The Yale Law Journal


"One of These Things Does Not Belong”: Intellectual Property and Collective Action Across Boundaries

01 Jun 2008

It is a fine day when I am able to fondly recall a childhood game, reflect upon social movement theory, and ponder the connections between the public interest and private law, all at once. Amy Kapczynski’s article brought me to this delightful place. The childhood game, which featured four cards, each picturing four distinct items, tested analogical reasoning. The game’s objective: to figure out which of the things “did not belong.” I found this exercise endlessly fascinating, just as I did Kapczynski’s boundary-crossing rumination on the A2K mobilization. The author links disparate actors and subjects, domestic and international developments, politics and markets, law and politics, the Third and the First Worlds, public choice and social movement theory. In her account, everything belongs. The challenge for the reader is to discriminate: to consider the discrete pieces of this sprawling intellectual mosaic and assess how well each part fits together to form a coherent theory of how law and framing mediate collective action.

I. The Interdisciplinary Bridge

The article’s core feature, its interdisciplinary methodology, pushes the scholarly conversations in sociology and law in exciting directions. The impulse to bridge the gap between sociology and private law is welcome. As Kapczynski notes, others, including the political scientist Michael McCann and the constitutional theorist Reva Siegel, have written about how law provides normative and strategic resources for social movements. Scholars often focus on public law issues, however. The great potential of Kapczynski’s project is to add further depth to the literature by discussing IP, a primarily private law subject.Kapczynski shows that A2K advocates have destabilized IP regimes by tearing down the wall between public and private. These activists have emphasized the social dimensions—indeed the social costs—of rights in intellectual property, we learn. The act of identifying and explicating the emergence of the A2K phenomenon, inconceivable under public choice theory, is a substantial scholarly contribution.

II. A Dynamic Model of Law and Social Movements

Ultimately, Kapczynski wants to achieve even more. She seeks to theorize how legal concepts mediate the interpretative frames that socio-political mobilizations, such as A2K, deploy to assert their interests. Kapczynski’s discussion of framing theory advances the scholarly conversation about law and popular mobilizations in a crucial way: it helps to bury “zero-sum” propositions about law’s effects on social movements. Those with a zero-sum view imagine law as a blunt instrument, either breathing life into or taking it away from social movements. Other scholars have offered a more satisfying account of law’s impact on social movements, one that emphasizes that even failed lawsuits can facilitate movements’ cultural and political agendas. But, as I have previously argued, even these scholars sometimes duplicate the zero-sum theorists’ tendency to ascribe far too much agency to the law, a supposed “master frame” that animates activists’ each and every move.

Kapczynski posits a more dynamic model of interaction between law and social mobilizations. IP law and legal concepts are constitutive, but not the center of the universe, in her analysis. She considers the internal dynamics of the A2K mobilization on its own terms, and ascribes tremendous agency to the activists, who manipulate law to great effect. Kapczynski’s “gravitational pull” thesis deftly illustrates her conception of IP law as an important, but interactive and dialogic, instrument of meaning. Frame theorists claim that collective actors use frames for diagnosis, prognosis, and motivation. Legal concepts can be deployed in a variety of ways within the framing process, Kapczynski argues, occupying architectural, discursive, and strategic roles. A2K activists have manipulated legal concepts to serve their interests, she shows. But so, too, have corporate actors. In fact, some of the article’s most engaging passages explore not the A2K mobilization, but how IP industries articulated and advanced their goal of expanding IP protection in the marketplace of ideas.

III. The Definitional Puzzle

Even as I admire Kapczynski’s project, I question its boundlessness in one important respect. Kapczynski sweeps a panoply of actors into the A2K collective. The activists range from college students challenging copyright restrictions, to farmers challenging seed patents, to AIDS activists challenging drug patents, to software programmers challenging software patents, to Lawrence Lessig’s creative commons movement, and, most intriguingly, to software programmers, backed by major corporations, advocating open source models. The article claims that all of these actors are engaged in a common project of “thematizing new conflicts between property in knowledge and human efforts to create, develop, communicate, and share knowledge in our increasingly informational society.”

Kapczynski has made a credible, but not fully persuasive case, that these disparate actors constitute a cohesive and coherent force. In fact, she does not devote much attention to the matter. Instead, Kapczynski is content to pitch her description of the collective and how it functions at a high level of generality. I worry that she may well have inappropriately lumped different kinds of actors or phenomena into a single category, perhaps because the author, a participant-observer in A2K, describes the movement as it sees itself, rather than from a more critical standpoint. Kapczynski’s approach—the preference for breadth over depth—does not undermine her goal of positing a systematic conception of law and framing. (In fact, she could have relied on countless other mobilizations to make similar theoretical claims about framing.) But the generalizations—the avoidance of thorny details about such an intriguing public-private context—makes her insightful theory less formidable and analytically rich.

One question that theorists of extralegal political action often engage, but which Kapczynski does not, suggests why a more discriminating analysis might be in order. Kapczynski applies social movement theory, yet she avoids exploring whether A2K actually constitutes a “social movement.” She asserts that “[n]othing” in her analysis “turns on whether the A2K mobilization meets one or another definition of a social movement.” I puzzled over this statement, for distinguishing social movements from more conventional interest group behavior is far more than an exercise in labeling. Much of the literature discusses the distinctive characteristics of social movement organizations as a way of understanding their nature, functions, and limits as forms of collective action.

Often, social movements involve actors shut out of conventional channels of power, or disfavored in the political process, who nevertheless manage to exercise agency. Thus, mid-twentieth century social movements by African-Americans, women, and gays turned to extra-legal political tactics, coupled with legal strategies, out of necessity. Unable to gain substantive representation through traditional avenues, they turned to social movement activity to generate public support for their cause, and hence, captivate and sway decision makers—including courts and legislators—through an indirect route.

In the A2K mobilization, this characterization may apply to some actors, but not to others. According to Kapczynski, farmers in developing countries, software programmers backed by lobbyists and companies with investments in open-source models, and scientists and academics in this country, are all a part of A2K. Subsistence farmers look much more like the kind of group that one would expect to find mobilizing outside of conventional channels than the latter groups. Moreover, the various A2K actors appear to have different motivations for being a part of the collective. The farmers’ interests lie in protecting marginal material existences, the corporations’ in profit, and the academics’ and scientists’ in protecting and sharing intellectual creativity to advance the social good. The point here is that what Kapczynski describes as a coherent group with a “new” politics might include a mix of the old and the new, and actors with common interests, defined in general terms, but distinct interests, defined in specific terms. Kapczynski is describing a distinctive type of political formation. It is a fusion movement, one composed of a motley group of actors, ranging from grassroots, on the margins of society, to elites, with conventional political access, strategically bound together in struggle against the overreaching IP rights holder.

IV. Social Movement Chic

But why have they come together? One possible answer to this question has implications far beyond framing theory: social movements are chic. The kinds of extra-legal protest strategies typically associated with outsider groups have attained such political currency that every astute stakeholder in any struggle over policy will deploy them. Sophisticated political actors now embrace social movement tactics (civil disobedience, for example) and language (notions of “equality,” “human rights,” and “freedom”) to reform (or distort, some would say) policymaking. Not even the market is immune from movement dynamics. Hence, the most significant legacy of the explosion of social movement activity in postwar America may well be the creation of a “movement of movements,” or less charitably, interest group gridlock. Kapczynski evades this intriguing point by declining, at least in this article, to explore distinctions among collective actions. She ought to confront this question at some point, even if it might cast unfavorable light on the A2K mobilization.

V. Costs and Benefits of Diversity

I also want to know more about the terms on which the motley groups co-exist. I long, that is, for a more detailed discussion of how disparate actors on the ground establish and maintain “shared principles, arguments, and identities” beyond the initial stage of identifying a common enemy. In past movements, scholars have shown, insider/outsider status has been a crucially important element animating, and often limiting, movements’ legal strategies, discursive frames, and decision makers’ responses to movement goals. Activists’ lack of education and expertise has sometimes created political opportunities for them, but more often undermined their political leverage. To the extent that A2K includes actors with greater levels of social, economic, and intellectual capital, allied with those with fewer of these resources, the coalition may be advantageous, particularly for those of limited means. Or, more elite members of the A2K coalition may set agendas and pursue objectives more in line with their own interests. Cleavages may form among the activists along lines of status, and perhaps already exist.

My sense is that the villain in the “fragile” A2K “coalition”—the “greedy” IP rights holder—may be submerging substantial interest divergence within the group and excluding some voices altogether. Certain issues and peoples have strategic priority; others do not. Take, for example, the salience of the “digital divide” to A2K’s agenda. This divide exists between those who have access to the web and its attendant goods, including the digital economy and web-based educational and political tools, and those who do not. Race, place, education, and income signal the divide: whites, urbanites, and better-educated, higher-income people outpace others in access. In short, we have an access to knowledge problem right here, in the “developed” world. Surely IP practices of U.S. technology companies and internet service providers, and governments’ responses to them, are deeply implicated in the creation and maintenance of the divide here, just as they are in the developing world. The domestic A2K issue might fit well on the A2K agenda. Lack of access to low-cost hardware and software could be framed as a “human right,” and those without it termed “disenfranchised.” Activists could demand reforms to ameliorate the divide such as the creation of municipal networks and exceptions to patent and copyright laws to permit their proliferation and use. Yet the digital divide is apparently nowhere to be found on A2K’s agenda. Kapczynski references this omission in passing, but does not attach analytical significance to it. In a few other passages, she acknowledges a relationship between the A2K mobilization’s identity and identity-making practices and its strategic priorities.

These important matters deserve much more attention. For, in the future, it is likely that A2K activists will make strategic choices that illuminate the definitional questions of what A2K is—movement, mobilization, or interest group—and whom it represents. These choices may well inform A2K’s discursive, strategic, or architectural uses of legal concepts in framing. The one certainty is this: the A2K mobilization confronts unique challenges owing to its diversity, however much it wishes to project unity. The IP industries will discern and exploit false accord. Industry will seize, for instance, on anything that paints A2K as more an interest group for competitors and wily consumers, than a movement by the “exploited” “commons.”

VI. Conclusion

These observations should be understood as constructive criticisms of an ambitious project that succeeds in critical respects. Indeed, it bears noting that mine is a social movement historian’s critique; for those in my guild, the devil is in the details. Critical and temporal distance often are integral to analysis and theorizing. I look forward to Kapczynski’s future discussions of the ideas that she has begun to develop here, using a captivatingly diverse, but inchoate, mobilization as a springboard for analysis. In the meantime, I applaud Kapczynski’s intellectual dexterity and admire her multi-dimensional model of how law mediates sociopolitical change. May there be more like it on the scholarly horizon.

Tomiko Brown-Nagin is Professor of Law and History, and F. Palmer Weber Research Professor in Civil Liberties and Human Rights, at the University of Virginia. She is the author of Courage to Dissent, a book that examines relationships among public interest lawyers, courts, and social movement actors during the civil rights era, forthcoming from Oxford University Press.

Preferred citation: Tomiko Brown-Nagin, “One of These Things Does Not Belong”: Intellectual Property and Collective Action Across Boundaries, 117 Yale L.J. Pocket Part 280 (2008),