First is Jonah Lehrer’s “Groupthink,” from the Jan. 30, 2012 issue of The New Yorker.  The full article is subscription-only, but the preview is here.  In part because it resonates somewhat with the description of “emergent creativity” found in my work on fair use, the quotation that made the most sense to me right away is this:

According to [UC Berkeley psychologist Charlan Nemeth], dissent stimulates new ideas becuase it encourages us to engage more fully with the work of others and to reassess our viewpoints. ‘There’s this Pollyannaish notion that the most important thing to do when working together is to stay positive and get along, to not hurt anyone’s feelings,” she says. ‘Well, that’s just wrong. Maybe debate is going to be less pleasant, but it will always be more productive. True creativity requires some trade-offs.”

Professor Nemeth’s website is here.

Second is this post at the Chronicle of Higher Education by Geoff Pullum, about the challenges of working with and listening to colleagues who discomfort us.   A key quote:

The joy of working in a university, for me, has nothing to do with wearing gowns or drinking sherry in the faculty club or standing at oak-paneled podia in steeply banked lecture theaters imparting vapid maxims to the young the way professors in movies do. It’s about being in the company of people who are smarter than I am.

If I could understand everything I hear from colleagues and visitors, if I never experienced moments of panic about not being able to keep up, I would be working in the wrong place.

If I were to reach a bit and spend more time on the question, I might be able to connect both of these to the idea of creativity as “play,” as Julie Cohen develops that idea in Configuring the Networked Self.

There is one principle that I would add to the five principles that Marvin examines in the article:  nondiscrimination.  It seems to me that across public and private, physical and virtual ”space” contexts (and judicial opinions), one persistent principle is that nondiscriminatory approaches to sustaining spaces, platforms, … infrastructures are presumptively legit and normatively attractive — whether government efforts to “sustain” involve public provisioning, subsidization or regulation.

I recognize that this might seem to tread too close to the negative liberty / anti-censorship model, but in my view, it helps connect the anti-censorship model with the pro-architecture model.  We should worry when government micro-manages speech and chooses winners and losers, but macro-managing/structuring the speech environment is unavoidable.  A nondiscrimination principle guides the latter (macro-management) to avoid the former (micro-management).

This sixth principle is implicit is the other five that Marvin discusses.  It’s not articulated as a stand-alone principle, uniform across situations, or even defined completely.  Nonetheless, nondiscrimination of *some* sort is part of the spatial analysis for each principle. For example, in the paper, when Marvin discusses designated public spaces, he says that government can designate spaces–so long as it does so in a nondiscriminatory way. The nondiscrimination principle here is limited: government cannot discriminate based on the limited notion of “content.”  Another example is limited public forums where government cannot discriminate on viewpoint, but can set aside a forum for particular speakers based on the expected content (say students / educational content).  There are other examples that Marvin explores in the paper.  In my view, there is something fundamental about nondiscrimnation and the functional role that it plays that warrants further attention.

Frankly, the idea of a nondiscrimination principle connects with my own ideas about the First Amendment being aimed at sustaining infrastructure commons and the many different types of spillovers from speech–or more broadly, sustaining a spillover-rich cultural environment;  I explored those ideas in an essay and I expand on them in the book.   It is important to make clear that government support for infrastructure commons — whether by direct provisioning or by common carrier style regulation — lessens pressure on both governments and markets to pick winners and losers in the speech marketplace/environment, and as Marvin argues, that is something that is and ought to be fundamental or core in any FA model.

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.

This is a virtual crime case that involved real violence used to obtain virtual goods.  The victim was beaten and threatened with a (real) knife, with the defendants demanding he hand over a virtual mask and a virtual amulet within the online game Runescape.  So at the very least, this was a case of criminal assault.  The only issue was whether the crime amounted to theft, which hinged on whether or not the virtual items could be classified, under Dutch law, as goods.

The lawyer for the defendants argued that Runescape’s virtual items are not goods because they are not tangible and have no commercial value.  The Dutch Supreme Court disagreed.  Citing to the size of virtual economies as well as to specific sales on eBay of Runescape items, it rejected the argument that the goods had no economic value.  It also observed that the victim had invested time and effort to obtain the value of the items, that the game gave him exclusive rights to the items, and that the defendants had, by violence, acquired that value and those exclusive rights from the victim.

In my opinion, the reasoning of the Dutch Supreme Court is roughly analogous to the reasoning in the U.S. decision of Kremen v. Cohen, which found that domain names were subject to civil conversion in California despite their intangible nature.  Though I have mixed feelings about the Cohen case, I believe the recognition of the Runescape items as legal goods is the right result in this case.  As the Court explains, the victims here were clearly motivated by the prospect of acquiring the value of the virtual items of the victim and they used violence to obtain that value.

Additionally, as the Dutch Supreme Court explicitly notes, the violence here was not in the context of the game.  As I explain in Chapter 6 of my book, there can be cases where legal prohibitions against in-game theft of virtual property may be in tension with the rules of a game.  In this case, however, the theft occurred completely outside the rules of Runescape.  Given this, I think the Dutch Supreme Court’s recognition of the economic and status value of virtual items is entirely appropriate.

In addition to my work with Dan and Arno’s writing, the Court AG opinion accompanying the decision (see my comment below) cites the work of Orin Kerr, Jack Balkin, Fred Schauer, Andrea Arias, and Alec Levine.  I may have more to say once I get a better translation of the ruling — Google Translate is great to get the gist of the matter, but I have a feeling I’m missing plenty of nuance.

(X-posted on Terra Nova.)

Art is both love and friendship, and understanding; the desire to give. It is not charity, which is the giving of Things, it is more than kindness which is the giving of self. It is both the taking and giving of beauty, the turning out to the light the inner folds of the awareness of the spirit. It is the recreation on another plane of the realities of the world; the tragic and wonderful realities of earth and men, and of all the inter-relations of these.

The full letter is here.

In very much the same spirit, do not miss Lewis Hyde’s wonderful The Gift.

(URL: http://seattletimes.nwsource.com/html/businesstechnology/2017372375_tweetingteens30.html in case the hyperlink above isn’t working).

and more particularly this description of prose and poetry writers at parties…

“Fiction writers cluster in the unlit corners of the room, silently observing everybody, including the poets, who are usually having a fine time in the center spotlight, making a spectacle of themselves as they eat the popcorn and drink the beer and gossip about other poets.  Usually it’s the poets who leave the mess just as it was, the empty bottles and the stains on the carpet and the scrawled phrases they have written down on the backs of pizza delivery boxes – phrases to be used for future poems, no doubt, and it’s the prose writers who in the morning usually have to clean all of this up.  Poets think that a household mess is picturesque – for them it’s the contemporary equivalent of a field of daffodils.  The poets start the party and dance the longest, but they don’t know how to plug in the audio system, and they have to wait for the prose writers to show them where the on/off switch is.  In general, poets do not know where the on/off switch is, anywhere in life.  They are usually off unless they are forcibly turned on, and they stay on until they are taken to the emergency room, where they are medicated and turned off again.” (p 108)

Apologies to any poets or aspiring poets out there.  But the passage does remind me of the ‘flash of inspiration’ explanation of creativity – as applied here to poets – with a more ’sweat of the brow’ rationale for the creativity of fiction writers.  I wonder what Baxter would say about copyrighting computer software?

So many IP things to blog about, so much to catch up on … I’ll start with this:

If an Oreo isn’t round and black and white and crazy sweet, is it still an Oreo? What is the essence of Oreoness?

What the Chinese team at Kraft figured out is that an Oreo is an experience. You pry it apart, scrape out the filling with your teeth and plop it into a glass of milk. Their shorthand for the concept: “Twist, Lick, Dunk.” All the wild new shapes and flavors of Oreo wouldn’t work in China, unless they could somehow share that same experience.

Full story here.  For those few of us who enjoy thinking about the roles and histories of “things,” this is an entertaining and instructive tale.

Case Western Reserve’s Journal of Law, Technology & the Internet is searching for a final article to publish in its spring edition. Any scholarly work related to cyber law, intellectual property law or the intersection of technology and the law will be considered. This is a great opportunity to see your research in print and online by the end of the spring semester. The Journal of Law, Technology & the Internet is a recognized student journal at Case Western Reserve University School of Law located in Cleveland, Ohio. Please forward all submissions, along with a CV or cover letter, to the attention of:

dtc22@case.edu | (734) 812-7373

Mazzone argues that overenforcement of copyright is rampant:

False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

Mazzone’s book highlights an underappreciated problem of rights fabrication that threatens to become a form of private legislation. If the intellectual property system is to genuinely promote innovation and creativity, it will need to address the issues he describes. It should certainly do so before adopting the types of intrusive remedies proposed under SOPA/PIPA. Mazzone’s policy recommendations are wise and often original, both recognizing and building on a large law review literature on IP reform. As Mazzone has argued:

Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. In addition, Congress should further protect the public domain by creating a national registry listing public domain works and a symbol to designate those works.

Mazzone presents a level-headed and persuasive account of the policy changes that could improve matters. Copyfraud is a wonderful read and a great contribution to the IP literature. It’s recommended reading for anyone wondering how such an imbalanced legal regime arose.

X-Posted: Concurring Opinions.