Thanks to Mike Madison for his comments, which quite properly note (and lament) my reluctance (and Kal's) to supply a overarching theory of copyright's (and IP's) negative space.
I feel Mike's pain, but at the moment I can't offer much relief. I just don't feel that we know enough to have a general theory, or really that we need one yet. Most importantly, I don't want to replicate what I think is the major problem with copyright law generally, which is over-reliance on a general theory of innovation without more than a passing acquaintance with the facts of any particular industry's innovation culture. 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.
Kal will weigh in if he differs, but I view Part III of The Piracy Paradox as an invitation: we have described (perhaps imprecisely) the metes and bounds of a particular vineyard; you are welcome to come labor in it with us. The paper presents some models that we think characterize fashion's low-IP innovation dynamic. We hope and expect that others will jump in with models of their own. And more broadly, we hope that others will respond to our description of copyright's negative space by digging into the innovation dynamics that govern creative cuisine, magic tricks, sports, etc.
Some of this work is already well underway. Emmanuelle Fauchart and Eric von Hippel have released a draft paper examining the low-IP regime in creative cuisine. Christopher Buccafusco has approached the same issue from a somewhat different angle. Both of these fine papers are useful steps toward an understanding of our current low-IP regime in food. Neither paper offers a broader account of IP's negative space; both papers are socio-economic explorations of a particular innovation puzzle.
So, here's our preferred approach. Observation first, leading to industry-specific explanations. Then, when we have enough of these, let's see if there is a broader story, rather than a collection of oddities.
Frankly, even if IP's negative space turns out to be nothing more than an odd fellows club, we will have learned something very valuable. We will have learned that viable innovation cultures come in many forms, some IP-rich, others less so. We will have learned that IP is not an on-off switch, but works more like a rheostat. And we will have learned -- or maybe re-learned -- that although general innovation theories are alluring, their appeal may be sirenic.
Alright, back for now to preparing for tomorrow's torts class. I'll think more about "thing-ness" and perhaps respond later.