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.

An interesting episode of the show Radiolab addressed in part the question of romantic authorship and the muse.  In “Me, Myself, and Muse,” Jad Abumrad and Robert Krulwich question whether there is something more than individualistic, independent authorship to the act of creation.  In the podcast, Elizabeth Gilbert (author of “Eat Pray Love”) talks about an interview she did with Tom Waits for GQ, where he asserts that each song comes into being with its own unique identity, and that there is some sort of a muse involved, an “external collaborator,” one that he talks to, negotiates with.  Waits described one day driving down an LA freeway when a melody came into his head.  He was in traffic, had no pen or paper or recorder to capture the tiny and beautiful piece of music.  So, he decided to talk to that song, saying, “Excuse me.  Can you not see that I’m driving?  If you are serious about wanting to exist, then I spend eight hours a day in the studio.  You’re welcome to come and visit me when I am sitting at my piano.  Otherwise, leave me alone and go bother Leonard Cohen.”  Elizabeth Gilbert talks about relying on this external component of authorship and sweet-talking it when necessary, commenting, “I know the difference between something I thought of and something I was given.”

Songwriters often say similar things.  Townes Van Zandt said the song “Pancho and Lefty” came to him in a dream, fully formed, and he wondered for years what it was about.  It is widely known that Paul McCartney claims the song “Yesterday” also came to him in a dream.  Bob Dylan, in his interview with Ed Bradley on “60 Minutes,” describes how he wrote “Blowin’ in the Wind” in 10 minutes (at 1:12).  He describes the process as some kind of magic (and clarifies that it is not the Siegfried and Roy kind of magic), and that he has no idea how he wrote “Blowin’ in the Wind” except to say that “it came from… um… like, um… right out of that wellspring of creativity, I would think.”

[T]he key issue is to think about why we choose novelty over immersion. Why do we choose convenience—the speed of consumption—over the sensory qualities of a consumption experience?

What [Simon] Reynolds dubs retromania seems a paradoxical way for capital to proceed to secure ideological dominance, but it makes a diabolical sort of sense: get novelty and innovation on the cheap by recycling the ready-at-hand past. This has the added bonus of fusing the new with the familiar, so consumers can appease two contradictory longings simultaneously. Nostalgia and novelty fuse in a new kind of cultural artifact, which Reynolds spends a lot of time cataloging: stuff like I Love the ___’s, reunion tours, bands playing their old albums in sequence, Web 2.0 music like Flying Lotus, Girl Talk, etc.

The fusion of “new and the familiar” also reminds me of the ideas of “flocking and differentiation” in the Hemphill/Suk article on fashion. Rather than being epiphenomenal, one more sad aspect of status anxiety, fashion to Hemphill and Suk is an authentic expression of a broader dialectic of individual self-creation: to both conform to social norms and to distinguish oneself from them. Christening these impulses “flocking” and “differentiation” (respectively), Hemphill and Suk see fashion as not merely an economic phenomenon, but a cultural one, reflecting deep-seated human needs. But a rapid and fruitless cycling between bedazzlement and boredom could just as accurately characterize fashion trends as an ennobling narrative about “flocking” and “differentiation.”

Who knows whether fashion, or the fused nostalgia/novelty Horning describes, is a component of authentic self-expression, or a form of false consciousness? As Denis Charles Philips explains, “many rival narratives can be devised by an individual to account for a given action, just as, in natural sciences, many rival hypotheses can be invented to account for any finite body of data.” The law of culture can be vexing in part because we can disagree so profoundly about the right narrative “frame” for the phenomena we encounter.

It’s tempting to simply refuse to give an account of value, or even intention, in some circumstances. When we move from processes of appreciation to those of creation, that’s an increasingly popular strategy. Richard Prince appeared to retreat to the realm of the non-rational at a recent deposition in a celebrated copyright case:

In a deposition in the case that was recently published as part of an unlikely art book by the writer and director Greg Allen, lawyers for [plaintiff] Mr. Cariou follow [defendant] Mr. Prince deep into the strange and often trackless territory of artistic intention. About as close as they get to pinning him down is that he wanted to use the borrowed pictures to explore his fascination with the painting of Willem de Kooning and also thought of his collages and paintings as part of an idea for a movie about a post-apocalyptic world in which Rastafarians, famous literary lesbians and others commandeer hotels on St. Bart’s.

“So what are four lesbians from the early 20th century doing on St. Bart’s in, now, when there’s a nuclear war, like why are they there?” a lawyer asked Mr. Prince, who responded: “Your guess is as good as mine. That’s what I do, I make things up.” At another point in the transcript of the deposition, a lawyer asked, “What is the message?” Mr. Prince replied, “The message is to make great art that makes people feel good.”

Maybe Prince also answers Horning’s initial question, “why we choose novelty over immersion”? Or perhaps we should turn to Sven Birkerts, who observed, in The Gutenberg Elegies, readers “awed and intimidated by the availability of texts, faced with the all but impossible task of discriminating among them, [tending] to move across surfaces, skimming, hastening from one site to the next without allowing the words to resonate inwardly.”

Information overload has an aesthetics; only time will tell if it’s deep or shallow. While that debate rages on, Horning grounds us in the material foundations of an oppositional stance:

Value now is captured by harnessing the filtering that consumers perform for one another, monitoring the lateral cultural chatter and trying to time the implied markets. This is another aspect of the retromania phenomenon. Amateur bricoleurs sort through the digitized detritus of the past (Danny Kirwan solo albums, Falco, etc.), trying to make cultural capital out of it. How one feels about the question of resistance probably depends on how successful one is at that task.

The lords of the memes (or, in Jaron Lanier’s terms, lords of the clouds) aren’t complaining, and support a fair number of projects designed to defend the status quo. But we also need to think about the cultural consequences of a class of newly empowered sorters, filterers, and curators centrifugally pursuing their bliss. A literature criticizing the narcissism of the “daily me” has already done that for politics and journalism. Can a similar project work in culture, without being abrasive, elitist, or sectarian? Spiritual traditions attempt to identify the enduring truths, forms of beauty, and institutions of justice that contribute to human flourishing. Do they have a place in the normative evaluation of culture that lies a bit beneath the surface of legal cases like Prince’s? Could a new Adorno enliven the rights/utility literature in this area, which seems to have hit a dead end? Remix culture owes a great deal to postmodernism. Perhaps a critique of it will need to rely on both religious thought’s appreciation of tradition and critical theory’s willingness to interrogate enlightenment accounts of autonomy.

Image credit: Siebren Versteeg and whatever random viewer caused those images to appear on the touchscreens.

For example as the NY Times puts it:

What has gone wrong? Plenty, say studio distribution executives, who point to competition for leisure dollars, particularly among financially pressed young people (the movie industry’s most coveted demographic); too many family movies; and the continued erosion of star power.

One more thing: “You have to go back and look at the content,” said Dan Fellman, president of domestic distribution for Warner Brothers. “Good movies always rise to the occasion. Bad ones, not so much.”

In the immortal words of Keanu Reeves, “Whoa.” Studios admitting that they compete for leisure dollars? Acknowledgement that star power is not that powerful? Furthermore, the article notes that consumers use social media and the Internet to sort rubbish copycat films from good ones” Per the Times, Phil Contrino, editor of BoxOffice.com, offers, “Because they have less disposable income and because they are more plugged in to audience reaction on Facebook and Twitter, the teenage audience is becoming picky,” he added. “That’s a nightmare for studios that are used to pushing lowest-common-denominator films.” Now let’s throw in video games. Call of Duty did $400 million dollars in its first day of sales.

In sum, the youth audience does not have huge amounts to spend and if choosing between a film that seems unoriginal and a video game, the video game often wins. And despite some odd spin about films aimed at older audiences doing well, the article also explains star vehicles aimed at older audiences failed which seems to go back to make a good movie and people are more likely to see it in the theater.

Will sequels and re-releases in 3D draw me to the theater? Yes (damn you Lucas and your 3d Star Wars ploy!)!! But would it help if there were really good new stories? Heck yeah!

For an odd closing, I offer that economists and academics in law could do well to study the way leisure dollars are spent, the demographics of the content industries, and way that some digital industries thrive while others claim to flounder. Then again, maybe nobody knows anything.

CowClicker was meant to parody the wildly successful Facebook game Farmville, exposing its unchallenging and pointless gameplay and its cynical commercialism. But to Bogost’s dismay his intentionally boring game unexpectedly attracted 50,000 users. Stunned out of his customary ironic detachment, Bogost found himself unable to resist the direct “pleasure” of having people play his game. He began to pay attention to what they liked and to fulfill their requests, though he was bothered by their unironic pleasure in the gameplay. . . . Eventually he resorted to outright destruction, starting a counter that ended with a satisfyingly absurd “rapture” that left no cows standing, just a little clickable shadow in the pasture: a “cowpocalypse”! Yet even the ”cowpocalypse” was not enough to erase the enthusiasm of the fans . . .

At this point, Bogost could have easily embraced a Marcusean attitude (diagnosing, as Charles Reitz puts it, “alienation in the midst of affluence, repression through gratification, and the overstimulation and paralysis of mind”). He instead drew the following lesson:

It shows us how weird and complicated simple things really are, and shows me not that like I’m some sort of brilliant designer who made this thing that was bigger than I thought it was, but how resilient and creative people are. I did this thing that was Cow Clicker, and in spite of it, they rose above and, and made it – made it something more than it really was.

I thought Bogost’s perspective offers encouragement as the 2012 election season rolls around. Much of the coverage and dialogue around the event has the cognitive complexity of CowClicker. A tiny fraction of the population will have real influence; we won’t even know who they are until after it’s over, if then. The real problems of the country will not be addressed. Decline will either continue as before or accelerate. But in the midst of all that, it is possible to find some expressions of community and purpose.

First: What can be done, consistent with military security, and with the prior approval of the military authorities, to make known to the world as soon as possible the contributions which have been made during our war effort to scientific knowledge?

The diffusion of such knowledge should help us stimulate new enterprises, provide jobs for our returning servicemen and other workers, and make possible great strides for the improvement of the national well-being.

Second: With particular reference to the war of science against disease, what can be done now to organize a program for continuing in the future the work which has been done in medicine and related sciences?

The fact that the annual deaths in this country from one or two diseases alone are far in excess of the total number of lives lost by us in battle during this war should make us conscious of the duty we owe future generations.

Third: What can the Government do now and in the future to aid research activities by public and private organizations?

The proper roles of public and of private research, and their interrelation, should be carefully considered.

Fourth: Can an effective program be proposed for discovering and developing scientific talent in American youth so that the continuing future of scientific research in this country may be assured on a level comparable to what has been done during the war?

New frontiers of the mind are before us, and if they are pioneered with the same vision, boldness, and drive with which we have waged this war we can create a fuller and more fruitful employment and a fuller and more fruitful life.

War should be understood as the military actions in Asia and the war on terror.

By now you all may have wondered, “What the heck is Deven doing talking about war (good God, y’all, what is it good for)?” Or something like that. And some of you may have figured out that all of the above except “War should be understood as the military actions in Asia and the war on terror”, which I threw in to try and seem like the ideas are from today, is from President Roosevelt’s letter to Vannevar Bush.

Funny how little changes overtime. Jobs, medical progress, public/private collaboration, the future of science education are all on our minds today. They have been a core issue since at least 1944. The full history of Science the Endless Frontier is hosted by the NSF. It is a fun read. Well, if you are absurdly nerdy, it is a fun read.

There are many things to enjoy in the report. One part that jumped out at me is his idea about employment and science. I may write more as I digest the report in general. For now take a read:

Scientific Progress is Essential … For the Public Welfare: (closest link to the passage)

One of our hopes is that after the war there will be full employment. To reach that goal the full creative and productive energies of the American people must be released. To create more jobs we must make new and better and cheaper products. We want plenty of new, vigorous enterprises. But new products and processes are not born full-grown. They are founded on new principles and new conceptions which in turn result from basic scientific research. Basic scientific research is scientific capital. Moreover, we cannot any longer depend upon Europe as a major source of this scientific capital. Clearly, more and better scientific research is one essential to the achievement of our goal of full employment.

How do we increase this scientific capital? First, we must have plenty of men and women trained in science, for upon them depends both the creation of new knowledge and its application to practical purposes. Second, we must strengthen the centers of basic research which are principally the colleges, universities, and research institutes. These institutions provide the environment which is most conducive to the creation of new scientific knowledge and least under pressure for immediate, tangible results. With some notable exceptions, most research in industry and Government involves application of existing scientific knowledge to practical problems. It is only the colleges, universities, and a few research institutes that devote most of their research efforts to expanding the frontiers of knowledge.

Today we may swap the rest of the world for Europe, but otherwise I think the point holds up rather well.

Steve Jobs, visionary leader that he was, thought about this problem.  It’s an innovation problem, and more or less like the innovation problems that IP systems wrestle with all the time.  Once we innovate, how do we ensure that the innovation thrives, and takes hold, and propagates (or is propagated) for the benefit of different communities and future generations?  Jobs seems to have convinced himself that the way to do this was not just by ensuring the survival of Apple itself, or Pixar.  The key was more Steves, or simulcra of Steve.

“More Steves” suggests that more Steves could be made, not just found.  Is that true?  Can Steve-like leadership (vision, innovation, iconoclasm, persistence) be taught — and if it can be taught, can it be learned?

Apple has built Apple University on the premise that the answers are “yes.” The existence of Apple U. has been openly talked about for a while, but the program of Apple U. has not been clear.  Jobs’s death and that LA Times story in the link bring it out into the open for the first time that I’ve seen.  For several years, the Apple U. initiative has been led by former Yale School of Management dean Joel Podolney.  Back in 2006, I wrote here about Podolney’s record at Yale, which was, in a way that must have appealed to Steve Jobs, transformative.

Analysts say Jobs drew inspiration for the university from Bill Hewlett and David Packard, whose greatest creation was not the pocket calculator or the minicomputer, but Hewlett-Packard itself. Hewlett and Packard famously set out their company’s core values in “The HP Way.”

With Apple University, Jobs was trying to achieve something similar, people familiar with the project say. He identified tenets that he believes unleash innovation and sustain success at Apple — accountability, attention to detail, perfectionism, simplicity, secrecy. And he oversaw the creation of university-caliber courses that demonstrate how those principles translate into business strategies and operating practices.

The idea of building an ivory tower on a corporate campus goes back decades with the best-known — and oldest — run by General Electric. Corporate universities fell out of favor in the 1990s, considered too expensive, bureaucratic and out of touch with the companies they were supposed to serve. Even Apple shut down its corporate university.

But Jobs’ interest in a corporate university never wavered, former employees say. For years he pressed for a way to study the success of Apple’s executive team as well as Apple’s culture and history. His model was Pixar. The animation studio that Jobs sold to Disney for $7.5 billion in 2006 runs Pixar University, a professional development program that offers courses in fine arts and filmmaking as well as leadership and management to steep employees in the company’s culture, history and values as well as its craft.

The HP Way could become the Apple Way.  Or (a la Pixar) Jobs Story.  When I was practicing law in Palo Alto years ago, I was fortunate enough to meet and briefly to work with some senior HP executives.  I heard a lot about the HP Way, and I saw some of it in action.  In its day and in its way, the HP Way was incredibly impressive – and effective.  It preached collaboration, respect, achievement, and integrity.  Not quite the set of values reported above with respect to Apple, and not quite the set of values associated with Steve Jobs in the many public accounts of his life and behavior.  But times have changed.

Updated (Oct. 11 2011):  Kieran Healy has related thoughts in this post, A Sociology of Steve Jobs.

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.

Applications for new gTLDs will begin early in 2012.  It will be interesting to see how effectively this program is administered particularly in dealing with battles between trademark holders and others.  Additionally, it will be interesting to see if the possibility of so many new gTLDs actually does make any inroads into the prominence of the .com space over time.