Questions About From Goods to a Good Life

I’m a little late to the From Goods to a Good Life party, and as a result I have a slightly different take than the other contributors here. I appreciate their contributions, and I enjoyed the book. Mostly, though, I have a couple of questions.

At least twice, I stopped reading and wondered what the book was about. Here are the sentences that stumped me:

“The essence of innovation is critical thinking.” (p. 68) and

“[P]articipatory culture demystifies knowledge itself.” (p. 71)

The two sentences don’t express precisely the same thought, but they strike me as closely related, and they puzzle me for a couple of reasons.

One, in a book that is otherwise resolutely and ambitiously expresses a pluralist vision of intellectual property policy, this pair of statements strikes me as curiously (or perhaps strikingly) monist. I’m an occasional monist myself. Not that there is anything wrong with that, as the phrase goes. Most scholars are monists, at least from time to time, whether or not they cop to that fact. In fact, I think that the better way to understand the argument in From Goods to a Good Life – even if this isn’t really in the book itself — is that IP policy does and should represent a healthy give and take between a pluralist vision and (perhaps competing) monist visions, and the give and take really can’t be fully reconciled. Madhavi Sunder has her own vision of what the good life and good culture look like; I have mine (which is somewhat different); and you have yours. That’s as it should be, mostly. That’s what the pluralism gets us. But even though the custom in IP scholarship is generally to duck answering that ultimate question of value and values, pluralism doesn’t let any of us escape the necessity of putting down a metaphorical cultural marker, and Madhavi Sunder has put down hers.

Two, I think that the thought expressed in the two sentences above is (if I understand what they mean) either wrong or seriously incomplete. That’s me putting down my cultural marker. I love critical thinking. I love demystifying knowledge. But I (and am awful lot of other people) also love just going with the flow. (For a pop culture reference here, take William Hurt in The Big Chill (1983): “Nick: You’re so analytical. Sometimes you just have to let art… flow… over you.) I love (some) mass cultural products. (Such as The Big Chill.  Got Def Leppard? Turn that up to 11!) I think that innovation and creativity are as likely to be found in the absence of critical thinking as they are likely to arise in its presence. (Take a look at Mihaly Csikszentmihalyi’s 1990 book on the psychology of creativity, titled Flow.)

I understand that From Goods to a Good Life is arguing that IP policy needs to be broadly inclusive of forms of participatory culture, not that IP policy should be defined by it. But in tone and in many particular places, I was made uncomfortable by the sense that the argument prioritizes participatory culture, because it is “critical” and “demystifying” in ways that mass culture is not. I think that the polarity there can be and often should be reversed.

So, my first question is this: Am I reading the book correctly?  Am I picking up on the right vibes as well as the right details? That’s a question partly for the author, but (this forum being a form of participatory, demystifying culture) it is equally a question for everyone else. If I’m wrong, of course, and I’m always willing to be shown to be wrong, then what’s a better or right way to read the bits that I’ve highlighted?

My second question is this: This post is, in the spirit of blogging, somewhat casual and almost joking. But I’m serious. Set aside the precise meaning of the sentences that I quoted above (if they have precise meanings). On the merits: Is it possible to have a genuinely pluralist vision of IP policy, that deals fairly and appropriately with inventors and creators and their sponsors, supporters, publishers, and distributors, as well as with readers, listeners, viewers, and downstream creators, one that genuinely accepts the proposition that participatory culture generates dispiriting, cultural-hierarchy-enabling crap as often as it broadens minds and souls, and perhaps more so? And also genuinely accepts that proposition that the corporate mythmakers of Hollywood and Nashville often turn out stuff that turns on millions of people, and rightly so?  If not, is that a problem?

I confess that I’m torn in framing my own answer to that question. On the one hand, I’m affected by the fact that modern social science (especially economics) is infused with the premise that interpersonal utility comparisons are forbidden. My preferences are just as good as yours. That’s one reason why IP scholarship usually lets us avoid putting down our cultural markers, and it’s one reason why the turn to Sen and Nussbaum in much IP scholarship makes sense to a lot of people.  We can focus on inputs rather than outputs. On the other hand, I’m affected by the sense the resulting inclusive, expansive pluralism made possible by that avoidance of interpersonal utility questions is something of a dodge, just like Holmes’s “aesthetic nondiscrimination” proposition in copyright law is a dodge. An earlier generation of economists wasn’t so squeamish about the premise; institutional economists back in the day (pre-WWII, more or less) were at times willing to argue that some forms of culture (utility) really were just better, and that public policy should take us in that direction. In other words, I don’t think that I’m crazy for wondering whether we would all be better off (and whether IP policy would be more coherent) if we just came out and declared our normative commitments to a world that looks and acts a certain way. From Goods to a Good Life all but declares that we don’t like corporate rent-seekers and do like hard-working, deserving creators. Is that really value pluralism? If not, should we care?

What do you think?

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4 Responses

  1. Frank Pasquale says:

    I think the book responds to your concern for “going with the flow” on p. 9, where it says “the rise of participatory culture does not mean that we should reorient law to promote it. There are certainly normative benefits to stable cultural meaning and authority.”

    But I completely agree regarding the need for (at least some theorists of) IP law to make the case that “some forms of culture really were just better.” I make that case with respect to books and art, as opposed to fashion, here:
    http://www.cardozoaelj.com/wp-content/uploads/Journal%20Issues/Volume%2029/Issue%203/Pasquale%20FINAL.pdf

  2. A.J. Sutter says:

    Frank: Maybe I’m being a little positivist here, but why should it be up to law to make a case about some forms of culture being better? Ought law to be the repository of all norms in a society?

    But maybe the book echoes your sentiments a bit: in several places it mentions “talking back to,” or “contesting the authority” of, popular culture (e.g., @108). Maybe this means there are some forms of culture that should not be contested; though the book doesn’t describe how one draws the boundary between what’t popular and what’s not.

    OTOH, the book does claim (@55), “As Walter Benjamin later observed, mechanical reproduction or copies demystify the mystique of the original, allowing more democratic access to knowledge.” So perhaps the book doesn’t intend for any form of culture to be safe from that great equalizer, the guillotine. I must confess, though, that I didn’t recall this message being in Benjamin’s “Work of Art…” essay at all; nor was I able to find a reference to demystification or democracy in any of several versions of it in German or English, other than an interesting but irrelevant footnote discussing the impact of technology on parliamentary democracy (numbered 20 in the 1955 Gesammelte Schriften and the Suhrkamp Taschenbuch edition of Illuminationen, but numbered 19 in my edition suhrkamp #28 copy from the 1970s).

  3. Mike Madison says:

    A.J.: I noticed that characterization of Benjamin’s work, and like you I puzzled a bit over it. I have long understood that Benjamin was critical of the challenge that mechanical copying posed to the “aura” of unique originals. One might equate dissipating an “aura” with “demystifying,” but I would still understand Benjamin to be critical, not celebratory.

  4. A.J. Sutter says:

    Mike: Thanks — that was my take on him, too.