Author: Jessica Silbey


For whom does IP work?

One of the major questions Professor Sunder’s book asks is whether IP works for the people who make it. This is a question that US law does not grapple directly with, but assumes and then glosses over. It is an important question. As Molly Van Houweling mentions, drawing on Julie Cohen’s fantastic article on IP as corporate property, IP certainly works for some companies some of the time. Insofar as companies are intermediaries (distributors of IP protected goods) and the licensees of the creators of those goods (either through work for hire or assignment), firms can and do make some of their money from IP revenues, which IP is generated by individuals working alone or in groups.

The story of Solomon Linda is an example of what can go wrong from the initial creation to the widespread distribution of creative expression that has commercial value. Firms will say that without intellectual property, they cannot harness or nourish the creativity to reproduce, commercialize and distribute it, that the conditions of their productive and distributive business require exclusive rights in the intangible goods. (I think this in part right, but it is largely overstated in light of the the many other ways in which companies make money, such as first to market, complementary products, contracting for services, reputation. And the extent to which the company depends on IP is industry specific.) Individuals will say that the best environment for their creative work is a situation in which autonomy and collaboration are optimized. Individuals want time and space to do their work, and they need some funding to pursue it, but that funding may come from a day or night job that does or does not directly relate to their creative or innovative activity. Ideally, the way the individuals earn a living derives from the creative or innovative work they do, and if that is the case, they still seek autonomy and collaboration, which are often at odds with corporate structure and IP exclusivity. Sunder’s book points out many of these conflicts between individual welfare and corporate welfare. My puzzle, these days, is why there must be such inconsistency. How (when and why) does the corporate interest so greatly diverge from the individual’s interest and what, if anything, can be done about it to maximize IP’s functionality in our global system of creative and innovative production? Sunder’s book goes a long way to putting these issues front and center.


What’s IP Good For?

I am glad to be participating in this virtual symposium and reading Madhavi Sunder’s book. Professor Sunder has been thinking, reading and writing about these issues for a long time in a crowded academic space of intellectual property, economic justice and cultural contest. This book distinguishes her yet again as a strong and clear-headed voice for what we mean when we talk about IP in the public interest. For what else is law about than promoting social welfare? All law, be it public or private law, is theoretically for enhancing the “good” society. The questions lawyers and legislators and policy folks debate is what constitutes that “good” (or certainly “goods”) and how (or whether) law should be structured to promote it/them. On this precise issue I have a point of clarification, however: do we wonder whether IP (whether as a tool or a right, p. 15) is at all necessary or even important for promoting the values Professor Sunder identifies (those central human capabilities from Nussbaum)? I have been wrongly accused (on more than one occasion) of being an anti-property person (fill in your own epithet relating to dead communist and socialist leaders). I am not. But I am also not convinced that intellectual property as it exists as a regulatory mechanism in the United States (or elsewhere) in fact promotes human flourishing to the extent that justifies the exclusivity and withholding that exists with regard to scientific and cultural products around the world.

By this I mean at least the following. Professor Sunder is for sure right when she calls out “efficiency” and “incentives” as straw figures in the quest for theoretical clarity in the legal model for optimally producing and distributing goods such as medicine and music. Most people who make things – either for a long time and after intense investment in a laboratory or studio or after a short time after a walk or good nap – are not doing it in order to protect it through intellectual property laws to maximize revenue. Both qualitative and quantitative empirical work bears this out. People make things because it is what they do – it is how they process the world, it is what they love, it is the solution to a problem, it is important to them or their community. What role does law really have in this kind of making and doing process? IP law has little to do with it, unless IP funds the underlying venture (as in pharmaceutical companies’ research, and even there the figures are unclear whether 20 year patent monopolies are necessary, as opposed to leakier business tools). Labor and employment law, contract law, welfare laws (including the regulation of public utilities, in which I would include the Internet) have more do to with whether people can and do pursue creative and innovative work. The notion that because someone will have the ability to exclude others from copying their work incentivizes folks to in fact engage in the work and distribute it is simply not born about by the data.

However, there is a fine line between (1) plural incentives (p. 21) and culture as a participatory community (p. 17) which in fact generate and perpetuate creative and innovative work, and (2) the deep-seated feelings of possessive individualism that stir in so many of us, which also propel us as inevitably ego-centric individuals to make and share in ways that will be recognized and rewarded. Professor Sunder talks about “fairness through recognition” (p 96) and certainly questions of attribution and credit are central to discussions of copyright, and to a lesser extent trademark and patent law. And so it is that being seen as a person who makes and contributes is paramount to most creators and innovators (what some would call reputational interests). IP law doesn’t help with this. That is surprising to most creators and innovators, be they individuals or corporations. And it is deeply frustrating to them. But here again is an example where IP law seems orthogonal to the interests at stake.

I have more to say about how IP works (and how it doesn’t) in terms of Professor Sunder’s excellent book. But I will wait to see what others write.


Alternative Careers for Lawyers: How real is it?

My pile of “to read” material is overwhelming, but somehow I managed to read this article in the June issue of the ABA Journal about lawyers who write for television and film. I was interested in the article for two reasons. One, I am a law and popular culture fan — that is, I squander some academic credentials on writing about law and popular culture (trial films and the like) not only because I am addicted to them (Michael Clayton anyone? I loved it!) but because I do think the stories they tell and the manner in which they tell them constitute a popular legal consciousness that is part and parcel of the law (what it is, how it functions, why it changes, both on the books and in action). I was also interested in the article because when I counsel students about career choices, I like discussing alternative careers. With lawyer satisfaction low (at least that is what the media tells us, but see this article by my colleague Michael Rustad, and my comment about it here) lawyers-to-be should think hard about how to structure their career in terms of what they like about law and lawyering. Being a writer for television or film is potentially a dream of a career for many, but it is more and more common as the law-genre has blossomed. Remember LA Law? From that television drama (and the Perry Mason before it, long before it), law tv has exploded and the explosion keeps on burning (Law and Order, the Practice, Ally McBeal, Boston Legal…). There are new variants in the crime drama genre – CSI, the Closer… just too many to list here. I am sure readers have their favorites and the ones they most despise. For me, the ones I tend to enjoy are the ones that are “smart” — that is, ones that explore contemporary legal issues and get the law right, although in a streamlined fashion and without much of the important details that keep lawyers in business litigating. (I count West Wing as one of my favorites for a law drama, albeit not a trial drama, that gets the legislative process fairly on and, when discussing legal issues regarding case law, tends to treat them with an element of sophistication.) The ones I most dislike are the shows that are more about the social drama of a law firm (Ally McBeal stands out on this front, although it had some good episodes, and the Practice devolved into this kind of show, unfortunately) or that are too heavy on the cops and investigators and spend less time on the legal restraints on those actors.

It seems clear to me that I can’t just suggest to my students “go get a writing job for Hollywood” even to those who had journalism careers before coming to law school. But it also seems clear to me that the law-writing field is wide open and the market is hot for it. Novels and non-fiction, essays and magazine or newspaper articles, blogs or on-line journals (, for example) are all reasonable avenues to try — even before graduating from law school. There must be examples of well-trod blogs and their authors turning writer for the visual media for real pay. And this article from the ABA Journal is evidence that it can be done, even by the relatively young law student. It is also evidence of the need for the lawyers to help the producers and directors manage complex legal themes for diverse audiences — to keep the law meaningful, so to speak, for those who are only exposed to it through television and film. Although not a career in public service, it does seem (to this fan, at least) a worthwhile endeavor. In other words, “smart tv” should not be an oxymoron.


The Citizenship Exam and Popular Culture

Every year as part of my constitutional law final exam, I give my students a mini “citizenship exam.” I ask six questions that derive from the U.S. Citizenship Exam, which are about the U.S. Constitution. I tell my students they can go to the U.S. government website and review the questions there, or they can just read the Constitution. Doing either should prepare them well for that portion of the exam. The questions I ask are straight forward and, I would suppose, easy: How does one amend the Constitution per Article V? What are the first ten amendments called? Who, according to the Constitution, has the power to declare war? Most students score 100% on this portion of the final exam — as I would hope. But sometimes I am surprised, unhappily so, by a pattern I see in the wrong answers. I asked the last question — the power to declare war — this year, and I was worried and angry by the number of students who answered that question: the President. (Angry: Weren’t they paying attention? Worried: What kind of teacher am I?) And then I thought about the question and how, as with some of the questions in the past, the right answer conflicts with our present experience of our political order and popular culture.

Of course the Constitution does say that Congress declares war, not the President, but since World War II, the United States Congress hasn’t declared war on any nation despite having authorized troops to serve in many, many war zones. No wonder students are confused. All the more reason they should have heard and remembered the classes on the war powers, I think. And all the more reason I should have been that much clearer in class. So although popular cuture can wreak havoc on learning, it can, of course, also be a teacher’s best friend. I tend to embrace it in my classroom (playing Billy Bragg’s Everywhere when I teach Korematsu, showing clips from West Wing when teaching Roe v. Wade). But in this case, I forgot the lesson. For our unit on war powers, I should have played this clip of President Bush declaring “mission accomplished” on May 1, 2003. Nothing like the problem staring you in the face to jump start a classroom discussion on the separation of powers. (And the problem can be defined in any number of ways for a good discussion about the constitutional order — the scope of the implied Art II powers, Congress’s reluctance to declare war but its willingness to fund it, etc.). Playing this clip by would have just derailed the pedagogical lesson (so I will try and refrain next year) but perhaps it would good in some class. Suggestions welcome.


Are you an “equal parent”?

Yesterday’s New York Times Magazine ran a cover story about the age-old work-family balance called When Mom and Dad Share It All. It very much tracks some of the debates and sentiments from my last post on maternity versus parental leave. The NYT article describes three families and goes into significant depth describing how each manage (or don’t) the gendered dynamics of career and childcare. Behind these featured families are statistics such as women doing 38 hours a week of housework on average and men doing 12 (when only the husband is working). This three-one ratio goes down, but only to a two-one ratio when both parents are working — women doing 28 hours a week of housework and men doing 16.

The child care dynamic is even more drastic (and not counted in the housework statistic):

Where the housework ratio is two to one, the wife-to-husband ratio for child care in the United States is close to five to one. As with housework, that ratio does not change as much as you would expect when you account for who brings home a paycheck. In a family where Mom stays home and Dad goes to work, she spends 15 hours a week caring for children and he spends 2. In families in which both parents are wage earners, Mom’s average drops to 11 and Dad’s goes up to 3. Lest you think this is at least a significant improvement over our parents and grandparents, not so fast. “The most striking part,” Blair says, “is that none of this is all that different, in terms of ratio, from 90 years ago.”

I was saddened to hear that little has changed in almost a century??!! Okay, so perhaps moms have “more flexible jobs” than dads do (for reasons of socialization or something else), and therefore can take care of the children more. To be sure, I thought, as a professor, I have much more flexibility than my husband, which explains why I do more of the child care during the week. But wait… , the article explains:

…the perception of flexibility is itself a matter of perception. In her study, she was struck by how often the wife’s job was seen by both spouses as being more flexible than the husband’s. By way of example she describes two actual couples, one in which he is a college professor and she is a physician and one in which she is a college professor and he is a physician. In either case, Deutsch says “both the husband and wife claimed the man’s job was less flexible.”

Yikes! I started wondering how flexible is my job as compared to my husband’s? Who is making it “more” or “less” flexible? Which policies and preferences are preventing us from equal-parenting in the ways this article describes? And then I wondered whether the professor-fathers out there do as much child care as I do — that is, do they perceive their job to be more flexible than their spouses, as do I? I would guess the trend is that more fathers with flexible schedules (as this article documents) are doing more of the child care, but the trend is sadly slow and (also as this article documents) greatly imbalanced still after so much time.

There is more in this article as well … worth a read.

Read More


Maternity Leave Means Fathers Too

A Commissioner at the Massachusetts Commission Against Discrimination (the Commission) has announced that effective immediately the Massachusetts Maternity Leave Act (MMLA) will apply to new parents of either sex. This means that both mothers and fathers (or both parents in gay marriages) in Massachusetts will be entitled under state law to eight weeks of unpaid leave upon the birth or adoption of their child. (The MMLA applies to employers with six or more employees.)

This announcement by the MCAD is startling for many reasons. First, it appears that the Commission, has rewritten a statute that is clearly gender-based (“maternity” rather than “parental”) to be gender-neutral. The Commissioner admitted as much when he said the reason for the Commission’s interpretation is to avoid the following problem:

“If two women are married [as is legal in Massachusetts] and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute. That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.”

The Commission says it “enjoys broad discretion” and so it is applying the statute to avoid what it considers to be a state constitutional problem. Of course, the Commission must apply the law in a constitutional manner, but it does seem to have taken a radical step in this instance without a notice and comment period that most major legislation (or legislative changes) undergo before passage. As some lawyers have said, it creates significant obligations for employers overnight, which obligations may not be what the legislature has intended.

Second, the Commission’s interpretation of the statute appears to understand the “discrimination” the MMLA seeks to eradicate as discrimination against parents rather than against women. I don’t know the history behind the MMLA, but its title (and language) suggests that the gist of the law was not to eradicate discrimination against parents but against mothers. (The word “female employee” is all over the statute.)

The big question for me, however, as I read this news is whether I care how startling it is and whether instead I should jump for joy that finally FINALLY some official legal body has recognized in a brave (however radical and oblique) way that gender equality requires that fathers/spouses be equal parents of newborns with mothers. I don’t think it a radical idea (although people I mention it to think it novel and curious) that the disparity in child care in our society — where most women are in charge of child care in their household despite more than sixty percent of mothers working outside of the home — is rooted in maternity leave, a gendered leave policy that creates inequality in the competence and expectations for child care. (To be sure, the FMLA is gender neutral and passed under congress’s section five powers as a remedial and prophylatic measure to combat sexism. But the MMLA targets infant child care specifically where as the FMLA covers diverse family relationships. For a quick comparison of the MMLA and FMLA see here.) By interpreting the MMLA in this way, the Commission has given most fathers/spouses in the Commonwealth the right to stay home with their newborn.

I have long lamented the accommodation of maternity leave – not because I think it unnecessary for mothers but because it creates an expectation that mothers (and not fathers/spouses) will stay home with the baby when born or adopted. In addition to providing time to physical recuperate from labor (which for most women takes between two and four weeks), maternity leave (especially for new moms) is a form of boot-camp, teaching women how to care for an infant by forcing the togetherness. Most women don’t know any better than most men how to calm a fussy baby, how to feed a baby, how to swaddle a baby or put her to sleep. These skills are gender-neutral. When do women become more competent than men at these tasks? When they care for their own newborn during maternity leave (or, admittedly, when they have taken a job caring for children or cared for a sibling or friend’s child prior to having their own child). Maternity leave is a three month (sometimes more) “head start” in the child-care department. And this head-start often sets the parameters for child-care duties in the future. At four months when a mother is back at work, that mother is typically better at soothing and dressing and feeding the baby because she has done it so often the past twelve weeks while her husband/spouse was at work. It makes sense, therefore, at the end of the work day, that when the baby is fussy or hungry that she calms and feeds the baby because she is better at it. This is an efficient division of labor. But it also relegates her to the “second shift,” one that mothers have historically complained about, whereby she works in the office all day and in the house all night. And this gendered child care dynamic is entirely avoidable if fathers/spouses became as competent as mothers in the earliest days of their baby’s life. Three months of total immersion in child care is a long time. Ask any parent: the learning curve is a steep one. And when the baby is crying, you want the most skilled person to calm that baby (i.e., the person who can succeed the fastest at the task). This is often the person who stayed home with the baby, and it is usually the woman.

So back to the Commission’s announcement. What it might accomplish if applied to both parents is to encourage them to become equally competent at caring for their newborn at an early enough stage in the parenting relationship to prevent gender inequality in child care in the future. And it sends the message that both parents are crucial to nurturing the child – which is of course true. How will it apply in practice? Does it allow for the possibility that one parent might stay home for the first eight weeks and the other parent for the second eight weeks? Would it allow for both parents to stay home at the same time? Either way, I hope this significantly changes the parental leave landscape in Massachusetts – for the better. It is long overdue that fathers/spouses be expected to care for their newborns as mothers are expected to. I would bet that many fathers/spouses would relish the idea of a three month leave to care for their new child. And I have no doubt that children will be better off for it. I applaud the Commission.


Public Interest Auction Donations — Suggestions Wanted

I just returned from a visit to St. Paul, where we stayed with long-time friends Bill McGeveran and his family. Bill and I got talking about how he and several other law profs at the U of Minnesota will be taking a bunch of soon-to-be 3Ls to a karaoke bar as part of a donation to the annual public interest auction. Presumably, this was an exceptionally attractive purchase for the law students – what funnier than seeing your usually serious and straight-faced law prof singing to Paula Abdul or Amy Winehouse? Bill tells me it went for a large sum of money, commensurate with the ridicule he and his colleagues will suffer after the night is over. It got me thinking about all the very creative ways professors can contribute to the public interest auction. I have a colleague whose annual softball game (students v. her family of five), which is followed by a lobster bake, goes for a hefty price at the auction. I have also heard that John Sexton, when he was dean at NYU, sold a “pie-in-the-face-of-the-dean” item. At the end of the auction, Dean Sexton would graciously stand still while the winner of that item covered him in the pie-of-choice. I can only imagine what that went for. I have only offered (with colleagues) a night out shooting pool. This seems embarrassingly staid compared to the above options. What high-priced sought-after professor donations have you heard about?


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.


Cross-Examining Film

Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.

The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: “Where the evidence ‘captures only part of the incident and would provide a distorted view of the events at issue,’ as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion.” Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.

For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.

How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.