative–those who contribute to its production and those who enjoy its benefits may be separated by borders, or by culture, or even by lifetimes.
Valuing Progress got its start at IPSC several years ago when I thought it was just going to be an article. It has grown quite a bit since then, and parenting during the pandemic kept me from working on it much over the past few years. It feels really good to be flexing these muscles again after so long.
I’m happy to announce the publication (on open-access terms) of a new dataset I’ve been constructing over the past few months. The Canada Trademarks Dataset is now available for download on Zenodo, and a pre-publication draft of the paper describing it (forthcoming in the Journal of Empirical Legal Studies) is available on SSRN.
As I’m not the first to point out, doing any productive scholarly work during the pandemic has been hard, especially while caring for two young kids and teaching a combination of hastily-designed remote classes and in-person classes under disruptive public health restrictions. I have neglected other, more theoretical projects during the past year and a half because I simply could not find the sustained time for contemplation and working out of big, complex problems that such projects require. But building a dataset like this one is not a big complex problem so much as a thousand tiny puzzles, each of which can be worked out in a relatively short burst of effort. In other words, it was exactly the kind of project to take on when you could never be assured of having more than a 20 minute stretch of uninterrupted time to work. I’m very grateful to JELS for publishing the fruits of these fleeting windows of productivity.
More generally, the experience of having to prioritize certain research projects over others in the face of external constraints has made me grateful that I can count myself among the foxes rather than the hedgehogs of the legal academy. Methodological and ideological omnivorousness (or, perhaps, promiscuity) may not be the best way to make a big name for yourself as a scholar–to win followers and allies, to become the “go-to” person on a particular area of expertise, or to draw the attention of rivals and generate productive controversy. But it does help smooth out the peaks and troughs of professional life for those of us who just want to keep pushing our stone uphill using what skills we possess, hopeful that in the process we will leave behind knowledge from which others may benefit. That’s always been my preferred view of what I do for a living anyway: Il faut cultiver notre jardin.
Published Version Available Here
Tenure has its privileges.
Three years ago, I posted on this site that I had spent the year prior working up a lengthy, dense draft of a deeply theoretical piece that had grown out of my noodling over a relatively small doctrinal question in trademark law. This draft was well outside of my usual wheelhouse: technical, philosophical, and abstract. It marked the beginning of what has now become a sharp pivot in my scholarly career, into more self-consciously philosophical investigations of the rules we impose on the creation and dissemination of knowledge.
Initially journals reacted coolly–which I can’t fault them for; the piece is long by law review standards and the framework is more technical and less accessible than standard law review fare. I took some time to get feedback from more accomplished legal theorists than myself, I revised the draft, and ultimately it found a home at the Cardozo Law Review, whose student editors worked hard to improve the piece and have now published Legal Sets in their June 2019 issue (which includes a number of other interesting pieces). All told, that means this project took four years to move from the question that first got me working on it to a final, published article. I am deeply cognizant of the tremendous privilege I enjoy in being able to earn a living by dedicating such a significant chunk of my life to this type of work, and I hope I’m making good on that privilege.
This is the kind of work–and the kind of departure from familiar subjects and methods–that I never would have attempted pre-tenure. The risk of failure was great; the opportunity costs were high, and the need to produce measurable outputs to get me through the next gate on my career path was too pressing. But you know, at the risk of tooting my own horn, I think this article is pretty good, and despite its theoretical cast I think it makes a real contribution to a sounder understanding of how law works in practice. So I come away from the experience of writing this piece with a renewed gratitude for the privilege of academic freedom and job security, and a renewed sense that the general absence of such freedom and security from our economy (outside of the shrinking rarefied precincts of the tenure-track academy) is almost surely holding our society back from its full potential.
Read Jefferson’s Taper on SSRN
A little less than a year ago, I made a startling discovery about Thomas Jefferson’s famous observation on the nature of ideas, which (he argued) spread like fire from one person to the next without diminishing the possession of anyone who shares them. As I discovered, Jefferson copied this metaphor from a nearly identical passage in Cicero’s De Officiis–a work of philosophy that was once one of the world’s most widely-read books, but which today few people have even heard of. As I mined out the implications of Jefferson’s unattributed borrowing, I came to conclude that we have been misreading him for almost a hundred years. Rather than making a proto-utilitarian argument in favor of a limited system of patent rights, Jefferson was instead making a natural law argument–exactly the type of argument that his modern-day detractors rely on to support their policy prescriptions regarding the scope of intellectual property rights. And in fact, gaming out the implications of Jefferson’s natural law argument leads to the conclusion that knowledge creators may actually have some obligations to share their knowledge, rooted in a particular pre-Enlightenment conception of natural law and distributive justice.
Doing the work of fleshing out these implications required me to immerse myself in some old and (to me) unfamiliar philosophical sources for much of the past year. The result is the most “scholarly” work of scholarship I think I’ve ever produced: Jefferson’s Taper, now in draft on SSRN, and hopefully coming soon to a law review near you. This was a ton of fun to research and write; I think it is going to surprise a fair number of people. Comments, as always, are most welcome.
I’ve just posted a draft of a new paper to SSRN on law and philosophy scholarship in intellectual property. It is my contribution to a forthcoming handbook from Oxford University Press, edited by Irene Calboli and Lillà Montagnani, on methodologies in IP research. Here’s the abstract:
Intellectual property (IP) law and philosophy is an interdisciplinary approach to scholarship that applies insights and methods from philosophy to the legal, normative, theoretical, political, and empirical questions presented by the project of organizing and regulating the creation and dissemination of knowledge, technology, and culture. In this chapter, I outline four types of IP-law-and-philosophy scholarship, focusing specifically on the discipline of analytic philosophy (with appropriate caveats about the coherence of that discipline). These modes of scholarship can be categorized as (1) the jurisprudence of the IP system, (2) philosophical analysis of IP law, (3) applied philosophy in IP, and (4) normative theory of IP. Category (4) is obviously a special case of category (3), focusing specifically on applications of moral philosophy. Within each category, I provide illustrative examples of past scholarship and suggestions for further research.
As always, comments are welcome.
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.
It’s the summer of short papers, and here’s another one: Post-Sale Confusion in Comparative Perspective, now available on SSRN. This is a chapter for an edited volume with a fantastic international roster of contributors, under the editorial guidance of Jane Ginsburg and Irene Calboli. My contribution is a condensed adaptation of my previous work on the ways trademark law facilitates conspicuous luxury consumption, with a new comparative angle, comparing post-sale-confusion doctrine to the EU’s misappropriation-based theory of trademark liability. Comments, as always, are welcome.
I’ve just posted to SSRN a draft of a book chapter for a forthcoming volume on trademark law theory and reform edited by Graeme Dinwoodie and Mark Janis. My contribution, entitled “Finding Dilution,” reviews the history and theory of the quixotic theory of liability that everybody loves to hate. As Rebecca Tushnet has noted, in a post-Tam world dilution may not have much of a future, and my analysis in this draft may therefore be moot by the time this volume gets published. But if not, the exercise has given me an opportunity to extend the theoretical framework I established and defended in the Stanford Law Review a few years ago: Trademark as Promise.
In Marks, Morals, and Markets, I argued that a contractualist understanding of trademarks as a tool to facilitate the making and keeping of promises from producers to consumers offered a better descriptive–and more attractive normative–account of producer-consumer relations than the two theoretical frameworks most often applied to trademark law (welfarism and Lockean labor-desert theory). But I “intentionally avoided examining contractualist theory’s implications for trademark law’s regulation of producer-producer relationships” (p. 813), mostly for lack of space, though I conjectured that these implications might well differ from those of a Lockean account. In my new draft, I take on this previously avoided topic and argue that my conjecture was correct, and that the contractualist account of Trademark as Promise offers a justification for the seeming collapse of trademark dilution law into trademark infringement law (draft at 18):
This justification, in turn, seems to depend on a particular kind of consumer reliance—reliance not on stable meaning, which nobody in a free society is in a position to provide, but on performance of promises to deliver goods and services. It is interference with that promise—a promise that does not require the promisor to constrain the action of any third party against their will—that trademark law protects from outside interference. A contractualist trademark right, then, would be considerably narrower than even the infringement-based rights of today. To recast dilution law to conform to such a right would be to do away with dilution as a concept. A promise-based theory of dilution would enforce only those promises the promisor could reasonably perform without constraining the freedom of others to act, while constraining that freedom only to the extent necessary to allow individuals—and particularly consumers—to be able to determine whether a promise has in fact been performed.
As they say, read the whole thing. Comments welcome.
I have posted to SSRN a draft of the essay I contributed to Ann Bartow’s IP Scholarship Redux conference at the University of New Hampshire (slides from my presentation at the conference are available here.) These are dark times, and the darkness leaves nothing untouched–certainly not the consumer culture in which we all live our daily lives. As I say in the essay, Nazis buy sneakers too, and often with a purpose. We all–brand owners, consumers, lawyers, and judges–should think about how we can best respond to them.
I’m in Chicago at Northwestern Law today to present an early-stage empirical project at the Roundtable on Empirical Methods in Intellectual Property (#REMIP). My project will use Canada’s pending change to its trademark registration system as a natural experiment to investigate the role national IP offices play in reducing “clutter”–registrations for marks that go unused, raising clearance costs and depriving competitors and the public of potentially valuable source identifiers.
Slides for the presentation are available here.
Thanks to Dave Schwartz of Northwestern, Chris Buccafusco of Cardozo, and Andrew Toole of the US Patent and Trademark Office for organizing this conference.