Innovation Law Beyond IP 2

The second "Innovation Law Beyond IP" conference at Yale Law School is this weekend. I helped organize the first conference last year to provide a space for the growing number of scholars who are thinking about the many legal institutions beyond IP laws that govern knowledge production. I posted a round-up of last year's accompanying blog symposium here.

This year we have another great crop of participants and discussants. I have already cross-posted my contribution to this year's blog symposium, on Intellectual Property as Global Public Finance (coauthored with Daniel Hemel). Here are the other posts written in preparation for the conference, along with a sentence pulled from each, ordered based on the conference agenda:

• Gabriel Michael, Innovation Law Beyond IP 2: Introducing the Blog Symposium. "This year's conference focuses on the role of the state, and the state's relationship to innovation."
• Amy Kapczynski, Innovation Law Beyond IP 2: Bringing the State Back In. "Is the modern state always inertial, ineffective, corrupt? Are there not real moments of democratic responsiveness[?] ... States play a critical role in this [global Flu Network], but importantly, they do not operate alone, nor as centralized Leviathans. Rather, they rely in making allocative decisions on scientific expertise and judgment, as well as scientific reputation, all of which are produced in decentralized fashion..."
• Deven Desai, We Don’t Need No State! Wait. The State Funds That? Never Mind. "If we think about systems that support innovation, it appears that there are three parts to such a system: 1. discovery 2. invention 3. innovation. The state plays a role for each part."
• Josh Sarnoff, The Likely Mismatch Between Federal R&D Funding and Optimal Innovation. "[E]ight general factors that are not related to optimal innovation theories actually determine how we make our government funding decisions that affect innovation."
• Michal Shur-Ofry, Access to Error. "[O]ur innovation ecosystem, both within and beyond IP, does not provide sufficient incentives for the dissemination of errors and other negative information." (For more on this topic, see Sean Seymore's The Null Patent.)
• Orly Lobel, Ceci N’est Pas Un Taxi: Definitional Defiance as Innovation in the Platform Economy. "By unpacking the economic and social drives for the rise of the platform economy, the article develops a new framework for asking whether digital disruptions comprise loopholes akin to regulatory arbitrage in the tax field, circumvention akin to controversial copyright protection reforms, or innovation-ripe negative spaces akin to design-around competition in patent law."
• Sofia Ranchordás, The Innovation State: "No Country" for Old Rules, only Experimental Ones? "I explore the complex nature of the innovation process and argue that an experimentalist approach to innovation implies using an array of temporary instruments that allow regulators to adjust the timing of their rules." (For those interested in experimentalist governance in innovation policy, see also my article Patent Experimentalism.)
• Kevin Collins, The Hidden Wisdom of Architectural Copyright Before the AWCPA. "[P]re-[Architectural Works Copyright Protection Act] architectural copyright was a well-engineered copyright regime because it allowed strangers to free ride on design information while it prevented building owners who were contractually related to architects from opportunistically appropriating disclosed information without full payment."
• Lea Shaver, Publishing Without Property. "[Social publishing is] a possible solution to copyright’s inequality problem, one which holds the potential to finally bring books to billions of readers long neglected by the mainstream publishing industry."
• Stephen LaPorte & Yana Welinder, Trademark Innovation to Support Open Collaboration. "Unlike copyright law’s Creative Commons and open source licenses, trademark law has not generated new inventions to support collaborative production on the internet."
• Guy Pessach, The Cost of Free and Paradoxes of Informational Capitalism. "[F]or those who cherish cultural environmentalism, cultural democracy and public-regarding media realms, the political economy of information and content markets that operate beyond the boundaries of IP may be no less challenging than old school corporate media."
• Nicholson Price, Regulating Secrecy. "I argue that way regulation strengthens trade secrecy is complex and is overlooked in current policy debates, and that regulatory regimes should act deliberately to reduce secrecy in heavily regulated industries."
• Mark Lemley, IP and Other Regulations. "[A]s we think of the broader regulatory toolbox for encouraging innovation, it is worth keeping in mind not only regulations that encourage innovation by restricting competition (within IP or without), but also regulations [like antitrust] that might encourage innovation by encouraging competition."
• Peter Lee, Centralization, Fragmentation, and Replication in the Genomic Data Commons. "[T]his paper examines four approaches for correcting, completing, and updating existing data: contributor-centric data management, third-party biocuration, community-based wikification, and specialized databases and genome browsers. It argues that these approaches reveal deep tensions between centralization and fragmentation of control within the genomic data commons."
• Michael Madison, Governing Knowledge Commons. "What is needed is an empirical strategy for investigating the mechanics of innovation systems that encourages both micro-level and system-level inquiry and invites comparing and eventually synthesizing lessons across diverse innovation domains, accepting linkages among commons-based production, user-innovation, IP-based production, and state-sponsored production."
• Kate Klonick, Creative Production Without Intellectual Property. "Ostrom created a framework for analyzing and studying these [commons governance] institutions, as a means of creating societal preconditions to support their development. But protecting and allocating natural resources like fish or air or land is slightly different than allocating culture and knowledge."
• Jorge Contreras, Property Rules and Liability Rules for Genetic Data. "I suggest that the informed consent requirement for noninvasive research be replaced by a liability rule regime in which abusive data practices are prohibited, but permissible research cannot be obstructed by individual data suppliers."
• Jessica Silbey, IP and Constitutional Equality. "In contrast to this utilitarian theory of IP, my qualitative data, read alongside the Supreme Court cases, suggests that equality is a governing principle for the just distribution of IP rights (as well as IP’s exceptions and limitations)."
• Camilla Hrdy, Cluster Competition. "[B]y subsidizing selected regional efforts at promoting innovation clusters, and by choosing winners early in the process and requiring collection and dissemination of information produced with public money, the federal government can resolve many of the problems associated with regional cluster competition, but without eliminating the benefits of decentralization, local knowledge, and competition discussed in the federalism literature."
• Liza Vertinsky, The State as Pharmaceutical Entrepreneur: Moving from Laws that Stifle to Laws that Foster. "Realizing the potential of government as entrepreneur, and balancing this with the role of government as regulator, requires adjustments to the legal framework governing public involvement in the pharmaceutical innovation process."