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Tuesday, January 29, 2013

What Good are Midlevel Principles in IP? [Thoughts on Justifying IP]

Like many others, I think that Justifying Intellectual Property is an excellent and important book—a must for any student of IP. Among many other virtues it has the captivating quality of being written in the voice of someone who has seen everything in this field (as Rob has) and yet is utterly engrossed by the delight and fascination of discovering something new (which was there all along).  Merges is a master in spreading this sense of delight and discovery as he explores aspects of IP normative theory that for decades were outside the realm of his scholarship. And the exploration of non-utilitarian “foundational” theories of IP is done with Rob’s usual mix of analytic precision and accessible, fun style.

But it would be no fun at all to simply agree and applaud!

So shifting into a somewhat more critical gear, here is another striking feature of the work. As I mentioned to Rob before, the book left me with the feeling that the writer had seen the light on the road to Damascus, and then climbed back on his horse and resumed his previous business as if little had happened. Put differently, the exploration of “foundational” theories appears like a short (and exciting, to be sure) rollercoaster ride in philosophy land, followed by a return to an ordinary, unchanged nine-to-five job in the cubical of ordinary (“midlevel”?) IP policy. Rob says as much with his own metaphor of the scientist who is plagued by doubts about where nature comes from, finds out the existence of a higher power behind the whole thing, and then rejoins his (law and economics) pals in the lab, with no change to the day to day work but with extra serenity about the enterprise (p. 11).

How does one pull such an impressive stunt?

I think that, to some extent, the choice of foundational theories covered in the book—especially what the choice leaves out (e.g. democratic theory of copyright; human flourishing accounts of IP)--helps. But the crucial element that enables this move is the concept of “midlevel principles” (borrowed by Rob from the work of Jules Coleman). In Rob’s account midlevel principles are organizing concepts that tie together many concrete rules (or practices) which are independent of “foundational” accounts, in the sense that different foundational positions may be consistent with and anchor the same set of midlevel principles. It is these midlevel principles (Rob lists four: nonremoval, proportionality, efficiency, dignity) that allow Rob to have his cake and eat it too. To the extent that the same list of midlevel principles is supported by all alternative foundational commitments, one gets the benefits of anchoring the principles (and the specific rules they back, one level down) in deep normative support while at the same time remaining free to forget about those philosophical theories.  A related benefit is that various participants in the policy debate can agree on a common ground for resolving specific IP policy issues without agreeing on foundational commitments. To paraphrase Rob, you can remain a diehard fan of English Stout and I’ll remain a devout follower of German hefeweizen, but we can both share a Budweiser at the Midlevel Bar and Grille, which is the only bar that would serve us both.   

So what’s wrong with IP policy midlevel principles? This question entails, no doubt, a complicated debate. But let me start off by mentioning, somewhat simplistically, two main difficulties of the concept of midlevel principles as applied to IP:

Midlevel principles have a built-in conservative bias!  Where do midlevel principles come from? As Rob explains, they are induced from existing specific rules and practices (to be sure, this is, most probably, subject to some coherence limitation that allows weeding out outlier specific rules). But what guarantee do we have that what IS is what OUGHT to be? The conservative bias in favor of whatever already exists is apparent. The method smells suspiciously like Burkian arguments about the inherent wisdom of the common law or perhaps like their cousins-- arguments about the efficiency of the common law from the heyday of the first wave of law and economics scholarship. But even those who are impressed by such arguments (I am not) should pause and think about the origin of IP law. IP doctrines and practices were produced by a mix of common-law-like judicial development and incremental legislation with all the well-known public-choice aspects and half-baked compromises that often characterize the latter. Why would anyone think that the outcome of this process is necessarily optimal or desirable, or even close to what should guide us in regard to future policy?! In moral philosophy inductive (or alternatively “reflective equilibrium”) methods of reasoning are often justified by reference to our existing moral intuitions in specific cases. Of course, those modes of justification are themselves a subject of a fierce debate, but at least the reference there is to existing intuitions and practices about what is RIGHT, not simply to what IS as a descriptive matter. Thus, to the extent that midlevel principles are ultimately derived from existing rules, they seem like unsupported clinging to whatever exists that blocks the possibility of implementing whatever should be.

Fuzz is the Price of consensus! Still wouldn’t it be nice if all of us, whether we practice at the church of efficiency or at the shrine of Lockean natural rights, could have a shared common ground for our IP policy exchanges? It would be very nice if it could be done, but (the pessimist that I am) I suspect that such “overlapping consensus” could be achieved only at the price of muddling the midlevel principles to the point of making them counter-productive. It is not that it is impossible for specific “foundational” commitments to produce overlapping results in specific cases. That happens all the time. Moral reasoning that starts with very different assumptions and tenets may certainly end with the same conclusion in regard to specific questions of application (e.g. is the Wind Done Gone fair use? Should there be a patent in a newly discovered naturally occurring substance?). But it would be surprising if one could reduce those areas of overlap in specific cases to a small number of (midlevel) principles that on the one hand cover most of the universe of IP policy, and on the other hand are determinate enough to supply actual guidance in regard to specific cases. I suspect that one can pull off the stunt of convergence of many foundational accounts on a small number of principles only by making those principles tremendously abstract and therefore hopelessly obscure. I mean, who wouldn’t like “proportionality” or “dignity” (or “love” for that matter)? But only by supplying a much richer account of these principles and what they assume one could endow them with specific meaning that makes them useful in regard to actual IP law and policy questions. Take for example the public domain (roughly synonymous with the nonremoval principle). Stated on a very high level of abstraction it simply means that some things should not be protected by IP. On such an abstract level who would not agree? (except perhaps, members of the small and secretive cult of very strict absolutist IP fundamentalism). But it is exactly when one asks the more relevant questions of application about what should be included in the public domain that disagreements begin to appear. These disagreements flow from different positions and normative assumptions that could be made intelligible only by appeal to different “foundational accounts.” Nothing in the abstractly stated midlevel principles is likely to solve these disagreements. And indeed when Rob disagrees with David Lange’s conception of the public domain and what should be included in it he does so precisely by appeal to foundational accounts—ones that Lange and others may not share (footnote 25 to chapter 5).

My point is, in part, that such an abstract “consensus” is not helpful because it often breaks down exactly when it matters—i.e. when hard concrete policy questions are at hand. Furthermore, such hopelessly abstract “shared” principles tend to generate two unfortunate phenomena in the IP policy debate. One is instances of fuzzy arguments that could justify almost anything (e.g. general observations about copyright’s “built-in” First Amendment safeguards). Another is instances of parties talking past each other in slogans without really understanding what the other is saying (e.g. the common format of an “efficiency” vs. “free speech” debate in copyright).  

None of this means that we should all be turned into moral philosophers. My hunch is, however, exactly the opposite of Rob’s on this issue. I think what we need is more rigorous understanding of “foundational theories” and how to apply them to specific IP policy questions and not intermediary, abstract “common ground” principles.  If we move in that direction at least we may be able to understand what we disagree on or which empirical information we lack; not to mention the utopian possibility of actually being able to persuade each other through deliberative reasoning.


Posted by O Bracha on January 29, 2013 at 06:04 PM | Permalink


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Thank you. As my principal concern was the characterization of common law, I'll leave aside the understanding of IP law in particular, indeed, grant much of what you have to say on the topic. And so as not to unravel the thread with regard to Merges's book and argument, I'll rest content with provoking a response to that concern.

For what it's worth (very little really), my own views on intellectual property are that much of the current law is morally unjustifiable, but that what remains after a control burn of the underbrush would be something similar to Madhavi Sunder's reliance on a Sen/Nussbaum-inspired "capabilities approach" in her recent book, From Goods to a Good Life: Intellectual Property and Global Justice (2012). I've yet to read the book under discussion here, but from what I gather Merges also critiques the "law and economics" approach, which I'm delighted to see fall out of fashion (insofar as it is normative), at least in some quarters.

Posted by: Patrick S. O'Donnell | Jan 30, 2013 7:03:01 AM

Thanks for this very thoughtful response.

Indeed it is true that reflective equilibrium is a common method for arguing about the ought, partly on the basis of the is. The relevant “is”, however, is one’s existing moral intuitions, which is not necessarily the same as existing law/practices. I’ll try to keep my comments on the relevance of this method to our subject short:

1. It does not seem to me that Merges’ list of midlevel principles is the outcome of reflective, equilibrium certainly reflective equilibrium in the wide sense (i.e. the testing of concrete cases and midlevel principles against the range of relevant developed moral theories involving repeated revision). As I said, it seems to me that these principles rather than representing a (temporary) stage where after repeated revisions there is no more reason to revise either the concrete judgments or the foundational theories, simply embody very high level of abstractions which could fit many theories and provide very little help in concrete controversial cases.

2. I don’t think that existing IP law about specific issues is necessarily tantamount to one’s moral intuitions about what is RIGHT in regard to those issues (largely due to [3] and [4] below). Accordingly I don’t believe that existing law is necessarily the source of concrete moral intuitions with which to start the reflective equilibrium process.

3. I think that the cited account of the common law, even with the disclaimer about the different institutional constraints, is way too optimistic. Common law adjudication unfolds not just under general institutional constraints such as stare decisis. It takes place in particular social and institutional context of power relations (i.e. who gets to litigate what with what resources); with a specific group of people (i.e. judges) who gets to decide; and in the context of state coercive violence which always requires legitimation. It’s not that the common law is always bad, but to my mind accepting the common law as an ever-adapting reflection of consensual reasoned moral judgments is too sanguine.

4. Even if one accepts the sanguine picture of the common law, we need to keep in mind that existing IP law is a product of both common law development and massive legislative parts (which codify preexisting common law only in part). Even common law avid optimists (or perhaps especially them) may find it hard to tell a similar sanguine story about IP legislation.

Posted by: Oren Bracha | Jan 29, 2013 10:31:51 PM

Cane notes the significantly different starting points of the two forms of reasoning, the philosopher granted a freedom the constraints on which are few, and perhaps even fairly hidden from view, while judges are not free to ignore existing rules, principles, and judgments: and this is not surprising if only because of “the extent to which consistency, coherence, stability, and predictability are more important in law than in morality.” Judicial law-making arises here from legal reasoning on individual cases by way of dispute resolution between parties, but consistency and predictability are only in tension with and thus in no way trump the “desirability of preserving flexibility to deal with new and unexpected circumstances,” this flexibility the fruit of inductive and analogical reasoning. Cane correctly reminds us that the common law “can show us how general moral principles…have been absorbed into the law,” and how their legal application in concrete cases may, in turn, influence thinking in the moral domain. Thus the common law might show us how to embody or instantiate—give concrete content and application to—our moral principles, our values, and our ideals.

Posted by: Patrick S. O'Donnell | Jan 29, 2013 8:51:13 PM

[Owing to the length of my comment, it will take several posts to complete (apparently TypePad now has word limits).]

If the existing rules and practices embody or realize moral principles and values, this is not ignoring what “ought to be,” but rather demonstrating how “the ought” has been and might be concretely realized in particular cases. Existing rules and practices can never completely or universally incarnate the moral principles, the history of law demonstrating how we might progressively realize these same principles in response to changing circumstances and the evolution of societies. Inductive and analogical reasoning from existing rules and practices in fact is not dissimilar from common forms of moral reasoning in philosophy, and in both cases we make reference “to existing intuitions and practices about what is RIGHT.”

As Peter Cane writes in his important book, Responsibility in Law and Morality (2002), “the terms in which the rules and principles of the common law are expressed are not canonical. Formulations of common law rules and principles are essentially provisional and open to reconsideration and revision in the light of further experience and of changes in value and outlook [cf. the comparatively inflexible canonical authority of legislation].”[….] Judicial reasoning about complex concepts…bears noteworthy similarities to ‘moral reasoning’ about such concepts.”

Our portrait of common law may be unduly distorted by the way in which we conceive the role of stare decisis and the rule of precedent, ignoring the part played by analogical reasoning in developing arguments beyond the existing “authoritative” legal literature. In fact, argues Cane, judicial reasoning is not too different from moral reasoning proper, the former of course taking place within an institutional context and circumscribed by the constraints of stare decisis and precedent. But of course such constraints are not determinative (consider variation, distinguishing, and overruling) and both forms of reasoning resort to notions of coherence, consistency, and even intuitions (in the case of judicial reasoning, through appeals to ‘commonsense morality’ or the moral beliefs of the ‘reasonable’ person). In both cases, we can see a model of “reflective equilibrium” at work:

“In its emphasis on consistency and coherence, and in its appeal to community values, judicial reasoning designed to justify particular legal rules and principles bears notable similarities to philosophical analysis designed to give an account of moral concepts. Philosophers, too, often start with ‘commonsense’ assumptions and intuitions. [….] The philosophical technique of ‘reflective equilibrium’ involves working such intuitions, convictions and judgments about a particular moral issue into a coherent analytical framework…. At its best, legal reasoning by appellate courts about complex concepts seeks a reflective equilibrium.’

Posted by: Patrick S. O'Donnell | Jan 29, 2013 8:48:38 PM

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