Social and Behavioral Sciences Commons^™

Knowledge Commons Past, Present, And Future, Michael J. Madison

Articles

The project now known as Governing Knowledge Commons, or GKC, was launched more than 15 years ago on the intuition that skepticism of intellectual property law and information exclusivity was grounded in anecdote and ideology rather than in empiricism. Structured, systematic, empirical research on mechanisms of knowledge sharing was needed. GKC aimed to help scholars produce it. Over multiple books, case studies, and other work, the scope of GKC has expanded considerably, from innovation to governance; from invention and creativity to data, privacy, and markets; and from social dilemmas focused on things to governance strategies directed to communities and collectives. …

Governing Smart Cities As Knowledge Commons - Introduction, Chapter 1 & Conclusion, Brett M. Frischmann, Michael J. Madison, Madelyn Sanfilippo

Book Chapters

Smart city technology has its value and its place; it isn’t automatically or universally harmful. Urban challenges and opportunities addressed via smart technology demand systematic study, examining general patterns and local variations as smart city practices unfold around the world. Smart cities are complex blends of community governance institutions, social dilemmas that cities face, and dynamic relationships among information and data, technology, and human lives. Some of those blends are more typical and common. Some are more nuanced in specific contexts. This volume uses the Governing Knowledge Commons (GKC) framework to sort out relevant and important distinctions. The framework grounds …

Too Much Of A Good Thing? A Governing Knowledge Commons Review Of Abundance In Context, Michael J. Madison, Brett M. Frischmann, Madelyn Sanfilippo, Katherine J. Strandburg

Articles

The economics of abundance, along with the sociology of abundance, the law of abundance, and so forth, should be re-framed, linked, and situated in a common context for empirical rather than conceptual research. Abundance may seem to be a new, big thing, between anxiety over information overload, Big Data, and related technological disruptions. But scholars know that abundance is an ancient phenomenon, which only seemed to disappear as twentieth century social science focused on scarcity instead. Restoring the study of abundance, and figuring out how to solve the problems that abundance might create, means shedding disciplinary blinders and going back …

Government By Code? Blockchain Applications To Public Sector Governance, Pedro Bustamante, Meina Cai, Marcela Gomez, Colin Harris, Prashabnt Krishnamurthy, Wilson Law, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Nataliia Shapoval, Annette Vee, Martin B. H. Weiss

Articles

Studies of blockchain governance can be divided into analyses of the governance of blockchains (such as rules and power dynamics within a given network) and governance by blockchains (such as how blockchains can be implemented to improve self-governance of community-based peer production networks). Less emphasis has been placed on applications of distributed ledgers to public sector governance. Our review clarifies that the decentralization and distributive features that enable blockchains to link up loosely connected private organizations and public agencies to improve efficiency and transparency of government transactions. However, most blockchain applications lack clear advantages over the conventional digital recording of …

Blockchain Networks As Knowledge Commons, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Martin B. H. Weiss, Michael J. Madison

Articles

Researchers interested in blockchains are increasingly attuned to questions of governance, including how blockchains relate to government, the ways blockchains are governed, and ways blockchains can improve prospects for successful self-governance. Our paper joins this research by exploring the implications of the Governing Knowledge Commons (GKC) framework to analyze governance of blockchains. Our novel contributions are making the case that blockchain networks represent knowledge commons governance, in the sense that they rely on collectively-managed technologies to pool and manage distributed information, illustrating the usefulness and novelty of the GCK methodology with an empirical case study of the evolution of Bitcoin, …

The Republic Of Letters And The Origins Of Scientific Knowledge Commons, Michael J. Madison

Book Chapters

The knowledge commons framework, deployed here in a review of the early network of scientific communication known as the Republic of Letters, combines a historical sensibility regarding the character of scientific research and communications with a modern approach to analyzing institutions for knowledge governance. Distinctions and intersections between public purposes and privacy interests are highlighted. Lessons from revisiting the Republic of Letters as knowledge commons may be useful in advancing contemporary discussions of Open Science.

Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison

Articles

The soccer referee stands in for a judge. Soccer’s Video Assistant Referee (“VAR”) system stands in for algorithms that augment human deciders. Fair play stands in for justice. They are combined and set in a polycentric system of governance, with implications for designing, administering, and assessing human-machine combinations.

Data Governance And The Emerging University, Michael J. Madison

Book Chapters

Knowledge and information governance questions are tractable primarily in institutional terms, rather than in terms of abstractions such as knowledge itself or individual or social interests. This chapter offers the modern research university as an example. Practices of data-intensive research by university-based researchers, sometimes reduced to the popular phrase “Big Data,” pose governance challenges for the university. The chapter situates those challenges in the traditional understanding of the university as an institution for understanding forms and flows of knowledge. At a broad level, the chapter argues that the new salience of data exposes emerging shifts in the social, cultural, and …

Tools For Data Governance, Michael J. Madison

Articles

This article describes the challenges of data governance in terms of the broader framework of knowledge commons governance, an institutional approach to governing shared knowledge, information, and data resources. Knowledge commons governance highlights the potential for effective community- and collective-based governance of knowledge resources. The article focuses on key concepts within the knowledge commons framework rather than on specific law and public policy questions, directing the attention of researchers and policymakers to critical inquiry regarding relevant social groups and relevant data “things.” Both concepts are key tools for effective data governance.

Knowledge Commons (2019), Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Book Chapters

This chapter provides an introduction to and overview of the knowledge commons research framework. Knowledge commons refers to an institutional approach (commons) to governing the production, use, management, and/or preservation of a particular type of resource (knowledge). The research framework supplies a template for interrogating the details of knowledge commons institutions on a case study basis, generating qualitative data that may be used to support comparative analysis.

Ostrom Amongst The Machines: Blockchain As A Knowledge Commons, Herminio Bodon, Pedro Bustamante, Marcela Gomez, Prashabnt Krishnamurthy, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Martin B. H. Weiss

Articles

Blockchains are distributed ledger technologies that allow the recording of any data structure, including money, property titles, and contracts. In this paper, we suggest that Hayekian political economy is especially well suited to explain how blockchain emerged, but that Elinor Ostrom’s approach to commons governance is particularly useful to understand why blockchain anarchy is successful. Our central conclusions are that the blockchain can be thought of as a spontaneous order, as Hayek anticipated, as well as a knowledge commons, as Ostrom’s studies of self-governance anticipated.

Administrative Truth: Comments On Cortez’S Information Mischief, David Thaw

Articles

This short essay responds to Professor Nathan Cortez’s argument describing an emerging “information policy” reflecting on the practices of President Donald J. Trump’s executive administration (the “Trump Administration”) regarding the development, release, and management of official information. Professor Cortez argues that viewed holistically, this information policy suggests a shift toward the use of information practices by administrative agencies for purposes other than “neutral principles” and rather focusing on a “more cynical [use] of government information.”

This argument may be well-founded, and the Trump Administration certainly has been criticized widely for the relationship between its public statements and widespread media interpretation …

Biobanks As Knowledge Institutions, Michael J. Madison

Book Chapters

This chapter describes biobanks as institutions for collection, preservation, curation, and production of knowledge and information, in both material and immaterial forms. That characterization calls for research and comparative analysis of the broad diversity of specific biobanks, using a standardized research framework. Such a framework is identified and described here, as the knowledge commons framework. The chapter describes applications of the framework to biobanks to date and suggests directions for future research.

Is Blockchain The Next Step In The Evolution Chain Of [Market] Intermediaries?, Marcela Gomez, Pedro Bustamante, Martin B. H. Weiss, Ilia Murtazashvili, Michael J. Madison, Wilson Law, Tymofiy Mylovanov, Herminio Bodon, Prashabnt Krishnamurthy

Articles

The blockchain is a decentralized solution for handling transactions where we are concerned (among other aspects) with the accuracy and verification of transactions. One of its main promises is to eliminate the need for centralized entities or intermediaries and legal enforcement. Rather than trusting self-interested human intermediaries, the blockchain provides an alternative that relies on transparent computational protocols (Werbach 2018).

In this paper, we delve into this broker-less claim and analyze whether the blockchain needs an intermediary to allow for widespread access to its functionality and whether the blockchain itself is an intermediary. The latter would turn the blockchain into …

Governing Medical Knowledge Commons - Introduction And Chapter 1, Katherine J. Strandburg, Brett M. Frischmann, Michael J. Madison

Book Chapters

Governing Medical Knowledge Commons makes three claims: first, evidence matters to innovation policymaking; second, evidence shows that self-governing knowledge commons support effective innovation without prioritizing traditional intellectual property rights; and third, knowledge commons can succeed in the critical fields of medicine and health. The editors' knowledge commons framework adapts Elinor Ostrom's groundbreaking research on natural resource commons to the distinctive attributes of knowledge and information, providing a systematic means for accumulating evidence about how knowledge commons succeed. The editors' previous volume, Governing Knowledge Commons, demonstrated the framework's power through case studies in a diverse range of areas. Governing Medical Knowledge …

Ip Things As Boundary Objects: The Case Of The Copyright Work, Michael J. Madison

Articles

My goal is to explore the meanings and functions of the objects of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. This paper takes up the example of the copyright work.

It is usually argued that the central challenge in understanding the work is to develop a sensible method for appreciating its boundaries. Those boundaries, conventionally understood as the metaphorical "metes and bounds" of the work, might be established by deferring to the intention of the author, or by searching for authorship (creativity or originality) …

Knowledge Commons (2016), Michael J. Madison, Katherine J. Strandburg, Brett M. Frischmann

Book Chapters

This chapter describes methods for systematically studying knowledge commons as an institutional mode of governance of knowledge and information resources, including references to adjacent but distinct approaches to research that looks primarily to the role(s) of intellectual property systems in institutional contexts concerning innovation and creativity.

Knowledge commons refers to an institutional approach (commons) to governing the production, use, management, and/or preservation of a particular type of resource (knowledge or information, including resources linked to innovative and creative practice). Commons refers to a form of community management or governance. It applies to a resource, and it involves a group or …

Information Abundance And Knowledge Commons, Michael J. Madison

Book Chapters

Standard accounts of IP law describe systems of legal exclusion intended to prompt the production and distribution of intellectual resources, or information and knowledge, by making those things artificially scarce. The argument presented here frames IP law instead as one of several possible institutional responses to the need to coordinate the use of intellectual resources given their natural abundance, and not necessarily useful or effective responses at that. The chapter aims to shift analytic and empirical frameworks from those grounded in law to those grounded in governance, and from IP law in isolation to IP law as part of resource …

Understanding Access To Things: A Knowledge Commons Perspective, Michael J. Madison

Book Chapters

This chapter explores the related ideas of access to knowledge resources and shared governance of those resources, often known as commons. Knowledge resources consist of many types and forms. Some are tangible, and some are intangible. Some are singular; some are reproduced in copies. Some are singular or unique; some are collected or pooled. Some are viewed, used, or consumed only by a single person; for some resources, collective or social consumption is the norm. Any given resource often has multiple attributes along these dimensions, depending on whether one examines the resource’s physical properties, its creative or inventive properties, or …

Lost Classics Of Intellectual Property Law, Michael J. Madison

Articles

Santayana wrote, “Those who cannot remember the past are condemned to repeat it.” American legal scholarship often suffers from a related sin of omission: failing to acknowledge its intellectual debts. This short piece attempts to cure one possible source of the problem, in one discipline: inadequate information about what’s worth reading among older writing. I list “lost classics” of American scholarship in intellectual property law. These are not truly “lost,” and what counts as “classic” is often in the eye of the beholder (or reader). But these works may usefully be found again, and intellectual property law scholarship would be …

Governing Knowledge Commons -- Introduction & Chapter 1, Brett M. Frischmann, Michael J. Madison, Katherine J. Strandburg

Book Chapters

“Knowledge commons” describes the institutionalized community governance of the sharing and, in some cases, creation, of information, science, knowledge, data, and other types of intellectual and cultural resources. It is the subject of enormous recent interest and enthusiasm with respect to policymaking about innovation, creative production, and intellectual property. Taking that enthusiasm as its starting point, Governing Knowledge Commons argues that policymaking should be based on evidence and a deeper understanding of what makes commons institutions work. It offers a systematic way to study knowledge commons, borrowing and building on Elinor Ostrom’s Nobel Prize-winning research on natural resource commons. It …

Commons At The Intersection Of Peer Production, Citizen Science, And Big Data: Galaxy Zoo, Michael J. Madison

Book Chapters

The knowledge commons research framework is applied to a case of commons governance grounded in research in modern astronomy. The case, Galaxy Zoo, is a leading example of at least three different contemporary phenomena. In the first place Galaxy Zoo is a global citizen science project, in which volunteer non-scientists have been recruited to participate in large-scale data analysis via the Internet. In the second place Galaxy Zoo is a highly successful example of peer production, sometimes known colloquially as crowdsourcing, by which data are gathered, supplied, and/or analyzed by very large numbers of anonymous and pseudonymous contributors to an …

Book Review -- William Patry, How To Fix Copyright, Michael J. Madison

Articles

I review William Patry’s book How to Fix Copyright. The book is noteworthy for its ambitious yet measured effort to diagnose where copyright law has gone astray in recent years. It is less successful with respect to proposing possible changes to the law. Most interesting are parallels between How to Fix Copyright and an earlier comprehensive look at copyright law in the digital era: Paul Goldstein’s Copyright’s Highway: From Gutenberg to the Celestial Jukebox. William Patry and Paul Goldstein each have a lot of faith in the power of consumer choice in the cultural marketplace. That faith leads …

The End Of The Work As We Know It, Michael J. Madison

Articles

This paper takes a new look at the concept of the work of authorship in copyright, known in other systems as the copyright work. It complements inquiries into authorship and originality, extending earlier scholarship on the origins of legal “things” or objects and on the multi-dimensional character of their borders and boundaries.

Madisonian Fair Use, Michael J. Madison

Articles

This short essay reflects on developments in the law, scholarship, and practice of fair use since the publication in 2004 of an earlier article on patterns in fair use practice and adjudication. It synthesizes many of those developments in the idea of “Madisonian” fair use, borrowing the separation of powers metaphor from James Madison’s work on the US Constitution and applying it, lightly and in a preliminary way, to copyright.

Knowledge Curation, Michael J. Madison

Articles

This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing new knowledge and offering access to it. Equivalent attention rarely is paid to questions of old knowledge. To what extent should the law, and particularly intellectual property law, focus on the durability of information and knowledge? To what extent does the law do so already, and to what effect? This article begins to explore those questions. Along the way, the article takes up distinctions among different types …

Beyond Invention: Patent As Knowledge Law, Michael J. Madison

Articles

The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law. The article suggests that patent and copyright law jurisprudence was constructed initially by the Court with explicit attention to the relationship between these forms of intellectual property law and the roles of knowledge in society. Over time, explicit attention to that relationship has largely disappeared from …

What Blogging Might Teach About Cybernorms, Jacqueline D. Lipton

Articles

Since the dawn of the information age, scholars have debated the viability of regulating cyberspace. Early on, Professor Lawrence Lessig suggested that “code is law” online. Lessig and others also examined the respective regulatory functions of laws, code, market forces, and social norms. In recent years, with the rise of Web 2.0 interactive technologies, norms have taken center-stage as a regulatory modality online. The advantages of norms are that they can develop quickly by the communities that seek to enforce them, and they are not bound by geography. However, to date there has been scant literature dealing in any detail …

Copyright’S Twilight Zone: Digital Copyright Lessons From The Vampire Blogosphere, Jacqueline D. Lipton

Articles

Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright works, or engaging in acts of digital copyright piracy and plagiarism. As online conduct becomes more interactive, copyright laws are less effective in creating clear signals about proscribed conduct. This article examines the application of copyright law to Web 2.0 technologies. It suggests that social …

Wikipedia And The European Union Database Directive, Jacqueline D. Lipton

Articles

“Web 2.0" and "User Generated Content (UGC)" are the new buzzwords in cyberspace. In recent years, law and policy makers have struggled to keep pace with the needs of digital natives in terms of online content control in the new participatory web culture. Much of the discourse about intellectual property rights in this context revolves around copyright law: for example, who owns copyright in works generated by multiple people, and what happens when these joint authored works borrow from existing copyright works in terms of derivative works rights and the fair use defense. Many works compiled by groups are subject …