Ted Ullyot titled his Helen Wilson Nies Lecture at Marquette Law School on Tuesday, “Innovation, Disruption, and Intellectual Property: A View from Silicon Valley.” He made it clear which two of those three elements are looked on favorably within that bastion of high-tech culture: innovation and disruption. That leaves one not looked on so favorably: intellectual property law, if you define that as protecting creative work through patents, copyrights, or trademarks.

Ullyot has gained great insight into what goes on between technological visionaries on one side and corporate lawyers on the other. From 2008 to 2013, he was general counsel of Facebook. That covered a period in which Facebook grew at an amazing pace, its stock went public, and it was sued by Yahoo! for patent infringement. Ullyot described the Yahoo! case in detail in his lecture, including the way that many of the leading figures in Silicon Valley who had no connection to Facebook were rubbed wrong by the Yahoo! suit because the culture of innovation was so oriented against asserting intellectual property rights.

My previous two posts on the upcoming Nies Lecture (Thursday, April 16, at 4:30pm — it’s not too late to register!) attempted to sketch out where I think Prof. Smith is headed, based on the abstract and his previous work. In this post I want to reflect for a moment on the implications of viewing copyrights as a type of semicommons.

Copyright was born, in the eighteenth century, with a focus on who had the right to print, publish, and reprint works of authorship. That is, the concern was to exclusively reserve the manufacture of complete works — books, maps, and nautical charts — to the person who created them, or any downstream purchaser of those rights. Although the copyrighted work is intangible — it is the particular creative expression that is embodied within a book, map, or chart — for the first century or so of its existence that expression as a practical matter had a one-to-one correlation with physical objects. In that realm, it is easy to conceive of the property rights assigned by copyright, and the open access rights to the public domain, as dividing lines dividing up an imaginary space — this tract over here is the book Moll Flanders, which is owned by X; that tract over there is public domain, and thus can be used by anyone.

Over the course of the nineteenth century and into the early twentieth, that early, simple framework broke down as courts embraced the notion that the intangible object protected by copyright could be infringed in ways other than reprinting physical copies of the original.