Appreciating what we’ve built (or dismissing the myth of the “romantic” business owner / entrepreneur / free market)

[What follows is the long version of a somewhat dated but still relevant, unplaced op-ed.  I’ll post the short version on my Stanford CIS blog for anyone that is interested.]

President Obama received a lot of grief for his Roanoke Fire Station speech and in particular for saying “If you’ve got a business, you did not build that–somebody else made that happen.”  The backlash has been substantial, but largely political and not substantive.  Witness the speeches at the Republican National Convention.  Yet the President’s underlying message should be the defining theme of his re-election campaign and Obama’s efforts to revive/recover America.

The message is simple:  We inherently depend on each other and on shared infrastructures of various types.  It is too easy to lose sight of this basic fact.  We like to celebrate individual achievement and independence.  Unfortunately, we make the mistake of thinking in binary terms, individual or social, private or public, market or government.  This leads to great distortions in our perceptions about the world.  Reality is more complicated.

Most people understand that human beings are social and that we depend on each other to succeed.  This may be a rather uncontroversial truism, but it founders when you turn from the abstract idea to the question of how to give attribution or credit when someone is successful.  Obama emphasized that credit must be shared:  “The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together.”

For those who study intellectual property law or innovation more generally, all of this sounds familiar.  It strongly resembles the now conventional idea that with respect to any innovation—whether a technological advance or a song, there is no single builder or creator to whom all credit should go.  All innovations are the product of many.  The romantic notion of an author or innovator creating independently, completely free from the contributions and influences of others has long been discredited.  The ancient aphorism, famously invoked by Newton, “We stand on the shoulders of giants” nicely captures the intergenerational and cumulative nature of innovation.

Of course, it is equally well understood that individual initiative, effort, and even personality matters.  Innovation depends on individuals.  Successful innovation, like success in just about anything, depends on many different factors, including luck, timing, skill, and access to necessary resources. Thus, rejecting the “romantic author” or “romantic innovator” is not a complete dismissal of individual accomplishment and contribution. Rather, it injects some realism about how innovation actually works.

Many have attacked Obama for disparaging entrepreneurs and private enterprise.  I find these attacks ludicrous.  All one has to do is pay attention to the speech.  What Obama attacked is the romance of individual achievement independent of social context, social institutions, and shared infrastructure.  He challenged the myth of the “romantic business owner” or if you like the “romantic entrepreneur” or even the “romantic free market.”

Frankly it is about time that such romanticism is discredited.  It has lingered too long and poisoned honest debate about public policy and the appropriate roles of governments, markets and other institutions in our society.  The romantic business owner / entrepreneur / free market meme casts every policy debate in terms of government intervention into free markets, and it anchors each debate to a host of romantic premises that do not match reality.

There are many reasons for Obama to attack these romantic concepts, but one reason stands out in the speech and should factor heavily in the upcoming election.    Obama would like to raise taxes on the wealthy to increase government revenues, manage the debt, and better finance public investments in shared infrastructure, institutions, and social systems that improve our capabilities to be successful.

In the Roanoke Fire Station speech, Obama did not say much about public investment priorities.  Instead, his focus was on making more apparent the social value of shared infrastructures, the many ways in which various infrastructures society builds contribute to our various successes.  He mentioned conventional forms of infrastructure such as roads, bridges, and the Internet, and he obliquely mentioned less conventional forms of infrastructure such as the legal infrastructure that enables markets and social systems to function.  Given the crumbling state of America’s infrastructure, this is a good start.  For too long, shared infrastructures have remained obscure, part of the background and taken for granted until a catastrophe strikes.  We can no longer afford systematic neglect.

President Obama will need to do much more to defend his commitment to public investments in shared infrastructure.  But that was not really the point of the Roanoke Fire Station speech and his attack on the romantic business owner / entrepreneur / free market meme.  Rather, his attack aimed at justifying the logic for raising taxes on the wealthy.  It was to give appropriate credit to the rest of society for the successes of the wealthy and thereby allow society to stake a reasonable claim to some of the gains.

This is a very difficult position to articulate and defend in the current political climate in the United States, but an essential first step is to discredit the romantic notion that successful business owners or entrepreneurs achieved success solely through their own heroic efforts, without any input from the rest of society.  If the wealthy succeeded only because of their own hard work and abilities, then why should they pay more in taxes?  But if they succeeded because we all provided them with the platform for their success, then we need to have a national conversation about how to ensure that our children and future generations can continue to stand on the shoulders of those who have come before.  That’s the conversation that the President should turn to next.

Infrastructure: The Social Value of Shared Resources

I am excited to announce that Oxford University Press has published my book, Infrastructure: The Social Value of Shared Resources. I owe a huge debt to my Madisonian colleagues for their support along the way. I will post more about the book in the next few weeks, but here are some links and a short abstract:

The book is described here (OUP site) and here (Amazon). The Introduction and Table of Contents are available here.

Short abstract:

“Infrastructure resources are at the center of many contentious public policy debates, ranging from what to do about our crumbling roads and bridges, to whether and how to protect of our natural environment, to patent law reform, to electromagnetic spectrum allocation, to providing universal health care, to energy policy, to network neutrality regulation and the future of the Internet. Each involves a battle to control infrastructure resources, set the terms and conditions under which the public gets access, and determine how the infrastructure and various infrastructure-dependent systems evolve over time. This book advances strong economic arguments for managing and sustaining infrastructure resources as commons. The book identifies resource valuation and attendant management problems that recur across many different fields and many different resource types, and it develops a functional economic approach to understanding and analyzing these problems and potential solutions.”

Some thoughts on Julie Cohen’s new book Configuring the Networked Self: Law, Code, and the Play of Everyday Practice

Cross-posted at Concurring Opinions for a symposium on Julie Cohen’s important new book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press 2012).

Julie Cohen’s book is fantastic. Unfortunately, I am late to join the symposium, but it has been a pleasure playing catch up with the previous posts. Reading over the exchanges thus far has been a treat and a learning experience. Like Ian Kerr, I felt myself reflecting on my own commitments and scholarship. This is really one of the great virtues of the book. To prepare to write something for the blog symposium, I reread portions of the book a second time; maybe a third time, since I have read many of the law review articles upon which the book is based. And frankly, each time I read Julie’s scholarship I am forced to think deeply about my own methodology, commitments, theoretical orientation, and myopias. Julie’s critical analysis of legal and policy scholarship, debate, and rhetoric is unyielding as it cuts to the core commitments and often unstated assumptions that I (we) take for granted.

I share many of the same concerns as Julie about information law and policy (and I reach similar prescriptions too), and yet I approach them from a very different perspective, one that is heavily influenced by economics. Reading her book challenged me to confront my own perspective critically. Do I share the commitments and methodological infirmities of the neoliberal economists she lambasts? Upon reflection, I don’t think so. The reason is that not all of economics boils down to reductionist models that aim to tally up quantifiable costs and benefits. I agree wholeheartedly with Julie that economic models of copyright (or creativity, innovation, or privacy) that purport to accurately sum up relevant benefits and costs and fully capture the complexity of cultural practices are inevitably, fundamentally flawed and that uncritical reliance on such models to formulate policy is distorting and biased toward seemless micromanagement and control. As she argues in her book, reliance on such models “focuses on what is known (or assumed) about benefits and costs, [and] tends to crowd out the unknown and unpredictable, with the result that play remains a peripheral consideration, when it should be central.” Interestingly, I make nearly the same argument in my book, although my argument is grounded in economic theory and my focus is on user activities that generate public and social goods. I need to think more about the connections between her concept of play and the user activities I examine. But a key shared concept is that indeterminacy in the environment and the structure of rights and affordances sustains user capabilities and this is (might be) normatively attractive whether or not users choose to exercise the capabilities. That is, there is social (option) value is sustaining flexibility and uncertainty.

Like Julie, I have been drawn to the Capabilities Approach (CA). It provides a normatively appealing framework for thinking about what matters in information policy — that is, for articulating ends. But it seems to pay insufficient attention to the means. I have done some limited work on the CA and information policy and hope to do more in the future. Julie has provided an incredible roadmap. In chapter 9, The Structural Conditions of Human Flourishing, she goes beyond the identification of capabilities to prioritize and examines the means for enabling capabilities. In my view, this is a major contribution. Specifically, she discusses three structural conditions for human flourishing: (1) access to knowledge, (2) operational transparency, and (3) semantic discontinuity to be a major contribution. I don’t have much to say about the access to knowledge and operational transparency discussions, other than “yep.” The semantic discontinuity discussion left me wanting more, more explanation of the concept and more explanation of how to operationalize it. I wanted more because I think it is spot on. Paul and others have already discussed this, so I will not repeat what they’ve said. But, riffing off of Paul’s post, I wonder whether it is a mistake to conceptualize semantic discontinuity as “gaps” and ask privacy, copyright, and other laws to widen the gaps. I wonder whether the “space” of semantic discontinuities is better conceptualized as the default or background environment rather than the exceptional “gap.” Maybe this depends on the context or legal structure, but I think the relevant semantic discontinuities where play flourishes, our everyday social and cultural experiences, are and should be the norm. (Is the public domain merely a gap in copyright law? Or is copyright law a gap in the public domain?) Baselines matter. If the gap metaphor is still appealing, perhaps it would be better to describe them as gulfs.