Draft 2/4/2011. Please do not cite or quote without author’s permission. Talk Derby to Me: Emergent Intellectual Property Norms Governing Roller Derby Pseudonyms David Fagundes † ABSTRACT Much 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 coherence of the prevailing neoclassical economic assumptions underlying IP law; and calls into question what it means for rules to be law. † Associate Professor, Southwestern Law School. J.D., Harvard Law School. A.B., Harvard College. Thanks to Stefan Bechtold, Mary Anne Franks, Gowri Ramachandran, Chris Sprigman, and participants in the Workshop on the Public Nature of Private Property at Georgetown University Law School; the Fourth PrawfsFest! Workshop on Public Law and Legal Theory at the University of Miami Law School; the Southern California Junior Law Faculty Workshop at Southwestern Law School; the West/Southwest Junior Faculty Conference at Arizona State University Law School; the Law & Social Sciences Faculty Workshop at ETH- Zurich; and the IP Scholars’ Conference at UC Berkeley Law School for helpful comments. I also owe a debt of gratitude to the many derbylicious rollergirls (and derby dudes) who helped with this project, and who have been a constant source of inspiration to me. They include, but are by no means limited to, Agnus Die, Boogiewoman, Cagey Bea, Demolicious, Evil E, Fighty Almighty, Hurt Reynolds, Hydra, Ivanna S. Pankin, Judy Gloom, Long Island Lolita, Louise Z. Animal, Mickispeedia, Mila Minute, Paige Burner, Soylent Mean, and Tae Kwon Ho. Talk Derby to Me ii INTRODUCTION : WHERE IP ISN ’T? If you go to the store to pick up some milk, you could hide the carton in your coat and try to sneak out undetected, but chances are excellent that you’ll go the standard route and pay for the milk at the cash register instead. 1 Few shoppers likely pause to consider why they tend to opt for paying over theft, but if pressed, most people would likely answer: “I don’t steal because theft is against the law.” 2 The familiar notion that law is a primary factor in determining conduct animates the overwhelming majority of legal scholarship as well. We typically assume that criminal law is effective only to the extent that its sanctions exceed the benefits actors would accrue from lawbreaking. In the context of private law, Coase’s theorem implies that the initial allocation of legal entitlements matters insofar as it affects the relative wealth of the parties involved in the bargain. So even though parties can and do privately reorder law’s initial baselines, we tend to take for granted that these baselines are critical to how parties will engage in such reordering. As Robert Mnookin and Lewis Kornheiser famously put it in the context of divorce proceedings, parties “do not bargain … in a vacuum; they bargain in the shadow of the law.” 3 The idea that law provides a shared framework against which we all frame our conduct may seem so instinctive that it need not be questioned. Fortunately, though, some scholars thought to question this assumption, with the surprising result that it’s often not valid. In fact, people often bargain not in the shadow of law, but without any consciousness of law whatsoever. Robert Ellickson provides the cornerstone account. His study of Shasta County ranchers found that ranchers’ rules and practices governing cattle trespass bore no relationship to applicable tort law, and were instead the product of collaboratively created, but still highly effective, social norms. 4 Elinor 1 That we find compelling such famous exceptions as Jean Valjean and Winona Ryder simply proves the rule. 2 They’d also likely add, “Duh.” 3 Robert Mnookin & Lewis Kornheiser, Bargaining in the Shadow of Law: The Case of Divorce , 88 YALE L.J. 950, 951 (1979). 4 ROBERT ELLICKSON , ORDER WITHOUT LAW (1991). Talk Derby to Me 1 Ostrom’s work similarly revealed, in the context of environmental management, that parties often worked together to create private governance of resource commons in efficiency-maximizing ways that operated independently of governing law.5 Lisa Bernstein has also showed that some professions, such as diamond and cotton traders, have developed industry norms to govern their businesses despite the ready availability of state-created law. 6 These are accounts that question legal centralism; they suggest that actors create norms independently of, not in reaction to, law. More recently, commentators have begun to examine norm emergence in IP, investigating professional groups that generate valuable intellectual property but choose to regulate it by means of social norms rather than formal law. Eric von Hippel and Emmanuelle Fauchart’s work on French chefs made the first move in this direction.7 French chefs generate a kind of intellectual property— recipes—and it is critical to chefs’ professional success and advancement that they receive credit for their recipes. But because “recipes are not a form of innovation that is effectively covered by law-based intellectual property systems,”8 von Hippel and Fauchart found that French chefs advert instead to a system of simple, stable social norms to regulate attribution for and use of these recipes by other chefs. The result is a regulatory system that operates at minimal costs but still creates value and achieves compliance by assuring that all chefs that their recipes are protected from free-riding. Other work has investigated similar spheres “where IP isn’t”: 9 areas where intellectual property law cannot or does not reach, and where subcultures or professions thus create informal norms to take law’s place. Chris Sprigman and Kal Raustiala’s work on fashion 5 ELINOR OSTROM , GOVERNING THE COMMONS (1990). 6 Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry , 21 J. LEGAL STUD . 115 (1992); Lisa Bernstein, Private Commercial Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and Institutions , 99 MICH . L. REV . 1724 (2001). 7 Emmanuelle Fauchart & Eric von Hippel, Norms-based intellectual property systems: the case of French chefs , MIT Sloan Working Paper 4576-06 (Jan. 2006). 8 Id. at 2. 9 Kal Raustiala & Chris Sprigman, Where IP Isn’t , UCLA School of Law Public Law & Legal Theory Research Paper Series, Research Paper No. 07-05 (also available on SSRN). Talk Derby to Me 2 regulation found that leaky, informal norms better served that industry by tolerating a marginal quantum of efficient piracy. 10 Jacob Loshin has shown that magicians rely on norms to make sure their illusions are not taken without attribution or exposed to the public.11 And most recently, Chris Sprigman and Dotan Oliar’s work on stand-up comedians reveals a similar norm-based dynamic at play governing the creation, production, and protection of jokes in that subculture. 12 These are legal centralist accounts. They claim that IP norms arise because law is unavailable to regulate, or inadequate in regulating, the intangible goods created by these subcultures. This Article extends and critiques these accounts of norm emergence by analyzing a distinctive instance of informal law: women’s roller derby pseudonyms. Women’s roller derby is an increasingly popular sport that is equal parts athletic contest and rock- and-roll spectacle. One of derby’s most recognizable features is that its participants skate not under their real names, but using amusing pseudonyms that fit with derby’s campy punk aesthetic. Maintaining the uniqueness of these names is important for skaters, both to avoid confusion and because derby names (often referred to, including hereinafter, as “skate names”) are a constitutive feature of rollergirls’ identities within the derby community. As a result, derby girls have invented an elaborate system of name registration, monitoring, and enforcement, using a combination of formal norms, informal norms, and formal law. This subject matter provides a novel site for investigating IP norm emergence for a number of reasons. First, derby girls’ names are the result of nonmarket production—that is, they are part of a non- profit endeavor (derby girls are not professional, in that they don’t get paid to skate, and in fact usually have to pay in order to be part of a league). In contrast, the other studies of norm emergence involve professionals who are primarily concerned with professional status and wealth maximization. Second, derby girls have not only developed 10 Kal Raustiala & Chris Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design , 92 VA.