Dilution by design

The NYT has a story on logo design makeovers by large companies, all going in the same warmer, fuzzier direction, often with highly similar flourishes (colors, typography, leaves/flowers/other organic touches). As with all the Obamafied logos around, maybe there's something in the water.

Double Denied, denied in part

Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, Inc., 2009 WL 1457177 (S.D.N.Y.)

Simon-Whelan, as putative class representative for art buyers, alleged that the Foundation and various defendants violated state and federal antitrust laws by conspiring to restrain and monopolize trade in the market for Warhol works. He also alleged individual unjust enrichment, Lanham Act, and fraud claims. The Lanham Act claim was based on the defendants’ denial of the authenticity of a work he owned, and the fraud claim was based on allegations that he was fraudulently induced to submit his artwork to the defendants’ authentication board and sign a convenant not to sue in connection with such submissions.

Defendants authenticate Warhols in two ways: first, the board rates individual works as by Warhol, not by Warhol, or “no opinion.” Second, a work may be informally authenticated by being included in the Warhol Catalogue Raisonné, an allegedly comprehensive listing of all authentic Warhol artwork in existence. According to Simon-Whelan, the board has “denied the authenticity of works that were previously owned by the Estate and stamped with serial numbers from the Estate, routinely denies the authenticity of a certain percentage of Warhols, particularly when several from the same series are submitted, has denied authentication as a means of retaliation, has approached owners of Warhols to "lure" them into submitting their works for authentication, and changes its authentication policies when the change suits the Board's financial interests.” The result is to create scarcity and inflate the value of the Warhols owned by the Foundation. Defendants’ submission agreement contains a covenant not to sue in return for authentication services.

Simon-Whelan’s website (you can download an image of the portrait there, which raises interesting issues of its own) recounts the saga of an untitled painting he calls Double Denied. It’s a Warhol self-portrait he bought for $195,000 in 1989, “one of several created in August 1965 at Warhol’s direction from an acetate personally created and chosen by Warhol.” Warhol, of course, was known for not doing his own work and for merging art and business. The idea of an authentic Warhol is something of a travesty, or at least a deep irony. But authenticity has value in the age of mechanical reproduction, and so we continue on: Simon-Whelan alleged that the painting had previously been authenticated by the Foundation and Warhol’s estate, including by individual defendants, and had passed through several major dealers, each of whom had vetted provenance. In 2001, Fremont, an individual defendant, urged Simon-Whelan to submit his painting to the board, and the board told an interested buyer that it wouldn’t stand by the prior authentications. So Simon-Whelan submitted the painting, at which point the board stamped the painting “Denied.” (The stamp was on the back of the painting, but allegedly bled through the canvas and was visible on the front.) After compiling more documentation, Simon-Whelan resubmitted it, but was denied again. He alleged that the denial was fraudulent, and that he was ultimately forced to sell his Warhols at a fraction of their value through third parties. Moreover, excluding his painting from the catalogue allegedly served as a representation that it was fraudulent, depressing its price.

The court held that Simon-Whelan’s allegations of fraud and wrongdoing in connection with the solicitation of his agreement with the board were sufficient to state a claim to invalidate the exculpatory anti-suit provisions of the agreement. Intentional wrongdoing can’t be insulated by such an agreement.

The court found that Simon-Whelan had plausibly alleged a conspiracy in restraint of trade, and that he had standing as a person who desired to compete in the market to sell Warhols. But he hadn’t alleged injury from the alleged price-inflationary aspects of the conspiracy, and allegations of injury from his purchase of Double Denied would be time-barred anyway. So only the antitrust monopolization and market restraint allegations survived, based on the two rejections of his painting.

Simon-Whelan also alleged false advertising in violation of the Lanham Act. Defendants argued that the submission agreement included an acknowledgement that a “Denied” stamp could be affixed to the painting; that the denial was a mere statement of opinion; and that there wasn’t “commercial advertising or promotion.” If the submission agreement was procured by fraud, it was unenforceable, so that didn’t help. And defendants’ letters denying authenticity might be found to be more than statements of opinion; it was possible they could reasonably be seen as stating or implying provable facts about the painting’s authenticity.

The problem was “commercial advertising or promotion.” Even though Simon-Whelan alleged that the catalogue is used for authentication, he didn’t allege that the defendants use the catalogue in connection with commercial offerings of their goods and services. He did, however, sufficiently allege fraud under Rule 9(b).

Star Trek and professional ethics

Warning: this post contains spoilers for the new Star Trek movie. This is an issue that came up in conversation; I seek feedback from fellow academics.

Here are the basics:

Spock is an instructor at Starfleet Academy. For the sake of argument, let’s call it a graduate institution, not an undergraduate institution. Uhura was, at one point, his top student in a particular class. Spock is still an instructor and Uhura is still a student; he observes an exercise in which she takes part but as far as it appears he does not have the power to grade the exercise. When crisis strikes, he has the authority to assign students to ships based on their qualifications. He initially assigns Uhura to the Farragut; when she protests, he explains that he has done this to avoid the appearance of favoritism. (Spock’s ship, the Enterprise, is more desirable.) She correctly points out that she’s the best at her job, and he reassigns her to the Enterprise. Later, on board, they kiss for what may or may not be the first time. After the crisis, they return briefly to the Academy, but quickly take up full-time posts on the Enterprise, with Uhura presumably now a graduate and Spock reassigned from his instructional duties.

Questions: Has Spock violated your institution’s rules on former student/teacher relationships? From an academic rather than a quasi-military perspective, should there be rules against this scenario? Does it matter whether their first romantic encounter comes before or after he assigns her to the Enterprise?

Disclaimers: I really like Spock and Uhura. I really like sf. I think the movie has a bunch of structural problems related to its disregard for institutions versus individuals, as elaborated here.

Reminder: consumer protection conference

The ABA’s Consumer Protection conference, to be held at Georgetown June 18-19, has an Early Bird registration deadline of May 28. Register by then and get a discount! The panels will cover key issues in consumer protection law.

The conference features appearances by numerous current and former FTC and state officials--including a greeting by the incoming head of the Consumer Protection bureau, David Vladeck--as well as prominent private practitioners. Sessions cover issues including internet issues (with special attention to the perhaps surprising scope of Section 230 of the CDA), privacy, the use of empirical evidence, and the different standards applied by different regulators, including the FTC, NAD, and courts applying the Lanham Act. In timely fashion, we’ll finish up with a panel on the proposed Financial Products Safety Commission, which has been much in the news.

Promoting copyright myths

The Washington Post just ran a story on troubles in the copyright registration system. It’s an important story, unfortunately confusing “registration” with “copyright” almost every single time the word “copyright” appears. (E.g., “Alita Ditkowsky does not want her daughter to perform without a copyright ….”) It is misleading, and potentially quite damaging, to tell authors that “a claim filed with the government offers legal protection -- it is the only way to stop someone else from copying a work.” Copyright in the US is automatic on fixation of a creative work—writing it down, recording it, sculpting it, or what have you. Registration, for US authors, provides some significant benefits, and is required before suing for infringement, but registration is not necessary for basic copyright protection. Those who have not yet registered need not worry about losing all their rights. This is not to deny the urgency of improvement in the registration process. But authors need not be paralyzed by paralysis in the Copyright Office.

Some commenters online are at least attempting to correct the article’s distortions, but as one might expect they’re competing with comments about how the right solution is to mail a copy of your work to yourself and rely on the postmark to prove ownership.

Another note on standing

Gerald P. Meyer, Standing Out: A Commonsense Approach to Standing for False Advertising Suits Under Lanham Act Section 43(a), 2009 U. Illinois L. Rev. 295.

The proposal:

To address the concerns and criticisms of the current approaches to standing under section 43(a), courts should adopt a three-prong bright-line standard under which a plaintiff must show: (1) the injury is of the type contemplated by Congress when it enacted section 43(a) (i.e., it is commercial or competitive in nature); (2) there is a causal link between the injuries and the alleged false advertising; and (3) no other party is better suited to bring the action.

The proposal has some appeal, but the last prong suffers from vagueness: how might it be pled or proved? What if a third market participant has a bigger market share than the plaintiffs: is the plaintiff then worse than the third party such that only the market leader (or second-place finisher, if the market leader is engaging in false advertising) should be allowed to sue? If not, why not? Shouldn’t the burden be on the defendant to show someone better suited to sue for competitive injury?

And the note adds some odd ideas about using standing to get rid of cases where someone other than the plaintiff thinks the injury doesn’t justify the cost of litigation, which is particularly unnecessary in the contest of Lanham Act litigation, where attorneys’ fees awards are relatively rare. The conclusion that Phoenix of Broward was rightly decided for the wrong reasons is particularly troubling, and indicates that the proposed test isn’t nearly as clear-cut as the author thinks it is.

Here’s the basic idea, also endorsed by the Phoenix of Broward court: the false advertising at issue was that McDonald’s falsely advertised that high-value prizes were available in its contests. In fact, due to fraud by employees of the agency employed by McDonald’s to administer the contest, high-value prizes weren’t available, though lower-value prizes were. The court thought that the small chance of winning the high-value prizes couldn’t have been a big factor in driving sales to McDonald’s, thus the causation was too attenuated.

The problem is that the court made this fact-intensive determination in deciding a motion to dismiss. Subfactors of the problem: First, plaintiffs should have been entitled to a presumption that the high-value prizes were important to consumer decisions, given the prominence of the high-value prizes in the advertising; McDonald’s thought the high-value prizes mattered. Second, plaintiffs should have been allowed to submit evidence that small chances of winning big prizes have a powerful impact, whether you want to call this the result of consumers’ taste for risk or of their weakness in correctly evaluating low-probability but high-payoff events. Though there certainly are cases where causation is sufficiently implausible that a case can be resolved on the pleadings, this wasn’t one of them.

Best practices for fair use video

Via Pat Aufderheide, an extension of a project I worked on:

New Video Breaks Down Fair Use Guidelines for Online Video Creators

American University’s Center for Social Media and AU's Program on Information Justice and Intellectual Property, in collaboration with Stanford Law School's Fair Use Project, are launching a new video explaining how online video creators can make remixes, mashups, and other common online video genres with the knowledge that they are staying within copyright law.

The video, titled Remix Culture: Fair Use Is Your Friend, explains the Code of Best Practices in Fair Use for Online Video, a first of its kind document—coordinated by AU professors Pat Aufderheide and Peter Jaszi—outlining what constitutes fair use in online video. The code was released July 2008.

“This video lets people know about the code, an essential creative tool, in the natural language of online video. The code protects this emerging zone from censorship and self-censorship,” said Aufderheide, director of the Center for Social Media and a professor in AU's School of Communication. “Creators, online video providers, and copyright holders will be able to know when copying is stealing and when it’s legal.”

Like the code, the video identifies six kinds of unlicensed uses of copyrighted material that may be considered fair, under certain limitations. They are:

• Commenting or critiquing of copyrighted material
• Use for illustration or example
• Incidental or accidental capture of copyrighted material
• Memorializing or rescuing of an experience or event
• Use to launch a discussion
• Recombining to make a new work, such as a mashup or a remix, whose elements depend on relationships between existing works

For instance, a blogger’s critique of mainstream news is commentary. The fat cat sitting on the couch watching television is an example of incidental capture of copyrighted material. Many variations on the popular online video “Dramatic Chipmunk” may be considered fair use because they recombine existing work to create new meaning.

“The fair use doctrine is every bit as relevant in the digital domain as it has been for almost two centuries in the print environment,” said Jaszi, founder of the Program for Information Justice and Intellectual Property and a professor of law in AU's Washington College of Law. “Here we see again the strong connection between the fair use principle in copyright and the guarantee of freedom of speech in the Constitution.”

Remix Culture: Fair Use Is Your Friend is a collaborative project of the Center for Social Media—a center of AU's School of Communication—and the Program on Information Justice and Intellectual Property—a program of AU's Washington College of Law—along with Stanford Law School's Fair Use Project. It was funded by Google.

Scandalousness and internet evidence

The TTABlog reports that the TTAB affirmed the refusal of PUSSY NATURAL ENERGY for various beverages, including energy drinks, on scandalousness grounds. As John Welch notes, the decision is well worth reading, in part for illustrating how the internet has changed PTO practice: when looking for information about whether the term “pussy” is scandalous to a substantial composite of the public—in this case, the TTAB concluded, women—the examiner was able to rely on a number of casual online discussions, which might have occurred offline but would never have been accessible to other people without casual public posting. These discussions turned out to be useful evidence for a purpose that the original participants never anticipated; they thought they were talking among themselves. This is just one of the ways in which the internet/search engines have created new kinds of serendipity.

Also of note is the extent to which the TTAB’s opinion engages, or declines to engage, with the applicant’s argument that “pussy” might mean a lot of things. The real answer to that is: Come on! But translating that answer into legal reasoning can be difficult; the TTAB proceeds by pointing out that reporting on the company talks about its “provocative” name, indicating that the press isn’t thinking about pussy willows, pus-filled wounds (really, applicant? That’s what you contend people might think of ? Did you even want to be taken seriously?), or even weak boys/men (the TTAB does not connect that meaning with the scandalous meaning; there’s a probably correct implicit assumption here that calling a guy a pussy isn’t as scandalous as using the term to refer to sex with a woman). But the TTAB ultimately finesses the question of whether PUSSY, as applied to an energy drink, is scandalous—every reason given why people would understand the scandalous meaning would apply to almost every good or service I could think of, though perhaps some pet-related businesses could get off the hook as double entendres.

MIT: Tuesday

Session 5: Mixtures of Openness and IP (Moderator: Katherine Strandburg)

Carliss Baldwin: Drawing the Boundaries of Intellectual Property

Competing social arrangements for innovation. Producer innovation: independent inventor, vertically integrated firms in an oligopoly, strategic alliances for knowledge creation, and modular clusters of forms have grown up along with user/collaborative innovation, all in competition and interaction/hybridity. Hybridity where one provides a platform: Valve Software provides an engine for Counterstrike, a user-created game. Modular cluster of firms around Linux: open source sitting within firms making different pieces of the system. Users might also be able to subcontract with firms to do their work for them. Hybrid social relations require IP modularity.

All innovations are new designs or changes in existing designs, therefore designs are the basis of much (but not all) IP. Design’s structure can be represented as links between design dependencies: if A changes, then D, F, Q, and Z need to be reviewed and might need to be changed. Modules of the design exist in a matrix that can be graphically represented. Different designs with the same functionality can exhibit different structures.

Knowledge is an overlay on the design structure, associated with individual elements or groups of elements. Knowledge “chunks” are given an IP status by their owners. Incoming IP you might be using, outgoing IP you might be generating. IP status is the combination of legal protection chosen by owner and owner’s access policies. The IP status of different chunks can be incompatible—shared can’t be secret. Proprietary licenses may be incompatible with GPL licenses. One example of a violation of IP modularity: licensed-in code was distributed throughout the codebase; license was about to expire, creating a classic holdup problem. Solution: redesign the codebase to modularize so that there were no dependencies between the new platform and the licensed code, changing the transaction situation dramatically and allowing the company to get a new license on favorable terms. And quickly they began to use open source instead of licensed code in that module.

Andrew J. Nelson: The Musician-Engineer: Lessons from Three Eras of Technology Development and IP Management in Stanford’s Music Department

Music department has a center for computer research in music and acoustics. Hundreds of compositions, performances, visiting composers, publications. Also has over 100 patents, 39 industrial affiliates, over $25 million in cumulative tech licensing income, which is unusual for a music department.

How does an academic music department come to engage in leading-edge technology development? How has their status as user-innovators affected their attitudes towards IP?

Frustrated by the limited timbre of the 100 usual orchestra instruments, one guy turned to the computer to compose. He wanted to write a new composition and created frequency modulation synthesis, which was cheap digital synthesis. The tech licensing office thought it was an interesting technology and licensed it to Yamaha in 1975. Other contributions to things like surround sound.

1970-1983: applied for only four patents in this period. Almost all the discourse to outsiders is focused on new compositions. New technologies not incremental advances.

1984: revenues start pouring in from the Yamaha deal, and that changes the attitudes. 1984-1997, 100 patent applications. Discourse centered on new tech and commercial possibilities; established an industrial affiliates program and formalized external relations; Office of Tech Licensing develops a TM program and identifies the music dep’t as the likely source of the next blockbuster tech to replace Cohen-Boyer rDNA—poured millions of dollars into developing new tech. Massive failure: department nearly loses its shirt.

1998-now: the educational entrepreneur. 3 patent applications; full embrace of open source; logo now has the Linux penguin! New approach to monetization: summer programs with experts to learn the open source tech in a hands-on way. Dozens/hundreds of industry reps at $10,000/head—nets more for the department than any IP management they’d done before.

Projects: looking at longitudal diffusion mechanisms and the role of public v. private orientations; multivocality in grant applications—how do you pitch the same project to the Defense Department and the National Endowment for the Arts at the same time? And measuring knowledge flows in network evolution and geographic reach.

Joachim Henkel: Optimizing the Trade-off between ‘Open’ and ‘Proprietary’

Profiting from innovation is commonly assumed to require exclusion mechanisms: patents, secrecy, complementary assets. Shortcomings: “free revealing” isn’t included in standard models; no account is taken of interaction effects. How to integrate free revealing into a study of profiting from innovation?

Different control mechanisms (rights, secrecy, revealing, complementary assets, learning-curve advantages, subsidies) and different appropriation mechanisms (use in own products/processes, exclude others, license others, benefit indirectly from others’ use, intrinsic benefit from innovation). Empirical setting: private branch exchanges in the communications industry. They don’t do much free revealing, but he studied contributions to open standards.

Interviews with industry experts: size of patent portfolio turned out to be important. There are interactions between patents and lead time advantage—if you’re ahead in research you can file for patents others won’t have, and inventing around your patents increases your lead times over other competitors—people who say that patents aren’t that important may be ignoring interactions between patents and lead time. New software to capture interactions. Respondents are asked to tell which company will profit more; companies are said to differ in things like patent portfolio, contributions to open standards, time to market, and sales/service quality.

Geertrui Van Overwalle: Patent-based Collaborative Licensing in Genetics

Empirical question: what is the impact of patents related to genetic diagnostic testing on access to diagnostic testing services? 22 top genetic diseases; looked for relevant patents and blocking effects. 250 relevant patents, 145 active, 267 independent claims.

Findings: 15% of claims were almost impossible to circumvent (blocking), 49% difficult to circumvent, 36% easy to circumvent. Expected that there would be lots of blocking patents on genes, but that was not the case (3%). Instead, there were lots of blocking patents on methods (roughtly 30%). What is the best way to deal with patent thickets? Hypothesis: Formal rules of contract.

All collaborative models in genetics are based on the preexistence of IP rights: open source uses IP as a platform; licensing clearinghouses; patent pools. IP can leverage access. Different models may be appropriate for different types of uses—universities; if owners are both producers and users (v. NPEs, I guess).

Sheryl Winston-Smith: IP Rights and Entrepreneurial Innovation in the Medical Device Industry: David, Goliath, and the Patent Office in Between?

Highly concentrated industry: top 4 companies have 80% of sales and of R&D, but there are a lot of start-ups where competition plays a big role—corporate venture capital is key. Big companies are worried about a competitor acquiring a startup and dominating the market, so they take equity stakes. It matters who the founder is. Entrepreneurial clinicians are able to produce more directly relevant innovations. Intersection between human and financial capital: how does that influence outcomes down the line?

How and when do IP rights align interests between outsiders and incumbents? How would IP be addressed if an outside user modified a device substantially? Open/user and entrepreneurial innovation in medical devices involves significant attention to allocation of IP rights. Sometimes it’s done by contract: paying the clinician; consulting relationships in which the company owns the work. Sometimes the entrepreneur licenses the right to innovate. Billion-dollar settlement for entrepreneur who sued Medtronic: interests are not always aligned. Entrepreneurs need capital to get ideas to market—as users they may have insights about unmet market needs. The corporate venture capitalists need innovations—they want breakthroughs every 3-4 years, and the cycle is shortening.

Entrepreneur can usually get a patent; this provides a basis for negotiation. What is the optimal timing of the approach of the entrepreneur to the corporate VC? Patent protection may be insufficient if they approach the VC too early; the corporation may be able to reverse engineer, build around, or find components elsewhere. Or the entrepreneur may hold on too long and never get to market, or the CVC might get the idea anyway and never reward the entrepreneur. She is researching optimal timing now.

Jeff Furman: Who Benefits from Openness in Science?

Standing on the shoulders of giants requires institutions to preserve knowledge: the loss of the Library at Alexandria set the world back. Have to separate selection effect (how does certain information end up within the institution) from treatment effect (the effect of the institution on how the knowledge is used). Knowledge is not randomly designed, for example university v. firm patents. University patents are cited more broadly than firm patents; we could conclude that universities are better at diffusing knowledge, or just that the sets of problems worked on are different—if firms were working on the same problems and still not cited as much, there’d be better evidence for the “better diffusion” hypothesis.

So, look for reasons that are exogenous to the knowledge itself that shift knowledge between types of institutions and see how the knowledge behaves. Biological resource centers: they collect and offer access to biological organisms for research/commercial development—cell lines, microorganisms, tissue cultures, animal models. Peer-to-peer networks function for research tools, but they can break down for personal or discriminatory reasons. A public deposit may work differently/better. 300+ BRCs around the world; the largest in the US is in Manassas, VA.

So, these cells existed in the P2P network, and then they got transferred to BRCs for exogenous resources. Look at how that affects citations to the foundational work related to the cells. Citations rise after deposit in BRCs, but were flat before the transfer. Moreover, the type of publications generated changes—non-US researchers generate more publications; researchers at non-elite US institutions generate more publications; citations in top journals to papers not in top journals rise, as do citations by elite academics to papers by non-elite academics.

Q&A:

Q: given the costs of preserving BRCs, there’s no long tail—so what do people want to invest in preserving?

Furman: People running these want to preserve everything forever, because they are interested in biological diversity. Costs are relatively low for any one material, but large overall. Federal funding in US has been declining, which has made them pare down the collections that don’t circulate much.

Session 6: Law and Policy

(Moderator: Andrew W. Torrance)

Michael Meurer: Dividing the Spoils: Fair Division

Game theorists investigate: what is the appropriate/expected division of benefits from joint action that produces aggregate benefits in excess of individual action?

Suppose A, B, and C could collaborate: A+B+C or A+B or A+C produce 6 units, whereas B+C or any of the three standing allone produce zero. How to allocate if they all cooperate? Egalitarian = 2 for everyone. Proportional: can’t do it because standalone product is 0. Shapley value: 4 to A, 1 to B and 1 to C. Nucleolus: 6 to A, because A is the key in any solution and neither B nor C is required.

The “contested garment” rule in Talmudic discourse: when A claims ½ of a garment and B claims the whole, how do we divide it up? ½ is uncontested and goes to B, and ½ is contested and is split. The nucleolus is plausible because people actually come to it, and to the Shapley value, without any knowledge of game theory: TVA asked how to allocate the benefits of its dam and came up with the Shapley value, a generalized version of the Aristotelean proportionality rule that is sensitive to concerns about team play. Shapley value and nucleolus tend to minimize group defection, where it’s possible to do so.

Do the axioms for the Shapley value or the nucleolus appeal? They may appeal under different conditions.

Wendy Seltzer: Intermediated User Innovation

Even when we’re engaged in P2P file transfer, we’re actually using intermediaries to accomplish the transfer, and those intermediaries have their own incentives: make money, avoid litigation, avoid costs of mediating disputes. Chillingeffects.org looks at the costs of those misaligned user/intermediary incentives. Example: McCain/Palin campaign dispute with YouTube over DMCA takedown; YT had to comply with the DMCA and wait 10-14 business days, at the height of an election campaign, before restoring a video for which notification had been submitted; YT professed to be unhappy with this and invited McCain to do something about the DMCA after the election. Recently, another spat over Miss California and Perez Hilton—Hilton sent a takedown to the National Organization for Marriage’s spot showing him discussing gay marriage. After NOM protested, YT restored the video without waiting the 10-14 days, on the grounds that this was a clear case of fair use.

Possibilities: new intermediaries like the OTW, with their interests more aligned with users.

Eric von Hippel: Policy Implications of a User-Centered, Open Innovation System

Strong brands, based on TM, are a major source of firm profits: strong brands get a premium, 30-40%. What do you do to create a brand? Repeated impressions/creating links. Communities have link-creating behaviors they engage in for reasons other than creating brand communities: entertaining/interesting—they create brand strength, costlessly. There are many community-owned backpacking logos. Among backpacking communities, 85% have their own logo, 20% have identity products (what I’d call promotional goods). Often, they buy backpacks, and sew their own logos over the commercial brand. Wasn’t an attempt to create a “brand,” but people were hanging out together and creating an association between a logo/brand and an activity.

[I don’t think this behavior is properly defined as costless. The things that people do to signal participation in a community may have a spillover effect on backpacking “brands,” or you might say there’s no marginal cost to creating the brand, but then you’d also have to say there’s no marginal cost to most forms of creating a standard commercial TM (though we might categorize certain forms of advertising as pure brand-building).]

These backpacks are all made in about 5 factories in China and Vietnam, with variations specified by each brand owner.

Survey: which would you prefer to buy, a commercial backpack with logo, or a commercial backpack with community logo? 34% of community members preferred the latter, and it had a brand premium for them over the market price. If it could be sold 1/3 cheaper, 2/3rds of people would buy it instead—which it could afford to do because brand creation was costless.

John Wilbanks: Science Commons

Extending CC approach beyond the CC license: standard contracts tilting towards sharing in human- and machine-readable form. Work with people who already want to share stuff and connect them, rather than (directly) trying to change people’s minds. CC0—a waiver of rights in a database collection. Machine-readability allows people to integrate databases and licensing in articles, so you can click through and find the provenance of data.

Next question: can a commons automate pharmaceutical workflow outside a pharmaco? It can help coordinate legal rights and desired behaviors. About 350 vendors are registered, from people involved in publishing to people who ship the raw materials. The financing crisis has actually been helpful in getting people on board, because there seem to be efficiencies from coordination.

Approached by Nike to share information related to sustainability technology. A virtual clearinghouse. Nike has a patent on water-based adhesives and they gave it away; then another manufacturer took it and advertised that it was the first to convert all its factories to water-based adhesive, without giving Nike credit. Nike didn’t like that.

Designing a one-click public license: not viral. Allows anyone to license, requires attribution, and if your revenues are greater than X you pay a yearly fee of Y. Informal working number, $30 million/$50,000. Another, private license doesn’t allow people to take the license if they’re competing with the patent owner. Science Commons is also taking the opportunity to reconstruct a research exemption as part of both licenses. Communities can execute/sign licenses until they hit the revenue cap.

Jeroen de Jong: Statistical Indicators to Inform Policies for User Innovation

User innovation is everywhere, except in innovation policy or statistics: EU innovation policy from the EC doesn’t acknowledge user innovation; OECD doesn’t provide guidelines for collecting user innovation.

Policy makers want to answer these Qs: (1) Frequency: is it huge? (2) Social welfare implications/spillovers. (3) Are there existing (market) failures? (4) What do you want me to do?

Frequency: there are many user innovators out there. Social welfare implications are positive: users tend to develop different products with new functionality, and in emerging industries; user innovation is marked by knowledge spillovers, free revealing, and innovations are often transferred to producers without compensation.

Market failures: no work yet systematically documents market failures in user innovation. Educated guesses: capabilities—user innovators tend to have technical capabilities, so if they don’t, they won’t be able to innovate. Network failures (communication). Indivisibility (modularity). But more systematic and empirical work is needed on what goes wrong.

Demark has a program for user-driven innovation. Grants for Danish companies—hiring ethnographers to document user needs and support them. Dutch innovation performance contracts: subsidize collaborative innovation at 50%. Innovation by a group of 15-35 small firms, under the supervision of a coordinating organization such as an industrial association. They contract with each other. In practice, most contracts focus on user process innovation—e.g., lightweight design of boats to reduce fuel consumption. However, external sharing/publication is not mandatory.

Statistical indicators are very important. Statistics is a main reason the linear model of innovation still exists today, despite criticism: policymakers have no other data. Without changing the indicators of innovation that policy entities measure, we can’t expect policy change. However, OECD is changing.

My question for Eric: What is the problem you want to address with the branding idea?

Von Hippel: Overcharging via brand premium.

Major UCL ruling in California

In re Tobacco Cases II just held that the reforms of California's UCL require only named plaintiffs, not all class plaintiffs, to show that they had lost money or property as a result of a UCL violation. There is an actual reliance requirement, but (at least in the case of a long-term ad campaign) it should not be interpreted so stringently as to require a showing of individualized reliance on specific misrepresentations, and there's a presumption of reliance once a material falsehood has been shown. Highlights from the UCL Practitioner blog.

MIT, afternoon session

Session 3: Studies of the Effectiveness of IP and Open Approaches to Spurring Innovation (Moderator: Katherine Strandburg)

Pam Samuelson: Empirical Evidence of the Importance of Open Source to Software Entrepreneurs

Survey of high tech entrepreneurs, predominantly software, computer-related hardwar, biotech, and medical device firms. Mailed to 15,000 firms drawn from Dun & Bradstreet and Venture Expert, 1333 responses received. Setting aside defunct firms/returns, response rate 12% for software & IT, 25% for biotech and medical devices. Also got external data about nonrespondents and didn’t find statistically significant differences in firm characteristics, except more companies from the West than the East responded (Berkeley effect). Paper to be published in the Berkeley Tech L.J. Spinoff article: look at software respondents, 708 firms in the sample. One quarter venture-backed, ¾ Dun & Bradstreet. 69% answered by CEOs, 12% by CTOs. 85% were brand new startups, not joint ventures or spinoffs; varied funding sources.

Goals: D&B firms most wanted to remain private, Venture Expert (VX) firms wanted to be acquired/have IPO. Average number of employees: 58. Roughly half engineers.

Do they own/have pending application for patents? Software firms: 35.5% yes. VX firms: 68% yes; D&B firms: 24% yes. Non-software firms: 82% yes. Varies by sector: 90% of internet software companies had patents v. only 21% of VX internet content companies.

Why patent or not? They cited protection from copying; enhancing reputation and increasing likelihood of financing/IPO were significant. Nonpatenting firms cited costs as the most significant factor (27%); perceived nonpatentability also mattered. First mover advantage was more important than patents; for nonsoftware companies, first mover advantage was not as substantially different from patents. Patents were last on the list of things that they thought offered a competitive advantage.

More than 70% of software firms use open source; only 34% of non-software firms do. Some variation by subsector. More than 1/3 use open source as part of business model, VX = 30% and D&B = 35%. Least used in internet content (20%), most in internet software (42%). Software entrepreneurs are less likely to seek patents than some expect; they don’t do so for competitive advantage but for reputation and likelihood of getting financing.

Allesandro Nuovalari: Innovation Without Patents (XVIII-XIX Centuries)

Historical story in textbook: “there was no economic growth before the industrial revolution because there were no patents.” This is not so. A large amount of invention occurred outside patent protection. Patents were not necessary for the Industrial Revolution. Patenting rates across industries in 1851 in Britain and the US were very low, often under 10% depending the industry. The “great” inventors (entries in biographical dictionaries)—1650-1850 in Britain, 40% of the greats never took a patent, and yet are credited with at least one important inventors. A different sample of the greats: 32% never took a patent. And this is biased, because the inventors in such accounts are the romantic inventors who tended to work alone, rather than in groups.

Collective invention: the case of the Cornish engine. When the patent expired, surge in growth of improvements. Collective invention was a critical source of innovation during this period. The Cleveland (UK) iron industry 1850-1875, the English clock and instrument makers, and the Cornish steam engine makers after 1800. Contrary to accounts, these are not uncommon cases and they were not vulnerable and ephemeral—these were foundational technologies for industry. Many other examples of collective innovation: Lyon silk industry, Berkshire paper-making; Western steam-boat; Viennese chairs; Japanese cotton spinning; Norwegian brewing; wind power in Zankstreek.

So what were the available alternative to patents? Secrecy/lead time advantages; prizes and awards; procurement by government/military; patronage.

Andrew W. Torrance: Patents and Regress in the Useful Arts

More on the simulation he discussed earlier: allows open source options, licensing, and many other variations. Sometimes you infringe other people’s patents, or are accused of it. Potential strategies: play it safe (avoid infringement); fast and loose; some people patent a lot and sue a lot, others pursue mixed strategies. 30-minute games. Players appeared to enjoy the game—they loved to win (lots of fist-pumping and insults thrown at other players). They tend to seek patent protection where available. Hypothesis: rational strategy of sowing (incurring costs) then reaping. Players like to license, and they like to sue—they get attached to their patents. Modest use of open source.

Further tests: how different parameters affect the results—ease of patentability, ease of enforceability, patent term, prior art, information costs, number of players, game duration, damages/injunctions. If people come back and play day after day, do the results change? What if representatives of different populations play each other? Is there an optimal set of parameters that makes the patent system behave better than the alternatives? What are the parameters for optimal hybrid regime performance?

Fiona Murray: Role of IP Rights and their Enforcement in Knowledge Accumulation

Knowledge production is step-by-step: outputs of one process are often inputs of the next. Knowledge is often multifaceted: key outputs include information, materials, know-how, methods. Knowledge is non-rival and can be input into many follow-on experiments. Mere production of scientific knowledge doesn’t guarantee its use by follow-on scientists. Institutional arrangements matter: disclosure and access can be facilitated or hindered by law, norm-based, firm-oriented or community-oriented solutions.

Supply side: knowledge inputs are increasingly costly. Demand side: scientific community is increasingly internationalized and growing.

Response: formal institutions for material and information access. And formal institutions for licensing and other IP uses.

Empirical questions: how do you know that IP is producing the effects we see? How can we measure the follow-on innovation we care about? How can we compare the alternatives?

Looked to whether events in science produced new authors and new projects: open access to a particular variety of genetically altered mouse did in fact produce these additional materials. When we compare IP to open systems, we see more diversity in scientific research in the open system. But scientific communities have traditionally been hierarchical and status-driven; when we talk about informal norm-based systems, we have to consider whether that will really result in democracy, or only in other kinds of restrictions on participation?

Jim Bessen: Patents as Property

Patents as compared to mineral rights, land rights, etc. It’s said that patents solve the free rider problem and incentivize innovation, and that’s true of ideal patents, but actual property rights might or might not work. We only seem to talk about ideal patents; if we were discussing tradeable pollution rights, we’d be paying more attention to institutional design. We need more discussion of reality/institutional features in patent.

Property rights work well if they’re well-defined and enforceable, but economists rarely define what that means. Without good definitions of the rights, you can get multiple claimants to the same assets. Poor institutions may allow multiple claimants for an innovation—software patents, where RIM and NTP both claim to own. There may also be a technological mismatch, where the economically useful asset has multiple claimants—the anticommons, where multiple owners have formally defined rights but the rights don’t work in practice.

If we have a single owner with relatively certain rights, that’s the classic ideal case. Single owner with relatively uncertain rights = overuse of patents. Multiple claimants with relatively certain rights = anticommons. Mixed—one claimant with certain rights plus many others with low-probability claims, like patent trolls = ambiguous. This last is a situation of notice failure/underuse of patents—a situation where people ignore rights and then you get disputes and litigation.

Practical questions: eBay: do stronger penalties improve welfare? Are “thickets” a problem if rights are ignored, for example in biomedical research and software? Ignoring patents is a type of behavior that comes out of a sick institution.

Rents from patents compared to the risk of litigation costs: for chemical and pharma firms, the benefits far outweigh the costs. For other firms, in the mid-90s, the relatively even balance disappeared and costs tripled over benefits. This is a notice failure situation. Property rights are being ignored; boundaries are poorly defined.

Q&A: Torrance answered a bunch of questions about his simulation, including how you know how much the thing you might choose to patent is worth; this can apparently be tweaked and can change over time as different things enter the market, but is not yet probabalistic as far as I can tell.

Q: Why don’t we see more cocreation across institutions in the sciences?

Murray: At MIT, 50% of publications are authored with people outside the institution. But there are huge variations in number of coauthors, which may have to do with the structure of credit. We don’t know enough about some of these structures. What gets people to meet up in small conferences or other places where ideas can be shared and realized can be dependent on things like whether they can arrange to travel; Linus Pauling couldn’t because he was under suspicion for being a communist, so he didn’t really get his best chance to figure out the structure of DNA.

Session 4: Norms-Based Systems for Innovation and Sharing (Moderator: Karim Lakhani)

Katherine Strandburg: User Innovator Community Norms and Research Tool and Materials Sharing

Inspired by empirical work by W. Cohen et al. showing that research tool patents are routinely ignored by pretty much everyone, academics and commercial researchers. Problems are more evident with sharing of research materials. Researchers as a competitive user innovator community: they invent tools for their own use, benefit from using tools invented by others, and compete for research results so also benefit from exclusive use of their own tools. Simplified rational choice model is a prisoner’s dilemma for a user community composed of identical members (though of course they’re not actually identical). Cost of sharing innovation turns out to be very important, as well as benefits from exclusivity and benefits from sharing. Under varying circumstances you can get: free revealing no matter what; sharing if there’s a norm of sharing; or no sharing because exclusivity is too attractive. Policy lesson: if sharing is socially beneficial, tweak the parameters.

Application to research tools and materials: three key sets of variables that influence parameter values or enforceability of a sharing norm. (1) Garden variety (only useful for research) v. dual purpose (has a use in research and a use outside research, for example a diagnostic test)—affects the benefits of exclusivity. (2) DIY (a tool you can make in the lab) v. material (something that requires material basis or tacit knowledge)—affects the cost of sharing. (3) Academic scientist v. industry scientist—researchers’ preferences affect the benefits of exclusivity.

To promote materials sharing, we’d want to minimize cost to the inventor. Centralize distribution: centralize repositories, license a commercial provider. Increase returns to sharing by giving co-authorship/acknowledgement. Increase penalties for noncompliance with norms: journals or funding agencies can make sharing a requirement for publication or for getting materials. Reputational penalties might also be used. Norm entrepreneurship: to stabilize sharing norms, for example 2007 university white paper on tech transfer encouraging academics to resist onerous licenses and reserve sharing rights within the academic community.

Chris Sprigman: New Research on IP Norms

IP’s negative space. Began research on the fashion industry; recent work on stand-up comedians. Fashion works in a low-IP equilibrium—there’s a mix of sharing and property; TM serves important functions. Stand-up comedy produces virtually no litigation, though joke-stealing is known. Comedians use anti-appropriation norms instead, monitoring by the community.

Coming at the question from the other side: doing experiments on how creators value their IP. Questions: are created goods subject to an endowment effect? Is there some other effect that causes owners of created goods to depart from rational valuation? What are the implications for a rational choice model?

Subjects are asked to write a haiku. Most UVa students can do this. Induced value: $100 at stake. Ten people per section = expected value $10. Ask the students what they’d accept to transfer the chance of winning the prize to a bidder. And ask other students what they’d pay to get the chance of winning the prize. Different treatments: First, authors write poems for a contest, chosen on merit. Second, authors write poems which are lottery tickets: thus they can investigate role of perceptions of quality. Owners are given poems written by authors, and they are subject to the contest/lottery conditions too. Do authors have a bigger gap between willingness to accept and willingness to pay than owners? This is a question about intermediaries.

Maybe no one thinks they’re a below-average author, or maybe they’re worried about their quality and thus underestimate their chances. The experimenters debrief them afterwards to make sure they understood the conditions. Current finding: very large gap between willingness to accept and willingness to pay in the author conditions.

Andrew King: Kitchen Confidential? Information Transfer among High-end Restaurants

His research focuses on decentralized and voluntary institutions: codes of conduct, best practices, sharing organizations—as opposed to involuntary and/or centralized institutions, including culture (involuntary decentralized), government regulation (involuntary centralized), and firms (voluntary centralized). Main finding: self-regulatory institutions arose in response to exchange problems. They arose in the hope that they’d work without a lot of transparency or teeth. But without transparency and sanctions, you get adverse selection/moral hazard; firms get worse by participating. But self-regulation comes into existence when there’s an industry problem, like Bhopal disaster.

Can we expand this to public goods? He and his co-investigators looked at fashion. There are not enough fashion companies to do large-scale confirmatory research, so he’s now working on restaurants, interviewing highly-ranked chefs in Milan and Boston. Main findings: more likely to transfer information to a nearby chef with a similar quality point—similar décor level, similar cuisine. That is, their closest competitors. That seems absurd. Chefs at a certain level say that chefs don’t copy. But they actually do copy. They just copy at a distance—only people from other places and other career points (students in competition).

Chefs also say they wouldn’t screw their neighbors because they never know when they might need five pounds of swordfish or a bus boy; they expect reciprocity beyond recipes. It’s a repeated game. (Chefs are like farmers and ranchers in Shasta County!)

Research is ongoing. Real problem is separating out monopoly competition from the effect of norms. You don’t want to look like the next guy because you need to maintain product distance, so you wouldn’t copy your neighbor’s recipe exactly even if s/he told you exactly how to make it. How do we separate that from institutional restraints on copying?

Stefan Bechtold : TV Show Formats: A Global Licensing Market Outside IP?

American Idol has an Iraq version, and is in 40 other countries. Big Brother is in the Philippines, and over 60 other countries. Who Wants to be a Millionaire? is in over 100 countries. Farmer Wants a Wife is in Switzerland and over 16 countries. 3-4 large players worldwide develop these formats. Many originate in Europe. Meta formats: I Survived a Japanese Game Show, on ABC.

Name can be protected by TM. But is there any other protection? Copyright is very messy: idea/expression dichotomy would usually deny format protection, though some countries have applied copyright. Limited caselaw concerns the secondary licensing market (where the format has aired in another country)—it’s usually about the primary licensing market, where a producer offers the format to a TV station that just takes the format without paying. Some countries might apply unfair competition law. Trade secret seems unlikely; no known business method patents. Research continues on this.

You’d expect widespread copying. And there is some of that. But there’s also a $16 billion/year licensing market. What are people licensing? He is talking to industry members. Is there an interaction between national IP laws and the national TV show format industry? Are there private substitutes? There is an international format registry with an alternative dispute resolution procedure; a format bible, with standardized elements so you can define your format precisely for later comparison; trade shows in Cannes and Las Vegas.

Hypotheses: (1) social norms in close-knit community, with about 100 firms; (2) uncertainty/licensing not to be sued; (3) licensing tacit knowledge; (4) theory of the firm.

Rebecca Tushnet: Transformative Works/Transformative Workers

Let me restate Eric’s introductory description of his research: lead users innovate where no market yet exists, then collaborative user communities improve and filter innovations. Then manufacturers enter, usually nonincumbent manufacturers coming out of the user communities. Eventually incumbents decide that the market is big and secure enough to enter.

This is actually one coherent way to tell the story of what we now call “user-generated content.” First there were mailing lists, usually run from universities by students or employees, and Usenet newsgroups; later individual websites and archives, sometimes sourced from mailing lists, hosted by individuals. Companies emerged to host personal sites in return for payment or for advertising—Geocities, which is about to shut down. Specific to media fandom, where people create works based on existing popular texts like Star Trek or Harry Potter, a few people started hosting archives for money, at least for a return sufficient to offset costs, by running ads—fanfiction.net is the biggest example in the media fan community. Google bought YouTube and other mainstream sites arrived—again, from the media fan space, FanLib, a Hollywood startup designed to monetize fan contributions on behalf of major media investors. Notably, it went out of business after about a year.

And this is part of the problem that content industries are facing: there really doesn’t seem to be as much concentrated money in user-generated content as there was in traditional media, even if there is as much or more value. Copyright industries have not figured out how to make the kinds of quality improvements von Hippel identifies as allowing manufacturers to profit from user-generated innovations.

Relatedly, there is a problem of digital sharecropping: because so much of the value generated here is affective, and doesn’t directly help the individual creators materially, the issue of exploitation of the workers producing the creative stuff is quite salient. Wendy Gordon most explicitly put this on the table: reciprocity in gift relations may, and quite possibly should, involve material support. Exploitation of creative labor for the benefit of other parties is especially of concern because media fans are predominantly women, whose work has often been expected to be unpaid, naturally. Traditionally, women’s work has not been thought to require incentives, which has contributed to the material inequalities women face.

Against this background: OTW, formed as a nonprofit, with a mission to “own the servers” and engage in public advocacy on issues of concern to media fans. We could use existing archive software to store, categorize and serve fanworks on those servers, but on philosophical and practical grounds decided to code our own. Philosophically: develop programming skills among mostly female fans; this is empowering and may provide possible material benefits outside the fan context. Practically: from long experience with fan archives, it is clear that well-documented code written with others is more sustainable than single-fan projects. If you code it yourself, you take shortcuts and just bang on it until it works, and then if you leave fandom the thing you made may just sit there until it breaks. A multicontributor project is one that new people can take over running without having that same tacit knowledge.

The OTW’s Archive of Our Own and another, unrelated media fan-friendly project, Dreamwidth (a journaling service), have become significant locations for women in open source. Statistics are hard to come by, but everyone agrees the numbers of women in open source are very small; 1.5% of contributors is a not uncommon statistic. DrupalChix say that Drupal has 10% women on the project, which is an order of magnitude improvement that gets them up to “awfully unrepresented.”

A quote from the Archive of Our Own, statistics from last year: “1134 revisions have been deployed to the Beta Archive to date, and we have had five major releases and innumerable small ones. 150 volunteers have worked on [Accessibility, Design &Technology]/Code/Test, many of whom we have trained ourselves in Ruby and other languages; we aim to teach and mentor all, women especially, who want to learn.” That number is now up to 250, 100% female, 21 contributing code, 80,000 lines of code. Women also make up the vast majority of OTW’s systems administrators.

Dreamwidth, a fork of the Livejournal code, has approximately 100 project contributors, 34 contributing code, 75% identified as female. 280,000 lines of code, though shedding lines as it moves away from the Livejournal base.

Why these projects? (1) Goals are of interest to women: the output is something they want to use. (2) Officially woman-friendly. (3) Offer lots of training and opportunities to contribute: you don’t have to be an expert already to help.

Complicated lessons: (1) Commercial and noncommercial domains can’t easily be separated. (2) Power disparities offline matter in what gets done in open source. (3) Semiotic democracy: making culture and making stuff turn out to be linked—people who think they can create one kind of thing are often willing to believe that they can create another kind of thing.

Q&A

Terry Fisher: Where do norms come from? Are they hardwired? Are they adaptive responses to constraints? Are they narrow economic self-interest? Are they culture-specific?

Sprigman: In standup, norms about copying change because the mode of comedy changes—standup becomes more personal and anticopying norms emerge. It’s hard to draw a causation arrow. Is this good? Depends on your priors.

Jonathan Barnett: distinguish between end user innovation communities and intermediate user/producer innovation communities. Much more potential for normative concerns with intermediate user/producers. The fashion industry used to behave like the description of the TV format industry: a design registry, design policing. Used a group boycott against defiant department stores, which got them in antitrust trouble and shut them down. “Haute couture” came from a guild of French high fashion houses with extremely elaborate requirements down to the number of seamstresses one must employ.

Bechtold: TV formats are very commercial; the social norms are generated because of an economic problem for the industry itself. Are there entry barriers caused by this? It started 4-5 years ago, so it’s emergent, and inherently international, which raises another set of issues.

Me: but we heard earlier that every output is someone else’s input: or apparently we don’t really believe that, if we’re making this distinction between end users and intermediate users. My people use the TV format's output as input for their creative works.

Strandburg: One way to look at “ignore patents” as a norm is to deal with dual-purpose tools. If someone uses a diagnostic test in research, no enforcement, but if someone uses it commercially, enforcement. That’s how you go from no-patent to ignore-patents as a rule. Is that a good idea? Recent lawsuit over breast cancer gene patents: the ignore-patent norm serves researchers well, but does it serve everybody well?

Sheryl Winston-Smith: Does the patent/IP system devolve into a winner-take-all system with lots of people unable to appropriate value? What kind of royalties do the creators of the TV format get, or do they alienate their rights for a one-time payment?

Bechtold: there may be no one creator. They have teams that meet to think of new formats.

Brett Frischmann: It seems so hard to define the boundaries of a TV format! Licensing looks so cartel-like; one wonders why it functions.

Andrew Nelson: Highlights the question of what we mean by norms—is norm-guided behavior distinct from rational behavior? In Jon Elster’s view, people who decide to go along with norms from fear of sanctions aren’t engaged in norm-driven behavior; if you consciously deliberate about whether to share, you might not see an immediate change in behavior but that might result in a collapse of a sharing norm.

King: On institutional entrepreneurs—if you look at environmental issues, the original sponsors often ended up doing something different than what they intended. Adopters of best practices used it as a signalling mechanism, not an improvement mechanism, because the adopters were already up to spec.

Jeroen de Jong: TV format—distinguish commercial from publicly funded broadcasters. Publicly funded may not copy as much. [There are multiple versions of Sesame Street, as I recall.]

Wendy Gordon: Chefs leave out crucial steps in cookbooks.

King: True. Causes a problem when chefs go on tour!

Gordon: Do the people in Sprigman’s experiment get to keep authorship credit?

Sprigman: Nothing transfers but the right to get the money.

Gordon: Does that test for what you want to test?

Sprigman: Q is whether their affective valuation of the poem leaks into their valuation of the revenue stream attributable to the poem. We thought about using digital photos instead of poems, but the IRB made that a nightmare.

Gordon: Formats—in the US, you could use trade dress, idea protection, copyright in compilation as means to protect them. Point is not to say that there’s an easy answer, but reminds us that categories that are not explicitly well protected by a particular type of IP are often more protected because expansionist judges have stretched various categories of IP to cover them.

Samuelson: Contest formats are pretty clearly not protected in the US, though.

Jeroen de Jong: the original format, closest to the original’s trade dress, is usually the most successful, so filing off the serial numbers might not be a good idea.

My questions for Sprigman: supply/demand in distribution: there are lots more aspiring screenwriters than movies/TV shows to employ them. Do you plan to test conditions in which success is really unlikely? Relatedly: role of nonmonetary incentives, which have been stripped from the experiment: what would happen if the winner was going to get published in the student newspaper? What would happen if you offered a bargain: we’ll pay you X to publish your poem, or you can have this lottery ticket for $10? My guess: typical X will be well below $10.

A: Yes, he’s planning to test variations. Tell people that U Va. wants photos for a calendar it’s going to put out. If the university says it’s paying v. not paying, what happens? Need to do this with people who aren’t tied by affection to the university, so may have to do it on the web. [I think that you’d also get interesting results with people tied by affection; in fact, that is where some really difficult issues of valuation/exploitation might pop up.]

User innovation at MIT

Workshop on Intellectual Property Law and Open & User Innovation, by the MIT Sloan School of Management and the Berkman Center for Internet and Society

Introduction

Eric von Hippel: User, Collaborative, and Open Innovation are Increasingly Common

Users aren’t always the innovators; they do a lot of innovation in scientific instruments (77%), less in others, varying a lot by field. Sticky information: when users have hard-to-transfer information. Users tend to develop novel functional capability, like the first sports nutrition bar, but manufacturers tend to innovate in quality of delivery (like an improved power supply for a device). Each user responds to local needs using local situation information. Consequence: user innovation is widely distributed. Water vest for US troops was developed by a Texas biker/paramedic who was used to getting thirsty and used to hydrating people through IV bags; he combined those kinds of local knowledge.

Lead users innovate where no market yet exists, then collaborative user communities improve and filter innovations. Then manufacturers enter, usually nonincumbent manufacturers coming out of the user communities. Eventually incumbents decide that the market is big and secure enough to enter. Users can be big: Boeing is a user innovator when it makes machine tools to make its products.

The traditional linear model of innovation does not even show users as process actors; innovation ends with marketing. This is wrong! IP tends to ignore the user innovation side.

Case studies show that many users innovate, especially enthusiasts. 20-50% of firms develop or modify process equipment they use, at considerable expense. The most generally useful 25% is transferred to producers. IP claims are rare; they usually give it out for free.

Consumers: survey among UK consumers—have you created any products from scratch/modified any products you use in daily life to make them work better for you? 10% of ordinary consumers have done the former and 17% the latter in the past three years. Manufacturers patent product engineering; users don’t patent innovations.

What new policies are required? Infrastructure for distributed innovation. There is pressure in the market towards openness.

Carliss Baldwin: What Do the Designs Want: When Does Open, User, Collaborative Innovation Dominate Producer Innovation?

Marx: the hand mill produces the feudal lord, the steam mill the industrial capitalist, quoted by Heilbroner in “Do Machines Make History?” (1967). PCs/internet give you, potentially, open and user-based collaborative innovation. Scientific controversy: do we need strong IP/contract rights for incentives for wealth-seeking innovators to produce new designs? Or do we need to encourage communities with norms of openness and sharing to allow users and others to collaborate on the development of new designs?

We seem to agree that innovation is good, and that certain ways of organizing processes of innovation are “better”—in terms of greater social welfare, or in terms of winning in head-to-head competition. So, what kinds of designs are well matched to the social structure of open and user collaborative innovation?

Design space: some designs demand a lot of communication between maker and customer and others don’t. User innovating for her own/her group’s sake—will innovate if the cost is less than the value of the design; no external communication costs. Producers will add innovation, as long as the cost of communication and design is less than the aggregate value to the producer.

User innovation requires: a modular/task-divisible architecture; low design cost for individual pieces. Doesn’t suffer deadweight loss of monopoly pricing; permits easy recombination of ideas; makes design ideas accessible, promoting education and the creation of new designs.

Karim Lakhani: Given Micro-Contributions, Who is the Inventor?

We know OS aggregates lots of contributions from around the world. This is coming out also in music (always been true, more salient now). Data from PostgreSQL, an industrial strength database that is used by Sony and Skype, among others. Tracked every feature for a year: 55,000 lines of code written by the community. About 800 people participate, all users. They all work with different firms (except for 2 at the same firm). Example: one person identifies a problem; eight people participate in discussing the problem and various solutions, and within a day a possible solution is identified and one person works on it. In a month, another person improves on it. 23 people participate in the creation of the solution: 3 people wrote code; 1 reviewer; 2 testers; 17 discussants. The final worker got credit in the credit file, but the underlying work was critical.

On average, about 9 people participate in creating each feature. 3 participate in problem definition, 5 in development until source code committed; the contributions are pretty efficient, the vast majority of them ending up relevant to the solution.

Katherine Strandburg: A Review of the Traditional Justifications for Intellectual Property

Assumption of one traditional model that IP is necessary to avert free riding and allow people to recoup investments. Assumptions: (1) There’s a need to recoup the costs by beating out competitors; the motivation to create for oneself is insufficient—the innovator is a seller. (2) There aren’t enough first-mover/reputational/other advantages to recoup investment without IP. (3) Creator will prefer not to create at all rather than create and share.

Next increasingly popular justification for patents: inventors won’t disclose inventions if competitors can immediately copy them. Patents = early disclosure. Assumptions: (1) Trade secrecy is possible. (2) Early disclosure is preferable to trade secrecy plus independent invention/reverse engineering. (3) Creator prefers secrecy over free revealing, given a choice.

Prospect theory—controversial even on traditional terms. Broad exclusive rights promote efficient exploitation of inventions, avoid duplication. Assumptions: (1) Single right holder can coordinate optimal development of a particular line of technology. (2) Transaction costs of licensing follow-on innovation will not be prohibitive. (3) Inventors are interchangeable/they are invention managers.

Incentive to disseminate/commercialize: mostly for patents and also some copyrighted works. (I think Strandburg underestimates the extent to which this is a persuasive idea in copyright, especially for people who accept that a weakness of the basic incentive argument is that creators so obviously love to create.) Idea: there’s a “lab to market” gap—give exclusive rights to ensure investment in commercialization, and permit a “market” for ideas Assumptions: (1) Relatively large investment is required to bridge the lab to market gap. (2) Dissemination is costly. (3) The first mover/reputation advantage is insufficient.

IP law generally tries to balance incentives to invent, disclose and disseminate versus increased prices, reduced follow-on creation. Doctrinal handles include patent’s term, nonobviousness, utility requirement, claim scope doctrines; copyright’s substantial similarity test, fair use, and the idea/expression dichotomy. Bottom line: even under traditional IP view, we have no idea how to tailor these things.

Andrew Torrance: Empirical Evidence Challenging the Orthodoxy

Growing skepticism of traditional claims for IP, especially for patents. Very limited empirical literature. Moser: in 19^th century, countries that offered patent protection did not have higher rates of innovation than countries without it. Lerner: 60 countries over 150 years, found that strengthening patent law didn’t seem to help innovation. Bessen and Meurer, Patent Failure: empirically, patent provides little incentive for innovation for most firms, and even drags on innovation, especially with software. May be different in biotech/pharma.

Online patent system simulation, with ability to change parameters like duration, difficulty of acquiring patent, and so on. Pure patent does slightly better than patent/open source, but pure commons does better than pure patent. Statistically significant at 5%. In total number of innovations, pure commons does a huge amount better, significant at .1%. And social utility is 10x higher in the pure commons than in the other two regimes.

Von Hippel: Not obvious that drugs/biotech are different. Drug trials, for example, are now being modularized.

Wendy Gordon: shocking to hear that mixed systems did worse in Torrance’s trial. Does this throw the legitimacy of all the hybrids we love into doubt?

Session 2: Theoretical Approaches to User and Collaborative Innovation

Yochai Benkler: "Intellectual Property" and Cooperative Human Systems Design

However ambiguous the total effect of IP on innovation, it’s unambiguous that strong IP benefits exclusion-based strategies at the expense of market- and non-market-based strategies that were not exclusion-based, whether based on knowhow or other things. So Benkler looked at the foundations of large-scale distributed production of innovation—low-cost distribution/modularization of work so as to allow small-scale contributions, coupled with diverse motivations and appropriation models. Allows for all sorts of mixed models, like IBM’s open source strategy, or YouTube, where market actors provide platforms for market- and non-market actors to distribute innovation.

Now he’s working on the microfoundations of cooperation. Once we get away from the rational self-interested actor as a sufficient model, what’s the evidence-based approach towards diverse people who are motivated to some extent by self-interest, to some extent by morals/social commitments, etc.? Trying to synthesize design levers, starting with the centrality of communication and how communication affects behavior. Moving to how we define our utility functions—with whom do we have empathy? How do we define norms (example of Wikipedia, which began with no technical constraints on defection but developed them over time)?

Experiments: he wants to build a web-based platform to run standard economics experiments on the web, identifying different effects of, for example, introducing empathy by adding a face or showing people within networks. Trying to use real-world interfaces to see how they affect user contributions. Example: voluntary music distribution sites that ask for donations; what configurations produce what level of payments? 150,000 transactions to date: levels of contribution are substantial—48% pay the typical rate of $8 an album, even though they could download for free. What happens if you randomize new subscribers to empahsize morality, show the artist’s face, etc.?

Terry Fisher: Why User Innovation Matters

Spectrum of types of innovation from centralized (pharma as we know it) to fully decentralized (like windsurfers in Maui, per von Hippel). Also have a variety of mechanisms for stimulating innovation and its dissemination: typical IP rights, grants, prizes, extralegal norms, systems of nonpecuniary rewards like prestige and satisfactions of sharing. It’s a mistake to begin by assuming a tight match between centralized/traditional IP and decentralized/no IP.

His project: Noneconomic/nonwelfarist reasons why user innovation matters. User innovation in the cultural context: fan fiction, real person slash, machinima—which tend to run up against copyright/IP hazards. Then there’s user innovation in the industrial context: hacked bicycles to run knife-sharpening machines in the developing world. These are connected in ways we haven’t often seen.

Why are these things good? The standard answer: because they’re welfare-enhancing. He’s all in favor of exploring that, but he has some non-welfarist reasons to care. (1) Cultural—semiotic democracy. Distributed innovation/creative engagement with mass-produced products leads to a more just and enriched culture and is good for the soul. Egalitarian and democratic. (2) Self-expression: commonly associated with opinion/artistic creativity. Same issues can be seen with user innovation in the industrial context, mixed with aesthetic rewards. We don’t just like things that work: we like elegant and graceful solutions to problems. (3) Communitarian: forming communities to produce and share innovation has functional advantages, but it also creates life-sustaining bonds between people. The communities around user innovation vary a lot. Woodworkers share things quite differently from climbers/windsurfers.

Methodology: Introspective aspect. He doesn’t know how to create mashups. But he does participate in industrial user innovation. Some of his happiest times are spent in the shop.

Brett Frischmann: Ongoing research projects on user innovation and commons. First project: infrastructure resources. Framework paper: research agenda for investigating commons where members of a defined community pool their contributions in a defined setting and distribute them in some way. Seek to extend Elinor Ostrom’s work on sustainable commons in the natural environment. Hoping to offer a set of questions that can be asked and answered in multiple contexts, so that different studies can be compared and contrasted.

Jonathan Barnett: Sharing in the Shadow of Property: Rational Cooperation in Innovation Markets

Game theory used to determine whether sharing can substitute for property under particular conditions. Players can cooperate, defect by claiming property (happened in semiconductors and in software, where claiming property was uncommon but then became standard), or defect by copying. Sharing regimes are viable but unstable. He looked at group size, capital intensity, asset values, and endowment heterogeneity: the last variable is the value of the innovation brought to the pool. The weakest and the strongest innovators threaten the stability of a sharing regime. Weakest: hard for them to meet contribution requirements. Strongest: they get less out of participation than others and have incentives to stop contributing/defect to property.

Sharing works best with low capital intensity requirements, small group size, lower asset values, and less endowment heterogeneity. Property is the opposite. He’s interested in mixed-form regimes, where the factors point in different directions. IP is everywhere, but show is sharing: every market that apparently supports innovation without IP uses some other instrumetn to regulate access at some point on the total bundle of products and services, and every market operates under a mixed regime where norm-intensive sharing arrangements are embedded within a property infrastructure.

Core/perimeter structure: a sharing regime at the core with a low-cost flow of information assets embedded in a property structure that regulates access, keeping out the low-endowment innovator and allowing special remuneration for the high-endowment innovator. Craft guilds; academic research (supported by reputational technology, the citation, but the university is an artificial creation supported by huge subsidies); open source as well, but access is regulated by reputation/talent and the market models are bundled with a proprietary element, like IBM’s hardware or packaging like Red Hat. Sharing works best when supported by property infrastructure.

Wendy J. Gordon: Gift Failure

Starting with Lewis Hyde’s notion of gift, married with Benkler’s work: voluntary, mutual cooperation not only produces user innovation but creates enough incentives—monetary, reputational, emotional—that people can stay alive and do it. How to frame the question we’re all interested in? Gordon is talking about gift, but gift may or may not work better than other ways of talking about these dynamics.

She was also inspired by an argument about art: she once argued that art is created by gratitude, the artist wanting to pay back what she gains when she sees the beauty of the sunset. Is this model a way to persuade, to capture the imagination?

Perfect gifts and gift failure: alternative to “perfect markets and market failure” as an analytic construct, shifting the burden of proof to people who want to start with the notion of perfect markets. A perfect gift is no more fanciful than a perfect market; before you institute IP rights, you should have to prove that there is a gift failure such that property rights are appropriate to solve the failure. A perfect gift would be: willingly given, with the needs of the recipient(s) in mind, reciprocated with good will (not anger, hierarchy, resentment) and reciprocated with money and emotional support as well as with new art. Hyde’s notion is one of cooperative community that within its own borders of artists (high culture rather than industry) gives to each other monetarily, emotionally, with community. Giving back and paying forward by creating new art. (Resentment can also be fruitful, as Harold Bloom reminds us.)

Range of incentives/inputs for cultural goods: control; money; fun/self-expression/satisfying the itch to affect the world, etc. The GPL explicitly says it’s not a gift—Gordon asked Eben Moglen why not. Answer: Moglen doesn’t want resentment; people should not feel that they are on the lower end of a hierarchy. But Gordon thinks that most people don’t feel resentment from gifts, but gratitude.

For high culture, money is a high-cost mode of incentive, when produced only through bureaucracy/advance permission, in contexts that require sponteneity. Gift is especially important when it forms the context for creativity—consider the expressionists, who worked for each other, to challenge, support, and teach each other.

She is proposing a comparative heuristic: a particular variant of commons/user innovation. When is gift a useful way to think?

Victoria Stodden: Free Revealing in Computational Science

Scientific output is changing: traditional view was hypothesisàexperimentàfinal paper, the last of which was what was shared. Now there are new communication mechanisms. Can have the same hypothesis, but now have the ability to share results, code, data, along with the final paper.

Why don’t scientists avail themselves of these communications technologies? Possible explanations: (1) Scientists are primarily motivated by personal gain/loss. (2) Scientists are worried about being scooped.

Survey of computational scientists in the subfield of machine learning, sampling American academics registered at the top Machine Learning conference, students and professors. (This allowed her to limit the inquiry to those subject to the same IP regime.) 290 surveys, 60 responses so far, still coming in.

Biggest reason not to share code/data: the time it takes to put it into a form they’re comfortable sharing and that they think that other people can use—documenting and cleaning it up. Dealing with questions from users is another significant reason to avoid sharing—also a private incentive. Less significant: worry of not receiving attribution, other private incentives.

Top reasons to share: communitarian norms—encourage scientific advancement, encourage sharing in others, improve the caliber of research, be a good community member. 82%/67% (code and data) also cited private incentive of attribution.

Surprise: scientists are not that worried about being scooped. Private incentives appear to be key to not sharing, while less important to sharing. (Hmm. The attribution reason to share was just as popular as several of the communitarian reasons; respondents didn’t have to pick just one reason to share, so it seems that private incentives could still be quite important to motivate sharing.)

Karim Lakhani: The Patterns of Innovation Generation in a Collaborative Community: Exploring the Relationship between Knowledge Novelty and Reuse

Friendly collaborative competition among software programmers, in a wiki-like setting where code can immediately be shared and evaluated. Objective evaluation of performance; a winner is declared at the end and the code is completely traceable. 11 contests, with over 100 participants in each and over 1500 entries. Question: how does individual action in writing code impact community reuse of the code?

The two faces of innovation: generating new knowledge and reusing existing knowledge. Sources of knowledge for the individual: generate it de novo, generate novel combinations of existing knowledge, and borrow existing knowledge of others to solve the problem. Structuring the resulting artifact can be looked at in terms of complexity/modularity, as well as in terms of conformance to standards that may exist.

Experiment: a one week programming contest; you can view anyone’s entry and take their code and resubmit it with your own changes. Three phases: darkness, when you work on your own without any idea of who’s competing with you; twilight, when you can see how you rank compared to others and see who’s currently contributed the best entry; daylight, when you can see all the other code and modify it. Example: winning entry came from Yi Cao, who participated in the entire contest but showed stunning improvement at the end. Of its 545 lines, his winning entry has only 12 new lines; the rest appeared at least once in other entries, from 30 other authors. Heterogeneity of endowments: many contributors never had the “best” entry, but their contributions were still part of the best entry at the end.

There were typically several leaders over time. 4402 entries, of which 181 were leaders at some point. But the nonleaders were important to the final result.

6% of the entries become top performers. De novo code is typically very limited over time. De novo code is statistically related to top performance and to social value (reused more often). Novel combinations of existing code: also true. But if you borrow code from others, that hurts top performance, but the social value of your new code increases because people can understand your code better because it’s more familiar.

Complexity: the more complex the code, the higher the performance and the social value—but this is a small contest with only about 800 lines of code. The less you conform to standards, the more likely you are to be a top performer, but that doesn’t correlate with social value: conforming code has more social value because it’s more understandable.

There is alignment between individuals generating new code and new combinations and the value of the collective: free riding hurts individual performance, but it’s still good for the community. Transparency—being able to see the code—may be more important than complexity/modularity. If you can see it, even if it’s a jumble, you may be able to break it up into workable chunks afterwards.

Discussion:

Carliss Baldwin: Two views of innovation: large independent chunks, or distributed and componentized.

Pam Samuelson: copyright/patent divide—for copyright, you need a work, while patent can be more divided up.

Baldwin: But there’s still the issue of whether the creative process is one of an individual creating a separate thing.

Samuelson: but patents often cover single components, so it’s more incremental.

Kathy Strandburg: Patents are often talked about in the mode of the romantic inventor, but the literature does recognize that patents are regularly combinations of existing things.

Brett Frischmann: When we talk about patent pools, we should recognize that sometimes sharing tacit knowledge, information about demand, and other features are more valuable results of pooling than the patents themselves.

Self-dilution

Apparently I'm not the only one who felt cheated by seeing Star Trek on an "Imax" screen that looked just like a decently sized multiplex screen to me. Turns out that now Imax screens can be small! Imax thinks no rebranding is necessary to distinguish sizes; I know that I now have a very different, and negative, impression of the brand as a whole. I'll be sticking with the Uptown where possible for my blockbusters, thanks, and as for paying extra for Imax: unlikely, unless I confirm screen size.

Think of it as dilution in action

Overheard in New York:
Burnout #1: Yo, is the Dove company that makes chocolate the same Dove company that makes like lotion?
Burnout #2: Man, what are you talking about?
Burnout #1: I'm just wondering. I was eating Dove chocolate the other day and it said it was "extra creamy." I'm just...ya know...what kind of cream you think they use?

At least he didn't violate the DMCA

Allen v. American Apparel involves a billboard, marked “American Apparel” and featuring a still of Woody Allen dressed as an Orthodox rabbi. Defendant’s summary judgment brief, via Marty Schwimmer, is a bold attempt to have Allen’s false endorsement suit dismissed on First Amendment grounds. Apparently, while watching Annie Hall, Dov Charney was struck by the similarities between his story and Allen’s. “In a moment of artistic inspiration, Mr. Charney … began the process of taking digital photographs of certain scenes from the movie. Using the controls on his television recording system, he searched for and paused the Annie Hall movie on precisely the scene that had inspired him—the scene in which the Alvy Singer character at that table tilts his glasses upward. He then manipulated the digital photographs using a computer program, adjusting the color, the clarity and other artistic aspects of the photographs, all in furtherance of his artistic vision.”

Bonus question: if California law applied, would the inverse of the White v. Samsung rule be that if nobody recognizes Allen, no violation of the right of publicity occurs?

Presumption of causation saves Lanham Act claim

Champion Laboratories, Inc. v. Parker-Hannifin Corp., 2009 WL 1269624 (E.D. Mich.)

The Lanham Act is broader than the common law of product disparagement in a variety of ways. This case illustrates one having to do with presumptions of causation.

Champion claimed that Parker-Hannifin’s Racor division disparaged its fuel filter to GM in an effort to get GM’s business, which Racor had previously lost to Champion because Champion made a similar, but cheaper, version of Racor’s Duramax filter. Duramax is a GM turbo diesel engine. Racor was GM’s Original Equipment Manufacturer (OEM), meaning that Racor made the original fuel filters inserted into the Duramax engine at the factory. Champion got a contract with GM to furnish replacement Duramax filters to GM service providers, which Champion initially fulfilled by purchasing Racor filters. This, unsurprisingly, wasn’t very profitable for Champion, and Champion began to design its own Duramax filter, which was later patented. After extensive testing, GM approved Champion’s filter, and Champion started to use its own filters for aftermarket parts. Racor is still the OEM supplier.

After Champion stopped buying Racor filters, Racor sought to regain the aftermarket filter business. It learned that the only way to reverse GM’s decision was to show that Champion’s filter didn’t meet GM’s requirements, presented a safety risk, or was defective. GM was extremely concerned about the filters because GM had previously paid out $100 million in warranty costs to replace fuel injectors in Duramax engines before starting to use Racor’s filter. Thus, Racor’s sales team asked its engineers to test the Champion filter, looking for deficiencies. The Champion filter performed at least as well as the Racor filter in the usual tests. Racor engineers began looking for a test to show Racor’s superiority in filtering out ultrafine particles (smaller than four microns), damage from which had been the source of many warranty claims for GM (such particles can pass through the filter and damage the fuel injectors). However, there was no standard testing method to measure these small particles. One Racor engineer expressed concern that he wouldn’t be able to defend such an unprecedented procedure.

Ultimately, Racor used gravimetric testing, measuring the weight of particles that passed through the filter. They got “some pretty wild results” on Wix filters suggesting Racor’s superiority, and the engineer recommended that Racor not share the data with GM until they could “get the whole picture.” The sales team, which was meeting with GM that day, did not heed this caution, and even labeled the test results as head-to-head Champion v. Racor in its presentation. The sales team also suggested that other parts of the filter were difficult to service, subject to leaks, and otherwise inferior. As it turned out, the tests run on Wix filters gave very different results from the tests run on Champion filters (even though they were from the same manufacturer). In fact, Champion and Racor filters performed about indistinguishably on the gravimetric tests. There were also no leaks during testing.

In the face of these further results, Racor persisted in its campaign against Champion, highlighting its long and fruitful relationship with GM and its successful development of a Duramax fuel filter that filtered out contaminates smaller than four microns. It also asserted that Champion was infringing on Racor’s patents and stated that it had sued Champion and other competitors for patent infringement, as well as questioning the quality of the Champion filter. Indeed, Racor stated that in previous tests “competitive product failed and leaked fuel, posing a significant safety hazard,” though it later “expanded” on this to say that neither filter leaked during impact testing.

GM forwarded the presentation to Champion, which responded with test results of its own—and with a lawsuit alleging false advertising under the Lanham Act, trade disparagement, business defamation, and interference with contractual relations.

Racor “clarif[ied]” some of its claims to GM, among other things explaining the Wix/Champion differences and requesting that GM disregard the gravimetric test. Nonetheless, GM awarded Racor the aftermarket business “due to unknown validation risks and the past issues we have had on this product [GM] determined that it is too much of a risk to continue with the Champ design.” Legal input about another lawsuit also factored into GM’s decision. Neither party deposed GM about causation. Champion lost 60-80% of its fuel filter business as a result.

Racor argued that Champion couldn’t show a causal link between the alleged falsehoods and GM’s decision. Champion argued that, because the comparative statements at issue were literally false, it was entitled to a presumption of causation and harm sufficient to survive summary judgment. The court agreed.

Racor then contended that its presentation to GM wasn’t “commercial advertising or promotion,” because it was not sufficiently disseminated to the purchasing public. The requisite level of dissemination varies by industry. The market for Duramax fuel filters, designed specifically for GM, is “relatively small.” GM is, in essence, the market. Thus, the presentation was enough to trigger the Lanham Act.

Next, Racor argued that its statements weren’t factual, only opinion. According to Racor, results allegedly from testing showing “significantly lower efficiency”; claims that the lip seal “almost always … [gets stuck],” “is difficult to remove,” and may “allow the [maintenance] tool to scratch and damage the sealing surface”; claims that the o-ring design created the possibility of leaks; and so on were all illustrating potential problems relating to structural deficiencies. As the court pointed out, Racor was confusing opinion with factual speculation. Racor asserted facts, supposedly based on tests. The presentation purported to offer data, not personal beliefs.

Finally, Racor argued that Champion couldn’t prove literal falsity. Racor’s own internal emails from its engineers sufficed to create a jury issue. Among other things, the engineers wrote about “far different results” in the Champion filter tests compared to Wix and noted that “[I]t was dangerous to give GM these first day test results without us having an idea of the limitations of our test method and understanding the implications ….”

On trade disparagement/injurious falsehood, Racor argued that there was insufficient evidence linking the disparaging statements to GM’s decision. This state-law tort does not have a presumption of injury arising from literal falsity, so Champion could only rely on the time that lapsed between the presentation and the decision; though the decision may have been made soon after the presentation, that was insufficient to show causation, and Racor prevailed on summary judgment. Similarly, Racor succeeded on the argument that the business defamation claim couldn’t survive because Champion couldn’t show that Racor’s statements prejudiced Champion in the conduct of its business or deterred others from dealing with it. And finally, Champion’s interference with contractual relations claim failed because there was no proof of an underlying breach of contract.

Google Books and visual culture

Or the absence thereof. Here's a lithograph from c. 1845, removed from Google Books because it's "copyrighted." Another reason to worry about the difference between Google access and traditional access.

MeTube

Fred von Lohmann of the EFF put me on YouTube, explaining why the DMCA serves as a biased digital literacy test and digital poll tax on fair use.

Copyright Office DMCA Hearings recordings

Just a note that Fred von Lohmann of the EFF has put up yesterday's panels, including my testimony and that of Francesca Coppa (Muhlenberg/OTW) and Tisha Turk (U Minnesota and part of OTW's vidding project). We're on May 7, Panel 1--our statements are part 2 and the Q&A is part 3. Many thanks to Fred for this public service!

Copyright Office DMCA Hearings: Noncommercial remix

I zipped and uploaded a set of Fred von L’s recordings, so as not to overload Fred’s personal page.

Rebecca Tushnet: I’m here to support the EFF’s proposed exemption for AV works on DVD where circumvention is undertaken for the purpose of extracting clips for inclusion in noninfringing noncommercial video.

The adverse effect on fair use the EFF’s proposed exemption addresses is on the whole system of fair use. The technologies at issue here are important because they are readily available to individuals and, to a layperson, especially to the artists who are inventing remix culture on the fly, they are not distinguishable from other readily available technologies; the current regime is a trap for the unwary.

The joint commenters concede that there is a substantial amount of noncommercial fair use by ordinary citizens, which is by definition noninfringing. The statute requires us to show an adverse effect on noninfringing uses; once that effect is shown, an exemption is on the table. The alternative is to say that some noninfringing uses, especially fair uses, just don’t count. It’s worse than that: there’s a Catch-22—the oppontents say that we need a judicial determination of fair use before an exemption is justified, but we can’t get a judicial determination if noncommercial fair users will inevitably lose under 1201.

The proposed exemption is limited to a class of works where there is a demonstrated problem: works on DVD, not Blu-Ray or other media. It’s limited to a class of users with particular difficulties: noncommercial clipmakers who are in the worst position to know the distinctions between technologies the opponents of the exemption think they should be making.

The idea that DVD clipping is simply a matter of convenience compared to other methods is deeply flawed as applied to noncommercial remix. Yesterday’s distinction between inconvenient and abnormal is useful here: it’s abnormal to distinguish between methods of getting a digital file and so it’s no wonder fair users don’t know that they’ve walked into a trap. As we’ve heard from the joint commenters, some of the best copyright lawyers in the business cannot tell whether SnagIt counts as circumvention—nor apparently can the Copyright Office—and most artists aren’t lawyers.

An institution with substantial and varied technological resources may be able to figure out workarounds, but individual citizens participating in political, cultural, and artistic exchanges don’t have AV departments. What we have here is essentially a digital literacy test and a digital poll tax imposed on fair use. The literacy test, as you may recall, required prospective voters to interpret an often arcane provision of the law. Here, the test proposed is that they understand that a digital file created in one way is illegal, while a similar, albeit degraded, digital file created another way is fine.

Then there’s the poll tax: you have to purchase the proper equipment to create the second digital file. It’s expensive and nonstandard for an individual artist—we were offered the prospect of using a $900 camera, plus a several-hundred-dollar tripod, plus a large flat-screen TV in a large, completely darkened room. The noncommercial artists we represent are often pink-collar workers; $900 is regularly more than a month’s rent for them; it would be a crippling requirement. And they don’t ever get paid for the works they create. This is not an investment for them. This is their free speech; this is how they react to popular culture—addressing it, critiquing it, changing it.

And the poll tax is inherent in the responses from the opponents of an exemption: their argument that camcorders somehow preserve the technology inherently presumes that the camcorder solution is one that won’t be used by fair users and therefore fair uses will be suppressed. To the contrary, the possibility of camcording proves that the proposed exemption will not cause any harm to the opponents. They say camcording is easy and is good enough to watch. In that case, that’s the mode pirates will use. They cannot maintain that camcording is a substitute for fair use clipping and also that the exemption will degrade protection for CSS compared to camcording.

We got rid of the literacy test and the poll tax because they deterred people from participating –people whose voices weren’t heard otherwise. We did this even though some brave people defied the laws and persevered. Some even managed to register and vote. The problem was all the people who didn’t have the time or the energy or the resources to persevere, and all those who looked at the costs and didn’t even bother to try. That’s the problem here.

Any distinctions between output files should make sense from the perspective of an ordinary user. Fair use is a reasonably intuitive concept, as is the distinction between transformation and pure copying. Indeed, the Center for Social Media has also developed best practices for fair use online video, along with best practices for filmmakers. It is nonsensical, even contemptible, that one way of making a fair use remix is illegitimate and another is legitimate. The last thing that copyright law needs is another rule that doesn’t match up with individuals’ understandings of reasonable copyright rights. It will deter risk-averse remixers from making fair uses and even the ones that continue may find themselves unable to assert fair use defenses for fear of DMCA liability regardless, as Fred von Lohmann of the EFF testified and as we’ve seen at OTW in our conversations with remixers who have received takedown notices, wanted to make fair use claims, but decided that they couldn’t because they were unsure about the method they used to capture the clips.

This has a substantial deterrent effect on the development of fair use jurisprudence.

The exemption process inherently contemplates that the DMCA may interfere with fair use, or any other noninfringing use, so much that an exemption should be granted. Especially when the opponents concede that the technology is widely available and widely used, such that deterrence arguments are simply implausible, it is arbitrary and even cruel to tell the noncommercial fair users who do want to fight for their uses that it is too late for them—they should have gone to law school before they started remixing.

The opponents of exemptions have mentioned enforcement concerns: However, the proposed exemption only applies if there’s an underlying fair use—copyright owners are free to challenge anything that they don’t agree is a fair use, and indeed we welcome the opportunity to develop fair use jurisprudence in the context of noncommercial transformative uses.

No noncommercial creator would say “I know this isn’t fair use, but the prospect of statutory damages isn’t enough of a deterrent; only the additional prospect of DMCA liability is enough to prevent me from infringing.” Thus, any extra deterrence achieved by the absence of an exemption is only achieved by deterring fair uses. The public shouldn’t have to subsidize copyright owners’ enforcement decisions by being forced to forego fair uses.

The enforcement concern is mistaken in other ways as well. As we’ve said, and as the joint commenters readily concede, that these technologies are already widely available on the internet. But that’s not as important as the bigger point: these technologies are not great ways to infringe; they’re great ways to get clips.

Downloading a 700 mb movie at 2 megabytes per second, a fairly standard broadband speed, takes roughly 45 minutes—less time than it takes to rip specially chosen clips, or even to rip a high-quality version of a whole movie if you were inclined to do so.

And this ties back into the point about making the law comprehensible to ordinary people—it is laughable to ordinary artists that downloading an entire movie or TV show is less problematic from a circumvention perspective than buying DVDs—providing the copyright owner with remuneration—and then making short clips.

Screen capture software has also been offered as a solution. We want very badly a real answer from the joint commenters about this; we note that if using a camcorder on the screen is not circumvention, it is hard to see why using the screen as a camcorder would be, as Rob Kasunic pointed out.

However, screen capture does not produce clips of sufficient quality to make the artistic point that our artists want to make. Other experts will testify about the importance of high quality to remix artists, though I will say that we would not tell other artists that they could only use crayons and not pencils, or paraphrases and not quotes.

One random example of how quality is important to show you things that aren’t easy to see in the original: a video called “How Much Is That Geisha in the Window?”—a critique of a science fiction series, Firefly, by Joss Whedon. Firefly is supposedly set in a future where Chinese and American influences are about equal. Low-quality doesn’t let you see what you need to see, which is the details of the Asian setting, the constant references to Asian cultures, and the fact that nonetheless there aren’t any Asian characters except in deep background—the critique is meaningless if you can’t tell why the artist is complaining because one pixelated person looks pretty much like another.

All the suggested alternatives end up limiting the source materials that people will draw from in various ways. There’s a wide range of people creating out there and a wide range of creative practices. Some potential fair users will be discouraged because they misunderstand the distinctions between technologies. And well they might. Without an exemption, the rules trying to distinguish technologies will be arbitrary because they don’t relate to the nature of the artistic activity—the output.

A separate point about screen capture software: it does not work on many systems and with many DVDs—I know this from personal experience as well as from conversations with others, including Roger Skalbeck, who testified yesterday—it appears that content owners are using mechanisms to prevent screen capture software from working.

Vista already includes a variety of new technical protections measure for video content (Protected Media Path). It was put in there at the insistence of the MPAA companies, as a condition of making digital formats like Bluray available. One of the stated design goals of PMP was to block "screen capture" tools like Snag It and SnapZ. PMP is already deployed in every Vista PC that has shipped, and every one that will be shipped in the next three years.

Just as neither institutions nor individuals should be expected to hang on to their VCRs forever in order to take advantage of obsolete technologies, neither should they be expected to hang on to old operating systems so that they don’t fall prey to new mechanisms of defeating fair use.

Indeed, the movie studios and their partners have a very strong incentive to begin implementing additional measures to block "screen capture," as those tools will otherwise make all next-gen video formats vulnerable. A DVD exemption is actually a much more targeted way of addressing the current problem.

Finally: some of the discussion until now has suggested that fair use is only for the elite, the educated. That’s not the right way to think about it. Fair use is for citizens. This exemption is the only way they will be able to do it and defend their fair uses.

Francesca Coppa: Historically remix comes out of minority culture: racial minorities, women, gay/lesbian/bisexual/transgender/queer cultures. The remix we work for comes almost entirely from minorities. Vidding—a female-dominant form of remix, recontextualizing and critiquing popular culture. It’s a visual essay responding to pop culture using its own language. Art and cultural commentary that doesn’t happen inside the academy or high art circles. Recently being brought into museums and other high art; New York magazine singled one out as best of the year. These practices are analogous to collage art, MoMA appropriation art.

One of the reasons I’m not showing vids: they are often made to show at live gatherings in bigger screens, made in very high resolution as a form of art. Vidder might offer a HQ download, 90 or 100 megs. Some vidders might put a streaming version online, but others won’t because of the quality degradation; streaming often serves as a preview.

What vids do: “How Much Is That Geisha in the Window”—vids often emphasized the thing that was not foregrounded in the frame. A vid may draw your attention to something that is not obvious. A high quality file is important because you’re trying to emphasize patterns not apparent in the original. In “Geisha,” that means paying attention to how human beings are treated as exotica. “Women’s Work” is about Supernatural, which features no sign of the stars, and instead focuses on the women who are there to be cannon fodder/motivation. By editing these one-time-only characters into the foreground, you learn more about the ways in which women are used as props. “Wouldn’t it be Nice” surveys the buddy cop genre to make an argument about gay marriage, recontextualizing them. “Martina” shows a character who’d previously experienced a sexual assault tracking down a serial rapist, artistically trying to articulate the show’s insensitivity to how that character would have reacted.

Vidders are cultural critics and fine artists. They don’t simply watch, but make things with footage. They strategize to draw your attention to things you weren’t supposed to see. You need to see the chair in 12 Monkeys to see the copyright infringement issue. With vidders, it’s often facial expressions or characters that you need to see clearly.

Where’s the harm? Vidders communicate through a series of online tools. Increasingly, often due to algorithms, material is subject to random takedowns. YouTube did a big purge in January. Many of them provide dispute mechanisms. If you make a fair use, you should be able to dispute. We’re finding because of lack of clarity, some people refuse to dispute. In one particular instance, Coppa encouraged a woman to dispute, and the woman’s daughter had made the vid so she didn’t want to bring her daughter’s process into question.

Coppa has started to write about vidding because these people already represent marginalized positions. They already don’t see themselves in popular culture, that’s why they’re vidding. Female vidders have historically been reluctant to step up and claim cultural legitimacy. Vidders may already be nervous about asserting their perspective. Coppa can’t even clearly tell them what method to use. She can identify a transformative work, but not a process. It’s also hindering mainstream recognition.

It would be a shame if vidders and other cultural critics were forced to work in degraded images. If pop culture has luscious imagery, and you have to speak in ugly form, your work is already marginal and gets worse off by having to look incompetent.

Tisha Turk, U Minn: her academic expertise is novels that rewrite other novels, and that’s a short step to videos that remix other videos. She’s also a remix artist, a vidder.

Remix video doesn’t harm copyright owners. Vidders are terrific consumers. Her DVD collection is pretty impressive, especially for an English professor. Often she buys those DVDs because she saw a remix video from someone in her community. She has circumvention tech and she knows how to use it and yet she buys DVDs; that’s what she does with source she enjoyed. She’ll buy it multiple times. Her videos encourage other people to watch and enjoy the source, saying it’s worth your time.

Turk says: Vidders are cultural critics, but also artists. If I want to write an essay about a visual narrative, I write an essay. Other times, I want to work in the same medium as the visual text, and needs to juxtapose images to embed a critical commentary, in the same way that you have political literature and not just op-eds. We see it in film, visual arts.

Quality is important. Not all digital copies are created equal. As a consumer, I don’t always need highest quality for its own sake. I watch TV shows on Netflix’s Watch Instantly. That’s fine for certain kinds of cultural consumption, if not ideal. When I’m watching for the story, trying to decide whether to buy the DVD, I might use “good enough” source. I listen to mp3s for convenience. When working as a creator, not a consumer, quality is important. I need tools that work.

Much of the time I’m transforming the clip. That means transforming the appearance of the video. I’m not the most tech-savvy, but these are things that I routinely do with clips: change the speed—very common, to match music or to emphasize a particular object. SnagIt clip: suddenly it goes jerky. You can’t slow down or speed up footage that looks like that; you can’t work with it even if you could watch it for the plot. Might want to alter the color to create a different mood. Those clips from yesterday have been desaturated. We know that color affects mood. Garbage source prevents you from doing that, or from matching colors for two different clips. Might need to adjust contrast or light levels. What is that beige blur in the corner? It might be a face. Might want to crop clips, and if you work with low-resolution source and have to crop 1/3 to see more closely the fact that two characters are holding hands, or that something is off to the side, she’s already losing resolution even if she’s working with high quality. If she’s not starting with high quality, she may lose the image entirely. It’s not just a matter of wishing it were prettier.

I don’t want to rip DVDs because it’s convenient. Nothing about what I do is convenient. It’s boring, annoying work that I need to do to make the art I want to make and avoid ending up with a muddy mess that does not show what I want other people to see. One of the first rules of video editing: Garbage in, garbage out. People won’t watch the video, or they won’t be able to see my points. Result: criminalizing the creative process.

Camcording has adverse effects in that I can’t do it. It’s counterintuitive, impractical, expensive—two months of my mortgage for the camera alone, and I’m at the high end of creators. That process limits my ability to comment on the cultural texts to which I want to respond. I am convinced that my videos are fair use, but we can’t test that in the courts without an exemption.

Martine Courant Rife: References yesterday’s testimony. She’s concerned about allowing students to produce texts and still work with outside nonprofit community groups. She wants them to be able to use the skills learned in class outside of class. It’s common for writing students to work with nonprofits; she gives an example from Lansing. She wants an exemption to cover uses where students work outside the classroom. She’s concerned about claims for vicarious and contributory liability. If you give an exemption to one type of person, and not another who is working closely with that type of person, there are risks of claims for vicarious/contributory liability.

1201(c)(1): Should be no affect on fair use. Also asks to revisit the difference between copying controls and access controls. Rhetoric: Plato gave us concepts of rhetoric. Visual media in high quality has more credibility, more ethos. While we appreciate the availability of digital media, the movie industry shouldn’t be able to produce culture that can’t be talked back to in the same basic format.

Bruce Turnbull: Reminding you of what I’ve said before. Main comment: we’re in the wrong room; should be at Congress. This is an attack on 1201. Many of the uses enabled are not fair use. Developing the jurisprudence of fair use is not making fair use. Congress rejected this.

Were you to consider this, it becomes a quagmire of figuring out what’s permitted and what’s not.

Steve Metalitz: Discussed in Palo Alto. The threshold question is whether the activity generally noninfringing—that’s the standard. Vids as fair use are an insufficient basis to justify an exemption that would cover these uses. It doesn’t fit the standard.

Trap for the unwary: It’s clear that no one has ever sprung it. Takedown notices under §512 allow counternotification. There’s been §512 jurisprudence. To think that people are refraining from putback when they might get sued under 1201 when there are zero instances of suit for 1201—it’s nonsensical to think there’s deterrence of putback.

Carson: Rife’s point—you’re really here trying to protect the integrity of CSS as a copy control, not as an access control. People who circumvent are doing so to make copies. Is that fair?

Turnbull: All the given examples do involve making copies. CSS is also an access control.

Carson: Why shouldn’t we take into account that the ultimate concern is the use of CSS as a copy control, and there’s no prohibition on circumventing a copy control?

Turnbull: The job Congress asked you to do is determine whether the inability to circumvent other access controls is impeding the ability to make noninfringing uses. Anything you say here wouldn’t be relevant in a case brought under 1201(b).

Kasunic: In the context of capture: where I put a DVD into my computer drive, obtained lawful access to a lawful copy of a DVD, and then was trying to make a copy from the accessible portion, how is 1201(a)(1) implicated? It’s true that as a general principle CSS is a form of encryption that can protect access, but in the context of how it’s being done, and the uses being made, how is that not a copy control?

Metalitz: I am not going to answer you on screen capture software.

Kasunic: Put aside screen capture. If I have lawful access and I make a copy, is there an access control issue?

Metalitz: That’s the same question. Legislative history says the role of access ends when you have lawful access, but that wasn’t included in the final legislation. There may be terms/conditions on that access, and circumventing access may allow you to do things violating those terms.

Kasunic: There are no terms on a DVD.

Turnbull: The terms and conditions of being able to provide access to the method of decrypting is that there must be mechanisms used in the pathway the content takes to take it to the point of access that avoid copying.

Kasunic: That’s only relevant to the licensees (the DVD player makers), not the end users.

Turnbull: May be avoiding/bypassing under the statute.

Kasunic: Isn’t it fair to say that at least in context of understanding the impact of the circumvention law, Congress did create a rulemaking proceeding? The reason we’re here is to figure out how these tech changes/developments, for example in terms of vidding and new documentary uses, are affecting noninfringing uses?

Turnbull: Unless you’re going to fundamentally rewrite the standard, you can’t do this. A large proportion of what goes on will not be fair use.

Kasunic: If a class of works has to be a subcategory of copyrightable authorship without reference to use/users, we have a very blunt instrument and any use would be on the table. If we found such a class, we’d issue an exemption and allow anyone to circumvent.

Turnbull: The method of defining classes of work has worked in a number of instances. The question of whether you could grant an exemption for the class of works that is motion pictures protected by CSS is different: you undermine the technology as a whole.

Kasunic: If we take the proposed exemption for documentary filmmakers, we aren’t saying what is a fair use; we allow the filmmakers to at least get to that question.

Turnbull: The film professor exemption is where we’ve said, in context, that has the kind of narrow, specific categories needed. Documentary works: there are necessary refinements, but it’s a specific category. The concern about a broader exemption is that it is undefined/difficult to define, where even the proponents admit that some of what will be done under the guise of that exemption is not fair use.

Kasunic: If we grant an exemption, and given that tools/devices exist out there, which we know they do, use of those tools is not a violation of 1201(a)(2), right?

Metalitz: True.

Turnbull: You can take into account in determining whether to issue a 1201(a)(1) exemption whether it would encourage the development of new tools.

Kasunic: Requirements for broadcast gatekeepers. How do you fix those problems with lower quality input?

Quinn: Generally the things sent back to us are not about image quality, it’s technical issues. Time, effort and money can usually fix that. When the quality is degraded, it impedes your cultural commentary.

Morrissette: There’s usually a way to fix it: we get lots of pixelation, bad-looking video, but at least it’s a legal size. Occasionally they will ask why the clips are so bad. People see it. There are ways to fix it without the DVD, but the DVD quality would avoid the issue from the beginning. Comes up far more often with stuff on the internet, processed and quality-lost; copies of copies; wrong frame size; all sorts of problems. Analog transfer is our current stopgap.

Kasunic: Is that also true of FCC compliance?

Morrissette: Yes.

Kasunic: For 11A, can you say more if we were to apply a necessity standard?

Me: This is necessary in two senses: first, people do not distinguish when they’re making the art in the first place. Second, they can’t afford to make the camcorder copies. This is not an attack on 1201. 1201 requires you to examine adverse effects on noninfringing uses. As the statute requires, we are showing an adverse effect on what are concededly fair uses, specific to CSS and specific to noncommercial users who do not have the knowledge or the ability to use other workarounds. Not only that, the exemption is written to protect only fair uses. If it’s not a fair use, then there can be a 1201 violation; we aren’t asking for a standard of arguable fair use. The slippery slope here is that an Article III judge will decide—we end up not even at sea level.

Coppa: This is done with home equipment. You can’t store full uncompressed movies, which are huge. You can store some clips. A laptop with an external drive is not set up to store full uncompressed movies.

Ben Golant: What role does free speech play?

Me: A big one. We’re losing uncounseled fair uses, by citizens who don’t have institutions backing them up.

Golant: Can we consider one of these classes and grant that exemption, and use that as a reason to deny another class because that would defeat the purpose of CSS, cumulatively?

Metalitz: True. Have to ask in each case. Some of these vids are infringing. You’d have to find that they aren’t. If you find a diminution in fair use, you have to find that it’s caused by the prohibition on circumvention. Can’t base it on speculation. There is no evidence that there are cases of people being sued under 1201 for a putback.

Chris Weston: Yesterday we talked a lot about narrowing an exemption in terms of educational use. Is there any way to narrow your proposal.

Me: We shouldn’t pick winners; that’s the core of copyright. The copyright owners can show no harm from the proposed exemption. They concede this technology is readily available and widely used. This is about what happens when a fair use has been made and gets challenged.

What will people think in the presence of this exemption that they wouldn’t have thought before?

Metalitz: Proponents argue that 1201 is unclear, but fair use is crystal clear. That doesn’t accord with his experience. The law on 1201 is clear, and not random. If you don’t know the law, the results do appear random. There’s more that could be done to improve understandings. We know there are some ways to make these uses that don’t involve 1201 liability. And fair use doesn’t entitle you to make the best quality way. Fair use jurisprudence is going along fine.

Morrissette: Are people aware that using the decryption software is illegal?

Me: No, they find out too late. This software is readily available on a simple Google search. They think they’re making art, they think they’re making fair use, and then they find out too late that they were essentially in tax law and needed counsel before they started. Anyone who works with big companies knows that even they only consult with counsel half the time; the other half, they just assume that they can do what they want to do, and only come to you later, when they’ve already done it. And these are individuals without counsel.

Coppa: They think that if you own the DVD, you can vid with it and that’s better than downloading from an ethical perspective. They think they’re being good citizens.

Turnbull: The purpose of 1201 was to enable the technology to allow the content to flow. Exemptions will undermine the technology; if we develop fair use jurisprudence then we lose the technology.

Kasunic: is there mention of CSS in the legislative history?

Turnbull: No.

Copyright Office DMCA Hearings: Filmmakers

Today’s notes are not as reliable a summary as yesterday’s, because of my active participation. (And of course the usual caveats apply to the extent that you want to use my reports as summaries; I strive for accuracy, but I am not a transcriptionist.) I believe the Copyright Office intends eventually to release a transcript on its website, where all the proposed exemptions and comments are also available. Fred von Lohmann of the EFF also recorded portions of the Palo Alto hearings along with yesterday’s hearings, including video of the MPAA camcording demo. You can also watch the MPAA demo on Vimeo.

Begin with 11B: motion pictures and AV works in DVD that are not generally available without CSS when a documentary filmmaker is enrolled in a film production course at a postsecondary institution or is a member of a documentary filmmaker organization, when making a specific documentary for which substantial production has occurred, and when the material is in the public domain or its use would be fair use.

Gordon Quinn, Kartemquin Films: Makes nationally broadcast documentaries, including Hoop Dreams and The New Americans (immigration); Terra Incognita (stem cell research) just won a Peabody. Important participants in culture and democracy: contextualize real stories. Most documentary filmmakers belong to at least one documentary organization.

The prohibition is burdensome, intimidating, and impeding fair use and use of public domain materials. The exemption is for filmmakers who are relatively educated about what fair use is and isn’t. This is the bare minimum: only for CSS. This is just the fair use we’ve relied on for decades. The alternatives don’t provide the proper quality, as Jim Morrissette (technical director) will testify. Most documentarians don’t have technical directors with engineering backgrounds. Many things he shows/can do are unavailble to even very good documentarians. It causes Kartemquin a great deal of grief, but others suffer even more.

Fair use is critical to documentarians, which is undisputed. Filmmaking has a long history, and is more predictable than other types of fair use.

DVD is the default distribution format for now. We anticipate it being so for the next 2-3 years. How we use fair use: Refrigerator Mothers (the story of the mothers of autistic children from the 50s & 60s, told by experts that they caused their children’s autism). We show the hold of Freudian psychology on 50s and 60s pop culture, putting a lot of weight on mothers for failing in lots of ways—show excerpts from feature films, off DVDs, magazine articles, etc. It’s critical to the film, but very short, because we don’t take more than we need.

Alternatives are not adequate to achieve the quality necessary for broadcast/theatrical distribution. Also they’re expensive and difficult.

Opponents have suggested solutions that further burden fair use. Licensing as an alternative undermines the purpose of fair use. Center for Social Media study on Untold Stories showed that licensing didn’t work: high and increasing fees; broadcasters demand broader and broader distribution rights from documentarians, but copyright owners are unwilling to license that broadly. Still an unresolved issue.

But fair use is not licensing. The New Americans includes an interview with a Nigerian immigrant who says Coming to America is a favorite movie in Africa, because it shows how little Americans know about Africa. They tried to license a clip, even though it was clearly a fair use, and failed no matter how persistent they were. The film was weaker because of it. Standard studio licensing provisions prohibit criticism of the studio, the industry, the executives, the character, or the film: he showed a standard licensing provision. Along with restrictions on criticism, the license is void if the MPAA rating is more restrictive than “R.” The heart of fair use is that we have to be able to criticize, comment on, and put things in context.

We do license things all the time: we don’t say everything is fair use. We expect to license when that’s appropriate. But we expect not to have to when fair use legitimately applies: ownership can’t prohibit free expression.

Good faith effort to obtain unencrypted copy from copyright holders: has the same problems as licensing. These are the same people who’ve given us so much trouble over the years in licensing. We need the right to participate in the culture of the community, critique things in society; we shouldn’t have to ask permission. Can lead us on wild goose chases—we sometimes go to the artist in cases of fair use, but we shouldn’t be required to do so. This can also create requirements to pay lab fees. You may have the DVD and yet when you go to the copyright owner, all of a sudden the owner tells you it needs to be redigitized at a very high price.

In our work, there are a lot of clips from a lot of things—a montage. Creating a new thing to show the culture of a period, or how people have been treated in certain kinds of media. If each one has to go through a lab process, that adds up.

Suggestion to add “solely” to the class—“solely” for use in a specific documentary film. We don’t object to that change for clarity. We don’t see harm to copyright holders, which is important because we are also copyright holders. We distribute and sell DVDs, some of which have CSS. Our proposed exemption is narrow and could not be used for infringement by consumers watching something they didn’t buy. It would only apply to the established documentary community; the likelihood of misuse by a documentarian is low; the community is professional, thoughtful, and responsible about fair use. (Comment: You must be this tall to make a fair use!) Because of best practices, we can now get E&O insurance for our films when we make fair uses, which used to be impossible.

Copyright owners retain their rights and remedies.

Today, almost all public domain material is bundled with newer, copyrighted material on DVDs, such as extra features or a new soundtrack. Thus, we need to be able to access the public domain material on those DVDs.

We’re not asking for anything broad, vague, or unfocused. We just want fair use itself. As much as we need and no more. Not trying to open up the barn door to random pirates, and we’re a very defined class of people who have spent a lot of time and effort getting educated on fair use.

Jim Morrissette, Kartemquin Films: Technical director; worked there for 30 years. Almost all productions come to him to be fixed. How he deals with analog alternatives to CSS, and resulting problems that affect the ability to get the shows on public TV. It’s been suggested that we could use VHS. We have used VHS, but it’s universally accepted that image quality even on a brand new tape is vastly inferior to begin with. The problem doesn’t stop there. Availability: VHS is no longer being made. Older tapes: for our stem cell movie, we wanted a clip from Sleeper. We first couldn’t find a VHS copy in the Chicago area; finally interns found a library copy. To get it into the program, a zillion steps were necessary to get it broadcast quality.

Play the tape; run through a time corrector to remove Macrovision analog copy control; turned digital. Because of the time corrector, video levels were off, leading to image degradation; must adjust video levels. Recorded output to digital VCR, leading to analog to digital image degradation. Required adjustment of black level. And required cropping head switch, black lines at the bottom of every VHS tape, which consumers don’t see but broadcasters do. Frame size must be adjusted, and then the file must be rendered, causing more degradation.

There are hidden signals: switch, blanking, color—broadcasters (and the FCC!) insist that they must all be within a very narrow spec. If any clips are not within spec, they must be fixed, and fixing them is not easy.

Camcorder alternative: Used to record live TV before videotape was invented, called Kinescope then. The necessary steps raise even more issues in the transfer, setup, and postproduction. Loss of image resolution, warping and other perspective problems, visible scan lines. Setup requires precise camera alignment, audio line-in, color balance, dark room/hooding the camera. If you aim a little too wide, you’ll get the set; if you aim too narrow, you crop and degrade the picture.

More serious technical issues in yesterday’s demo. All HD cameras are widescreen, 16:9 unlike the 4:3 standard def. A SD camcorder could only shoot a square screen, meaning the result is black bars on top and bottom, which degrades the image even further. The source was dark, fast-moving, quick-cutting: an excerpt from Harry Potter. It was impossible to tell whether the image was jerky, flickering, whether the colors were true. If you’d chosen a presidential speech where you could see a human face and judge color, it would be easier to evaluate. We also didn’t get camcorder compared to DVD; instead they compared to a downloaded, compressed, QuickTime file, which of course didn’t look better. That wouldn’t pass public TV standards.

Once the camcorder recording exists, you’re not done. If it’s HD, and you’re making SD, you have to downconvert.

Another alternative: use a black box to record a computer screen. Scan conversion boxes, often used for people making training films. Computers don’t play video the same way TV plays video; they play progressive. Broadcasters want interlaced, which is what comes out of the DVD. The change from interlaced to progressive back to interlaced cuts image resolution in half. There’s also a sync problem with the audio—the delay from conversion can be ½ a second. You have to resync. Scan converters cost $1800 and up.

Third method: use software to record the screen. He’s tested some, including SnagIt, JingPro, and others. They may be acceptable for low-resolution web clips, but unacceptable for our use. They can’t capture the full frame rate of DVD: 30 fps. Even on a quad-core Intel Mac, they’re lucky to get 15 fps. Result: jerky motion. Also very difficult to define precise part of the picture to record. If you get it wrong, your file has to be blown up or cropped or otherwise manipulated to get proper frame size. There are only 3 frame sizes allowed for broadcast; you can’t be wrong, and resizing degrades image quality.

What do we do now: Analog hole. It’s similar to the VHS process. DVDs have Macrovision, so analog output is not directly recordable but must be run through expensive time base corrector to strip that off. Record on digital VCR. Problem: you’re starting with an analog signal out of the DVD player. If you compare analog to digital, it’s night and day: composite signal is blurry, colors are washed out. There’s also an issue with black levels, which affects not only the look but also whether public TV will accept it. Analog black level is higher than digital. You thus have to modify the black level coming out of the DVD player, carefully so you don’t degrade image quality more than necessary. Digital tape must be transferred to computer file. Rendering again creates image degradation.

Even with all his expertise, we still have to send our programs out to a high-tech gatekeeper, one of the approved public TV quality control intermediaries. These issues are grounds for rejection from broadcast. We have to fix them, which is an additional burden in time and money. It’s a key point that it’s not just that we need “good enough.” If we were showing a clip in a classroom, some of these other methods might be good enough, even though they’re a heck of a lot of trouble in time and effort. But if we want national TV broadcast or cable dissemination (many cable channels are equally picky) we need better. Analog conversions stand out as visually and aesthetically awful, and often have to be replaced.

A lot of filmmakers can’t afford this and just give up. If we get this exemption, we can extract the right frame rate, aspect ratio, black level, etc. and just use them. When we make fair use, we only need short clips. We never convert more than we need. It’s not like we have a decrypted copy of a movie sitting on a hard drive for an intern to take home. It’s a lot of work.

Bruce Turnbull, DVD-CCA: Keep yesterday’s comments in mind, especially with regard to the standard for a class of works. Primary concern: viability of DVD-CCA’s technology. CSS enabled the development of DVD market and is critical to its commercial viability. DMCA was enacted with CSS as an example of technical protections available at the time.

These uses are commercial in nature, not educational. The educational exemption was deemed necessary for pedagogical purposes, but here we don’t have that same quality.

Almost all DVDs today do not enable Macrovision, so in the future one of those steps won’t be necessary for most movies.

We understand the limitations of MPAA’s presentation on camcording. The point being made was that the camcorder option has become a viable one in light of the development of technology both as to the nature of the screens being filmed and the type of cameras being used. Professional filmmakers shouldn’t have great difficulty in terms of sizing the image. We compared the result to what the film studies professors said they wanted to use in their class. (Actually that’s not true: Decherney doesn’t use the compressed QuickTime version to teach—he sent it in for display on the Copyright Office website.)

Also documentarians don’t have the same time constraints as educators. The film studies profs have 50-minute class times and make revisions to lectures the night before. Filmmaking is lengthy, and the filmmakers can use the alternatives. (Of course filmmakers have other constraints, as detailed above.) In each rulemaking, DVD-CCA has said it welcomes people to come talk to us about specific needs; no one has ever done so. The market should work this out by negotiation with DVD-CCA. (What does DVD-CCA propose to do? Can it authorize circumvention of particular works? Will it hand over clear copies?)

Steve Metalitz, joint commenters: The proponents have made a good effort to bring the proposal within the existing framework, in contrast to 11A. Still problems: Noninfringing use; alternatives; narrowing.

The Office needs to decide whether the prohibition substantially impedes a use that is in fact noninfringing—a consistent standard. Are clips in documentaries clearly noninfringing? Sometimes yes, sometimes no: Elvis Presley case—documentary was found not to be fair use. Not suggesting that Kartemquin is an infringer, but the office isn’t in a position to recommend an exemption unless it’s in a position to determine that the use is noninfringing. This is inherently more difficult when the basis for the claim is fair use, inherently a case by case determination. The proposal uses proxies: membership in organization or enrollment in film course. That is supposed to up the chances that the result is fair. But why does that make you more likely to make a fair use? In many of Decherney’s film programs, students apparently never touch a camera; we don’t know what they’re taught about fair use. (He’s conflating film production with film studies. It’s like conflating potterymaking with art history.)

Alternatives: One is licensing or nonobjection; the second is scan conversion/camcording; the third is use of other digital formats. It’s important to clear up that fair use is not the same as noninfringing use. Fair use doesn’t require permission, but a permitted use is noninfringing. If people who wish to circumvent can get permission, the test of the statute is satisfied because they can make noninfringing use. You can make fair use without obtaining clips. Corley again: fair use isn’t a guarantee of access to preferred techniques/format. You don’t need permission to make fair use, but you also don’t need to circumvent.

Time Warner: 368 instances in which they permitted/didn’t object (to what? They didn’t give clear copies). If lab fees are the cost of a higher quality clip, that’s not an impediment flowing from the prohibition on circumvention. Lab fees are sometimes charged by studios.

Scan conversion: We’ll look at Morrissette’s information and have tech experts react to that.

Final point on alternatives: the submissions overlook an increasing number of digital formats that aren’t protected by access controls used to distribute at least some of the material. Hulu and network sites: much of the video provided there is in the clear. Increasingly other digital formats will be accessible without circumvention.

Narrowing: We don’t think it’s appropriate to refer to public domain material, because no exemption is needed. We don’t think it’s right to refer to fair use. If that becomes an element of these exemptions, then we’re down the road to saying a noninfringing result is ok. That’s not what Congress authorized. Any exemption should have a necessity requirement: documentation of a good-faith effort to obtain the material without circumvention. Should clearly say that the exemption is limited to DVDs protected by CSS. And should be clear who can exercise the exemption. Defining exemptions by use and user is distressing.

David Carson: Who can exercise? What do you mean?

Metalitz: Exemption is drafted in passive voice. Is the documentarian the person who can circumvent? Or can his agent?

Carson: Reactions to proposed conditions—public domain, §1201 doesn’t cover PD material?

Quinn: You have a DVD. It has PD and non-PD material, and the whole thing is encrypted. That’s more and more common. Also: the idea that there are new digital sources—these things on the internet are not broadcast standard. They are incredibly problematic.

We educate on the Presley case all the time, expanding understanding of fair use. We are concerned with linedrawing, and the best practices for documentary fair use are about that.

Rob Kasunic: Give us some idea of what kind of PD material you need to get from a protected DVD. News reels? Why not go back to source?

Quinn: for certain old feature films, might not be available in any other format. We often will go back to source if we can. Historical documentaries have a big issue here. Other filmmakers use stuff from early days of film, old news footage: some is available and some isn’t. It’s often bundled.

Metalitz: Bundling occurs, but that didn’t justify an exemption in 2006. Circumventing access control on public domain material is not a violation of the statute.

Quinn: But breaking the encryption on the bundle is what concerns us. Also, the alternatives look like crap. When you’re commenting on culture, particularly on feature films: feature films are very sensual, very visual. Sometimes it’s important to preserve that quality so people understand why the films created the emotions or attitudes they did. It doesn’t have to be what you see in the theater, but it has to approximate that.

Turnbull: 1201 doesn’t cover public domain works.

Carson: OK, so what about the bundle to which CSS has been applied?

Turnbull: Yes, the DMCA applies to the bundle. But if you had a straight PD work, no prohibition.

Carson: So, there’s a consensus on your side that circumventing a bundled work to access the PD material does not violate 1201?

Metalitz: It’s not within the scope of this proceeding.

Carson: Answer the question?

Turnbull: Turnbull was answering the question as applied to a non-bundle. Your question is more complicated. And of course the “tools” prohibition applies anyway.

Carson: We’re not dealing with tools; that’s not productive. We want evidence of the magnitude of the problem: how often are PD works bundled and you can’t access them otherwise? In prior proceedings, we had a paltry showing. Maybe the situation has changed.

Another question: Metalitz argued that any exemption shouldn’t refer to fair use. But putting it in the proposal on the face of it narrows the exemption, because there are other noninfringing uses. Are you saying don’t mention fair use in an exemption, so documentary filmmakers can simply circumvent?

Metalitz: If in fact the use is infringing, it may still be a violation. Our concern is that by defining an exemption in terms of a class used by certain people in a certain way if it’s fair use, we’re concerned about the short (or long) step between 11B and 11A. 11B has elements attempting to serve as a proxy to ensure the use is noninfringing, which is the standard you’re supposed to apply. One red line you can’t cross is to say “circumvention for the purpose of making a fair use.”

Kasunic: Yet this is an attempt to narrow a noninfringing use.

Metalitz: If a documentary filmmaker who met these qualifications was going to make a movie, but ends up being an archival copy in a library, then would it not apply? It’s true, the only noninfringing use they’ve talked about are fair. But their burden is to show that the uses enabled by the exemption will be fair/noninfringing.

Carson: What about requiring a good faith effort to obtain material without circumvention?

Quinn: That’s one of those vague things. Who would supervise a good faith requirement? We make a lot of good faith efforts to reach people for licensing, and that becomes very difficult. We went to a lot of effort to find a copy of Sleeper. We’re researchers, but documenting it for a litigation purpose, making us vulnerable to a lawsuit, would make it very intimidating. In many situations we go directly to an artist and tell them even when we think it’s fair use. What kind of vulnerability would that requirement open us up to? We live with the fear of going back to the situation 5 years ago, which is that fair use was off the table because of fear of liability. Contracts required everything to have been licensed, the only exceptions being under the table/“don’t ask don’t tell.” That happened because the people telling us now to make a good faith effort were so aggressive that we thought we’d lost the right to make fair use as they threatened broadcasters. We’ve pushed back as a field and the broadcasters have some backbone. The alternative is damaging to our democracy.

Carson: what about asking permission? If they say no or impose unreasonable restrictions, you can circumvent.

Quinn: Fair use isn’t about permission.

Carson: 1201 has no fair use provision.

Quinn: If you have asked permission and have been denied, you haven’t weakened your fair use claim at all. The thing he’d resist would be a permission requirement. As part of professional conduct, it’s not bad to let people know what you’re doing. (Permission to do what? To circumvent? Do you have to ask DVD-CCA and the copyright owner, or will just the copyright owner’s permission suffice? Or is this permission to use a crappy copy a substitute for circumvention to get a quality copy, which still has the same problems?) Fair use is not as fuzzy as it used to be, at least in our field.

Carson: Can you circumvent in such a way as to get only a short clip?

Morrissette: We do it every day with non copy-protected materials. There are several software programs that let you mark an in point and an out point; it makes a new file. There are programs that don’t require you to copy the whole disk. We never have a whole copy sitting around. We only take what we need.

Turnbull: His understanding of how these programs work is that they allow you to play back the movie, decrypt it, and store the entire thing, which you may then later mark to only use 30 seconds. You can’t on the fly decide only to decrypt 30 seconds at the 90-minute mark. (This is wrong, by the way.)

Quinn: The point Morrissette is making is that these programs could copy the whole film, but the original DVD is still encrypted. In our field, we don’t take the whole thing, we take the piece we need; otherwise it creates storage burdens and it’s just not necessary to take more than what we’re going to work with.

Carson: Assuming it’s possible to decrypt only what you need, would there be any problem with including a condition that you decrypt only so much as you need?

Quinn: No problem.

Turnbull: That’s the kind of restriction we’d like to see if you go down that road.

Kasunic: Are we talking about software that documentary filmmakers get? Or would it be possible for the DVD-CCA to provide a key to a limited portion of a DVD?

Turnbull: No, that’s not how it works.

Morrissette: It has to do with the user. If the organization only pulls out the clips we need, we will never have a copy of the whole thing.

Kasunic: What could you do for documentarians if they’d come and asked you?

Turnbull: He can’t say. But if someone had asked to license the technology such that it does X (what is X?), we would consider it, but he can’t say they’d agree or what conditions they’d put on it. We’d prefer that dialogue rather than a widely available exemption.

Kasunic: DVD-CCA couldn’t help with the underlying content, though, right?

Turnbull: Right. You could definitely get tripped up.

Quinn: That would be problematic. Ownership should not determine what you can use for fair use. If your concern is that we’re taking unencrypted pieces, then work with us and we’ll make sure we erase the pieces when we’re done. They always say “there must be a marketplace solution” but this is a fundamental free speech right. It gets complicated to go ask. They start asking you for publicity rights, etc. Fair use doesn’t require any of that. We have an interest in not creating a situation in which the exemption is misused to steal copyrighted material. And if we’re creating a problem, we’ll work with copyright owners.

Turnbull: §1201 has been upheld against First Amendment challenge.

Carson: Another condition—only available when the access control is CSS. Is that acceptable?

Morrissette: Yes.

Copyright Office DMCA Hearings: Q&A

Rob Kasunic, Copyright Office: Is there any way of distinguishing between the different types of uses we’ve seen? The film exemption was fairly narrowly tailored because of particular pedagogical needs of film professors to show aspect ratio, angles, etc. only available on DVDs. Not seeing the same level of necessity with all the examples here.

Decherney: He’s convinced of the need beyond media studies. Facial recognition, medical staff thinking about patients; sound; body language; substantial similarity in infringement/de minimis cases—clear that you need a high level of image. Is there a catchall other than disciplinary status? He can’t think of one. A necessity standard is too abstract. Who determines that?

Kasunic: But if necessity formed part of the basis of the last exemption, and now we discard it, aren’t we in a different environment? More towards a class/use exemption.

Band: Aspect ratio etc. were examples of the kind of sharpness of image, the quality you need for effective classroom use. There may be some cases where you’re talking about general plot it’s less important, but in many situations quality is important, or where the lack of quality distracts from the ability to understand what’s going on or to pay attention. People are used to high-quality images. Blurry images distract from the educational message. Largely because of how the MPAA et al. have changed our expectations, we need that quality across the board, or it just doesn’t work in the classroom.

Kasunic: But use of older films were being shown in some of these works. Why were they included?

Band: Those are legacy materials, and they were distracting—when you see an old B&W movie, you think “that’s kind of fuzzy.” (I agree, Kasunic is talking mostly about the Texas example, which was explicitly offered as an example of materials that no longer worked because students didn’t react well to them.)

Decherney: What about materials only available on DVD? Classroom time devoted to shifting disks—that was important in 2006. Quality was not the only issue in 2006.

Attaway: A camcorder version of Decherney’s example would have been fine, because he’s just lecturing about the use of digital v. live action.

Decherney: He might have agreed until he saw it in lower resolution, the form displayed here. Yoda’s ears are important to the scene he analyzed, and they weren’t very visible here.

Hobbs: The importance of context: it’s one thing to work in a place where you can turn off all the lights with one button. If you work in a public school where the blinds are broken, your experience is different. Image quality needs to be superior for it to even be visible when you’re working on bad equipment, as many teachers are.

Kasunic: Should we take conditions into account in a particular school? Hobbs testified that schools disallow access to YouTube, which would seem to be an important component of media studies.

Hobbs: Well, you need to look at clear images to be able to ask students—grade 4, 7, 10—what techniques are used to get your attention? Schools use filters for a variety of good reasons. YouTube is bad, especially if you have a bad monitor. Where a 32-inch monitor is the standard in the corner of the room, as in most schools, the only presentation method that works is DVD.

Kasunic: Additional content contained only on DVD—in terms of quality from alternative means, is that kind of quality something that would be acceptable?

Decherney: The MPAA has better interns than 3 years ago; this is a better camcorder clip. There were still issues. One, the camcorder used telephoto lens—noticeable distortion, always will be. Still muddy/blurry/bleedthrough, and a red cast. Showing dark scenes, a lot of detail was lost. Obviously, don’t always need absolute highest quality, but doesn’t know how to craft that into an exemption: a necessity standard is too abstract.

Kasunic: Is higher quality necessary? You didn’t focus on particular aspects.

Decherney: He was hoping to show that two kinds of images were used that were supposed to look similar, but didn’t—CGI v. man in silver suit. In high quality, you can tell the difference. (Kasunic says he could tell the difference here.)

Kasunic (at the copyright owners): In many cases, a camcorder may be sufficient quality for many uses; if there was a way to take away impediments by using a computer instead of a separate camcorder, would that be sufficient? He showed a clip taken with SnapZ or maybe SnagIt. If we allowed that, would that mostly suffice?

Decherney: this would be acceptable in a tiny percentage. It’s distorted not so much by the pixelation but by the frame rate—like a silent film played at the wrong speed. It’s also a potentially infringing technology.

Kasunic: Aren’t film profs more likely to have the kind of equipment the MPAA is talking about? Isn’t filming part of film studies?

Decherney: No. It depends on whether you offer production courses. Many people teach film studies, not film production.

Jackson: The separation of production and the content of film studies happens on many campuses. Production is often in arts & humanities—there’s a digital divide on campus between humanities and the “big money.” No UMd profs have their own equipment, though the language media lab tries to help people out. A central facility to do this capturing would be impossible—too many professors, too many possibilities.

Rife: As a teacher, she’s seen people get lower grades for pixelated images. A teacher should respond to quality. If high quality is a sign of hacking, that’s a problem.

Kasunic: That’s not our fault—if teachers are imposing undue restrictions on students given the law.

Rife: Writing teachers care about quality. Don’t go down a road saying that student work doesn’t need to be high-quality. That’s unjust.

Dave Carson, Copyright Office: Can you explain what you mean by “writing”?

Rife: Writing is broadly defined: National Council of Teachers of English definition—writing isn’t only alphabetic writing. Writing includes montage; it could have text or not.

Skalbeck: Tried SnagIt and tried with 3 different DVD playback technologies to duplicate this with Se7en. He got a blank screen with each. (Kasunic says this can be fixed with configuration.) But Vista is trying to lock down the delivery of information. He tried higher end capture software, Adobe Captivate—he was able to capture a low-res version. But it doesn’t allow simultaneous capture of sound. He tried and is not convinced that the software or the OS guarantees the ability to use SnagIt as a substitute for the next three years.

Kasunic: You don’t need to move to a new operating system if moving would prevent you from making a use you want to make. (And you should hang on to your VCR, apparently.) The software capture essentially does what a camcorder does. If this tech was doing effectively what the camcorder does, removing some of the obstacles, would that be okay?

Metalitz: We’ll look at the tech.

Kasunic: If there are capture technologies other than a video camera, that may alleviate the educational concerns.

Band: This is surreal. Either the quality is equivalent or it isn’t. If it isn’t, as we’ve seen, it’s not enough. If it is, the DMCA is irrelevant and has no speed-bump effect at all. Another question: If we’re concerned about normative behavior, and we don’t want to encourage circumvention—ignoring the fact that we live in this sea of circumvention, and people here are trying to do the right thing—so instead, we want to encourage camcording? Talk about normative behavior: the MPAA has been going around getting states to pass laws against camcording. Put the MPAA demo on YouTube! Why would you want to make this so difficult? Why go through all these convolutions, ignoring the extent of infringement that occurs regardless? Why encourage camcording or encourage instructors to break the law? To encourage normative behavior, tell them to circumvent for fair use.

Turnbull: You don’t want to have the circumvention tool become something that is available and out there in the legitimate marketplace. We’ve failed to prevent availability, but the tool shouldn’t be ubiquitous and accepted. The use of the camcorder for the limited purpose to make what is stipulated to be a fair use does not threaten the technology; it allows fair use but doesn’t threaten the technology.

Attaway: Convenience simply can’t be the standard. It’s not just educators and professors that have the ability under copyright to engage in fair use. Everybody can. If inconvenience is the standard, everybody should be able to circumvent because everyone is entitled to engage in fair uses. That would void the circumvention prohibition.

Band: It’s not just about inconvenience.

Attaway: Even if this utility did nothing more than what a camcorder does, under 1201 if it is marketed to avoid, bypass, remove, deactivate or impair a tech measure it’s still a circumvention device.

Carson: We’re trying to get that evaluation out of you folks.

Hobbs: Teachers want to make lawful noninfringing uses, and to help their students understand their rights and responsibilities under copyright law. They want to help students distinguish fair use from pirating. We’re on copyright owners’ side: we think that if we enable unlocking CSS for fair use purposes, it provides the perfect teachable moment to understand the difference. Teachers/students are ignorant, and fed propaganda misinforming them about copyright. Students don’t need to go through decryption to pirate—that’s readily available. What we have now is erosion of respect for law. We’re here because we’re deeply concerned that without enabling students to make legitimate noninfringing uses, erosion of respect will continue. Students and teachers want to respect copyright and understand the desire to limit copying, but we also respect our fair use rights. You say you don’t mind fair uses, but you think access to the tech will destroy your market. To the contrary: we can help all Americans understand the distinction between fair use and piracy.

Kasunic: Use in legal/medical education: to what extent is variation in quality important? In a couple of clips, they’re available on Benedict.com.

Skalbeck: he doesn’t know all the sources. He bought the DVDs. Quality is particularly important where the question is substantial similarity—what does the chair in 12 Monkeys look like? Also in Se7en where the lighting is dark. You could get across some of the points with lower quality.

Kasunic (to opponents): How is one to go about figuring out if content is available from other sources? For example, things go on and off hulu.com.

Metalitz: We suggested that limitation on any exemption because you’ve used the standard before in the ebook context. It’s true that there’s a reasonableness question. You’ve put reasonableness into the dongles exemption, for example. A lot of these examples are on DVD. A lot of TV is in the clear, so you wouldn’t need to circumvent to get them. Hulu and network websites are sources. People who are reasonably savvy would know where to look for an unencrypted digital version. You couldn’t be absolutist. But there should be a necessity standard; if an unencrypted version is available, no exemption for you.

Kasunic: To what extent are there works only available in Blu-Ray?

Attaway: We don’t know of any.

Decherney: The question was whether an exemption should be restricted to DVD: sometimes Blu-Ray is better. Sometimes people teaching media classes teach from videogames. We don’t want to discriminate. There’s a range of media, and a range of quality.

Metalitz: That points out the slippery slope when you start talking about quality. You can’t go into a theater and take a copy of the print. The question is not optimality, but enough to meet the legitimate pedagogical needs of teachers, and camcorders meet those needs.

Corsin: Last time around, we concluded that for certain uses, best quality or even really really good quality is what you need. Assume that we still hold to that conclusion. Now Blu-Ray is out there.

Decherney: The 2006 exemption wasn’t limited to DVDs. It covered AV works. As far as he knows, it hasn’t destroyed the market for Blu-Ray. Extending it would not do so either.

Carson: Do you know of any profs who’ve circumvented Blu-Ray?

Decherney: No. He’d like to but doesn’t know how.

Metalitz: We continue down the slippery slope. Videogames are new! (The exemption covered AV works, as was just pointed out.) Every single example was circumvention of CSS on DVD. The Office didn’t conform the exemption to the evidence, but the evidence now is limited to DVDs. The statute requires a finding that people are now impeded in their ability to make noninfringing uses, or that they’re likely to be impeded in the next 3 years. We are seeking a narrowing of the existing exemption in that regard.

Attaway: The competence of the person doing our demo improved markedly, but aside from that technology has improved markedly. We need to take another look at the exemption to determine if it’s still justified in light of today’s tech.

Kasunic (to WB): Issue about permission requests: it seemed like the letters submitted with WB’s testimony initially required conditions for WB’s permission, including conditioning WB’s lack of objection on obtaining permission from the persons appearing in the clip, which may possibly come from SAG. Later WB simply said it was only disclaiming its own rights. What’s going on with that? Isn’t it an additional hurdle on the permissions process?

Aistars: As we submitted our testimony, we provided you the only examples that had come in. The criteria in the first letter informed the requester of the criteria for the §110 exemption. The statement that WB doesn’t necessarily control all the rights is simply a statement of fact. Our current practice is now not to condition permission on obtaining other permissions, but merely to make clear that WB is only waiving WB’s rights.

Carson: So, a prof asks for permission to use a clip. How quickly can one anticipate a response.

Aistars: We rarely get those requests. Typically we send out a standard letter with the §110 requirements, and that WB waives whatever rights it has (which it doesn’t have any under §110, but whatever). Depends on whether the key person is in the office; most are issued the same day they come in or the next business day.

Carson: Let’s assume that if you were to write to a studio to ask permission, you’d get a response within 3-5 days.

Hobbs: Huge obstacle—in the course of a single day long staff development program, I might use 30 clips. 30 letters, 30 pieces of paperwork. For K-12 teachers, it’s worse. When they explore that option with students, just finding the right address and the right contact person is a challenge.

Decherney: Agrees—finding who to ask is a problem.

Carson: There are only 4-5 studios, though.

Decherney: That’s not true of film studies—major studios produce only a fraction of the films taught. Descendants of rights holders are at issue.

Band: Foreign films: add a layer of complexity. But remember the statute says: is there an effect on lawful use? If the status quo ante was free, unrestricted use under §110, then having to ask permission is an adverse effect under the statute.

Aistars: If you’re working in the US, someone has the US rights, and typically it’s a logo at the beginning of the film. Typically you don’t have to contact five layers.

Jackson: Has experience with performances on campus. We use traditional sources to find appropriate rights. But time after time, for international film festivals etc., we find holes where we can’t just find the rights—we use film industry sources and rights clearance organizations, and often there’s still nobody. We find a former rights holder and never get a response back, because we can’t find the right person. We always need 5-6 backups for our film festivals, and it happens more often for the important, unusual films we want to teach than for the ones available at Blockbuster.

Also, note that non-film studies people are not used to trying to negotiate film rights. Teaching is so serendipitous that in a week there will always be something that it would be useful to add. Those people aren’t set up to look for rights week after week just in case. He has a list of 100 classes teaching visual culture that want to use 10 clips a week, and they are none of them taught by film people. It’s impossible.

Turnbull: 3-5 day turnaround is something that is often possible long in advance of actual use. There may be a number of different solutions to the issue that need to be publicized.

Carson: So you’re suggesting that permission can sometimes be excused. How do we write that into an exemption?

Aistars: Not suggesting that’s a first step. There are uses such as the camcorder where you’re not circumventing; it’s a usable clip and can illustrate many points. It can be edited with other clips; no need to contact us.

Metalitz: Did provide a proposed revised exemption as a starting point.

Turnbull: Reasonableness is not an unusual standard.

Decherney: Reiterate the point about spontenaity and the ability to rework lectures the day of the class, which happens to teachers all the time. Students are also on the table. If we think about students, the impact of a permission system on them for doing coursework would be horrible. Also, don’t take the censorship question too lightly. The documentary filmmaker analogy is a good one: they’re often turned down in clip requests. Anyone who’s ever wanted to use a clip from The Simpsons gets a letter from Fox turning them down. Students asked ESPN for rights to use a clip and got a response that because the students couldn’t prove their argument that permission was denied.

Band: Reality. Big decentralized institutions with hundreds/thousands of faculty members. A lot of them are using this content, and more want to do so. They’re not all lawyers, and don’t understand the nuances of copyright, let alone of paracopyright. To have a workable, practical solution for these various people making spontaneous decisions, we shouldn’t have two sets of rules (one set for film studies, another for everyone else) and we shouldn’t have other layers of complexity/nuance: did you search enough websites? Is your use of sufficient quality to need circumvention? What’s realistically going to happen? Let’s come up with a rule everyone can follow, as opposed to a contorted rule that just pushes people to illegal content. Bottom line: teachers are using this material in their classes. Why not make it work, instead of making it difficult?

Aistars: Equally unreal to suggest that we should legitimize an illegal tool.

Band: We’re here to get an exemption. We want to do it legally. We don’t think camcording is good enough, but even if it were, why is that a desirable result?

Aistars: The Office doesn’t have power to grant an exemption to marketing those tools.

Band: And yes, this is a farce and a sham.

Attaway: Don’t rely on Band for reality. Look at the record. Censorship: there is no evidence of censorship in this context. The proponents have an ideological aversion to requesting permission. They think lit profs don’t need permission to use quotes in class, so they shouldn’t need to license. (Um, that actually is true.) But that isn’t the statute. A permitted use is a noninfringing use, and if available vitiates the need for the exemption. Three anecdotes of censorship, none involving classroom use. WB’s submissions show that they grant permission even to show works in an unflattering manner.

Metalitz: Doesn’t understand the inability to copy someone’s speech as censorship. That’s not how courts interpret the First Amendment.

Carson: Metalitz said all these uses were noninfringing. Does that include uses by students?

Metalitz: Not shown many uses by students, but yes, the general types of uses by students are noninfringing.

Carson: Assume we are where we were 3 years ago about Decherney’s exemption. Now we look at Decherney’s students, whose projects are on the same topics on which he’s lecturing. At least some of them have exactly the same needs, right?

Metalitz: Two main concerns. One, exponential expansion. 20x as many people have the ability to circumvent. This gets to Turnbull’s point about normalizing the behavior. Decherney is respected and admired, but he can’t control his students outside his class. If they use the exemption to copy an entire movie in the clear, then make clips, then they still have the clear copy on their computer. (And this differs from the camcorder … how?) It’s not the same as Decherney having it on his computer. It further undermines the prohibition.

Attaway: Why stop at students? Why not anybody?

Carson: We’re trying to find a particular need.

Attaway: Students is so far down the path that in 3 years you’ll have a hard time stopping there and not allowing any fair user in. And then you have a standard that circumvention is okay if you’re engaging in fair use, and that was clearly an issue in 1996. That’s not the law.

Ben Golant, Copyright Office: Then what about extending the exemption to high school media studies?

Attaway: Then you’ve made my point.

Decherney: In his experience, students are no more prone to unethical/illegal conduct than faculty. There are no known abuses of the exemption. Size: still very limited. Students in media studies are a small percentage. A 1201 exemption is not a license to violate copyright law. If a student is sharing a full copy of a Hollywood movie, the laws still apply.

Kasunic: Focus on the particular factors the Librarian needs to consider, including nonprofit archival preservation and educational uses, and the effect on teaching, scholarship and research. Keeping within the realm of students is at least a favored area.

Attaway: The question is still where you draw the line. High school students have a legitimate need to engage in commentary and fair use. And individuals do whether they’re in school or not. (Yes. Yes, they do.) Decherney’s response is: just rely on the copyright law, and that’s what he’d like the law to be. That’s not what Congress did. That’s the law, like it or not. (Though Congress also provided for exemptions on a proper showing of harm to legitimate uses; that’s the law, like it or not.)

Kasunic: Go to §110(1)—it allows performance/display by instructors or pupils. Many of these uses deal with in-class teacher or student use. Isn’t that a basis for extension?

Metalitz: They may be noninfringing uses. But what does it do to the integrity of the provision to go from a relatively small number of professors to thousands of students? Be careful about broadening the universe of people entitled to take advantage of this exemption.

Hobbs: We see the other paradox. Say you don’t broaden the exemption: Then we tell students—“do as I say, not as I do. You aren’t entitled to the privilege I have.” That perpetuates a “grab anything and go” mentality. We can’t help students distinguish between piracy and fair use without helping them put their hands on the distinction.

Metalitz: This isn’t the only instance in which students and teachers are treated differently.

Jackson: Our students know a lot about new tech, assisting professors.

Decherney: It’s possible to stay within the confines of §1201 and still open up a class that includes professors and students. A lot of fair use is being choked off by anticircumvention, but using a class of students is a way of only helping some of that and of limiting the use and the users.

Carson (to Metalitz): Joint commenters suggest a number of limitations, including a requirement that no digital copy without access controls is available. That assumes that all digital copies are created equal. YouTube copies are digital, but they aren’t very good on a big screen. Don’t we have to be more nuanced?

Metalitz: Sure, not all digital copies are created equal. It gets back to the question of whether we draw a line on quality. How many pedagogical purposes can be met without circumvention? It’s not wholly insufficient to show lower quality versions.

Carson: yet your proposal bars Decherney from circumventing, even if he needs to show details of Yoda’s ears, if the YouTube version is available.

Metalitz: He could use the camcorder version. But you could also refine our distinction.

Jackson: Not only are not all versions created equal, not all distributors/rightsholders are created equal. Educational distributors usually have clear rights and contact points, and some support this exemption.

Golant: What if any harm has come from the exemption in place?

Aistars: We have no way to tell whether people are using the exemption properly.

Metalitz: Opaque to us. No cases of abuse to bring forward.

Attaway: Our concern is erosion of the principle that circumventing a technological measure is against the law. Erosion is going to be slow, and we can probably never empirically prove harm, but we would be harmed as more people feel they have a right to circumvent and that it’s not against the law. Technological protections allow us to make our movies/TV available to millions of people who never had them before in the form/convenience they have. Maintaining DRM is essential to our business.

Chris Weston, Copyright Office: Clarifying question about permissions and the USC project. Are we envisioning a situation in which a person writes and asks for permission to circumvent? Or does a person ask for a high-quality clip?

Aistars: The film professor marks the clips and they’re automatically provided. There’s no interaction with the studio. With respect to current experience, it’s not something we often get, probably because people are getting access to clips in other ways and they don’t think they need to contact us. Usually the letters say “we think this is fair use; do you agree?” We don’t opine on fair use but say we have no objection. Once, we provided a clip to a professor.

Carson: If you had a dozen requests a week, you wouldn’t provide that level of service, right?

Aistars: Right. But usually the person contacting WB has the clip in some manner—we don’t inquire how.

Carson: Do your “no objection” letters cover circumvention?

Aistars: We’ve never been asked. Taking into account the camcording demonstration, there are ways to get usable clips. She’d anticipate the educator would make her own assessment of using the camcorder as fair use and WB would never hear from them.

Copyright Office DMCA Hearings: Opponents

Steve Metalitz, Joint Commenters/9 big copyright owners: We’ve seen in the submissions many examples of educational uses of commercial AV material. We have no objections to virtually any of these uses. We do object to the Copyright Office granting permission to circumvent access controls in order to make these uses when a host of other alternatives are available that wouldn’t put our valuable IP in the clear and at risk. So put aside whether these are good uses or bad uses. The question is how you get them. We want Mrs. Sheffler to be able to show her 2-minute clips; we want the police cadets to see body language.

Suggestions for narrowing the existing exemption: if the Office finds the burden of persuasion met, the joint commenters don’t oppose the existing exemption. But the evidence still is about DVDs protected by CSS, except for stray examples, and any exemption should be limited to that. Second, should only apply when truly necessary to circumvent. Specifically, when there is a consensual/permissions path is available, the exemption should not apply. “Necessary” has been used before. Also: all existing digital copies must contain access controls. This isn’t an unworkable standard, and has also been used before. You can’t circumvent if there’s a reasonably available alternative means that doesn’t require circumvention. Any exemption should be limited solely to the purpose of creating clip compilations. And it should specify who is allowed to engage in the circumvention: now that exemptions are defined by uses/users, clarity is key. We disagree that it should be extended to students. That’s an exponential increase in the universe of people entitled to use it and a big step towards circumvention becoming normative behavior, which we dislike.

Briefly, for the record, on SnagIt: Rob Kasunic played clips from DVDs he’d extracted with SnagIt, and the question was what the joint commenters thought of SnagIt. As far as Metalitz knows, that was the first mention of SnagIt. A response requires a full understanding of how SnagIt works and how it reacts to CSS. The commenters think it’s not clear whether it violates 1201. They strongly believe that proponents of exemptions haven’t satisfied their burden that 1201 has a sufficient adverse impact on the noninfringing uses they wish to make.

Alternative means are available satisfying legitimate pedagogical needs. Camcording excerpts will work. Permission/consent is available. Not in a position to give views on SnagIt today.

Fritz Attaway, MPAA: We have no issue with the proposition that clips are an effective educational tool. The issue is whether movie clips are readily available without having to engage in circumvention. Jon Band pointed out that the circumvention utility for CSS is readily available. We all understand that. Nonetheless, CSS has been an extremely effective protection measure because it’s inconvenient and the copies it produces are not always of optimum quality. That’s what keeps most people from illegally using a circumvention utility. That’s what makes CSS effective. If you accept inconvenience or lack of optimal quality as justification for circumvention, you basically void the anticircumvention provisions of the DMCA and frustrate the intent of Congress. Convenience/quality shouldn’t be the standard. The standard should be whether film clips are reasonably available without circumvention, and our testimony is that they are.

The Second Circuit has said that we know of no authority for the proposition that fair use guarantees copying by the optimum method or the ideal format. The Office has repeated the same thing. Convenience and optimal quality are not the standard. The vast majority of AV works are available in some form in the clear: VHS, broadcast, cable, satellite, frequently the internet. There’s no justification/need for a DMCA exemption for those. For material that is not available in the clear, or when it’s not convenient to access that material, there’s another way: by taking screenshots off of a TV or computer monitor. The Second Circuit and the Copyright Office have mentioned that as a legitimate, effective alternative.

His colleague Dan Seymour will show that readily available, affordable equipment can easily produce camcorder clips comparable to those we’ve seen today.

Seymour: Played a camcorder demo. Tripod to minimize shaking. Focused on a flat-screen TV monitor. Captured audio directly from DVD. Can get multiple clips from mutliple disks this way. Completely dark room. Clip from some Harry Potter movie, including subtitles. Also showed a camcorder recording taken from a computer monitor. Compared to a DeCSS version from Professor Decherney, which had different coloring but appeared roughly comparable in quality (though Decherney objected that this was not the file he shows in class, but a file that had been reconverted for internet display).

Standard consumer Sony camcorder, $900 HD camera—don’t need HD for a standard DVD, Seymour said. The monitor was $300.

(What about the flatscreen TV? What about the space required to get the camcorder an appropriate distance away, because it wouldn’t work at a closer separation? I don’t think my living room has as much space and I can’t think of an interior room (that is, one that could successfully be made completely black, also required to get that quality) at Georgetown Law that does.)

Universities have better equipment than we used. (Query: does the Lansing Community College?)

Attaway: It wasn’t that hard to set up and make the recording. (Was this the first try?) It may not be as easy as using a circumvention tool, but it is pretty easy. Convenience simply cannot be the standard.

Bruce Turnbull, DVDCCA: Our interest is particular to the preservation of CSS. That’s what 1201 was principally aimed at. When you consider exemption requests, ask that you start with that proposition in mind. This proceeding is intended to be a failsafe, not the ordinary course.

2006 decision to define a class based on use/user was a mistake. You should go back to the previous understanding of the law and avoid a can of worms.

To the extent that the 2006 interpretation is maintained, we don’t generally impose the renewal of the exemption or the inclusion of libraries where the profs teach, though it should be limited to cases in which other means of achieving professors’ goals are unavailable. We do oppose the expansion of the exemption for a number of reasons.

Proposals would exponentially increase the current exemption, and exponentially increase the risk to the viability of the technology. Educators at large do not all have the same pedagogical needs; media instructors are concerned with image qua image. There are alternatives—camcorders; for a number of the requesting professors, the Pioneer player would be an adequate alternative (demonstrated in 2006)—it allows queuing of DVDs to several different places in a particular disk. Where a single disk is at issue, that player is a perfectly good substitute. A percentage of the uses discussed were limited to a single disk. A number of educators plan their courses in advance, and seeking permission is a full solution to their situation. The studios are in the process of setting up a movie server that will be available on demand.

Students: the proposed exemptions would confound efforts to administer and police circumvention. It would allow them to use CSS under the guise of class assignments. It would be hard to distinguish activity that falls under the exemption from those that don’t. Professor Hobbs says educators can be gatekeepers, but they can’t realistically monitor the exemption. And if students need to become familiar with manipulating AV materials—they can do so with sources other than encrypted movies, or they can use a camcorder. Expansion would undermine the tech/legal underpinning of CSS, the underpinning of the DVD system.

Sandra Aistars, Time Warner: Attention needs to be paid to the purpose and standard of the proceeding. She’s sympathetic to educational uses, and WB works to enable them, but the Office shouldn’t accept the rhetorical technique of “difficulty to anyone, anywhere, any time=exemption.”

The USC film project: on behalf of WB: WB has been working along with other MPAA members to facilitate educational uses of film clips by film professors. Decherney spurred us to work on this. Film profs could register and create an account for themselves, browse a full copy of each available title, and use a custom player application to select clips and submit a request for those clips. Clips would be made accessible to them either by way of download or secure URL. No charge is contemplated, and no requirement that professor or school establish that they have a copy of the film for which the clips were requested. We’re working with USC to develop a list of films/TV titles most critical to have available. Additional titles would be added over time. The goal: identify an ISP. Has an RFP out. Beta test goal is later this year. Admittedly, not up and running, and not all issues have been addressed, but there are good faith efforts to accommodate educational uses. To the extent an exemption is granted, it should be limited to instances where it is necessary and not where the film server is available.

WB also works with educators to enable uses of clips. Infrequent/declining requests from educational users—only 99 in 2007 and 38 in 2008—so there’s no evidence of demand for these clips. (Gee, why would people not bother to ask?) One instance this year, asked to supply a clip, and did so, absorbing the lab fees for this. Decherney calls it labyrinthine: it’s not a licensing scheme, but we will work cooperatively to get clips when it’s brought to our attention. As copyright owners, we do grant “no objection” letters to educational users, usually based on §110. They aren’t intended to be a new licensing scheme, just explanations that no license is required. We waive our rights to the fullest extent we can. There are others who potentially have an interest—SAG, actors. So we direct educators to appropriate contacts to waive those rights. We’ve had no feedback from educators that indicates that waiver has not been forthcoming. (Because they’d obviously provide such feedback.)

Concerns about censorship: There is no evidence of this. We did grant rights to a documentarian wishing to critique the depiction of African culture in popular media of the 1930s, including clips from Tarzan. (Wonder if there’d been the same result if the critique had focused on WB’s depiction of African culture in the 2000s?)

BDLive (apparently this was demoed in the morning session): demo of ways of adding narration, AV or audio, while playing back a copy of the movie. Can be used in the classroom or through a community screening function that can be used by other BDLive users. Editing suites are also contemplated.

Copyright Office DMCA Hearings

Exemption for educational uses, part 1 (posted in multiple parts because long, long, long). Sorry I didn't make it to the morning hearing.
Dave Corsin of the office began, noting the exemption issued 3 years ago: AV works included in the media educational library of a college etc. for media studies professors.

Peter Decherney, Penn: Existing exemption enables teaching more efficiently and effectively for thousands of students. 62% of faculty members in 2007 made clip compilations; the number now is probably much higher. The leading professional organizations have joined as copetitioners, demonstrating broad support in the field for renewal and expansion. None of the reply commenters opposes renewal or expansion of the exemption to full university libraries, allowing people who don’t have department libraries to take advantage of the exemption. But more is needed: lawfully purchased copies owned by a faculty member, etc.

The MPAA has proposed licensing a clip library with USC. This is interesting but speculative. No faculty at USC had heard of the venture; the USC deans didn’t respond to any inquiries. It’s too early to count this. Time Warner proposes that we ought to ask permission every time. This was offered as an alternative in 2006, and it still doesn’t work. Licensing in the classroom could turn into censorship: stockholders could ask why the company condoned or refused permission for use. Should a clip from Batman be allowed in a course on queer images in mass culture? In addition, licensing is currently labrynthine and confusing. One example: Time Warner told one professor that using a clip from The Wizard of Oz was fair use (true) but falsely told the professor that s/he still needed to get permission from SAG.

Joint commenters suggest limiting the exemption to cases in which all existing copies have access controls—this is an impossible condition. Sites like hulu.com, which allegedly allow clip creation, are moving targets, making it impossible to know if (1) availability will persist and (2) policies have change. In January, FX pulled It’s Always Sunny in Philadelphia from hulu without warning.

Exemption for student work is also needed: use of multimedia clips in student projects is a common practice, and students need clips for the same reason as faculty. 63% of faculty assign in-class projects using high-quality clips. Students need to use their studying time efficiently. And they need high quality to show the details they’re analyzing. Professors now assign visual essays instead of writing assignments; students therefore need high-quality digital clips. One colleague has students annotate clips as an assignment. Another: a student project on media violence and children. It was ineffective, not because it wasn’t well edited—the students used YouTube clips, and so they couldn’t show the power of blood spurting from a severed arm or the impact of showing a gun in a child’s hand. How do you grade a smart but ineffective project?

MPAA suggests that the increased scale will pose enforcement problems, though they admit there’s no known abuse of the existing exemption. Responsible faculty members would also be overseeing the assignment. Students could learn the boundaries of fair use and the DMCA.

In 2006, we only had evidence of media professor practices. Now we’re hearing from language professors, history professors, and many others of their needs. And if professors need it, K-12 teachers do too.

Jonathan Band, ALA, Ass’n of College and Research Libraries, ARL: The MPAA etc. concede they have no objection in substance to the media studies exemption, including expansion to DVDs in a general library. The only question is whether all classes should benefit. They assert that film classes are the only ones that need high quality clips. But sound quality is critical in language classes to allow students to understand; music and theater classes also require sound; nuances of communication in expressions and hand gestures are vital in sociology, psychology, and other classes.

Criminal justice prof: police officers need to develop skills in observing and interpreting behavior. Using professional video is a cost- and time-effective way of letting them practice—the scene leading up to the shootout in Tombstone is a great exercise for students practicing predicting violence and describing specific behaviors. Top actors are really good at nonverbal communication, making feature films ideal for teaching these skills.

Camcording as an alternative: proves too much. Why does the MPAA bother using CSS and supporting the DMCA?

Screencapture tech such as SnagIt: The quality isn’t comparable. Also Microsoft Vista blocks the implementation of SnagIt and similar tech.

“Permission” alternative offered by Time Warner is conditioned on getting publicity rights waivers from the actors; it’s not a real alternative.

Why object? These uses don’t harm the market. And, the exemption won’t affect the level of infringement. Indeed, content owners should proactively declare that they won’t bring DMCA claims against educational uses. They insult us by treating us as likely infringers not competent to use technology any 12-year-old can download from the internet.

Renee Hobbs, Temple Center for Media Education: Offers the “Media Literacy Remote Control” to introduce the idea of thinking critically about media—books, film, newspapers, magazines. What’s accurate and inaccurate? Who profits from this message? What values does it endorse? Media literacy is an expanded concept of literacy—the ability to share meaning through symbolic form, including critical viewing and response. Introduces students to analysis of authors and audiences, methods and meanings, etc. All media messages are constructed, and produced within particular contexts.

Middle school students spend 4-6 hours/day in screen activity, and 4/5 say no one talks to them about the media message they encounter. Moreover, we need to help students develop 21^st century literacy for a knowledge economy: analysis, critical thinking, ethical judgment about new forms of communication; and ability to work in groups.

A functional use-based exemption is necessary to build critical thinking and communication skills.

One critique: class of users too broad. There are 56 million students. 85% of middle-school students get some kind of media literacy education in the context of health class: critically analyzing the representation of alcohol and tobacco. Only 20% of secondary students do this in English classes, though it’s a growing trend. Most students will never take a film class in college; 50% of urban students won’t make it to college, so they need media literacy education in K-12 years.

Another critique: Other tech options exist. Schools are behind in tech. Schools don’t have the ability to hook up VHS machines to projectors. Decherney’s reasons for difficulty using non-DVD clips also apply to K-12 teachers. Students get distracted as the teacher tries to fast-forward past the previews on a DVD, which destroys the pedagogical effect. Many schools make it impossible to use video websites like hulu or YouTube because of filtering.

Example: Mrs. Scheffler’s High School English Class in Texas, where media literacy education is required: she wanted to analyze depictions of romance in popular culture and how they affect actual experience, using literature and contemporary film. Students would then analyze a personally relevant excerpt from a contemporary film or show and write an essay about it. She formerly used a clip video that she’d made to illustrate her form of analysis; but over time, her 14-year-old students no longer reacted to it because it didn’t show movies and TV with which they were familiar. She was unable to update it because of technological restrictions. Her students need the chance to reflect on how media depictions of romance affect their own understanding of relationships. But if she wants to use clips from Juno to illustrate how media messages work to shape our understanding of teen pregnancy, contraception, and responsibility in a 50-minute class session, she needs this exemption.

The language of the image must be a stimulus for critical reflection, not an invitation for hypnosis (Umberto Eco).

Jeff Clark, Consortium of College & University Media Centers: Support an exemption for DVDs used in face-to-face teaching in any discipline both in colleges and K-12 situtations. (4A according to the copyright, for those of you counting.) It should include DVDs that faculty members own as well as library copies. It should cover commercial DVDs subject to sale; licensed products are likely to be subject to contractual terms. Online content is often of lesser quality. And DVDs often contain content unavailable elsewhere. VHS releases of feature films have stopped; standalone VCRs are being discontinued. Dual VCR/DVD decks continue to be made, but their numbers are dwindling as well; it’s a matter of a year or two before their availability ceases. Diminishing access to software and hardware channels the availability to DVD or Blu-Ray; those are copy-protected.

Other testifiers have noted the limitation in the existing exemption on type of institutional users to a film/media studies educational library—doesn’t speak to the reality of institutional organization. Multitype libraries that house collections on behalf of departments are more common. Faculty often also use personal copies, or acquire them for an “informal” department collection using department funds. Those avenues of acquisition are no different as long as they’re lawfully made copies.

All content on the DVD—ancillary or supplemental along with primary—should be available for purposes of the exemption. Much of that material is unavailable elsewhere, even on the now fully obsolete laserdisc. It’s all useful to faculty—documentary supplemements often give historically relevant material, useful to humanities and social sciences, even when the primary film isn’t. This is especially useful with older films that include documents/archival materials of the period. Copy protection hasn’t really spurred the inclusion of these materials—they’re mostly included in DVDs for marketing purposes; consumers expect ancillary materials and are disappointed when they’re absent. For an educator, the supplements can be valuable as new content, even when the primary film isn’t.

All disciplines should be allowed to take advantage of the exemption: Multiple fields; literature can look at translation into film; subject-specific treatments can give examples of particular skills, historical situations, etc. Incidental aspects of a film or AV work can be used to illustrate set design, architectural studies, etc. Many other educational examples.

Pointing a camcorder at the screen has quality and efficiency problems. Quality is just as important to other faculty as to media education specialists. Fidelity and clarity of details matters in other disciplines—visual arts, humanities, nursing or other applied/physical sciences. The experience of support staff everywhere is that faculty are demanding on this account. Also, staff-intensive solutions like camcordering are difficult and expensive, and can’t be scaled to be part of education in general. Circumvention is a more efficient way of meeting needs outside of a tiny niche; practically, less efficient/effective solutions ghettoize clip use.

Every artifact is a potential object of study: a text. Don’t let anticircumvention take that away selectively.

Roger Skalbeck, American Ass’n of Law Libraries, Medical Library Ass’n, Special Libraries Ass’n (and Georgetown law librarian, whoo!): Supports exemption for curriculum-relevant uses by faculty members in classroom settings. Preparing students to diagnose patients, handle ethical problems, and deal with other practical problems is best done with examples, and the juicier—the more real—they are, the better. TV and movies offer many examples, but faculty need an exemption to make the relevant clips.

IP classes: may need to show examples of multiple works to clarify a point of law that no amount of words can illustrate without examples. Without clips, you get a poor-quality and often time-consuming, anti-pedagogical process that obscures the point of using the clips in the first place.

Examples: Ringgold v. BET: A scene from Roc: A poster of a quilt appears in the background. The creator sued; the court held this wasn’t de minimis use. Contrasting, a scene from What Women Want shows a pinball machine in the background; the court held that this use was de minimis. Showing students both helps students understand the difference; it might be pedagogically unsound to deny them this key information (the courts deciding the cases, of course, had the benefit of watching the key parts in high quality). Others: Devil’s Advocate: copyright lawsuit over sculpture copied in background; Se7en: copyright lawsuit over photographs copied in background; etc.

Another effective use of clips: seminar, The Law of 24, taught by a senior attorney in the intelligence division at the Department of Defense, focusing on the law of counterterrorism. Short clips from 24 served as a catalyst for classroom instruction. The exemption would allow similar courses, for example Medical Ethics using House, or Legal Ethics using Boston Legal. Complex subject matter, but clips can keep students engaged—and short clips/compilations allow focused discussion, instead of having the class be about entertainment.

UNC prof used The Verdict and Anatomy of Murder used clips to illustrate concepts about ethics for litigators. Another professor used clips from American Gangster to illustrate concepts of trademark law. Another prof (me) uses a clip from Homicide to illustrate the difference between the Baltimore Colts and the Baltimore CFL Colts (part of our discussion of the lawsuit by the Indianapolis Colts). Another prof uses a clip from Braveheart to introduce the concept of feudal estates. A psychiatric nursing class uses a clip from Tom & Viv to illustrate the rights Viv loses as a result of being committed to an institution. A number of other examples are also available.

His example DVD showed several clips, edited to reflect precisely the legal points being made—he made the point that, done efficiently, all the teacher needs to know is how to play the clip compilation DVD.

12 Monkeys: the issue is one of substantial similarity between a drawing and a segment of the movie. You need to see it in high quality to assess whether there is infringement. Se7en: whether a use is de minimis: it’s dark, poorly lit, and hard to see in the original—the issue is the use of black & white photos on the wall. Again, you need to see it in high quality to understand the nature of the use complained of. Anatomy of a Murder: research done in a law library, using the ALR. Shows the history of legal research and the relevance of secondary sources. The Devil’s Advocate: The sculpture behind the characters was at issue in a copyright suit. He needed to edit it so that it ended before a sex scene started; if you can’t edit, the surrounding material can be a big distraction from the pedagogical purpose. The Long Kiss Goodnight: A clip from the Three Stooges played in the background; the subject of a trademark claim—showing it allows you to illustrate the nature of the claim.

Carleton Jackson, Media librarian, U-Md College Park: Central AV research facility for the university and the state system. Part of the film/film studies working group at his university. Also a member of other organizations supporting the exemption. His is one of the largest & oldest video resources in higher education, opened in 1973.

You need multiple clips to teach media courses; you can’t and shouldn’t show a full film in a 50-minute class. You need to be able to compare same or similar sequences across multiple works; to incorporate clips into PowerPoints—that’s now a central teaching technique. Before the DMCA, our professors knew how to use clips and how to employ fair use. DMCA is a roadblock for media-literate faculty—it prevents them from doing their jobs legally and fully. There are no workable technical alternatives—it’s clear to any teacher that shuffling multiple DVDs doesn’t work. Inserting a disk and finding a chapter takes well over a minute and is time lost to teaching. We shouldn’t tie the hands of tomorrow’s educators.

Martine Courant Rife, Lansing Community College/Michigan State U: Studies the impact of copyright law on chilling digital speech. Professors and students care about copyright law, and want to do the legal/right things. But it can be very hard for them to understand what the legal thing is, and thus there is a major chilling effect.

Learning takes place in and out of the classroom. Students want to make sure they’re not creating infringement problems in their internships, for example. The exemption should not be limited to face-to-face teaching—if it is educational, it should be allowed if part of an assignment or part of digital teaching. Many classes are now online or partially online—don’t disenfranchise teachers and students working online. Also, don’t limit it to library collections: the community college has 2% of the books that Michigan State does. Michigan State has 75% more digital resources. Thus, the current exemption disenfranchises community college students. Neither the community college nor Michigan State owns popular recent movies, thus you couldn’t do a study of media representation in popular recent movies. Students should be able to use DVDs like they use books: if they’re lawfully owned, then the exemption should be applied. Teachers would buy DVDs if they knew they could use them in class.

Don’t conceive of students as passive consumers. They are active creators.

Permission as an alternative, as per Time Warner: The idea of permissions depends on a false, linear model of the writing process. Writing is not linear, but recursive. The writer revisits decisions and synthesizes. When you decide 3-5 days in advance what texts to use, permission is impossible to get. Realistically, does the MPAA want 1000 requests just from Rife’s own students each year? She has five assignments per class, and all of those would require multiple permissions if she could give clip assignments.

The objection from mere convenience: There’s a difference between convenience and normalcy. It’s not just “convenient” to type in a quote from a book (or, I’d add, to copy and paste from a digital document). It’s abnormal to walk away from the computer, find a camcorder, set it up, etc. The computer is the tool we create with now. The camcorder “solution” is like requiring someone to handwrite the quote she wants to use from a book, go outside and take a picture of the book, then bring the picture back into the house and hook it up and retype the quote—from the book that is sitting next to her computer. The DVD she owns and that is in her computer is no different.

Public Citizen seeks staff attorneys

via Paul Levy:

For the first time in more than five years, Public Citizen Litigation Group is looking to hire lawyers for permanent positions (that is, not fellowships).

Public Citizen plans to hire two lawyers, and will consider applicants of any level of experience. Newly hired lawyers should not expect the opportunity to work primarily in internet or IP. However, Public Citizen has a very diverse practice in the federal and state courts, including an extensive Supreme Court practice. The announcement/job description can be found on Public Citizen's web site.

My note: Even were times not tough, this would be a fabulous opportunity for a consumer protection lawyer.

Consumer Protection Conference: Dana Rosenfeld

The ABA Antitrust Section’s Consumer Protection Conference is coming up: June 18-19 at Georgetown. It’s going to be focused on issues of consumer protection, and it’s got a great lineup at a time when we can expect renewed focus on consumer protection enforcement at the FTC. (Disclosure: I’m helping organize the conference.) I wanted to introduce some of our many qualified panelists.

Today:

Dana Rosenfeld, who will be moderating our timely panel on consumer protection in financial transactions, practices at Bryan Cave in the areas of consumer protection, privacy and data security, and advertising. She represents clients before the Federal Trade Commission and State Attorneys General, provides ongoing compliance advice, and assists in the development of legislative policy positions and self-regulatory and corporate responsibility programs. She served as the assistant director of the Federal Trade Commission’s Bureau of Consumer Protection from August 1998 to October 2001. She played a major role in developing the FTC’s privacy initiatives, including the promulgation of the Children’s Online Privacy Protection Act Rule and the Gramm-Leach-Bliley Act Privacy Rule.

I asked Ms. Rosenfeld some of the same questions I’ve asked prior interviewees:

Q: How did you get into advertising law?

I began my career at the FTC in 1991 and was immediately assigned to work on the agency’s investigations of weight loss companies, most of which were resolved by administrative consent orders. One matter involved a weight loss clinic in California. Because the company was engaging in fraudulent practices, we sought and obtained a Temporary Restraining Order and Preliminary Injunction, and the company eventually ceased operations.

Q: What emerging trends in advertising law should advertisers be watching?

New forms of media, such as blogs, networking sites, “buzz” or “word of mouth marketing” are creating new issues for advertisers and regulators. In addition, “green” or environmental advertising is on the rise. I would expect the FTC to start aggresively pursing law enforcement actions in these areas among others.

Q: What is your advice for a law student who wants to practice in the field? Given that most schools don’t teach advertising law, what are the best courses to take?

I would recommend taking classes in Administrative Law, Legislation, Federal Courts and First Amendment. These will give students the fundamentals needed to understand basic concepts in advertising. In addtion, I would highly recommend an internship at the FTC or Attorney General’s office, or with a consumer group.

Retroactive copyright licenses and co-owners

James K. Rothstein, Unilateral Settlements and Retroactive Transfers: A Problem of Copyright Co-Ownership, 157 University of Pennsylvania Law Review 881 (2009):

Excellent summary of the arguments and counterarguments. I still disagree with the conclusion that Davis v. Blige was rightly decided, largely because I think we have different prototypes of the average infringement case in which a retroactive license from a co-author is offered as a defense. Rothstein thinks my favored rule would encourage willful infringement; I don’t think people calculate the chances of finding a pliable co-author and factor that into infringement decisions. Davis v. Blige is a good example: Davis showed up claiming to be a previously unrecognized co-author. Most of the other retroactive licensing cases fit the pattern: infringement (often alleged infringement that could also be read as a strike suit, see Silberstein v. Fox Entertainment Group) that seems accidental at most. Deterrence just isn't that fine-grained. Anyway, Rothstein does a good job of presenting both sides fairly, convincing me the question is harder than I thought.

Fantasy football and my fantasy TM law

CBS Interactive Inc. v. National Football League Players Association, -- F. Supp. 3d -- (D. Minn. 2009)

Held: Fantasy football statistics are just the same as fantasy baseball statistics when it comes to right of publicity claims, and thus use without a license from Players is protected by the First Amendment.

Although there was no separate false endorsement claim, Players argued that the possibility of false endorsement distinguished CBS’s use of football statistics from the fantasy baseball allowed in C.B.C. Distrib. & Mktg, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2006), for purposes of preserving Players’ right of publicity claims. The court found no genuine issue of material fact:

The printouts of CBS Interactive’s website fail to demonstrate specific facts that support the assertion that the manner in which CBS Interactive presents the package of player information could give the false impression of an endorsement. The manner in which the information appears does not demonstrate or imply any connection between the players and the advertisement such that one could mistakenly believe that an endorsement is being made. Indeed, as CBS Interactive persuasively argues, the manner in which the player information is presented is akin to newspapers and magazines, which routinely display pictures and information about celebrities, including professional athletes; however, “[n]o one seriously believes that the subjects of news reports are endorsing the company that provides the report” nor the products and services advertised by third parties who have purchased advertising space in the newspaper or magazine.

What always fascinates me about such conclusions is their conclusory nature, because even though the court is obviously right, normatively and probably descriptively, trademark’s tests have no obvious way of reaching that result. Thus the tests must be avoided.

See also this non-trademark footnote that courts deciding trademark cases would do well to heed:

Whether CBS Interactive used player information in a manner that might imply an endorsement can be determined by looking to the manner in which player information was used, without any need to consider the subjective strategy or intent behind the use. If the use of information implied an endorsement, the fact that the user did not subjectively intend to imply such an endorsement would not change the analysis. Likewise, if the manner in which the information is used utterly fails to convey the implication, it would not matter that the user subjectively intended to imply an endorsement.