Friday, August 12, 2022

IPSC Closing Plenary Session: IP In the Courts

 Automating the Uncertain Judge

Courtney M. Cox

Ignoring uncertainty is wrong. An ideal judge aims at proper outcomes, and if they ignore uncertainty they ensure error, sometimes serious error. Ignoring strength of belief won’t always result in error but sometimes it will. Rule-driven and data-driven models both need to grapple with uncertainty. Jurisprudential tools & doctrines exist, along with rational methods for coping with uncertainty. More research is needed.

Q: can a data-driven machine be a legal realist? If the idea is to take into account sufficient social context, the training data is the beginning but not the end of decisions, won’t it converge on rule-based formalism?

A: Probably a machine can respond to whatever it had for breakfast. Underlying the Q are the difficulties in the data: what judges had for breakfast causing variations is baked in, which is commonly discussed in the context of bias. We at least have a sense of what we want to control for or what they’re doing wrong, but work has been started on that; here, with uncertainty, there’s not a lot of work figuring out when a judge is doing something for jurisprudential reasons or because they’re uncertain about which method of textualism to use.

Silbey: What’s the difference between uncertainty and highly contextual analysis?

A:  Probably related.

Q: why not program different versions, one that tries to minimize transaction costs, one that tries for legal realism, etc. and pit one against the others?

Some discussion; she showed a diagram about judges who were committed to different theories of jurisprudence (e.g. originalism, pure natural law) with different degrees of confidence, and used that to show a model of how those judges would evaluate overruling Plessy/deciding Brown as it was decided. I didn’t really end up convinced that this was doable or descriptive of uncertainty in judging at the jurisprudential level as opposed to the factual level.

Schedule A Defendants

Eric Goldman

Complaint doesn’t list actual defendants; schedule A. Often sealed; often contents are Chinese manufacturers who are alleged counterfeiters. Similarity to Doe defendants—one advantages is plaintiff can use the revelation of identities of defendants as leverage to get settlement, as in the porn/© cases. Another option: list them in the caption; making joinder concerns more obvious. No confidentiality of Ds’ identities—defendants can coordinate; asset freezes may not work.

Location by state, per Bloomberg Law: ~3000 in Illinois, ~500 in NY, 374 NJ, long tail. About 3000 default judgments, 688 voluntary/joint dismissal, 44 admin dismissal, 33 trial/judgment entered, 15 contested dismissal, 15 summary judgment, 2 other. Where unsealed, about 218 defendants per case, meaning that Emojico sued over 10,000 defendants in one year. Most of the cases are TM (3000).

Concerns: Robo-pleading; problems with service/how do we know it’s working properly; personal jurisdiction—we know that harm in jurisdiction is not enough, and addresses may not be listed; joinder/filing fee issues—how are the parties related enough to all be on the same complaint? Very few judges raised it on their own.  Sealed defendant lists: a red flag b/c we can’t track what’s going on in courts that way—the rejoinder is that we need to seize their assets, but we don’t get unsealing even when there is no concern/seizure is accomplished. Emojico dismissed defendants who showed up to fight back. All this is ex parte. Judges used to adversary process can allow lots of errors to creep in if the other side doesn’t show up.

The point is not to litigate, but to get the court order to take to a place like Amazon, which will shut down the entire business and not just the targeted conduct. The judge doesn’t know this and things look like they’re going pretty well to the judge.

What do we do? Judicial education? FRCP?

Emojico targets people selling mugs that have emoji on them advertised as “Emoji Gifts Birthday Present”—rubber-stamped as TM infringement every step of the way in court and by Amazon. This is worth fighting back against.

Lisa Ramsey: Lifeguard licensing also claims to own rights in “Lifeguard” and cross. When someone fought back, they dropped the case and the court denied an attorneys’ fee request. So we need something to be done.

Lemley: Defendant class actions do exist—there are protections for the class, judges have to sign off, could be expanded.

A: loves that idea b/c it would force evaluation of commonality between the parties, which is worth looking for.

Felix Wu: how much do substantive claims matter? Troll usage is bad, but can imagine legitimate usage by mass infringers.

A: needs to consider more—horrified by the procedural aspects.

The Class Action as Licensing and Reform Device

Xiyin Tang

Google Books settlement was rejected; quasi-legislative provisions were more for Congress. Have there been other settlements in class actions that tried to obtain a release not just for past harms but for forward-looking uses. Relatively few 1938-1990: 7. Three filed by the same person, head of ASCAP; another performance rights; composers. From 1990-2000, 22 class actions. Tech was a driver. Many were attempting to address new tech uses. Cahn v. Sony, SDNY 1990, was about audio tapes; settlement wasn’t monetary but promise among settling parties to pursue subsequent legislation, resulting in Audio Home Recording Act. Frank Music v. Compuserve, SDNY 1993, for liability for ISP for infringement by users. First settlement in copyright class action providing for future royalties. Pre-512; Compuserve testified in Congress multiple times about the need for safe harbors, and their class action experience alerted them to the uncertainty in law/need for legislative resolution.

Ferrick v. Spotify, SDNY 2018: licensing the long tail of songwriters/publishers; claim was that they shouldn’t have used the NOI compulsory licensing process, esp given that Copyright Office couldn’t keep up with the volume—work by work process wasn’t tenable for music streaming; settlement provided a lot of framework for Music Modernization Act.

Mass tort settlement as regulation: global peace. Here, though, the rights aren’t necessarily recognized in substantive law, which leads to the filings in the first place—the class actions are gap-filling. Will continue as new tech uses challenge ©.

Q: CAFA?

A: Proceduralists worry about Ps getting too little and © folks worry about Ps getting too much. But courts are supposed to scrutinize settlements more carefully, which is significant.

Sprigman: Public info: Spotify relied on Harry Fox early on, before NOI—Harry Fox would match what it could. Over time they would rematch and pay out arrears for new matches. The plaintiffs said paying arrears wasn’t allowed. What’s the reaction? Harry Fox lost its place—it’s not the central player now that it was then. Statutory damages made this messy: damages were either very payable or astronomical, and it was very difficult to know the range. Another source of uncertainty: there was a claim that for normal streaming (no copy) there was no digitial phonorecord delivery, which meant there was no license needed, which created uncertainty on the other side. So both parties had an incentive to get the process fixed and NOIs rationalized.

A: HFA is owned by the music publishers so the fact that they could not actually get it together to figure out who owned what was also significant.

The Solicitor General’s Mixed Record of Success Before the Supreme Court in Copyright Cases Pam Samuelson

Started w/significant contrast b/t SG’s brief in GvO and the outcome. Likewise the SG supported Georgia against PublicResource.org. Compared to the patent side the SG does not have a great record of success on substantive © issues. OSG has won two cases for the US (Eldred & Golan) & lost one (Dowling). Justices have more confidence in how they thought about © for themselves, especially with Breyer and Ginsburg.  SG filed only 2 amicus briefs in 20th c private litigant cases (CCNV, Quality King), but amicus in all but 2 of 21st century cases—pretty big shift. Procedure/remedies, SG analysis or close prevailed in 5 of 6 cases. Substantive: didn’t agree with SG 9 times. In 4 cases agreed with SG about who should prevail but not about why, different/narrower. 4 cases: disagreed with both who and why. One 4-4 split in Costco v. Omega, where SG failed to persuade SCt to rule in Omega’s favor. Also did not prevail in 2 remedies cases. Where the divergence was only on analysis, not outcome: Grokster, Aereo. Divergence, but not huge: CCNV, Star Athletica, Kirtsaeng II (atty fees).

In only 2 of 18 majority opinions did majority cite approvingly to SG arguments—it was Ginsburg. In 3, explicitly criticized SG: Quality King, Kirtsaeng I, and Star Athletica. But mostly just ignored SG, especially in substantive interpretation cases. Contrast w/other studies of SG influence and citation rates.

On average, SG espoused high protectionist views. One reason: growing influence of Copyright Office lawyers on SG briefs. CO lawyers are on 5 substantive briefs and 3 procedure/remedies cases, and also advise the SG.

Why ignore SG? SCt likes its own decisions, including older ones like Bobbs-Merrill.

When should the SG file in private cases? Not as often, absent CVSG or direct implications for CO procedures in registration—Star Athletica or Fourth Estate—or effects on foreign relations/border enforcement—Quality King/Kirtsaeng. Constitutional challenges (though they didn’t file in Felner or Allen v. Cooper). But they shouldn’t file in substantive cases like GvO, Warhol v. Goldsmith. They too often ignore the public interest.

Dan Burk: increased unwillingness to defer to the executive, which might be a bad thing overall.

A: note that the CO is not an executive agency, which should complicate things. And it stayed out in the 20th c. IPEC, USTR, and © group in the USPTO all reinforce the CO’s high protectionism, so it would be good if they reached out to other entities. No real federal interest.

Burk: EPA’s views on how statute should work should be weighed even in private litigation.

Silbey: cynical explanation—where they practiced before?

IPSC Breakout Session 5: IP Theory & History/Creation and Morality

Copyright’s Higher Pleasures

David A. Simon and Patrick Goold

Refining © utilitarianism in the vein of John Stuart Mill so it wouldn’t be fit for swine. Qualitative hedonism. Critiques of utilitarianism can be normative: IP can/should be shaped to foster attractive culture, etc. Epistemological: Although utilitarianism sounds nice, it’s difficult to calculate and the complexity makes it difficult/impossible to get real answers about law. Interpretive: Progress clause has been misunderstood to focus on quantity not quality.

Mill distinguished between higher and lower pleasures. This gives room for values; preference-based evaluation is likely to include values we care about, like democracy. Probably can’t know whether copyright is empirically justified, we can still study copyright empirically and understand how it will be difficult.

Zahr Said: Great inquiry, but consider who you’re citing discussing critiques: 7 out of 8 men, two people of color by her count. The field especially in the critiques of L&E is far more diverse—Madhavi Sunder, Maggie Chon, Betsy Rosenblatt, Ruth Okediji, Anjali Vats, Mala Chatterjee, Shubha Ghosh, RT, others—why aren’t those others represented?

A: we’re trying to look at people who have directly engaged with utilitarianism directly. [Sunder’s book does extensively.]

Rosenblatt: Hierarchy of pleasures might increase distributional problems by heightening discrimination against the subaltern. That doesn’t mean it’s not productive. But you have to contend with/explain why you think this isn’t an approach that further marginalizes those with nonhegemonic preferences.

A: primary criticism leveled against Mills is elitism; we think we have ways to grapple with it.

Chatterjee: There are non elitist critiques about how to evaluate pleasures and compare them in intensity as well as quality; suspicious of those w/normative critiques of preference satisfaction will be satisfied with a story that ties democracy/speech’s value to the fact that they’re pleasurable any more than tying them to the claim that we prefer them b/c that’s missing the point from their perspective: they matter as independent goods.

A: question is are you sneaking the value in through the back door? Are the higher pleasures infinitely superior and always trump any quantity of lower? Or are they a lot better? Or are they just different? We will try to address those points.

The Macroeconomics of Intellectual Property

Eric E Johnson

Most of us think about microeconomics with L&E: supply and demand curve, allocating production/consumption. Its goal is economic efficiency. Macroeconomics is about, fundamentally, growth. Most scholarship in L&E is about micro. Solow model of growth as function of three things: labor, capital, and something else (innovation/change). At some point, growth from capital investment plateaus, and further growth requires innovation. Your fourth tractor may not do much given what you have to plow; your capital may need to replace worn-out capital investments like bridges. The something else may be called the effectiveness of labor or innovation.

Additional work: Overtaking principle: w/sufficient rapid compound growth, economic inefficiency and even distributional justice is rendered unimportant. Fertility: some innovations are fertile leading to more innovations. Separation principle: separate fertile from infertile innovation; strong IP should apply against producers/consumers, but weak IP should apply against innovators.

His critique: (1) Implementation is implausible

(2) Compound growth assumption is unjustified/contraindicated; innovation is not equal to dollars, and inequality is a headwind aginst innovation)

(3) Argument is self defeating: the fertile innovation most needing IP incentives is what most requires freedom from IP to allow further innovation.

Macro should have precedent: Macro captures the key “progress.” Stakes are very high at the macro level—future of humanity. Macro can make a difference—e.g., software should be seen as enabling other sectors. Policy default should be rebuttable presumption against IP for innovation, b/c exclusive rights are sticky; can hurt progress. Prizes, awards, grants, intrinsic incentives should be our first choices.

Rosenblatt: Is it possible to take a macro approach that is also a social justice focused distributional approach?

A: We should first think macro, rather than assuming that everything will take care of itself. It doesn’t assume away justice concerns. If we think about economics, this is what we should do.

Anupam Chander: Can this be done at the proper level of generality? Economics is useful when it makes predictions we can test. Are the macro models testable or provable? For policy prescriptions like prizes, are we looking at macro concepts to test them? Not sure.

A: Tries to address this in paper. Trying to be modest; agree that economic approaches need a lot of rigor. Real world of policymaking is that economic stuff is thrown around without that rigor. W/o acceding to that, wants to reframe: if doing this, need to be thinking bigger picture and not assuming that efficiency will take care of everything we need in society.

[RT: I’d look at Eric von Hippel’s work on innovation wetlands: goes to both implausibility (there is not a distinction b/t consumers and innovators) and inequality effects of what Johnson call separation—denigrates people who are not seen as capable of producing new things even though in fact that’s where new things often come from.]

Morality/Creation

Loyalties and Royalties

Sarah Polcz

Songwriters often share credit equally, even when contributions are not equal; this is associated with higher quality and no lower royalties. Being friends first is associated with more equal shares. Friendship seems to be outweighing economic self-interest industry-wide.

In 1.2 million co-written songs, a significant percentage of all registered with PROs, 63%, are split equally.

Music groups with gold records: of those that wrote own songs, coded which split equally or favored the larger contributor. Equal splitting was associated with more sales and more Grammy awards, even controlling for other factors. Prior friendship was strongest predictor of equal split.

Experiment asked about fairness between songwriters with prior relationship v. met through an ad. Friends preferred equal split.

Implications: courts could reinterpret control to mean control over one’s contributions. Could look at Al-Muhammad dicta, where control might not be important for words and music in song. Industry-specific rules could be developed. Relation may be more important than self-interest in predicting economic decisionmaking.

Their own explanations: explicitly disclaim prioritizing own economic self-interest. I don’t want to win all by myself. I want to win all together. I want everyone to be rich. It’s not a meritocracy.

Sometimes it’s not about words on page, but support that got you there. Didn’t want to draw distinctions in ways that would be required to allocate credit. Connections were more important—it’s our song, on our record. The band is us. They wanted semi-permeable boundaries between themselves and the band, and sharing credit is one way of doing that very concretely.

[“Against economic self-interest” compared to what? E.g., if they weren’t friends they wouldn’t have a hit band. So is equal splitting against economic self-interest? Isn’t it possible that unequal splitting is against bands’ economic self-interest, or failing to keep friends in the band is? How do we know that both arrangements—one with friends, one with colleagues—aren’t efficient for their own situations [on basically theory of the firm grounds]? Relatedly, how does that give us any insight into situations that didn’t go well, like Al-muhammad, where there was no agreement to give credit in the beginning?]

A: the point of comparison they had in mind was whether they’d push for more credit for themselves—it’s their reference point, but the consequences of proportional split are not certain.

Fagundes: instead of self-interest, you might distinguish wealth maximization from welfare maximization; they are maximizing welfare in the short term even if not wealth though they might also be maximizing wealth in the long term if sharing equally makes for better creation.

Generalizing from music is difficult: the group identity of a band may not exist for screenwriters who don’t feel themselves to be a unified entity, or other collaborative works with dozens of people working on a film or software.

A: agree it’s difficult to generalize, so could be a basis for industry-specific rules. Songwriting is usually just two or three and that may matter to the control rules.

Q: what if someone had been burned before? Did you hear from people who had past disputes or problems?

A: didn’t analyze interview data through that lens, but anecdotally they seemed to take each collaboration as they came and justified whatever practice they were using in each situation.

Based on a True Story: Life Story Rights, Modularity, and the Propertization of the Self

Dave Fagundes and Jorge Contreras

Inventing Anna: claims to be a true story except for the parts that aren’t. Docudrama is a popular genre dating to the early 20th century. Life story rights go for five or six figures, but the problem is that they don’t exist: what he means is that there is no doctrine of intangible property law that gives us private control over the facts that comprise the content of our lives, as long as you don’t suggest endorsement or association, defame the person, or disclose private facts. The small number of people who sue tend to lose, including b/c it’s hard for well-known public figures to bring these causes of action.

Why do Hollywood studios pay money to acquire rights that don’t exist? Historical writing, trade publications, discussions w/lawyers in Hollywood. Four functions: (1) Serve as grant (authorization), which has in terrorem effects on subject—if you don’t like the proposed depiction, the studio holds up the agreement and says “you signed it away.” (2) Include waiver/covenant not to sue covering both plausible and implausible claims like ©. This is still present with documentaries, which don’t involve life rights but often do involve waivers. (3) Bargaining for amenities—cooperation, details, access to materials like photos or diaries, or leaving the production alone/nondisparagement. In 2012, Equinox released unauthorized biopic of Winnie Mandela and she said it was garbage and nobody went to see it. (4) Exclusivity—don’t work with another studio; some others say you can’t write articles/talk to reporters—not clear whether enforceable. Some subjects say they knew it wasn’t enforceable, but you hope subjects don’t know that or go along anyway.

Normative takeaway: origin story: Ellickson said you need a stable community over time. Entertainment industry is close-knit and so there is social capital and these transactions do occur over time—they found one agreement from 1940 Sergeant York—docudrama about WWI hero. There is a high degree of compliance, maybe b/c of reputational sanctions, or in terrorem effect of agreements.

Complex process is easier to replicate if you make it modular. Increasingly studios are tolerating some creative control for subjects, which didn’t happen 10-20 years ago. Modularity enables transactional efficiency. Also consistent with lay intuitions about self-ownership. Can leverage identity for profit. Mike Tyson was furious when Hulu made an unauthorized biopic: you have stolen my life rights.

Skepticism: good for parties, but systemic effect has third party costs to the public—extralegally erodes spaces that law preserves for public use, like facts being in the public domain.

Lemley: interested that you didn’t say anything about the ROP. Worth noting that lots of people have relatively recently filed suits and even won in lower courts, though not on appeal, on the theory “you did a biopic on me.” Is this also about uncertainty about whether the ROP might apply? Sarver, de Havilland, etc.

A: paper discusses ROP and our conclusion is that, like defamation/privacy, it’s hard to win.

RT: How do studios decide which people/characters need to sign? Does whether they’re villains matter?

A: paper discusses this—life rights deals often relate to sources, not people. How important they are to the story—if they’re not a big character, you get a simple release. One move many studios make is that life rights deals include provisions for main characters that they have to make best efforts to go get releases from other people in their lives. Being a villain doesn’t seem to matter.

Q: do insurers require it?

A: insurers want it, as do distributors. Lawyers know that the lawsuits are likely doomed. One thing they say is that it’s a practical matter: $100,000 for distribution and insurance is an easy. Some carriers say they could allow project to go forward, but it’s priced so the premium goes up significantly.

A Matter of Facts: The Evolution of the Copyright Fact-Exclusion and its Implications for Disinformation and Democracy

Jessica Silbey

Feist conjures the fact exclusion from a lot of cases that don’t say “facts” and the Constitution and the statute, none of which say facts. The argument is not that Feist was wrong, but its reasoning is insufficiently clear today to answer some key questions about the exclusion of facts from ©--copyrightability of codes/standards enacted to law; catalogs, evaluations, digital archives; what is authored original expression is contested/contestable. Not just about access to information and free speech, but also about the nature of truth and knowledge. Where does the fact exclusion come from? Institutional production of knowledge/maintaining authority of institutions to produce reliable facts—legal institutions, journalistic institutions, scientific institutions, etc.

Paper excavates the precedent, which is not about facts. Legislative history of 102(b) is voluminous and mentions facts twice, once in irrelevant way and once in a way talking about labor theory of copyright that Feist rejects. Intellectual history of debates from 1880s-1930s, debates about philosophy, law, and emerging social science about production of knowledge in disciplines. “Fact” was highly contested—universal truths or situational—and always contested until the discipline became deterministic. Anchored in pragmatist movements responding to earlier philosophers.

Facts are institutionally produced/products of institutionalized processes but that does not mean they are copyrightable. Facts produced through these processes are reliable but the processes should be knowable and disciplinarily grounded. The absence of legislative history may be the result of contestation over the authority of the disciplines producing facts—as they become solidified as fact-producing institutions, facts become facts, and the idea of factness becomes more generalizable.

Payoffs: Facts as part of larger public domain that needs to grow and not shrink. © needs to support the institutions that produce facts, which may not mean protecting their outputs—it may mean staying away. Think about how facts can support the public interest. Help us reframe difficult cases like database cases or evaluation cases. Story of institutional authority, not individuality and judgment; we could ask whether the institution producing the work is asking for a kind of authority with coercive force—which Durkheim called a social fact in 1880.

We don’t call it the knowledge/expression dichotomy, and Baker v. Selden is important, b/c it’s disciplinary knowledge that matters—that produces deterministic and reliable knowledge—that’s what the exclusion is for.

Samuelson: 103(b) excludes data by excluding preexisting material—they thought they took care of it in that.

Maggie Chon: French distinguish between connaissance and savoir, knowledge and verified knowledge.

A: we used to have that nuance but the lack of nuance is politicized today in a way that is very worrisome. Doesn’t want © to get in the way of the debate about which institutions are authorized to produce knowledge.

IPSC Breakout Session 4: IP, AI, & Data

Resolving Online Content Infringement Disputes with the Use of AI Technology

Faye Wang

European perspective: Corporations manage notice and takedown, but should a government authority be involved? Large platforms use voluntary automated filtering/content moderation to minimize legal risk. Previous EU legislation was tech-neutral and did not impose a general monitoring obligation. New © Directive does require prevention of future uploads, apparent contradiction of prohibition on general monitoring. Poland challenged; CJEU dismissed challenge; new guidance from 2021: Art. 17 should not be transposed in a way that leads to a general monitoring obligation, but the guidance does not explain how this is supposed to be done if they are also supposed to use automated systems and prevent future uploads. CJEU then held that refraining from putting into place appropriate automate monitoring/filter systems was a factor in whether they communicated to the public. But there is also a proposed AI Act that requires intervention of a human person, requiring assessment of AI before adopted so that they won’t cause harm.

Remaining questions: can AI assisted content recognition/moderation accurately monitor or determine infringement without human intervention? Her conclusion: no. Misrecognition of audio and video may occur. And tech has limited ability to understand context of fair use/fair dealing.

Possible solutions to reduce cost/human hours: AI assistance should be designed to provide better understanding of appropriate context. AI can do preliminary recognition. Then:  Automated computing investigatation process (not AI). Expert manual review for notice and takedown. If failed, online dispute resolution/court litigation.

Good for finding substantial part, but not appropriate for shorter excerpts. In marginal cases, human needs to be involved in reviewing, but they need to be properly trained to identify commentary.

Appropriation of Data-driven Persona

Zahra Takhshid

Should extend privacy to cover data about us. Background in the four torts: use the appropriation tort: one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy. Expanded to other characteristics such as voice, surroundings/lookalikes (White v. Samsung).

Data privacy as the new frontier. May help address TransUnion case: finding a concrete injury rooted in the common law. What type of data? PII, treated as a standard and not a rule/contextually. Commerciality requirement? Quotes SD Fla: “the mere act of misappropriating the p’s identity may be sufficient evidence of commercial value to survive even a motion for summary judgment.” Consent: we’re transferring our rights all the time by contract. But scope can be challenged.

Q: CCPA—is there a need for this in California with its comprehensive regulation?

A: Yes, because we continue to rely on common law privacy torts.

RT: Thinking about Dobbs and the focus on private benefit in proposals like yours: is this supposed to be a right against the government? If so, the regulatory state is under threat in ways you might like for Dobbs but not so much for taxes. If not, whether categorically or because the government’s interests essentially always count as substantial enough to override the privacy right, that’s a reconfiguration that speaks to a profound change in the relationship of privacy to protecting the individual versus protecting the individual against non-government actors, which concerns me deeply. If you don’t change contract law, you may not have bought much with this reconfiguration either.

A: Should be against anybody including the government. [Then I reiterate my concerns about the regulatory state: how should we handle the gov’t’s interest? Balancing isn’t part of the tort, though it comes in for First Amendment-inflected defenses. Does the gov’t have to show justification? Why won’t it always win?]

Q: we consent all the time. How does that work in your model?

A: we need to help the common law grow and not die.

Jennifer Rothman: May want to spend time defining what you mean by privacy to deal with the gov’t q. If your project is just about the private law appropriation tort, that can be made clear. [Can it be asserted against the gov’t?] The real challenge is the First Amendment. Her own position is that ROP can protect privacy in the way you’re proposing, but the First Amendment has to be considered: how much we can tolerate this protection as against speech interest in public data. Need to engage that. Not convinced that you need a commerciality restriction; the common law tort doesn’t have that. [I think that the gov’t’s interest in collecting taxes is not a First Amendment interest; perhaps one can take the position that you aren’t entitled to not pay taxes so that doesn’t count as an “advantage” appropriated by the government, but that formulation strikes me as extra manipulable—and especially since data such as “what I bought from Amazon” are co-created with Amazon, I wonder if you’re entitled to that data as against Amazon under the same logic.]

Zahr Said: Have you developed a theory of abuse of the right? Copyright trolling, TM trolling, what would systematic abuse of this right look like? Sometimes that can help you build in limitations/appropriate scope of the rights.

The Right of Publicity: A New Framework for Regulating Facial Recognition

Jason Schultz

Sociotechnical change and the ROP: moving away from privacy framing, even though FR does have real problems of surveillance and discrimination. Think about when new tech comes along with ability to mass appropriate identities: law evolves, especially w/r/t visual image and identity, going up to videogames and films where people’s identities are reconstituted after death.

Visual identity is central to the existing case law, so there’s no innovation required in subject matter. Setting gov’t and university research aside, there is also clear commercial benefit, e.g., Clearview. Clearview also scraped and didn’t get consent; consent can also be very contextual, as the No Doubt/Activision case indicates.

What are the damages from being used in AI? Commercial value = damage; control; dignity.

Questions about copyright preemption: the distinction is balancing with innovation policy; you don’t have that in ROP cases because the ROP doesn’t care about innovation. Zacchini might be wrong, but if you take all of someone’s identity that’s too much for First Amendment purposes. Baseball stats cases=you aren’t taking everything about the person; taking the image goes too far.

Q: Universities have ethical rules about human subjects; would you change the framing under which they’d go about research?

A: could distinguish university research b/c it’s not products and services. Under Common Rule, publicly available info is ok, so ethical rules don’t restrain anything there. But the consent questions are real.

RT: (1) Universities benefit from research. If you stick with the common law, universities are 100% covered. You can say either universities shouldn’t be able to do this or that there should be a limit for this type of claim, but you need to say something. (2) It’s not persuasive to say that the ROP is better because it doesn’t engage in balancing with innovation policy. [I.e., that it ignores important social concerns.] Copyright didn’t always balance with tech innovation policy; it did so when it started to have big conflicts with it. If this is a common law right, you need to explain why it shouldn’t adapt to new conflicts by balancing.

Rothman: need to develop a bit further the “why.” You’re trying to avoid that by saying you’re just dealing w/commercial appropriation, but the traditional tort is broader; even if it was limited to commerciality you still need a normative justification for these claims, not least b/c you need to do so to figure out the First Amendment analysis. You can likely make out a prima facie case; the harder part is the 1A. Is the advantage/benefit coming from an individual’s identity or from the corpus? That’s a different type of use in the prototypical celebrity or even ordinary person in an ad. That gets to the why of the claim.

A: focusing on dignity and control in the paper. Argument is that the individuals matter because each individual makes the dataset better.

Q: I’m irritated about lots of things corporations do: a traditional phone book can expose information. Why this?

A: Individual rights focus: some people can object even if others don’t. How do you distinguish between “too much” appropriation and fragmented unprotectable data, which is why he’s thinking about the sports cases. There’s something about the image that makes the courts confident there’s a tort there, making it too much. [That ignores a bunch of the news reporting cases, but newsworthiness might be the distinction there.]

AI as Inventor in the Cambridge Handbook of Artificial Intelligence

Chris Mammen

Fed Cir unambiguously concluded that inventors must be human; UKIPO, EIPO have agreed, but the conversation is not done globally/at the marginal cases. One success in South Africa for an AI inventor, but there’s no statutory definition of inventor there and there is no substantive examination of patents, so TBD if/when litigated.

Humanists on one side, industrial policy advocates on the other: both can claim some justification in past statements about patent policy. Practical reality: AI is lab equipment; assisting a human researcher. Sometimes lab assistants get named on a patent but sometimes not. Not just a formal Q of whether the statute requires a human, but the act of invention itself: requires conception, which requires a theory of mind; diligence, which requires a theory of work; and reduction to practice, which requires ability to build the invention or write the patent application. We wave our hands about all of those but we need to address each one for the “AI inventor.”

UK decision is under review: primary holding says an inventor has to be a human. But UK application has some formalities that narrowed the Q. (1) requirement to list inventor to best of applicant’s knowledge. There may be room to say “I don’t know, but I have a right to apply for this patent.” Consider accession doctrines as well.

In response to Q: If we’re going to have a rights regime for AI, we also need a responsibility regime. We’re a long way from the point where I can depose an AI about its claim of inventorship.

Thursday, August 11, 2022

IPSC Breakout Session 3, Language and Authorship/ownership

What Is the Relationship Between Language and Thought?: Linguistic Relativity and Its Implications for Section 230 and Copyright

Christopher S. Yoo

Cognitive linguistics says language may not be independent of thought: language shapes how we think/what we can think about. Very much a debate in the literature: Sapir-Whorf v. debunkers. “Thinking like a lawyer”: you become adept at thinking in certain ways and language is a part of that. Structure of a language: subject verb object; only eight options for order—only two use one of the options, and Klingon deliberately chose that one to be more exotic.

Contrast: Chomsky’s universal grammar. Children don’t get enough examples to do what they do with language. Stimulus alone isn’t enough.

New empirical studies: effects of language on directions, horizontal/vertical/size metaphors for time, lack of numbers in Piraha and inability to do math, feral children.

What does this have to do with law? 230: Roommates.com was the first exception for 230 because Roommates established categories for people to use. By creating a mandatory category structure, that was consistent w/ the idea that structuring a language has effects on the people who respond to it—a determinative component to doing that. Has implications for autocomplete and prompts, and other forms of AI.

Constructed languages: attempts to use copyright to protect them. Tolkien: C&D, but no lawsuits. Klingon: Axanar. Tasmanian Aboriginal Centre and palawa kani: trying to put fragments together to preserve it. Copyright claims attempted to preserve/protect/avoid splits.

Can’t © structure as idea, nor words as too small, but what about the area in between? A new alphabet, a set of words, a grammatical structure? Especially when done for dramatic purposes: should it be copyrightable? His conclusion: no protection for syntax but yes for the language as a whole.

Esperanto fragmented—people keep fiddling with it so it can’t become standardized. See the same complaint in open source software—everyone has to add a bell or whistle. Loglan, created to test Sapir-Whorf, also forked and had a copyright dispute. Palawa kani: asked Wikipedia to take the website about it down, don’t want anyone to use the language except natives until it’s fully reconstructed.

Software: machines aren’t limited by biology, but programmers use the structure of source code. Thinks there’s a difference between protecting SSO syntax and terms; a particular naming architecture might be protectable.

Can we rely on language creator to keep it optimally permeable? Unix died from forking into 20 different versions; no one had the authority to assert control of it. Benefits of widespread use need to be balanced with potential to squelch competition.

Josh Sarnoff: say more about merger. Once it becomes a language, you’ve lost ability to control it.

A: if you create a language that’s entirely yours, you never lose control. It didn’t develop organically. A business code communicating within a community designed to be closed. If public function, no, but if private, yes. Merger is off the table. [So if you bring kids up speaking this language, you will definitely have lost control.]

RT: “Unix died from forking into 20 different versions; no one had the authority to assert control of it.” Replace Unix with English. Why didn’t English die from being control-free?

A: Software is less forgiving than spoken language.

RT: ok, then this is two papers, one about software and one about spoken language.

A: He finds the comparison compelling.

Samuelson: CJEU decided that SAS language was not something that they had a © interest in; they developed the language so their userbase could make programs to run on the platform. WPL took programs written by SAS users and executed them on an alternative platform. That’s a good example b/c it’s a completely made-up language; she thinks that GvO indicates that users’ investment in constructing programs within the language matters. She thinks there’s more flex in merger than Yoo does.

A: author of Esperanto consigned it to the public domain. Authors have options: they can surrender to the public; they can assert complete control; or something in between. SAS: does inviting people in some of the way invite them in all the way? His conclusion: people are better off with more options/ability to say this far and no further.

Felix Wu: Not sure sees 230. If it were true that Roommates.com were based on structuring the language, that doesn’t really distinguish the dating site cases. Don’t think you need it. Feels very different from constructed languages.

A: if you’re just a passthrough and not speaking yourself then you get immunity but if you structure the discourse then you don’t.

Chander: more on Yoo’s side.

RT: very much not: you can absolutely structure discourse and stay immune.

Yoo: You’re protected by the good-faith provision, but it’s complicated.

[Sites are immune from liability for content supplied by users. Ravelry will remove your non-knitting/crochet-related posts. It is covered by 230, including the immunity for user-supplied content, not just the good faith (c)(2) provision, and it should be. The paper may well be more detailed, but there is a difference between an affordance and a requirement. The other dating sites offered affordances; on the facts alleged in Roommates, the site required selection within regulated categories, thus forcing people to select descriptors the law didn’t allow them to select, which was attributable to the site because the site decided what was mandatory. Affordances can also make things more likely/thinkable but as long as fields are optional and are only illegal if the user misuses them, the current jurisprudence means 230 protects them.]

The Right to Speak a Brand: Rethinking the Interaction Between Trademarks and Speech in the Age of Expressive Branding

Alvaro Fernandez-Mora

Tweak of original mark to convey parody/comment: adictas three cocaine stripes v. adidas three stripes; enjoy capitalism in Coca-Cola font; Lost-it in Post-it font. TM owners make dilution and confusion claims.

There’s a lot of literature and case law; focus of courts and scholars is on the extent to which freedom of expression ought to operate. Compare: TM registration, FACK JU GÖHTE—courts finally said that freedom of expression operates in registration as well. Seeing a convergence in application and infringement: freedom of expression as sword, not just shield. Compare: public law measures encroaching on TM use, such as plain packaging for cigarettes (probably impossible in US) which is now the norm in many jurisdictions—prevents use of registered TM. Rightholder tries to challenge validity of rules on freedom of expression basis. South Africa’s prohibition on depicting healthy, happy babies on infant formula containers.

Lessons from this taxonomy: it’s a two-way street. It’s not about balancing incommensurable property v. speech, but speech v. speech which is more feasible. TM can both limit and validate TM rights.

In response to question from Ramsey: Would lead to some situations in which unauthorized use would damage expression function of TM, but very very rarely.

Rothman: we have speakers using someone else’s TM, and speakers using their own, which seem like they’re more similar than you’re presenting. What does validation of TM rights mean in this situation? You need a functioning TM to have a valid TM; can you reject it even if it functions as a mark? The First Amendment comes in only if it functions as a mark (so far).

Labeling and regulation—limiting uses of the mark—are two different things, but they don’t limit TM rights [against other people]—they’re just part of the regulatory machine. In some instances they limit what people can do; in other cases it’s compelled speech. [Here I guess I’m actually with the brand theorists: restrictions on using trade dress/requirements to only use block text seem very likely to impact the ability to build goodwill/secondary meaning. But it’s a question deserving an empirical investigation]

A: maybe grounding is a better term in US discourse than validating. The argument is the huge warning label affects the rightsholder’s ability to convey its own branding message in the tiny remaining amount of the package, but it’s true they aren’t identical.

Jake Linford: how different is the concept “use” from the concept “speech” in your conception? We speak of use as a mark/use of a mark. But is that the same as a speech act in terms of what the owner’s rights are, a third party’s, the government’s?

A: fuzzy distinction [I think that use and speech are identical here—if not used to communicate, then not speech and not a use as a mark at the same time].

Creation, Room 90

The Neglected Role of the Family in Copyright

Tal Itkin

Literature emphasizes social environment’s effects on authors, but rarely discusses immediate family’s effects on authors. Psychological research supports impact of family. Intimacy defines the influence of the relationship.

Many jurisdictions accept special relationship between author and work and give the author control greater than a spouse would have over other property acquired during the marriage. In most cases, the spouse doesn’t contribute copyrightable creativity. Argument: spouse’s contribution should not be seen through copyright law but through family law. Ownership should require a lower burden of proof: comes from the relationship between the spouses and not from the connection to the creation.

Rosenblatt: compare treatment of inheritance where US © law treats inheritance very differently than many other rights/properties.

A: her concern is divorce law, though comparison is worthy.

Gerhardt: compare right of publicity, moral rights?

A: family supplies raw material for work of art. The moral rights can be seen in some cases as joint, but that will be controversial

The Revolution Has Arrived: AI Authorship and Copyright Law

Ryan Abbott and Elizabeth Shubov

UK has clearly allowed AI authorship for a while, but AI authorship has not been any good for so long there was no real risk of infringement/point in litigating. But the US has not. Recent patent case: patents must come from humans. Seeking cert on that. In ©, the cases are about spiritual mediums and the monkey selfie.

Neither the Act nor the Constitution defines authors; corporations can be authors; so who’s to say a program can’t be an author, especially given that the standard for originality is so low. WFH: an AI can’t sign a written contract or be an employee, so it doesn’t really fit. The machine has no rights, so there’s no worry about exploiting it.

Arguments against: machines can’t create, but that seems technically unsound. Only the thing the person doing is the sort of thing that ought to be protected. But we don’t really know what people are doing; people in philosophy of mind and computing think that what the computer and the mind are doing is very similar—generative algorithms. Consequentialist benefits of just protecting human creativity: relational—it’s good for people to create. But the history of © law is about encouraging creation and dissemination of creative works, and if we happen to help some authors along the way that’s good. AI doesn’t need incentives to create, but that’s a straw man b/c you will encourage people to make and use generative AIs that make creative works, and these can be expensive and also you need incentives to disseminate. Denying © protection sets up a 2-tiered system where Marvel will be able to generate a movie that people will love, but won’t be able to do that and keep © even if the human-involved version is less efficient and less good.

Fagundes: Worth pointing out that all creativity is mediated by some technology. The camera does work for the “author.” But who is the person?

A: the AI should be the author.

Fagundes: WFH seems analogous. But it’s not a given that a visual artifact has to have a ©--Meshwerks, Corel.

A: people like works that they value as creative works. Now AI is finally likable and tech people are making lots of AI art.

Fagundes: if likable and cool, where are the incentive needs?

A: To get more?

Paul Goldstein: there are differences, like the inevitability of death for a human. These programs may be costly, but that points to patents or even sui generis scheme to promote investment in AI, but not giving protection to products created at the cost of electricity.

A: you have to pay someone to make this if a person does it, but if a machine does it, you don’t, but you still need incentives to distribute. Could do it sui generis/

RT: notable that you just said that people are “making” art with AI. But your avowed position is that the AI is the author. Freudian slip?

I’m kind of with the artists: Marvel should have to pay the occasional human to get a ©.

Independent creation: when you can’t trace, which is true for humans, then it may be justifiied to give ©, on a sort of tie-goes-to-the-runner principle, but we can trace exactly what the inputs were for AI even if we don’t know why it ended up generating this particular image.

A: But people train on datasets as artists; all creation is remixed from what’s come before. A machine that has trained on 650 million images creates something that looks original.

IPSC breakout session 2: Int'l IP. TM, Antitrust

International IP

Infringement as Artefact: The Curious Case of Paramount Pictures v Rup Kamal Chitra

Arpan Banerjee

Film industry 60 years ago was not seen as respectable industry in India: female actors were considered sex workers. Banks wouldn’t give loans to filmmakers. Easiest way to make money was to make a film likely to succeed, and copying a successful foreign plot was a good way to do so. But there weren’t reported lawsuits against Bollywood films. Around 2010, some studios started enforcing, e.g., Twentieth Century Fox sued over copying of plot of Phone Booth and was successful.

But we have to revise the story: National Film Archives of India discovered a film from famous Kishore Kumar, modeled himself after Danny Kaye. There’s a lost film, found at NFAI. It was injuncted by a court as a copy of a Hollywood film starring Danny Kaye, who found it on a visit to India. There’s no record of the judgment but there is contemporaneous reporting. Can the NFAI screen the movie? The Hollywood movie is now out of copyright according to Indian law. Paramount waived its [apparently nonexistent?] rights so now it can be shown.

Cross-cultural plagiarism: adaptation of a film to a different cultural context. Disney’s Cars was remade in China as the Autobots, unlicensed remake—Disney sued and won. Generally perceived [by elites] as embarrassing, but can law accommodate the cultural value—e.g., that Kumar went on to become an idol? Now, Bollywood copies Hollywood, but they use licenses—how does that compare? Very few plaintiffs have actually won.

Marketa Trimble: Talk about effect of this on creativity? Are the plots and stories in limited supply, so that we need this type of borrowing? Is it bad for local culture because we might have had a different film instead?

A: Indian gov’t wanted films made from well-known Bengali novels. But there was pressure from the market: this is a business trying to make money. Same reason there are so many superhero movies: a safer investment. Licensing is also one way to do it [which seems to conflict with the idea that without this you’d get home-grown plots etc.].

RT: Insiders/outsiders’ copying is often treated very differently across different groups; can be heightened by racial/national differences: this can even occur with transformative fair use: if it is a subaltern take from within the US, e.g. The Wind Done Gone, then its critical stance towards the original seems easier to understand, but if it is a cultural translation it may not be understood as a critique.

A: Over 1000 cases in the US concern cinematic copying, and very few succeed. In this case, certain gags had been copied from Knock on Wood.

Trademarks

Trademark Free Riders

Mike Grynberg

Due to technical issues I was late to this but the basic argument is that plaintiffs often also free ride on the industry as a whole or other features of a product, along with the efforts of the public/associations that the public makes, and then try to appropriate the entire value to themselves. This should be recognized beyond the specific defenses like functionality. Free riding stories are already part of TM law, but we are leaving something on the table by surrendering that rhetorical ground to TM owners.

Implications: greater emphasis on acquired distinctiveness versus inherent distinctiveness? Get rid of Ambercrombie? Is he advocating for rewards for bigness?

Rosenblatt: The big guys will likely have done more free riding [e.g., Disney and Cinderella, or Disney fandom creating the value for the corporation, for whom matter may not even have been conceived of as source identifiers]. The upside-down free riding story is just as hard to tell in litigation as the mosaic of exceptions and limitations that we already struggle to tell. But maybe there’s a way to tell it differently.

A: He doesn’t want to take on consumer contributions as much here [covered by others]. You fight it when they say free riding or you don’t: say that free riding isn’t relevant to economic considerations v. saying tu quoque.

Lisa Ramsey: worries that acquired distinctiveness is pro-monopoly; failure to function, functionality, genericide are all better than giving rights but trying to limit them on the back end. Comparative advertising is another example of free riding that is actually a very good idea.

Jeremy Sheff: skeptical about characterizing all failures of reciprocity as free riding. Rent seeking is not the same thing as free riding. They are different kinds of failures of reciprocity. Maybe they trigger moral intuitions differently, which accounts for differences in doctrine. You might want to blur the distinctions for rhetorical purposes, but our moral intuitions might differ.

A: There is an issue where everyone thinks there was real work done on behalf of/by the claimant, and that matters.

Mark McKenna: what happens in a lot of free riding cases is the court has the sense “this party created the demand for this product, and so they might be getting the benefit of competitors’ ads, but that belongs to them”—whose characterization of free riding sticks? Student story: every CVS store is accompanied by a Walgreens in the Midwest. One company does the market research and the other follows. It’s obviously free riding and nobody thinks it’s a wrong. You will have to engage with what counts as free riding.

Competition

Gendering Antitrust

Jennifer Sturiale

[Also late to this one, ack.] Things gendered female are privatized, not considered subject to government regulation of unfairness. Antitrust is focused on monopoly, not on consumer harms. Merger analysis: claims of innovation from bigness should get greater scrutiny and greater consideration of alternate measures of welfare that don’t just look at price effects or new products as inherently good.

Q: industries gendered female v. male?

A: I’m specifically not considering that, but it is important, e.g., the market for baby formula.

RT: Harms to labor being considered, not just consumer welfare/prices, also may be gendered/a step to gender equality.

A: to suggest that the firm achieved monopoly profits “on its own” is itself androcentric, but also consideration of labor would consider more conduct to be unlawful. Our notions of contract/markets out of which the current rules arise are themselves influenced by androcentric notions.

Social Uses of TM

Stephanie Plamondon Bair, Clark Asay, and LaReina Hingson

Early stage research on use of “TM” in casual social discourse. Just as hashtags have expressive functions, so does “TM” appended to one’s own expression. Themes in use: stock phrases, e.g., The Feels or I’ve had A Day—also connected w/use of capitalization. Also people trying to create their own stock phrase to describe themselves.

Another use: stereotyping or caricaturing: a feminist v. a Feminist.

Another use: emphasizing or mocking the “officialness” of information.

Another use: branding function for purposes of parody/humorously assert rights or ownership. Relatedly: emphasize corporate aspects of a concept, e.g., Real.

Implications: insight into understanding of TM by ordinary citizens; does it create misconceptions about ownership? If used all over the place, does that impose additional cognitive costs on people?

Jeanne Fromer: Not folk conceptions of TM law, but maybe an overlap. It’s like using quotes. Don’t treat this the way you might treat the word on its own—read this differently, but not as a TM. Might be different than when a company uses TM on a social media post.

Lisa Ramsey: A matter of public education/need to educate the public about overclaims.

A: not clear if people are joking, not joking, ironic?

McKenna: strong impression that people are joking. We teach that TM is evidence of claim, but maybe it’s not.

Rosenblatt: Aspirational but meaningless is how I teach it [how I teach it too!]. Social uses are similarly aspirational but less meaningless b/c they have discursive meaning. Genericide of absent other context.

Grynberg: do people use ®? That is the real consequence of the genericide: ® really means something.

RT: effect of generation hustle/be your own brand ideology—look 10 years back for all the self-help rhetoric? Consult literature on irony: neither joking nor not joking, which may be inherently corrosive to what the TM system is trying to do. The flip side of nonsense TMs—the function of TM has become detached from the functioning of the actual market and maybe the system is just degenerating into noise.


IPSC, Breakout Session 1: Copyright: Music & Authorship

Co-authorship in Comparative Perspective: Intentions, Relations, and Implications

Carys Craig, Luke McDonagh, and Daniele Simone

Looking at joint authorship in UK, Canada, US, Australia. A good moment to revisit the question now that there’s a renewed focus on IP and social justice/race and gender, and authorship in the context of AI. Canada’s IPO disagrees w/her that AI is not capable of authorship/joint authorship, and inexplicably registered AI as coauthor of painting created by combining photo and van Gogh as base datasets. How to avoid reinstating old hierarchies, exclusions?

US: joint work requires intention, merger into unitary whole

UK/Canada: product of collaboration, contributions not distinct.

Overlaps are clear in the case law. Canadian cases: Neudorf, Sarah McLachlan’s session musician denied joint authorship despite contributing original melodies b/c court followed US rule: McLachlan didn’t consider him an author.

More recent authority casts doubt on that but doesn’t resolve the issue.

UK: Beckingham v. Hodgens: session musician awarded joint authorship and equal share when he was asked to play something jiggy that became the most distinctive part of the overall work.

Kogan v. Martin: conversations about work as draft developed: recognized as joint author despite lack of overall creative control over work as a whole.

Contribution: What is the right kind of contribution? How should it relate to the rest of the work? Jurisdictions agree that it need not be equal. US/Canada: it does need to be original. US especially focuses on control as proxy for what authorship is. Mess in Canadian jurisprudence about suggestions: one w/power to accept or reject is the sole author. How distinct/merged need the contributions be? Interdependent enough or not separate? In UK, it was enough that it was the most important part of the song. In Canada, there’s a potential trap: it must be enough to be copyrightable on its own but that might make it separable.

Collaboration: focus on process that brought work into existence: intentions of parties, collaboration between them. Intent is clearly a requirement imposed to narrow the class eligible for joint authorship—to protect the truer, worthier author against undeserving interloper. Why is this so important in the US? Part 3:

Consequences: what results if we find joint authorship? US tenancy in common rules. UK/Canada: joint tenancy rules: you need to act in unison, giving every joint author veto power over work.

How do the tests reflect the consequences of finding joint authorship? How do differing consequences map onto divergent philosophies of copyright?

Looking for test to encourage collaborative creativity and braod

[RT: Holdout risks: requiring everyone to agree allows minor contributors to hold out for too much, at least in a culture that rewards litigiousness; the problems of joint v. common ownership are reciprocal. And it’s not really joint ownership in the real property sense b/c there is always a way out of joint ownership—severance to turn it into tenancy in common, which limits the costs that holdout joint owners can impose on each other. Not available in ©.

Do other jurisdictions have litigation over editors/give © credit to editors?

A: editor example is tricky b/c it’s about construction of originality. What counts as authorial contribution will determine what counts as joint authorship. But in the UK the standard for that has always been very low, including sweat of the brow, so there’s never been a good explanation for why the editor isn’t a joint author. Social norms in the relevant community could inform whether it’s an authorial contribution. But at the same time the norms are often about power and who counts. [E.g., is a dramaturg a coauthor?]

Economic value: old song that wasn’t very valuable first time around; it was rerecorded with his contribution and then was used in a Vauxhall car ad. It was about where the value was found.

Pam Samuelson: In some fields people are credited as coauthors when they didn’t contribute anything copyrightable, only a database or tool. Her position has always been that if the norms of a field say that someone is a coauthor in that field, then © should also recognize them as coauthors. Also: what about derivative works?

A: idea that you look at the results, and that everyone who made a significant contribution should get the reward of ©, is compelling, but we are inclined to “contribution to protectable expression,” including something that generates that expression or informs the specific expression of ideas, might allow us to move away from “independently copyrightable” requirement. Expectations of parties might help us avoid the harshness of the Goldstein claim.

If collaboration is an iterative process, that means the output is more fluid. So how do you build in that to recognize contribution to singular work v. creation of derivative work. In UK/Canada, joint ownership rules allow us to say “no derivative works without all of us agreeing.”

Betsy Rosenblatt: how much of this has to do with availability of WFH in some jurisdictions? A lot of exploitation situations occur where WFH is standard in the industry but there was no contract, and then a problem develops, but it would have been exploitative had they signed the standard contract without a legal problem.

Measuring the Harms of Unauthorized Campaign Music

Jake Linford and Aaron Perzanowski

Licensing entities’ constituencies believe there’s a problem, leading the licensors to create opt out for political uses. Tried to measure whether there is non-moral, measurable harm to artists if a politician with which they disagree uses their song and they object. Panic! at the Disco; Rolling Stones; Rihanna all objected to Trump uses. Looked at whether there was any market effect in the month afterwards: after the complaint, there was a modest suppression of streaming—most for Rihanna, least for the Stones. If listeners are punishing the complaint, we’d expect that to be in Trump-leaning districts; if listeners are punishing the use, we’d expect that to be in Biden-leaning districts—we didn’t see any political effect, though. We don’t know why. But maybe there’s a Streisand effect: a negative result b/c they complained; there’s no story unless there’s a complaint.

To get at the why, did a survey about various bands, including a made-up/unknown one. Looked for political disagreement versus agreement both with the bands and with the consumers. Control use: football team uses the song as a walkout song. Olivia Rodrigo (potential liberal-leaning), Morgan Wallen (fans like to scream “let’s go Brandon”), and made-up Loneome Ghosts. Trump or Biden use; complaint or not.

Respondents say that endorsing a politician matters to them. But does it? For the fictional band, respondents in three of the four test groups shifted significantly in favor of “supports a political candidate” regardless of endorsement. No significance at all in Trump use. But the numbers in the other conditions were small: If objected to Biden use, 7.8% of respondents attributed perceived support of Trump due to objection. If objected to Trump use, 10% perceived support due to objection.

Perceived endorsement generally: Trump use wasn’t significant. In other conditions, 5%, 3.5% perceived endorsement.

Reduction in reported likelihood of streaming or purchasing made-up band when Trump used song, and reduction in likelihood of Rodrigo concert ticket purchase if she objected to Trump. Made up-band may be empty vessel; artist with weaker reputation may be more vulnerable to change; there is not much to change about the Rolling Stones’ reputation.

Could also be explained by Rodrigo’s youth, gender and mixed race v. Waller’s older white male status.

Kristelia Garcia: did you test whether there was a larger effect for the artist or just those songs?

A: we were unable to buy more than data for those three songs.

Garcia: are there artists who don’t like it but wouldn’t complain?

A: 21 Pilots said something to that effect, but we’d need a followup study.

Garcia: control for age/heavy streaming v. political savvy/politically involved: how many people who listen to Olivia Rodrigo are also paying attention to Trump rallies?

Rebecca Curtin: is there any difference in how it’s used? Walkon/background music v. dancing to it.

A: the stories just say the song played (and in some conditions that the artist complained), and that’s all the info the respondents have.

Rosenblatt: Does this give us any insight into why we care? The ©, TM, false endorsement, ROP claims have all been legally very weak. Unjust enrichment? Feeling gross about it?

A: we definitely weren’t looking for unjust enrichment. But a 5% drop might be economically significant.

Jennifer Rothman: does the survey focus on political valence in a way that exacerbates the likely effect versus how many people in the general population even knew there was an objection. What’s the duration of that effect, picking up on Garcia’s point about the overall portfolio? How many Rihanna fans were Trump supporters or even Biden supporters who just didn’t want to have to think about Trump?

Copyright and Nashville Songwriters: A Qualitative Study

Joseph Fishman

Nashville as its own microcosm; looking for 40-50 interviewees total; people in Nashville love to contrast themselves to LA, so not claiming to generalize to all creative concentrations of industries—Nashville is the only songwriting area that has become more dense in terms of percentage involved in the industry; everywhere else has become less dense.

Most writers don’t frame substantial similarity the way courts do—with works as objects. Their own descriptions of right and wrong don’t treat songs as artifacts to be held up side by side. Copying is an act that one person does to another; the acts are wrongful when they are a breach of trust. E.g., if I worked on an idea with a co-writer and we moved on/didn’t finish, and then the co-writer wrote something really similar with someone else. That’s not property rights reasoning. Another: “it’s country music. We’re playing with three or four chords. … Mozart wrote melody. We write chant.”  There are people known for copying, but publicly burning relations with them, and with their label, and with the artists they work with, isn’t worth it.

Dominant norm: cowriters get equal credit, full stop. Transaction costs; things even out over time for repeat players. “The way you get over the injustice of the last song is to go write another song.”

Rosenblatt: Larisa Kingston Mann, Rude Citizenship: “original” means something very different to artists in Jamaica than to the law, so that’s worth consulting.

Dave Fagundes: Geographical isolation? Variation in individual setpoints? Some artists are relaxed about purported appropriation, and others aren’t. Is there variation in individual moral psychology showing up? What happens when there’s slippage b/t norms and positive law of ©? That could mean a lot of spite lawsuits, or it could mean that people go outside the legal system to enforce them. You may see divergence b/t intuitions and positive law.

A: was expecting more informal sanctions, but hearing that it doesn’t work against people with the connections to get your song cut and actually make money.

Silbey: what institutions are specific to Nashville that might explain tolerances/breach of trust reasoning?

[I wonder about the role of insiders/outsiders: Does copying from rap even count to them? LA as important negative model against which they define themselves?]s

Abuse of Copyright: Intervention into Racial Inequity?

Margaret Chon and Olufunmilayo Arewa

Existing proposals for expanding abuse: digital overreach/fair use; First Amendment/speech suppression/fair use; weaponizing against business rivals/anti-competitive uses/over-extraction. Copyright over employee creations might also be copyright abuse.

Napster: anticompetitive licensing; Sony litigation where Sony alleged infringement of © in album cover in alleged retaliation for exercise of termination rights.

Racialized copyright abuse: questionable ownership claims of WFH status or of composer status, appropriating from Black authors. Assignment of rights with royalty accounting manipulation sometimes rising to the level of fraud. A Black artist could seek a declaration of misuse in regard to assignor’s ownership interest/rights: factors outside of the standard tests could be considered in examining contractual terms b/t the artist and publisher/label.

Benefits: it’s about copyright, not contract, law. Copyright misuse currently doesn’t have to be an antitrust violation; this wouldn’t have to rise to the level of unconscionability. Focus on owner’s conduct, not user’s, as fair use does. Applies not only to conduct at issue but also conduct towards third parties. Remedy is unenforceability until misuse is purged. Or: not a WFH if induced by fraud, misrepresentation, or unequal bargaining power.

Part of larger project looking at IP as dispossession and extraction versus vehicle for fair compensation to creators, racial justice, reward for innovation

RT: Is the remedy sufficient for authors who get zeroed out too during misuse? Given all the contracts the labels have signed, they’ll still get paid a bunch of money, e.g., for streaming, and that will just become unallocated and they’ll hang on to it anyway without even paying out puny royalties. Why not transfer control back/beneficial ownership or trust as a remedy?

A: worth considering!

Samuelson: literature on equitable remedies is worth exploring, especially disgorgement. Also look into abuse of dominant position rules in EU.

Tyler Ochoa: Great project, but bizarre statute of limitations rules will be a big problem: the statute runs when you have notice that someone else is claiming ownership which bars lots of claims.

A: could try to resurrect laches. [This seems unlikely to me given the current SCt—but it is reasonably possible that you could get Petrella applied to ownership, too.]

Fagundes: mandatory attorney fees for these cases? [seems to cut both ways]

IPSC, Stanford: Opening Plenary Session: Under-Represented Groups in the IP System

Representation of Female Inventors on Patent Teams

Jordi Goodman

Equity would be achieved in 2092 if current trends continue. Group dynamics: is everyone equally likely to be on a team? E.g., if women are 20% of STEM workforce, and teams are equally likely, then two person teams should be all female .2x.2 of the time, or 4%. In small groups, though, women are underrepresented; in larger groups of 5 all-male and all-female teams are overrepresented. DEI initiatives may be pushing women together to work and not promoting working together? In university groups, the most underrepresented group is a mixed one (e.g., 2 men and 2 women).

Curating Black Music: Copyright, Ownership & Commodification

Olufunmilayo Arewa

Book project: How recording business has shaped identities through curation, including of sexuality and of profits. Copyright incentives to create v. incentives to exploit. Black musical forms are at the core of pop music, not just in the US but globally. African-American artists are particularly affected by sharecropping model in music where it is difficult if not impossible to get out of debt: widespread manipulation of accounting and lack of transparency, which remain dominant today even after major technical change. Lots of discrimination, including by gender; differential treatment of African-American artists. Racial scripts about creativity are the basis for denigrating artists.

Example: Lil Nas X, Billboard removed Old Town Road from Hot Country chart, claiming it didn’t embrace enough elements of “today’s country music to chart in its current version.” Billboard said it wasn’t race-related, which is not particularly credible; shows the historical curation of country music category as for white people. Other genres are considered white still: folk, rock and roll. “Urban,” R&B, etc. are Black. That limits opportunities and denies historical connections, e.g. country’s roots in Black musical forms. [Banjo/fiddle crossover, history of interracial playing, “Black hillbillies” who couldn’t get record contracts.] This is about curation: we decide Black is a category, what fits in it, and what rights people in that category have. Shaped by conceptions of what culture is or should be, but has an economic impact.

Another example: sculptures. We think of them as white but Greeks and Romans painted them. What does it mean to paint those sculptures? Resistance to doing so reflects imagined histories of whiteness. Current assumptions about race shape our visions of the past, present, and future. They can change—they did in the past, which didn’t think in the same way.

African-American artists traditionally got lower royalty rates and paid out in different ways. Incentives to exploit marginalized groups—record companies can treat them worse.

The Gender Gap in Academic Patenting

Miriam Marcowitz-Bitton, Michael Schuster, and Deborah R. Gerhardt

Mary Cade & June Davis: two women very important in making Gatorade drinkable—saving the project—but not credited in any patent, whereas husband Bob Cade (who vomited when he drank the first version) gets the credit. When Stokely got the rights, it assigned chemist Davis to make it more palatable, and she did, but that didn’t lead to public contemporaneous credit.

In 2015, 29% of patent applications name at least one woman inventor—up from 17% in 1997. 7.2% of named inventors are women. There is also evidence of bias in the examination process against people with identifiably female names. About 63% of academic patents filed by all-men groups; under 2% filed by all-women groups. 64% of inventor teams made up only of women are single-inventor teams; not true of inventor teams made up only of men, where many are 2-person teams. Also seeing citation rates in later patents that favor men.

Computer Software Patents and the Gendered View of Computer Programming as Labor or Innovation

Nina Srejovic

Lots of key women programmers in early computing history. When only women were programming, men thought it was sexier to build hardware and no one thought the software was important. Women were viewed as mere operators of machines built by men. Gov’t rating was SP, for “sub-professional.”

Change in identity of profession: to ensure that computer work would not be “handmaiden,” private companies/ newly established professional organizations/academic disciplines/gov’t funding sought to create programming as a discipline in its own right—software engineering.

Lawyers, scholars and judges both fostered and accepted this view. Now the problems were difficult, intellectually challenging, resulting in innovation/invention. Programming became part of the machine: patentable as “instant hardware.” Creator v. user stereotype: what was unpatentable as labor when women did it became patentable when men did it and were perceived to need incentives/rewards. Challenges the notion that women’s own activities determine the number of patents they’re granted. So patent-related metrics themselves encode biases.

Q: about class: also happens with workers who aren’t credited with things they learn from using the machines.

Q: is the answer more software patents or fewer? Maybe the male model isn’t one to emulate. Credit/recognition doesn’t have to be turned into patents.

A: agree we don’t want more software patents of the sort now being issued. But software patents are better than software copyright.

The Innovation Glass Ceiling: How Women are Penalized for Boundary Spanning Research

Ryan Whalen, Tara Sowrirajan, Sourav Medya, and Brian Uzzi

Key premises: there is a STEM gender gap, including in patenting; atypical boundary-spanning inventions are particularly important because they introduce new product categories and expand the tech/scientific universes by making novel knowledge recombinations. Higher probability of being high-value. [Also high-risk: they are more likely to fail too; but they have higher maintenance percentages when granted suggesting higher value overall.]

But: women face barriers doing this type of research that men don’t. Consistent gap in success when there are multiple CPC subclasses for the claimed invention; where the algorithm can’t determine gender, the claimed invention does as well as it does when the inventor is male. Persists through various explanatory variables like inventor/examiner experience, examiner gender, team size, entity size, etc. Some subclass combinations are typical and others are extremely atypical.

The more atypical the combination and the more of the team that is female, the less the chance of a grant. But the more atypical the combination and the more of the team is male, the better their chances. So men are rewarded for atypicality, and women are penalized.  This also holds for first listed inventor. Similar findings from UKIPO and Canadian IPO.

When women are granted boundary spanning patents, they take over a month longer (with controls), they have fewer independent claims than men, they lose more independent claims—about a quarter—on prosecution than men do.

There is no clarity on causality. Questions: examiner bias, employer bias (e.g., excluding women from teams with great boundary-spanning inventions), patent agent roles, art unit/technical area analysis. Assumption: quality is randomly distributed but we don’t know whether it’s true. [Also I wonder which way that cuts: if women’s low-quality inventions are screened out and men’s aren’t, that could be an even worse problem.]

Q: have you looked for whether men make different atypical combinations than women? A: No.


court treats Green Guides as rules/regulations for purposes of state safe harbors

Duchimaza v. Niagara Bottling, LLC, 2022 WL 3139898, No. 21 Civ. 6434 (PAE) (S.D.N.Y. Aug. 5, 2022)

Interesting opinion treating FTC Guides as binding for purposes of state safe harbor laws. I’m not sure that Guides are “rules” or “regulations” in the ordinary sense, given that they can’t be relied on directly by the FTC to impose liability but merely indicate what the agency considers to be false or misleading, but it’s not clear that anybody in this case pressed that question.

Duchimaza alleged that Niagara’s representation that its water bottles were “100% Recyclable” was false and misleading under New York GBL §§ 349 & 350, as well as common law fraud, breach of express warranty, and unjust enrichment. She alleged that the label is not recyclable in her geographic area and, based on national and statewide statistics, fewer than half the bottles she purchased would be recycled. The complaint alleged that some bottle caps and the labels are comprised of PP plastic and biaxially oriented polypropylene (BOPP) plastic, a form of PP, which are “among the least recyclable plastics.” The labels, specifically, are allegedly not recyclable in New York County, where the New York City Department of Sanitation states that “ ‘film plastic,’ including ‘wrappers,’ is not accepted as part of the recycling program.” The Sierra Club has described bottle labels on which such “100% Recyclable” claims are printed as “completely unrecyclable.”

In addition, the complaint alleged that the components made of materials capable of being recycled—the bottles and HDPE caps—are not in fact recycled due to the limited capacity of the nationwide recycling system, and particularly, the recycling plants in Duchimaza’s area.

Municipal recycling facilities (MRFs) both in New York and nationwide now allegedly refuse to accept certain types of plastic and implement strict quality standards, such that acceptance by an MRF does not mean that a product will be recycled. In general, the complaint alleged, nearly 90% of all plastic waste is not recycled, and recycling problems are “particularly acute in New York.” A local news article stated that plastic bottles in Southampton and East Hampton “do not stand a chance” of being recycled as they are sent to landfills or incinerated.

The court found that Duchimaza adequately pled standing for damages even without alleging that the particular bottles she purchased and placed in a recycling bin were not in fact recycled, since she alleged that she paid a price premium based on the misrepresentation that they were “100% recyclable.” But she didn’t plead standing for injunctive relief.

It is a “complete defense” to liability under GBL §§ 349 and 350 that an “act or practice is ... subject to and complies with the rules and regulations of, and the statutes administered by, the federal trade commission or any official department, division, commission or agency of the United States.” The court referred to the Green Guides as “regulations … promulgated by the FTC,” which “establish[ ] commercial practices regarding recyclability claims.”

The parties agreed that the term “recyclable” is a term of art and that the FTC’s Green Guides informed its meaning. The Guides state that:

A product or package should not be marketed as recyclable unless it can be collected, separated, or otherwise recovered from the waste stream through an established recycling program for reuse or use in manufacturing or assembling another item.... Marketers should clearly and prominently qualify recyclable claims to the extent necessary to avoid deception about the availability of recycling programs and collection sites to consumers.

But marketers may make unqualified recyclable claims provided that “recycling facilities are available to a substantial majority [at least 60%] of consumers or communities where the item is sold,” “at least 60%.” And marketers may make unqualified claims where “the entire product or package, excluding minor incidental components, is recyclable.”

The court agreed that “recyclable” does not mean “actually recycled,” making the theory of “not really recycled” insufficient to plead falsity. “[T]he focus of the Green Guides is on the availability of recycling facilities, not the incidence of recycling.” Thus, “whether a recyclability claim is misleading turns not on the incidence of recycling, but whether a substantial majority of consumers can place such products into the recycling stream.” [It sure seems like that could be misleading about the incidence of actual recycling.]

As to the caps and labels, the question was whether they qualified as “minor incidental components” of the bottles. The Green Guides use bottle caps as an example of a “minor, incidental component.” They recognize an exception if “the presence of the incidental component significantly limits the ability to recycle the product,” but there were no such allegations here. As to the labels, the court found they also qualified as a “minor incidental” component, using “the term’s ordinary dictionary meaning, as required when a statutory or regulatory term is undefined.” “The label is more consequential than the cap only insofar as it contains informational content, a point not germane to recyclability.”

The other claims failed too.

Friday, August 05, 2022

Statements in Insider article were plausibly commercial advertising or promotion

Glamour Dolls Inc. v. Lisa Frank Inc., No. CV-21-00228-TUC-SHR, 2022 WL 3098042 (D. Ariz. Aug. 4, 2022)

Frequent IP claimant Lisa Frank is in court this time over a failed deal with a vegan cosmetics company, whose contract aspects I will ignore. The parties initially entered into a cobranding deal: GDI would make cobranded cosmetics in return for, inter alia, a guaranteed minimum royalty. Things fell apart as LFI demanded money but allegedly refused to approve the cosmetics, allegedly also communicating with other makeup companies during this period. LFI allegedly used the “concepts, designs and ideas” from GDI’s samples to launch a new line of products with a larger cosmetics company, Morphe. Insider Inc. published an article about LFI’s collaboration with Morphe; LFI’s statements therein are the subject of Lanham Act claims.

In the article, LFI’s representative said: “Unfortunately, Glamour Dolls completely failed to live up to our agreement, which includes their obligations within the Kickstarter campaign, failing to manufacture and deliver the products that our fans rightfully deserved,” the representative said:

The Lisa Frank Company knows how you feel, as we did not receive what Glamour Dolls promised us either. After many months of pushing Glamour Dolls to live up to its contractual obligations and deliver products—to our fans and retailers that ordered products—Lisa Frank Inc. reached the point of exasperation, terminated the agreement with Glamour Dolls, and contacted the Federal Government. To say we are disappointed by the events that transpired as a result of this license is an understatement.

By contrast, LFI was “excited about the upcoming collection” with its “trusted partners at Morphe” and it knew Lisa Frank fans would “love these quality cosmetics that bring the joy of Lisa Frank to life.”

Defamation per se: The statements in the article could reasonably bear a defamatory meaning.

Lanham Act false advertising: Were the statements “commercial advertising or promotion” even though not in a conventional ad? GDI plausibly pled commercial speech: “The statements in question … reference the Kickstarter products that never were made and seemingly promote LFI’s new line of products with Morphe. LFI’s representative also appears to have an economic motivation to promote the economic and financial success of Defendants, improve Defendants’ image, and create more exposure for Defendants’ new products with Morphe.”

What about puffery?  “Ultimately, the difference between a statement of fact and mere puffery rests in the specificity or generality of the claim.” The statements here weren’t “subjective claims about a product, nor are they a form of exaggerated advertising, blustering, or boasting upon which no reasonable buyer would rely.” LFI’s statements “might induce consumers to avoid Plaintiff’s products, as the statements depict the Plaintiff as a company that ‘completely fails’ to deliver products and abide by its promises. This is a quantifiable claim concerning Plaintiff’s undelivered products.”

Trade libel: Also sufficiently pled. GDI identified specific third parties “with which [it] had previously dealt and/or which had expressed interest in collaborating with [it] prior to the article’s publication” who “abruptly backed out and refused to speak or even communicate with [it]” afterwards.