Catholic IP roundtable

Catholic U IP roundtable, ably organized by Beth Winston. A very nice size, with papers at a stage that rewarded discussion.

Adam Mossoff, GMU: The intersection of IP and the administrative state, of increasing interest over the past 10 years. IP rights as regulatory entitlements. These are the arguments of modern-day Progressives: long intellectual history of IP as administrative grant. Indeed, IP was key to legal realists writing about property (F. Cohen, M. Cohen, fellow travelers like Hand). Of course they succeeded: we’re all legal realists now; property is a bundle of sticks, and the central stick is the right to exclude.

Conceptual and normative arguments both relied on IP to make the legal realist argument. Normatively: by defining property in terms of right to exclude, the law could avoid the “thingification” of property and the labor/natural rights theory of property, aka the Lockean theory. Cohen argued that Lockean theory was incoherent, because value followed from the state’s grant of the right and not vice versa. He relied on a single example: trademark. The value of the TM depends on the court’s willingness to grant an injunction against other uses. But for a court’s decision, “Coke” as a TM would be worthless because in the public domain. Value is consequence of law/property label, not antecedent. Thus, a property case is about whether a right to exclude ought to be granted, not some transcendental value.

Might be right, but this is a special case: words. But he used TM to generalize about property generally, including land. Mossoff thinks this is a mistake. There’s a subtle shift in two senses of “value.” First, normative: a value is something you pursue because it’s good (for you). Second, economic: synonymous with wealth. In the critique of Locke, Cohen assumes value is wealth. But Locke doesn’t agree; he thinks value is something that’s good for people—productive activities like building houses and fermenting wine. This gives labor its normative significance, because natural law commands self-preservation.

Cohen makes the same mistake as others he criticizes: he thingifies value into dollars, which only circulate in the market as the result of state grants of property rights.

Today: these battles are still important as we discuss patent reform and PTO’s patent rules. Shouldn’t take the Legal Realist conventional wisdom for granted. TM etc. aren’t necessarily purely regulatory entities in service of greater policy goals.

My somewhat incoherent thoughts: Not sure Cohen’s critique is right even for TM, as Mossoff describes it; things in the public domain can have lots of value, like generic terms: too much value to propertize. (James Boyle’s work on the special status of information in both constituting markets and being the object of market transactions, particle and wave both, making all theories break down, may be relevant.) Can we distinguish “exclusion value added by law” from “value that will be pursued regardless of law”? And does this bring Lockean theory closer to an incentive based theory?

Mossoff: Cohen agrees that there can be propertyless value and valueless property. Both Cohen and Locke agree that law provides certainty, adding value to whatever exists before. Cohen’s mistake is to conflate the effect of certainty with the existence of the value as such.

I also wonder to what extent it matters that Lockean theory doesn’t match up with current theories of natural right used to justify IP, since Locke is writing about a stateless society; once scarcity exists and most goods are allocated, and there isn’t “enough and as good” for the rest of us, then doesn’t Locke have many fewer answers for anyone?

Mossoff: Philosophical debate about the status of the Lockean proviso—Waldron et al. have compellingly argued that the proviso isn’t a normative requirement, but just a hypothetical. Locke moves into discussing civil society and never mentions the proviso again; once you move to civil society, he believes that there’s a virtuous cycle so that everyone lives better—the proviso no longer operates, but fortunately it’s good for everyone.

Zahr Stauffer, Virginia: She’s interested in sponsored/integrated content, including product placement, video news releases, and the like. Products may even be integrated into storylines. Ellen Goodman has attacked product placement as harmful in various ways, including harm to public discourse. Consumer advocates and writers’ guilds are agitating for reform. Stauffer disagrees that there’s a problem in need of regulation.

Communications Act of 1934: all material aired in exchange for consideration have to be disclosed at the time of broadcast. Disclosures are often buried. Free- and low-cost goods/services have been exempted as of 1950—e.g., a single free record to the radio station.

1963: a language of rights emerges in the FCC opinions: consumer has a “right” to know by whom he’s being persuaded. This is a shift from an affirmative duty of disclosure, imposed by Congress, to what the FCC now seems to consider a consumer’s right. But there’s no mode of enforcing that right or standard for evaluating consumer deception. Congress didn’t intend a right for consumers. Congress would have been satisfied by constructive notice, but the FCC is talking about something more like actual notice.

The legal regime is outdated; it relies on a structure of advertisers-broadcasters-consumers, concerned with exchanges between advertisers and broadcasters that are invisible to the consumer. But advertisers and broadcasters are increasingly merged because of consolidation. Alec Baldwin on 30 Rock talks about coming up with a GE oven—GE says it had nothing to do with the script, but chose to ran ads on the show to inform consumers that the oven was real. NBC is a subsidiary of GE. Not implausible that Tina Fey chose a GE oven for corporate synergy reasons. Sponsorship disclosure laws don’t adequately anticipate the problems of consolidation, though antitrust might. (Why can’t disclosure follow either separate corporate entities or consumer understanding? If people wouldn’t necessarily know that GE and NBC are the same, disclose it.)

Reforms should go towards less regulation. We should focus on the point of origin: the actual sponsors. It’s low-cost for them to make information available about who they sponsor. Cisco and Ford brag about their successful product placements. Embedded ads may be annoying, but the medicine is worse than the sickness. Embedded ads lower cost of production, improve production values, increase smaller players’ access to markets, and improve access to information.

Chris Newman: Never understood the consumer harm issue. Payola: do consumers assume DJs select songs based on expertise? Strange notion of fraud. (Except research shows that apparent popularity spurs further popularity; I do find it plausible that we expect, and even deserve to be able to expect, DJs to select music for non-pecuniary reasons.)

Stauffer: People are on notice when they walk into a grocery store that they’re being sold to, but they might not be when they listen to the non-advertising portions of the ads. Playlists may have gotten more corporatized because of a fear of payola laws, which allowed lesser-known bands to get on the air. In general, we should focus on educating consumers to recognize when they’re being sold to rather than stopping the integration of commerce and art, which may produce better art.

Kristin Osenga: Focus on claim construction in patents. Cases turn on language—for example, one last year turned on the meaning of “between,” and 3 Federal Circuit judges disagreed about the meaning. If what claim construction is about is interpreting ordinary words, maybe we need to put claim construction in the context of ordinary conversation. She wants to apply Gricean implicature (yay!). Conversation is a cooperative enterprise, so we can assume various things.

Others have looked at applying Grice to statutory interpretation: is a statute part of a conversation between legislatures and courts? How does statutory conversation differ? Statutory conversation isn’t always cooperative, which requires changes in the maxims. Is a patent a conversation? Yes. (1) A conversation between inventor and PTO during prosecution. (2) A conversation between patent and public, which looks more like a statute. How do these conversations differ from everyday speech and how can the maxims help us interpret patents?

(1) Like everyday conversation, PTO/patent conversation is bilateral, because there’s back and forth, unlike a statute which just speaks to the public. But it’s a structured, rule-based, strategic conversation. The inventor wants to say as little as possible and stay as vague as possible. (2) The patent is unilateral conversation to the public.

Maxim of quantity: the PTO regulates how much you have to say. Maxim of quality: this is strategic; prophetic examples are allowed when you don’t know what you’re saying is true. Etc.

Canons of construction actually line up quite nicely with the Gricean maxims, and may get more oomph by showing that they have a basis in reality.

Josh Sarnoff, AU: Does Grice have something to say about when rules of construction are triggered (broad, narrow, etc.)? How do you know what context you’re in? Seems to be in tension with the rule that the inventor can be his own lexicographer. Also, what happens when multiple audiences exist at once? Historically, doctrine looked at what a competitor would think. Or the PHOSITA. Or the judge?

Osenga: Multiple audience problem happens in regular speech. Inventor-as-lexicographer isn’t a big problem because that happens explicitly: it’s a clear part of the conversation, not implied.

Bob Brauneis, GW: Grice isn’t normative; he’s asking how people manage to communicate in spite of the paucity of normal speech. Aren’t you flipping that into normative mode? Then it’s about choosing the values we want to promote, e.g. what level of cooperation we think is appropriate between a patentee and the general public. Maybe we could posit a fiduciary duty, or an arms-length transaction.

Osenga: She’d hoped to go normative, but she wonders if Grice provides support for what we already do as a descriptive matter. Though it’s a strategic conversation, she wants to build some cooperation in.

Stauffer: Skeptical about the possibility of driving ambiguity out. Sometimes we intend ambiguity.

Osenga: In patent law we intend too much ambiguity, and that’s bad for boundaries.

Thomas Folsum: Google Book Search: both sides find this a simple case: simple case of wholesale copying; simple case of doing exactly what Google already does—copying and indexing and snippeting works. If it’s simple on both sides, do we just pick which we like better? None of the existing analogies works well, any more than it does in TM. What kind of laws are good for this place that is cyberspace? What we need are facts, thin on the ground in decided cases and avoided because of the settlement here.

Note that the settlement doesn’t protect the libraries if they give the books to putative competitors: this settlement is a small price to pay to keep competitors out of the market forever.

Wendy Seltzer: Cyberspace facts change pretty quick, though.

Folsum: Yes. But we may be able to pick out useful factors from the facts we see.