Third Session: Communities and Creativity
Rebecca Tushnet: Silbey’s choice of subjects are those who are the targets of IP law: inventors, artists, various types of intermediary facilitators like lawyers. They are very important. (Unsurprisingly, they are not utility monsters, such as you might find by examining billionaires; they want enough but they also want to leave as good for others.)
I want to talk about who’s not in these stories. Jordan Ellenberg’s book on math, How Not to Be Wrong, tells the story of the military trying to figure out where to armor their warplanes for greatest effect at least weight. They saw all the bombers coming back from runs with lots of holes in their wings and relatively few in their engines. Lesson: Armor the wings better, right? No! Armor the engines, because assuming a normal distribution of bullet strikes, the evidence shows that an engine with more than a few holes in it isn’t going to make it back.
Who’s not making it back? Interviewee Ted, in house counsel for bioengineering company, says: “the most successful inventors here are the people who are constantly looking for an edge, and looking at how to buck the system…. Always looking to game the system or something like that…. They were probably horrible juvenile delinquents in their youth.” In an age of school to prison pipelines for poor and brown Americans, that’s a very charged story.
White people–especially white men –can afford to be disruptive. Consider Kate Losse’s article, The Unbearable Whiteness of Breaking Things:
What Stanford does not teach young white men …, in the course of teaching them about startups, is that everything they are being taught—about breaking rules, taking risks, and not asking for permission—works especially well for them, and often only for them, because of who they are, what they look like, and all the associations their appearance does and does not carry. On University Avenue, white men who break things look … “cute”, not delinquent or scary, and this is why privileged young men are brought to Palo Alto in droves to learn and practice the business of what Facebook calls “breaking things”. At every turn this breaking of things is celebrated and encouraged. If you’re not breaking things in Palo Alto, you’re not doing your job.
…unless you’re not a young white man.
As Losse points out, the consequences of moving fast and breaking things are, for other groups, likely to be unpleasant and possibly lethal. See also Jen Dziura, When “Life Hacking” is Really White Privilege.
This is not a criticism of Silbey: she went to where the creative folks making a living were. And If you’re lucky enough to earn a living from your art, you’re probably white, to quote one of a number of articles about a report by artists analyzing Census data showing that nearly four out of every five people who make a living in the arts in the US are white.
Aside from differential risks of taking risks, what else may be going on? Silbey identifies two features of ongoing creative work: (1) hard work and labor, and (2) autonomous time and personal space. Who has those latter things? Who doesn’t? Sometimes the interviewees describe taking more lucrative other jobs to make ends meet, which apparently could always be had, jobs that still left time and energy over for art. Where are the other origin stories, of people who didn’t have that time and money but made art anyway? Silbey discusses Virginia Woolf’s Room of One’s Own, but only as an individual aspiration, necessary to creativity but not structurally there for everyone.
The interaction between the individual and the community also highlighted for me the importance of communities of artists who were listening when each other spoke—and the lost histories of female artists, the women who have been forgotten—and I mean that in a very active sense—so that women don’t know they’re working within a tradition, as Joanna Russ sets out in How to Suppress Women’s Writing. Without that community, it’s harder to survive as an artist.
If reputation is important and law isn’t, that also raises important distributional questions. Silbey discusses reputation as identity, as social glue, and as form of expression and self-representation: but some people have spoiled identities, to use Erving Goffman’s term. Reputation and misattribution: if women’s contributions are perceived as less important, if white artists become popular with black styles, then the reputation economy won’t work the way we want it to. Who gets to trust that they won’t be misread or read out of the story? Might be useful to bring in critical race theory discourses about why people with less structural power might prefer formalized rules, from which deviations can be more clearly identified and fought against.
Finally, who are the people against whom these creators construct themselves? Marketing professional: “We are different than other companies, where we don’t say, ‘All right, now we own your property.’ We partner with them …. [I]t’s an ethical thing for us…. [I]t’s their baby, it’s their child, and we don’t believe in taking it away from them.” Who does? Whose children are sold into metaphorical slavery, and who’s doing the buying?
Side comment: book suggests TM/brand management is key concern, but all we want to talk about is copyright/patent. Why is that?
Torie Bosch: John Scalzi’s Lock-In, sf detective novel in which a number of people have lock-in syndrome: can’t move, can talk; those who can afford it use robots to move around. Scalzi wrote Unlocked, a short companion work filling in backstory. Publisher behind these: Tor, fascinating case study. (Owned by Macmillan itself owned by Holtzbrinck.) Most successful sf imprint. Sell books without DRM (after an initial failed experiment w/that, which Holtzbrinck shut down). Publisher continues to go after “pirates.” After they went DRM-free, no discernable increase in piracy. Publisher says: For their readership, essential and fair: close-knit community w/huge online presence, and closer fan-pro contact; fans very upset by DRM.
Tor.com: focused on novella-length works. Clever branding. Published first five chapters of Lock-in and made Unlocked free ($1.99 as ebook). One of the interviewees in The Eureka Myth creates multimedia platforms that allow franchises to create ecosystems allowing fans to contribute. Way to get and give value.
Peter DiCola: Feedback loops in creative process, relation between law and creators/inventors. “Work makes work”: interviewee says that doing the work itself shows where the work should go. Perceptions of law shape behavior with then shapes law. Preference for the sake of choice and preference for the sake of welfare are two different things—but these narratives suggest that creators have preferences, make choices, decide how well off they are, may change their preferences.
Process: process does work through the tangible. At every point the process does leave tangible traces. But a greater emphasis on the physicality of work, the time and space it takes, is important. Maybe quality of work experience is what we’re trying to maximize: maybe there’s something special about being a full-time musician that we want to be available to some people. IP might enable that.
Utilitarian story isn’t one story, it’s a family; you can alter the calculus to take into account lots of things/preferences. Can we tell a better incentive story if there is one to be made?
Feedback loop idea is also useful for talking about under and overenforcement. People react to and play with the boundaries of IP law, making it a moving target.
Silbey: Publishers claimed that primary revenue driver was TM/reputation. Recognize that they’ll be pirated, but cared more about TM than textbook. Taking DRM off might not matter if people want to buy it from this publisher rather than another. (Presumably it also matters that school districts largely would prefer not to buy unauthorized copies.)
Loren: Multimedia guy: people don’t want to watch Shawshank Redemption on their phone, but they will read ancillary content like the story of Andy’s trial; textbook publisher now making its money on test sheets etc. Did it happen because of the shifting platform or because of IP? She thinks it’s really the shifting platform, not IP-driven.
McKenna: relates to Q of how you structure the way you want to make money. Add-ons may be more attractive when you’re less likely to make money on the sale of the core thing. Who decides how that business is structured? Even in biosciences, different models of service/product.
RT: Note that ultimately it’s the consumer who decides how the business is structured. You can have exclusive rights and consumers can stay away in droves. McKenna: it’s a dialogue: which package the business offers, or its choice set, can be structured by law. RT: sure, but careful of rhetoric that firm has the “right” to choose its own business model.
Beebe: back to survivors. How do you study the ones who failed?
Silbey: there are stars in this dataset and then there are people who make a living; several people in the dataset identify as artists/inventors but haven’t yet made a living from it. Been thinking about if you were going to form communities to support work that isn’t made sustainably now, they need time and space. We don’t have community centers around our nation that provide innovation labs, kilns, craft rooms, access to computers. Colleen Chien says mayors can do this.
Beebe: Is that progress if the artist is enjoying herself but not disseminating? All aesthetic experience as craft, fighting the art/craft divide and looking for aesthetic experiences.
McKenna: infrastructure for creation: we could just have art in schools, as we used to. We tend to think about how to get stuff out of fully formed people, but we should talk about infrastructure.
Silbey: You do need communities to survive. Space is finding people who are doing things you’re doing and are not being told to do it in school but are choosing it and finding validation.
DiCola: Most IP academics/IP policy folks have stopped coming to the Future of Music conference; but people from HUD and Dep’t of Education come because they’re interested in this question—not about “cool” cities, but deeper policies. One program: pilot program in schools to get musicians and artists teaching – another program allows them to work as musicians by working in the schools.
Said: interesting to track people w/artistic aspirations from adolescence.
Silbey: people who weren’t making a living didn’t perceive themselves as failures, just on the way to success. Do people who disband bands perceive themselves as failures? Award winning photographer left the industry and works in a family business because he was disgusted w/how he was treated.
Cohen: Diversity in people who don’t support themselves with art. Photographers have “photo salon” once a month, with juried shows allowing people to build reputation, and at the highest levels you might be carried by a gallery. Worries about firm distinctions between survivors and “failures”—salon has everyone from the very new to the expert; take stock of the whole. State-funded support for the arts in Maryland is fairly racially diverse.
Silbey: RT was talking about the problem of inequitable distribution of self-fulfillment. There are people in the study who by many external standards would be “failures” but they don’t consider themselves to be failures at all. What are we measuring? Who wishes they could live an authorial life but dies unfulfilled? Who is not getting the chance to develop in those ways?
Golden: some communities may be more likely to arise than others. Story: Grad student in physics who said “I really like being a grad student in physics. It’s like being part of an all-male club.” Both explicit and implicit bias. How we should be assigning value to work.
RT: I don’t support the survivor/failure binary either. Nor am I really interested in personal satisfaction w/one’s own work as such. (Many pro authors would flunk that test.) I wasn’t really talking about people who go to photo salon, but the people who got discouraged or never got started. Who learns that experimentation might get you arrested, harassed or killed? (1) Of course amateur work is not failure! I kind of have a thing about that. (2) We often valorize survival when it’s not the result of personal factors or even moral luck but just luck.
DiCola: superstars/winner take all markets. Did anyone talk about being stuck in such a market? No one can name the second best violinist in the world even though Yo-Yo Ma is probably not 100x better than that person.
Silbey: they talk about randomness but not that.
DiCola: What’s bad about winner take all markets? One claim: too many people compete for the big payoff. Instead of basketball or music, we need more engineers. But why would an economist be confident in saying that?
Silbey: agent says “it’s my job to help my clients make money, and I’ll do that however I can.” Even her perception, w/many big and little clients, is that she gets them enough. Some get a lot, and she can’t explain why, and others don’t get as much as she thought they would, but there’s not a lot of winner take all discussion.
Laura Murray: how people judge their own success: peer recognition is a big deal both for artists and grant-making authorities. That can be turned into cash in various ways, direct and indirect. Some definitions also say you’re a pro if you spend more time on art than on other things, but that doesn’t work for a lot of artists. If people aspired to do that, or an aspiration to make money, could consider them pros. Not always about paying the rent. Some were privileged and had support from a spouse or other, but they wanted money as a sense of achievement/making people take you seriously. Complicated semiotics. Others said that being on the cutting edge made you a pro; many were invested in distinguishing themselves from hobbyists even if they hadn’t made money recently or ever. These communities do make distinctions; partly a function of the way that the arts are so little valued—a way of trying to get taken seriously and get recognition of expertise.
Loren: in criminal area, Head Start is great way to prevent crime: invest early, not late. Same here.
Drassinower: the woman in Silbey’s interviews who didn’t try to publish her work: if we think about process as what matters, and not result, then whether this becomes publicly available is a result-oriented process. If you don’t have a result-oriented conception, the woman is just doing her process. If we want to say that at the heart of progress there’s some inherent respect for the process, then respecting the dignity of her process is to let her not publish. Right of first publication! Key element of progress which requires respect for the dignity of the author in at least this way.
Silbey: that same interviewee said she needed to write every day the way some people need to exercise.
Drassinower: survivors are not IP problems but social/political problem—how do we distribute the possibilities for self-fulfillment equitably. Not sure IP is the vehicle for solving the problem; they are rights of exclusion.
RT: but if your theory built on survivors is wrong, then you won’t get the results you want when you write the law. That’s the point of talking about the airplanes: if you theorize about what made your survivors survive, you may make mistakes. Attribution is an example. Current mechanisms for attributing authorship disadvantage women/female roles, for example; so changing the rules won’t necessarily do what you want.
DiCola: Mechanism: music is an industry built on copyright, and its gatekeepers put 90% men on stage at Pitchfork. Then the teen girls in the crowd don’t see themselves on stage, and that plays a role in what happens next.
Drassinower: I wouldn’t start w/IP; this would be tinkering. Counterproductive to focus on social inequality from IP standpoint?
RT: I’m not saying we can use IP to fix inequality. Rather, I’m saying if our theory is built on what gets currently successful groups to produce IP, then changing the rules in ways we think will encourage more creativity may not do so, like armoring the wings of the airplane. (Or, you know, extending the term of copyright.)
Said: if “survivor” has a utility as a concept, we should also frame the problem of silence around the people whose voices aren’t heard.
Swanson: European IP Soc.—pilloried by economists when she suggested that IP systems were gendered and discriminatory; they said that JK Rowling was making plenty of money. But: If IP matters so little in these creators’ lives, am I wasting my time thinking so much about IP?
McKenna: innovation beyond IP—trying to reframe the issue to include lots of things we traditionally don’t think of as relevant.
Drassinower: really hard to grow up in Latin America and think of copyright as a basic problem. We want to think in a more disciplined way about the role of IP in society at large. Indeterminacy of progress is part of the problem; IP can’t be the engine of progress in every direction, though Constitution says science and art. In the mode of strategies, IP is less likely candidate for a big mover.
Loren: we don’t know what we want: “more.” “Progress.” How do you know what you want when you don’t have it? So instead we let the market tell us.
[Catharine MacKinnon’s retelling of John Stuart Mill is all about this: what would we be like if we were free? There are things you can do to find out, and in © they’d center around derivative works.]
Cohen: platonic backhand, you clear away all the mess and simplify; platonic forehand: having extrapolated causality from artificially simplified dataset, you offer normative prescriptions. The backhand is not normative. The problem w/law is that we have melded legal realism with positivism with law & economics: technocratic social planning. Silbey’s book discredits the platonic backhand—have to go and talk to people, not just tell a causality story. But when somebody does that, we have to figure out what to talk about.