“In a particularly spectacular display of corporate delusion, John Deere—the world’s largest agricultural machinery maker —told the Copyright Office that farmers don’t own their tractors. Because computer code snakes through the DNA of modern tractors, farmers receive ‘an implied license for the life of the vehicle to operate the vehicle.'”
reminded me of this (law review voice on; footnotes omitted):
“The book is the paradigmatic thing in law and in culture. It exercises a unique authority, combining text and heft, concept and materiality. Taking things seriously means recognizing that authority in other material and conceptual forms, and searching for its sources. This is not Ahab’s pursuing the white whale, only to find it and be destroyed. This is appreciation and respect for new forms of authority, and understanding its sources and its limitations. My argument can be summed up in the following three steps.
First, the law does not go far enough to recognize that things are important. The conventional account holds that people are important, and what people do with things are important, but things are not. But that is not so. There are debates in a variety of places in the law about ‘things’—how to define them, classify them, and define their legal implications—but the debates are often seen as proxies for debates about relationships and interests and policies. What interests me is the sense that the debates may really, in fact, be about things. Things play important roles in our lives but are underappreciated in the law, by virtue of Realist and post-Realist jurisprudence and scholarship. The literal and figurative reconfigurability of the world teaches us to appreciate the role of things in creating and exercising authority in law. We know this when we consider high technology and particularly computer technology. “Code” regulates much as law does. But this is more generally true of things, and we should look for and understand regulation-by-thing in all areas of thingness, rather than focusing our energy exclusively or largely on the artifacts of computer science.
Second, the law does not appreciate sufficiently that things do not just exist. Things come from somewhere, and after they arrive they change, and the law has a meaningful role to play in constructing things and managing their evolution. Thingness in the law is not simply given. It does not fall neatly into traditional legal categories such as ‘property’ or ‘contract,’ or nonlegal categories such as ‘technology’ or ‘the market.’ The law creates and enforces thingness, and creates and enforces the authoritative character of thingness, and it does so in a variety of ways. Exposing that variety takes some effort, as it requires crossing disciplinary boundaries both in law and elsewhere. But if the results enable us more clearly to see the character of authority in our lives, and both the virtues and drawbacks of that authority, then the effort is worthwhile.
Third, bringing transparency to the processes of thing-making and thing-changing yields a wealth of possibilities in terms of both conventional and unconventional legal regulation. Once we see that there are several different ways in which things are made, we see the possibility of different alternative regulatory universes in which things are given and then regulated, or regulated in various ways during the process of their construction. The very notion of thingness suggests the existence of a dividing line between what is unregulable and regulable. Interposing the legal construction of thingness suggests that this line can be moved depending on regulatory interests. Critiques of thingness, and policy analyses of problems that concern things in any sense, can and should draw on the multiple senses of created thingness in developing both theoretical and practical arguments. The literature contains arguments addressing the choice between ‘law or code’ as regulatory substitutes, and arguments addressing ‘law and code’ as complements. By taking things apart, we see that the tools for appreciating and using (or rejecting) thingness in any regulatory context are far richer than one might initially suppose. The five models reviewed here represent only a rough taxonomy. As I note at several points, the models overlap with one another and in some areas blend together. For analytic purposes, they are useful starting points. Any policy-maker may pick and choose, accept or reject, all or parts of each model or some of them, hopefully taking account of their respective strengths and weaknesses in the context of the regulatory question at hand. Distinguishing the models suggests different kinds of questions to ask and highlights the merits of different answers.
A failure to appreciate the thingness of things undervalues the benefits of thing-based authority. Thingness can be a good thing. It also undervalues the benefits of challenging thingness. Things are authority, and authority is power. The insistence on thingness and the refusal to enable the disassembly of things may have important distributive consequences, not only in intellectual property domains, but elsewhere, even in the processes of democracy. If things are embodied culture, then they should be subjected to all of the pressures that keep cultures vibrant. We need to value them and re-create them, take them apart and improve them, preserve them and share them. Excessive deference to ‘nature’ or to ‘design,’ even if we challenge the identity and authority of the designers, does not do enough to assure that things themselves are part and parcel of the messiness of human existence. To focus too narrowly on producer interests, too narrowly on individual interests, or too abstractly on markets or on efficiency or ‘social welfare’ misses the inevitably human, and humanistic, character of the problem.
Modern materialism forces an integrated account of things that can and things that cannot be ‘physically and permanently’ possessed. We have a universe of malleable cultural forms, some of which descend from accepted antecedents, many of which can be modified by practice and by law. The question for things is a broader form of the narrow question raised by copyright and patent: what is the role of the law in preserving and shaping the forms that our “creative” institutions produce? That role is inevitable and essential. The answer cannot be found in critical or Realist arguments that the law must focus entirely on relationships and values in order to mitigate the concealed influence of power, or in economics arguments that the law should devise mechanisms so that the allocation of resources maximizes social welfare. There are contexts and methods for creating and legitimating thingness that do and should go unchallenged, so long as we fairly appreciate what they are. But abandonment of thing-based descriptions in favor of rights- and rules-based descriptions leaves us without a vocabulary adequate to capture actual human experience. Pragmatism cautions us to test propositions by their consequences in terms of human wants and needs rather than according to an ex ante ontology. The fluidity of things both conceptual and material challenges the pragmatist’s premise, since we can no longer take assurance from modern law’s relative distrust of the conceptual and trust of the material. The natural law tradition, which measures universal principles of truth and morality against ‘inherent characteristics in human beings and other animate things as well as in the physical word and in social structures,’ comes in for similar questioning. We cannot assume the truth of what is ‘inherent’ and what is manufactured. Adjudication, legislation, and scholarship should make the bases of thingness more transparent, so that the sources and weight of authority can be better evaluated, and so that the tools thus discovered can be put to more effective use.”