Drake IP Scholars, Panel 5

Panel 5: Copyright

Timothy K. Armstrong, University of Cincinnati College of Law ―Can Authors Shrink the Public Domain? Preliminary Thoughts on the Termination of Copyright Licenses Granted for the Benefit of the Public

Jacobsen v. Katzer: Good news for GPL, but also a worrisome implication. If GPL etc. are copyright licenses, then they’re subject to termination provisions in §203 and §304. The traditional fear of the exploitative publisher is not implicated by the CC/GPL situation. Nevertheless, the statute isn’t limited to terminating licenses procured by economic pressure from a powerful licensee. Are there ways to avoid the practical nightmare of revocation?

Biggest problem: Copyright Act doesn’t provide for permanent renunciation of authors’ rights, but Patent Act does: allows abandonment either expressly or through conduct. Possible solution: amend Copyright Act to conform with Patent Act.

Orit Fischman Afori, College of Management Academic Studies Law School (Israel) ―Judicial Discretion in Granting Injunctive Relief in Cases of Copyright Infringement: A Call for Action

Over time, injunctive relief became automatic, despite multiple invitations by SCt: Stewart v. Abend, Campbell v. Acuff-Rose, and more recent cases.

Three main aspects of reviving equitable considerations: (1) proprietary. Will avoiding injunctions cause copyright to lose its proprietary nature? She prevers a pragmatic answer: all rights are a mix of property and liability elements. There’s no such thing as a pure property rule. Ask instead when it’s appropriate to deny injunctive relief and develop a body of case law. Consider transaction costs, interests in free competition, public interest in use of works and access.

(2) Constitutional aspects: the potential conflict between copyright and free speech. When fair use isn’t good enough, denying injunctive relief can help.

(3) Economic aspects: fair use is all or nothing. Injunctive relief can work as a mid-way solution: the work can be used, but not for free. (This, by the way, is why I fear this solution, as likely to destroy fair use.) Judicial discretion is unlikely to turn into the equivalent of a compulsory license.

Need for legislation. Israeli model, Art. 53: “In an action for copyright infringement the claimant shall be entitled to injunctive relief, unless the court finds that there are reasons which justify not doing so.” (I’m guessing one implies “successful” in front of “claimaint.”) Even better: add an open list of considerations.

Ira Nathenson, St. Thomas University School of Law ―Harry Potter and Muggle Intellectual Property Law

Law and literature approach. Magic is a change to the architecture of the real world. Subject matter of what we call IP can then be regulated differently, through norms and markets.

The HP universe is a laboratory for legal thought experiments, as Aaron Schwabach says. Wizards can use magic to protect themselves without law; Muggles can use technology to protect themselves without law. Use the treatment of IP in HP to rethink IP in the real world.

Do wizards care about IP? Yes, they write books and music and they invent things. How do they regulate it? Books can protect themselves. Spells can prevent copying or reverse engineering. Quiddich Through the Ages bears a warning of dire magical consequences for miscreants.

But wizards fear Muggles and have separated from them. Normatively, guarding the secret of magic is the priority, protecting each group from one another. How does this affect law? It means there’s very little legal regulation of magic. There are only three Unforgivable Curses, resulting in life imprisonment. There’s a law against underage use of magic, though Harry Potter initially escapes punishment for violating the law. Then he’s prosecuted for defending himself against Dementors: selective prosecution based on politics. Law isn’t a regular part of magical life.

Lockhart writes books based on stealing the memories of other wizards. He ends up losing his own memory when his memory charm backfires.

Reference in the books to the Ludicrous Patents Office—possibly an office that goes out and prevents overly broad assertions of proprietary rights. Weasley Bros. have “patented daydream charms”—patent here seems to be used like “patent medicine” in 19th century. Not a granted patent, but an assertion of proprietary rights. A Ludicrous Patent Office stops overly broad and dangerous assertions of such rights. (This is like preempting contracts where contracts have gobbled up law, or regulating tech as the EU is more likely to do than the US.)

Goblins have a very different view of property rights. They don’t consider the purchase of an object to transfer ownership. Selling a bought object is theft. But there are some parallels to human attitudes—Gary Pulsinelli’s piece.

DMCA: Takedown regime shows how architecture affects laws, which then affects markets and norms. New internet architecture led to a demand for changed law. The takedown regime changed the way users thought about remix. And norms changed: Viacom now has a policy against challenging at least some kinds of user-generated content. Many content owners now use fingerprinting to ID copies and monetize them.

Among the law-related HP stories I thought of when I heard this was the classic Lust Over Pendle, which deals more with Muggle law and is a great read. (Pull quote specific to lawyers: “I understand the concept of fiduciary duty all right, but would forgetting to tell the Board that your European landlord’s a gay wizard actually breach it? Even in Virginia? I mean - I'd be very surprised if it were grounds for invalidating the lease - in fact, when I say ‘very surprised’ I mean it was something I insisted Draco’s lawyers got checked, especially.”)

Liam S. O’Melinn, Pettit College of Law, Ohio Northern University ―The Recording Industry v. James Madison, aka ―Publius: An Essay on the Ethos of Intellectual Property

Madison wrote an essay lifting from Hume’s words without attribution, and fragmented nonliteral similarity: plagiarism, and copyright infringement, by today’s standards. These Founders didn’t think they were doing anything wrong. Franklin was also known for plagiarizing (as we’d call it). Quote: the founders were hard-headed amateur economists, for whom the bottom line was everything. They were also writers who plagiarized and scientists who never sought patents.

Judges and lawmakers have consistently been friendlier to copyright claimants than the Founders. One example: protection for sound recordings. Barbara Ringer and others noted that sound recordings really don’t have much resemblance to “Writings,” but they pointed out that judges had rarely bothered with technicalities of that sort and thought, correctly, that they’d be able to secure protection for sound recordings regardless. It got even worse with software, protected as “writings” even though humans can’t even read it.

Lucille M. Ponte, Florida Coastal School of Law ―Echoes of the Sumptuary Impulse: Considering the Threads of Social Identity, Public Morality, and Economic Protectionism under the Proposed Design Piracy Prohibition Act

Sumptuary laws were aimed at consumption of food and clothing. The public shouldn’t squander its resources excessively. The idea came out of funerals, an occasion for public display. This regulation of consumption moved to a regulation of assumption: how dare you wear clothing meant for your superiors. It was a regulation of presentation. There were either privileges—the only one to get to wear purple silk with gold embroidery was the emperor—and prohibitions—those in a certain class couldn’t wear certain clothing.

Justifications: A matter of public morality: controlling individual pride. This was important in colonial America: Puritans didn’t want people inciting lust in their neighbors. Another reason: economic protectionism. Merchants shouldn’t be able to pass themselves off as knights—had to be 5x as wealthy as knights to get to wear the same clothes. (Is this economic protectionism? That seems class-based. I thought she meant that limiting sales of certain clothing supplemented a mercantilist policy in which foreign goods were deemed dangerous to the economic health of the polity.)

The current Design Piracy Prohibition Act also addresses a range of social anxieties. Should elites be privileged over their inferiors? Past testimony for early 20th-century attempts to protect design—rich people don’t want to wear the same designs as their servants. And the arguments are the same now: rich people won’t buy things if those things are everywhere. Response of knock-off makers: I’m a populist, trying to spread the wealth.

The current debate also chastises immoral conduct. Shopping to excess is no longer immoral, so the argument is that knock-offs fund terrorism. Proponents use the language of theft: buying knock-offs is stealing.

Call for economic protectionism: fear of technology—something can be on the Paris catwalks one minute and in China the next. Fear that things can disseminate quickly, speeding the fashion cycle and depriving high-priced designers of revenue. Fear of India and China as emerging economies, even though the US stole Parisian designs for a hundred years. There’s also an idea that we have to keep up with the EU and other international IP schemes; EU protects fashion design, so we should. (My comment: Yeah, how’s that working for databases?)

Sumptuary laws always have trouble with enforcement. The fundamental contradiction: forbidding something makes it much more desirable. Ban on wool imports increased wool smuggling. But when poor people were told to wear wool caps on Sunday, wool became unattractive. Changing views of public morality/social ordering: most people don’t think buying a knock-off is stealing.

Discussants: Michael Landau, Georgia State University College of Law

For Armstrong: Patents have a short term; copyrights have a really long term. Copyrights are supposed to last for two generations after the author, unlike patents, which gives a reason to treat revocation of rights differently. (I expect Deven Desai is going to have something to say about this.) Also, what about derivative rights?

For Afori: He’s a big fan of injunctions for derivative works (which would have been noninfringing before the expansion of rights). US law says injunctions “may” issue, so statutory change may not be necessary.

For Nathenson: We don’t have magic to make books self-destruct, so law may need to play a bigger role. (But see Kindle removing the text-to-speech function after publisher protest.)

For Ponte: The same piracy/helping-terrorists arguments are made outside of design, with respect to copyright infringement and trademark infringement.

Deven Desai, Thomas Jefferson School of Law

For Ponte: Barton Beebe has a useful paper on sumptuary rules in TM.

For O’Melinn: Your account of the Founders has to grapple with the existence of the IP clause. Why’d they put it in, then?

For Nathenson: Reminded him of Jonathan Zittrain’s argument about perfect enforcement. Is the argument that, with tech, law becomes irrelevant?

For Armstrong: What do you really want? A: Allow nonterminable revocations of rights. Desai: This ties in to paternalism: is the author a fool to be protected? The counterargument to paternalism is that the cost is an anticommons—lots of holdups. Misbehaviors in bargaining create risks for later on.

Q from Ponte: Consider post-sale confusion in TM law. The problem of fashion design is similar to INS v. AP—the designer is trying to recoup investment, but it can be dissipated by copying. Derives uniquely from the fact that there’s no protection for inherently distinctive trade dress. (My reaction: it’s far from clear to me that most fashion designs are inherently distinctive, whatever that might mean.)

Mark Schultz for O’Melinn: Many people in our field are philistines about history. Many people in our field use history to tell us that the official story is not actually what happened (Adam Mossoff, Mark McKenna). What are you trying to prove with your counterstory?

Me for Ponte: I want to know more about sumptuary laws as economic protectionism. Marilyn Randall, Pragmatic Plagiarism: Authorship, Profit, and Power has a great discussion of plagiarism as mercantilism. In the 16th/17th-century materials she investigates, imitation and translation of foreign cultural materials is sometimes celebrated, while imitation of nationals is condemned as plagiarism. Cross-cultural appropriation enriches the borrower’s cultural storehouse, while in-culture borrowing just redistributes wealth. Dryden wrote, “If sounding words are not of our growth and manufacture, who shall hinder me to import them from a foreign country? I carry not out the treasure of the nation, which is never to return, but what I bring from Italy, I spend in England: here it remains.”

Me for Nathenson: Every sufficiently advanced technology is indistinguishable from magic. (Arthur C. Clarke, Profiles of The Future, 1961 (Clarke's third law)). So I like the analogy.

O’Melinn: He’s also struggled with the “what’s the point”? The IP clause is shrouded in mystery. They certainly weren’t codifying a practice in existence. He thinks we presently like to default to Lockean, natural rights reasoning: an owner can do what it likes with its property. But that’s not the only way to think. If we protect non-writings like architecture, we have to pay attention to the original purpose of protecting writings, and for example deny injunctive relief when the result would be to prevent the completion of someone’s house.

Nathenson: Magic, like tech, can lead to over-assertions of rights—too much private power, including too much tying to particular businesses (monopoly power). The Ludicrous Patents Office is a public regulatory response. When IP rights are so broad, an administrative response—like that proposed by Jason Mazzone—may be appropriate. See also NFL’s overreaching claims about its rights in broadcast games.

Armstrong: The question then is whether the author is entitled to leave his estate to someone other than his heirs. Congress is unlikely to have wanted to forbid dedications to the public domain in 1976; it probably just didn’t think about the issue. (Indeed, after the 1976 Act it was really easy to put stuff into the public domain by publishing wihtout notice—that would divest your heirs’ rights no matter what. Now that doesn’t work any more.) In patent, you can abandon formally, or you can abandon by putting your invention on sale for a year.

Michael Madison for Ponte: The ratchet for fashion protection is modulated by other things. With the economy the way it is, the aggressively elitist aspect of marketing is being pulled back. He’s reminded of the NFL’s marketing practices during Superbowl season: a sumptuary code of a different flavor, where the NFL is trying to ensure that you only buy the $75 official jersey.

Madison would take Clarke’s line in a different direction. Wouldn’t invest too much in the analogy unless he wants a full-on law and literature piece, based on current theory. If Nathenson doesn’t want that, then the Clarke quotation opens up a way to criticize Lessig’s work on code. Magic has rules and codes; it has to be done properly to work. Also with tech, so you need to know what tech can actually accomplished.

Sandeen for Armstrong: The programmer is unlikely to revoke the license. It’s the heirs we have to worry about. Do the heirs have a vested right in revocation? That might be a problem with a legislative fix. The section is really antiquated in its description of heirs: no rights for same-sex couples, for example.

Vetter for Armstrong: The project is fascinating; the issue is that we don’t know yet, and probably won’t know for seventy years, whether Linus Torvalds’ heirs are going to try to terminate. (Side question: would US law apply to the Torvalds heirs? I’d think that ownership, at least under ITAR-TASS, would be resolved under the law of the author’s nation.)