Motivation

Find attached a final-ish version of my paper for the seminar. If anyone has further comments, I would be happy to hear them. http://blogs.law.harvard.edu/motivation/files/2008/06/gingerich060708.doc

hey all– quality, thought-provoking papers, to a one. i’ve written comments on the drafts themselves; don’t let me forget to give these to you after class today.

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?

David

Thanks for pushing me to think about IP issues in a different light. Intuitively, I would have thought criminal sanctions would harm a sense of community among inventors. I think you are right that the number of allegations of willful infringement would be curtailed. However, I’m not sure why companies would not simply use threats of criminal allegations to reach a favorable settlement rather than willingly disarm (even in a MAD scenario). There may be ways to design the system so as to encourage disarmament.

Also, doesn’t the idea of a criminally culpable infringer mirror the concept of a sole inventor?

Steven

I really enjoyed reading your paper – I thought it was very insightful and clear. Reading your essay made me think of the article we read for our first class on the different motivations of scientists. I think that your argument applies nicely to the motivations of inventors and artists but how does intrinsic motivation, shaped by a republican ethos, attract the people who finance their work? Perhaps a system based on your principles would increase the number of innovators or improve the quality of their work to such a degree that the selfish, rational investor will also benefit.

Would trade secrets have to be abolished in order to ensure information enters a robust republican public domain? I would guess it would need to be abolished since it is even more harmful to the idea of maintaining a community than conventional IP regimes.

Jonathan

Forgive my lack of comments on your paper. I know very little about its subject and I haven’t been able to really distill the questions that I have. Hopefully I’ll be able to contribute more in class.

TO ALL

Thank you so much for the comments on my draft! See you tonight! 

{Just a couple of quick notes for now — hopefully I will be able to come back and add to this entry before class today.}

Jonathan: I’m not sure it’s logically necessary, but aesthetically I would like an example — some controversial, polarizing issue — that you can trace through the paper, providing a grounding for some of the points you make about framing and representation.

David: You had me convinced with your Mutually Assured Destruction argument for why people would be less likely to allege willfulness, but after reading the other comments, I can see how this part of your paper may need to be fleshed out a bit more. I liked what you said about patent infringement and the attendant litigation becoming a “cost of doing business”, but just as it is apparent that this will not be true of all companies (either they will vary in their own capabilities to engage in this practice, or they will vary in their relationships to each other), this might also have implications for the M.A.D. piece. Will it always work to lessen the likelihood of alleging willfulness, or only between companies that have a certain relationship toward each other?

Jonathan,

My head is swimming with all the interesting information in your paper. I certainly came away with a stronger understanding of deliberation. However, I was wondering about the strength of some of your claims. You treat preferences as endogenous to politics – shaped by both the act of deliberation and deliberative procedures. But keep going back in time, and you will never reach some “neutral” starting point or a baseline, as you say. Why shouldn’t the same effect hold true for all political decision making, not just those that are the products of deliberation? If all decision making has the same problem, then deliberation may be no less legitimate than other forms of decision making. In fact, there may be many reasons to believe that it is more legitimate – for example, if it allows for the opportunity for manipulations and distortions to be revealed, which may lead them to lose some of their force. From the perspective of the law then, what is the reason to stop treating deliberation as legitimate in some way?

Steve,

Interesting paper. The first couple parts of the paper some strong conceptual points. I had a couple questions about the interventions that you suggest. First, I was wondering how a default rule of compulsory licensing with a fee would send a message of connectedness. Wouldn’t the introduction of money into the relationship and more importantly the coercive aspect of the relationship destroy the sense of connectedness? My second question is about the proposal to move the public domains into smaller communities. If the public domain is open to all, how can it be moved to a smaller scale without excluding people – which would seem counter to the ethos?

David,

I found the central normative claim of your paper quite provocative. You take a central point in this course – that fewer external sanctions can produce more cooperation under the right circumstances – and spin it on its head. Your paper claims instead that greater external sanctions – criminal instead of civil – should produce more cooperation. A couple questions. How do we know that criminal sanctions would not chill innovation? Moreover, why are you sure that companies would not file complaints of willful infringement with the Department of Justice at the same rate they allege it in complaints? They can get the government to pick up the cost of doing the investigating and prosecuting, and all they have to do is file a complaint. It seems like a great way to pass more of the cost onto the state and not the private parties.

Mbabazi,

Really interesting psychological and ideological insights into graffiti artists. I was wondering how approved and commissioned murals fit into the picture. At Trader Joe’s on Memorial Ave there is a big mural of Cambridge and Cambridge residents. It is clearly meant to portray the store as part of that community. Other times I have seen graffiti that was not approved or commissioned but that looked attractive enough that community members viewed it approvingly. Now that graffiti art has been around for several decades, how have these expressions of approval from outside the graffiti subcultures affected the motivations of graffiti artists?

Mbabazi, you might find this interesting.

http://www.nypost.com/seven/04212008/news/regionalnews/urban_scrawl_is_spreading_in_city_107387.htm

Jon – I agree with Erin that your article and Jason’s article are each unique and creative in their own way. I think it would be helpful to acknowledge that the decision to deliberate is not a binary on/off switch (whereas voting is) (you do this a bit in the text accompanying FN 147 and elsewhere). Juries and town halls (both which deliberate) are made up of individual members, each which is different in what he or she believes, but also in his or her style of deliberation, and most importantly, in his or her access to knowledge/information.
You mention that in a deliberation about a policy and its impact on GDP (pg. 24), someone who doesn’t feel strongly about an issue is more likely to be open to persuasion by other group members. I think it would help if you expanded this section here to explain the various profiles of deliberators (I think this would also help tie into your legitimacy/authority discussion earlier):
– those who don’t know anything about the economy (GDP) or the policy, don’t care either way, and are open to persuasion
– those who don’t know anything about the economy (GDP) or the policy, think the issue is probably important, and are open to persuasion
– those who don’t know anything about the economy (GDP) or the policy, already have pre-formed beliefs, and are not open to persuasion
And the list goes on. Take the case of the jury for example. Imagine a jury panel in a medical malpractice case where one of the jurors is a highly-respected and knowledgeable physician. Let’s also say that the rest of the jurors defer to his judgment (because they trust it more than their own), though they still engage in the issues and pay attention during trial. How is this any different from a jury panel who renders the same verdict, but is composed of a panel of jurors that have each equally had their opinions taken into consideration, assuming none of these jurors has any medical knowledge?

Steven – Great article. I really liked reading an article touching on IP (like mine), but taking a different perspective. My comments here mainly focus on your historical arguments supporting the natural baseline as the public domain. Recent scholarship has undermined the long-held assertion that Thomas Jefferson and others viewed information as necessarily belonging in the public domain. See, in particular, Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 S. Cal. L. Rev. 993, 998-1046 (2006). In particular, the article challenges the claim by several individuals (including Richard Stallman, Mark Lemley, Neil Netanel, Larry Lessig, etc.) that the use of the term “intellectual property”, or the propertization of copyright (in the form of DMCA, etc.), is a new phenomenon. Articles like this one may conflict with your Liberal Argument (section I.B.), so it may be worthwhile to address. Hughes’ major points: ” (1) the claim that copyright has only recently been “intellectual property” is a much weaker proposition factually than as presented [by other writers]; and (2) regardless, the point is not very useful to their arguments, given that copyright has been recognized as “property” for 200 or more years.” And on Jefferson: “It is widely acknowledged that Jefferson was not at the Constitutional Convention. He was a “Founding Father” who was not a “Framer”–this, by itself, should largely curtail the use of Jefferson as “a reliable source of the meaning of Article I of the Constitution.” Indeed historians for the period agree that Jefferson had very little influence over the Convention – he was three thousand miles away and “each letter he wrote or received took six to eight weeks to cross the Atlantic.”” He also goes on to say how Jefferson’s views were often fluid and not one-sided as they usually quoted to be.
In any event, this issue doesn’t touch upon the great majority of your article, and the historical perspective may not even be necessary to make your point about the public domain.

Mbabazi – Growing up in LA, I was always curious to learn more about the great murals around the city, so I found the article very interesting. My comment regards Alternative Solution B.i. (Appealing to and strengthening the values in grafitti culture that coincide with mainstream society and leverage the protection of the law to encourage law-abiding behavior). To the extent that graffiti artists write to stake their “claim” over communities, I’m not sure whether it will be easy convince the public that they should accept graffiti and not perceive it “as a threat to the social order”. I think it would extremely difficult to convince mainstream society that they should provide copyright protection for graffiti that they think believe is part of a larger threat to their sense of safety. At least in low-income communities, I would imagine that graffiti is part of a larger problem of intimidation (and violence? not sure about this one) that these graffiti artists exert on society. Obviously, this isn’t the case in all communities, but I’d imagine that in at least some societies, bringing together graffiti culture and mainstream culture will be very difficult.

Another very interesting round of papers (and, Jon, I think that yours is quite a bit different in focus from Jason’s). I wrote comments by hand this round because I find it motivates me to read more carefully. However, a few broad questions for folks:

Jon – How, ultimately, will the motivational elements tie into your larger argument? Are they merely an additional explanation for the group psychological forces you discuss or do you intend to use them to push or manipulate deliberations?
How does neutrality factor into legitimacy?

Mbabazi – It would be helpful to explain early on in your paper if there is a distinction between graffiti writers and graffiti artists . How does “crowding out” influence some of the interventions you suggest?

Steven – Could you talk more about how fairness works in the republican model and/or as a frame for your interventions? I thought your theoretical framework was great, and this was the area I was least clear on.

David – You mention it a little, and it may come up more in your Japanese section, but how does compulsory licensing compare as an alternative to the treble damages and criminal penalties and why is it a less effective form of government intervention? (Is this the crowding out of large, paradigm shifting inventions?)

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.