Mind your metaphors: how to conceptualise your digital phenomena

"Metaphors, law and digital phenomena: the Swedish pirate bay court case" is the title of a fascinating article by Stefan Larsson which has been published in the most recent of Oxford University Press's International Journal of Law and Information Technology (Int J Law Info Tech 2013 21: 354-379). According to the abstract

"This article uses conceptual metaphor theory to develop the concept of ‘skeumorphs’ (re-use of old concepts for new phenomena) in order to analyse the Swedish The Pirate Bay court case [on which see, eg, earlier 1709 Blogposts here, here, here, here and here]. In line with conceptual metaphor theory, which states that abstract thinking is largely metaphorical, the article argues that this is true also for digital phenomena that, thus, are largely understood through metaphors and skeumorphs. Also, when attempting to understand and conceptualize new digital phenomena such as The Pirate Bay (TPB), law in a digital society is inevitably affected. Hence, new phenomena can be fought over in a ‘battle of metaphors’, in the TPB court case, for example, evidenced by the arguments of seeing TPB as ‘a platform’, ‘bulletin board’, or an ‘impure search engine’. This, here argued, was of key relevance for the outcome of the case".

This blogger has been fascinated by the use, and indeed the re-use, of metaphors ever since he heard Bill Patry's 2007 Stephen Stewart Lecture on the subject. But metaphor in IP is not the sole province of copyright: let's not forget the patent troll, or the concepts of dilution and free-riding in trade mark law.