What Ifs and Other Alternative Intellectual Property and Cyberlaw Stories

Michigan State University College of Law

There was a great intro on counterfactuals by Kevin Saunders. I will post on it later if I can figure out how to draw and post the pictures.

Panel 1: Free Speech, Privacy and Virtual Reality

Ann Bartow, University of South Carolina School of Law, What if pornography was not eligible for copyright protection?

Bartow started with two provocative questions: How many in the audience thought of themselves as authors? (All of us.) How many had had positive experiences producing or performing in pornography? (Nobody raised a hand.)

IP has generally decided to leave regulation of subject matter in the ordinary sense (gambling, pornography) to those specific fields – gambling devices are patentable, but the legislature can ban gambling. But that skips over the question of incentives. Once we give copyright protection to pornography, we’ve incentivized its creation.

Yesterday’s Perfect 10 decision: these naked women are completely commoditized and fungible – their very fungibility seemed to incite the district court to give more protection under copyright, because there is so much competition in the marketplace. Most of the models transferred their rights of publicity to Perfect 10 – what’s this about? Some of the sites CCBill served used words like “illegal” and “stolen,” and Perfect 10 argued that this served as a red flag of infringement. But the court thought that, in the context of pornography, those words could have been just puffery enhancing the appeal of salacious pictures. So it turns out that content does matter – it wouldn’t have been the same logic for stolen music.

The application of copyright law to photography: Why doesn’t Oscar Wilde have any rights discussed in Saxony? What is the relationship of the body – its infinite variability, its similar appearance in different photos – to the photographer? How much creativity can the photographer exercise over Wilde’s mein?

Why, in an era of animation and computer generation, is live porn still so popular? There’s something about “reality” that adds to porn’s appeal. Bartow asks whether we could deal with the problems in production of pornography by switching to simulation. (Hey, if it’s good enough for Bridgeport Music, why isn’t it good enough for Playboy?) Would copyright be any different? Would the effects on viewers?

Conclusion: Bartow is focused on the production, not the consumption, of pornography. The conversation about pornography in the academy seems to have stopped; Bartow is not anti-sex or pro-censorship, but does want to ask about the conditions of production and whether we want to support them through IP policy.

Amy Gajda, College of Communications & College of Law, University of Illinois, What if Samuel D. Warren’s daughter had eloped?

The Right to Privacy is one of the most important law review articles ever. They wanted to redefine certain protections, specifically “the right to be left alone.” Warren & Brandeis blamed a lot of things on the press – we need to protect the public from personal revelations and from wasting their time on gossip. Prosser believed that the impetus for the article was the press coverage of Mrs. Warren and, specifically, the wedding of a Warren daughter. Problems with Prosser’s theory: Warren doesn’t seem to have had a child old enough to be married at the time he wrote the article. For Samuel Warren’s own wedding, the NYT 1883 described the wedding dress, presents, parties and the number of guests invited. There was also coverage of Mrs. Warren after the wedding. Her father was a big shot, a US senator from Delaware and Secretary of State.

Gajda argues that privacy rights against the press would have developed anyway. Courts had already freely criticized journalism as Warren & Brandeis did, and had already recognized privacy torts. They routinely held journalists in contempt for truthful reports about pending court cases. Even without that experience suppressing truthful speech, the yellow journalism of the day would have prompted some response by someone else.

Warren & Brandeis wanted to recast privacy as more emotional and less economic/reputational. Contract, property rights and trade secrets already protected privacy, and the Warren & Brandeis concept was “another application of an existing role.” Yet courts were already willing to look at the nonreputational harm of exposure to the public – in libel cases, they held that the truth could aggravate the harm to the peace of the family. An 1811 case condemned revelations from a letter written “in mystery and confidence” that revealed the writer’s “open heart.”

Why didn’t The Right to Privacy use these truthful libel cases? Because they have their basis in the Star Chamber, and they were bad news to general defenders of free speech. Brandeis & Warren needed to distinguish truth in which there was no real public interest from truth in which there was.

Final irony: Miss Helen Warren, Warren’s daughter, was a singer who likely courted the publicity that Warren himself criticized.

Greg Lastowka, Rutgers School of Law-Camden, What if reality were pervasively augmented?

General idea: what if digital networks filled your standard visual/auditory field with useful/interesting data? Like sunglasses, providing an overlay to the physical world. You could have different overlays – gamers, Fox News, etc. Is there anything new in this? Physical space carries a lot of data now, not just explicit messages but messages sent by the architecture around us. Billboards exist in reality and in Second Life, which also has a strong anti-billboard contingent.

The problem is that information crowds out other information. Cellphones can cause problems for third parties when a driver is paying attention to the wrong data stream. There are also aesthetic harms. Opt-out may be inadequate – your cellphone in public, like your laptop in class, affects me. Also, it may be difficult to opt out if everyone else has opted in and life is now configured for the default.

Another risk: virtual balkanization, the creation of subgroups sharing a reality that differs from that of others: the Republic.com objection.

A third problem: Advertising creep. The first use of these technologies will be ad-related. (Not porn?)

Privacy: Your sunglasses tell you everything about a house’s owner when you look at the house. Is that worse than the current situation? (It would sure enable my real estate fantasies.) Relatedly: Wikiality. What if people could annotate your house with their own thoughts about it? Flickr has Memory Maps allowing people to tag specific places and record their memories.

Basic question: When the virtual displaces the real, who controls the virtual? Private control will expand, because regulation will start to affect “speech” instead of “conduct.”

Cheryl B. Preston, J. Reuben Clark Law School, Brigham Young University, Free Speech and Internet Pornography: What if Congress and the Supreme Court had been tech savvy in 1995?

Larry Lessig described the CDA as a law of extraordinary stupidity that practically impaled itself on the First Amendment. It was passed with little discussion or thought. Badly drafted, internally inconsistent, and profoundly unconstitutional, the CDA triggered a defensive reaction by people who actually participated in and thought about the internet.

The Supreme Court struck down the offensive parts, but in the process of doing so said some things about tech that are no longer true. E.g., odds are slim that a user would enter a sexually explicit site by accident; children require some sophistication to find internet porn. Pediatrics in February published a study showing 42% of 10 to 17-year-olds have been exposed to internet porn, mostly inadvertently. Compare to Pacifica, which found broadcast to be specially regulable because of its pervasiveness and unique accessibility to children. The internet is equally pervasive and invasive – perhaps more so than radio these days. We intentionally emphasize computer skills for children, in contrast to our educational policies about TV and radio. We shower our kids with electronic devices for internet connection. And children learn the necessary skills for manipulating the internet faster than the rest of us.

Congress wasn’t any worse informed than the rest of us in 1995 – academics were pointing out that only 5% had internet access, and claiming that it was unlikely that the internet would outstrip TV and radio access. (And I’m pretty sure it hasn’t – Preston doesn’t quite claim that it has.)

Even recently, courts think that kids can’t circumvent filters, but Preston knows this is wrong. (I want to see the evidence for this – I’m sure it’s true for some kids, but how many? Can they do it at the library, or do they need control over the computer?)

A better drafted statute might not have stifled the internet. Not all regulation is bad or triggers a slippery slope towards a Chinese wall around knowledge.

Downside of not getting it right in 1995: The explosion of available pornographic material. The DMCA rolled over the techies’ objections to protect copyright, and maybe some middle ground could have been used to regulate porn in a similar way. You used to have to engage in an embarrassing, effortful physical search to find the worst of the worst; now it’s easy access at home. (Videotapes caused the same shift, it seems to me.) It’s hard to stay sober when you live and work at a bar.

The precedent and language from CDA/COPA cases has now stifled the development of law – Congress is discouraged and unwilling to try again. The cases limit the analogy to radio and TV. In addition, the way the Court described the internet becomes the reality – the nature of the internet shaped itself around what the Court said was possible.

She doesn’t think there was a magic answer, but Congress was so ignorant in 1995 that now the temptation is to ignore problems entirely. (How does this interact with legislative proposals to regulate MySpace? To kick sexual predators off the internet entirely? State law regulations of spam?)

Questions: Mark Lemley: What would happen to the availability of porn in the absence of copyrightability? Free copying could increase availability; technical measures might arise as a substitute for IP rights; or the collapse of the incentive might decrease availability.

Bartow: You’re going straight to consumption and creativity and economics – her concern is how porn affects the people who produce it. Porn gets more First Amendment protection than advertising, but copyright treats them both the same. We all recognize that porn is different – note our unwillingness to identify as pornographers.

Lemley: It’s not just money. If you think the harm of porn stems even in part from consumption, you should look at incentives. (I’d add that the production level will obviously be affected by incentives, so incentives are still a significant question even bracketing consumption effects. Copyright for virtual porn and no copyright for real-person porn would substantially change production incentives.)

Michael Landau: What should the role of courts be in determining copyrightability based on content? Congress has prohibited scandalous and immoral TMs, but has enacted no such restriction in §102(b).

Bartow: At the time, Congress assumed no copyrightability. That assumption was flipped decades ago, but Congress simply hasn’t revisited the issue. Congress likes the ability to blame the courts for their decisions. CCNV suggests that the courts have some flexibility, at least in areas like who is an author.

Question: What about women who produce porn? Is it feminist to make one’s own porn?

Bartow: Factually, there’s a bunch of lying that goes on about who’s producing the porn. A lot is PR, fronting for male owners, e.g., Suicide Girls. Contrast the liberal response to porn with the liberal response to Wal-Mart: we have no problem regulating Wal-Mart when it abuses workers; why not porn?

Question: Porn and obscenity are two different things, especially in the production phase. You won’t know if you pass the literary/artistic/social/political value test until the work is complete. (Yeah, I’m sure it’s difficult to tell based on the script.) Also, maybe we can combine code and regulation to create white spaces on the internet along with .xxx domains.

Bartow: The reason she talks about obscenity is that Mitchell Bros. explicitly says that even obscenity is copyrightable.

Preston: We can definitely think about allocating ports or other internet resources a la carte, allowing families to choose what they want to be available at the ISP level. That would prevent even tech-savvy kids from evading restrictions.

Comment for Gadja: Warren & Brandeis took a while to catch on; it took Legal Realism to break down the formal classifications that prevented expansion of the privacy right. That’s the real causal foundation for the new torts.

Q: ISPs can offer filtered Internet without a legal backstop, as they do in Singapore or in AOL’s walled garden approach. But there doesn’t seem to be much uptake here – why? The real problem is not law/tech failure, but a failure of norms.

Preston: The AOL filter can be proxied through at home. What we need is an ISP-level access block, and there’s no current way to do that without overblocking and evasion.

Q: Saudi Arabia blocks about 99% of porn, with a 20-person staff. They’ve constructed their internet to work this way. AOL can also filter out proxy servers. You can make it so difficult that your kids have to be Linux programmers to evade.

Wendy Selzer: Preston’s reference to the success of the DMCA made her gasp; in lots of cases it’s been used to suppress lots of speech. Selzer thinks we’re better served by a black-and-white view of regulation (that is, it’s bad).

Preston: She meant that we haven’t been hands-off in other areas – Congress has enacted limitations with profound effects on the internet, so it’s not as if we have a lack of regulation and regulating porn would be the first/only intrusion.

Selzer: What makes you think Congress can do better regulating porn than copyright?

Preston: That’s the glory of what-ifs.