I Read a Book: Jessica Silbey’s The Eureka Myth Creators, Innovators, and Everyday Intellectual Property

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by Raizel Liebler

eurekamythJessica Silbey’s The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property (2015) is an important book — and will likely be one of the most influential works of legal scholarship this year. [Editor’s note: I’m reading Frank Pasquale’s Black Box Society, which has a similar level of import.] Why? Because it has the potential, if used by policymakers and lawmakers to reshape how we view and protect intellectual property.
There is so much scholarship about why people create — and whether intellectual property law, especially copyright law and patent law, fully protect creativity. There have been some experimental studies, but most of the scholarship that existed before this book was theoretical, rather than talking to those that create. Silbey actually interviews artists of all stripes (musicians, journalists, visual artists and more) and scientists, and those that surround them — business partners, employers, lawyers and managers, describing how and why creators create and innovators innovate. She asks them about the role — if any — that intellectual property law plays in the process.
And what is the overall answer? Creators don’t create based on the existence of intellectual property law, mostly. IP law can be a way to help them — or their employers make money, but it is not their internal driving force. Instead, IP law is frequently in the way of creators, an annoyance wielded by their lawyers. Sibley states
businesses and individuals engaged in creative or innovative work achieve personal and professional goals–autonomy, productive relationships, and revenue–under misaligned and ill-fitting IP regimes. … IP law reformers might consider formalizing the informal restraint IP rights holders demonstrate when they tolerate certain kinds of infringement, permit uses that would otherwise require authorization, and generally underenforce their IP rights. (104)
One of the most interesting chapters focuses on the role of lawyers in the creative process, told from their own perspective. While all of the book should be read by those interested in intellectual property and incentive policy, this one chapter should be used in law school classes about practice because it details and describes the importance of the differing roles a lawyer can have — an advisor, a teacher, a Cassandra of impending danger, a contract reader — in addition to all of those things that television says will cause a lawyer to be called “counselor” in a extremely pitying way.
Silbey’s long empirical study concludes continuing to focus on the interests of those who create, rather than on retaining our present system of intellectual property law.

People crave work and relationships that are remote from wealth. … Separating the people who do and make everyday IP from those that benefit from it generates unproductive schisms and irrelevant rules. The misalignment of IP with the myriad goals creators and innovators pursue helps us identify and thereafter preserve only those IP rules that remain right for [creators]. (284-85)

Want more? Check out Jessica Silbey’s talk about the Eureka Myth from December 2014 at Berkman Center at Harvard University

Summary: Read this. This book will hopefully change the moral rights-ish arguments made about intellectual property rights in the United States. But even if not, you will learn much about the interaction (or not) of IP and the creative process, in the voices of those that create.

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