- January 2017
- 20 Stan. Tech. L. Rev. 143
Legal scholarship on intellectual property needs to be reoriented to consider how state action helps to generate the infrastructure of emerging fields in ways that prove conducive to their development. In this Article, I contribute to that reorientation through an in-depth analysis of one important emerging technology, synthetic biology. The ambition of synthetic biology is to make biology easier to engineer through standardization and associated technical processes. Early successes indicate the scientific promise of the field and help to explain why its advocates are concerned to see the field develop in an open and publicly beneficial manner. What openness might mean in the patent-dominated context of biotechnology remains unclear, however, and requires a reassessment of software’s “copyleft” concept that provided initial inspiration to the scientists and activists working on open synthetic biology.
In this Article, I focus on the efforts of the BioBricks Foundation (BBF), the leading non-profit in synthetic biology, to promote the open development of the field. I explore the rationale behind the BBF’s decision to pursue a “public domain” strategy via a new legal agreement, the BioBrickTM Public Agreement. The success of open development in synthetic biology depends, however, not only on the particular form of legal license or agreement used to govern the distribution of innovation, but on overcoming what I call “infrastructure gaps” that inhibit cooperative action toward collective outcomes. Such cooperation is the hallmark of peer production projects in the information economy and the hope of many synthetic biologists is to replicate that success in biotechnology.
The viability of this public domain strategy for open synthetic biology depends on establishing peer production without the backing of legal coercion provided through a “share-alike” licensing provision as seen in free software. In scrutinizing the motivations behind peer production, I borrow from recent philosophical work to argue for the potential rationality of decentralized cooperation, even where individual contributions to a collective project are small. Such cooperation depends, however, on threshold effects that mark points where individual contributions become efficacious in producing desired collective outcomes. In many emerging fields, including synthetic biology, these thresholds may be characterized by the presence or absence of shared technical platforms that enable further innovation.
Platforms are special kinds of infrastructure, as recent work from law and political economy has shown. The question of how such platforms are to be produced requires considering further the role of state action in infrastructure provision. I argue that the success of openness in synthetic biology depends on meeting infrastructural prerequisites that are mainly, if not exclusively, provided through state action. Such state action may proceed, however, through “hidden” modalities of the kind that theorists of industrial organization have identified, and which ought to be a central concern of legal scholars and advocates interested in the theory and practice of open source technology development.