What’s a Nice Law Professor Like You Doing at a Conference Like This? Katherine J. Strandburg Albert B. Engelberg Professor New York University School of Law

What is Legal Scholarship? Our overall research question: How should law be designed to advance society’s goals, i.e. social welfare maximization, distributive justice, etc.? Law profs have diverse disciplinary backgrounds (e.g., NYU law profs have advanced degrees in: economics, English literature, political science, psychology, computer science, physics, history, philosophy, public policy, sociology, chemistry) Law profs tend to be disciplinary magpies –We try to learn from and apply a variety of disciplines –With the advantages and disadvantages that result

Innovation-Related Research Questions How can law best provide a framework for socially valuable innovation? E.g. IP law, tax law, consumer law, contract law … When are patents, copyright, trademarks, etc. socially useful? When are they unnecessary or harmful? When are other approaches and institutions (e.g. open source, social norms, crowd-sourcing, prizes) preferable? What is the best doctrinal design? E.g., for patents, what subject matter, what threshold of inventiveness, what disclosure requirements, what scope of claims, how best administered? Similar questions for other approaches

Innovation System Specs Motivate people to: –Invent a variety of new and useful things –Disclose new knowledge to downstream innovators –Commercialize or otherwise disseminate the inventions to users or consumers While minimizing: –Costs to users/consumers –Costs to downstream innovators –Deadweight losses –Bargaining costs, administration costs, other transaction costs –Undesirable distributional consequences

The Patent Innovation System Patent exclusive rights motivate: –Seller invention by deterring “free riding” competitors –Disclosure as opposed to trade secrecy –Dissemination through sales and licensing But patents have costs: –Users/consumers pay higher prices, social value may not equal ability to pay –Downstream innovators pay higher prices for inputs or may be precluded from using them –Transaction costs of bargaining, licensing, defining rights, etc.

Why UI Research Matters to Legal Scholars Example: Patent Law  Incentive To Invent -User innovators recoup investments by user, rather than by sales/licensing, thus there may be no “free rider” problem to solve  Incentive To Disclose -Some inventions are “self-disclosing-in-use” to and/or user innovators may freely reveal  Incentive To Disseminate/Commercialize -Some user inventions can be directly adopted by

Why UI Research Matters to IP Scholars Implications: User innovation reduces need for patents “With no need for patent[s] to motivate [user] invention, the focus shifts to disclosure and dissemination.” Strandburg (2008) User innovator communities provide alternative governance institutions that may be disrupted by the availability of IP Possible doctrinal directions: Patentable subject matter could exclude areas dominated by user innovation Infringement exemptions for user innovator communities Trademarks may take on greater importance to the extent that user innovators rely on reputation rewards, norms of reciprocity

Is the Message Getting Through? Law review articles mentioning “user innovation” or “von Hippel”

Does UOI Research Need Legal Scholars? Law is an important part of the innovation context, which affects –Incentives of users and producers –Transaction costs –Distributive outcomes Legal scholars can –identify relevant questions and factors Cannot assess the effects (for good or for ill) of law on innovation if law is “invisible” to researchers –avoid errors based on erroneous or simplistic understandings of legal concepts, doctrines the patent citation example –propose ways to “design around” or change legal rules. GPL is one example

Does UOI Research Need Legal Scholars? Legal scholars have expertise related to leading edge issues in UOI research, including: –Governance –Likely sources of conflict –Conflict avoidance and resolution –Fairness, consumer protection and distributive justice Legal opinions, court files and contractual agreements are a potentially rich source of historical and current data about pitfalls, problems, and solutions in various innovation contexts –Contracting for Innovation example (Gilson et al)

Does UOI Research Need Legal Scholars? Legal theory is a potentially useful source of concepts and ideas –E.g. trade-offs between rules and standards, substance and procedure in institutional design –E.g. interactions between norms, law, architecture –E.g. need for incentives to invent, disclose, disseminate –E.g. interpretations and understandings of “property” and “ownership” Legal scholars already are studying similar issues –E.g. “Innovation without IP” scholarship

Specific Invitation to Interdisciplinary Interaction IASC Thematic Conference on Knowledge Commons, iasckc.nyuengelberg.org -Sept. 5-6, 2014 at NYU, contact me if interested Knowledge Commons Governance Project, knowledge-commons.net Systematic case study framework based on Ostrom’s IAD approach modified to incorporate –“constructed” nature of knowledge “resources” –Legal “environment” User innovator communities would make terrific cases! Goal is to develop general understanding of what makes cooperative knowledge production work Initial studies forthcoming, Governing Knowledge Commons

A Modest Proposal for Next Year’s Conference Consider abolishing the Law, Policy and IP track and integrating the papers into the other tracks Perhaps add a track on Governance of UOI Law is best viewed as a part of the context in which innovation occurs and dialogue will benefit researchers from both perspectives