The Moth and Other Tales of Authorship

I’ve been pressed for time these past several months. I became a mom for a second time, and with the second child, life became more than doubly busy. One of the first things to go in order to make space for the new baby was almost all leisure reading. I haven’t even opened a novel since she was born; I have a stack of my favorite magazines and reviews in strategic places around the house, but most remain unread; and I have an electronic email folder of unread emails with attached articles labeled “to read.”

The Moth comes to the rescue. A friend recently introduced me to The Moth, a storytelling stage and website. Most stories (all true, purportedly) are refreshingly funny, insightful and well-crafted. And most stories are no more than fifteen minutes long. I upload them to my IPOD and listen to them on my commute home. These short stories do not provide the deeply engaging experience one gets from reading a good novel, but they are nonetheless satisfying in a similar fashion. They bring to life other people and events with experiences entirely different from your own that nonetheless refocus your thoughts.

In listening to Malcolm Gladwell’s story about the beginning of his journalistic career and the contest he had with a colleague to insert a certain phrase into the pages of the newspaper as often as possible (a phrase such as “perverse and often baffling”), I had a new appreciation for the role of authorship in journalism. Indeed, on that particular commute home, I thought about authorship and authors a lot. I thought about how my older daughter sits and “writes” (she is only four) and tells me “this is my work.” I thought about the many theoretical and experimental scientists, whose academic norm is to co-author articles, which articles are written by the dozens in a short span of time and are secondary in importance to the data they generate in their experiments. I thought about judicial opinions that are written by law clerks. I thought about the star-footnote at the bottom of law review articles that acknowledge the contribution of colleagues and friends, and then include the disclaimer “any errors are my own.” I thought about how many people have spoken to me about Malcolm Gladwell’s article in the New Yorker about innovation (which I have yet to finish) and how authors, like Malcolm Gladwell, become famous public intellectuals permeating so many different social and academic settings. I thought about how, even in the Internet Age, books (a traditional vehicle for authorship) matter. I thought about how the assertion of authorship is a complex, social act, the meaning of which is elusive and depends on the specific writing context.

And this may be an obvious conclusion to draw – but I had a relatively short commute and didn’t have much more time to think deeply about whether I was being profound or banal. I was nearing the house and I was going to have to put away my IPOD and devote my time to parenting rather than thinking more about how, it seems, writing creates a community rather than the reverse.

As I now sit with a bit more time (albeit right now stealing time away from my research and writing rather than from my family), I wonder how obvious this insight actually is — at least from the standpoint of law. We tend to say that a community (or a person) creates a writing. This is one of the central tenets of copyright law and, if broadened to include invention or innovation, is central to intellectual property law generally. (I have elsewhere called this one of the origin myths of intellectual property.) But, of course, constitutions are constitutive of communities – they birth them anew. And many novelists or essayists will say, “I don’t know what I think or what I want to say until I write it down,” strongly suggesting that written discourse shapes their thoughts (and therefore themselves). How would this insight – that a community’s writing creates the community rather than vice versa (be it the journalism community, the juridical community, etc.) – change our view of intellectual property rights? I’m going to have to think more about this on the next commute home … but then I’m just dying to listen to the next Moth podcast.

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6 Responses

  1. A.J. Sutter says:

    Jessica, do you read French? If so, you might read some of the work of André Gorz, a philosopher who was a leading French intellectual — friend and colleague of Sartre, a founder of news weekly Le nouvel observateur, etc. — until his death last year at age 84.

    Gorz was very much concerned with issues of community, partly through the influence of another friend of his since the 1970s, Ivan Ilich. In recent years, he was linked with a movement known in France as décroissance (in Italy as decrescità), which favors nurturing the values of community and rejecting the values of sustained economic growth, to oversimplify greatly. Despite his age, he was also a big fan of the open source and “fabbing” movements. His analysis of intellectual property, particularly in his books “L’immaterial” (Éditions Galilée 2003) and the posthumous “Écologica” (Éditions Galilée 2008), is quite insightful — and entirely unlike the analyses one will find on SSRN. I hadn’t read any of Gorz’s work until this year, but I’ve been an IP transactional practitioner for more than 20 years (with a brief period of patent prosecution as well), and I was very impressed by his perspective.

    For more on the community theme, you might also check out Ivan Ilich’s “Tools for Conviviality,” albeit that it doesn’t discuss IP directly. However, it was a significant influence on a very IP-centric book by Janet Hope, “Biobazaar: the Open Source Revolution and Biotechnology” (Harvard UP 2008). Hope’s book is no substitute for Gorz, though; among other issues with it, her concept of community is limited mainly to life science researchers.

  2. Jessica Silbey says:

    This is helpful. Thanks. I do not know Gorz but do read French and will look him up. His writing, as well as Ilich’s, sounds relevant to some of my new work on IP, connecting the open source movement with feminism. Thanks for the tip.

  3. re: “In listening to Malcolm Gladwell’s story about the beginning of his journalistic career and the contest he had with a colleague to insert a certain phrase into the pages of the newspaper as often as possible (a phrase such as “perverse and often baffling”), I had a new appreciation for the role of authorship in journalism.”

    Actually, you should have had a new appreciation for fiction. Gladwell made it all up, as Jack Shafer sleuthed. There’s nothing wrong with making up a story, but Shafer can’t fathom why most readers have been accepting it as true.

    re: “that a community’s writing creates the community rather than vice versa”

    See Social Life of Documents by John Seely Brown and Paul Duguid, and earlier referenced works.

    Applied to IP rights, yes, indeed, “Star Wars” or “Rhapsody in Blue” wouldn’t be what they were without the communities they created, and Lucas, for his part, realized the futility of suing every Star Wars derivative. The brand is strong enough to withstand the extremely raunchy “Star Wars Gangsta Rap (2).” But copyright law also protects the creator of works for which there is one reader.

  4. A.J. Sutter says:

    “Actually, you should have had a new appreciation for fiction.” While you’re at it, his comment in his May 2008 New Yorker article about innovation that Alexander Graham Bell “ha[d] ideas” in the field of lasers is also nonsense. Bell’s “photophone” relied on physical principles like those used in solar cells (which were discovered long before Bell), not lasers. For a list of Bell’s patents see here http://www.mall-usa.com/uspat/bell/, and you can download them for free from here http://www.pat2pdf.org.

    More interestingly, after exclaiming over the hundreds of patents filed annually by Innovation Ventures, the gist of his article is that inventions are inevitable because of something “in the air.” Why, then, should inventors get monopolies (which, among other things, are essential for IV’s business model)? As the Talmud says, “Let your ears hear what your mouth is saying.”

  5. Patrick S. O'Donnell says:

    A.J.,

    You’re such a refreshing and erudite voice in the comments of late. I won’t give up on “Western Civilization” (at least the aspiration thereto) as long as I can read someone familiar with the work of Gorz and Illich who can also quote from the Talmud!

  6. Jessica Silbey says:

    Jon-

    Thanks for the heads up re: the Slate story. I am another victim of the fact/fiction trap. Like you, I’m not sure what it matters if it’s fact or fiction, but I gather the “journalistic” genre-label (for him) or the “it’s a true story” for others might make a difference. Once upon a time, I blogged on this very thing.

    http://lawculture.blogs.com/lawculture/2006/01/truth_and_conse.html and

    http://lawculture.blogs.com/lawculture/film/index.html

    And in my scholarship, I continue to write on the relevance (or not) of the fact/fiction genre label. Funny I should be taken in (or at least mention it enough suggesting it mattered). Thanks for the comment.