Friday, August 10, 2018

IPSC plenary

Tonya Evans, CryptoKitties, Cryptography, and Copyright

Nonfungible digital creativity, enabled by the ERC 721 standard on the Ethereum blockchain: verifiable, indestructible digital scarcity.  NFTs overcome failures of existing digital structure for creators by providing for ownership, provenance, chain of title.  The inability to distinguish master from copies currently harms demand/value.  Creator can participate in secondary market, unlike current first sale situation.  Can prevent forgery/theft unless the owner’s private key is compromised or lost.  Securely distinct asset from a reproduction.

Sprigman: as I view the CryptoKitty, it’s just pixels on the screen. Why can’t I just copy it? If it’s valuable, it’s the picture they care about. Blockchain is valuable as a speculation market, like tulips. The only difference here is you don’t get the tulip. That’s interesting, but does this new thing prevent piracy?

A: On the NFT side of things, where you look for provenance/uniqueness. If you just want the copy, it might not matter. But blockchain can establish a record of ownership, assisting in enforcement.

Sheff: proper analogy then seems like fine art market. Scarcity is useful to increase prices. W/r/t a digital image you can have anyway, which can be disaggregated from the blockchain record, you’re just creating scarcity for its own sake/conspicuous/wasteful consumption.

A: wholly digital from the beginning; not a representation but the thing itself.

Q: what’s the benefit of doing it this way?

A: decentralization; censorship-resistant.

Deepa Varadarajan and Joseph Fishman, Similar Secrets
Normative case for necessary similarity b/t secrets given that employees can’t wipe their minds between jobs. ©’s similarity framework makes some useful analytical moves. Like © but not patent, trade secret scope isn’t defined ex ante by written claims.  Trade secrets are easy to obtain on the front end, leaving the difficult scope work to be done on the infringement end.  (1) In terms of what courts should be looking at, focus should be end that the D is actually exploiting, not R&D along the way; (2) only material contributions should be actionable; (3) only reasonably foreseeable uses should be actionable. Shouldn’t affect core markets, but greater room for cumulative innovation in a world of mobile talent.

Our focus is use based misappropriation, not improper acquisition. Restatement says derivation must be substantial, but very few courts explain how to do this. A number of cases essentially ignore this in favor of a P-friendly conception of use in which any aspect of any reliance on the secret in R&D is enough. Courts don’t ask whether what was copied was the stuff that made the trade secret protectable to begin with.

Ds shouldn’t need to repeat known failures in their R&D.  Courts should look for a material contribution from the P’s secret—not just some benefit. Requires normative evaluation of whether the information D exploited was important to making the secret protectable in the first place. Contrast © which says copying isn’t enough; copying has to be significant/of protectable elements. Today’s Ps can prevail even if they aren’t competing with D; we think that competition in a relevant market should be required. Proximate cause for unforeseen benefits instead of unforeseen harms.

Q: similarity to © isn’t a good thing b/c of lack of ex ante definition problems. Why not use obviousness instead?  We know how to worry about hindsight bias in patent better than in ©. Here’s what you knew, here’s what you had reason to try/look for.

A: not all trade secret eligible info is patentable. Very different definition of trade secret would be required.

Lemley: the things you’re drawing from © are not from substantial similarity; they’re from fair use. Foreseeability etc. You are really saying trade secret should allow some productive use/fair use. Might be harder to read that view into the statutory term “use” though.

A: current actual copying requirement looks like an actual copying Q in © shorn of the improper appropriation next step.  Whether it’s substantial similarity or fair use, that’s b/c substantial similarity has grown to encompass so much more than it once did. The Q is still: are the two products/activities similar enough to be liable.

Lemley: but you’ve moved from intermediate copy to final copy, and the way we do that in © is fair use.

A: doesn’t think script/screenplay cases work that way [software cases do, Lemley notes w/o disagreement]. [Script/screenplay cases are weird and probably also affected by lingering questions not worth resolving about what constitutes a “work” and how many different works are involved when you have multiple drafts.]

Kristelia Garcia (and Justin McCrary), Reconceptualizing Copyright’s Term
Nielsen soundscan data for music. Will suggest extrapolation to other commercial info goods like books and movies, not to fine art. Findings best fit the average work—some of the potential suggestions may overprotect some works and underprotect superstar works. Random date-stratified sample of 1200 albums released b/t 2008 and 2017, proportional to genres, w/physical and digital album sales/streaming.  Then looked at all songs w/in random sample of 120 albums.

Unsurprisingly but dramatically, lose 1/3 of sales volume w/in 2 months, ½ by 6 months, by less than one year out 10% of initial volume. Songs decay more slowly. Album sales drop to almost zero after less than a year, but songs have a somewhat longer commercial life though nowhere near as long as current term.

Streaming: analysis is more limited b/c data are limited; main streaming services didn’t make data available until much later. 2016-2017 subset, sample size too small for statistical significance—streaming results in far higher volume. Ave. streaming volumes drop less rapidly than sales, as you’d think intuitively.

For typical music production, rapid dropoff for sales.  Later will look at genres and differences b/t blockbusters and others.

Implications: shorter term? All info goods engage in windowing—single first, then album exclusive to one service; similar in film (theaters, streaming, TV) and books. All of them go quite quickly relative to the term. Also consistent w/winner take all phenomena.  Albums are quickly hits or not, like movies and books. Also consistent w/network effects.

Maybe duration isn’t that important either way.  Perhaps this is useful for countries still on the fence about Berne/duration. This might tell them that extension isn’t efficient. Even adopts support for use it or lose it standard a la Posner & Landes. Could also try other things like reversion to the author [or limits on remedies].

Rothman: the spike is probably related to ad campaigns—can you look at that for blockbusters?  Could you argue that precipitous dropoff means that you need a really long term to recoup/make a living? Landes & Posner argued about distribution rights & commercial difficulties/investment—but streaming doesn’t have an additional cost, so far-out sales/revenue are opportunities for artists to benefit many years later.

A: Germany has something like this on the book side; if use it or lose it considered availability on iTunes, then that’s easy/costless. We’d need some sort of marketing standard to get some transfer back to authors.

Q: effect of illegal copies?

A: usually available through entire window and even before—so it’s hard to say but would buy an argument that this mattered.

Sprigman: §115 licensing/Harry Fox—given the dropoff, Harry Fox issues affiliate licenses on match, then processes, then pays out in arrears. So this may have implications beyond term.

Q: Streaming curve looks like a survival regression, with an uptick in song streaming at the end—the stuff that persists and remains listenable/popular with everything else fallen away.  [How much does the algorithm affect this?  If it surfaces the same relatively unpopular songs for every listener w/in a group, that might matter v. if it randomizes w/in a group of equally unpopular similar songs.]

Rachel Sachs, Regulating Intermediate Technologies

Health care tech where we want to incentivize improvement of existing tech but we’ve set up the system wrong. E.g., microbiome; pharma manufacturing (not much has changed over the past 50 years, even though new drugs are being created—still using batch manufacturing instead of continuous, for example, even though that could reduce cost by up to 50% and even though batch mfg can lead to delays/shortages); genetic testing. If we overregulate microbiome based therapies (which are unpatentable but require FDA approval b/c treated like drugs) then we might not get the end stage technology and never know what we’ve lost.  FDA knows its own regulations lock old manufacturing in place, and even though companies can obtain patents on mfg tech, the difficulty of enforcement is a disincentive.  Why did Myriad go differently, where the test for breast cancer associated genes has become a lot better in specificity?  B/c in the early days it wasn’t regulated.

Need to discuss how patent doctrines/sequential innovation literature interacts w/regulation from FDA.  Designing best practices: public investment in platform tech, calibrating regulation by stage at which the research is, calibrating health insurer reimbursement by stage. Procedurally, greater executive branch coordination and engagement w/regulated industry as well as public.

We’ve hamstrung insurers from calibrating reimbursement based on evidence of efficacy in groups/subgroups.

IPSC session 6

Session 6: Tort-Tinged IP
Ben Depoorter (and Robert Walker), So Sue Me … Please! Reverse Nuisance in Intellectual Property Law

Goldieblox case: filed declaratory judgment against Beastie Boys. Getting sued can sometimes be a boon and can bring a lot of useful attention.  Publicity gains may outweigh the direct and indirect costs of litigation, as with Goldieblox. Can be useful when the law is unpopular or the enforcement is unpopular—trolling, infringement claims against highly transformative uses, defendant has a sympathetic project.  Another factor favoring: when you have an opportunity to withdraw/back down/mitigate legal costs, and the costs of litigation are limited. If the P is famous, exposure benefits.

There are (1) good faith Ds, with defensible uses, where publicity is just a bonus.  Aereo tried, but at the end of the day if they’d have won the publicity would have been enormous/built first mover example. FindTheBest: D won and benefited with name recognition after being challenged by patent troll. (2) Bad faith Ds where publicity is the benefit.  He calls those reverse nuisance lawsuits.  Coinye ICO tried that, though it failed/the company was destroyed.  Calculation includes whether the D will look bad in which case it tries to keep the case out of the news.

This is a wealth transfer—subsidized by P’s legal action. P may recoup some of the value in the settlement/court award, but there can still be a net wealth transfer from P to D. 

Q: there are people who say all publicity is good publicity, so they might behave subrationally under your framework.

Eric Goldman: it’s really hard to control publicity and how the narrative goes.  Waymo v. Uber—both complaint & response were thoroughly vetted & PR people waged a war as an integral part of the case strategy. That’s not new.

Q: there’s a viral group for which IP (patent) is so awful that the P is always wrong.

Rosenblatt: assumptions: (1) Ds both can and believe they can make reasonable predictions about whether they’ll be seen as good guys; (2) Ds can make accurate and reasonable predictions about whether they’ll be enjoined. They may think they’ll be folk heroes, but still worry about getting enjoined and the business destroyed.

A: we’re not claiming this is happening/the system is being gamed, we’re trying to enhance insights/predictability. Illustrations exist where people have tried to do this, even w/o control over the narrative. May also affect the legal reasoning.

Lemley: Represented Goldieblox in this case.  Push back on idea that even if we can distinguish good from bad faith the bad are causing social harm.  What normally happens when well funded P faces poorly funded D is that the lawsuit quickly ends b/c D can’t afford to fight. Even if D doesn’t have a good case, it is useful for people to fight—we do get good law, mostly P friendly law; we might also expose ways in which law & popular norms differ.  If a bunch of people are upset that D is being sued, that’s valuable info about the operation of the IP system.

A: added value of another legal verdict when it’s settled precedent/an easy case is lower.  But our normative conception of, e.g., patent trolls is exogenous.  Adding info is nice; you could also model normative beliefs as endogenous, but that gets more difficult.

Miller: why is this a wealth transfer and not a creation of value of thin air—getting attention. Not like P was getting that attention before & it was transferred to them.

A: Kanye is paying his lawyers so he faces costs, even though Coinye doesn’t have a good case. He’s subsidizing the publicity benefits.

Lemley: we don’t usually call that a wealth transfer.

Miller: subsidy is better b/c there’s no one to one correspondence.

Mark McKenna (and Mark Lemley), Unfair Disruption

This isn’t really a paper about Aereo, but that’s an example: new tech often disrupts existing commercial relationships/settled expectations/industries. Incumbents often reach for IP to stop or slow the market disruption. That’s not obviously wrong. Some new tech infringes, and sometimes the point of the IP right is to insulate against such market disruption. But also inescapable that these cases are often really about whether some new entrant, with a new piece of tech, should be entitled to disrupt/force others into new business relationships.  They’re really about unfair competition.

Parties reaching for IP often claim that the proliferation of tech will be the end of the world—no more new movies, music, etc.  Or Uber will destroy longstanding entities. These predictions are universally wrong, at least about social value—player piano didn’t destroy music, VCR didn’t destroy music. But even if the world benefits, even if the industry benefits, even if the existing players benefit, it’s often the case that particular parties will have to change and they end up losers. Netflix killed Blockbuster, not movies.

Aereo is a good example because no one thinks the opinion is coherent but we all understand the bottom line: this smells like cable, and allowing it would disrupt all sorts of expectation. We think courts should look at the issues independent of disruption.  Market conditions are often relevant to legal doctrine, though.  Might look at whether there’s a way to differentiate cases in which the incentives will survive even if the producers change.  Hardest cases: new tech disrupts in a way w/significant social value but also risk of undermining incentives if disruption uncompensated. Is there a situation where compensation is the right solution—paying the losers off?

Lemley: this isn’t just an IP problem—unjust enrichment and antitrust cases are also often about whether the act of competition is unfair. Spotify and Napster both disrupt the music industry but in different ways and we might care very much how the disruption is done.  Antitrust: Microsoft disrupted independent 3d party spellchecker industry when it added one of its own, and that might be fine, but contrast that to its decision to add a web browser to its platform in a way designed to prevent any other browser from becoming a basis for a new platform. 

Miller: dissent in INS v. IP suggests courts won’t be good at figuring this out.  Maybe you’re suggesting IP standing, like antitrust standing—protecting innovation, not innovators, similar to competition, like competitors.

A: we’re trying to work out what’s an IP injury—not just market disruption, which might be what causes IP injury, but what that is.

Van Houweling: Numerus clausus doctrine—says there’s special danger in courts creating new property rights as in INS v. AP. Could deal w/doctrinal vacuum—property, contract, tort provide different doctrines and numerus clausus provides the strongest argument that we shouldn’t create new rights.

Sprigman: mapping antitrust onto innovation is interesting. A strategy that harms competition by raising rivals’ costs of entry is unlawful; what about raising rivals’ costs in IP?  Innovation does that all the time; bicycle frames used to be made out of steel and are now exotic carbon, much harder to make. That does raise the cost of innovation in that area, but it’s not a harm to the market v. a harm to competitors. 

A: you can’t just grab the analogy but you can take it as: is there a consonance b/t IP’s purposes and the harm P has suffered.  If the thing that injured you was not appropriation of invention/© work but innovation of better system, that’s the equivalent where we’d want IP injury doctrine.

Rothman: determining the empirics is a problem if you’re looking for real harm to innovation. Sometimes you seem more normative; Aereo to her is about normative thinking, the Court’s revulsion to Aereo’s design decisions.

A: it’s weird that the thing that made the Court mad was that the defendant obeyed the law and found the loophole.  If unfair competition is a penumbra that lets Ps win when they don’t have a technical IP violation, then that’s going to have a lot of consequences.  In tax, that’s just good tax planning.  [I pushed hard on tax evasion v. avoidance analogy in Aereo—maybe there’s something to be learned from that; not clear that there’s a good analogue to independent economic significance, maybe something like independent creative significance?]

Q: we don’t know whether player piano decreased the quality of piano music.

A: the problem we ID is status quo bias, which is insanely ironic for an IP regime.

Sheff: might have to do with the boundaries of the firm—content generation and content distribution. One possibility is that certain disruptions disrupt business models but also make it difficult for content generation and distribution to occur in separate firms.  We’re seeing that now with Amazon etc—distribution takes over content creation. 

Q: why are sky-falling arguments so common before judges? Happens w/products liability, directors’ liability too.

A: we’re a conservative, backward-looking profession. And it’s true that disruption happens and judges don’t want to destroy the status quo, whether that’s current music system or the VCRs everyone has in their home.

Judge wants to know if s/he can see the future—if you can see the outside benefits/harms to other parties, it’s easier to decide.

Betsy Rosenblatt, Verbing Intellectual Property
Work, mark, and design are verbs as well as nouns; invention is a thing people do as well as an output. Yet IP doctrine uses them all almost entirely as static nouns, rather than as actions. What would happen if IP thought of these words as identifying processes?  Might frame each in its context of progress, which demands a focus on movement not stagnation. Might observe that looking at the stuff people create is only one way, not always the best way, to look at creation and creative incentives. There’s a lot about this in the literature for “work,” but not these other areas of IP.  Might look at literary theory/feminist scholarship.

Deeply influenced by law as discourse, not just as governance mechanism. Important to be aware of law’s story about value; if law is hampering fairness/progress we can find out and try to change it. © has some process considerations, such as fixation.  TM takes into account development w/secondary meaning/Supplemental Register.  Patent has changed recently in extent & ways in which it considers processes; now really doesn’t consider the process of invention & reduction to practice, esp. for new patents. In obviousness, derivation of inventions. But when considering noun and verb of invention, we look hardest at the noun. We base our analysis of inventiveness only on the structure of product and not on process of making it.

This might make a lot of sense, if we think the result is what matters.  But if we want to acknowledge that there may be other progress promoting benefits from creation that aren’t the stuff that gets created, we need more. Belonging, self-actualization.  Issues of distance b/t created thing and those who created the thing—becomes a commodity rather than a living thing.  Feminist theory: by making IP a commodity we’re feminizing it in the Irigarian sense. Enslaving it rather than allowing it a life of its own. Approaching creation as a process recenters creators and users, as opposed to assignees.  There can also be merit in using something someone else is made: if creation is a process, it’s harder for me to stop you from engaging in a process than from using a thing. Could ask what was added, not just what was taken, more often.

Creators who are concerned more w/process and what’s done w/their creations than with the creations themselves—fine with reuse but only if something interesting is done w/it. Yet that’s not how law looks at things doctrinally very often.

Not proposing more rights to control actions, if that could even be done.

Sheff: tort framework: what’s the damage in this reconceptualization? What could be wrongful about using someone else’s work?

Q: which tense?  Past, present, future may make differences.  Noun=persistence across time. Action may change more past/future.

Rothman: fundamental misunderstandings about law that lead journalists to use © and TM as verb in ways that are legally inaccurate—but maybe they are on to something.

A: those uses are wrong from the law’s viewpoint, but that is a helpful point.

Van Houwelling: noun is evidentiarily simpler. We do consider process in some ways, like fair use. Maybe we do the easy version at the rights granting stage and the hard version when a conflict develops. Consider this issue in the context of first sale/exhaustion—you can use this noun, but you can’t go verbing it.

Preserve challenged ads/social media posts after receiving a C&D or risk sanctions

Nutrition Distribution LLC v. Pep Research, LLC, No. 16CV2328-WQH(BLM), 2018 WL 3769162
 (S.D. Cal. Aug. 9, 2018) (magistrate judge)

A spoliation/false advertising issue.  “While Defendants produced some social media documents, the production did not include Facebook or Twitter posts relating to the illicit products identified in the complaint.” For a finding of spoliation, a party must show that “(1) the party with control over the evidence had an obligation to preserve it at the time of destruction; (2) the evidence was destroyed with a ‘culpable state of mind’; and (3) the evidence was relevant to the party’s claim or defense.”

After plaintiff’s demand letter and complaint, which identified the products and ads at issue, defendants had an obligation to preserve relevant posts on their social media sites.  There was evidence of a culpable mental state, where a deponent responded to a question about whether the deleted posts had anything to do with this lawsuit, with “It’s possible. Actually, it was -- I think it had more to do with any copycat companies, law firms like yours trying to file the same frivolous lawsuit.” When asked about deleting posts related to marketing one of the products at issue, he responded, “I have the right to do whatever I want to do with my Facebook account, regardless of a lawsuit or not.” His declaration that no posts were deleted intentionally for purposes of litigation/post-filing was inconsistent with his deposition testimony and unsupported by evidence. Destruction after notice/negligence is sufficent to be culpable.

Finally, the evidence indicated that the deleted evidence was relevant to the claims as it “include[d] advertisements, photos, marketing, and misleading statements at issue in this action.” There was prejudice, because the plaintiff only has some Facebook and Twitter posts, not all of them.  The appropriate sanction was an adverse inference instruction that “the social media posts deleted were false advertising of products that compete with Plaintiff.”  Monetary sanctions were unnecessary given such an instruction.

IPSC session 5

Session 5: Copyright

Michael Carroll, The Law of Musical Borrowing: A concept of © distinctiveness is implicit in how we talk about substantial similarity.  Who decides this? It’s supposed to be the consumer: ordinary observer/intended audience. Both TM and © are trying to figure out what’s going on in the mind of the consumers. Distinctiveness plays a role in how juries/cts conceive of the work, and it becomes troublesome.  Similar to Bohannon’s idea of © harm/© dilution and criticism of the Dr. Seuss case but more basic/using TM distinctiveness as a reference point.

A coherent theory of © infringement analysis: you have to flip the filtration step; start w/idea that the author came to a world full of nonoriginal elements as preexisting materials. Originality is when they take that mix and do something original to the author; how do we know when they’ve done that? When we can distinguish what they’ve done from the background. It’s a bit Lockean.  It’s the elements of the work the audience attributes to the author.

If that’s about the work in suit, then you compare the accused work and look for the same elements.  If there is similarity, then is it substantial? This isn’t extrinsic/intrinsic, but it’s the decision framework we implicitly offer when we tell a jury to compare.  Postmodern: not what the author thinks the work is, but what the jury thinks.

In music infringement, there is a difference from other works. Value in popular works is in what’s distinctive, and there can be distinctiveness w/o originality.  A distinctive/original voice, not just someone who can sing on pitch.  A je ne sais quoi, but highly desired. Data still can’t predict success—either there’s something about the hook, or there’s payola.  “Closing Time”: The distinctiveness comes from your hammered-in memory even though the chord progression is common.  James Brown’s scream at the opening of “I Feel Good”: distinctive, but is it original expression?  No.  But from if value, then right perspective, you’re definitely taking value from Brown’s recording.  6th Circuit/Bridgeport cases are the worst offenders here.  Bridgeport v. UMG: finds infringement in bow wow wow gimme yo gimme yay, Atomic Dog.  Blurred Lines case is the same thing, even though the court excluded the sound recording from the evidence. 

Fishman’s proposal is to judicially tailor scope of composition © to limit protection for nonmelodic originality. Carroll prefers strengthening the role of limiting doctrines, particularly idea/expression, scenes a faire, and de minimis use.  This avoids over-attribution of distinctiveness to nonmelodic elements of a composition.  He thinks Blurred Lines was troubling but an outlier.  If we’re going to live in a world of experts, experts will have to get better at describing scenes a faire in particular to the court.

The kind of claim he dislikes: the defendant repeated the same word/phrase I did and that’s infringing.  In these cases, courts turn out to prefer fair use (he’d prefer short words/phrases exclusion, de minimis use, lack of substantial similarity in the whole work).  Jimmy Smith Rap case (jazz is the only real music)/Last Poets (party and bullshit).  Don’t even bother with the belt and suspenders!

Zahr Said: “distinctive” does different thing in different places—misused in character cases all the time; it can play a TM role.  Are you stuck w/that word?  You identified a way of defining originality w/more discipline. Jury instructions are doing that in a pretty good way but using the word “original” which is confusing—can you find something that’s not a term of art elsewhere?  Using distinctiveness for infringement seems to be TM-like—in the bow wow wow case, they’re protecting more of a TM interest than a © interest and using “distinctive” entrenches that problem.  [Differentiation?]

Justin Hughes, Actors as Authors
Clearly, a number of dramatic performances cross the threshold for copyrightability [or at least the works in which they are fixed do].  Still, this isn’t set in the case law, allowing Google v. Garcia arguments to be made about how actors aren’t authors unless they have creative control over the script/performance (as Garcia allegedly did not).  Hasn’t been squarely raised b/c of WFH.

© Office compedium lists 10 elements of a motion picture that may be sources of authorship, one of which is performance: “the acting, speaking, singing, or dancing in a motion picture.” Courts have occasionally recognize this in deciding other issues like other authorial claimants and ROP claims/preemption of such claims by ©.

Performers really do think they’re artists/creators.  So do directors, except David Mamet.  Actors ad lib a lot more than you think, including Bogart’s “Here’s looking at you, kid,” DeNiro’s “You Talking to Me,” and Thor: Ragnarok [Also Wonder Woman’s great scene b/t Diana and Steve in the boat].  Like jazz improv, where the fixation is occurring simultaneously. But what do you do when there’s no ad libbing?  Are you as comfortable finding copyrightable expression added to the script?  It may be the case that it needs to be viewed as a zero-sum game.  Leeway given by directors is much greater in AV works than it is in theater where there’s lots of time for rehearsal.  Standard challenge: joint authorship doesn’t mean equal shares are required given the common law model.

Q: hard time explaining why athletes are different.

A: don’t follow a script, and are in a goal-oriented activity that is not a narrative activity; maybe dancing is the closest. Improvisational dance v. baseball game—gut feeling is there’s a difference, but Goldstein thinks no.

Samuelson: do the contracts b/t motion picture cos and actors speak to this possibility of authorship?

A: yes.

Beebe: © in public persona, once fixed?  Kim Kardashian, Barton Beebe, etc. seems like they could all make claims.

A: don’t need to solve persona; that seems like style—you can © every performance w/o being able to © persona. [That seems to finesse the problem of derivative works.]

Matt Sag: Clint Eastwood—is he a coauthor of the film or the author of a little subwork?

A: there’s © in the dailies, of which the motion picture is built. If financing stopped on the film and all they had was boxes of dailies, those are subject to ©. Garcia could more credibly have claimed joint authorship in the daily, then integrated into the larger work. That raises other interesting problems. Not sure that answers the Q.

Jim Gibson: you say author, but you really mean source of original creative expression, given that it might be a WFH. Sound engineers, record producers?

A: those are recognized as authors—SoundExchange is paying them and the Music Modernization Act will codify their right to payment.

Tim McFarlin, Tear Down the Stairway? Copyright Injunctions and the Public Interest
Partial contributions are of concern: if the contribution has audience appeal, perhaps that bears on authorship. If audience impact is important to authorship, where else might it affect doctrine?  Data-driven authorship is an example, and audience’s role in IP infringement (Fromer/Lemley).  What about eBay and the public interest factor in injunctive relief?

Discussion of suppressive motives & their relation to injunctions.

To what extent is nature/genesis of derivative work relevant? Willfulness, percentage of infringing content, whether it’s close to fair use.  Gilden argues that a stronger injunctive remedy may lead to more fair use findings, whereas courts may be more willing to find infringement if injunctions are rare.  If they are rare, do we get compulsory licensing case by case? If not, are we unfairly advantaging artist/works with a track record like Hitchcock over ones with out?  Do we define the public interest in the same way across different kinds of IP?

Q: stronger laches doctrine?  Could play into remedy.

Rosenblatt: if you focus on the audience, don’t you risk content discrimination/Bleistein problems?

A: true: hard to measure something’s classic status.

Rosenblatt: that’s not relevant; just consider how long it’s been out.

Van Houweling: Tasini raises concerns about recency—the articles might be recent but might still make holes in the record if removed.

Said: Stairway to Heaven is a weird example b/c credit was also at issue—Salinger v. Colting is a more interesting example of an enjoined then unenjoined non-classic.  What kind of First Amendment stand do you want to take?

IPSC session 4

Session 4: Old and New Theories of IP
Shyam Balganesh, The Common Law of Copyright
Censorial copyright claims: motivated by non economic, dignitary concerns, and the author/creator’s principal objective is expurgatory—to prevent the work from circulating publicly. These claims have existed from the origins of Anglo-American copyright. We treat them as illegitimate b/c of incentives myopia. This exists w/in the moral rights paradigm, the right of withdrawal/repentance right. In one jurisdiction, author has to purchase copies at lowest available price. During 1965 © revision study, they considered withdrawal right & said it was absurd, though they were aware it existed. 

Pope v. Curl, 1741, private letters published. Real theorizing in 1818, Gee v. Pritchard: analogous to revenge porn, correspondence b/t husband & wife about illegitimate child.  © grants injunctive relief even though this isn’t about encouragement of learning: legit interest and injunction granted.  Similar in Prince Albert v. Strange, 1849, sketches by Prince & Queen somehow acquired, again injunction granted. Folsom v. Marsh discusses Gee & why letters should be protected.  Woolsey v. Judd, NY 1855, discusses interests beyond just works of literary merit that ought to be protected. Clear recognition of necessary balancing: public interest; what if the party to whom letter is directed needs to publish to vindicate himself; etc.  Salinger v. Random House: an account that builds on the early cases, very much a censorial claim. Michaels v. Internet Ent. Gp., 1998, attempt to put it into terms of statute that is facially neutral in terms of its theory.  Doe v. Elam III, 2018, revenge porn case with $6 million award: © may be an imperfect fit, but it has always played this role.

Not claiming that these claims ought to flourish and blossom or extend into new domains. Recognizing them as a distinct category allows us to grapple w/the underlying concerns that accompany this category, the First Amendment primary among them. [It is not clear to me that many people have missed this point under current doctrine, but ok.]  Harm produced through expression: can be copyright harm, or other harm, e.g., defamation.  W/in copyright harm, there are also distinctions: appropriative harm (market or even non-market terms per Drassinower); in situ reputational harm (integrity rights: the harm is to the work, not to the individual in any other distinct way); and disseminative harm (harm from public circulation of the work)—the harm is really 106(3) distribution.  The author’s inability to exercise the right to exclude is seen as an infraction of the author’s autonomy.  The idea of right to exclude starts having resonance w/in the censorial claims—overtone of Hegelian personality interests, which has been misapplied in many other © situations. The conduit through which Hegel conceives of authors rights comes through property.

There’s also an authorship interest here. The connection b/t the creator and expressive work is critical to these claims. Author’s personality/dignity. [But see Monge—what is going on there? It is just as censorial/privacy-based.]  Distinct between 106A moral rights: the harm isn’t in the work as such but through it—the dissemination of the work is what generates the harm, not the existence of the work.  [How does that work with the attribution right?]

Recognizing these as distinct analytically allows us to better police them from a 1A perspective. We might validly draw from other censorial claims: defamation, false light—no strict liability; actual proof of harm needs to be shown for recovery, no presumptive damages/punitive damages.  [How is this different from saying © isn’t for these kinds of claims.] Could do this directly or through expanded fair use—nature of the work could accommodate this.

Joe Miller: Reconceptualize Harper & Row through this lens. Congress’s modification of the law post-Salinger about unpublished works arguably makes your approach harder [I would say less persuasive].

A: yes: conflated right of first publication and right of withdrawal. [Further discussion makes clear that he doesn’t think there’s been conflation by Congress but rather what he calls a partial recognition that the moral interest for unpublished works is distinct from the moral interest for withdrawal, but I think he believed that the availability of injunctive relief was sort of a withdrawal right, with which I disagree.] Distribution & publication were replacement categories from old acts.  Q is whether the same interest carries over to published work, and he doesn’t think that distinguishing published from unpublished makes sense.

Andrew Gilden: Scientology case where guy tried to withdraw work in order to screw with Scientology.  There’s an effort to acknowledge the economics of withdrawal, but differently.

Q: constitutional basis for the incentive theory, but not for this. Older English cases may be interesting for common law history but that’s not necessarily what Art. I sec. 8 cl. 8 allows.

Uri Hacohen (and Peter Menell), Unjust Endorsement: Tiger Woods endorsed Stanford Financial, revealed as Ponzi scheme.  Advertiser’s challenge is to overcome consumer skepticism. Distraction/stealth to overcome resistance; also endorsers and other mechanisms.  Early endorsements were mostly in print.

Changes: scale; people famous for being famous. Fake follower, reviews, likes, news.  Strategies have expanded online: distraction, stealth, repetition, exploiting connections/children etc.  This is troubling, but regulation is limited.  Norms remain of limited effect and endorsers don’t seem constrained by norms; rather they’re competing for income.  Other relevant considerations include social surveillance, public health from overconsumption.

Deception is easy.  Endorsement disclosures are somewhat regulation. But there should be a private right of action/class action remedy. Whistleblower immunity/rewards per SEC.  Endorser liability should be seriously considered.  Disgorgement/punitives as remedies. Higher standards for disclosures—for doctors, medical product manufacturers have to disclose any payments or other transfers of value to physicians or teaching hospital. Patients can see that, b/c doctors now fear to take drug money. If they take money and don’t disclose, they risk public sanctions. Should have the same disclosures for other endorsement relationships, available to consumers and IRS and social media; FB and Instagram could use technological tools to ensure this information surfaces.  Morality and social industry norms need to change in this direction.  Anti-tobacco public service ads as a model: funded from tobacco tax.

Jeremy Sheff: There’s fair amount of evidence about ineffectiveness/counterproductivity of disclosure; evidence of compliance will be misread as evidence of credibility, as in health supplements market where consumers interpret the “not endorsed by the FDA” statement as meaning “the FDA has checked this and allowed us to say this.” [Also a licensing effect on disclosers.]

A: we are advocating a registry. Consumers who want to look can. This is about cognitive limitations around consumers; don’t say there’s no justification for trying to educate consumers [fortunately that’s not what Sheff said]. We want to help consumers understand that Captain Crunch isn’t their friend—kids have cognitive limitations. [And the evidence is that those limitations are hard to overcome with disclosure; it might be that a ban on cartoon endorsers for kids is the best solution.] Tobacco campaigns have studied this issue extensively.  W/social media, we have to be especially concerned w/how our brains are being influenced, and the FTC is overwhelmed now.

Irina Manta: if endorsers say something they know is incorrect, more people would be fine with liability, as opposed to having duty to investigate on the part of the endorser.

A: Sure, duty to investigate. Whether Stanford’s endorser knew or not, he got $8 million and a lot of people invested in a Ponzi scheme. That money should go back into the pot for victims; he was unjustly enriched.  More punitive when they knew or should have known. But esp. for bankruptcy we should look at moral responsibility and have him disgorge.  [I like it.  Much more likely to have an effect on behavior than disclosure; it operates on the incentives of the endorsers directly.]

Manta: there might be a temporal element—if it was 10 years ago he endorsed, different.  Will be difficult to assess when they knew.

A: changing the cultural environment.  If Beyonce takes $50 million from Pepsi, she needs to accept her part in what Pepsi is doing. 

Irina Manta, Explaining Criminal Sanctions in Intellectual Property Law
Common & civil law are the usual/historical actors in IP; criminal sanctions have tended to involve force, only more recently expanding to lots of nonforcebased harms. One justification has been analogy to theft.  Generally no danger to safety of owners, other harms of theft.  If not theft, what is IP infringement? Perhaps vandalism—reduction rather than elimination of value; owner can sell/license; in rare cases (Banksy) can increase value. Another analogy: trespass.  Criminal sanctions for IP are generally higher than for vandalism offenses with the same value reduction. IP owners should accept the limitations on the property analogy, which are that not all property crimes cause the same kinds of harms and justify the same kinds of sanctions.

Why is there no patent crime?  Litigation is very expensive, and patent registrations are by far the hardest/most expensive to obtain and confer greatest power to exclude. But: registrations are often invalidated; patents are complex; willfulness is an issue.  Purposeful patent infringement represents a very low percentage of overall patent infringement; recent tech has had a much larger effect on ©/TM infringement than on patents. Goods that are patented and pirated are often already sold with counterfeit TM as well, so there’s no need there.  Thus the costs of criminal sanctions in patents would be greater than in TM/© and the benefits lower. 

Daniel Hemel: SEC is a good analogy—securities fraud is like counterfeiting.  FDCA violations: related to what you’re saying about pharma—there’s separate criminal sanctions for that.

Q: given the differences in actors, you might say more about criminalization against corporations v. against individuals. For patents, you might talk more about the actual costs, what a trial would look like [if there weren’t a plea], gov’t expertise v. relevant private parties.

Peter Menell, The Use and Misuse of Intellectual Property Kinship: IP isn’t a monolithic term—we spend a lot of time dealing w/channeling doctrines; it’s a key role for cts even though it’s often not spelled out in the doctrine itself.  Examples where it is: Idea/expression; useful article; functionality.

Mistake introduced by Sony v. Universal.  We ought to keep in mind that patent and copyright are pretty different regimes, merely linked sequentially in constitutional text. Design patent is much closer to © and shouldn’t cover functional elements—this is a big mistake that needs to be corrected.

Functional analysis of IP kinship: utility patent is an only child.  There may be some cousins (API copyright; design patent) but the point is that this is a family with a single child.  Don’t want other children treated the same—utility patent supremacy principle.  But some of the other issues, like tax, sure, it’s a family with lots of kids—w/r/t treating the asset of IP similarly, sure.  Likewise bankruptcy.

Interpretive issues: courts often fall back on historic kinship when it doesn’t work very well.  Sony: does patent’s blanket immunity for any dual use tech make sense for ©?  He doesn’t think so—there are too many differences b/t what they seek to promote (tech v. art), whether complements provide systemic threats to the system, etc. 

Kirtsaeng: int’l exhaustion.  Wiley wanted to say it had the right to import under §602.  Kirtsaeng: first sale means it’s lawfully made under this title (in accordance w/the © Act).  Ginsburg’s dissent is compelling, even if you agree with the Court’s normative result.  Patent version of that case a few years later: Roberts appeals to similarity of patents and ©, but doesn’t attend to footnote about the differences b/t them and throws caution to the wind. 

eBay: draws on © law, even though prior © cases always gave injunctions; prior SCt cases like Tasini had just talked about how you could deny them.  Then people applied it to TM law.  We should have been more contextual.  [I think this is about anti-patent exceptionalism in the SCt, not about kinship—note that this is the first time he’s mentioned TM since the first slide with a bunch of other things that also aren’t mentioned. The remedies language in the statutes are similar b/c that’s what federal remedies language tends to look like—see also Winter, which TM and © courts have also looked at but which is about environmental law.]

We use metaphors as shortcuts b/c IP is hard and a lot of the statutes are terse and court-elaborated.  Our SCt doesn’t have consistent ways of interpreting anything, so historic kinship can organize votes; Congress doesn’t get around to fixing things.  This is slopply, lazy, distorted, and path dependent.

We could learn a lot from comparing and contrasting. Utility patent spends a lot of time on claim construction. Should be more careful w/design patent. Let’s learn. Bratz litigation: persuaded DCt to hold essentially a Markman hearing on ©.

Joe Miller: SCt briefing: does it shed light on the degree to which the adversary process invites thoughts in kinship terms or not?

A: this is how I get research projects—look at the lawyers’ choice of argument. Sony made this argument routine. SCt doesn’t want to learn this rich complexity. We should demand more of our highest court. [But that’s not about eBay, is it, where the transfer to TM is in the lower courts?]

[My Qs] It’s also about ROP—he talks about Saderup in the paper.  [And I definitely think that Saderup is a terrible idea.  But it can’t be about a historic kinship insofar as the connection b/t © and ROP was invented in Zacchini.]

Kristelia Garcia: given the differences b/t music, books, etc. would you go so far as to say there should be book copyright, music copyright, etc.?

A: we’re the scholars: that’s our job where appropriate.

Thursday, August 09, 2018

IPSC: keynote

Keynote: The State of IP Scholarship – Rebecca Eisenberg
When she began, patent scholarship in the academy was minimal.  Early 1980s, CAFC creation prolonged the ghettoization of patent law, even though the field was poised for greater integration into the legal system as law firms began to see the potential. Fed. Cir.’s early years provided targets for scholarly commentary, but wasn’t interested in legal scholarship. Not that motivating to write for them and be ignored.  Consolidation also meant that 1980s didn’t see many patent SCt cases. So not clear who the audience was for it, and doctrinal scholarship was out of fashion; interdisciplinary scholarship was considered more intellectually serious.

Early years after Bayh-Dole: people starting to get interested in patent law because it was in their way; scientists encountering the patent system and worried about its impact on traditional practices/norms/scientific exchange. They became an important audience and source of info on emerging problems. They didn’t have many other places to turn, so that worked out well for her research agenda/scholarly impact.

Matters are much better today: recognized that IP is important subject; our problem is one of abundance/figuring out what to say against the backdrop of prior art.  Not a fan of articles that make the claim “this article is the first to …” perhaps b/c she’s the benighted old guard, but also b/c it’s distortionary of our framing. We should be in conversation w/each other rather than w/2d year law review editors.  [Yep. Also, there’s nothing new under the sun; I don’t believe in originality, just better and worse (in context) ways of saying something.]  She was looking for predecessors and anybody saying something remotely similar, not trying to stand out in an empty field.  Rigorous backgrounds in other fields=improvement—serious training equips high level interdisciplinary work. That’s raised the standards for what counts as good interdisciplinary work.  New sources of data, analytical approaches—rigorous empirical work asking good questions are more interesting/useful than what used to exist.

Also, good doctrinal scholarship remains important, b/c IP law is really important and we need scholarship to guide and criticize doctrinal developments. Growing SCt interest in patent law in recent years has been helpful in drawing attention.  And a lovely shoutout to legal blogs that help link practitioners and scholars.

New law profs used to start teaching w/o having done much writing; had to figure out how to become legal scholars on the job. Other fields would scoff at amount of necessary writing. Now there’s fellowships and other backgrounds that mean publications are often substantial.  Fellowships do create a challenge for people who can’t afford to live on a fellowship salary for a year and then move a family, disproportionately women. [I think the change here is not necessarily to the field’s benefit, and other parts of the university still scoff and will continue to do so.] However, the old system placed inordinate weight on law school grades, law review, and clerkships; especially people from science backgrounds that reward terse writing could have struggles with that. Also, interesting stuff happens in practice, and future scholars should be able to immerse themselves in that environment before they start, then pause and reboot in academic life. Our productivity is now great, though it’s possible to have too much of a good thing; if you write a lot you tend to get better at it.

IP advantage: new problems and issues are constantly coming at us.

Comments by: Jorge Contreras: Economists like to name concepts after themselves: Coase theorem, Schumpeterian innovation. We’re more modest; only judges get these intellectual vanity plates. Still, theories can be intricately linked w/scholars who bring attention to them, such as Lessig’s code as law and Eisenberg: in 1998, she coauthored an article w/Michael Heller which brought to the biomedical and legal academies the notion of the anticommons, drawn from Garrett Hardin’s tragedy of the commons.

Predicted anticommons in biotech didn’t materialize, but why?  Eisenberg & Heller had recommendations, and NIH implemented them as early as 1999, not as requirements but as recommendations. Other market changes have undoubtedly had effects—changes in the patent system relating to biomedical discoveries, such as utility and inability to patent sequences with unknown function, as well as §101 eligibility cases.  If the anticommons didn’t emerge, why do we still care?  It’s b/c the anticommons risk and theory is incontrovertibly correct.  Striving to prevent it from happening is policymakers doing their jobs.  The effects of the doctrinal change of the sort in Mayo is probably an accident and not likely to recur. The fundamental premise of excessive fragmentation of rights leading to underuse of resources persists. Similarly, her insight on blockages seems correct: they’re more likely to occur when innovation requires an affirmative step, like getting an organism from someone, rather than when the burden is on the owner to sue—situations of practical excludability.

Michael Mattioli: Lovely tribute to Eisenberg as mentor from his time as a fellow.

Arti Rai: Similarly lovely tribute, with emphasis on Eisenberg’s contributions to IP and health law.

Tejas Narechania: Ditto, with IP and administrative law/institutional analysis.

Moderator: Molly Van Houweling

IPSC session 3 (trade secret then copyright)

Session 3:
Trade Secrets, Courtney Cox, Can the Law Force You to Lie? The Use of Deceptive Precautions to Protect Trade Secrets

Reasonable measures to protect the secret are generally required. Should you have to engage in deception, or deceptive misdirection (answering a related question but not what was asked, or answering partially as if it were fully) to be reasonable?  Lying/misinformation can cause real harms to others, if they rely on your representation to do something, and there are dignitary harms in being lied to/treated as an object.  Concerns about trust: if everyone lies when it’s convenient, then representations become incredible.

Companies do in fact lie to protect trade secrets.  E.g., putting out that security officers are listening at the local bar.  Or putting in a deliberate error in a map to identify copiers.  How I Met Your Mother: to protect the finale, they mislabeled scripts/casting calls; Game of Thrones films fake scripts so the cast doesn’t necessarily know what will be shown.  Cisco found source code distributed (disgruntled employee) and rather than attracting attention via takedown it seems to have posted a bunch of different fake versions; this is designed to wear people out and get them to think it’s all fake.

There’s philosophical debate over how to define a lie. Some people bake into the concept the idea of wrongfulness, but she doesn’t want to do that: she means intentional assertions of fact that aren’t true. A lie can be deceptive, if it imparts the false belief.

Some of these techniques are definitely cheaper than demand letters/hiring a lawyer. Thus they could count as reasonable measures, alone or in combination with techniques.  But: (1) doctrine of unclean hands—you shouldn’t be able to get legal relief based on conduct that is itself inequitable/wrongful, which is often about deception; (2) risk of harm to others; (3) general distaste for misrepresentation; (4) immorality of lying no matter what. If trade secret is the codification of commercial morality, then it shouldn’t include this.

Harm: suppose a screenwriter thinks they’ve been hired to write a finale for Game of Thrones, and they therefore give up lucrative other opportunities. Is this relevant harm?  Should we compare this to other precautions that they should have taken?  You’re allowed to have guard dogs; if the guard dogs are unreasonably vicious, then the remedy is tort law.  Thus, torts should provide the remedy rather than being incorporated into trade secret law.  [Query whether there’s any scenario in which the screenwriter hasn’t contractually waived all rights here.]

Bottom line: yes, there is at least a not insignificant set of deceptive practices that should be okay/not actionably deceptive or unclean hands; there may be a subset that are required.  She would not draw the line at corrective, post-disclosure deception.  Car manufacturers: road tests of a new innovation, protecting from corporate spies with cameras. So they use car disguises: cardboard covering the innovation, or making it look like some other innovation was being tested so that it wouldn’t be properly identified.

Q: gov’t lies all the time, for (they think) good reasons—informants, cooperating witnesses, interrogation. Is there a salient difference b/t gov’t lying and gov’t rewarding lies through policy? Compelled speech considerations: posits that gov’t should never force someone to lie through doctrine even if lying is ok when chosen.  Reactions?

A: There is reason to think gov’t can do what civilians can’t, but that doesn’t cover the whole logical space of actions.  Rewarding might not be enough to compel—you don’t have to claim trade secret protection, but if you want to do so, you have to engage in speech, just as you would to get a professional license of many kinds.

IP and Creativity
Sean Pager, Much Ado About Norms
Issues w/suboptimal norms: if there’s not sufficient communication, people may think norm is popular even though everyone else only goes along b/c they think it’s a norm too—drinking a lot on college campuses, for example.  Became a norm b/c of a vocal minority. Powerful people can also impose norms against the true internal desires of most.  Ellickson’s Shasta farmers are all white men occupying lands stolen from Indians and often exploiting Latino workers.  How seriously should we take these concerns in IP norms?  This is a question worth asking.

One example: People have written about Nollywood, the Nigerian film industry, as a negative IP space. Early on, Nigerian filmmakers used lead time to make money before piracy overtook them; new tech has changed that.  Social norms/marketers guilds have replaced that with a de facto exclusivity norm. That meets the paradigm of social norms solving a gap in IP law, but is it an optimal norm?  He says no. Would be better off with a formal IP system. Guilds often discriminate ethnically, by gender, etc. Filmmakers want a formal system but have been politically blocked by the clout of the marketers—norm-locking.

Chris Sprigman: how important is it to the norms literature whether norms are efficient?  Varies across the literature. Rothman has work on this. Some is descriptive and also attempts to account for why the norms lead to the production of certain types of content and not others. Could categorize this literature in your discussion.

Jennifer Rothman: Lisa Bernstein has some work on this in merchant norms.  Inherent biases in relying on norms based system—pay equity and hiring; informality of the system can reify principles of discrimination. Not well described in the IP context w/r/t these norms.  That would be a meaningful intervention.

Rosenblatt: “good” and “efficient” are not the same thing. I could reasonably be accused of being overoptimistic about norms, but good v. destructive/counterproductive/discriminatory/otherwise suboptimal are different things. Effective governors of behavior, beneficial governors of behavior, good substitutes for law: these are different things from when norms are efficient. 

A: would also add: good/efficient for whom or for what?  [See Glynn Lunney on this Q in IP law generally, not on norms.]

Q: interesting work on architecture—fan fiction sites where the sharing models are designed by women, v. FB where all the creators of the sharing features are men.   [missed the name, want to know it!]

A: link there b/t code as law and norms as law.

Q: identify situations where formal law has replaced norms, or where there is demand to codify norms. Could happen for different reasons: norms might be suboptimal, or somebody lobbies to impose costs on someone else. Transitions are revealing situations.

Andres Sawicki, The Law of Creativity?

Lots of different models of creativity. Law’s traditional model: works are public goods, need incentives.  Categorization: (1) Motivational. Focus on the individual; psychology; motivation for creative behavior. (2) Environmental. Individual behavior isn’t the primary determinant; there’s a lot of serendipity, fortuity, unexpected results, play; what matters is the sociocultural environment in which the individual environment and so we should focus law on opportunities for serendipity.  There’s surface tension, so to speak—the agents operating in these models look very different. Homo economicus is completely unrecognizable in ordinary life; in the creativity models, we have rich portraits of humans operating in recognizable contexts.  There’s also tension in the role of IP law for the models. IP is central to the operation of the model in public goods conception, not so much with the others.  (1) and (2) tend to bash the rational actor’s lack of realism. 

Can we resolve this tension?  Respectable realism, from philosophy of science. There are lots of useful ways to look at a given phenomenon depending on what you’re interested in.  All models are wrong but some are useful, and it’s with that in mind that we should choose our models.

Could also abandon model realism more generally.  Model realism is an important natural sciences issue—are there “really” subatomic particles just because we can make/verify predictions that come from positing their existence?  As legal scholars we don’t need a grand unified theory, or to posit unique differences b/t intrinsic and extrinsic motivation, we just need to know what we want to do. What are we using these models for?  Generating testable predictions is something we want from models.  But we can also make interpretative uses: looking at hypothetical situations.  Models can also be built from the ground up, used as slightly more abstract representations of reality in order to organize our thinking/our world—that’s going on w/some of the models in the literature/critique of public goods model.  There’s no right way to do this.

Jeremy Sheff: Epistemological roots of those philosophical schools matter—American pragmatists, for example. When rubber hits road on doctrine, will intersect w/Legal Realism in important way b/c of the epistemological commitments in philosophy of science and how they map to Legal Realism.

A: His point is that we’re not there yet. Entirely possible that all these models and maybe more will provide useful insights. [Some pluralism about realism?  That would be a fantastic title, I think.]

Sheff: that’s a very pragmatist idea, but there are limits on how far a pragmatist take on epistemology can take you. If it’s about how our community defines truth, then the interest shifts to the definition of our community.

Christopher Sprigman, The Second Digital Disruption: Algorithms & Authorship in the Adult Entertainment Industry

First digital disruption: rise of content distribution on the internet—Napster disrupted the music industry. Now, with porn, content builds brands to sell other stuff: just as with Amazon, its video content is an inducement to get people to sign up for Prime.

Mindgeek started w/ rise of YouTube: pornographic user-uploaded videos. Destroyed the mom & pop outlets. Large financial backing enabled Mindgeek to use piracy to drive down the value of the mom & pop outlets and then buy them up.  Camming has stabilized as an experience good, hard to knock off—like monetizing live music performances.  There’s an enormous custom market now.

But the next thing that happens is Mindgeek’s dominance. Now that they control so much production and distribution, user data comes back to them, allowing them to kick off the second digital disruption centered on data-driven creation, if this is a harbinger of what is coming from Netflix and Spotify and Amazon: to shape the way content is presented and even made.  Netflix made House of Cards because their data told them that a group of consumers they wanted to court would like a BBC-like political show and would like Kevin Spacey.  What picture you see when you see a tile for The Crown is based on your responses to past ads for shows. Amazon is following in Netflix’s wake, greenlighting content and then strangling it in response to data. Spotify is interested in computer generated music.

Data changes the risk of failure. More data: maybe able to create fewer risks.  Can also indirectly address the risk of success (which is piracy).  Entities that engage in data driven creation tend to be big and to have an all you can eat model, which makes piracy less important. We might be able to have less copyright and get the same investment incentives because the risk of failure is less (so the incentive needs to be less) and the risk of piracy is also less.

Moral intuitions about copyright: labor theories.  Consumer preferences and choices might start to be understood as part of the contribution to the “work” that is produced. One model: The creator brings something to humanity, like Prometheus bringing fire: that myth is hard to sustain with data driven creativity. The creator is watching the watched, who are then watching their reflections.

Sheff: I should hate this trend, but not sure about what’s the problem.  (A: Feels manipulative.) Even if it is in this iterative way, you still need experiments: you need an A and a B for your A/B testing.  You don’t reach an equilibrium. Data driven model can’t seem to capture that.

A: lots of research tries to pin this down. Newness plays relatively modest role—we tend to like things that are a little bit new but not a lot. Not that different from what we actually like, but we just tell ourselves a story about what we like that doesn’t match with our real enjoyment.  He thinks of fashion: often the constant churning of the same stuff. Hard to make judgments about whether fashion is more or less creative than other fields. These Qs are above his pay grade.

[Jon Ronson’s The Butterfly Effect influenced my thinking here. Camgirls and customs are the opposite of algorithms: this story you’re telling is not really about algorithmic creation but about the immiseration of the middle class, where Mindgeek makes all the money and we’re back to cottage industry for everyone else.  Note that this content is mostly functional, and the average stay on the site is ten minutes; they don’t think they can give guys more orgasms or longer ones, do they?  So what is the data being used to shape content for? There are good reasons rooted in the structure and incentives of the firm why they might want to use the algorithms to direct the creation of porn and tell people that they are making better porn as a result, but it’s not obvious why this tells us about creating things that have more degrees of freedom/some aim other than producing an orgasm.  So, for example, I’m pretty sure a lot of big companies would prefer AI performers instead of cattle/actors [who might, you know, end up being Kevin Spacey]. But I also have a strong sense that AI performers won’t work for some significant subset of porn consumers, to whom it is important that a woman do something for them. I could be wrong about that, though.

Relatedly: Cui bono: and what is the relationship of who benefits to the content of what is produced? When I was growing up guys didn’t expect to come on our faces, and at least the reporting tells me that things have changed.

A: [partial] Interpretive qs are beyond my pay grade. [But if you’re telling us to draw conclusions about creativity from this example, that’s what you’re getting paid for.  We are privileged white people and some topics might not be our topics to publicize and pioneer the discussion on.] The paper is about a phenomenon of which the adult industry is the best exemplar, but Netflix and Spotify are part of the story. Camming and customs are happening and have nothing to do with data. We’re trying to show you where Mindgeek came from and our fundamental story about how the use of data may transform industries [but if you’re only telling half the story about what the industry is, then is that a useful account? It seems a lot like talking about work without talking about domestic, unpaid labor].

Rosenblatt: consider the things toddlers like to watch on YouTube—it’s not what you think. Normatively may be unclear/different.

Lemley: old enough to remember when cable was going to replace TV with ads b/c of the new business model.  In fact, it just gets layered on top of the existing revenue generation model. Fine w/normative suggestion that we should be fine w/piracy but as a practical matter, the business model is likely to be “here’s a new way to make money.” [Relatedly, dialing down on copyright dials down the only lever that the people in cottage industry production may have, which has serious distributional consequences.]

A: risk of failure going down changes incentive structure, and risk of success going down has indirect effects, suggesting recalibration could be appropriate.

Lemley: differential benefits for big producers which are the only ones who can do this at the necessary scale.  Small producers lose out.

A: this is what people accuse Mindgeek of having done—used piracy to drive down value of companies they acquired. TW/AT&T merger: TW made argument that they needed to be able to hook up to digital distribution in order to target ads/shape content and avoid competitive disadvantage w/Amazon and Netflix; the judge totally bought it.  Data now becoming more salient in creation of content: that’s a fundamental story. Whether this is good or bad is a new set of questions. Sounds like new issues of platform dominance, as w/FB.  That may be indeed what we’re facing. May make sense to oppose it and do something about it but we have to identify it first.

Immiserating the middle class: FastCompany CEO wants lots of middle class musicians, not people earning millions a year.  Self-serving vision but not normatively worse than opposite. Artists do benefit in surprising ways: bands on tour use Spotify data not only to decide where to tour but also what songs to play in what cities. In equilibrium, we should expect artists to do better at identifying and finding their audiences.