Conferring Validity and Value on Intellectual Property (BW)

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We have seen that, ontologically speaking, intellectual property is founded on the idea that when knowledge is brought down to the level of concreteness in which human interaction is normally conducted and described, the seemingly indivisible character of knowledge is rendered divisible and its apparently discovered nature is rendered created. We can examine the implications of this point in more detail by considering how a conception of intellectual property can be generated from a standard taxonomy of goods. First, consider some archetypal cases of goods

  1. divisible and discovered: natural resources (coal, fish)
  2. divisible and invented: ordinary goods (match, car)
  3. indivisible and discovered: costless goods (law of nature, mathematical truth)
  4. indivisible and invented: copyable goods (rules of a game, business procedure)

My argument so far has suggested ways in which the idea of intellectual property might challenge the neatness of this scheme. Let us now look at dual nature of this challenge a little more closely, both to attributions of validity in epistemology and to attributions of value in economics.

A. The Challenges Posed by the Indivisible Rendered Divisible

A1. The challenge to attributions of validity.

Epistemologists, usually in one of their bipolar moments as either logician or sociologist of knowledge, have remarked on the "reflexive" character of inquiry: Everything we claim to know also amounts to a claim about the knower. However, rarely do epistemologists approach reflexivity with the rigor of economists focused on the process costs of producing knowledge, which is to say, the effects that an agent's pursuit of a particular line of inquiry now are likely to have on her (and her colleagues) ability or desire to pursue other lines of inquiry later. To appreciate the difference that process costs can make to an epistemologist's sense of the value of knowledge, consider the difference between Popper's and Feyerabend's vision of criticism in the growth of knowledge. Both place a premium on criticism, but only Feyerabend seems to realize the long-term implications of this policy for our attitudes toward science. For his part, Popper exemplifies the philosopher's usual insensitivity to process costs when he calls for a "permanent revolution" in science through the relentless enforcement of falsificationism. He fails to see that the social status of science is tied not only to a valorization of falsifiability but also to that value being selectively enforced.

In contrast, Feyerabend's notorious lack of reverence for the methods and products of science comes from calculating the process costs of engaging in Popper's strategy with the relentlessness Popper himself suggests. For if the scientist believes that any hypothesis ought to, and probably will, be shown false, then it is reasonable to expect that the scientist will develop a generally skeptical attitude toward the value of scientific inquiry itself. Feyerabend's viewpoint is instructive because his sensitivity to process costs is divorced from an interest in minimizing those costs, as he believes that the activity of open and mutual criticism is worth pursuing for its own sake to the fullest extent, however institutionally destabilizing or personally discomforting the consequences may be. This reminds us that an "economistic" approach to knowledge production need not have conservative consequences, since, as a methodological doctrine, economism is committed only to calculating costs, not to minimizing them. Indeed, Marxists predict the self-destruction of capitalism precisely by maximizing process costs, as increased competition among producers leads to increased productivity, and hence a falling rate of profit. That neither the Feyerabendian nor the Marxist scenario has dominated economic conceptions of knowledge or wealth production, respectively, suggests that system-level reflexivity is expected to operate within self-protecting limits.

A2 The challenge to attributions of value.

When discussing knowledge as an "ethereal good," I suggested that economists still harbor residues of the classical conception of knowledge as indivisible. These residues are most apparent in their blindness to a particular species of process costs, namely, the costs incurred by agents trying to gain access to the knowledge production system. We have so far portrayed process costs as borne by the entire knowledge system. Thus, Feyerabend's relentlessly critical attitude has the long term consequence of devaluing the scientific enterprise as a whole. However, process costs also affect the relative ability of agents to contribute to the system. For, an agent cannot productively contribute to the knowledge system — say, by writing a book that moves its target audience — without first being in a position to consume the products that already circulate in the system. Each new text in circulation redistributes the balance of power, or burden of proof, among subsequent contributors. And so, even before setting pen to paper, an author has intuitions about the sorts of claims that will be easier or harder to defend, from which she will then decide on the burden of textual proof that she is ready to bear In other words, the author's paradigmatic moment of soul-searching is really a request to calculate access costs: How much more reading should I do before I start to write?

By contrast, when economists speak of the initial production of an ethereal good (e.g. writing a book) incurring a much higher fixed cost than its subsequent reproduction (e.g. reading the book), they are catering to the classical epistemological intuition that, once revealed, knowledge is subject to free (or at least relatively inexpensive) access on the part of potential consumers. Yet, writing incurs such a significantly greater cost than reading, only if it is presumed that the readers bring to the text the relevant background knowledge — which, as a matter of fact, often does not come cheap (e.g. advanced university degrees) or even well-marked in the text (e.g. obscure allusions and jargon). The situation of the text in this case may be likened to that of a mass produced toy, which costs little to buy, but which then requires additional costs (or luck!) to be put together. In large measure, the economic mystique of knowledge rests on keeping such access costs hidden, at least from the production side of the economic equation. Thus, mass produced books appear incredibly efficient in empowering people to do things that they would otherwise not do, only because the cost of making these books usable to people ("user-friendly") is left to the distribution side of the equation.

The considerations in the last two paragraphs urge the conclusion that degree of the "ethereality," or knowledge-likeness, of a particular good is a function of the sharpness of line that is rhetorically drawn between the production and distribution of that good. In short: the sharper the line, and the more occluded the distribution side of the line, the more ethereal the good. The metaphysical model for this kind of thinking is the Platonic form, such as the essence of table (assuming, for the sake of argument, that tables have essences), of which particular tables are mere copies or reproductions that contain no more information (and hence no more value) than the prototype, and in fact may contain less, if the particular table turns out not to be very good. In a more psychological vein, we are prone to think that the "hard work" of invention or discovery comes with the original development of an idea, and that the subsequent work of transmitting the idea to others is negligible by comparison. Again, all the information is seen as packed into the initial conception, with transmission regarded as mere reproduction, whereby the initial conception is either preserved or lost, depending on the receptiveness of the targeted consumers.

Ein wesentlicher Punkt. Der Verbindung von charakteristischen Eigenschaften des Wissens mit platonischen Motiven.

Of course, neither philosopher nor economist officially denies that a complete story of knowledge reproduction would involve specifying distribution costs that have no obvious analogues in the original instance of knowledge production. In particular, access costs accrue both to the knowledge producer who must have the means of bringing the good into contact with the relevant consumers (into this category would fall the ability to write to a specific audience), and to the consumer who must have the means (including specialiced training) by which to make the most use of the good. However, economists tend to neglect the costs of distribution in these contexts because they talk about knowledge production in terms of the material good embodying the knowledge (e.g. a book), whereas they talk about knowledge consumption in terms of the knowledge "contained" in the material good (e.g. the idea). Given this asymmetrical treatment, it is not surprising that knowledge has often struck economists as an enigma, since it would seem to incur costs only to its producers but not to its consumers. This puzzle merely reveals the extent to which economists have uncritically borrowed their analysis of knowledge from Plato-inspired philosophers. But the puzzle can be dissolved, and knowledge can start to look more like other goods, once the distribution of a knowledge good is included as part of the good's overall production costs. In that case, all knowledge is knowledge for someone.

Finally, for didactic purposes, let us reverse the course of our argument and consider what it would mean for cars to be treated as knowledge-like goods. The original prototype of the car would incur most of the total production costs, with each successive vehicle of this type incurring only distribution costs. The overall costs and benefits of cars to the economy would remain the same, of course, but they would be divided somewhat differently. To fully appreciate the shift in thinking involved here, imagine car production as a matter of transmitting the essence of a given make of vehicle to several places rather than as reproducing the vehicle several times. In the first case, the bulk of the consumer's cost would lie in getting access to a vehicle by being at one of the distribution points. Thus, obtaining a driver's license would absorb the expense that in the second case would be reserved for purchasing a car itself. The car would simply provide the opportunity for the consumer to manifest her driving skills, and thus would become a much less costly item. This situation would then start to resemble that of the physics book, in which the book itself is relatively inexpensive, but the cost of being able to make full use of its contents (i.e. the cost of a university education in physics) is much higher.

B. The Challenges Posed by the Discovered Rendered Invented

B1 The challenge to attributions of validity.

Here epistemologists typically ignore the opportunity costs that arise from the fact that my pursuing a line of inquiry now prevents me from deploying resources to pursue another line of inquiry at the same time. The occlusion of these costs is essential to robust discovery claims, which are made rhetorically possible by the closing off of certain paths of inquiry — or the systematic discounting of alternative constructions of the world — that had been opened up to that point. In that case, the discovery is made to appear as an inevitable consequence of nature revealing itself to the inquirer. However, opportunity costs can be recovered by engaging in counterfactual historical reasoning. Jon Elster takes a question of this form to be the relevant one to ask: What would have happened, had another course of inquiry been followed, at the latest opportunity that it was still available Moreover, social constructivists routinely invite consideration of opportunity costs by framing their studies of science in terms of how hermeneutical closure was reached on how to make sense of what had been an open-ended research situation. Just as the process costs of pursuing a certain line of inquiry can be occluded — or "justified" — by a "precommitment" to knowledge for its own sake, or wherever reason may lead, opportunity costs can be occluded by appeal to "sour grapes." whereby alternative research trajectories are downgraded for being less likely than the trajectory taken to have advanced knowledge to the same extent.

B2. The challenge to attributions of value.

Even economists underestimate the susceptibility of consumer demand to producer control. Part of this underdetermination stems from the ambiguous implications of Say's Law, that is, "Supply dictates its own demand." Does this mean that producers have a special talent for spotting what people will buy? On this interpretation, production is cast as an art of discovery. However, the more usual way of reading Say's Law is as suggesting that any good placed on the open market will attract some customers, though, at first, ones who did not originally intend to buy the good. On this construal, demand for a good is created by its very availability. Now, shift the scene from the marketplace to the laboratory. There are similarly two ways of thinking about the demonstration of an experimental result. Like the prescient producer, the scientist may be seen as having revealed part of the reality that all inquirers seek in common. Or, she may have simply created an effect that, once made readily available through standardized replications, opens up lines of inquiry that fellow scientists had previously not considered, perhaps because they were perceived as not being cost-effective or simply because such novel research trajectories had not crossed their minds. Yet however manufactured these mnemonic consequences may seem to be, it is important for the credibility of the experimental result that the scientific community take them to be a revelation of reality. In the remainder of this section, I take an economistic look at the ways in which the manufactured character of this revelation can be itself revealed and occluded.

Consider the neoclassical economic assumption that the value of a good is determined not by its intrinsic worth (which it would presumably have prior to its circulation in the economy), but rather by the range of its possible uses in the hands of consumers. Typically, this determination depends on the demand for the good in question. However, speculators in a given market may try to improve their position by anticipating the goods that are likely to be in highest demand, which, in turn, confers value on those goods even before they have been put to extensive consumer use. At this point, the economist wants to know the extent to which an speculator in this market can meaningfully distinguish between the task of anticipating the goods that will be in highest demand from the task of anticipating the collective opinion of her fellow speculators about the goods that will be in highest demand? This question is motivated by empirical analyses of market behavior, which show that, in a significant number of cases, anticipations actually constitute the demand for a good. In other words, had collective speculative opinion not pre-judged that a good would satisfy enough consumer wants to put it in high demand, the good probably would have turned out not to be in such high demand. In those cases, the speculator would be advised not to make the sort of distinction implied in the economist's question and, instead, simply try to anticipate the speculation patterns of her fellows. In these situations, goods are most likely to be regarded as knowledge-like.

Of course, the distinction implied in the economist's question applies in most cases, which explains why even the convergent opinion of stock market speculators may end up losing money for everyone concerned, since the goods in which these people invested may turn out not to be able to satisfy consumer wants. An advanced promotional campaign for a new line of cars may convince many investors to pour money into the car company's stock, but, once on the market, the cars may disappoint consumers in a variety of ways, causing the investors to lose at least part of the value of their initial investment. Notice that this loss in investment was made possible by the independent check on the value of the cars that consumer demand provides. To the economist this is an obvious point, but it has interesting implications when we contrast the situation of knowledge-like goods.

Does one need to know physics — even aerodynamics — to design a spacecraft? An economist might rephrase this somewhat contentious question as follows: Is there a demand for knowledge of physics among spacecraft designers? The answer is presumably "yes," but for exactly what reason? Is it because we know for a fact that knowledge of physics plays a crucial role in the design of spacecrafts? Or rather, is it because we know that a study of physics is necessary for earning the credentials that enables one to design spacecraft? Clearly, it is for the latter reason — which is not necessarily to deny that knowledge of physics contributes to an ability to design spacecraft. Yet, it is curious that students of spacecraft design are not ordinarily allowed to decide for themselves whether (how much, which sort of) physics is crucial for their work. In other words, there is no check for consumer demand that is independent of the convergent opinion of those who have invested in the production of the good. In philosophical terms, this is what is meant by engineering being an "application of" or "conceptually dependent on" physical principles. When the spacecraft works, the designer's (perhaps implicit) knowledge of physical principles is held responsible. And were we later to learn that the designer in fact knew very little physics, she would be deemed lucky to have done something that corresponded well enough to physical principles.

Now imagine what it would be like for the car market to become knowledge-like, and thereby to start resembling the physics market. Suppose a cartel of investors was convinced of the value of a new line of cars, and potential consumers immediately took that as sufficient reason to buy the cars, without engaging in the usual comparative pricing and quality checks, which, in turn, served to discourage investment in more marginal makes of cars that might have gained support if consumers had a chance to make such independent checks. If the cartel were to have such monopolistic control over the car market, then cars would start taking on knowledge-like qualities. For example, the chosen line of cars would set the standard for appropriate car usage, regardless of the different reasons that consumers have had for wanting to use a car. A prerequisite to driving anywhere would be mastery of the car's technique. Since the chosen line would clearly excel in some features more than others, in a world without rival vehicles, certain traditional functions for cars (drag racing perhaps) would become deviant — if not prohibited — because the chosen line cannot perform those functions well. Consumer misuse or incompetence — and not the limitations of the vehicle — would account for the deviant cases. Moreover, cases in which consumers manage to perform the canonical car functions without using the chosen line (e.g. driving to work in an older make of car) would be increasingly seen as a matter of happy coincidence, reflecting the extent to which the non-authorized cars share the same features that have been more deliberately constructed into the chosen line. In short, the chosen line of car would assume a normative character by becoming a necessary waystation through which consumers must pass to accomplish a wide variety of driving aims and against which their competence is evaluated in ways only indirectly related to those aims.

From the standpoint of this economic strategy, the interesting question to ask about the physics market is when did physics investors start to dictate the consumption patterns of engineers. After all, physicists and engineers engage in quite different lines of work in quite different settings. Most strikingly, physicists perform controlled experiments in highly artificial environments, while engineers construct buildings and machines of a more broadly public nature. Indeed, this is a crucial part of the authority that physicists exercise over engineers — what Bruno Latour has called "action at a distance." Engineering is said to be "conceptually dependent" on physics, which, in turn, "implicitly governs" successful engineering practice. Both highlighted expressions suggest at the very least that the relation between physics and engineering is a subtle one which cannot be easily read off the behavioral patterns of either discipline: that is, the alleged dependence and governance is barely visible to the naked eye. One needs to observe the resemblances in the ways physicists and engineers justify the success of their practices. But ultimately, one needs to move beyond the workplaces of physicists and engineers to study the forging of the physics market. Such a move sets into motion the following series of inquiries: When did people start talking about the alleged dependence and governance, and did that happen before or after physics was required in the engineering curriculum? In what other ways have engineers been made to pass waystations monitored by physics gatekeepers (e.g. the modes of argumentation used to justify knowledge claims)? But perhaps the most interesting inquiry would be into what prevents the physics market from losing its knowledge-like qualities and becoming more like the car market.

To illustrate this last inquiry, consider now what it would be like for the physics market to become more like the car market. Engineers would start to take an interest — much as the social constructivists in science studies have — in examining their actual reliance on physics in the workplace. Which bits of physics turn out to be most useful to engineers? Which bits turn out to be useless and maybe even misleading? Are there certain aspects of engineering that get along perfectly well without any knowledge of physics? Are there aspects that would benefit from branches of physics that are normally opaque or unknown to engineers? If social constructivist findings are any indication, there are bound to be some surprising answers to these questions. For example, it may turn out that physics is most useful when engineers write up their research for the archives, which would reveal the status of physics as a lingua franca, but as not much more. Once so revealed, the physics market may be-come destabilized, as engineers are encouraged to distinguish their own interests from those who invest in the future of physics ("physics futures," as the economist would say). At first, this may involve the emergence of new curricular suppliers aimed more specifically at engineering needs. However, if the possibility for alternative curricular suppliers that are radically different from physics seems far-fetched, that is only a reflection of the extent to which engineering demand has been molded by what physicists have been willing to supply. But in the long term, physics investors may come to realize that the authority of physics depends, in large measure, on engineers consuming their goods, and consequently they may alter their investment patterns so as to promote a physics that is more "engineering-friendly.

Steve Fuller: Knowledge as Product and Property (BW)

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Besser Wissen (Vorlesung Hrachovec, 2006/07)</root>