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March 10, 2009

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Michael F. Martin

Recognizing democratic participation in making cultural and scientific knowledge has normative value in its own right, and economic value in the Knowledge Age.

There is nothing necessarily undemocratic about rule by a professional class. Arguably, that is the form that our own democracy has taken in the United States. In fact, Judge Posner argued just that in Law, Pragmatism & Democracy. Calling for more democractic culture raises more questions than it answers to the extent that the category of democracy is just as ill-defined as the category of culture -- perhaps even more so.

But assume we wanted to eliminate hierarchy from democracy or culture -- how could a conceptually coherent notion of culture exist without at least some hierarchy that defines the rules for its domain? If we are all creative according to our own rules, then there is no culture, only chaos.

Greg Lastowka

Hi Madhavi.

This is an interesting conversation. A couple questions about copyright particularly:

1) Could you name some influential theorists of copyright who advocate for what you would describe as a "narrow economic" approach? I can think of one or two, but it would help if I knew more about who (or perhaps what) you are arguing against here.

2) Relatedly, are there particular legal reforms to copyright that would flow from a theoretical reform toward a less "narrow economic" approach? I can make guesses about such reforms based on your examples, but specific examples of consequential statutory or doctrinal reformations would help me understand the scope of your arguments better.

David Opderbeck

If I may insert a shameless plug, I've been trying to develop something along these lines by applying critical realism and virtue ethics to intellectual property theory, in a paper that is forthcoming in Jurimetrics (see here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1359152). Greg, you might be interested because I try to show how this might apply to Internet governance and virtual worlds.

Greg Lastowka

Hi David --

Thanks! I just printed it and it looks like a fascinating paper -- right on point re some thing I'm currently trying to figure out. I look forward to reading it.

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