Author: Michael Madison


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.
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Up … and Away

I just came back from seeing the new Pixar animated film Up .  It’s a charracteristically charming Pixar effort; all thumbs up!  Plus, I got these neat-o 3D glasses.  There’s a little IP angle to the film, though, and I want to use that to anchor this last of my guest posts.
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Where Trademarked “Eagles” Dare

The world is again safe for trademark law, now that the National Rifle Association has put an end to efforts at the University of Wisconsin-La Crosse to name the university’s eagle mascot “Eddie.”

For 20 years, the eagle has been the mascot of athletic teams at UW-L. Only earlier this month, however, did students at the campus get around to voting on a name for the bird, and the name they chose was “Eddie.” Unfortunately, “Eddie” is also the trademarked name of the mascot of the NRA’s “Eddie Eagle GunSafe Program,” which is aimed at students in pre-K through the third grade.  Apparently claiming that marketplace confusion would likely result from use of “Eddie the Eagle” in a post-secondary educational setting, when benchmarked against the elementary educational programming offered by the NRA, the NRA forced the university to stand down.

Undeterred by possible claims of intellectual property rights in alternative names, the students re-voted and named their eagle “Colbert.” Apparently, neither the actor nor the character objects to the use of a name that is likely protected by trademark law and right of privacy and/or publicity law, or both — despite the obvious and ubiquitous association of “Colbert” with eagles.  This seems to put Stephen Colbert squarely at odds with the National Rifle Association, at least when it comes to symbolic representations of birds of prey. 

There is no word on the matter of the validity of the NRA’s mark from the original Eddie the Eagle – Eddie Edwards, former ski jumping champion of Great Britain and world-famous competitor in the Calgary Olympics, who taught all of us important life lessons.


Comedy, Copyright, and a Virtual Symposium

Late last year the Virginia Law Review published a provocative and entertaining article by Dotan Oliar and Christopher Sprigman (both on the Virginia law faculty) on copyright law and the social norms of stand-up comics. There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008).

Earlier this Spring, the law review’s online supplement, In Brief, published a series of responses to that article, by me, Katherine Strandburg, Jennifer Rothman, and Henry Smith:
Jennifer E. Rothman, Custom, Comedy, and the Value of Dissent
Henry E. Smith, Does Equity Pass the Laugh Test?: A Response to Oliar and Sprigman
Katherine J. Strandburg, Who’s In the Club?: A Response to Oliar and Sprigman
Michael J. Madison, Of Coase and Comics, or, The Comedy of Copyright

And In Brief just published Oliar and Sprigman’s great response to all of the critiques, From Corn to Norms: How IP Entitlements Affect What Stand-Up Comedians Create.

The collection of pieces makes up an engaging virtual symposium on a topic that is simultaneously important (the relationship between law and social norms) and entertaining (how often do legal scholars get to dedicate professional energy to Lenny Bruce?). 

This kind of extended public colloquy among scholars is among the best uses of the online supplements that many of the top law reviews have created.   The “virtual symposium” could be even more effective if the elements of virtual symposia were collected (tagged, perhaps) and publicized as such (“Symposium on Law and Social Norms in Stand-Up Comedy”, or something like that) in both new and traditional electronic media (Westlaw, Lexis/Nexis, CILP, the law review websites themselves and their posts to this blog and others, SSRN, etc.) 

That suggestion is directed to all those students, librarians, indexers, and bloggers who contribute to the ecology of online information about scholarship, and it comes from the perspective of the reader.  Here’s a suggestion from the perspective of the author.  If your piece is being pitched at a journal that hosts an online supplement, consider offering to partner with the student editors in soliciting critiques and responses, and designing an issue of the supplement that constitutes, in effect, a low-cost symposium on your work.


Best Practices in Fair Use

Yesterday, the Program on Information Justice and Intellectual Property at American University’s Washington College of Law and the Center for Social Media at AU’s School of Communication released “Remix Culture: Fair Use Is Your Friend,” a video that accompanies and explains the Code of Best Practices in Fair Use for Online Video, released jointly by the two centers last July. The video was underwritten by Google and was produced in collaboration with Stanford Law School’s Fair Use Project.

The Code itself is one of four recent “best practices” statements supported by AU (in particular, by Pat Aufderheide at the CSM and Peter Jaszi at the law school) and/or inspired by the “best practices” model.

The first is the “Documentary Filmmakers’ Statement of Best Practices in Fair Use,” released in late 2005.

The others are the Code of Best Practices in Fair Use for Online Video, the Code of Best Practices in Fair Use in Media Literacy Education, and the recently-released “Statement of Best Practices in Fair Use of Dance-related Materials: Recommendations for Librarians, Archivists, Curators, and Other Collections Staff,” produced by the Dance Heritage Coalition.  Full disclosure:  Law faculty and practicing lawyers who specialize in copyright law vetted each of these publications, and I was one of vetters.

None of these publications claim to state definitive rules for what is or is not fair use even within the domains of practice to which they refer, let alone for all purposes.  Instead, they offer guidelines for practices that are believed likely to be legally acceptable, given a fair reading of the law of fair use and a fair survey of actual creative practices in the relevant domain.  And they also offer guidelines for what likely crosses the fair use line, again given fair readings of both law and practice.  The relevant audiences include not only practitioners in each field but also relevant gatekeepers — ISPs and insurance companies among them — who play major roles in determining what may or may not be published, promoted, displayed, and distributed.

Among other things, the best practices approach is one way of rendering concrete an emerging sense that fair use in copyright law is neither as radically indeterminate nor as toothless in operation as the conventional wisdom might suggest.  For scholarship that bolsters that view, see a recent paper by Pam Samuelson and slightly older papers from Barton Beebe and me

The best practices approach is not a panacea, and it is far from costless.  Producing these statements and working with gatekeepers to acknowledge them is time-consuming, challenging work.  And there is no assurance that if tested in court, a copyright defendant’s reliance on a Best Practices approach or publication would be persuasive to a judge or jury.  The hope, however, is that the more robust the set of Best Practices followed by creators in these fields, the less likely it is that litigation will ensue.


On Being an Ambassador for Pittsburgh

By popular request, I’m posting this link to my brief appearance in this morning’s New York Times.  (Well, the link is popular in certain quarters, and I did receive a request to post it!)   The story has to do with tomorrow’s mayoral primary, in which Pittsburgh’s young mayor, Luke Ravenstahl, front man for an emerging Democratic Party machine that someday may do the elder Daley proud, is certain to defeat his two challengers, Patrick Dowd, current darling of local progressives, and Carmen Robinson, a well-liked but under-funded African American lawyer and former police officer.

For most purposes, neither the story nor the interview that preceded it have anything to do with my academic life, though the Times gives me credit for being a professor at Pitt Law.  Instead, the Times piece, like a recent interview that I gave Dutch TV (watch for it!) and a piece earlier this Spring for CNN (teased here, then preempted by the tragic death of a certain skiing actress and replaced by this blog post) are the products of what one Burghosphere colleague (Burghosphere is the extravagant name that we Pittsburgh bloggers have given ourselves) calls my status as an “ambassador” for the city.  My five-year-old blog about the many futures of Pittsburgh, Pittsblog, was one of the first local blogs, and while it now has plenty of company, it is still one of the dozen or so that try to bring a little light to the heat generated by Steelers and Penguins fandom.  Media search for light-generating media; they find me; I become a momentary local celebrity because I’m in the paper of record.  Rinse and repeat.

Still, underneath the hood, there is a connection to my research interests, whether or not you care about the Steel City itself. 

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On Showing Up

My post on the challenges facing the law school Research Dean contained an implicit and unexamined assumption regarding a gap between the interest of the individual faculty member in producing and distributing research and scholarship, on the one hand, and the interest of that faculty member’s law school in the research and scholarly activities of its faculty, on the other hand.

I’m convinced that these interests are distinct, though they overlap. Here’s a possible example of the gap in action: At your law school, do faculty members regularly attend and participate in workshops presented by speakers who specialize in fields other than their own? Do they make, in other words, what might be characterized as “karmic” contributions to the intellectual life of the school? Are they good scholarly citizens?

Not everyone is always available to show up, and having too many people show up could undermine the value of the workshop. Yet there are folks who don’t show up because they don’t care, or can’t be bothered, or don’t see the value in taking time to kick around the ideas of someone who can’t help them with their own work. I believe that the interest of the individual (absent) faculty member may be served by that judgment, at least in a sense, but the interest of the school is not. A lively workshop culture means an intellectually engaged faculty, which can have tangible benefits for those local faculty; which can generate reputational benefits among other law schools; and which can have payoffs in the classroom for students.

In short, I’m aware of a kernel of Chandler’s Visible Hand at work in my Research Dean-ing. Other things being equal, I’d like to get more colleagues to attend more workshops.

Am I overstating the case? Have my metaphors run roughshod over important distinctions?  I admit that I like going to workshops, even workshops in fields far removed from mine, and not just because it’s part of my role as Research Dean. It’s entirely possible that my view of the matter is colored by my own idealized vision of an academic community. I also recognize that by putting “karmic” participation in the life of an institution onto the table, I complicate the sizable expectations that already confront would-be and new professors. Institutional interests have distributional consequences.



A Right to Be Punished?

From the Department of Paradoxes in Sporting Jurisprudence:

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs Nuggets would have in-bounded the ball.)

As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.

After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.

That prompts this question: Is there a right to be punished? If so, when, and if so, why?

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The Law School Faculty as a Commons

What’s the connection between law professors and stand-up comics?

My last post pointed to a recent short piece on comics and the relationship between “anti-plagiarism” social norms that encourage comic creativity and the emergence of those norms in the context of commodified comedy.  Comics sold and consumers bought LPs by the boat-load. The success of record albums had a clear if unmeasurable impact on comics’ incentives to produce and innovate.

A generalizable point is this: Record album sales are an objective and observable characteristic of this particular environment. The data is mostly external to the comics themselves. What scholars describe as social norms among comics are, by contrast, mostly subjective. Norms are personal to each comic. We “observe” the existence of social norms them by inferring their existence from regular behavior and from anecdotal reports. That interplay between observable, objective, and “external” dimensions of an innovation environment and subjective, “internal” dimensions of that environment is central to understanding its mechanics.

In fact, that interplay is probably central to understanding the mechanics of any cultural context. It’s a central theme in the work that I’ve begun on “cultural commons” with Brett Frischmann and Kathy Strandburg. And it connects stand-up comedy and law faculties. More below the fold.
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