Motivation

David’s Paper

I very much enjoyed your piece, which I take to be controversial: the claim that willful infringement penalties should be harsher (insofar as criminal penalties are harsher than punitives) is hardly the party line in patent scholarship. The comparisons to other forms of IP and especially to other countries were very helpful.

My comments here will be more nitty gritty and less systematic than on previous papers.

-A very small point (p.2): Copyrights and patents are not public goods, but the information products they protect are.

-Re: the comparative IP section: The fact that criminal penalties are available in other areas but not patent raises the question of whether these other forms of IP are different in ways relevant to criminal sanctions. I think that, at least for trade secrets and trademarks, they are very different. Trade secret “theft” occurs in one of two ways. Either 1) an outsider trespasses onto the property of the TS owner/hacks into their system or 2) an insider breaks a confidentiality agreement. In either case, there is a clear moral transgression apart from the use of the secret information. In patent infringement cases, however, the patent is publicly disclosed, and the only wrong is the willful use of the patented invention. Similarly, in trademark law, the use of the information (here, a mark) isn’t even what’s really being punished. Counterfeit goods are fraudulent, and the criminal trademark laws are meant to protect consumers from harm, not merely to protect the owners of an information good. A similar argument (for primary harm apart from information use) cannot be made in the patent context, at least not as easily (to my knowledge).

The copyright comparison is probably your best case. Trying to think this one through, the best I can think of is that the relevant distinction is the special value of expression, captured both by the First Amendment and by personality theories of copyright. The idea is that expression is somehow closely tied to personal autonomy and identity, perhaps in ways that inventions are not. On this account, the harm of repeated, willful infringement is both an economic and a moral one. This is a bit more tenuous, but it’s colorable. I think the copyright piece could really benefit from careful attention.

-Re: Criminal sanctioning solution: In a couple of places, I wonder why the solution is criminal sanctions rather than no willful infringement penalties (beyond standard infringement penalties) at all. First, the theme of Part III.B. seems to be that criminal sanctions are easier to impose than punitive damages are. If this is true, I am a bit worried. Criminal sanctions put the harshest coercive force of the state behind the judgment, and I wouldn’t want the criminal track to be the easy one. Second, in Part III.C., the benefit of criminal sanctions over treble damages appears to be that willful infringement will be claimed less frequently. But to the extent that the real goal is to limit willful infringement claims, why not just eliminate willful infringement altogether?

-Re: The risk of criminal liability: Your last point in the current version of the paper is that firms are more likely to seek licenses if criminal liability is a possibility. But couldn’t this lead to lots of dead weight loss? If criminal liability is something awful to be feared, then firms might overprotect themselves, buying licenses even where a use is noninfringing. An analogy might be setting the standard of reasonable care higher in negligence cases: Yes, firms will be more careful. In fact, they will be so careful as to overinvest in precautions, at great social cost.

Mbabazi’s Paper

It is very refreshing to read a paper that digs into an unfamiliar culture. I knew nothing about your subject beforehand. I am afraid to say that I may be less helpful as a result, but if my thoughts are shorter (or less helpful) it does not reflect a lack of interest but of competence.

One the most interesting questions (to me) for your paper in general is this: what is the system in which graffiti is operating? When you talk about intrinsic motivation, you are talking about motivation within a particular system, but not as far as I can tell within society. You seem to be taking the legal backdrop as a given (where other papers have treated laws as interventions). I don’t think this is necessarily the wrong approach, but it’s an interesting one. What would an extrinsic incentive look like in a system that thrives on illegality? Sanctions? Or is it “promotion” within the counter-hegemonic system? I would encourage you to think about what the system is in which intrinsic (and extrinsic?) motivations are operating, and one way to get at this might be to think about extrinsic interventions.

I think that the class has several different approaches to what ideology is, at least as expressed in the papers we’ve read. I think some clarity as to how you are using this term might be helpful. I also wonder (not just for your paper but generally) how ideology fits in to stories about motivation. It seems to me to allow those who act to affirm the correctness of their actions, but it’s not clear that how it affects their motivation in the first place. I think that this is related to a question I had about ideology in your paper: what are the stakes when choosing between the two? Is it merely descriptive accuracy? Are there policy implications?

I hope these comments are helpful, and I apologize for having more to say about the subject with which I have more familiarity. I look forward to our discussion on Tuesday night.

Jon’s Paper

I apologize for not having the time to devote to commenting on your paper tonight that I did on the others Sunday evening. I did enjoy reading it–among other things you’ve confirmed my suspicion that I should read some Raz over the summer (something I had been thinking about). I hope to provide some useful thoughts in seminar, but for now I will echo Erin’s concern about the role of motivational forces in your argument. I think her question is an important one.