Pomo Periscope XVII: Intellectual Property as Narrative
9 December 2007 at 12:03 pm Peter G. Klein 1 comment
| Peter Klein |
[T]here remains a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection. This is in part because the economic analysis of law tends to undervalue the humanistic element of intellectual property. This Article aims to fill that void. It offers a new explanation for intellectual property rooted in narrative theory. Whereas utilitarianism and natural rights theories are familiar, there is at least another basis for intellectual property protection. This Article contends that all the U.S. copyright, patent and trademark regimes are structured around and legitimated by central origin myths — stories that glorify and valorize enchanted moments of creation, discovery or identity. As a cultural analysis of law, rather than the more familiar economic theory of law, this Article seeks to explain how these intellectual property regimes work the way they do.
This is from Jessica M. Silbey’s paper, “The Mythical Beginnings of Intellectual Property,” in of the Berkeley Center for Law and Technology working-paper series. Postmodernism has had a growing influence in legal theory since at least the critical legal studies (CLS) movement of the 1970s. Proponents of that movement, according to the Legal Information Institute’s dictionary, “believe that logic and structure attributed to the law grow out of the power relationships of the society. The law exists to support the interests of the party or class that forms it and is merely a collection of beliefs and prejudices that legitimize the injustices of society.”
CLS is particuarly hostile to contemporary law and economics: see, for example, Duncan Kennedy’s entry in the New Palgrave Dictionary of Economics and the Law. (Other essays by Harvard Law’s Kennedy include “A Cultural Pluralist Case for Affirmative Action in Legal Academia,” “A Left Phenomenological Critique of the Hart/Kelsen Theory of Legal Interpretation,” “The Role of Law in Economic Thought: Essays on the Fetishism of Commodities,” “Legal Education and the Reproduction of Hierarchy,” and “Sexual Abuse, Sexy Dressing and the Eroticization of Domination.”) For a more balanced perspective see Wayne Eastman’s comparison of CLS and law and economics from the Encyclopedia of Law and Economics.
Entry filed under: - Klein -, Institutions, Pomo Periscope.
Organizations and Markets 
1.
twofish | 16 December 2007 at 5:09 am
It’s brilliant papers that this that make me a fan of postmodernism. To rephrase Theodore Sturgeon, eighty percent of postmodernism is crap, but that’s because eighty percent of everything is crap. Silkey’s paper is right on the money, because it agrees with my observation that how people think innovation happens isn’t how it actually does happen.
My main disagreement with postmodernism and critical theory lies with the idea that the power structures that they see forming are inherently unjust. Power structures are what you get when you put a bunch of human beings together, and the very unhealthy power relations you find in academic departments makes me think that while the insights that critical theorists haven’t anything better to offer than the situations they are criticizing.
But in the case of Silbey, what she is arguing is that intellectual property is based on false mythology rather than economic rationality, which makes a lot of sense to me. As a software developer, you’d think that it would be in my interests to support strong intellectual property rights, but I don’t because its very obvious to me that I economically benefit from weak protections, and that a lot of the assumptions and myths that support strong protections are hokum…..