Shameless self-promotion alert: I’ve just posted a short paper on SSRN, titled “Intellectual Property and Americana, or Why IP Gets the Blues.” (Download it here.) It’s just been published in a symposium issue of the Fordham Intellectual Property Media & Entertainment Law Journal, along with pieces by Mark Lemley, Dan Burk, Rob Frieden, and Tal Zarsky.
The abstract:
This essay, prepared as part of a Symposium on intellectual property law and business models, suggests the re-examination of the role of intellectual property law in the persistence of cultural forms of all sorts, including (but not limited to) business models. Some argue that the absence of intellectual property law inhibits the emergence of durable or persistent cultural forms; copyright and patent regimes are justified precisely because they supply foundations for durability. The essay tests that proposition via brief reviews of three persistent but very different cultural models, each of which represents a distinct form of American culture: The Rocky Horror Picture Show; the town band of Chatham, Massachusetts; and the musical form known as the blues. It concludes that that the relationship between cultural persistence and law is more complex than is generally understood. The essay applies some of that more complex understanding to contemporary problems involving business models, notably the copyright dispute involving Google’s Book Search program.
The paper is part of a much larger project investigating the role of formal law in cultural patterns and institutions that generate and rely on information. I’m playing with various ways of looking through the wrong end of the telescope. Instead of taking a certain position in social context and asking questions about what form the law might take, I’m trying to assume a certain position in law and asking questions about what forms society and culture might take. (The two positions, of course, are not independent of one another.) Some of the project collects and relies on my earlier work on “things,” “places,” and “groups.”
I’m working at different levels simultaneously. This “Americana” paper is mostly anecdotal. With Brett Frischmann and Kathy Strandburg, I am looking at analytic structures, constructing a mode of investigating cultural resource pools — or constructed “commons” — that borrows from existing methods of investigating natural resource pools. At the most theoretic level, over the last year I completed and workshopped a characteristically complex manuscript titled “Information Governance” (not on SSRN, yet) that takes a stab at excavating some of the conceptual foundations that are buried deeply beneath the “code” that is law, the “wealth” within networks, and cultural environmentalism after a decade. Reactions are, of course, welcome.