Tuesday, February 15, 2011
Recent work has analyzed the increasing tendency of some social and professional groups use endemic social norms rather than formal law to regulate their intellectual property (IP). This qualitative empirical study extends and critiques existing work by examining how roller derby skaters regulate the pseudonyms under which they perform. Roller derby names are a central part of this countercultural, all-girl sport, adding to its distinctive combination of punk and camp. Skaters have developed an elaborate rule structure, registration system, and governance regime to protect the uniqueness of their skate names. The emergence of this extra-legal governance scheme despite the ready availability of IP theories (e.g., trademark, rights of publicity) to protect derby names challenges a central tenet of the prevailing literature that such norms emerge only where IP law has no substantive application. This analysis of derby names shows that IP norms emerge independently of law’s (un)availability, so long as the relevant group is close-knit and the norms are welfare-maximizing. These groups are especially likely to craft elaborate regulation and registration schemes where the relevant community is identity-constitutive, and where the intangible goods arise from nonmarket production. This study critiques existing explanations for IP norm emergence; suggests a counter-theory for the emergence of user-generated IP governance systems; casts further doubt on the adequacy of prevailing neoclassical economic assumptions underpinning IP doctrine; and calls into question what it means for rules to be law.
Download the paper from SSRN at the link.