4. From Expertise to Expert Systems 1. A Brief Social History of Expertise
4.5. Recapitulation: Expertise as the Ultimate Subject of Intellectual Property
this situation is one in which everyone decides to take the same expert’s advice on which stock to purchase.)
(b) It is often assumed that information freely exchanged among a large network of peers breeds the sort of critical inquiry that is necessary for genuine epistemic progress: the larger and freer the network, the more critical the inquiry. Unfortunately, this assump- tion presumes, contrary to fact, that inquirers have an inexhaustible ability and inclination to attend to each other’s work. Yet, by the time the network of inquiry attains the dimensions of “Big Science,”
inquirers become more concerned with finding allies than opponents, and hence are likely to simply ignore work that cannot be immedi- ately used for their own purposes. Here knowledge lacks efficacy because more of it is available than can be assimilated.
Knowledge was undermined in (a) because too many people pos- sessed the same information, whereas in (b) it was because each person possessed too much information. In neither case did these skewed distributions actually convert a truth into a falsehood, but from a pragmatic standpoint, they might as well have. In other words, attention to the socially distributed character of knowledge may help explain the intuitions that have traditionally led philoso- phers to posit a conception of knowledge that “transcends” consti- tutively social character expertise.
4.5. Recapitulation: Expertise as the Ultimate Subject of
have to look at more closely. On the other hand, the “raw material”
out of which these products are made—the human expertise—cannot be so covered. The basic reason is that property rights extend only to things which, if not invented, are “divisible,” that is, character- ized by someone’s gain always being someone else’s loss (Croskery 1989). Traditionally, knowledge does not satisfy this criterion be- cause, as we saw in Chapter 1, of its traditional status as a good that is “ethereal,” “collective,” or in any case, “public.”
When thinking about the relationship between human expertise and expert systems, an interesting point of comparison is the dis- tinction between natural resources and the goods made from them.
Until the 19th century, it was common to regard nature as super- abundant and hence not subject to the laws of the marketplace.
As Adam Smith famously put it in The Wealth of Nations in 1776, nature had “use value” but not “exchange value.” However, once the commercial exploitation of natural resources exceeded the rate at which nature could restore itself, two legal trends emerged, one reflecting the newfound divisibility of nature and the other the prospect that human inventiveness may simulate, extend, and perhaps even replace nature. The former led to environmental pro- tection codes, the latter to intellectual property codes. From a legal standpoint, in recent years, human expertise has become the new
“nature.” Consider the problem of nature’s failure to replenish itself in the face of commercial exploitation. The analogous problem faced by human experts is that expert systems can be designed to user spec- ifications faster than the knowledge base of the relevant expertise undergoes fundamental change. In other words, once knowledge engineering has gained a foothold in a field formally dominated by human experts, computers are more likely render humans redundant than vice versa. Does this mean that human expertise should be pro- tected in the sense one might protect an endangered species, espe- cially in terms of restricting access to commercial interests?
For better or worse, the law has generally given a negative answer to this last question. Perhaps a more relevant model for understand- ing the law’s generally laissez-faire attitude toward knowledge engi- neering is provided by the idea of bioprospecting, raised in the previous chapter. Here the idea is that nature—including human biology—possesses properties whose extraction and distribution can advance human welfare in ways that are presumably unknown to their natural possessors, yet do not require disruption of the
possessors’ normal lives. Bioprospecting is usually discussed in the context of genes possessed by certain relatively isolated ethnic groups. But it could also be argued that in virtue of the relative iso- lation (or “autonomy”) of their training and practice, human experts possess certain properties that could enhance the human condition, were they made more widely available. As in bioprospecting, extract- ing those properties would require the services of an anthropologist or ethnographer. A synthetic process that increases the accessibility of these properties would then be patentable as an “invention” under intellectual property law. Just as a biotechnologist may patent a process that enables synthesized genetic material to prevent the occurrence of certain diseases in humans, so, too, a knowledge engi- neer may patent a computer program that simulates the expertise needed for reliable solutions to recurrent problems. That human experts regularly claim that their expertise is “tacit,” and hence uncodifiable, is simply regarded as a “folk myth” by the knowledge engineers who make it their business to divine the nature of that expertise and to claim its discovery as their own.
Knowledge engineering can be plausibly subsumed under intellec- tual property codes only if expertise can be extracted and distributed without in the process diminishing it or its natural possessors, the human experts. However, in this chapter, we have suggested that such a diminution will be difficult to avoid, since knowledge is a positional good whose value lies not in its intrinsic qualities but its ability to discriminate between people’s capacities for thought and action.
Here it is worth recalling that the paradigm case of a positional good is a university degree, in that its ability to secure employment for its possessors clearly declines as more people possess it, even though the content of the degree itself may not change. Hirsch’s (1977) original point was made in the context of arguing that the tendency to regard goods as divisible requires a deeper explanation than the sheer presence of material scarcity, since divisibility persists in high-growth, welfare-oriented capitalist societies. Rather, he saw the tendency as ultimately related to the human need for recognition, that is, to be someone who has something that others do not. (The social implications of this phenomenon are explored in Fuller 1994b.) From a sociological standpoint, forms of knowledge that are regarded as especially profound or powerful are rarely within easy reach of the many. For example, automated laboratory technology has done much to devalue the “keen powers of observation” that at
the start of this century had been thought to distinguish the scientific mind. Expert systems may be seen as following in this lineage, only now eroding the positional advantage of certain higher-order mental functions, such as diagnosis, causal modeling, and hypothesis testing.
Not surprisingly, Turkle (1984) and others have found that people are shifting their sense of human uniqueness to “creative” qualities that are currently just beyond the reach of computer simulation.
Legal theorists and legislators of intellectual property from the 18th century onward have increasingly acknowledged the positional character of knowledge in their attempts to regulate its production through schemes designed to distribute equitably the costs and ben- efits of knowledge products across society. The basic problem is that any new knowledge product has the potential for empowering many more people than it initially does, yet the nature of the power imparts changes as these people come to use the knowledge in promoting their own diverse ends. In Anglo-American law, the historical ten- dency has been toward restricting the power that the original knowl- edge producer can exert in society, without, in the process, completely inhibiting the production of new knowledge. Thus, at first patents covered the inventiveness of artisans, which enabled them to mo- nopolize and mystify their expertise, but once patents were limited to inventions, the locus of legal investigation shifted from the character of the inventor to the efficacy of the invention itself, and then the very scope and duration of the legal protection given to the invention began to shrink. In this way, inventors became morally tolerable agents whose activities no longer impeded the interests of other agents.
However, this delicate balance may well be upset in the near future.
As all business and industry are increasingly computerized and the manufacture of computers and computer-based technologies is increasingly concentrated in a few transnational corporations, states are being pressured to extend the legal protection granted to intel- lectual property already in corporate possession. But as Drahos (1995) has observed, this is to take intellectual property too literally as landed property, the long-term result of which may be that we live in information feudalism. Under such a regime, corporations would have permanent and exclusive right to domains of knowledge, access to which would require payment of a toll or rent. For a conceptual appreciation of how this turn of events may take place, we need to see it in terms of one of three major ways of completing the account
of the social history of information technology told in this chapter.
The chart in Figure 3.3 will provide an aid in what follows.
Intellectual property law is not normally seen as the extension of property law to the intellectual realm. This is because the potential effects of knowledge products such as expert systems are less clearly bounded in space and time than, say, a tract of farmland. An uncon- ditional right of property is typically granted only when the state is confident that the right will not unjustly interfere with the livelihoods of others. In contrast, the “property right” embodied in a patent is granted more in the spirit of retroactive compensation for labor that the state did not originally commission but from which its citizens may now benefit. Since the inventor took time from other activities to produce the invention, it is only fair that she enjoy the fruits of her own labor, specifically as a temporary advantage over potential competitors. Intellectual property law has struggled hard to maintain this middle ground against the contrary pulls of libertarianandtotal- itarianlegal sensibilities. This distinction is elaborated in Figure 3.3.
A libertarian approach to intellectual property would essentially do away with legal protection for knowledge products and throw the whole process open to the marketplace. On this view, the state does not need to provide any incentives to invent, as the prospect of profits is sufficient to motivate people to try to satisfy consumer needs as efficiently as possible. At the same time, however, there are no guar- antees that an inventor will reap all the profits of a successful inven- tion, as competitors quickly step in to reverse-engineer the invention in the hope of providing a still more efficient product. This is roughly
ECONOMIC MODEL OF LEGAL JUSTIFI- LOGIC VALUE PRIVILEGE CATION STANDARD Monopoly Rent on Permanent Effort involved
(Totalitarian) property risk
AGENT Exchange Wage for Temporary Required
labor original effort
TOOL Competition Profit from None Effort was
(Libertarian) sales voluntary
Figure 3.3.
Alternative legal–economic models of IT’s social relations
the situation that prevails in the efforts of knowledge engineers to design expert systems that replace human experts, especially in socially weak professions. Under such a regime, it would be difficult to stabilize bodies of knowledge that are valid for a wide range of domains and activities, as inventors would always be driven to cus- tomize their products to user needs, regarding the information embodied in their inventions as mere means.
A totalitarian approach to intellectual property represents the view of the transnational corporations discussed above. It gains initial plausibility from the idea that the inventor—or more realistically, the corporation that houses the inventor—bore all the risk in developing the invention, and so now deserves to reap what benefits it can in perpetuity. Yet, in effect, the corporation is also agreeing to assume more risk, as its unconditional right over the invention means that it must decide who will be able to use it, for what purposes, and at what costs. Of course, such a right discourages reverse engineering, if not makes it impossible. In the case of knowledge engineering, one consequence may be that all the expert systems designed to solve certain types of problems are written in the same private program- ming language, which would constitute a map of what has become, legally speaking, a literal “domain” of knowledge. At least, one would be able to draw once again—as one could in medieval times—
a clear distinction between the stable body of knowledge constituted by the secret program (a.k.a. “reality”) and the multiple user-friendly interfaces (a.k.a. “appearance”) that the customers for the corpora- tion’s expert systems will confront.
In summary, in the first age of information technology—that of the printed word—state-licensed expert communities helped restore some sense of authoritative knowledge to the relatively free and chaotic world of published opinion. However, in the relatively free market that dominates the second age of information technology—
that of computers—knowledge engineers have forced human experts to compete with expert systems to satisfy consumer needs. In several fields, this has reduced the social role of expertise from standard or agent to mere tool—and a relatively inefficient one at that, which has led to expert redundancies. But there is also a reverse tendency, as knowledge engineering becomes subsumed by larger trends in transnational capitalism. In that case, entire domains of knowledge may be effectively owned by companies whose intellectual property rights are so strong that they are the sole providers of the systems
capable of satisfying consumer needs in those domains. Should we reach such a state of information feudalism, we would have come full circle to the idea of information technology as a standard of human performance, except that it would be a standard that would remain a mystery to all but the most elite corporate computer pro- grammers. Since that would surely put us back in the Dark Ages, it is perhaps time to revisit the idea that human expertise is a scarce natural resource.