The enclosure analogy: 15th-18th c. England. According to the standard analogy: there was a lot of land held in common by the public/village. Then large landowners, with the assistance of Parliament, appropriated these lands to themselves, forcing villagers off their lands to become industrial workers. Similarly, large copyright owners are expanding copyright ownership into the public domain, with bad results—the public is being unjustly deprived of public property.
Both sides of this analogy are mistaken. But if you fix both mistakes, there’s still an analogy to be made.
Starting with copyright: What is the public domain, and what does it mean to enclose it? Traditional view: whole works are like cows, either roaming the public domain or fenced in by owners. (I really don’t think this is the traditional view. Pam Samuelson has done a great job mapping the public domain in this sense.) Restoring foreign works does expand the fenced-in area. But that’s not a huge deal in the overall scheme of things, and it’s almost never cited as harm to the public domain. Anticircumvention, term extension, contracts, etc. take priority over harms in the standard account.
What about expanding the idea of enclosure to diversion? Works are newly born (like cows) and those that would in the past have been born into the public domain are instead born into enclosure. Similar to the idea that water is diverted from public use to private. Diversion at the front-end. New categories of protected works: architecture, boat hulls, semiconductor chips, software; also the elimination of formalities.
For the most part, the works poured into the enclosed area are not by large copyright owners; they always registered their works and observed the formalities. So these aren’t analogous to the property of large landowners. (And they would have been protected by common-law copyright pre-1978.) So there’s not much that’s been diverted as a result of decreased formalities. (Comment: Google would probably beg to differ, as would a number of other defendants.)
Term extension also prevents flow into the public domain on the back end. But that’s not like drying up the flow of water into a lake. Works don’t evaporate. (Comment: Unless they’re on fragile materials, like early films, or older books, or computer media that is now obsolete.) It’s just a failure of an expected benefit to materialize.
One response to his argument thus far: you’ve got the wrong definition of public domain. Scholars have proposed different definitions that don’t rely on whole works. But that doesn’t mesh well with the spatial analogy, because every part of every work is subject to a fair use claim, putting all works into the public domain. This makes the public domain no longer two-dimensional, but a mathematical set of uses that are not subject to copyright owner’s rights. Yochai Benkler: enclosure is a change in law that moves certain uses from public domain to owners’ rights. Defined this way, you have de jure and de facto (chilling effect) enclosure.
Basic point: these effects aren’t as big as they’re usually described, though you can definitely point to uses that are no longer legal. On balance, the case for enclosure is much weaker than the analogy typically portrays it. What’s really going on is a conflict over long-term practices carried out in the shadow of the law. Interestingly, the history of land enclosure turns out to be very similar. What happened in England was not an appropriation of land held by peasants in the name of large landowners. Land ownership didn’t change, but use rights disappeared. These use rights had never been recognized by law but had been exercised anyway. So he’d propose reorganizing the enclosure analogy, looking for causes rather than lessons. The English property system was reorganized because of technological advances making land more valuable to the landowners because food could be produced for export; similarly here, consumers’ uses now conflict with the realm in which large businesses are active.
Comment: You put a thumb on the scales by using 15th-19th centuries in England and then starting the copyright analysis in 1976, since the changes from original copyright were pretty strong by 1909.
A: He spends some time in the paper on the proper timeframe. 18th-19th centuries were when Parliament started helping large landowners out. For copyright, you have to limit the timeframe to avoid wrapping in other developments. Copyright didn’t exist in 1708, so anything greater than zero was a huge expansion. Likewise, if you start in 1909, you have lots of changes—new technology, the development of a mass consumer market that made copyright more valuable. (Comment: except that those are exactly the things Boyden says about land enclosure. They may not be reversible, but they don’t make the analogy any less analogous.)
Q: Why make analogies at all?
A: Taken up a bit in the paper. It’s always artificial; rhetorical value may exceed the payoff.
Elizabeth Winston, The Role of the Public in Enforcing Patent Law: Qui Tam Actions and False Marking
False marking has almost no legislative history. Its language has changed little since 1842. It’s the only qui tam action available under the patent law, and it’s punitive in its basis. Early decision: a quasi-criminal character, thus requiring strict construal. Very few cases about false marking since 1842.
The marking has to be false and done in order to deceive the public. The fine is $500 for each offense.
In order to be properly marked, it’s not enough to label something “patented.” You have to add the number of the patent. If it can’t be done on the article (e.g., method patents), you still have to affix to the packaging or use some other way to communicate patent status. False marking also requires that the patentee or someone under the patentee’s control did the marking.
How to be false? If the item doesn’t read on the patent. If a court later construes the patent so that the item doesn’t read, and you continue to mark, that’s false. One court even holds that marking after losing a Markman hearing can be false. You might have an application that didn’t mature and you optimistically label your product patented; such labeling is false. If the patent has expired—a Solo paper cup, currently being litigated in Virginia. If product is specifically marked patented, but it’s really the method of producing it that’s patented, that’s false. Sometimes when extraneous patents are present: company owns 15 patents and lists them on every item produced no matter what.
Biggest issue: is there an intent to deceive the public. Oversight isn’t sufficient. Given the abuse inherent in a qui tam action, where the plaintiff doesn’t need to have been harmed, we need some limits, and intent to deceive is the one we’ve chosen.
Why ban false marking? Allowing marking with expired patents would disrupt the balance between private and public rights. The public should be able to rely on patent numbers rather than having to examine whether a patent is expired (etc.). The false marking externalizes the risk of a determination of patent status, increasing the cost of determining what’s covered by patents and hindering progress.
So why so few actions? The caselaw is broken. The statutory language is open-ended, but courts don’t have a theory. It’s really hard to prove intent to deceive. And courts don’t award $500 per false marking. They simply don’t do it. So it’s economically inefficient to sue.
Interpretation could solve it. The statute says “per offense,” but doesn’t define an offense. Nor does it say who must prove bad intent.
First recommendation: shift the burden of production on intent. Go with an objective recklessness standard. Patent law has already done this in Recido (sp? I’m not a patent person). Impose a burden that’s shiftable. If you know your patent’s expired, you are likely to be engaging in false marking. If you decided to mark your unpatented item as patented, shift the burden to you to show no intent to deceive.
Second: per offense: Patent litigation takes $650,000 for a case worth less than a million; patent counsel bill at over $250/hour. Current law: base marking fine on number of decisions made to mark, which usually turns out to be one. We need to increase economic recovery. Her proposal: do it per article, but allow courts to reduce it based on the culpability of the false marker. Measure culpability by measuring materiality. If it’s a less experienced consumer, patents may have more of an effect; customers for a very expensive specialized machine are more likely to do the research. Look at the variety and the extent of the false marking, the extent of the potential harm, and the extent to which false marking can add to market-excluding power.
Q: Why would consumers care?
A: They may still be harmed—that’s why we have qui tam statutes. (Comment: this is why I think that materiality might not be helpful. False marking is a drag on the system overall, but it’s hard to find individual consumers, or even individual competitors, who are directly harmed. If it’s regulatory, then we should probably pay less attention to materiality than we do in false advertising.) The burden and the risk should be on the patentee; intent can control for things like uncertainties in the scope of the patent.
I ended up going to another panel, but I enjoyed the historical account of newspaper practices and economics given in the paper by Bob Brauneis, Transformation of Originality, which argues that newspapers contributed to the development of the exclusion of facts from copyright’s coverage due to strategic decisions at the time that some form of IP protection became desirable for them.
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