Kozinski: Questions and answers

From the question period:

Josh Sarnoff: In light of eBay v. MercExchange, don’t we need to rethink the adequacy of damages prong of the copyright injunction test? The interest at issue (in the Seuss case) is something like a tarnishment/moral right.

A: That’s worth talking about. Don Quixote’s first part was very popular, and people wrote sequels. Cervantes rushed to complete the second volume, then died weeks later. Two points: (1) nobody remembers the knockoffs, because people can distinguish between the authentic and the unauthorized, and (2) we owe the knockoffs a debt! What if Cervantes had felt less pressure? A little competition is a good thing.

Jonathan Band: Doesn’t eBay allow a court to avoid an injunction now?

A: Kozinski hasn’t looked at eBay as a copyright decision. He assumes it applies, especially because of the First Amendment implications of copyright. But his guess is that courts won’t apply it to copyright. We don’t think of patents as moral creations in the same way. They’re just commercial, not personal. You don’t damage a reputation with patent infringement. (Though according to his argument above, you don’t generally damage a reputation with copyright infringement, either. And can’t you tarnish a company’s reputation for having a unique product with patent infringement?)

Kozinski thinks the moral aspects should be handled by trademark/state law, but he isn’t 100% convinced of this.

1L: What about new forms of adaptation, videos, mashups? They’re not coming from just a few established actors like Penguin, but hundreds and even thousands of creators. Could the new mechanism you describe be scaled up?

A: The internet creates enforcement problems distinct from commercial enterprises. This may be something that would require an injunction because people can’t pay. (So much for the First Amendment aspects of copyright!) But first, Kozinski would have to be convinced that remixes materially impair the copyrighted work’s market. If that’s not the case, we’d look at profit. If it’s nonprofit and nonimpairing, what would be the harm? (The circularity problem looms large here. In Kozinski’s world especially, copyright owners have every reason to say there’s always a market, since there’s always a price.)

Internet question: Are you thinking statutory licensing or court-determined rates?

A: Private parties would negotiate first if injunctions were unavailable. If they couldn’t agree, a court would decide.

Q: How does this fit in with the Berne Convention’s 3-step test?

A: Not really sure.

WCL student: If Congress doesn’t take up your proposal, what can we do to fix what’s broken?

A: No real advice. Congress has been more favorable to IP owners because it’s hard for people with undifferentiated interests to lobby, and the Supreme Court seems uninterested in limiting copyright.

Q: The CDA expressly excludes IP from immunity but covers state law causes of action. Where do trade secrets fall?

A: It’s hard to answer that question without an example. In general, the interplay between state and federal law is contentious. Kozinski isn’t crazy about Bonito Boats. On the other hand, we have the Vanna White case, which is a serious interference with copyright in the name of state rights. He hasn’t thought much about trade secrets. By and large he is wary of state-law solutions – the problem is that copyright and trademark are national and state law is piecemeal.

WCL student: What would happen to people deterred from using works, such as fan fiction authors who distribute their creations for free and can’t afford to pay?

A: He doesn’t feel too bad about that. If you want to use another’s story, you’re distributing something you didn’t create. (Comment: The answer seems to miss that this is the same question as the one about mashups, to which he gave a different answer. Also, it’s not what he said about the creativity required to write Dr. Juice.) If people are big fans of the work, you profit in reputational terms – you’ll get a book deal next time. Anything read by millions has monetary value or can be converted into monetary value. (Okay, this really gets my goat. It assumes that everything naturally proceeds into the market, which isn’t true and treats amateur creators disrespectfully, as if they were either just practicing or just failures. Also, collapsing value into monetary value eliminates concepts of noncommercial/nonprofit use and generates the familiar problem of pretending incommensurables don’t exist by creating a universal metric; even if such a metric exists, money isn’t it.)

Q: How would your proposal affect educational fair use?

A: Kozinski doesn’t know enough to know how academic fair use works. He wrote an article in the New Yorker, “Tinkering with Death.” Every so often he gets a letter with a royalty check from educational uses. He’s written many times telling Conde Nast that educational uses of the article should be free and without permission as long as the use is of the entire work. They acknowledge the letter, then later he gets another check. His conclusion: Educational fair use doesn’t work that great right now. (Here’s a suggestion: put the article up on the web, with a CC or even an education-specific license. The unofficial Judge Kozinski site doesn’t have the article, but perhaps it should.)

Kozinski’s view: If an item is directly used by a professor for class, it ought to be free. If it’s in a casebook or textbook that’s making money, that’s different. (Interestingly enough, this is pretty much how the teaching exceptions in the Copyright Act work, or should work!)

Q from BNA reporter: How do you apply your theory to trademark, if at all?

A: Kozinski is less sympathetic to trademark law than he probably should be. The source-identifying aspect is legitimate and deserves injunctive relief to protect consumers. Claims of dilution or simple association are less impressive. Trademark owners don’t like the use of their marks to communicate. When trademarks go beyond source association to linking feelings, ideas, and concepts with a mark, they create a “subtle and perhaps not improper form of mind control.” They want to limit the path of your thinking, create Pavlovian reactions. Kozinski resents it. Once trademarks are implanted in our minds, they aren’t the trademark owner’s exclusively any more.

All in all, an interesting talk. Kozinski has offered his proposal as a practicing judge, not an academic, and that’s reflected in some of the details he hasn’t considered, especially things distant from what’s likely to get litigated in front of him (Berne compliance, educational exceptions, etc.).