Critical Legal Studies & the Politicization of Intellectual Property and Information Law
Panel I: Critical Legal Theory in IP & Info Law Scholarship
Peter Goodrich, Professor of Law and Director of Law and Humanities, Benjamin N. Cardozo School of Law
CLS keeps returning in different guises. A degree of necrophilia or transmutation. New generation. Moved from practice to theory to aesthetics. Move into the institutions. Studying the image and the virtual. Law relating to the image from Romans: if an artist paints on my palette, who owns the image? The artist because of the power of the image. Virtual means that authorship is in the origin, and also comes from vis/force and virtus/angel. The immaterial; the movement to what cannot be materialized directly.
Rebecca Tushnet, Professor of Law, Georgetown University Law Center
What I think of as my critical scholarship: First Amendment and copyright. I’ve written about transformative fair use and the way it can assist in shrinking conceptions of fair use inflected by the First Amendment; if the paradigm of fair use is the little guy angrily speaking truth to power, that fits into a First Amendment narrative but doesn’t protect many of the spaces in copyright that are also important to free speech, like the freedom to make private performances, various educational copying limitations, multiple copies for classroom use, etc. I suggest that pure copying can also serve First Amendment purposes, in access, in self-constitution, in communicating important messages to other people, as distributing the Bible does. Because pure copying does serve free speech purposes, the conflict can never be fully reconciled.
Copyright’s treatment of images—here I really do move from theory to aesthetics: a diagnosis rather than a prescription.
My other work: Organization for Transformative Works. What is it? Created to push back against commercialization of so called “user-generated content,” which is to say creative works made by people who love existing works; nonprofit; under US law.
Terminology: Organization: legitimacy versus the incredible diversity and non-organization of actual fans. Transformative: adopts the legal language of fair use, setting up authorial claims as equal or not subordinate to the claims of other authors. Works: for works, not for workers, even though conditions of production and communities of practice are vital to the actual creation of fanworks; separately, the idea of the work (instead of the story, movie, etc.) has important consequences for how creative activity is understood as implicated in but also apart from the so called ordinary operations of the economy—the making of chairs, cars, etc. Work gives dignity to fans who are often culturally disadvantaged, mocked for consuming the very things produced to be attractive and consumable. And of course consumption here means intellectual activity—watching, listening, thinking, and creating new things in response.
So what are we doing? Example: DMCA anticircumvention exemption hearings. Participated in order to explain what fan vidders do. Necessary claims to authorial genius (taken out of community)—example of Closer, a Star Trek vid that went viralsome years back. Have to identify works that are intelligible to outsiders and understandable as aesthetically and politically “good”—well done, legible critical message. We don’t believe that quality in that sense is important to fair use, but strategically we don’t get any exemption if we don’t convince outsiders that there are a substantial number of fair uses.
Second kind of quality: technical quality. Do you need to have good quality footage to make your critical uses? Can’t you just film the screen or use screen capture software? Use of technical quality forces us further into defending a particular aesthetic and also subjects us to someone else’s determinations about how good our messages need to be to deserve an exemption. Copyright Office disavows quality judgments, but is still making them in deciding that some people but not all people need more than screen capture to do their artistic or educational work.
Sonia Katyal, Joseph M. McLaughlin Professor of Law, Fordham University School of Law
Equality and access in digital contexts. Parallels worthy of exploration. Structural critique of IP deeply informed by CLS. Art. I, sec. 8: exchange—to promote progress, law provides exclusive rights. Private right for public good is key framing issue. Do IP rights always have to promote the public good? Extending copyright eventually doesn’t seem to do that. The question of how we construct the public good/social welfare is similar to CLS approaches to goods beyond economic efficiency: expression, freedom as a good in itself. Social relationships and dynamic entitlements about allowing access to others instead of pure exclusion right. Influenced by Lessig, Litman, Vaidhyanathan: critical information studies movement. Scholars steeped in other areas of scholarship before IP—Lessig was constitutional law, Vaidhyanathan from library science—far beyond economic efficiency model embraced by others.
Emergence of cultural critique of IP. The power of the image; the power of subversion, parody, satire in recoding established works. Intersection between CLS focus on minority rights and distributive justice and the way in which fair use scholars focused on the right of minorities to recode works—rap and jazz and creativity beyond the control of copyright. Tushnet on women recoding texts through slash, gender parody, etc. Scholarship unpacking the romance of authorial control and the way in which audiences can recode works. Questions like: who’s served by IP control? Who’s being excluded and why? Ann Bartow: areas of creativity, particularly women’s creativity, completely unrecognized by copyright law. Some success in that critical approach. Infamous Gay Olympic cases coexist with more modern cases defending gay activists’ rights to parody websites (Fallwell.com). Critical approach to copyright asks how entitlements are distributed and their effects on disenfranchised groups; use fair use to restore some rights.
Third: indigenous groups; traditional knowledge; new ways to define and manage intangible resources. Social relations to property: strong rights of exclusion give way to more malleable group rights/collective knowledge.
Open source: parallels to CLS’s institutional critique. Nomos & Narrative: the same rhetoric can be seen in activism/disobedience by groups like Downhill Battle, which organized the Grey Album protest. Have forced malleability.
Q: Cariou v. Prince.
RT: Transformative within context, even if not understood as new meaning/message by outsiders. AndyWarhol Foundation brief is fantastic on this.
Katyal: We live in a different world for uses of imagery. It was easier to tell who was David and who Goliath, commercial/noncommercial. We have structures suggesting clear boundaries but the reality is that when fair use expands it expands for both commercial and noncommercial entities. Well-financed artists can come along and appropriate work of less well-financed artists. Distributive consequences among artists. Art production as a system makes it hard to tell when things are commercial.
Goodrich: scholarship can give us facts: who is doing what to whom? CLS is vibrant/never faded in international law. Assertion of identities in oppressive contexts—all the way through to the Arab Spring.
Katyal: one big parallel is unmaking or recoding the idea of sovereignty. CLS was useful to pierce the sovereignty of a work; authorial control is indeterminate; audiences/third parties have power to interpret. Internationally, that’s similar. Piercing private and public sovereignty; fluidity in ability to reinterpret.
RT: power flows. Internationally: USTR goes to WIPO and gets anticircumvention language, then goes to Congress and says we have international obligations. Fluidity is not a clear win for anyone. It can be exploited especially by those with lobbyists; documentarians didn’t know that their fair use rights had been given up in a foreign country. Power is slippery: Ultraviolet/streaming media as the future; control will be moved so that again you as individual will only be hailed as a consumer of video, on demand, but not as a creator or an owner.
My thoughts listening to Katyal: 2009 DMCA hearings: Vividly recall question from Copyright Office panel: couldn’t we give an exception just for women and racial minorities? Put liberal commitments (diversity, property/control) into tension.
Q: Maria Pallante said that the author’s interest is the social interest.
Katyal: Doesn’t think that’s so. Copyright law can’t be authorial control only. Constitutional principles: First Amendment concerns over preliminary injunctions.
RT: work is valuable only because of the audience—the farmer and the railroad are both “responsible” for the railroad’s sparks that set the crops on fire. We learn that in law school, but copyright tries to make us forget that. Responsibility doesn’t mean a natural allocation of rights or responsibilities; it has to be a choice.
Q: What about using Citizens United to help rights of free speech in IP?
RT: Deven Desai has a good article on this for trademark. I am dubious that it will work because though the logic is very strong I don’t believe that courts will adhere to logic when it comes to IP rights, any more than they did in Eldred and Golan. “Copyright” proved a stopping point.