Thanks to Kal and Chris for their thoughtful responses on "negative space." I have one follow-up comment for each, less to push on the responses themselves and more to share how their comments have pushed my own thinking:
Chris, you wrote: "I'm less interested, at this point, in theories of copyright than I am in practices of innovation. And before I arrive at a theory that crosses industries, I think we need to build up a set of observations about each industry in the negative space." None of us should be held too closely to our word choices in a blog, but "industry"-specific investigation and investigation of "practices of innovation" aren't quite the same thing, even while they're related. Industries encompass diverse practices; practices span industries. I don't know whether this puts more on the research agenda than you already have in mind, but there are circumstances where industry-specificity is a useful perspective (Mike Carroll's work on music, which you cite, is one), and there are circumstances where practice-specificity may be useful (IMO -- I've written a little bit about this in fair use). If you agree, do you have any intuition at this point regarding the relative virtues of each approach?
Kal, you wrote: "It is nonetheless striking to me that the project of delimiting what is in--and what is out--of copyright has received so little attention." I think that's precisely right (I would add Mark Schultz's recent work on "copynorms" to your list, BTW). The project can then be taken in at least two directions: One is to continue to explore the content of copyright's "negative space," as Lisa Bernstein explored what we might call the "negative space" of commercial law and Robert Ellickson explored the "negative space" of real property law. Two is to explore the boundaries themselves; that is, we might or might not get really clear on what goes on inside fashion (or cuisine, or magic), but we might do more to identify the lines that divide one domain from the other, using socio-economic analysis similar to what you've pursued so far. The "thing-ness" that I introduced in my earlier post is part domain-content and part boundary-condition. In both senses "thing-ness" alone is an incomplete explanation for why fashion is distinct, or for why fashion behaves as it does. What other attributes help us identify the line beyond which we may intuit, "fashion is different"? I'm intrigued, for example, by the spatial metaphors that permeate paper and the mobblog, and I'm curious regarding whether metaphor can do more than help the rhetoric along. I also wonder whether industry- or practice-specificity itself might be a boundary marker. And I wonder, finally, whether there is a way to formalize the inquiry that The Piracy Paradox undertakes, so that a common set of research questions can be extended across domains yet to be investigated.