Motivation

Mbabazi:

I really enjoyed reading your paper; the examination of how motivational structures of graffiti artists have evolved is fascinating.

I was in Lisbon last month, and it is completely covered with graffiti. Big, prominent statutes in touristy parts of town have graffiti all over them. See http://forcedmigrants.blogspot.com/2008/03/lisbon-city-of-graffiti.html. One neighborhood, Barrio Alto, which is a center for bohemian/youth culture in Lisbon, is completely covered with graffiti. Every single wall and door has tags, stencils, and/or murals on it. It’s obvious that nobody spends money to clean up graffiti there, and it seems that part of the reason is that it’s part of the ambience, and it’s acquired a certain degree of legitimacy and value.

What is the impact of stenciling on graffiti? Stencils alter productive forces in graffiti by allowing greater standardization of work product and also, I assume, making the actual act of vandalism quicker (you just have to apply the stencil and spray, not draw with paint) and therefore making it less likely that the artist will be caught in the act. How do stencilers fit into the broader idea of graffiti, and what is their relationship to other writers, etc.?

It seems that race interacts with graffiti in important ways, at least in the United States. Is there, to any extent, a belief among graffiti artists that current distributions of property are rooted in institutionalized racism and that, therefore, they are illegitimate and the property rights of the owners of their canvases are illegitimate?

Steve:

I enjoyed how carefully written and well done this paper is.

I don’t know that I agree that “the natural baseline is the public domain.” I think your arguments support the conclusion that the historical baseline in the Anglo-American legal system is the public domain, but I don’t see that a broader conclusion follows.

Economic analysis of knowledge production can be prodded and reframed to support pretty much any system of allocation for intellectual property rights. To push back on your argument, it seems that it might, in this respect, be similar to empowering the individual, connecting to a community, and maintaining fairness in the system. I think I could probably deploy fairness, connection, and empowerment as arguments for a default rule of exclusive rights plus injunctions instead of compulsory licensing. For instance: “I feel empowered by my ability to set the price for my knowledge myself. It makes me an effective participant in the system of knowledge production instead of a pawn whose knowledge can be taken and used for anything without me agreeing to it. It also makes me feel a sense of connection, because it lets me rest assured that I can trust other knowledge workers not to undermine the security of my empowerment. And it lets me reciprocate with other actors: they pay my price, I pay theirs. It also makes me feel fairly treated. What’s mine is mine, and it would be unfair to let other people decide to take it away.” So, the solutions suggested by these three mechanisms are hardly clear. Maybe some arguments seem more persuasive than others, but, according to my story, really sorting out what legal system will best promote these interests requires making tough decisions about what particular (not abstract) interests are worth promoting.

David:

You note that the “probability of a wrongful [criminal] conviction for willful patent infringement will likely be low.” But you also note that “criminal PROSECUTION has potentially devastating effects on a company’s customer loyalty, stock price, or both.” Just being formally charged with a crime, before many procedural safeguards come into play, can be devastating for a company. (e.g. Arthur Andersen). Would your proposal end up simply vastly increasing the discretionary power of prosecutors? (You mention the role of prosecutorial discretion in Japan.)

When I think about criminal punishment, I think about the expression of moral outrage. Saying something is criminally wrong seems, typically, to be a sort of expressive moral act that often invokes the language of rights. If I were a legislator, I would be very uncomfortable criminalizing something just on the basis of a cost-benefit study without an extensive consideration of I thought the activity I was looking at was really one warranting moral opprobrium. Would this change your analysis of the propriety of criminal penalties?

If people are afraid of going to jail will they be less likely to try out new ideas?