The Eureka Myth
eBook - ePub

The Eureka Myth

Creators, Innovators, and Everyday Intellectual Property

Jessica Silbey

Share book
  1. 368 pages
  2. English
  3. ePUB (mobile friendly)
  4. Available on iOS & Android
eBook - ePub

The Eureka Myth

Creators, Innovators, and Everyday Intellectual Property

Jessica Silbey

Book details
Book preview
Table of contents
Citations

About This Book

Are innovation and creativity helped or hindered by our intellectual property laws? In the two hundred plus years since the Constitution enshrined protections for those who create and innovate, we're still debating the merits of IP laws and whether or not they actually work as intended. Artists, scientists, businesses, and the lawyers who serve them, as well as the Americans who benefit from their creations all still wonder: what facilitates innovation and creativity in our digital age? And what role, if any, do our intellectual property laws play in the growth of innovation and creativity in the United States?

Incentivizing the "progress of science and the useful arts" has been the goal of intellectual property law since our constitutional beginnings. The Eureka Myth cuts through the current debates and goes straight to the source: the artists and innovators themselves. Silbey makes sense of the intersections between intellectual property law and creative and innovative activity by centering on the stories told by artists, scientists, their employers, lawyers and managers, describing how and why they create and innovate and whether or how IP law plays a role in their activities. Their employers, business partners, managers, and lawyers also describe their role in facilitating the creative and innovative work. Silbey's connections and distinctions made between the stories and statutes serve to inform present and future innovative and creative communities.

Breaking new ground in its examination of the U.S. economy and cultural identity, The Eureka Myth draws out new and surprising conclusions about the sometimes misinterpreted relationships between creativity and intellectual property protections.

Frequently asked questions

How do I cancel my subscription?
Simply head over to the account section in settings and click on “Cancel Subscription” - it’s as simple as that. After you cancel, your membership will stay active for the remainder of the time you’ve paid for. Learn more here.
Can/how do I download books?
At the moment all of our mobile-responsive ePub books are available to download via the app. Most of our PDFs are also available to download and we're working on making the final remaining ones downloadable now. Learn more here.
What is the difference between the pricing plans?
Both plans give you full access to the library and all of Perlego’s features. The only differences are the price and subscription period: With the annual plan you’ll save around 30% compared to 12 months on the monthly plan.
What is Perlego?
We are an online textbook subscription service, where you can get access to an entire online library for less than the price of a single book per month. With over 1 million books across 1000+ topics, we’ve got you covered! Learn more here.
Do you support text-to-speech?
Look out for the read-aloud symbol on your next book to see if you can listen to it. The read-aloud tool reads text aloud for you, highlighting the text as it is being read. You can pause it, speed it up and slow it down. Learn more here.
Is The Eureka Myth an online PDF/ePUB?
Yes, you can access The Eureka Myth by Jessica Silbey in PDF and/or ePUB format, as well as other popular books in Law & Intellectual Property Law. We have over one million books available in our catalogue for you to explore.

Information

Year
2014
ISBN
9780804793537
Topic
Law
Edition
1
CHAPTER 1
Inspired Beginnings
THE “EUREKA” MOMENT experienced by artists and scientists is a well-known clichĂ©, depicted in cartoons as a lightbulb appearing over one’s head. Indeed, artists and scientists do experience these moments of transcendent discovery as they work. Throughout the interviews I conducted for this book, I heard some version of the eureka moment in response to questions such as, “How did you become an artist?” or “What influenced your path toward scientific research?” This chapter unpacks the mythology of these moments to examine how they arise.
Despite the frequency of these moments of discovery, the language and story types that accompany them are more complex and varied than simply “I woke up one day and the idea came to me.” To be sure, whether in the arts or the sciences, many of the interviewees describe ideas coming to them as if unconsciously, or as one writer says, as “a voice passing through” her. But these individuals also, at the same time, describe various activities and complex social structures that nourish their work, particular reasons for being in certain places at certain times, and diverse circumstances that led to the production of work that may eventually become intellectual property. The eureka moment is only one facet of the creation stories that interviewees tell. And yet the law that purports to govern the origination, production, and promotion of art and science does not reflect this situational complexity; instead, it appears to be structured around or explained by the stereotyped eureka moment.1 The law appears to rely on individual will and luck and eschews the connected and communal creativity and innovation that is the everyday work of creators and innovators.
When asked about their beginnings in the creative or innovative fields, many interviewees described some sort of origin story—a personal beginning pregnant with meaning beyond simply its causal role in producing a career or identity. Origin stories permeate our culture, from the creation of humanity in Genesis to the special meaning that the story of our children’s birth takes in our own family (“the day you were born”). Genesis is the preeminent origin story, establishing the beginning of human civilization with God’s creation of man in God’s image and the subordination of Eve through her birth (origin) from Adam’s rib. The myth of the United States’ constitutional founding, the manner and motive for signing of the Declaration of Independence, and the deliberative engagement of the founding fathers continue to justify political and socioeconomic relationships among citizens and the government. Origin stories, like all narratives, make sense of the present in terms of a past moment, seeming to speak to “the essential nature of self and society.”2 They are uniquely persuasive as explanations for an individual’s life or a society’s contours by conflating the inquiry “Where did we come from?” with the question “Who are we?”
I therefore analyze the origin stories in these interviews closely. When people answer questions about how they began their career or why they pursued a certain direction and not another, they do not provide just one explanation. To be sure, they often answer the question with a single starting point, to which they ascribe special importance. For example, a theoretical chemist (whom I’ll call Robert)3 explains his start in molecular modeling this way:
My girlfriend [in graduate school] . . . happened to be an applied mathematician, . . . and I just learned all the applied math stuff . . . [which] turned out [to be] . . . useful in doing theoretical chemistry . . . but a lot of people in chemistry didn’t know that stuff because they hadn’t had this experience.
A visual artist, Sadie, recounts her beginning in art as a consequence of her mother dying at a young age and thereafter searching to be more like her mother and close to her even in her death.
We tell stories to make sense of our lives, as individuals and a society. (Perhaps there is no other kind of sense than that which we make through narratives.) Often, these stories take recognizable forms; on their face, these inspired beginnings seem to be generically straightforward origin myths. But no story has a singular meaning or significance. Within these stories of inspired beginnings are descriptions of diverse influences and resources that shaped their paths. When studied in light of the entire extended conversation we shared and the many additional details about the interviewees’ career, the “once upon a time” quality of these origin stories recedes as the complexity of life’s circumstances manifests more broadly. In this chapter, I examine both the commonalities and the variations among inspired beginnings in order to move us from a clichĂ©d beginning to a fuller comprehension of how creativity and innovation happen. This will subsequently enable a fuller critique of the law’s regulation of creative and innovative production.
Law and policy discussions of creativity and innovation do not dwell on the moment of creation or discovery, although “first in time” and “originators” of work are glorified and specially protected by US law.4 Instead, most legal policy conversations today revolve around incentives, either conflating extrinsic motivations (e.g., financial reward) with intrinsic motivations (e.g., emotional pleasure) or presuming a hierarchical relation between them, thus subordinating intrinsic motivation to financial reward.5 As the Supreme Court famously wrote about copyright, quoting Samuel Johnson, “No man but a blockhead ever wrote, except for money.”6 In other words, as the dominant legal story goes, we work (at art or science) primarily to earn a living.
Despite driving intellectual property law and policy discussions, the pecuniary gains to which an intellectual property owner is entitled are at best obliquely mentioned among the artists’ and scientists’ accounts of inspired beginnings, if at all. The absence of an economic incentive in the beginning correlates with recent studies that highlight the role of intellectual challenge and personal interest as intrinsic motivations.7 Empirical studies also track the positive role that attribution and contribution have on collective social goods in motivating artistic and scientific production.8 In asking interviewees questions about how they got started writing a draft novel or conducting a scientific experiment, such as “How did you get into this line of work?” or “What prompted you to embark on that project?” I expected to hear a variety of answers, including “To earn a living” or “I was looking for remunerative work.” But these were rarely the responses. In fact, when pushed, many interviewees expressed surprise that they could earn a modest living from the artistic or scientific work about which they were passionate.
The dynamics of these origin stories do not completely displace the economic incentive used to justify intellectual property protection. But the diversity among the interviewees’ accounts of how and why they embarked on a life of innovation in the creative and scientific fields stands in stark contrast to the romantic ideal of eureka moments and the monolithic language of monetary incentives. Additionally, and importantly, the diversity illuminates how the roots and offshoots of creativity and innovation are integrated into social organizations and legal relations.
* * *
Throughout the fifty interviews, stories of unconscious or serendipitous breakthrough are surrounded by other, specific conditions that also account for the beginning of creative or innovative endeavors. One of these conditions is playfulness; the individual’s pursuit of pleasure manifests in the interviews as deeply individual preferences, united only by the common desire to explore as freely as possible. While the language of luck and serendipity populates these stories, respondents say that happy accidents occur when they are open to experiencing them and when they allow themselves (or are allowed by others) to follow meandering paths, whether or not a path is ultimately fruitful.
Another common condition that situates the origin story of creative or innovative work is a problem in need of solving. The problem might be personal, institutional, or social. The solution might be individual specific and then unpredictably expand, or it might initially be intended for a large audience. The interviewees vary in their expectations for dissemination, a point I more fully explore in the last chapter. But felt need and urgency around identified problems often drive creative or innovative beginnings.
If there is a consistent moral across the stories of inspired beginnings, it is in the interviewees’ refusal to resolve tensions between individual gains and community welfare. It is clear from the interviews that an artist’s or innovator’s capacity to engage the work and extend the work’s value comes from a combination of supportive relationships with others and historical or intellectual debts to past artists or scientists. Autonomy and freedom feature prominently in the stories of inspired beginnings, but so do the recognition of social connections and the necessity of (if not also the desire for) formally organized societal relations. The simultaneous emphasis in these origin stories on individual autonomy and ties to the social collective offers lessons for intellectual property policy that has conventionally favored the individual’s contribution over that of the community.
UNCONSCIOUS ORIGINS
Several interviewees compared the moment they knew they created something worthwhile to an alarm going off. Here is a journalist and novelist, Jennifer, describing the beginning of a writing project. We were sitting at her dining room table, which was strewn with papers and children’s toys, on a weekday morning: “It feels like you are almost like a filter, with a little alarm, and the alarm is, ‘Oh, that’s a story. You know, that’s a story that people would be . . . interested in reading about.’” Jennifer experiences her alarm as an external signal that prompts an internal moment of clarity and purpose indicating that it’s time to dig in and work on the project. Andrew, a software engineer, describes a similar moment when he discovered his next entrepreneurial project. When describing it to me, he is highly animated, gesticulating with his hands and leaning forward with his tall frame from the couch on which he sits: “It was so obvious . . . [I]t was so clear to us that the presence was going to have to move out to the network . . . that is the moment of invention, it’s not like, sitting around drawing a drawing, it’s actually like a little when you see the concepts coming together.” Both Jennifer, the writer, and Andrew, the software engineer, took leaps of faith to pursue their respective work despite lacking validation or encouragement from others. They would invest significant time, labor, and money in their projects, and risk failure, to make something they believed worth their effort.
As it turns out, both Jennifer and Andrew earned enough money to live off their projects. Jennifer was a salaried journalist for more than a decade and then later sold her book to a publisher (transferring the copyright) and lived off the royalties for a while before returning to journalism. Andrew accumulated venture capital on the basis of his innovative software and his patent portfolio, and he later sold his nascent company to a large publicly traded company. But these intellectual property jackpots were by no means preordained. Nor was money the original motivation for pursuing a life in art and science.
Jennifer became a writer because of her interest in both the Soviet Union and journalism. High school teachers strongly influenced her decision to pursue a job as a Moscow correspondent after college, and she had a strong desire to “do something useful”:
So in tenth grade . . . I started these two interests, and I decided for some reason, at that point, that I wanted to be a Moscow correspondent. And then I just—in a very linear way, I pursued that goal, and . . . so basically, that’s what got me into journalism. . . . [I]n the old days, you know, the world was on the brink of nuclear catastrophe, and it seemed like we really needed to understand the Soviet Union, and they needed to understand us.
Andrew, the software engineer, has a similar origin story, linking his work in the software industry to early teenage influences and activities:
[M]y background is in engineering and physics, and it’s specifically in computer science doing both engineering and physics. So I was doing programming in school for ten years, and I was doing programming before that since I was thirteen years old. And I think that that’s been very important to everything I’ve done since I left graduate school for physics. You know, straight out of physics, the fact that you have so many years to kind of learn your trade while you don’t even think that that’s what you’re doing, learning the trade.
Both of these people describe their origin in very different fields as a product of serendipitous factors born of their unique biographies. And both also ascribe the moment of invention to something beyond their conscious choice. The metaphorical alarm bell—a symbol of time and readiness—was a sign to them that they could move forward with confidence, as if someone were waving a flag to say to them, “The time is now, this is it—ready, set, go.”
In lieu of an alarm, the interviews also contain metaphors for creative moments or invention related to nature or magic. Jennifer mentioned “an element of alchemy” in writing her first book, implying a magical and unexplained process. Andrew, the software engineer and entrepreneur, compared the process to a mirage: something before his eyes that made itself perceptible to him in an unexplained and thrilling way. The beginning of the project was not like sketching or brainstorming—“not like . . . drawing a drawing”—but like an idea appearing before him of its own force: “you see concepts [come] together.”
A web designer echoed this sentiment in terms of a portal he was asked to create: “We did the research on how their business was organized, and it was almost—it was one of those things where it was almost obvious what needed to happen, and all I needed to do was kind of not mess it up, you know?” Karen, a sculptor and installation artist who lives and works in New York City, describes how the idea for an award-winning work “just struck” her. She was brainstorming an installation project that would be outside and on view for months. She had to consider the durability of materials against the elements and throngs of passersby:
I was walking over where the [street hits the wide pedestrian path] . . . so you don’t have any buildings, it’s just more open. And so you’ve got the big sky, and I realized, oh, yeah—the street trees are here. So you don’t have the buildings, you don’t have the people, but the trees. And then I realized, well, they’d been here all the time, from day one. . . . So that’s why it was—when it struck me, I think I sent [my partner] a text or I called him and I said, ‘What about the street trees?’ Because . . . while I was walking and it just kind of hit me, I was like, ‘Oh, yeah.’ It would be immediately an easy way—I could see how I could connect and work with the entire length of the street.
As with the alarm, the magical appearance of an idea compels these artists and engineers forward. It is understandable that a moment of clarity or a sign from nature (or God, or whatever your mystical preference) would encourage the commitment of time and labor that intense productive work entails. The personal and business risks involved in doing art and science are serious considerations. But the feeling of lucidity eases those risks, at least as far as committing to hard work and experiencing personal satisfaction in its outcome.
A patent attorney, Carol understands the invention of one of her clients, a biologist, in a similar way. We are sitting in a conference room in her law firm and she is telling me about the initial interview with her client when they discussed the process of drafting a patent:
[He said,] “Look, I am just a scientist, you know? I go into my lab, and I come up with theories.” And he said, “This was a complete sea change”—and that was his word: a complete sea change. No one—and no one—believed him. And we wrote a patent, and we got him an application, and we got him patents . . . and he’s in Europe, and he’s all over—worldwide jurisdiction. And now, people are . . . employing this particular method to help a population of people for which there was very little hope, and it’s working. And he’s just . . . very touched by that, that he did something that . . . was just sort of like this [snaps fingers] flash of genius. He looked at the data with one of his students, and he was like, “You know what? I don’t think it’s that—I think it’s this. And so let’s test it.” Well, no one believed him.
It is common that “creation stories” render the moment of inspiration into myth.9 Serendipitous and natural forces conspire to characterize creation stories as beyond the control of those who will be credited with the creation or invention, whether amateurs and professionals. In these interviews, the mythic form does not discriminate between those who are commercially successful and those who are not. The interviewees relish the lack of responsibility attributable to their own conscious behavior. For instance, the inspiration for one of singer-songwriter Mary’s most popular songs was, as s...

Table of contents