Perm do both solves – strengthening copyright through the aff is not mutually exclusive with allowing freedom and play in the system.

What are the consequences of understanding creative processes in the way that I have just described? Although the model elaborated in Part III is (ironically) quite abstract, this approach to theorizing the creative process has some very direct implications for copyright policy and doctrine. Decentering creativity disrupts the tight linkage between copyright and creativity that has come to dominate public debate about copyright issues, and that pervades legislative and policy processes. This, in turn, enables an account of the oft-invoked "copyright balance" that emphasizes the process of working through culture and the importance of play within cultural landscapes. This twofold reframing dictates a very different approach to questions of optimal copyright scope. At the same time, it underscores the connections between copyright, cultural progress, and social justice.

Lobbyists for the copyright industries are in the habit of asserting that copyright is the single most critical prerequisite for a vibrant artistic and intellectual culture. Some of this is theater driven by political expediency. No one wants to be against creativity, and if copyright equals creativity then no one wants to be against copyright. Yet beneath the rhetoric, both copyright lawyers and copyright scholars tend to assume that copyright law is centrally important in stimulating a high level of creativity. Since copyright theory and jurisprudence persistently devalue the role of context in shaping culture, that assumption is unsurprising. The tight linkage between copyright and creativity, however, both fuels romantic author narratives and justifies draWing firm distinctions between authors, on the one hand, and consumers, imitators, and improvers on the other. Those distinctions dominate the current landscape of copyright law; they undergird broad rights to control copies, public renderings, and derivations of copyrighted works and expansive readings of the rules that create liability for technology providers.

Decentering creativity challenges the widespread assumption about nature and direction of copyright's influence on creativity in two ways. First and most obviously, it tends to suggest a much more modest conception of the role that copyright plays in stimulating creative processes and practices. Copyright fulfills some important economic functions (of which more shortly), and therefore plays an important role in organizing cultural production, but it is hardly ever the direct cause of a representational shift in creative practice, nor does it appear to play a direct role in motivating much that is normal science. Scholars who ask how deplOying copyright might stimulate creativity (as opposed to production) are asking the wrong question. Neither creative inspiration nor the creative outputs that follow from it are so easily engineered.

Questions remain, however, about the extent to which the contextual factors that are more important in stimulating creativity are amenable to social engineering. Arguably, the dynamic that I have described would exist in any social and economic system that is sufficiently complex. And if creativity is not especially amenable to social engineering, perhaps both those whose primary concern is social engineering and those whose primary concern is strong copyright can simply take it as a given. At the very least, then, one might posit that strong copyright does no harm. Put differently, if copyright is not the most important factor in stimulating creativity, it still may be the most important factor within our control. If copyright serves other important functions, such as the organization of private cultural production and the distribution of artistic and intellectual goods, perhaps strong copyright is good policy.

Here the decentered model of creativity makes its second contribution: it provides a firmer foundation for arguments about the systemic harms that a regime of copyright can produce. Critics of copyright maximalism have long argued that overly rigid control of access to and manipulation of cultural goods stifles artistic and cultural innovation, and a growing body of anecdotal evidence suggests that copyright's "permission culture" does exert a substantial constraining influence on creative practice. 104 Similarly, research in the psychology of creativity suggests that attempts to impose a rigid structure on the creative process quickly become counterproductive, and that the success of the creative process hinges in part on the ability to avoid externally imposed distractions. 105 A model of creativity grounded in the methods of social and cultural theory supplies both a rigorous analytical underpinning for those arguments and observations and a discourse in which to frame them. Within this framework, a regime of copyright that aims to promote cultural progress must be assessed based on its effects on creative practice by situated users, and on the extent to which it renders elements of the cultural landscape more or less accessible. And within this framework, those who advocate more limited copyright can be "for" rather than "against" creativity.

What legal regime, though, does the decentered model of copyright recommend? It might be argued that copyright and play are definitionally incompatible. There is an inevitable tension between social theorists' emphasis on mobility, emergence, and decentering and the legal system's need for fixity, clarity, and predictability. Some theorists from both sides of the law-social science divide have argued that legal recognition of particular kinds of claims - to specific forms of cultural property, or to particular formulations of human rights - itself works a form of imperialism, in which the law's need for doctrinal and definitional certainty is inimical to the demands of emergent social processes. 106 To an important extent, though, this social science critique of law's possibility ignores its own most powerful disciplinary inSight: law is not separate from social systems. As Naomi Mezey has described, the relationship between "law" and "culture" is an interdependent one characterized by cycles of definition, slippage, and redefinition. 107 Within this general pattern, law and culture evolve together; the fixity that law imposes within culture is a matter of degree and may be a defensible means of pursuing other social goals that are themselves evolving.

In designing a good system of copyright, then, we also must consider the other social goals that a system of copyright serves. Here economic theorists' emphasis on the production and distribution of cultural goods becomes important and can be restated more accurately: copyright is a means of creating economic fixity, and thus predictability, in the organization of cultural production. Control of copying, manipulation, and derivation enables the organization of entire sectors of economic activity in ways that produce a variety of concrete benefits, ranging from jobs and exports to an independent expressive sector to cultural "solidarity goods."108 Those are desirable goods; a society characterized by complete lack of economic certainty would be unstable, state control of cultural production would be undesirable, and a culture without shared expressive referents would be far less enjoyable. But these arguments too have been pushed to extremes in the copyright wars. Lobbyists for the copyright industries argue thin because copyright enables economic and cultural productivity, truncating copyright entitlements would be disastrous not only for their employers, but also for the country more generally. 109 Neither conclusion follows. In the real world, which is the world that creative communities have always inhabited, play and economic stability are not mutually exclusive. Shared expressive referents predate mass culture, and mass culture benefits from "an interdependence, even a circulation, between mass and popular culture. Popular culture makes use of the mass cultural resources that capitalism provides, and mass culture often co-opts and markets pop cultural practices." 110 And it is well recognized that economic fixity is not an unmitigated good.

It is therefore correct to say that copyright requires a balancing act, but the decentered model of creativity prompts us to redescribe what copyright balances. What is required is not a balance between present authors and the abstract "public," nor between valuable entitlement and ephemeral "deadweight loss," both formulations that encourage would-be balancers to equate relative concreteness with relative importance. Balance also does not refer merely to a process by which the claims of competing interest groups are aired en route to striking a deal. As Robert Burrell and Allison Coleman have trenchantly observed, references to balancing in copyright rhetoric contain a "semantic ambiguity" that results in slippage between notions of balance as process and notions of balance as correct result. III The notion of balance that I mean to invoke is substantive, and concerns the ways in which copyright's goal of creating economic fixity must accommodate its mission to foster cultural play.

Economic analysis can help us to understand some of the considerations relevant to the balance between economic fixity and cultural mobility, but both valuation and incommensurability problems prevent a comprehensive summing of the relevant costs and benefits. Modeling the benefits of artistic and intellectual flux is hard to do, and comparing those benefits with the more tangible, predictable gains from existing models of creative production is even harder. The emphasis on creative destruction now popular among copyright scholars invokes an historical theory, not an economic theorem. 112 As Karl Polanyi reminded us, moreover, creative destruction is nicest for those who do not have to undergo it.ll3 It is hardly surprising, then, that economic theorists cannot agree on how to model the optimal regime for promoting "improvements." No one is against creativity, but that apparent unanimity conceals rather large disagreements about how wholeheartedly and unreservedly we are for it. Modeling the opportunity costs of cultural fixity is equally difficult. Although we can say with some confidence that costs affect individual behavior, it is hard to know the cumulative effect of those costs on unknown future behavior. To the extent that economic modeling focuses on what is known (or assumed) about benefits and costs, moreover, it tends to crowd out the unknown and unpredictable, with the result that play remains a peripheral consideration when it should be central.

To grapple with these problems, a larger toolkit and a different attitude toward social engineering are required. Methodologically, the distinction I am trying to draw is one between a social theory of creativity that embraces an eclectic range of methods, including economic methods, and an economic model of creativity that has room only for its own methods, and that consequently distorts in predictable and predictably damaging ways. Substantively, the distinction is one between deploying known cost-benefit calculations in an attempt to generate predictable results and deliberately leaving room for unpredictable results to emerge. Creativity requires breathing room, and thrives on play in the system of culture. This suggests powerfully that copyright entitlements should be narrow and clearly incomplete, and that the scope for individual experimentation should be generous. It suggests, as well, that courts deciding infringement cases should not attempt to close gaps in the structure of copyright out of misplaced sympathy to current rightholders, but instead should exercise self-restraint.

Rights theories, meanwhile, can help us to articulate some of the aspirations that a good regime of copyright should promote, but furthering those aspirations requires moving beyond abstract ideals to concrete guarantees. Yochai Benkler powerfully advances the cause of a robust vision of liberal humanism that "is concerned first and foremost with the claims of human beings as human beings."1l4 Within that vision, it makes sense to talk about liberal ideals of autonomy and self-determination and to understand those ideals as bound up with a larger commitment to human flourishing. But a commitment to human flourishing also requires more direct engagement with the patterns of cultural progress and with the material and spatial realities of cultural processes. Autonomy is exercised, and self-determination pursued, by working through culture. Laws granting rights in artistic and intellectual expression should be deSigned with that process in mind. And, as Madhavi Sunder reminds us, culture is not an obstacle that must be transcended en route to self-determination, but a medium of self-determination in its own right. Il5 Copyright should promote participation in culture for the sake of culture as well as for the sake of political freedom.

By foregrounding the material and spatial realities of cultural processes, the decentered model of creativity simultaneously provides a firmer foundation for articulating the structural connections between copyright, cultural play, and social justice. Simply put, overly broad copyright exacerbates the structural effects of unequal access to cultural resources by placing additional obstacles in the path to cultural participation. Narrower copyright avoids this risk in some cases, and also works in the opposite direction. In removing obstacles to cultural participation, narrower copyright broadens and deepens a society's capacity for cultural progress. 116 Economically oriented intellectual property theorists are apt to characterize (properly calibrated) intellectual property protection as creating a virtuous circle of creation and investment. We can think of the decentered model of creativity as describing a virtuous circle of a different sort, in which greater allowance for play in access to and use of cultural resources promotes substantive equality and equality multiplies the possibilities for the progress of a vibrant collective culture.