 My name is Chris Babitz. I'm with the Cyber Law Clinic here at HLS, which is based over at the Berkman Center. A couple of quick administrative notes. When we do these Tuesday launches over at 23 Everett, you probably know we kind of go around the room and do introductions, but this is a large enough group that probably not necessary to do that. We have a hashtag, hashtag Berkman, if you'd like to tweet about it, and Jessica's Twitter handle is up there on the board as well. I think the only real housekeeping bit of information is to remind you that we are being livestreamed. You can follow internet and record it. This will be archived later on if you'd like to go back and check it out, but just obviously keep that in mind if you raise any questions during the Q&A portion, which I hope will be very active, and Ed Popko and I have microphones, and when Jessica opens up to Q&A, we can assist. And I am thrilled to have the honor to introduce Jessica today, this new book, The Eureka Myth, which I think comes out next week, has a lot of us who work in this space very excited because Jessica had the novel idea that if we want to see how copyright law is doing at incentivizing people to create stuff, we should actually talk to creators. So that's what she did, and it looks like a terrific book. And with no further ado, I'll turn it over to you. Thanks, Jessica. Thanks. Well, thanks for having me, Chris. What Chris didn't mention is that we are old friends and went to law school together, and then meet again years later, which is always a nice thing. So thanks very much for having me here. I'm thrilled. This is actually the first time I'm talking about the book with the book in my hand. I actually just saw it for the first time like 25 minutes ago. So very exciting. Wow. And Chris is right. It's not only about copyright. It's about patent law and trademark law and intellectual property law. In general, I've been writing the book since 2008. Actually, I've been collecting the data since 2008. So a very, very long time. And I'm really glad to talk about it when now that it's finished. I've been working on it and talking to audiences for a very long time. And I was just mentioning to Ethan that it doesn't feel finished. This is really the first installment. And that's what data provides, is lots of room to massage it. And so this is going to be the first version of what the data on the ground says about how creators and innovators work in their fields and whether or how intellectual property helps them, because that's what we say it is supposed to do. I won't talk very much about the empirical data gathering. I'm happy to answer that question or many of those questions. Hi. Many of those questions in Q&A. This is a qualitative empirical analysis of 50 interviews, 50 plus interviews. I could talk about how those were structured and what questions I asked and et cetera, et cetera. Needless to say, there's a big appendix in the book that describes the methodology as well. Happy to answer that. But the best part about talking about this book is actually providing quotes from the interviews for audiences because the mark of really substantial qualitative analysis is when the interpretation of the data is consistent among audiences. So I read the data. I had another research assistant read the data. And we coded and analyzed the data. But really the data has to speak for itself when it comes together in a book. And so this talk and the talks that I give generally have a lot of quotes from the interviewees for you to judge for yourself whether you're hearing and understanding what I'm hearing and understanding across the interviews and in each one. So I'm going to start the talk by giving you a taste of what the interviews say or what the interviewers say. And what I'll just remind you is that I interviewed artists and scientists and engineers of all kinds. I interviewed lawyers and business people as well. So and I interviewed people who work in companies and people who are independent. I interviewed people who would consider themselves early beginners and people who've been in the business in their particular business for quite a long time. So there's a whole range. And again, I can talk about that stratification and the importance of that stratification in Q&A. But what I'm going to do is put some quotes up. And what I'd like you to think about as you're reading the quotes because they were the kind of questions I was wondering about is, how do people claim their work? How do they claim ownership over their work? Why might they claim ownership over their work? What value do they assign their work? Things that in intellectual property we care a lot about. And so I was thinking about that when I was interviewing them, although I never directly asked them, obviously, about IP until the end. So here's the first quote from Joan. These are all pseudonyms. She's a very, very well-regarded visual artist. And she says, I wanted to make paintings. I wanted to publish them. But I didn't want to own them. It's like having a litter of puppies and you find a good home for each one of them. So obviously, the interview took off from there. I had to ask, what does that mean and all that stuff. But there's the beginning. Here's an in-house patent lawyer, 25 years in the pharmaceutical industry, prosecuting patents, defending patents. Steve Jobs and Wozniak created the personal computer. Cohen and Boyer created biotech. But most of the rest of us near mortals just, you know, you learn from other people. And then the frontiers of science are pushed back gradually through similar ant-like persistence by scientists. Here's a third one. He's an in-house counsel at a publishing company. We took all of our DRM off of our content because it was driving customers crazy. And I don't blame them. I mean, we had two customer service people doing nothing full-time, but holding the hands of customers who had paid for stuff and then couldn't use it. I said, this is nuts, you know, so we lose. So people shoplift. You know, it happens. It happens. Here's a third quote from a, he's now a lawyer. He did work as a consultant to pharmaceutical companies scaling up medical technologies and medicines to large-scale operations. The lead investigator will be called into VP for the research office who say, we're shutting down the program. We decided, you know what? We spent too much. It's not economically viable for us. Your program's dead. It's like being told your child's dead. Work on something full-time for six years. I did one project where, this is what drove me to consulting. I worked on it for, my God, this is why I have no hair on my head. So what are we hearing in these quotes? They're hard to understand generally, and this is just a tip of the iceberg, right? Lots and lots of more and more context in the book, and I'm gonna give you more soon. These are hard to understand in traditional intellectual property frameworks. And yet, these are people who are steeped in IP rich fields, pharma, publishing, art. I'll show you some music. And so, hearing about how they claim and what they care about, and not hearing traditional intellectual property speak is interesting. I wanted to know how does intellectual property function in the lives of creative and innovative people? I wanted to know what their motives and their mechanisms were for engaging in, either beginning their engagement, every day working in their engagement, how do they make money in the creative innovative work? I wanted to know how they do that, and I wanted to know how intellectual property functions for them. We talk a lot about this incentive story. That is, since 1790, the first copyright act here in the United States and the first patent act. We talk about how IP protection incentivizes art and science or progress of useful arts and science, how it enables that kind of work to get done because it acts like a property right and we can recoup investment through exclusivity. That's what we say, that's what legislative say, that's what courts repeat over and over. That's what we hear. Yet, if you listen to this test, if you listen, I say testimony because I am, if you listen to this data, which I hope someday will be testimony, there are other stories. There are more complex stories, there are contradictory stories, and there are supplementary stories. The myth of the incentive is really an exaggerated or oversimplistic or sometimes just false story that we tell. One of the things I would love if you think more about as you're listening to more of these quotes is why does that story endure? Why does the incentive story, why is it so trenchant? How does that story function? So I'm gonna go through, this are the chapters in the book, and I'm really only gonna take you through one, two, three, and very quickly. I'm happy to talk about the value of reputation. You'll hear a little bit about that, how lawyers work in this space which turns out to be very unique or different than what the individuals and companies say, and then the role of distribution and intellectual property. Those three I don't talk about in this talk, but they're in the book and happy to answer questions. But let's talk about inspired beginnings. So one of the questions I always ask them is, how did they start there? How did they choose this profession? What led them to develop this particular product, for example? Tell me about your beginning in the particular creative and innovative space. And what I heard across all the interviews, the lawyers talking about their clients or the business people talking about their business or the musician talking about her beginnings as a musician were four common stories. There were four memes that were repeated. And sometimes the same person would talk about two of them, they're not mutually exclusive. It's serendipity or luck, I began intrinsic or natural forces and I'm gonna give you examples of all these. Play, I began or I developed this through player pleasure and the fourth is through need or urgency or sometimes called problem solving. So these four stories that I was hearing, which I wasn't planning on hearing necessarily, you take what you get from the data, actually are substantiated in psychological and sociological literature. That is this beginning of my empirical study, I found nothing new. So that's sort of depressing as an empirical scholar when you find nothing new in your data. But what that tells you is that your data is consistent with other substantiated studies that have been done past 20, 30 years. And so that was good. That meant my data collection was robust. But let me tell you about these four memes and what that might say about intellectual property law, which is new. So here's an example. I began as a painter but ended up a sculptor because my paintings were lost in the mail. So that's serendipity. This was a painter, she had her first full bright, full bright fellowship in India. She was gonna put on a show in six to eight weeks. Her paints never got from the United States to India and she had to put on a whole different show. She became a sculptor of found art, found objects on like nets and sticks. And she has forever been a sculptor with that kind of material. So that's how she began this illustrious career. I was always fascinated with the eye and blindness, especially after my mother was diagnosed with AMD. That's age-related macular degeneration. And so I combined my oncology background with ophthalmics. So this is a woman who made a blockbuster drug. She's out on the West Coast and where she is now. And she developed this drug in part to solve a problem that was close to her heart. Great science comes out of labs from people who have the freedom to play around. I call them juvenile delinquents. This is an in-house lawyer and vice president of a then startup. Now, so much a startup who was talking about, I asked how, where does the great stuff come from your company? Who's developing it? How does it work? And he says, really it's the people who are constantly breaking the rules and just playing hard in the lab who are generally our most avid inventors. And this is a musician who was talking about one of her most famous songs, not all of her songs happen this way, but she said this one just came to me nearly fully written and this was a song that actually earned her a lot of money at critical time in her life. And so this is intrinsic or natural forces. So these are beginnings. These are the beginnings and there's nothing, as I said, interesting from the creativity literature, but reasons other than property entitlements are provided for explaining why they began what they did. It's not IP law that is the carrot in front of these people at all and that seems sort of a gross overstatement. But maybe IP law shows up in the daily work. That is, once you've been inspired, like what gets you to work every day? What keeps you in the lab every day? What enables the investment of time in the lab every day or the studio that is somewhere we all need some sort of motivation? Where does that come from? So of course that was the next part of the interview that I would ask them, is all right. So tell me about your daily work. Tell me about how you do your work every day. What helps? What would help more? What stumbulance for you? And so the next part of the book is about daily craft, the work, and the work makes work quote here is actually from many of the interviewees in some form or another, talked about the motivation and where the energy comes from as just the work. The work drives the work. And one person just looked at me like you get one job and you do another job and the work just makes the work. That's how you work every day. And I must have looked sort of quizzical because that's not how I experienced necessarily my everyday life. But they were talking a lot. Again, the creativity literature talks about this about flow. And so metaphors that they use and explanations that they provide for what facilitates everyday work, they talk a lot about time and space. That is they need time. They need large chunks of time. They need free time, unencumbered time, and they need a space to do it. It's Virginia Woolf's Room of One Own. It's a lab that is fully stocked, for example. But these are the things that matter to them and these are the things that they need to count on in order to be able to do the work. And then the rhythm and propulsion that is there is a natural flow that they talk about that. And what I was hearing, and I'm gonna give you more quotes soon, what I was hearing also is that it's not the output that mattered to them as much, that is they weren't defined by what they made, but that they made things. That is they were defined by their everyday work, the practice of working, rather than the output. And they very much valued labor. Labor, the language of labor was all over this. Hard work, hard work that they valued that they were proud of. So examples, they talk about the dogged pursuit of making a film, for example. How drafting a software is painfully mechanical. Military operation, writing a novel is like a military operation. You've got to put chess pieces here and figure things out. Brick laying, that writing is like brick laying, one piece after another, one step after another. This is, I mean, if you ask what's the value here, the value is in the everyday work, the hard work that they really, really love. So here's an example from a writer. I think of writing, having some similarity to exercise, it being something that I need to do everyday. It's not really explicable. There are plenty of people who don't have to exercise everyday, but when I do, it feels better. This is not property talk. I mean, again, I have to keep reminding people this is not the way we talk necessarily about why we want to own property and how we own property. Here's another example. I usually, this is a different artist, a visual artist. I usually work pretty small, just in notebooks. And my agent was like, oh, well, you need to make bigger ones. And the gallery said, you need to make bigger ones. And there was this nervous laughter. And I was like, yeah, but you know, I could spend a lot of time working on the little ones. So you could charge for them. They were like, no, no, no, it's the size that has to be the price. And she said, I just don't understand it. So here, the value is time. That is, she wants to evaluate her work by how much time she puts in. And the art market in New York is not valuing it by time necessarily. So there are a lot of other metaphors. So one of the things that you have to do is you have to figure out how are these people explaining what they mean, because I kept digging. What do you mean by paintings are like puppies? What do you mean like writing is like exercise? Asking that. They'll talk in metaphors. That's how we explain things, metaphors, elucidate. So there are lots of different metaphors, natural metaphors, harvesting, seeding, ideas, fishing. So what does this mean? So writing for me, it's like fishing. It's like you go out there every day and some days you catch something interesting and some days you catch pretty much nothing. So that's her example of how she works every day. An IP lawyer, his role is to harvest invention. I heard the word harvest a lot. Familiarial metaphors. So this is not, once I say this, you're gonna be like, yeah, I've heard this before. If someone here comes to us and I have a story about a boy and his dog and we read it and go, wow, it looks great. We'll partner with them. This is a content creation company and talking about how his employees often come to him with ideas. We don't take it over. We're different than other companies. We don't say, all right, now we own your property. We partner with them. We take it out together. It's an ethical thing for us. It's their baby, it's their child. We don't believe in taking it away from them. We believe in partnering with them. So of course, the skeptic in me, I mean, I'm sure a skeptic in you says, right, you don't partner. What actually is the legal relationship between the employee and the employer here? And of course I would ask all those questions and we can talk about that. But here what I wanna focus on is the value of the work as described is in familial terms. It's deeply attached. We do not put our child up for sale. We do not alienate our child. We alienate property in the way intellectual property is structured to be alienable. This is a different way of talking about what matters to people that they're creating. There are tons of tangible claims. On the other side of the spectrum, the metaphors they use to describe their work. Polish writing, plagiarism is standing on someone else's scaffolding. Patents are chits for trading. Taking an idea is stealing someone else's homework. You've heard this one already. Breaching DRM is shoplifting value and this is a patent portfolio is value you can put your hands on. So all of these different ways of talking about what they're making and how they make are ways of explaining how they claim them, why they might wanna claim them, how they think they should be owning them and the harm that might be coming to them if something is taken for example. And they don't resonate with intellectual property. And just to be clear, intellectual property doesn't protect hard work or time or labor. That is it doesn't matter how hard you worked. Patents and patentable standards, trademark standards and copyright standards have nothing to do with how hard you worked. They don't protect laws of nature. They don't protect facts or ideas, anything like that. And it certainly doesn't have anything to do with personality necessarily or family. So these are not intellectual property values that I am hearing. And so I came to the conclusion pretty much halfway through that I'm just not hearing a lot of intellectual property speak that there is this misfit, profound misfit between IP rules and professional values in the creative and innovative spaces and that from the ground these misalignment or misfit is occurring. And then I wanted to know so what's the, how does that work? So how do they make money? So what is the effect of that misalignment? And so I asked a bunch of questions or testing the boundaries of when would they bring a lawsuit, what kind of harms, how do they negotiate it, how much do they understand about intellectual property. And what I learned, and this is the third chapter of the book, is that they make do with the misalignment. That is, they work around it, they figure out how to manage, what if they understand intellectual property, they'll make it work for them usually. Sometimes they don't and they don't care. And so one of the questions people always ask and I'm happy to answer this in Q&A also is, so if they're making do, why do we need to fix it? That's an important question. And I'm sure people in this room have lots of good answers to that, but we can talk about that. But let me tell you how they make do. This is more about what kind of mismatch is it, like how does the misalignment occur and why does it occur? And then we can wrap up and talk. So there are three primary ways that the misalignment occurs. That is, they totally misunderstand or don't understand intellectual property that is just pure misinformation and sometimes they prefer that. They don't wanna know anything about the law, they're just gonna call on the lawyer at the last minute or something like that. They just don't wanna know. Uninformed or uninterested. Often the misalignment happens cause they're gonna over enforce a property, an IP claim. They're gonna use copyright to get attribution, for example. They're gonna use trademark to overextend their intellectual property rights and they'll do that for particular reasons. And a lot of the time and most of the time I found they under enforce. That is, they tolerate all forms of infringement that intellectual property would otherwise not tolerate. That is, they are purposefully under utilizing their property right. So let me give examples of those. Look, this is a painter, a different painter. I've given you off, I think the three different painters. Look, ultimately I paint because I wanna share my visual, my sense of how I see the world, how I see color with other people. This was in response to how would you feel about if somebody put one of your paintings on a t-shirt? So I'm testing the boundaries of copying. Their tolerance for copying. I think I've gotta be totally not possessive about that. So as long as someone is doing it in a way that was up to quality, but if you think they're degrading your work that's one thing, right? So here's somebody, he doesn't know a whole lot about intellectual property. He thinks that degrading the work may be an infringement. And he thinks that he should, but he's also going to under enforce his property right on the t-shirt. So misinformed because most likely fair use would cover the critical market or the critical use and under protecting on the t-shirt. This is a investor, a telecom investor who's very, very savvy about intellectual property and is constantly starting companies and bringing them to market. We talk about the patents we're filing all the time and we say we just can't believe that some of these things are novel and not obvious, but we feel like we have to have them at the very least so that we can wave them in somebody's face, even though it's a kind of nuclear war. So the patent has sticks metaphor, the patent wars, this was all over the interviews. And this is an example of over-enforcement, knowing over-enforcement. So why is the misalignment happening? Oh, I got one more quote, sorry. Ripping CDs, this is a musician, Sharon's a living from her music most of the time, I should say. It's just free marketing. I mean, because people that actually buy CDs, it's gonna be there, you know? But I feel like if you're not going to buy it, but you're going to give it to your friends, great, if you're going to give it to five friends, that's fine, because I'd rather you have it if you're not going to buy it. I mean, I'm not saying that I want everyone to do that, obviously, that's a super important part, I think, of this quote. Because like I said, I'm still depending on the sales, but I mean, I discover a lot of good stuff by someone just bringing me a CD. So in this quote, I'm hearing one, she tolerates the infringement because it builds an audience, it builds market share, it builds relationships with people, she's not gonna tolerate it all the time because she needs to make a certain amount of money on the sale, but she's interested in relationships, she's interested in money, she's interested in making new things, these are all different reasons why she's gonna enforce or under-enforce her intellectual property rights. So the mismatch then, the why, so why is there over-enforcement, why is there under-enforcement, why are they just trying not to pay attention necessarily? Sometimes it's for making money, absolutely, they're trying to make money out of living, sometimes it's to build relationships, that's reputational interests, that's relationships with audiences, relationships with people, relationships with collaborators, and sometimes they're doing it to enhance their autonomy, their freedom, that is they wanna do things with their life and they're over-enforcing or under-enforcing, although they rarely over-enforce for freedom purposes, but they do sometimes, to maximize their own control over their life. So here are a couple examples of the why, patents became something developers really understood, this is an in-house counsel who is trying to get her engineers to come forward with invention disclosures, like how can I get you to cooperate, they're otherwise under-enforcing, they don't care so much, she's bringing them in, why? But patents became something I could get them to do, she says, because they personally benefited from it, there was a long, long history of invention in this country and you became part of a storied legacy of the great inventors, so patents wasn't a way, you know, a much easier sell. So this company went from not filing any patents because the engineers wouldn't cooperate to filing way too many patents from the perspective of somebody in the industry, because she could sell it to them as an ego booster. This is a, next one is a novelist, I never sell a book until it's finished, I don't take an advance, I don't take an advance because it's too nerve-wracking to have a deadline, I've worked on deadline for years as a journalist, but that's a different matter because I'm always terrified with a book that I won't be able to finish it, I mean because it just means I have to work my ass off doing something else, well not anymore because now I live on my royalties, but in the past I just kept on doing, for example I might have a weekly column and a newspaper, something like that that I could knock off in a day and a half and all the rest of the week I would work on my book. So she under-enforces her copyright, she still under-enforces her copyright even though she lives off her royalties, she's not transferring her copyright for an advance because she wants control over how she spends her time, this is about autonomy and time, she's not gonna do it, she'd get a huge advance, she is a best-selling author, she's still not doing it because she does not wanna be beholden to the deadlines. This is an in-house patent counsel. What I want in biotech, what I want is something that I can trade, again he's trying to convince the scientists to cooperate with him. I'm not interested in necessarily asserting these patents against anybody, I'm looking for something that either A gives me a quid to trade with somebody or we patent it first so that some other company can't patent it and then come to us for $100,000 a year royalty. So he's explaining the value of patents and the value of collecting the patents in terms of what the scientists care about which is room to run, defensive patenting so that they can continue to engage in their research without being exploited by other patent holders which was a problem. So these are all explanations for why intangible rights would be enforced in particular ways. And what I think is happening is that this mismatch exposes other stories, these other stories percolating in creative and innovative fields of collaboration and self-determination in the breach of what is otherwise the traditional IP story. Traditional IP values are less dominant, they are definitely here, I've not shown you all of them, you don't need to hear all of those, you know those stories too, they are also in the data and they're in the book but there are all of these other stories as well. And so if you spend what people do with qualitative data is they try to make sense of it in sort of graphs and grids, this is very rudimentary but what I try to do is figure out how the misfit works that is there's misunderstanding, over-enforcing and under-enforcing and then there are reasons for it on the Y-Axis making money, establishing relationships and enhancing freedoms and those can get more granular and they do in the book. And the pluses and minuses show where the bulk of the data is. That is there's not a lot of misinformation to make money, that is they're not usually misinformed about their property rights in order to make money for example but they often over-enforce to make money for example, they'll under-enforce to make money as well so that's just the first top. Now if you, then what happens is then you'll see that the under-enforcement is the one that satisfies all three pragmatic goals and enhancing freedom is so important that they use intellectual property like rights in all three different ways to establish that. That is they care more about freedom than they do about legal rights so they're gonna ignore that, they are going to over-enforce to enhance their freedom and they are gonna under-enforce to enhance their autonomy. So what do we make of something like this? Well there's a lot, they make do with this misalignment, they absolutely do and intellectual property is one of many tools that they use at their disposal but it's really not the dominant, it's not the dominant one in most of the interviews that I talk to and how do they make money? This is just a traditional, they just do it in traditional ways and the second half of the third chapter is how they use contracts and how first mover advantage works, complimentary products, building market share, personal relationships, loyalty and reputation, IP and defensive ways and IP and offensive ways and so it's this panoply of mechanisms by which they make a living, make a living as much as they can on their own terms and intellectual property plays a much smaller role than we otherwise hear. So diverse revenue streams, open and fair competition are things that they care about, community-centered innovation, IP is present but not uniformly dominant. So the takeaway then really is that on the one hand, it's a Goldilocks theory of intellectual property, IP does too much, it obstructs access and growth, it intrudes on play and experimentation and it's not the only or most valuable asset or service. You've heard this story before, this is again not necessarily new but this data is provided from the ground up. It's also sometimes doesn't do enough and this is where the critique sometimes comes in, doesn't control reputation and identity, people really care about that. So one people ask me, should we revive a moral rights? Do we care about attribution so much that we should have a moral rights, more of a robust moral rights in the United States that runs up against the First Amendment? We can talk about that. It does not protect time and labor. There are other ways we could do that. Should IP do that? I don't know if IP should do that but it's something that propels creative and innovative work and so maybe if we wanna promote progress of science and the useful arts, maybe we should care about that and it encourages holdout behavior which is of course something that we do care quite a lot about. So one of the things that I care about is that IP should be right in ways that matter. It really should be right in ways that it doesn't matter. I think it shouldn't exist anymore. That's my harsh takeaway. That is far from where we are today but I think this data in this study suggests that it's not right in ways that matter substantially to a lot of people. I think we ask IP to do too much most of the time. I think we have to think about optimal alignments of intellectual property and creativity and we should stop talking about the incentive story and start talking about all these other stories that generate creative and innovative work. And so with that, I would love to talk more about the book, answer any questions and generally throw it open to you all. Thanks Jessica. Ed has a microphone on that side of the room. I have one over here. I'll start. Hi, I was curious specifically with the quote that talked about degradation of the work and I think this is an issue that at least in the US copyright doesn't really address it all and actually is one of the primary drivers that causes artists to over enforce and I was curious what you found on that point and what your recommendations would be. Obviously it's probably in your book and I'll forget. So I think actually there's one more. I have another quote on degradation. This is, he's a composer. He says, being a composer is a lot less lucrative than being a chemical engineer. If I were in it for the money, I would have made a poor choice. If someone was copying, I really wouldn't care. If it was bringing satisfaction to the people who are doing it, I get to see what I might realize the way I want it realized in my own company. If somebody wants to see it differently in a different venue that makes them happy, that's great. They were doing it and not making money, I wouldn't care. So this is commercial versus non-commercial use. If they were doing it and bringing in a profit, I'd like a piece of it. I mean it depends on how much money they're making from it. As long as it's not defamatory of the original, they can do whatever they want. Like okay, so you start coding the data in your own terms. That's misunderstanding of the way copyright will work. Like defamation and copyright co-exist. And if somebody wants to reinterpret a character which is in a non-offensive way, it's a slightly different interpretation. So fair use, defamation, copyright. The data is very consistent. Even the inventors, they don't want their stuff, even if they don't own it anymore because they've assigned it to their company or they've assigned it to a different company. They don't want their stuff being used in ways that they disagree with. And so you're seeing more side agreements about how the invention could be used. I think we cannot, I personally think having an attribution right in the United States is highly problematic. Like what does it mean to be accurately attributed to something you have to agree, pre-approval, all that stuff. But it is a primary example of where over-enforcement happens. And I think you're right, we see a lot of lawsuits that make maybe bad law under those circumstances. So I have to say, I don't know what to do about it, but I think about their damage regime and copyright. You could have mitigation of damages if there's accurate attribution. I think about compulsory licensing schemes. I think about notice regimes. All of those I think could help authors feel like they have a little bit more control over where their stuff goes. And the feeling of control I think goes a long way and it might not disrupt the First Amendment concerns that really we are one of the only places in the world that wrestles with it. Hello, thank you for some very interesting quotes. And I noticed that when you were talking about the background of the people who you interviewed, most of the time you said this is a really successful novelist or this is a really successful artist. And I was wondering if there are any systematic, if you talk to folks who are not successful at their craft, which I assume you did. And are there systematic differences in how they view their intellectual property or there are in relation to intellectual property? So that's a really important question. So the data is stratified as between people who were in their first 25 years of work and their second 25 years of work. So I did select and code for duration in their field in order to test that. And one of the wonderful ways about the way the data is organized, it's in a database, a software system called Atlas TI, which is a qualitative analytics. And I can select all the people who are young and not making money, for example, off their work and see whether they and look at those transcripts and compare them to the other folks. And no, the answer is they don't talk differently. You would think that, for example, people who make a lot of money may be under enforced now because they have more money and they don't care as much. That doesn't turn out to be the case. People who are young and don't have a lot of money might be more enforced more. I didn't find statistically, I mean, this is not a statistical sample, but I didn't find any relevance. We could, and this is one of the things that I'm hoping is going to come from this data, I'm going to run surveys now. Big number surveys with isolated groups to see how these variables, which are factual variables, distribute over larger populations. So I'm interested do graphic artists speak differently than oil painters, for example, photographers speak differently than print journalists. I am interested in that. But no, in this data set, I did not hear anything profoundly different. But that doesn't mean that in a larger sample, I might hear something different and there might exist different variation. What about differences between, so some of the people you talked to were the actual creators, the writer, the reporting artist, and some of them were the representative of the companies that then exploit their work. I could imagine a situation where a songwriter or a writer might say, well, I don't particularly think about this, but the in-house lawyer, having been an in-house lawyer for a major content company would speak very differently about how the company invests. So the lawyers do speak differently. So there's a whole chapter on them, in part because they do speak differently. And I'll admit it was the chapter that I was least interested in writing, having been a lawyer myself, I was like, yeah, I know this already kind of thing. But what I didn't know as writing it, the lawyers are very, very practical and they wanna do what their client wants. And so what was the most interesting about interviewing the lawyers is how they talk about what their clients describe wanting. And then how they facilitate getting that. And so there was an incredible self-reflection and sort of meta-consciousness that the lawyers were exhibiting that I found very helpful to break apart how do they guide their client to file the split sheet in the music context when the musician says I don't wanna do it because it's my boyfriend I wrote this with, for example. And the lawyers talk also in terms of IP as a tool, IP can facilitate their autonomy and facilitate relationships that they wanna have or protect relationships. The lawyers talk in the same way about their clients, but in a much more self-conscious way about intellectual property. Hi. Hi. I think this is wonderful work. Thank you. And to go out and actually examine to look at the horse. I know, talk to real people, huh? Yeah, I know. See what's going on. Two thoughts or questions. One is, I come at this with a little bit of a prejudice, but I think I also saw it in what you were saying, that probably transaction costs play a very important role in terms of what the actors, what the creators in it see as possible and see as their set of incentives. And obviously transaction costs are very different in copyright than they are in patent, et cetera. So that's one thought. Did you see some sort of gradient there? And the other is sui generis systems. So in contract, you can create all kinds of regimes. You can create almost any regime that you want. Creative Commons has got a number of those regimes. The non-assertion patent stuff is another regime, blah, blah, blah. There are many, many regimes. Did you see any comments on that? Right, so the transaction cost is interesting because what I saw is people in the copyright field thinking that there were more transaction costs in copyright than there actually were. Like, they think they had to register. Well, I hadn't registered that, so I had to let that one go, for example. They perceived many more transaction costs in protecting their work rather than making their work. They did talk about, in shoving the law or the lawyer to the side, they thought they were minimizing transaction costs. And that's why loyalty relationships and personal relationships were so dominant in how do they get their work done every day, what facilitates the things. It's because they're trying to just get all that red tape stuff away from them and they think, I can do this on a handshake. And a lot of the times, they actually do. So in that way, yes, they are worried about that. They just want to be free from all that. And that leads to the answer to the second question, which is that contracting, trying to creating their own relationships through contract was so important to them. And what they didn't understand is how contract builds on all these other things or how it can tie up more. And I did not hear a lot about like creative commons or freeware. I didn't hear a lot about that in terms of the other kinds of transactional systems. But there was this perception of contracts being unique to them. And therefore, what I heard when they were talking about the value of contractual privity rather than a property right, for example, was that it was their own. It was their unique, and it was their way of controlling things. But interestingly enough, they'd also say how they thought a lot of the times contracts didn't matter, like they could break them. And I waive my vera rights all the time, but that doesn't mean I'm not gonna sue them if they do that kind of stuff. So they had a malleable view of contracts, which they didn't have of other things, on which I thought was an interesting ideology of how contract works. I'll keep it short. What is the role of marketing research firms today? The role of what, what do I think the role of marketing research? Yeah, exactly. I mean, because they used to be involved in the property rights process and the negotiation. I mainly worked with Fortune 500 companies. Do you know what I'm talking about, right? You know, they have, they would do telephone surveys, have focus groups, and it's just a diplomatic exchange of money, ostensibly to avoid lawsuits, but. To ask what kind of questions? Yeah, well, what is the role, I mean, what is the role of those types of consulting firms today? So I'm not a marketing expert. I don't really know. Well, there was no marketing, starting in the 90s, there was no marketing involved. There was just a, oh, so now you're peaking. I mean, there's a lot of data in my database and some of it got in my head. Okay, so right, thank you. So several of the pharma lawyers, when I ask them what gets in the way of their business, they'd say direct marketing to consumers. They say direct marketing of drugs to consumers has completely screwed up our industry, for example. You know, to ask your doctor about blah, blah, blah, you know, he says that has contributed substantially to the demise he believes of the industry. Two people said that to me in two different firms. Both had been in the business actually quite a long time. And then in the reputation part of the book, in the chapter on reputation, it's where I talk mostly about trademarks. And what I see in that field is people believing that their reputation through their branding is going to be hurt when it won't, in fact. When the research shows that big brand is used in a negative way, it doesn't actually hurt their brand loyalty all that much. But they police the brand in a gigantic way or an over a protective way in those contexts. And so the dilution cause of action, as it turns out, they think is very, very valuable contrary to empirical evidence. I don't know if that answers your question, but reputation and the perception, ego claims. There's a lot of ego claims going on in the data which intellectual property has nothing to say about, actually. So really, really interesting talk, thank you. And as we were talking earlier, this is an area that it's shocking when you dig into this space that there isn't more research done about this sort of stuff. And I found that your descriptions of what motivates people to create very, very closely to my own personal experience and the experience of a lot of clients that the Cyrolyte Clinic works with. But I always noticed that the IP regime was never too far behind, right? It was always sort of, in every one of those stories, it always seems like it was just right there. Like, I don't care so much about the property, I get money through contract, but I'm guessing the counterparty to your contract cares about the property because that's what they're paying you for. I'm living off my royalties now so I can decline more money because I already have money, but those royalties probably are also rooted in intellectual property. So it seems to me like, even if the regime itself is a bad fit, we need a regime. Would you say that your data comports the idea that it's better to have a regime than not have a regime? That it's an imperfect tool, but better to have the tool than not? So I don't know what would happen if we got rid of copyright and patent. I mean, has somebody before the talk say, we had a lot of creativity before 1709, for example, and there's a lot of innovation in times before we had patents. Actually, Petromozier, people know Petromozier. Petromozier has this great new study on pre-patent law inventions in Europe. So I'm not gonna have to guess, but I will say, I do think this data suggests that they do rely on some form of intellectual property sometimes, absolutely. And they like it, as the musician says, like I want them to buy the book, the music sometimes, absolutely, because I'm depending on those sales. And the author too, and the pharmaceutical company. The question really is the scope of it. And so this is really, I mean, my claims are actually quite modest, although sometimes the reactions are like, I must be tearing down the house or something. It's really quite modest. We just should not be able to say anymore that we need more of it, that we need broader rights, that we need longer rights, that we need more scope, broader scope. I just don't see the evidence for that. I do see the evidence that some of it is necessary. And I think the question really is aligning what parts are actually necessary with what parts are getting in the way of progress. We haven't talked about, and the next part of this project will be talking about what progress actually means to people. Because the progress clause is where all this comes from in the Constitution, and where the Congress gets its authority, and that's just a sort of an empty signifier. Like what actually is progress? We usually talk about progress as more, more money, more stuff. And because of Blystein's anti-discrimination principle and copyright, we say we can't judge the quality of the work, but people actually do do that. They do care about progress in a more substantive, qualitative way. Whether Congress should, I don't know, but I mean, I'd like to know what they think for that purpose. But yes, intellectual property is important to them, just not as important as Jack Valenti, might have to say, thought, for example. Peter, and a little bit more. Jessica, I assume that your book itself is a model of aligning IP and incentives. And so I was wondering if you could interview yourself about how the value, what motivated you and how it got played out in the IP arrangements for your book. Right, so OK, to really get naked in front of everybody. OK, so Professor's Nightmare, right? I actually had dreams last night that my teeth were falling out, you know, the Freudian dream. All right, loss and nerves and everything. So I wrote this book because I was tired of hearing the incentive story, and I really felt like we needed to figure out whether it exists really. Because I'd been an IP lawyer for a long enough time, and I teach IP, and it just felt like we say it a lot. Do we mean what we say? So it was a problem solving. So the beginning, inspired beginnings, were problem solving for me. Every day work, I didn't get paid to write the book, but I have a salary from another place. And I negotiated a contract where I'm pretty much not going to get paid for this book. And I negotiated a contract where it goes under Creative Commons after five years, so that it distributes widely. That was my goal. It does not orphan because I'm sure it will not go into second or third printings, for example. And I didn't want Stanford University Press to have the rights for life of the author plus 70 years because I wanted it to circulate. So the six chapters about distribution and the different ways intellectual property is used to maximize the kind of distribution that people care about. And I cared about widespread distribution, not royalties. But the publisher cared about making some money. And so one of the things that I did is ask them hard questions about how much money they thought they needed to publish this book. Because other presses publish it in Creative Commons. Yale, Oxford, UCAL is now doing just Creative Commons from the beginning. And I thought, why can't you do that, Stanford? And so they opened their books, and they said, and they showed me what books like this make and where they make their money. And I was told I could talk about this. I got their blessing to talk about this. Unlike my interviewees who I had to promise confidentiality. And so I was convinced by their numbers that they needed five years of exclusivity in order to stay going as a nonprofit academic press for my kind of book. Maybe if I was more famous, they would be able to do it right off the bat because people would buy the book anyway. So I negotiated a five year. So you don't have to buy the book. You can get it in five years for free. But I would like you to read the book. That would make me happy. Thanks for a great talk. My question, you may not have the data in your data set. Did you have any findings, or did you come to any conclusions about people for whom their creative production is entangled with other people's creative production and how that may shape or shift the conversation in different ways? You mean the actual making of it? Like cross licensing, for example, and stuff like that? It may not even be that formalized. I do a lot of work with sort of amateur creators. So they are doing creative productions, but they're often leveraging stuff that already exists there. Yes, I asked that question. I did ask that question in the interviews, in part because I was doing the interviews in people's offices or in people's studios. And I would see what I perceived to be copyright infringement everywhere. And I wanted to know what they thought about, is that appropriation art to them? What is that? And so I would ask those questions. Generally speaking, the artists and the writers had, on the one hand, an unsophisticated view of what infringement is. Basically piracy to them, most of the time, was infringement. But making something new with somebody else's stuff should really be OK. The time when it turned out not to be OK and they would feel creepy about what someone else did with their work or when they felt like they had to get permission was when it was about titles, for example, which I thought was weird because you don't actually have to get permission for titles. Or when they knew that the work was really important to that person, that there was some really personal connection. But then there was some sophisticated views, which it's not because they knew or didn't know, but they would ape the you're standing on the shoulders of giant story a lot of the time. That is, how do you write a novel without reading Jane Eyre and being inspired by Bronte? Of course, we're all inspired. So they would sometimes draw distinctions between inspiration and what they perceived to be unethical copying. And I will say one of them, I'm working on a piece right now about what borrowing might mean in this data. I'm interested in the concept of borrowing and how it doesn't fit well with intangible rights. But in fact, they talk about borrowing quite a bit and it didn't get into the book what borrowing might look like and I'm interested in figuring that out more. Because they do recognize it, especially the scientists. The scientists are the ones that are the most clueless about that actually. But yes, so it's there for sure. Thank you for the talk and this is perhaps a follow up question to the one that just came before. And this might split between the first 25 year group and the second 25 year group. Specifically, do you see a big difference with younger creators who might be from the beginning collaborating at great distances with people they may never see online? They may have a close and continuing relationship, not even thinking about the whole intellectual property angle. And then suddenly, there's something created. And hey, you have rights here in the United States and laws and such, but your collaborator, you may not have even talked to on a telephone over three years, should have rights but has no way to enforce them from Botswana or wherever. So that's an interesting question. I'm trying to think. The first thing that comes to my mind are the scientists who very much want to collaborate with people all over the world, the medical scientists, for example, medical device scientists, and the companies that I interviewed who do international work are sensitive to leakage when they go outside the United States. They feel comfortable in the United States doing the work, and they collaborate across borders. The intellectual property rights get much more complicated. And the scientists' rebel and the lawyers don't let them travel or don't let them speak until they've gotten all the IP buttoned up. So it's not between the younger generation and the older generation that I'm hearing it. It was between the lawyers on the one hand and the business people and the scientists on the other in the patent space, specifically in the medical space. I'm not thinking about, I can't think about anybody. Oh, now there's a novelist who won't put anything on the internet because she's worried, just doesn't know what that means, putting it on the internet and how it just gets out there and I have no control over it. And her publicist keeps saying you should put it on the internet and she's like I just, I don't know who all those people are who are on the internet. It's a very lead-eyed view of it. She's a best-selling author and she just feels like what do I need the internet for, right? That's what she sort of says. So it's not necessarily about collaborators is about control necessarily, but I hear what you're saying about sharing across borders. I didn't hear that, not off the top of my head, but I could, one of the values of this data is I could ask the data anything. It's a, I could ask the data almost anything because it's a Boolean search based on the codes. So I could go back and ask that question. To the control point, Chris Rock actually just had a really interesting interview about the control of practicing comedy routines in nightclubs and now people can tape them and share them and that might not be something you wanted out. It was sort of a single-use destruction. But to my question, which was when you talked about the writer who didn't want the advance and you categorized that as under-enforcement, are you distinguishing between under-exploitation, which is sort of what you're doing with your book. You're not exploiting it for the matter of time. Yeah, I am. That's a nice distinction. Thank you. I didn't mean to cut you off. Okay, so under-exploitation, I am unsatisfied with my over-enforcement, under-enforcement binary. I generally am unsatisfied with that, but the book had to get finished at some point. So maybe it gets revised. Right, so under-exploitation is a better way of saying it. But she's also, I mean, I think about it as under-enforcing. She's not enforcing it to the hilt as much as she could. She's not exploiting it. Do you see a difference between those two things? So tell me what you're... See, I have created a work, sorry. I'm a hobbyist photographer and I put my photos on Flickr and they're not CC by, so I'm not in Flickr's problem. But I absolutely find that people take them and go put them on websites and use them. And they're not making wild gobs of money and I don't care. That's under-enforcement. I'm certainly not taking and putting up a shop on M-PIX to sell my really high quality one. That's under-exploitation. I see, right, yes. So then I would put under-exploitation as a subcategory of under-enforcement. It's a further level of granularity. And one of the things that this, again, this data is entirely generative, in the next iteration, or if I'm gonna do a survey on how under-enforcement works, I might distinguish between exploitation, certain different kinds of claims, and I would make it more granular knowing that this is a larger category and I wanna see how it distributes. Absolutely, so I'm gonna take that, I take that absolutely as a further granularity of the category, thank you. So you've been speaking about the incentives myth for creators, the person who's actually creating, but in a lot of these cases, you've been talking about high technology firms. Is there an incentive, does the incentive myth hold true for the companies as well? So I thought that that's what I was gonna find and I didn't find that. It's so surprising, and the whole idea of the company as a person I'm politically very uncomfortable with, but they talk about their companies the way they talk about their creative work, the way companies, I mean the book ends, or there's a lovely quote by this guy who has, he's on his second company, you would think that once you go through many of them, they're all sort of fungible, but he talks about, let's see if I can read it to you because, so this is why I say people are the hardest piece of a company, right? How are we gonna derive economic value from our activities? Well the only way we're gonna do it is we can convince people to buy the product and if we can build a good product and make it work and that's all people driven. Technology, you know, it's all people built technology, but at the end of the day, people like to do business with other people and people are social by nature. And I think one of the greatest secrets about being a good entrepreneur and keeping your payroll down is understanding that people don't actually work for money. People need money and you have to pay them and if you don't pay them, they wouldn't work, but people don't work for money. You can pay people dramatically less money if you give them a chance to grow and learn and be part of something bigger than yourselves. And he goes on to talk about how I'm stuck in this company. I'm the owner and the CEO of this company. I have to make this place a place that I wanna work because I can't go anywhere. My employees can go other places. Whether it's, I mean, his company is 60-ish people. I interviewed people who are CEOs of much bigger company. They talk like that. Now you could ask, well that's the way they talk. Do they really think that way? And economists care a lot about behavior versus preferences, attitudes versus preferences. I think the way we talk matters, especially matters in law, because talk is testimony, talk is facts. I think the way we make sense of things through language actually changes the world. So I think how we talk, companies are talking that way, that matters. So I was surprised, actually. I mean, not all companies, I should say also, one company could have three different personalities. I mean, nobody is monolithic, not a person, not a company. And so when you interview people, different parts of the company, they might say different things. The lawyer might say something different than the CFO, for example, than the CEO. But that just goes to the plurality of ways these companies make sense rather than the unified or dominant way that we talk about what matters to companies, like shareholder value. That in and of itself doesn't make a lot of sense all by itself, so. Yeah, so as we've been having this discussion, I think your research method is really interesting both in this book and in the future work you've been describing about talking to people, conducting surveys that are attitudinal, but in talking about behavioral economics, there's a lot of concern about revealed preferences. I'm wondering if that is an area that you could hit on in your future work to see that if there's a disconnect between what people say about what motivates me and how they actually behave when money's on the line. Right, right, so it took 35 minutes to get to the behavioral economics, which I find incredibly liberating. So I can test how they talk versus how they behave, I mean so when I first started doing this research and I'm talking to a lot of people who are much smarter than me, people are saying like, you say you're an environmentalist, but when you brush your teeth, do you keep the water running? That kind of like, yes, I do keep the water, I like having the water run, well if you're actually environmentalist, you wouldn't do that. It's much more complicated than that, obviously. And by asking people, doing follow up questions, long form interviews can get at the inconsistencies in the data. So one of the things that this data says is that there's a diversity of ways people live off their creative and innovative work and there are diversity of things that they care about when they do it. And that money is just not necessarily always the most important and sometimes it is truly subordinate. I am not saying that money doesn't matter, I'm not, when you say you put the money on the line, like it depends on what line we're talking about. Like there is no money on earth that is gonna get me to sell my kid, right? But there is some money that might get me to travel a lot more so that I can build a fence around my house, for example, to keep my kids safe, you know what I mean? So I think the revealed preferences versus what people say is also an overused framework for something that is much more complicated. But right, I can ask in the surveys, I can absolutely say, how do you care about this? One to 10, one to five, and then ask, have you ever signed a contract that? Absolutely, I can do that to test those. But the interviews test that too for sure. Okay, as everyone said, thank you for this great presentation. Something that we didn't really judge upon is the fact that most of the artists you were referring to were kind of people who made the conscious decision to become artists. So I was wondering whether or not you heard anything from or having information on people who basically became, who are inadvertent casual content creators. So specifically what comes to mind is the young man who made that famous image of Steve Jobs on the day he died or anybody really today who comes out with some video or picture that ends up going viral. So I'm wondering if you found any information about them and what type of, I guess, space you think there is to talk about those people in the progress of intellectual property. So that's interesting. So the first thing that I think of is today I read an article about a girl whose face went viral on the internet and she didn't like the way she looked. People were making fun of her and she's filed a suit against Instagram to get it off and I am certain she is going to use intellectual property to try to get that. That's a different kind of question. How is intellectual property used when you're not otherwise thinking about promoting progress in science of the useful arts than how do people who do that that is conform to the constitutional prerogative use the regulatory system that is for them? So I haven't, I consciously only interviewed people who I thought were in the fields that consciously get regulated, not the ones that by happenstance would use intellectual property regime to help them get justice, for example. So I didn't interview, but I did have plenty of people who are working at jobs that are not their passion, that are not their art, or they are garage inventors, but by day they are something else. So I do have them, but they're not happenstance. They're deliberately working at it and that's because I thought it was important to identify as a creator or innovator in order for the intellectual property story to be meaningful for people who might be interested in reform. I think we will leave it at that and thank Jessica for her talk, thank you. Thank you.