Saturday, August 09, 2008

IPSC 2008: IP and Government, with YouTube detour

The Political Economy of Intellectual Property
Clarisa Long
Columbia Law School

She collected all the amicus briefs in the Federal Circuit since 1982 (only 385 of them) looking for correlations between support and outcome. She’s done the same thing with proposed bills in Congress on copyright and patent since 1952 (about 6000) and will be running regressions.

Copyright law’s rate of evolution has been much faster than patent’s. To some degree this can be seen in statutory length—copyright is 2x as long and tends to be much more industry-specific. One conclusion: one of patent law’s successes is its uniform nature. The relative paucity of industry-specific provisions has slowed down change and kept interest groups from getting a toehold into the law. Copyright doesn’t have a uniformity norm.

Copyright changes that get passed: have uniform industry support, are industry specific or are about a small number of organized industries, and are in copyright-only bills. Patent changes that get passed: it helps to be related to tax. Death knell: patent bills that stand on their own and are only about patent law; patent bills that don’t have unified industry support.

Who supports whom before the courts? Bottom line: nobody likes big pharma; nobody cares about big manufacturing whether to support or oppose it; one of the most powerful interest groups is “big finance,” a group that flies further under the radar than she would have expected. She also wants to look at the effects of law professor support (laughter from the audience).

In questions: Long discussed the hydraulics of regulation—if you can’t get a result from Congress, maybe from a regulator; if not patent, maybe the FDA; etc. This is very hard to take into account.

Pam Samuelson: Big pharma’s biggest success in the past decade has been TRIPs, and other work with the USTR, so looking for success there might also be of interest.

Long: one of the ways she measured success was the number of bills proposed, who they benefited, and whether they got passed. Big pharma’s success rates there are quite low, but the key may be output. (Samuelson pointed out that stopping unfavorable bills may also be success.)

Other comment: private term extensions for patents are also an indicator of success.

Long: These were very popular until the mid-70s, and they almost always failed; since then, the number has dropped off sharply. The success rate has gone up a little though.

Q: What about effects on international treaties, creating pressure on domestic governments to change law?

Long: Yes, she should also take that into account.

Comment: It’s really easy to introduce a bill. The story of a piece of legislation is qualitative, not quantitative. Interview people about particular bills. So much happens behind closed doors, and involves exchanges that go beyond individual bills.

Mediating Public Choice Problems in the DMCA Safe Harbors
Jason Schultz
U.C. Berkeley School of Law

Public choice theory says that producers have more influence than consumers, and private interests have more influence than public ones.

Given the insights of public choice/interest group theory, should we treat statutory interpretation like contract interpretation? That is, unrepresented parties should be favored in term construction, whereas interested parties who participated in drafting should have terms construed against them. If necessary, they can go back and get an amendment, whereas unorganized/unrepresented parties are unable to do so.

Special note with tech law: there may be nascent public benefits, emerging and undefined, which means that existing users are advantaged over future innovators, users, and consumers. The amount of user-generated content in 1998 when the DMCA was passed was very different than it is today; the economy of UGC has changed and the level of investment has risen.

Who was unrepresented with §512 of the DMCA? Large copyright owners served as proxy for small copyright owner interest, while telecom carriers and ISPs served as proxies for small users. Question: how well did they do? The vast majority of §512 deals with service provider and copyright owner interests. User rights are only represented in counternotificaiton provisions and the cause of action for takedown notice abuse.

Look at the requirements of notice v. counternotice. Notice requires substantial compliance; counternotice requires strict compliance. Notice requires reasonably sufficient contact information; counternotice requires full name, address, and phone number. Notice: no consent to jurisdiction or service; counternotice: mandatory consent to jurisdiction and service. Notice: takedown mandatory and must persist 10-14 days even if user files declaratory judgement; counternotice: putback not mandated. Notice: filing suit voids putback; counternotice: filing suit has no effect on putback.

Injunctions: injunctive relief only requires notice to the ISP, not the user.

§512(f), allowing suit against knowing misrepresentations of infringement in a DMCA takedown notice. A number of cases: Diebold takes down embarrassing emails; Ric Silver takes down videos of people incorrectly dancing the electric slide; Viacom takes down Colbert Parody; Uri Geller takes down a critique of him; etc.

Two arguably ambiguous terms in the statute: (1) “knowingly” materially misrepresent and (2) “infringing.” In Diebold, the N.D. Cal. applied a pro-user stance, finding “knowing” when no reasonable copyright owner could have believed in infringement. Rossi v. MPAA: pro-copyright holder, applying a subjective good faith standard.

Currently: Lenz v. Universal: Prince argues that even an unreasonable belief that 29 seconds of a dancing baby is infringing is enough to defeat a §512(f) suit. Public choice says no: we should interpret the ambiguous provision in a pro-user way, because Prince was well-represented in the drafting process and the mom who filmed the music video and put it up on YouTube was not. Universal is also arguing that “infringement” means a prima facie violation of §106, regardless of whether there are any applicable defenses or exclusions. Schultz argues that this is wrong—copyright owners could have drafted a version that spoke only of violations of §106 rights; users should get the benefit of the doubt, and copyright owners should have a duty to consider defenses like fair use before sending a takedown.

Susan Crawford: Does this create perverse incentives to stay out of drafting? How long does a sympathetic reading for nonparticipants last—100 years? And sometimes courts are more sympathetic to expansive readings because they don’t know anything about drafting.

Schultz: Staying out is a high-risk strategy. This theory only applies to ambiguous provisions, and so if the drafter is working alone she can just write the most unambiguously favorable provision she can think of. Courts like to read the statute as if the language were plain; but we all know that something else is going on.

Q: Where do legislators fit in?

Schultz: There’s a big debate in the literature.

Q: Incentive to draft as carefully and specifically as possible, which is the point, but the result would be to limit judicial discretion—are we worried about that?

Schultz: Yes, we’ve seen a patent/copyright difference with courts’ ability to jigger patent doctrine as appropriate.

Sag: Sometimes Congress is deliberately vague.

Schultz: Yes, that shows that the interests were equally opposed, and that’s useful info for the judge to know.

Sag: Where does constitutional theory come in?

Schultz: The majority of the public choice literature focuses on constitutional rights, arguing that courts should be more sensitive to interest group manipulation.

YouTube and Sharing: Competing Business and Cultural Models in the Digital Era
Abstract | Paper
Olufunmilayo Arewa
Northwestern University School of Law

There are a wide range of behaviors: copying verbatim, reuses and recreations, transformative uses—all are enabled by the digital era. We often assume that cultural practices are homogenous, but they’re not.

Sharing is not new. Lessig: one way to see Disney is as a major remixer of existing cultural works. And the Brothers Grimm from which Disney borrowed were also remixes. Still, the high culture model of the isolated genius in the attic retains a lot of influence in our discourse. There are extensive interactions between high, medium, and low culture. High borrowed from folklore; low borrowed from high and popular; low is redefined over time to become high—classical music is canonized, though at the time it was written it was popular music. Many classical composers were persistent borrowers.

19th century: folklorists ran around collecting peasant folklore, because they assumed it was going to die out; they were also worried that people who came to the city stopped doing peasant dances and started hanging out in bars. But folklore is persistent and can give us an alternate model of how people create, by sharing. Riddles, jokes, proverbs, urban legends. There are multiple variants, shared cultural elements. People are using and partaking of them in everyday life—a model of Web 2.0 creation.

What do we care about—Culture or culture? Culture is perfected, while culture is evolving—Matthew Arnold and Andrew Keen like Culture. She’s not sure Keen is entirely wrong about the narcissism of Web 2.0, but it’s useful to think about what people who aren’t “authorized” to create culture actually create. The peasants who came to new urban enviroments behaved differently—not like they were supposed to, going to dance halls etc.

Cultural studies treats copying as something very different than copyright law. In musicology, there are dozens of words to talk about copying, from borrowing to homage, and we in law don’t have similarly rich tools. Folklore could be a good model for thinking about culture.

From a business perspective, the competing visions of culture are (1) vibrant, where existing works are building blocks and (2) valuable asset, where copyright enables the protection of revenue streams from existing works and strains towards a pay-per-use model. They aren’t mutually exclusive, but they do tug in different directions. She sees parallels with the canonization of classical music in the 19th century. The canon was untouchable, had to be performed as-is, and classical music died as a vibrant, living cultural form.

Q: What about the economic motivations of creators? Bach stole from Vivaldi because they were both being paid by the church.

Arewa: True, there have been significant structural changes in entertainment industries. Before the 19th century, it was hard to print sheet music. But the uses were very different: ordinary people routinely sang at a level we don’t reach now. It’s not economic returns that she is focused on, but culture and the appropriate scope of copyright rights.

Q: How do you deal with the tension between the two cultural models? And how do we put interdisciplinary research like this into the classroom?

Arewa: She teaches music and copyright. Students aren’t aware of precedents—music out of context, even 10 or 15 years, loses the context of creation. With copyright getting so long, we have no idea what the original work sounded like. So something that sounds original to us now may have sounded completely unoriginal to its initial audience. Students think that great composers were total originals, and they’re just wrong.

As for dealing with the tension, we reconceive copyright as being about culture as well as assets. Compensating creators is good (but standing recording contracts don’t do it that well), but we also have to think about enabling reuse.

Privacy, Free Speech and "Blurry-Edged" Social Networks
Lauren Gelman
Stanford Law School

Focus of her research: the conflict between privacy and free speech. And the effects of disintermediation on privacy; work in copyright may have insights for privacy.

The basic question: why do people post content on a medium available to the whole world that is not intended for the whole world. (See also: context collapse.) Clay Shirky responded to critiques that most blog content isn’t interesting, because it’s just trivia about people’s lives: It isn’t for you. It is interesting to people it’s for.

People have undefined networks. Users are calculating that they can’t identify in advance all the people they are intending to reach with their posts because their social network is undefined. So they make their baby pictures available to the world on Flickr, and don’t need to expend energy figuring out who to send the pictures. Old-world analogy: do you want to make your phone number public so that anyone who wants to can find you, or will you keep it private and only tell people you know will want to contact you? This cost-benefit calculation is dependent on how well we assume we’ll be able to identify good contacts in advance. (Comment: also on costs.)

What if you have been diagnosed with cancer? Your social network includes people who know you, but it may also include people with the same diagnosis. Before the internet, you might have had to seek out a hospital with a support group; now, you can start posting your story, and find people who are in a different physical space. This creates enormous value and new communities of interest. By posting publicly, the cancer patient takes advantages of the blurry edges of her social network.

You have to disclose in order to get this value. This is the cost of Facebook: you say what high school you went to, and get access to that network. Right now, our privacy regime finds that once you disclose something you have no more privacy in it. What she’s concerned about is that if we continue, we are forcing people back into a world of not disclosing and we won’t get all the speech benefits of being able to share information without fear that this information will be completely uncontrolled and used against you in any way possible.

Why should we care? First, our stories are rarely about ourselves. Even if you say people take their own risks, they’re often taking risks with their friends, parents, etc. Second, users make mistaken assumptions about access, storage, and search, though it might be changing over time. Third, we will get less speech if people stop using the medium for this purpose. The speech argument against privacy has to be weighed against the speech-encouraging benefit of protecting privacy.

Legal history: why do we think that disclosure of any kind destroys privacy? There’s been a move from intermediated institutional organizations to non-intermediated individual publication. With newspapers, if you wanted to tell your story, you needed to go through an intermediary that made determinations about newsworthiness. This created a binary notion of information: either it should be disclosed or it shouldn’t be.

Technically, we started with message boards, which were targeted at limited groups and felt more private. WWW was public to the world, but info there was much different than the info on message boards—more commercial, more government, etc. Web 2.0 combines both of the above.

Copyright analogy: my ability to protect my privacy may affect your ability to tell your life story. She thinks that the greater policing burden on copyright owners is a good thing overall, but as a privacy theorist she is worried about the social costs of eliminating intermediaries.

Q: Suggests further specification of harms. What are the problems of having people reveal information partially? Chillingeffects gets a bunch of DMCA notices that are ostensibly about protecting copyright but are really about people trying to hide youthful indiscretions. What are the implications of continuing down our current path?

Sprigman: What’s the relevance of Facebook’s ToS? And new tools to control partial access?

Gelman: Maybe Facebook can solve much of this problem. She’s nervous about proscriptive analysis that endorses how Facebook does it and ignoring the rest of the internet. And she’s not totally happy with Facebook—it’s relatively hard to protect information; you have to make your Wall available to allow other people to write on it. Market solutions have to be a part of the solution, but we’re not there yet.

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