Mike Masnick’s line-by-line reply:  http://www.techdirt.com/articles/20120208/01453517694/riaa-totally-out-touch-lashes-out-google-wikipedia-everyone-who-protested-sopapipa.shtml

Hat tip to Lauren Gelman.

Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.

In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.

Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startling fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”

Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.

From the New York Times:  “Swatch, Supplier to Rivals, Now Aims to Cut Them Off.”

Swatch’s dominance of watch manufacturing dates to the early 1980s, when Nicolas G. Hayek, father of the current chief executive, was entrusted by banks to take over two indebted watch companies. He merged them and turned the combined business into a mass-volume production platform [commons, if you will] for what the company’s Web site describes as “a low-cost, high-tech, artistic and emotional ‘second watch’ — the Swatch,” as well as for other brands.

The merger received the blessing of the competition authorities and was seen as a last-ditch attempt to save a sector whose work force had shrunk almost two-thirds in 15 years, to 33,000 employees in 1984.

Employment has since climbed back to 49,000, and watch companies now face the problem of recruiting enough qualified staff to meet their orders.

In June, the Swiss competition authority ruled that Swatch would be allowed to lower its deliveries of mechanical movements to third parties next year to 85 percent of the 2010 levels, pending an antitrust investigation and a final ruling on whether Swatch could stop supplies altogether. That ruling is expected in the second half of next year.

From the New Yorker:  “Battle Lines,” reviewing Stephen Mitchell’s new translation of The Iliad.  Mitchell and the reviewer, Daniel Mendelsohn, agree that the modern Iliad is recognized as a kind of wiki-composition (commons, if you will) rather than the work of a single, solitary author.  They disagree over the wisdom of Mitchell’s approach, stripping away the accretions and interpolations to reveal what Mitchell claims is an even greater poem, leaner, more dramatic, more awe-inspiring.   Mendelsohn argues (and I quote the abstract):

But too often his insistence on speed forces him to sacrifice nobility. Part of the way in which the epic legitimizes its ability to talk about so many levels of existence and so many kinds of experience is its style: an ancient authority inheres in that old-time diction, the plushly padded epithets and stately rhythms. All this, along with many other subtle effects, is gone from Mitchell’s Iliad, which, in its eagerness to reproduce what Homer says, strips away how he says it. The Iliad isn’t pure; its richness, even its stiffness, is part of what makes it large, makes it commanding, makes it great. It doesn’t need to be modernized, because the question it raises is a modern one: how do we fill our short lives with meaning?

Also from the New Yorker:  “Crunch,” about the development of modern apples and particularly about the development and release of the “SweeTango,” a “club apple” [commons, of a sort] produced at the University of Minnesota.    From the abstract:

Instead of an ‘open release,’ which meant that anyone could grow the apple, the university decided to release it as a ‘managed variety,’ or what’s known in the business as a ‘club apple.’ The university would grant a license to an outside company, which would establish a consortium that could market and grow the apple nationally. Growers could apply to the consortium for permission to grow the apple and, if accepted, would be obliged to sign a lengthy contract stipulating how and where they could grow it, as well as where they could sell it.

Not all growers are pleased.

And from one kind of apples to another:  The Future of the Internet blog on Microsoft’s new Windows 8 app store and how it re-creates (in part) the gatekeeping problems posed by Apple’s iOS and Mac App Stores.  That post builds on earlier arguments (Jonathan Zittrain) about “the end of the PC,” that is, the end of the idea that computer users have the power to add software to their machines without having their choices filtered by an intermediary.  Comparatively “open” technologies are succeeded by technologies that are comparatively “closed.”  This case, like  the Swatch example shows that the problem of intermediaries is not simply their existence, but the nature of the power that they exert.

The story starts in the usual eco-group takes on industry way with the NC buying “out area fishing boats and licenses in a fairly extreme deal — forged with the local fishing industry — to protect millions of acres of fish habitat.” But the NC put the fleet back to work using a commons model.

Bringing information technology and better data collection to such an old-world industry is part of the plan. So is working with the fishermen it licenses to control overfishing by expanding closed areas and converting trawlers — boats that drag weighted nets across the ocean floor — to engage in more gentle and less ecologically damaging techniques like using traps, hooks and line, and seine netting.

The conservancy’s model is designed to take advantage of radical new changes in government regulation that allow fishermen in the region both more control and more responsibility for their operating choices. The new rules have led to better conservation practices across all fleets, government monitors say.

The challenges here were that “There wasn’t scientific information at that level that could match the fisherman knowledge.” Fisherman did not trust the NC, but when the NC bought some of the boats or permits from those who wanted to leave the industry, “The fishermen soon divulged which nurseries and rock formations needed to be protected and which areas where mature fish congregated should be left open. What resulted was a proposal that included large areas of closings — nearly 4 million acres — that most fishermen thought was fair. It was adopted easily by the fishery council in 2006.”

Now let’s look at the data magic. The NC uses a system called eCatch. According to the Times, fisherman were not sure about this reporting requirement “But fishermen have come to believe that the data will show patterns — for example, high catch rates of certain species after full moons along the edge of the shallow water shelf in July — that will help them all predict the danger zones. Independent fisherman have joined the risk pool and eCatch system because they see benefits. By handing out free iPads, the conservancy made the posting of real-time results almost effortless.”

And, it seems other areas are emulating this approach. “In Massachusetts, scallop fishermen, with the help of the University of Massachusetts, have developed a similar reporting program to avoid pulling in endangered yellowtail flounder.” Could lobster fishermen be far off from this method? Afterall at least with other seafood efforts the new method “yields profits and hardly any bycatch” (the term for catching sensitive species which can lead to market problems). And in what looks like another aspect of this commons comedy, in one case a family that sold its permit and leases it back at fair market value as long as the method “continues to use Scottish seining, which is far gentler to the ocean bottom than trawling is.”

Rather than the fight between nature groups and industry the fisherman offered a different picture: “The Nature Conservancy had identified that the small family boats were sustainable, and they wanted to help,” Mr. Fitz said. “We recognized that we needed help negotiating this increasingly confusing path into the future.”

From the Shanghai Daily News:

A HONG Kong design student’s tribute to Steve Jobs that generated a buzz online following the death of the co-founder of Apple last week is not original, the teenager said yesterday.

Jonathan Mak, 19, said he was not the first to come up with the design that fits Jobs’ silhouette into the bite of the Apple logo (see right). He was speaking after comments surfaced on Twitter that a UK-based designer, known as Raid71 on the web, created the original design in May.

The design posted by Mak on the Internet spread like wildfire last Thursday, just after the passing of Jobs.

It drew hundreds of thousands of posts, commemorative caps and T-shirts peddled on eBay featured the design and it was used by Hollywood actor Ashton Kutcher as his Twitter profile picture.

Mak, a student at Hong Kong’s Polytechnic University School of Design, acknowledged he was not the original creator of the design but said he did not “rip off” the UK designer.

“I still arrived at the solution on my own, and my conscience is clear, but I’m more than happy to acknowledge the fact that somebody did it before me,” Mak said.

Like Mak’s design, the UK-based designer fits Jobs’ silhouette into the bite of the Apple logo. But the dimensions and proportions differ.

Derek writes:

[T]here was one looming issue that the conferees couldn’t resolve: what, exactly, is a commons?

The short answer is: no one knows. Ostrom’s work counsels a bottom-up, accretive way to answer this question. Over time, with enough case studies, the boundaries of what constitutes a “commons” become clear. So, the conventional answer, and one supported by a lot of folks at the NYU conference, is to go forth and, in the spirit of Clifford Geertz, engage in collection and thick description of things that look like, or might be, commons.

As an outsider to the field, I think that’s a mistake.

And he goes on to offer some tentative thoughts regarding possible “theories of the middle range.”

I appreciate Derek’s thoughts and suggestions.  All the same, I think that it’s possible to over-state the distinction between “Geertzian” bottom-up approaches and top-down theoretical approaches to the commons “space.”  For one, neither Ostrom’s work nor mine (with Brett and Kathy) are really concerned primarily with “what is a commons?”; rather, the work is aimed at understanding the dynamics of institutions and reasons for their successes and failures.  The definitional question is a question about what cultural (or information or knowledge) institutions are worth studying.  Do we include or exclude certain targets ex ante because they “are” or “are not” “commons” according to some analytic definition?  Speaking only for myself, I think that using a hard-edged strategy of exclusion is unwise, particularly at the front end of a research project, if only because you lose out on potentially valuable insights.  (The converse risk is that you waste the time of readers and potential partners by studying things that turn out not to be useful.  But such is the nature of the research enterprise, I think.)   Even “theories of the middle range,” if employed too aggressively, create risks of excluding potentially valuable research targets.

So, one participant at the Convening Cultural Commons workshop argued to me that the research enterprise should be focused exclusively on innovation institutions, that is, on institutions whose primary purpose was to encourage the cumulation of knowledge.  (That would eliminate research on roller derby from the enterprise, for example.)  Personally, I think that approach is too narrow; one of the interesting distinctions between a natural resource commons and a “cultural” commons, using that phrase as I used it with Brett and Kathy in this paper (and this one) is that the outcome of the commons isn’t necessarily a “what” — a sustainable resource (or collection of resources).  The outcome may be a “who” — a sustainable community or collaborative or field or discipline.  Emphasis on “may” in that sentence.  Consider that a working “theory of the middle range.”

One of the most fascinating and rewarding things about the workshop was its genuinely interdisciplinary character.  We had substantial, interesting contributions from legal scholars and also from political scientists, economists, anthropologists, sociologists, and historians.  (And I may be omitting one or two fields.)  That breadth sometimes made the workshop challenging, because participants’ frames of reference were often quite different.  The search for a definition of “commons” was in part an effort to reach a conversational starting point, if you will, rather than a search for an intellectually rigorous starting point.  But I think that everyone there came away stimulated and encouraged about participating in a “commons” future.

I am not alone in that assessment.  Over at Truth on the Market, a lot of smart people who think and write about innovation are looking at regulation and legal markets in an online symposium titled “Unlocking the Law: Deregulating the Legal Profession.” Many of the posts recapitulate recently-published scholarship, as good blog posts are wont to do, but the blog symposium format collects them in a single, useful, and accessible place.  My favorites (so far) are these:

• Larry Ribstein, posts one and two (on why deregulation is happening before our eyes, and what that means)
• Bill Henderson (on disruptive innovators in the legal services marketplace)
• Gillian Hadfield (on some of the benefits of looking as the legal system as economic infrastructure)

When innovation lawyers are loosed upon market failures in information settings, one of the standard policy responses is the creation of intellectual property rights of one sort or another.  I haven’t read all of the TOTM posts closely, nor all of the underlying scholarship, but I would not be surprised to find proposals that a good chunk of the legal services marketplace should be “privatized” in one way or another, to an even greater extent that it already is.  Copyrights in briefs, arguments, legal strategies, and transaction documents might be strengthened and enforced, for example, just as copyrights abound in model codes and Restatements, as inducements to innovate.

Others with more time than I have right now can ponder in detail the distributive effects of those solutions.  I will simply point out that this area is ripe for exploration through the lens of the work on commons that I have launched with Kathy Strandburg and Brett Frischmann.  As Brett has argued at great length, economic resources that we treat as infrastructure often should be supplied through commons governance (i.e., managed open access) rather than through private markets.  Reliance on the latter may well lead to undersupply.

The details of Professor Ostrom’s lecture follow.  The principal Constructing Commons paper is, as always, available at SSRN.

The design depicts a legend that is common to several different tribes, which is the legend of the water serpent.  It has various names in different tribes, such as Kolowisi in Zuni, Pachua in Hopi, and Avanyu in tribes of the Rio Grande outlier regions.  When I showed the pot to a colleague, she commented that a very similar image was painted on the Zuni mission church. Later that day, we went to an upscale gallery in Santa Fe where I happened to notice this pot:

This might be an interesting exercise for an in-class discussion on what is protectable and what is not protectable cultural expression.  Of course, despite the shop owner’s assertions, neither utility nor design patents are apt here.  However, there could be source identification of a design with a particular artist.  (I did a quick search of the trademark office records online and, with the caveat that design mark records are notoriously difficult to find, didn’t find any marks registered by the artist.)  Perhaps the artist registered a copyright, and believes that affords exclusive protection.  In any event, this situation raises questions about the scope of various forms of IP protection, as well as public and private ownership of cultural expressions and heritage, which might be useful in the classroom.