The Boundaries of IP at William & Mary

Belated introduction: What We Talk About When We Talk About Boundaries

Jessica Litman, University of Michigan Law School

Interesting boundary questions this morning: intraregime boundaries rather than extra (what does IP protect). We’ve spent less time thinking these intra-boundaries through than, say, where the public domain starts and copyright ends. All the IP regimes seem to be undergoing a shakeup between traditional roles/interests.

In TM, for example, we think of competitors and consumers, but the rise of viral marketing and the ubiquity of TMs with semantic meaning used regularly in ordinary speech, which undermines producer control, have changed things. Thus, e.g., the TM use doctrine as a way of sorting. In copyright, low-cost digital distribution and ubiquitous sound/image manipulation tools create challenges to what counts as authorship, distribution, exploitation, reading. In patent, the classic notion of the inventor is yielding to the inventor/operator/user amalgamation represented by the patent pool. IP-like interests have also matured and are generating new questions. Interactions inside our particular ponds may shed light on the relations between the different types of IP.

Wendy J. Gordon, Boston University School of Law

Internalizing externalities: people who don’t internalize benefits of production won’t make enough of the thing. Model already doesn’t fit well with patent from the get-go, because patent covers independent invention; the independent inventor is not benefiting from any externality conferred by the patentee. Causation is central to the idea of internalizing externalities. Likewise with TM: TM doesn’t require copying. TM is the most in flux; thus there’s most at stake in having us understand the shortfalls of the internalization model.

Calabresi: “What is the cost of what?” Who is the person who we want to internalize costs? Coase pointed out that in every transaction there’s multiple causes and people who can affect the outcome. More generally, then, Calabresi’s question is “what is the ‘cause’ of what?” When we talk about copying in copyright, we’re talking about causation: the defendant’s work wouldn’t look the way it does without contact with the plaintiff’s work.

Copyright makes mere boundary-crossing actionable. You don’t need to prove intent, or even knowledge (unconscious copying, or mistake about who has the right to grant permission). Why strict liability? Partly historical accident, based on trespass to land model. We should rethink this.

Lockean labor theory only makes sense if the premise is that the claimant does no harm to other people by the claim. In the world of intangibles, intangibles have lots of effects, and to suddenly withdraw it or say you can’t use your knowledge of it, that causes a harm. Gordon would like to see a requirement of proof that winning a lawsuit wouldn’t harm the user (except for disgorgement). When you say “this is the Mercedes of law schools,” that’s not about the car but about the person speaking, their preferences and values; you can’t stop that sentence without changing the person.

Litman: When you say “this is the Mercedes of law schools,” you’re taking a free ride on the characteristics Mercedes has invested in developing. Agrees it should never be actionable, but it has something to do with the car.

Gordon: Agreed, but it’s still also about the person speaking.

Litman: This business of to whom we give the entitlement is incredibly important within each regime, as well as for defining boundaries of the regime. Academics mostly agree the copyright incentive has gotten too large. The entity within the copyright ecosystem holding all the benefits may be the wrong entity: by giving the entrepreneur in the middle all the rights, making transfer of rights from creators to entrepreneurs really easy and recapture really hard, the entrepreneur in the middle has too much incentive because copyright was designed when paper was expensive and you had to bribe entrepreneurs to participate. One possibility, instead of weakening copyright, divest the entrepreneur of those rights and make it harder to acquire them, thus actually compensating authors. Boundaries also concern who gets to control what gets used.

Q: Is this really about strict liability or moving to a liability regime?

Gordon: No, liability rules are tempting. But because of how creativity works, that’s not the right way. Amabile: if you give kids rewards for making pictures, they make more pictures, but they’re less creative. Adults are similar. Compulsion is a bad thing for creativity, but there’s also a growing body of research suggesting that not just is compulsion bad, but so are rewards if they’re too explicit. Liability rules are explicit: your life work is worth X dollars. Copyright looks better as a natural extension of the person: it’s yours. Understands that she’s talking a bit at cross purposes: for granting rights, she wants a different standard than for evaluating remedies, because the remedy standard has independent psychological effects.

Litman: Attribution-only remedy?

Gordon: OK! Reverse Dastar.