Friday, October 02, 2015

Notre Dame Roundtable on Drassinower, part 1

Notre Dame Roundtable, What’s Wrong with Copying? (Abraham Drassinower’s book)
Sponsored by the Program on Law and Market Behavior
8:40 a.m.-­10:15 a.m. Session I Methodology and Implications
           Mark Rose
Historical approach: rights to manuscript or to the “copy,” an intangible thing.  Drassinower reinterprets Lord Mansfield’s approach as distinguishing between the manuscript and the copy, which makes him in some sense a supporter of infinite common-law copyright.  But there remains an ambiguity in the old term “copy”—used to refer to a right rather than a thing, but also to a thing—this ambiguity persists into the 20th century.  But Drassinower is telling a philosophical story, not a historical one; he doesn’t need to understand things the way that historical figures did.
           Shyam Balganesh
Elegant and compelling.  Focus here on clusters of issues: Formalism v. realism.  Identify essential characteristics of a topic, then develop coherent approach.  Drassinower attempts this for copyright law/originality.  Foundational/middle-level principles.  How then do you determine the essential characteristics of copyright?  Compare to (claimed) empiricism of American approaches—knowledge is only ever discernible through sense experiences, rather than rationalism’s reasoned principles which claim they’re the only way of making sense of the world, though incapable of being empirically tested.  There is a spectrum between empiricism and faith, and Drassinower shows how you can do that.  (Compare Lemley on faith-basedIP.)
Internal challenges to his construction of rationality: (1) Institutional origin. Most efforts at internal intelligibility have been judicial/common law.  Common law isn’t “made” but “exists.” Maybe a legal fiction, but courts conceive of themselves as finding what immanently existed. Not clearly so with copyright.  Does the constraint of intelligibility carry over when the insitutional creator may not have intended the intelligibility Drassinower searches for?  (2) Static v. dynamic account of rationality: Drassinower seems to take rationality as existing cross-time. Within common law, some scholars suggest radical semantic evolution has occurred: concepts originally constructed the theory, but consequentialism takes over and the underlying semantics morph. Moral ideal comes through as cost-benefit analysis. Why not ©?  Originality may have begun with equal dignity of authorship, but why not evolution to a value-based conception?  (3) Compatibility: if we have © to promote authorship, institutional design features might value authorship too or might have instrumentalism in the granular features.
           Wendy Gordon
Rule of law that says no liability unless there’s a connection to the deep purposes of this law—result: unpredictability inconsistent w/ needs of notice that make law fair. It’s a consequential claim, but if you were behind the veil of ignorance, you should figure out if you want perfect fit/expensive system or normal legal budget/some lack of fit.  Most people would choose the latter.
Still: loves the book! The speakers we most want to distort the message of are those in power—speak in their own language. If © is about the ability to freeze one’s own language, no reason to accept it—right of integrity is an immoral right from the perspective of American iconoclasm. If we took seriously the notion the law should support preservation of speech in unchanged form, trademark would also be implicated, but Drassinower says that’s not expression.  Difficulty seeing shift to plaintiff’s expressive integrity as a value.
Can use Drassinower-like analysis in a way that doesn’t rest on desirability of freezing the speech.  Pay attention to whether defendant copied/performed plaintiff’s expression—it’s not a question of physical copying, but of duplication of speech for same purposes. Proximate cause/negligence analogy: P must show that the harm is foreseeable; proximate cause serves the function of relieving D from liability resulting from harm unrelated to the reason for the rule.  Example of a musical composition reused as wallpaper because of the visual beauty of the way the notes are placed on the paper.  Drassinower would say: no liability; Gordon would say: is protection worth it in light of uncertainty and other practical issues?
           Steve Yelderman
What he thought of as limitations and exceptions in Drassinower’s formulation look like internal limits, or not even limits at all—natural consequence of what copyright is. Not just a theory of fair use, but a theory of ©. 
A personhood right specific to the author against publication of previously unpublished work: the core notion of wrongfulness.  Even if the information is already out there, the violation of autonomy still seems to apply in cases of non-use like Google indexing that Drassinower would exclude as purely mechanical. 
How does the limited term match up with the idea of a personhood right? Why should copyright in unpublished works ever end, if this is not just a privacy interest.  Drassinower argues that published/unpublished works shouldn’t be distinguished in terms of whether further publication is offensive to the author’s interest. 
Glynn Lunney: Book talks about equality of speakers. Not always clear whether that means equality of opportunity or outcome. Less gifted may wish to copy from more gifted (I wrote a bit about this in Copy This Essay).  Why not fixation as the key doctrine? 
Abraham Drassinower: Self-understanding as empirical: what is it that ©/authorship does?  Then its logic unfolds.  Central claim: copyright represents a value of originality—there’s a great deal of black-letter law on that point.  Just finding it there, not coming up with it.  There’s no way to get a theory of © from a theory that © works have value—you need to distinguish them from other things that have value, like patent.  Distinction between tangible and intangible doesn’t get you there.  Facts aren’t tangible, and they aren’t subject to © either.
Nicole Garnett (I think; I’m not physically present): something to the desire not to associate with someone else who republishes your words, even if they were published—authors get very upset; feels like forced association. 
Gordon: the label “this is not authorized” may make a difference—your problem might be taken care of—this disclaimer possibility makes the compelled speech argument less apposite.
Q: no, I’d still be irked, but maybe it would take away some of her anger.
Chris Sprigman: Empiricism usually requires a hypothesis, which is informed by theory.  It’s not the opposite of theory.  Book says © is drowning in empiricism, but there are really only puddles. We actually have a flood of crap empiricism.  People have ideas, Chicago 1.0 ideas, which aren’t empirical but are basic rational choice economics, and they don’t think it is important to see if that makes sense in the real world—truncated empiricism. That’s what Lemley seems to be reacting to more than anything else in his faith-based paper.  Drassinower is also reacting to that, and rightly so.
Mike Madison: Larry Lessig wrote about compelled speech about 15 years ago; never got worked out.  Patent students tend to be gobsmacked by abstraction and ambiguity of © and TM.  One of the things he tells them is that patent abstracts from actual human experience pretty quickly to design a legal system around inventive practice and scientific communities: invention is artificially created legal object. © and TM have closer proximity to actual day to day experience of knowledge, and that’s ambiguous and evolving; layering law as closely as we try to do over it with TM and © is difficult and explains some limits of method of abstracting stories from observed doctrinal outcomes; avoids some of the messy questions/evidence.
Drassinower: Trying to understand a practice to make it more coherent—given how messy the law is, the fact of being able to tell a story that is recognizable as reaching the fundamentals is itself amazing.  Don’t have to account for every piece of mess; but also don’t want to reduce history to theory. 
RT: compelled speech discussion—authors here sound just like commercial speakers protesting against mandatory disclosures.  Possible lesson: Can have reasons for allowing compelled speech related to the overall system of speech (informational content with commercial speech or second speaker’s expressive interests with ©) or reasons related to the overall system of government (health and safety for commercial speech, antitrust perhaps for ©/compulsory licensing). 
Balganesh: Rationalism is not inconsistent with saying “I’m just trying to make sense of the world.”  That doesn’t make you an empiricist.  You aren’t looking for falsifiable experiments; any piece of evidence wouldn’t show you are mistaken.
Drassinower: the world could show I was mistaken. 
Balganesh: You’re not willing to abandon the idea that infringement is about compelled speech.
Drassinower: making sense of something that exists.
Balganesh: interpretive lens, not going to change b/c of outlying (in your view) examples/instances.
Drassinower: methodological assumption is that © does have a distinctive story to be told.
Balganesh: that’s what makes you a committed rationalist.
Silbey: there’s a difference b/t how empiricism proves things and what different disciplines count as proof—history, literature, economics—be clear about one v. another.  Drassinower says this is a disciplinary investigation within a philosophical/legal tradition.  Empiricism is a harder question.  Reproducibility?
Drassinower: the world I investigate has principles that can be found—not all in my head.  Resist concept of “rationalist” b/c doesn’t believe I’m imposing principles from my head.
Sprigman: the stakes are to distinguish this from the bad empiricism we’re drowning in.  Where is the idea that authorship is originality from?
Pam Samuelson: what is essential about ©: How about transfers?  Transfers of © happen all the time, but Drassinower’s book doesn’t really address that, though transfers matter quite a bit to authors.  Part of the reason why questions have arisen about whether you’re rationalist or empiricist, b/c empiricist would notice that transfers are part of the system.
Drassinower: nothing I say is inconsistent w/ transfers—just a mechanism authors may use.  Selling their speech.  There should be limits on transfers.
Samuelson: requiring signed writings speaks to the dignity of authorship, but other aspects are more difficult to account for if compelled speech is the only issue.
Drassinower: focused on what it is we transfer when we transfer ©. Someone else could focus on market relations, but that’s not a difference b/t rationalism and empiricism.

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