Scholar Takes on Empiricist View of IP

Photo by porpeller

Empirical evidence tells us that all human existence is a sand castle. At best, if no other cataclysm comes first (and one probably will), the inexorable expansion of our sun will wash away the Earth and any evidence that we were ever here. One possible exception may be the two records affixed to the Voyager spacecraft, still traveling years beyond their life expectancy as Voyager 1 is now about 13 billion miles from Earth. Of course, the odds of those records being discovered by intelligent beings—let alone beings that find us interesting—are less than minuscule.

Empiricism can tell us which notes, instruments, chords, time signature, and lyrics describe Chuck Berry’s recording of “Johnny B. Goode” are on board Voyagers 1 and 2; but these data can hardly explain what it is about Berry’s playing that moves us more than others—or for that matter, why anyone would invent a guitar or learn to play it in a certain way, or why humans would bother building a pair of spacecraft to explore the solar system and then choose Chuck Berry as one of a very few representatives to say, This is who we were.

“In the Bible’s second creation account, God breathes the ‘breath of life’ into the first human, charges him with the responsibility of tending the garden, and provides him with a companion with whom he will fill the Earth with descendants. In other words, God gives humanity the opportunity to create culture.”  

This excerpt comes from a new paper by David W. Opderbeck, professor at Seton Hall University School of Law.  It is a fresh response to Mark A. Lemley’s 2015 paper, which asserted that all non-empirical arguments for the purpose of intellectual property law are “faith based” in the sense that they represent the kind of magical thinking that rejects science, data, and logic.

In May, inspired by Professor Robert P. Merges’s response to Lemley, I wrote a post discussing the utilitarian vs. natural rights views of intellectual property.  But Opderbeck, an IP scholar and theologian, offers a rebuttal that is ostensibly a response to Lemley, but which more broadly balances empiricism itself with the notion of “faith,” if we can use the term to generally describe the intangible principles that motivate humans to make choices, with or without religion.

As a secularist myself, I find the subject engaging because, contrary to many assumptions about us non-believers, atheism neither demands nihilism nor moral ambiguity nor a reduction of all human activity to the cold analysis of empirical study.  In short, one need not believe in God or practice any particular religion in order to act on “faith” that first principles exist upon which we can build a humane system of law. This is particularly important in nations where laws are meant to be secular.

Intellectual property law is particularly vulnerable to attack by academic (and not so academic) theorists because it is conceptual in nature and its utility is applied by a relatively small segment of the population.  Although society as a whole benefits from IP, the legal mechanisms are generally arcane; and so, it is relatively easy to propose and evangelize wide-ranging skepticism regarding IP’s original purpose.  Moreover, because one commonly-accepted goal of IP law is “incentive,” and because we Americans tend to view everything in the context of business—and because American creators are among those who can attain considerable wealth—it is not very surprising that many opinions tilt away from a natural-rights view of IP toward a utilitarian view.  Opderbeck, however, quarrels with the premise that we should approach any body of law—not just IP—from this perspective. “Without some first principles that justify why some form of consequentialist calculus produces normatively ‘good’ results,” he writes, “the utilitarian approach hangs in mid-air.”

Here the word good refers directly to the Bible’s creation myth, as in “God saw that it was good,” which is a theologian’s way of saying that purpose cannot be defined exclusively, if ever, by measuring specific outcomes. In fact, the values we cherish most—empathy, charity, love, creativity, civil liberty, etc.—do not derive their inherent “goodness” by virtue of measurable results.  “The legal positivism and related utilitarianism Lemley espouses … can speak in terms of maximization, but it cannot answer on its own terms why maximizing social welfare is ‘good’,” Opderbeck writes.

Where I imagine confusion is likely to occur with Lemley’s description of “faith based intellectual property” is the inherent tension that often exists between secular views, which are assumed to be rational; and religious views, which are assumed to be irrational.  As a secularist, I would agree that certain religiously-based views are either dysfunctional or mere rationalizations for cruelty toward the heterodox; but the same can be said of a strictly empiricist view as well.  And this is one of the more compelling points Opderbeck makes:  that Lemley’s view “reflects a monochromatic picture of human culture. Indeed, it reduces the human to the technological, and thereby encodes the very sort of authoritarianism it purports to eschew.”

Here, Opderbeck cites the story of the Tower of Babel as an allegory for technocracy.  “The utilitarian technocrats of our age are like Babel’s tower-builders,” he writes. The effort to encompass all human values within the rubric of what is quantifiable produces a convincing simulacrum of the ziggurat: precise, logical, geometric, orderly. It reaches to heaven, but never comprehends the transcendence that awaits it there, complacent in the belief – the faith – that it occupies the center of the universe, that there is no God or other power beyond its foundations in the Earth.”

If I may presume to place this in context to the current, public debate about intellectual property and the internet, the industry’s chronic assertion that an individual, human right like copyright “stands in the way of innovation” is analogous to the Tower builders’ blind insistence that their industry represents some grand, collective endeavor without regard for direction. Meanwhile, the curse of Babel—that we will no longer understand one another—is manifest daily in our contemporary politics.  “Utilitarian theories of culture do not produce precision and order. In the end, they produce oppression and violence, which leads to the babble of Babel,” writes Opderbeck.  Sounds like Twitter to me.

On the other hand, there is something to be said for building ziggurats, and no tower has ever reached higher or come closer to “touching the hand of God” than the Voyager mission with its gold record sampler plates of human history.  And while it is true that many religious (and even not so religious) people would not describe Chuck Berry himself as “good,” and some will have even described his music as “wicked,” I think most of us (even if we’re not from Boston) would agree that his music is “wicked good.”  This wordplay of course is echoed in the song’s polysemic title “Johnny B. Goode,” implying effort toward some goal (and morality?) not yet achieved.  So, the idea that this particular recording is among the evidence we sent into the unknown distance of eons, most likely to be received by nobody, suggests that we humans need not be blindly religious in order to consider that we do some very great things as a matter of faith. 

© 2017, David Newhoff. All rights reserved.

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