John Blomster: Hello and welcome to şěĚŇĘÓƵ. I am your host John Blomster. And today we're speaking with Jessica Silbey, professor of law at Northeastern University and co-director of the law’s Center for Law, Innovation and Creativity, aka CLIC. Her research and teaching home in on laws integrated relationship with other disciplines. And she is a renowned expert on intellectual property law who was awarded a Guggenheim Fellowship last year. Her most recent book, The Eureka Myth: Creators, Innovators and Everyday Intellectual Property challenge traditional notions of the field and the topic of her forthcoming work, Against Progress, Intellectual property and Fundamental Values in the Internet Age looks to be equally as provocative. So let us get into it. Professor Silbey, thank you very much for joining us today.
Jessica Silbey: I'm so happy to be here.
Blomster: First of all, can you tell us a little bit about what CLIC is and your work with the center?
Silbey: Sure. So the center at Northeastern University Law School is a center devoted to intellectual property, information law and technology law in the public interest. So it's a center like a lot of other law school centers where we have students, concentrations, job opportunities, research opportunities around digital age, regulation and social justice.
Blomster: Before we get into the digital age and the focus of your most recent books, and what's coming out soon. Here's a really big broad question. Where did the foundation for intellectual property law and this idea, the concept of ownership ideas originate?
Silbey: In the United States, from the Constitution. Article 1, Section 8, Clause 8 gives Congress the power to grant copyrights and patents for limited times. Historically, that was something that Thomas Jefferson and Benjamin Franklin debated about the idea of how to grow a small nation into something great by incentivizing people to be inventors and creators.
Blomster: Why was that such a foundational principle that they felt the need to enshrine that in the Constitution?
Silbey: There’s actually not a lot of historical evidence about the purpose behind what we call the Progress Clause in the Constitution, but some evidence talks about the role universities played in Europe and in the Enlightenment, and also the idea of the self-made person in the United States, the independent revolutionary. So there's a combination of progress as commercial and social progress built from one person into communities and the idea of the role of universities in democracy.
Blomster: It's easy to think of intellectual property as an economic incentive, right? Like, create something patent it, copyright it, so you can sell it.
Silbey: Yeah.
Blomster: But in the Eureka Myth, you challenge that and offer a more human view of it, right? And so, can you elaborate a little bit about your position on this and why it may be important, or why it is important to look at intellectual property through this broader lens?
Silbey: Right. So all legal regulations starts with whether it's a legislature or some government passing a law for a reason, right? And then it goes out there in the world, whether it's regulating health care, or crime or something. And then everyday people engage the law in a concrete material way. And so law is not only what's on the books, and what we say it was for. Why are we criminalizing gambling, for example? That used to be a thing. But how do we engage in the criminal law and get around it, for example? Or evolve it through our behaviors. And intellectual property is no different. So we have a law that might have been for a particular purpose. And as people everyday people, write and invent, they engage the rules in all the different ways that people are diverse. And I think as a, as a legal scholar, as well, as a lawyer, I think a lot about the diversity in which we engage law. And so that's what this book was really about is all the different ways that intellectual property lives in people's lives more broadly than what we have said it is for.
Blomster: What would be like a specific example of that, where you really see that brought to light?
Silbey: So one of the most basic and common examples is in copyright law, when authors want to be credited for work. So we say that, you know, somebody copies your work without asking, and then they don't, they don't say that it was yours, they don't give attribution. Copyright law does not actually require attribution, does not require credit. It just requires payment for copying under certain circumstances or permission. And so what a lot of authors and artists care about is having their name attached to the thing that's out in the world. Copyright law does not provide that. And so that misalignment between what the law does and requires and what people care about, causes a lot of strife actually in the conflicts around copyright.
Blomster: So moving forward to today, and the discussions around intellectual property, which are ever increasingly top of mine, how has the move to the digital age broadly affected this field?
Silbey: So if you think about what computers and the internet have done to the ability to make copies, and the idea that what intellectual property law primarily does is prevent copying, or it’s a rule against copying. The internet age and digital computing has put enormous pressure on the rules. Just right click and paste and copy. I mean, we commit copyright infringement all the time without even knowing it. And so one of the basic things that the internet age has done is made us all pirates without us knowing it. And that's a problem. Like it's not a sustainable legal system for all of us to be breaking the law all the time.
Blomster: Another position that you explore is this: it’s copyright law or intellectual property law in relation to our values as a society.
Silbey: Yeah.
Blomster: How does that work? How do those intersect?
Silbey: Well, one of the things that this new book is exploring is how so many new disputes around intellectual property, be they patent law, or trademark Law, or copyright law, for example, are not actually about the right to control copies and to get payment or licenses for them, but are also are about when you look deeply at the facts, or the parties are about values that are fundamental to the rule of law in the United States, generally, like equality and privacy and distributive justice. So one case I talk about is the monkey selfie case. I don't know if people who are listening remember this, but a National Geographic, or I guess it wasn’t National Geographic, he was a photographer taking making pictures in the jungle of macaques, and he was having trouble getting the pictures of the monkeys. And so he set up the camera, and let the monkeys play with the camera. And one of the monkeys took its own picture with the camera. And the photographer sold that picture, licensed that photo to many. And it became the famous photo of this looks like a monkey selfie. There was a lawsuit about whether the monkey was the author of the photo and it was brought by the organization called PETA, the Protection of Ethical Treatment of Animals. And one of the claims, I mean, it was a copyright claim, they wanted the monkey to own the image, and control the image. But at bottom, what this was about is what is authorship mean? Who is it? And does it have to be human? And that's a question of, sort of existential question, about whether authors in the digital age can be machines, can be animals, and whether the intellectual property, you know, think about environmental concerns. So that's one example.
Blomster: Who's defining those boundaries, right? Like, who is evolving this debate? And how do we even talk about this, right?
Silbey: So in the book, I draw from lots of different sources. One is the cases, or actually courts, when courts explain how the cases come out, they are justifying their ruling. And so courts, draw boundaries, based on lawyer arguments that are pretty typical. I've done dozens and dozens—nearing 100 now—interviews with everyday creators. So I ask them about—and inventors—ask them about how they use intellectual property and what it's for for them. And so that's one of my data points. And the other one is I look at popular culture and media and how we talk about IP and in our popular world. So if it's on television, it's in the newspaper, if it's in long form journalism. That is all of these are ways that law is instantiated in everyday life. Judge decisions, and when we bring disputes, what people who live the law, describe it as and how it exists in our popular culture. And I think actually, that's how we decide. If you think about how different social movements have evolved over time, whether it's the movement for racial equality, or gender equality, there's a braid of legal challenges, popular cultural movements, and intellectual movements all happening at the same time, and I actually think we're seeing that with Intellectual Property today.
Blomster: We talked about the challenges that the internet age has brought, but have there been benefits in this space that have been a byproduct?
Silbey: For sure. It’s easy to describe technology as being sort of the ultimate liberatory force. And of the 21st century, it operates to help us communicate, to share, to make relationships easier. You know, we have relationships with people all over the globe at a click, all those things. I think it makes the world smaller. And that can be really great, too. So of course, with the opening up of the world and access to information and ideas, we talk about whether it’s the Arab Spring, or we talk about bringing medicines to different parts of the world, all that is great. But it's not a free for all, you know, and I think when you disseminate all this information, and we have these tools that can be held in your hand like a, you know, just the phone, because of the diversity of human beings, people will do dangerous things with them, and they will do hurtful things with them. And law exists to manage those things.
Blomster: Right. And that's, that's one of the really profound takeaways that I found from looking into your work was about the relationship of issues around intellectual property and social justice. So what would be an example of that that you would point to that really illustrates that intersection?
Silbey: Sure. So copyright law has been frequently used lately to protect forms of privacy, protect the disclosure of an identity, for example, or, you know, an intimate photograph between lovers that has been disseminated without consent that injures a person's professional prospects or reputation. You can use copyright, copyright is a very strong legal tool to try to stop that dissemination. And so if we think about with the internet age, privacy is really fraught because it's harder to protect. Copyright becomes a really strong tool to protect it, because our privacy laws actually aren't that strong. Copyright is quite strong. So people reach for a very strong tool, which is not, I don't think, the best tool. So I think privacy is a social justice issue. I think keeping our faces off the internet, maintaining anonymity, being able to control confidences and trust with other people is really important for social cohesion. And when the internet age makes—endangers that—I think the fabric of our social order is undermined. I don't think copyright is necessarily the right way to protect privacy, I think really, it's putting pressure on our privacy laws. And so what we're seeing are efforts to reform privacy laws to make them—to target them—in ways that will minimize the harm, while keeping copyright for the progress of science and the useful arts.
Blomster: And then another huge topic of the book is about how we discuss or analyze or look at solutions to the bigger socio-political issues. And you talk about how the frame work that intellectual property law and the debates around that can really be beneficial to addressing these other issues. Can you unpack that position?
Silbey: Sure. Well, the last chapter of the book is a case study on digital photographers. I’veI been interviewing with two of my colleagues—Eva Subotnick and Peter Dicola—digital photographers, and how they make a living in the digital age, which is harder now that when everyone—anyone—can be a photographer, how you distinguish yourself in the marketplace, as a professional photographer, worthy of the income that you need to survive is hard. And one of the things we've learned studying the digital photographers is that as much as copyright is important to earn a living to license their photos, it's not the copying, or the unauthorized copying that offends them and makes it hard for them to make a living. It's the devaluing of their labor, actually. And I've actually seen this across the board is that it's controlling copying is a proxy for wage equity, and valuing the work that people do. And we push on intellectual property law, to get some wages back to be reimbursed. But it's not because we care that much about the unauthorized copying, it's because—at least this is what I'm hearing in a lot of the interviews—is because people think what they do is being devalued. Their identity as a professional, for example. And they're not being paid well, or they're being paid less than they used to. And some people will say, well, competition breeds better consumer choices and lower prices for consumers. A lot of other people will say, we are in a time where people are making less money than they've ever done before. And the wealth inequities are greater than they've ever been before. The concentration of wealth is incredible in terms of the platforms and the people who are doing the work. That is the difference between them. And so one of the things that the first chapter on equality does, and the third chapter on distributive justice does is analyze IP as a capital asset that's not actually distributing proportionately value across the board to those who are doing the work.
Blomster: That’s a fascinating perspective, and very convincing. UW law has a top ranked IP program, there's so many passionate students who are here, who are, you know, working hard to be the next leaders in this field. So what advice would you give to someone that wants to get involved in this field of law in terms of how they can continue to advance the field in this age?
Silbey: There are so many opportunities, actually. I think that working as a lawyer in tech, and IP and privacy regulation, presents opportunities to work in communities to develop small businesses, to promote freedom of expression and opportunity for. I mean, if you think if you think only about how are we going to revive journalism in the United States, different kind of business platforms that facilitate fact investigation and truth telling you think about small businesses and the importance of people being able to control their own destiny with regard to their own work? So much of that has to do with not only business structure, but it has to do with the regulation of digital technologies. And I think intellectual property, and privacy are basically the two and machines, you know, I would say robots and algorithms are critical to how people are going to work actually, just work in the 21st century, and be valued for the work that they do. So I think it's inevitable, actually, that lawyers in the future are going to have to wrestle with these kinds of regulations.
Blomster: Okay, and then just for fun, we talked about the monkey selfie case. We've seen so many different copyrights case from Adidas and the stripes, and I saw something about Mike Tyson’s tattoo artist suing, you know, Warner Brothers for The Hangover tattoo, what's another quirky weird case that you've seen or come across?
Silbey: There's so many. You want a funny case, or you want a poignant case?
Blomster: We could do one of each.
Silbey: Okay, here is a poignant case people talk about. So there was a wedding photographer who made pictures of a gay couple’s engagement, and put it on her website as a wedding photographer. And an anti-gay political action group scraped the photo and used it in their material to criticize marriage equality. And that kind of case, there are a lot of these photographic copyright cases where the subject of the photograph joined with the photographer to sue the group who was using the photo in a political way. And that was actually contested in complex case because in some ways, it could be fair use, because it's transforming the use of the photo to say something different than it was saying before. That would be one argument. But of course, the subjects of the photos felt defamed and being put in a false light. And so there was actually heated argument about whether that was a copyright violation, whether it’s a violation. And of course, it's just hurtful. So that's one. That's called Hill.
Blomster: That's shocking that that was that complex of a debate. To me, that seems pretty not right.
Silbey: So the privacy claim failed in that case, because the First Amendment is so strong to defeat privacy claims, but the copyright claim succeeded, because the copyright claim is a better defense against the First Amendment. So it's an example where those two causes of action are brought in tandem, but only the copyright claim survives. So that's a poignant case. And there are a lot of people who are trying to control the use of their image online through copyright.
Let's see, well, here's a trademark case. We haven't talked about a trademark case yet. So Louis Vuitton sues a lot of people all the time. And there was a case against a company called My Other Bag—MOB—where the image of Louis Vuitton’s bag was on a canvas bag and so it's just a plain canvas bag with Louis Vuitton’s bag on it and it said “My Other Bag,” and so it's a joke, right? So this is somebody saying you know at home I have a Louis Vuitton but right now I'm carrying a canvas bag with an image of a Louis Vuitton and Louis Vuitton sued them for trademark infringement. And of course, it's a parody. It's a joke. And no one thinks when they're buying a canvas bag with a picture of Louis Vuitton’s bag on it that they're buying a Louis Vuitton. There's no consumer confusion. But you know, that kind of lawsuit happens a lot by luxury brands because they want to control their personality and their identity in the marketplace from being diluted or tarnished or something like that.
Blomster: That's really funny.
Silbey: Yeah.
Blomster: Jessica Silbey is professor of law at Northeastern University and co-director of the law school’ss Center for Law, Innovation and Creativity. Her forthcoming book, Against Progress: Intellectual Property and Fundamental Values in the Internet Age will be out next year. And in the meantime, you can really dive into a primer on this next step of our conversation in her book, The Eureka Myth: Creators, Innovators and Everyday Intellectual Property. So be sure to check out the show notes on the episode page for links to that and other work by Professor Silbey.
Jessica, thank you very much for being here on şěĚŇĘÓƵ.
Silbey: It was fun. Thank you.
