Academic journal article Santa Clara High Technology Law Journal

iPods and Prairie Fires: Designing Legal Regimes for Complex Intellectual Property Systems

Academic journal article Santa Clara High Technology Law Journal

iPods and Prairie Fires: Designing Legal Regimes for Complex Intellectual Property Systems

Article excerpt

Abstract

This article suggests that intellectual property works are the products of complex creative systems and, consequently, designers of legal regimes for the global information ecosystem can learn useful lessons from complexity theory. Several lessons can be drawn from simple analogies to two systems: the iPod music player and the tallgrass prairie ecosystem. First, good design of legal regimes requires empirical study of intellectual property systems. Empirical studies are likely to reveal significant variations among creative systems and one-size-fits-all laws may fail to optimize creation of intellectual property works. Second, there is a much wider variation in design possibilities than the traditional binary choice between private property and the public domain. Finally, legal regimes must tolerate certain chaotic elements essential to the sustainability of intellectual property systems. Such elements keep the systems poised at the edge of chaos where creativity lies.

I. INTRODUCTION

"Life is random."

--Advertising slogan for the iPod Shuffle. (1)

With this slogan, Apple nicely captured the zeitgeist, just as it has captured the markets for portable playback devices and legal music downloads. (2) Like much modern advertising, the slogan is catchy, but misleading. Life is not entirely random and neither is the Shuffle. Both involve systems that contain certain chaotic elements, which is to say that unpredictable behavior results from the aggregation of activities that follow established rules. The iPod, for example, is a complicated system in which hardware follows a set of rules dictated by software. The shuffle function builds a little element of controlled chaos into that system. The iPod "shuffles" the playlist to provide a pleasant element of unpredictability for the listener. The iPod's unpredictability is limited by its software and the user's choice of content but, by intentional design, it mimics real complexity.

Life, by comparison, is truly complex. We experience life, individually and communally, as a series of interactions among innumerable complex systems. These systems include the biological systems that comprise our own bodies and the social, political, economic, technological, and legal systems in which we participate throughout our lives. Like the iPod, complex systems follow known rules of interaction but also contain elements of chaos, a form of "deterministic randomness" inherent in the workings of the system itself. (3) Unlike the iPod, the chaotic elements in complex systems give them the ability to evolve in response to changes in their environments, to self-organize, and to generate entirely new and unexpected behaviors. (4) Even during periods of relative stability, complex systems change constantly. Over long periods of time, species evolve or become extinct; markets develop, fluctuate, disappear; civilizations blossom, stagnate, and die. And, from time to time, complex systems are certainly subject to truly random, even catastrophic events. (5) The imperative for complex systems is "adapt or die." Their innate ability to produce new behaviors in response to environmental change, which in turn induces change in other complex systems with which they interact, is critical to their survival.

Most works of intellectual property are created and distributed through complex systems that must now adapt to a revolution in their environment as digital technologies replace print technologies. Digitization and global networks have heightened the "systemness" of intellectual property production modes and markets, and the laws that govern them. The reduction of many different kinds of works to bits transmissible over global networks creates particularly acute problems for the copyright regime, though similar problems occur in other regimes. (6) These developments have inspired suggestions that intellectual property systems should be viewed as part of an "information ecosystem" comparable to the ecosystems found in the natural environment and that intellectual property law might profit from the application of concepts developed in environmental law. …

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