Design Law Scholars Roundtable (Notre Dame) part 1

I have just now gotten around to my notes from this excellent roundtable.

Introduction: Mark McKenna & Graeme Dinwoodie
Why do a roundtable like this? Putting together scholarly
discussion for long-term outputs rather than particular works in the short
term. Also developing a reading list/canon, which is particularly useful for
design where there are a lot of different fields involved/don’t need to jump
straight to legal doctrine.
Session 1: What is “Design”?
Introduction: Laura Heymann: IP thinks most of things,
objects, the work; by contrast, designers mostly say that their work is about
solving problems, and experience/interactions. 
Design not as craft but as hypothesis. 
Considerations: User response, inputs—not unidirectional; focus is on
audience not designer. Social, economic, political effects of design: e.g.,
camera film that didn’t work as well on nonwhite skin, algorithms that produce
differential outputs. Standardizing sizes of bricks: standardized to a male
hand, and face masks and crash test dummies were similarly gendered. (Invisible
Women, Caroline Criado Perez.)  Policies
are also designed, e.g. the snow removal policy that is designed to help out
most those who commute in and out, two car trips a day, while the paths for
people who are making multiple small trips on side roads and sidewalks remain
uncleared—gender and age effects.  It’s
easier to drive through 3 inches of snow on a major artery than to push a baby
carriage through 3 inches on a sidewalk, so reversing the priorities helps
equity and decreases health costs. That is design.
Shifting from product to process means attention to what the
process looks like. Design is often “good enough”—the minimum viable
product—the idea is that there will be versions of it.  Moved from “waterfall” process of handing off
the product at each step in the chain . Now the idea is “agile,” breaking down
a project into “sprints,” w/different iterations. Discovery, design, testing,
feedback, repeat, all working at the same time.
Questions for group: what we think about constraints.
Constraints as hampering innovation, versus constraints as a form of spurring
creativity. Second, if design is more about iteration and less about creating a
design for all time that will be in MOMA, how does that cohere w/our focus on
the work and not the process. Third, how do we respond to design that doesn’t
just accommodate behavior but changes it? 
An app that is designed to get you to exercise more/save more money
might influence behavior away from the app. It is both the thing and what the
thing does/how it affects people.
Jessica Silbey: One way to answer “what is design?” is to
ask what designers do. Design as a profession—characterized by education,
principles, ethics. But you could also ask for a history of design: what is
design over time? Art historians/cultural historians: could trace industry
trends and aesthetic patterns, as well as political patterns. We could also
study design semiotically, as a form of aesthetic craft—Bruno Latour talks
about design having characteristics of modesty, a meaning, a hermeuneutics, and
a morality. When you have a designed object, you can interpret its features the
way you might interpret a novel or a poem: what it means/the role it plays in
culture. We could also study design as a social process, institutional
practice—trying to figure out the mechanisms in society that produce design:
economic, political, domestic institutions. That could help w/why design seems
ascendant today. We could also think about doctrinal and statutory rules, maybe
over time/comparatively: we have to talk about why it’s a category of legal
attention in the first place.
Some of these methods are not normative at all. More of a how.
Law cares more about the why. Need to choose the other
frameworks/knowledge systems on which we will rely to justify the treatment in
law—whether that’s art history, sociology, etc. 
W/McKenna, working on ethnography: when designers talk about design,
they say they’re designing experiences not just objects; human-centered design
is the focus of design work, even if designing a washing machine/stove. Minimizing
waste, improving lives, getting inspiration from other things in
life—empathetic design. There is an ethics/view of what good design is, and
that’s a feature of a professional standard. If there is a metric of good
design/bad design, thinking of the law’s role in promoting that would be one
way of justifying the standards.
Chris Buccafusco: could we benefit from thinking about
other, distinguishable concepts? E.g., innovation or creativity or engineering.
W/in institutions (schools, guilds, etc.) differences b/t the kinds of people
who call themselves engineers and those who call themselves
designers—histories, including gendered histories, of this.  Carl Ulrich at Penn has a nice book, free on
his website: Design:
Creation of Artifacts in Society
. His definition: Design is
conceiving/giving form to artifacts that solve problems. So broad a definition
as to be almost meaningless, but allows us to ask interesting questions.  He describes design in stages—designers sense
gaps in users’ experiences. They then define the problem, explore alternatives
to solve it, and select a plan. Any step can be iterative w/in itself and
w/other steps. Very often “users,” both for Ulrich and the law, can mean firms
themselves, not just customers. Or users could be regulators, third party
payors, etc.
Law enters at each stage, not just at the end where there is
an artifact. E.g., law requires certain MPG for fleet of cars. Problems can
also include avoiding upstream IP rights or desire to create downstream IP
rights. Desirable qualities themselves will vary according to different users’
inputs into the design problem. When designers explore alternatives, grammars,
rules, and norms of claiming affect the realms of exploration and the paths of
exploration.  Designs are interactive
w/other designs in society. Disability in design: the creation of
mobile/foldable wheelchair is transformative in some ways but deeply limited in
others; law and society shapes the environment in ways that are responsive to
demands of wheelchair users.
Graeme Dinwoodie: Implicit in discussions: we have a
different understanding of design now than we did in prior stages of history.
What is the value, if there is a value, of looking for something intrinsic
versus looking for what it means to us now. 1920s version: “most advanced yet
acceptable” as measure of design—is that just historically contingent?  Agile design: what prompted that shift from
waterfalling? Have consumers become comfortable w/a product that is in many
respects incomplete?
Design compared to what: Max Planck Institute folks in the
80s tried to distinguish design from marketing, but since the 80s we’ve become
more comfortable merging them.
Design as externally driven: responsive or reactive.
Connected to different justifications for IP: tends to mesh better with
instrumental justifications for IP rather than deontological/expressive ones.
Law entering into different stages of the process: tort and
environmental law, not IP law, in many of the examples. Law is a social force
like any other, not surprising that it enters the design process. IP has very
little to do w/what many designers are doing. They only think of IP when the
lawyers show up (agreement from McKenna on that from research with designers).
Jeanne Fromer: Don Normal, the Design of Everyday Things,
original title The Psychology of Everyday Things: good design tells people how
to use an artifact; users aren’t stupid but there’s a lot of bad design out
there, like doors that look like you should push them but you’re really
supposed to pull. This also goes to the issue of integrating form and function.
Industrial organization point: if you look at companies, you
see designers/design departments in very different places. They can be in
engineering, marketing, design departments—it’s hard to categorize. How a
company is organized can affect what comes out as the final design. Toyota
famously has alternative designs for cars that get handed over to engineers,
who pick the one that works best for them. At Microsoft, Surface/X-box
designers/engineers had very different structures. Surface: the designers were
leading the show. They wanted the hinge to be unseen, and the engineers said
that was impossible, but they ended up doing a lot of engineering innovation at
the prodding of designers. X-box: the engineers ran the show and the designers
were constrained to follow. Overall: Design and its effect only can be assessed
in relation to the whole process, which can differ a lot.
Sarah Burstein: “Design” goes back to 1790s in utility
patents. The industry/marketing has changed, but don’t treat the bullshit as real.
Not that different from other regimes: artists think that they live as artists
and just produce things as spinoffs (compared to Michelangelo who was hired to
paint a chapel and move on). And what we want to encourage in terms of
innovation is similar. Everything that wasn’t “art” or “craft” was called
design. But the term gets in our way—we’ve lumped dissimilar things together
for hundreds of years, and not everything that is, has been, or can be called
design should be treated the same way in law. 
The “professional identity” of designer is new.
Dinwoodie: it was a list of things that rent-seeking
industries in the UK sought and received protection for, and eventually the
list was called “design” (cutlery, pottery, etc.).
McKenna: Whirlpool’s designer they talked to: discussed
workarounds for industrial organization based on personal relationships to get
around constraints on design imposed by structure of organization.
Collaborative team w/different disciplines working together so it doesn’t get
thrown over the wall to the engineers. Even so, designers didn’t lose track of
who was a designer, regardless of where they were in the organization.
Also, extraordinary breadth of what they mean by “artifact,”
which could be a thing but could also be an experience or brand: it’s something
produced by the process. Chicken and egg problem: do we shift to process b/c
the outputs are so broad? 
Problem finding: how do designers know what needs to be
solved? His sense is: designers don’t have a strong sense of that, they just
feel like there’s a problem to be solved.
Heymann: it may depend on whether there’s an existing
backdrop/specific clients for which they’re working. The background may produce
the problems.
McKenna: sometimes the problem is: this isn’t selling
enough. That’s a marketing problem, not a deep human need in the world.
Mark Janis: struck by the magnetism of “designer” now:
everyone wants to be one! Does its breadth deprive it of the ability to be an
organizing principle? In law: the visual appearance of artifacts, a tiny subset
of what we’re kicking around here.
Jerry Reichman: to what extent is functional standardization
of products still a driver of design? He thought that standardization rather
than technical superiority was important w/in any given price range. To what
extent do designers care about aesthetic impact regardless of what
corporate/engineering people are saying?
Silbey: responding to Dinwoodie about problem solving: many
designers we talk to talk about problem finding. Two masters: they have a
client who thinks they have a problem, but also they have a set of
disciplinary/pedagogical goals to uphold as designers. A lot like law: you have
obligations to the law and to the client, and those two things can conflict.
Sometimes those are aesthetic conflicts: they want to design something
optimally beautiful but the client doesn’t want to go to that level. “Just
scary enough” for the client to want to do it. 
Problem finding = they are thinking about a set of standards from their
background/discipline along w/the client’s wants. We have been asking what the
canon of design is, and they very much believe their origins are in art &
architecture even when doing human centered design. They studied drafting, font
design, architecture—even when they’re designing apps. They don’t talk about
articles of manufacture. We haven’t figured out yet when they describe the
ascendancy of design in the 60s and 70s as a pro field, whether that is a
change or shift that is meaningful beyond as an educational model (this is when
design was hived off educationally). 
Introduction of ethnography into their work today is different from
being an artist/architect: studying how people eat in a fast food
restaurant/how they interact w/their computers—they describe that as a new wave
in design that implicates what it means to be a designer.
Role of constraints from law: if what is happening is
ethics/client management/marketing, the idea that anti copying protection will
facilitate professional standards is sort of orthogonal.
Buccafusco: there are lots of designs that come from people
who aren’t pro designers in firms—3D printing, Eric von Hippel, etc.
McKenna: has asked whether anyone who uses design process is
a designer; “designers” tend to be skeptical about that.
Silbey: like photographers! It’s not just someone who takes
a photo. Many were educated before there were design schools; form &
function were integrated in a particular field, such as architecture/car
design—they came out of fields w/a particular utilitarian/aesthetic balance.
Younger designers: their sketching skills are less developed
but what drew them to design school is now the ethnographic elements.
Dinwoodie: surprised by how little of the description has
been about aesthetics given that the law is going to focus on that.
Silbey: evaulation of aesthetics as a driver has been harder
to create standards around.
McKenna: we do hear over & over that their own
evaluations of good design have aesthetic components. Sometimes the problem
they have is an aesthetic problem, so the distinction is not clear; one medical
device designer was frustrated by her inability to spend more time making
things beautiful.
Felicia Caponigri: When/where does design end? Does someone
who puts in a fountain in front of an historic building in its style engage in
design?
Jonathan Masur: design practice as sensing a gap in user
experiences—that could be an aesthetic gap (and thus connected to deontological
motivations/internal drives, contra Dinwoodie). Industrial organization: even
w/in the confines of for profit consumer product firms, you see designers in
different roles w/different ends related to design of product, user experience,
or how the product is marketed. That brings me to the idea of Janis/Burstein
that this is such a big category that it may not cohere in a legally useful
way. Design as process: thinking of the how of design—that is a coherent whole
that we can talk about sociologically as having commonalities across design,
but that’s not how law thinks—law is interested in the what, and also the why,
and also the who (what skills they bring to bear, what background do they
have), rather than the how. Do we think that law is right to engage in this
kind of sectioning and fragmentation? Is there something broader to be said as
design as a process (& its relation to law).
McKenna: relevant to what we talk about when we talk about ©
v. utility patents.
Masur: Right, we can throw around the word innovation in the
same way. Design as a how is potentially coherent; then the Q is how law should
think about that coherent category.
Chris Sprigman: Design as in part the result of increasing
standardization of physical artifacts—that goes to why we engage in this
process. We tend to valorize design but there is probably an optimal level of
design, and we may have too much in some markets. EU design registry: has few
fashion items, but many portable generators. 
He spoke to a guy in a Japanese company: this is a very mature company,
so these things are all about the same regardless of who makes them. So we are
in a commodity market w/price competition. We engage in design to manufacture
desire for a particular producer to price above marginal cost. This is a debate
from 50 years ago about TM: is this socially good? Or is this a
dissipation/transfer of consumer surplus to producers with associated
deadweight loss? This Q pertains to design as well.
Heymann: one change over time is explicitly noticing that
design is a process; another is in thinking about other disciplines’ knowledge
like psychology as relevant. More sympathetic than Sprigman to value of brand
as design: it does produce welfare for at least someone.
Just as © has different meaning for publishers than for
authors, design law may have different meanings to firms than to designers: who
are we doing this for?
Masur: if people are willing to pay for a beautifully
designed generator, we would hope that they’re getting value out of it, at
least as long as there is still the ability to buy a plain vanilla generator.
Sprigman: but it’s in every producer’s interest to engage in
conscious parallelism. Rational choice is a matter of faith; he doesn’t think a
preference is a preference is a preference; some preferences are manufactured.
We should be careful about interfering w/preferences but other people (sellers)
are already interfering with preferences, and we have put the law at their
disposal to do so.
Masur: the Q is whether the user is getting more value,
enjoyment, whatever out of the designed product than they would out of the
standardized commodity.  It’s certainly
true that producers can create desires and that law facilitates it. But the
desire is still real/its satisfaction still makes the person better off. All
this could be said about cars [or novels, Silbey says] as well as
generators. 
Sprigman: yes, but that’s shallow. The law shapes
preferences by creating markets that makes things available. People are
inherently conservative: it’s hard to envision what they don’t have.
Preferences depend on what’s available/what you know. There may be good policy
reasons for the Chicago view to prevail, but it can’t be defended based on what
we know.
Estelle Derclaye: There are engineers who would not call
themselves artists or architects who would still consider themselves designers.
They draw! In Europe, if the appearance of the product has not been the main
concern, we have said that you should use [utility] patent.
Design of processes: that gets to “systems,” but that should
make us think of patent—methods of operation—or even of exclusions from patent
[and from ©].
McKenna: designers we talk to identify an intrinsic motivation
to make things beautiful, but also a recognition that their own sense of what
is beautiful can’t measure success if design is about solving problems, so it
has to be something that others find beautiful.
Mid-point discussants: Ed Lee: We often describe what
lawyers do as problem solving. Does that mean we’re doing the same thing as
design thinking? Human centered design could be called “empathy.” Relevant
goals: usability, nondiscrimination (including in AI).  Something that goes unsaid: designers design
things that are new, whether as problem to be solved or as method for
solving.  The design process is not
necessary for pure copying.  [Or is
it?]  Designers are trying to do
something that is not just a repetition of what others are doing. Not just solving
a problem, then, but solving a problem in a way that hasn’t been done.
Dinwoodie: you’re saying that’s an artistic vision. [I don’t
hear that, necessarily; it might just be a professional norm or self-concept.]
Reichman: we should accept low levels of novelty because
those can still be valuable.
Stacey Dogan: Definition of design: not always what we talk
about in legal context, but goes well beyond it in doctrinal and practical
contexts. We should all be thinking about network design. There is no satisfying
single definition. She’d define it something like deliberately trying to solve
a problem/create a demand.
Thinking critically: designers are often portrayed as
altruistic, trying to solve a problem “for us.” 
But programmers/cryptographers think about the world in terms of adversaries;
they don’t assume that everyone is acting in society’s best interests. We have
been assuming problem solvers for the general good, but there are all sorts of
situations in which designs may not promote overall well being of society. [See
“dark patterns.”]  Bad actors in
antitrust context: 9th Cir. case in which a design/patenting of
biopsy needle gun was made specifically to create barriers to entry, so they
were no longer compatible w/after market replacement parts sold at a lower
cost. Similar concerns w/evergreening pharma patents. Old Microsoft litigation:
Microsoft designed the OS in a way making it virtually impossible to extricate
the browser from the OS, creating barriers to entry. These days, we’re all thinking
about the design of tech in ways that promote addiction. Serve the economic
goals of the firm, but we need to think critically about whether they’re
promoting or disserving social goals. Infinite scroll, autoplay, inducements to
keep posting.
Relation b/t consumer demand and social welfare: difficult
problems we’re only beginning to ID let alone understand. Our laws have been
built on presumption that expressed preferences say something about the value
that products or services have for the people purchasing them. There’s a temporal
aspect to that. Law/gov’t as producer of regulation should pay attention to the
fact that short-term pleasures often don’t translate into medium and long term
well being and can even degrade it.  To
what extent should the law be incentivizing particular types of design and why?
And how should it regulate the iterative process of design as described? To
what extent does/should the law place limits on design, and should those limits
focus on the design itself in isolation as artifact, the intent behind the
design (interesting Q in antitrust), the effects of the design?
Jeanne Fromer: Lawyers like all inclusive definitions, but
that will lead us into a trap here w/broad definitions of design. We do have
some canonical sense of design: we should think about the prototypical
“design/s.”  Household products, devices,
furniture; then we can focus on what the heartland means and also about
borderline categories like systems. The heartland might not be static over
time.
What makes good design? A beautiful chair can be
uncomfortable; would we all agree that was good or bad design? Are there
different theories? Is it about the market deciding? We need a framework for
that to get a sense of the law’s role. 
Designers and consumers might have different answers; different time
horizons would give different answers.
There are different invocations of design w/in different
legal regimes, just as an “is” and not even considering “ought.”  A lot of what law is doing,
explicitly/implicitly, is having a sense of what design is and
lawyers/claimants have to articulate their claims in a particular way for ©,
TM, design patent, utility patent.  What
role if any can IP law have in inclusive design: what we want designers to
think about, given that many of them are not thinking about, e.g., women’s
interests in the design of sidewalks, inclusive sizing. Market alone? Or law, perhaps
including IP?
McKenna: one way of defining design is to ask what design is
not. Copying is not design. Every single designer we’ve talked to has talked
about widespread consumption of precedent across a huge set of areas—furniture designers
don’t just look at furniture. They feel mostly quite free to incorporate lots
of pieces from others, and feel that small changes/small repurposing is enough
to create a new design. Resists the idea of copying, but the line is a narrow one.
B/c he’s been teaching privacy, seems quite obvious that not
all design is socially beneficial. Often used in harmful ways. But the design
is created b/c it fits a need—the companies value it. Like designs meant to
prevent compatibility/interoperability/to create deliberate obsolescence.
Should be obvious that some designs in immediate interest of purchaser do not
promote social welfare. “Persuasive design” is a concept; designer had some
discomfort b/c they had a self-concept of solving problems rather than creating
them.
Sprigman: though that’s a story they’re telling themselves.
McKenna: and yet they believe it; they think they have
lines, though you might draw them elsewhere.
Reichman: article 3(d) of Indian law can deal w/evergreening—expressly
precludes evergreening. We should adopt that. European unregistered design right
of 3 years is the most brilliant solution. 
There’s a relation b/t design and appropriation art.
Dinwoodie: Law is more normative than descriptive. System
has to be workable at some generalizable level, which may interfere w/our desire
to be granular about which designs are good/bad for society.
Heymann: similar issues arise in ©. Maybe it’s
tort/administrative law that decides what’s good.
Dogan: don’t think about good/bad categorically, but limits
on things like scope. Those are designed to limit the adverse effects of the
regime, and we can use them here.
Ansgar Ohly: Similar debate in patent law about
environmentally friendly/unfriendly innovations. Could leave it to
market/extralegal factors like designers’ beliefs about the acceptability of
copying.
Buccafusco: search, experience, and credence qualities as
useful ways to think about design. Visual characteristics are often search
goods, but value often derives from experience over time. And w/credence
qualities we may not know at all. If we think that search is king, markets are
likely to do well and supply side rules like IP are good. But to the extent
that experience and credence matter, demand side regulations may do better at
maximizing those values. Copying: will be important to think about how
audiences think about levels of abstraction. Experts may see more differences
than nonexperts. His students tend to see more similarities for downmarket
copiers (Sketchers copying Stan Smith) than upmarket (Gucci copying Stan
Smith).
Burstein: Designers may well object to copying of ideas and
think that’s what the relevant level of abstraction is.
Derclaye: in EU, we have morality embedded in all regimes
except ©. Possibility of excluding sexist/racist design from protection. 
Ohly: judges may have different senses of morality from
designers/general population. Successful movie in Germany: using Fuck Goethe in
the title. General Court decided the TM was against public morality.
Derclaye: I agree—the law should be based on a criterion
other than leaving it to the judge. Empirical/scientific approach to public
perception.
Silbey: maybe some parts of design should be more common law
based, evolutionary in response to some of these concerns. Separately: design
is a process, but designers also describe design as a story; a design has a
narrative behind it, whether it’s the precedent of the things that have been
made or a narrative connecting the pieces of brand identity. Design is intimately
tied to self-justificatory story for how you get from A to B. Is that different
from how © owners talk about © and patentees talk about patents? There are
often mythical origin stories; maybe the design story’s uniqueness is the way
it talks about solving a problem based on things that came before.
Sprigman: notion of authenticity is noticeable in designers’
talk, but not sure it’s unique.
Silbey: brand requires a cohesive narrative, but a lot of
designed things are described in narrative terms without brand.
Heymann: idea of customer journey is also relevant. Compare:
audience experience in ©.
Silbey: yes, but in design the user/customer is always part
of the story. A stock story of how a novel was created wouldn’t include the audience,
and a design would.
Derclaye: if we recognize artistic design then we raise the
issue of moral rights. Architecture: France limits the ability of the designer
to prevent the alteration of the building; the users’ interests will come into
moral rights in different ways than in traditional nonutilitarian artistic
works.
McKenna: the legal Qs we ask depend on the systems into
which we’ve sorted design: design patent, ©, TM. But if design doesn’t sort
conventionally into those categories on their own terms, why are those the
right categories/constraints? We romanticize designers in a way we don’t
romanticize plumbers, but we have to figure out who fits in the category
designer and why. When we get to doctrine, we should live with the messiness of
these definitions and not just jump straight to separability. Lots of stuff
from other areas fits the definition of design, and do we really want to corral
that all into design law? A lot of the rules we have come from very particular
subject matter that lawmakers were trying to cover and not from some attempt to
define what design was in general.

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