Knowledge and Culture by Michael J Madison
Vanderbilt Journal of Entertainment and Technology Law, 2021
The soccer referee stands in for a judge. Soccer's Video Assistant Referee (VAR) system stands in... more The soccer referee stands in for a judge. Soccer's Video Assistant Referee (VAR) system stands in for algorithms that augment human deciders. Fair play stands in for justice. They are combined and set in a polycentric system of governance, with implications for designing, administering, and assessing human-machine combinations.
Abstract Formal groups play an important role in the law. Informal groups largely lie outside it.... more Abstract Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? I argue that this and related questions are appearing more frequently in legal scholarship as a number of computer technologies, which I collect under the heading “social software,” increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups.
Abstract This Essay was written as part of a Symposium on open access publishing for legal schola... more Abstract This Essay was written as part of a Symposium on open access publishing for legal scholarship, held at Lewis & Clark Law School. It makes the claim that “open access” publishing models will succeed, or not, to the extent that they account for the existing “economy of prestige” that drives law reviews and legal scholarship.
This Essay examines briefly some" cultural models" of the twentieth century for insights applicab... more This Essay examines briefly some" cultural models" of the twentieth century for insights applicable to" business models" of the twenty-first century. It does so in light of an early proposition of the law and economics of intellectual property law. Intellectual property lawyers got fascinated by" business models" around the time that two emerging trends converged roughly a decade ago.
Abstract This Article is a contribution to a Symposium that focuses on the ideas of Margaret Jane... more Abstract This Article is a contribution to a Symposium that focuses on the ideas of Margaret Jane Radin as a point of departure, and particularly on her analyses of propertization and commodification. While Radin focuses on the harms associated with commodification of the person, relying on Hegel's idea of alienation, we argue that objectification, and in particular objectification of various features of the digital environment, may have important system benefits.
Abstract: This Article addresses conservation, preservation, and stewardship of knowledge, and la... more Abstract: This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing new knowledge and offering access to it. Equivalent attention rarely is paid to questions of old knowledge. To what extent should the law, and particularly intellectual property law, focus on the durability of information and knowledge?
Abstract: The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning ... more Abstract: The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law.
Abstract This Article initiates an account of “things” in the law, including both conceptual thin... more Abstract This Article initiates an account of “things” in the law, including both conceptual things and material things. Human relationships matter to the design of law. Yet things matter too. To an increasing extent, and particularly via the advent of digital technology, those relationships are not only considered ex post by the law but are designed into things, ex ante, by their producers. This development has a number of important dimensions.
Abstract: Law and knowledge jointly occupy a metaphorical landscape. Understanding that landscape... more Abstract: Law and knowledge jointly occupy a metaphorical landscape. Understanding that landscape is essential to understanding the full complexity of knowledge law. This Article identifies some landmarks in that landscape, which it identifies as forms of legal practice: several recent cases involving intellectual property licenses, including the recent patent law decision in Quanta v. LG Electronics and the open source licensing decision in Jacobsen v. Katzer.
Knowledge Commons by Michael J Madison
Governing Smart Cities as Knowledge Commons , 2023
This case study brings new attention to a critical but under-appreciated dimension of so-called “... more This case study brings new attention to a critical but under-appreciated dimension of so-called “smart” cities: how smart city governance builds and relies on institutionalized sharing of data, information, and other forms of knowledge across all sectors of public administration. Those smart city practices are referred to here as knowledge commons and systematized using the Governing Knowledge Commons (GKC) research framework. That framework extends and modifies Ostrom’s research tradition as to community-based resource governance. As with other GKC-focused research, this work relies on a qualitative case study. It draws a detailed, context-specific portrait of a smart city as knowledge commons governance. The case is Pittsburgh, Pennsylvania. Its contemporary smart city identity is detailed both with respect to recent uses of technology-dependent systems and also with respect to Pittsburgh’s political, economic, and social histories. Pittsburgh’s smart city is building on rather than displacing decades-long governance cultures and traditions. Knowledge commons analysis shows how the smart city may be evolutionary rather than revolutionary.
International Journal of the Commons, 2022
Researchers interested in blockchains are increasingly attuned to questions of governance, includ... more Researchers interested in blockchains are increasingly attuned to questions of governance, including how blockchains relate to government, the ways blockchains are governed, and ways blockchains can improve prospects for successful self-governance. Our paper joins this research by exploring the implications of the Governing Knowledge Commons (GKC) framework to analyze governance of blockchains. Our novel contributions are making the case that blockchain networks represent knowledge commons governance, in the sense that they rely on collectively-managed technologies to pool and manage distributed information, illustrating the usefulness and novelty of the GCK methodology with an empirical case study of the evolution of Bitcoin, and laying the foundation for a research program using the GKC approach.
Governing Privacy in Knowledge Commons, 2021
The knowledge commons framework, deployed here in a review of the early network of scientific com... more The knowledge commons framework, deployed here in a review of the early network of scientific communication known as the Republic of Letters, combines a historical sensibility regarding the character of scientific research and communications with a modern approach to analyzing institutions for knowledge governance. Distinctions and intersections between public purposes and privacy interests are highlighted. Lessons from revisiting the Republic of Letters as knowledge commons may be useful in advancing contemporary discussions of Open Science.
Governing Medical Knowledge Commons, 2017
Governing Medical Knowledge Commons makes three claims: first, evidence matters to innovation pol... more Governing Medical Knowledge Commons makes three claims: first, evidence matters to innovation policymaking; second, evidence shows that self-governing knowledge commons support effective innovation without prioritizing traditional intellectual property rights; and third, knowledge commons can succeed in the critical fields of medicine and health. The editors' knowledge commons framework adapts Elinor Ostrom's groundbreaking research on natural resource commons to the distinctive attributes of knowledge and information, providing a systematic means for accumulating evidence about how knowledge commons succeed. The editors' previous volume, Governing Knowledge Commons, demonstrated the framework's power through case studies in a diverse range of areas. Governing Medical Knowledge Commons provides fifteen new case studies of knowledge commons in which researchers, medical professionals, and patients generate, improve, and share innovations, offering readers a practical introduction to the knowledge commons framework and a synthesis of conclusions and lessons.
Intellectual Property and Access to Im/material Goods, 2016
This chapter explores the related ideas of access to knowledge resources and shared governance of... more This chapter explores the related ideas of access to knowledge resources and shared governance of those resources, often known as commons. Knowledge resources consist of many types and forms. Some are tangible, and some are intangible. Some are singular; some are reproduced in copies. Some are singular or unique; some are collected or pooled. Some are viewed, used, or consumed only by a single person; for some resources, collective or social consumption is the norm. Any given resource often has multiple attributes along these dimensions, depending on whether one examines the resource’s physical properties, its creative or inventive properties, or its natural, factual, or ideational properties. Access questions are, accordingly, diverse. That diversity is compounded by the proposition that access is itself a property of a resource, in the sense that resource characteristics are, to a substantial extent, socially and culturally constructed. Social construction means not only that boundaries among properties of a resource may be blurred but also that those properties and boundaries may change over time. By virtue of that diversity, investigating access to knowledge resources creates the risk of producing a conceptually fragmented and unhelpful landscape of theory and application on a resource-by-resource basis. This chapter suggests that the investigation of access to knowledge resources may be unified under the umbrella concept of knowledge commons, the study of governance of shared knowledge resources. It presents a framework for understanding knowledge commons and illustrates its application to several questions of access to the material and immaterial dimensions of specific knowledge resources.
User Generated Law: Re-Constructing Intellectual Property in a Knowledge Society, 2016
Standard accounts of IP law describe systems of legal exclusion intended to prompt the production... more Standard accounts of IP law describe systems of legal exclusion intended to prompt the production and distribution of intellectual resources, or information and knowledge, by making those things artificially scarce. The argument presented here frames IP law instead as one of several possible institutional responses to the need to coordinate the use of intellectual resources given their natural abundance, and not necessarily useful or effective responses at that. The chapter aims to shift analytic and empirical frameworks from those grounded in law to those grounded in governance, and from IP law in isolation to IP law as part of resource management. Knowledge commons is proposed as a framework for examining and understanding governance of shared knowledge resources. Examples and illustrations are drawn from several domains of information and knowledge governance.
Global Genes, Local Concerns: Legal, Ethical and Scientific Challenges in International Biobanking , 2019
This chapter describes biobanks as institutions for collection, preservation, curation, and produ... more This chapter describes biobanks as institutions for collection, preservation, curation, and production of knowledge and information, in both material and immaterial forms. That characterization calls for research and comparative analysis of the broad diversity of specific biobanks, using a standardized research framework. Such a framework is identified and described here, as the knowledge commons framework. The chapter describes applications of the framework to biobanks to date and suggests directions for future research.
Routledge Handbook of the Study of the Commons, 2019
This chapter provides an introduction to and overview of the knowledge commons research framework... more This chapter provides an introduction to and overview of the knowledge commons research framework. Knowledge commons refers to an institutional approach (commons) to governing the production, use, management, and/or preservation of a particular type of resource (knowledge). The research framework supplies a template for interrogating the details of knowledge commons institutions on a case study basis, generating qualitative data that may be used to support comparative analysis.
“Knowledge commons” describes the institutionalized community governance of the sharing and, in s... more “Knowledge commons” describes the institutionalized community governance of the sharing and, in some cases, creation, of information, science, knowledge, data, and other types of intellectual and cultural resources. It is the subject of enormous recent interest and enthusiasm with respect to policymaking about innovation, creative production, and intellectual property. Taking that enthusiasm as its starting point, Governing Knowledge Commons argues that policymaking should be based on evidence and a deeper understanding of what makes commons institutions work. It offers a systematic way to study knowledge commons, borrowing and building on Elinor Ostrom’s Nobel Prize-winning research on natural resource commons. It proposes a framework for studying knowledge commons that is adapted to the unique attributes of knowledge and information, describing the framework in detail and explaining how to put it into context both with respect to commons research and with respect to innovation and information policy. Eleven detailed case studies apply and discuss the framework exploring knowledge commons across a wide variety of scientific and cultural domains.
Abstract: The law of trade secrets is often conceptualized in bilateral terms, as creating and en... more Abstract: The law of trade secrets is often conceptualized in bilateral terms, as creating and enforcing rights between trade secret owners, on the one hand, and misappropriators on the other hand. This paper, a chapter in a forthcoming collection on the law of trade secrets, argues that trade secrets and the law that guards them can serve structural and insitutional roles as well.
Abstract: Constructing Commons in the Cultural Environment, and responses to that article by Prof... more Abstract: Constructing Commons in the Cultural Environment, and responses to that article by Professors Thráinn Eggertsson, Wendy Gordon, Gregg Macey, Robert Merges, Elinor Ostrom, and Lawrence Solum. This short Reply comments briefly on each of those responses.
Uploads
Knowledge and Culture by Michael J Madison
Knowledge Commons by Michael J Madison
It is usually argued that the central challenge in understanding the work is to develop a sensible method for appreciating its boundaries. Those boundaries, conventionally understood as the metaphorical metes and bounds of the work, might be established by deferring to the intention of the author, or by searching for authorship (creativity or originality) or both. Or, those boundaries might be located by identifying authorship by reference to reader, viewer, or listener experience. The two perspectives might be blended.
I set authorship to the side. I argue instead that the idea of the work, and processes of interpreting it both as concept (type) and thing (token), play central roles in constructing expressive culture itself. Boundary-making and boundary-identification with respect to the copyright work are processes of community and group formation and governance.
I rely on literature exploring boundary objects, physical and intangible things that bridge distinct but complementary communities in flexible ways. I argue that copyright law adopts and uses the copyright work in several ways, all of which can be unified conceptually in the sense that the work operates as a boundary object across a number of different legal and cultural divides, clarifying the distinct status of relevant communities and practices but also distinguishing and where appropriate bridging them in the construction of culture. None of the boundaries represented in these boundary objects is fixed or impermeable. Their very dynamic and sometimes porous character is, in fact, precisely the culture to be illuminated.
How, when, and in what direction should innovation take place? Who should lead, guide, and participate? These are questions often asked in both legal education in particular and in higher education in general. Rarely are answers accompanied by specific examples, strategies, or programs. This paper offers precisely that specificity. It documents one institution’s process and output, beginning with the concept of innovation in the face of multiple challenges and proposing one set of concrete, actionable strategies, tactics, and programs. These range from school-wide interventions to ideas for use at the level of the individual faculty member and course.
The purpose of making the paper available is to note merely that if innovation is a hill to be climbed, then it can be climbed. The process and results may be more valuable if they are shared with others, even if the particular route documented here is not the only one available and may not the best for all times and places.