ISPs and Takedown Notices
Peter Yu, Drake University Law School
The Graduated Response
Copyright holders think that infringement makes ISPs more money by enhancing demand; so they should share the responsibility. Can also decrease congestion.
Two new developments: Network neutrality. ISPs have been looking at deep packet inspection, but that makes them more likely to lose the safe harbor through knowledge. ISPs want more licensed premium content, so they are looking at a quid pro quo.
Risks to users: lack of due process; confusing uses that are noninfringing with those that are infringing. False positives. Overcriminalization.
Audible Magic: entices rightsholders and ISPs to use the system so customers/users don’t need to fear turning over information to others.
Will graduated response change norms? Patry: all carrot and no stick. Lack of proportionality: prisoners and pedophiles still have internet access. Is copyright infringement a bigger problem?
So can private ordering help? Contracts—Memorandum of Understanding with HADOPI in France. Goes back to terms of service. Will ISPs share blacklists with others? What about places where there is only one ISP? Finally, if you have internet, cable, and voice together, you might have a difficult time connecting to the outside world.
Recommendations: don’t do it for alleged infringement, only proved. Principles for repeat infringer policy: Need independent review, either judge or administrator. Educative benefit: need people to learn from mistakes. Alternative access: this is a human rights issue. Limited access, government provided access must be allowed. Non-home-based access: work, coffee shops, library, etc. Don’t punish families for kids’ behavior. Can’t just get rid of kid’s computer—may be only one. Proportionality and flexibility—must respect exceptions and limitations; must be able to contest strike, take account of good faith belief in fair use, and so on.
Eric Goldman: what about limits on internet access for computer criminals/pedophiles?
A: Ask how they used the computer. If they just use computer to communicate, then the computer is not that essential. We should separate those people who are making ordinary uses—major piracy should be different, e.g. warez groups.
IP Theory, Room 254
Jeanne Fromer, Fordham Law School
Duration in Intellectual Property
Copyright duration varies a lot depending on when in your lifespan you create the work; work for hire is separate. Compare to patent duration, without that same variation. What does that mean?
Copyright started out as 14 years, 2 7-year periods of apprenticeship; same with patent. Copyright expanded and changed in structure. Work for hire was added as statistical equivalent of average duration for life plus 50. Very little work on optimal structure of duration.
Copyright uses moral rights rhetorically and functionally: communicating to potential authors that creativity will take care of the author. Could have used statistics instead. If creating for hire, don’t need rhetorical incentive.
With patents, we don’t have the same cult of personhood. Keyed to invention instead. Also, a lot of invention is corporate, and analogous to works for hire where we don’t need a rhetorical incentive. Could we find other ways to speak to inventors when we think that invention is personally linked to them? Garage/individual inventor. User innovation.
Q: requiring renewal fees—how related? Lots of patents aren’t renewed.
A: life term seemed inconsistent with renewal fee.
Justin Hughes: tie in to termination of transfers—rhetoric of taking care of the author.
Mark McKenna, Notre Dame Law School & Christopher Sprigman, Virginia
The Placebo Efect in Intellectual Property
Sprigman: Placebos give relief in a wide variety of situations. But suspicions of them as forms of trickery and delusion took a while to dissipate. Significant research on what the placebo effect is and how it can be manipulated for the benefit of patients. Generalized placebo effect, arising from belief in efficacy of pharmaceuticals. Activates some form of endogenous of pain relief/healing. Sparked by people’s understanding of efficacy, and maybe direct to consumer advertising helps with that. Then there are specific placebo effects: laying on of hands, medical ritual. A lot of success of alternative healing comes from triggering through ritual of powerful placebo effects. Pill size, shape, color, packaging, branding can be placebo triggers; culturally mediated, such that blue in the US might produce an effect that it doesn’t produce in Germany.
If the view in the medical community is shifting away from placebo as trickery, then—if we subsidize pharmacological efficacy through patent, and also through TM—is there a role for patent/TM in subsidizing the placebo effect or giving it to particular producers? We don’t have a clear answer but want to discuss the policy levers to pull.
McKenna: This is actually the tip of the iceberg, because phenomena like this are widely recognized across a wide variety of products: if you tell people they’re watching an HDTV, they experience it as such: their brains will react as if they are watching HDTV. Distinction between physical and mental is illusory. Comparing a drug to placebo: a huge component of efficacy will be the placebo effect of the drug, say with 20% being a drug effect.
If you want the next increment of efficacy, where should you invest? Investing in a new compound may cost a billion. Investing in another color may cost less and still produce an increase in efficacy. This doesn’t translate into wholesale changes, but we can ask in particular circumstances—should we then try to ratchet back patent protection for improvements on the existing drug? Or should we instead scale back on TM protection, since virtually all of which goes into the placebo effect is generated through marketing? There is evidence of efficacy of placebo effect increasing with DTC advertising.
One reason not to dial back patent protection: how much placebo effect is people who have experience with medicine working then assume the next one works? We’d want to encourage pure drug effects if that’s a big component.
Functionality: a lot of aspects of the drug, like color or size, might become functional if we consider the placebo effect. But is that an optimal result? Maybe.
Jennifer Rothman: Tort law. Ethics: requirement of disclosure of side effects. (The nocebo: if you tell people about insomnia as a side effect, they are more likely to experience it.)
Sprigman: medical ethics err on the side of disclosure. Job #1 is figuring out what the policy levers would do if you pulled them.
McKenna: if we wanted to focus more on TM law, and then the consequence was then that you had to refuse to disclose certain information, that affects the calculus.
Richard Gruner: Juicy Whip: court said that you could patent something that misleads people to some beneficial end. Marketing law has a role—have to step away from IP.
Sprigman: This is confirmation that people can try to patent placebo effects; novelty is a patent concern, but not deception.
Mark Lemley: Generic entry decreases brand name advertising. Are placebo effects brand specific? Do we want brand advertising as opposed to full drug advertising or v.versa.
Sprigman: this is a specific v. general placebo issue. Color/shape might transfer; brand name is different.
McKenna: there’s a lot about trade dress in the literature.
Fromer: Follow-on innovation story. If you get a 20% increase from drug innovation but 30% increase from placebo effect, might still want the former for further innovation down the line.
Sprigman: discoveries are more generative. Placebos are islands rather than paths.
McKenna: that would be part of the cost.
Q: patent and TM might be two different things—patent protection starts earlier. Timing of incentive is very different between TM and patent; only advertise once you have FDA approval. Also, with TM you can be a little more discreet—patent law is about disclosure; patients’ own research may burst the placebo bubble.
McKenna: placebo effect is resilient to actual information. (This has implications for moving the TM levers too.)
(My comments: look at the false advertising literature on placebos; pulling the levers is also pulling the levers on doctrine, as the Q Ray bracelet makers will quickly argue. One thing I found unclear: why assume a patent/TM tradeoff? Why not decrease them both? Or most of the TM discussion was about decreasing trade dress protection, which could increase focus on trademark. Also, “it’s all in your head” has implications for materiality.)
Trademark + Non-Traditional IP Subject Matter, Room 630
David Fagundes, Southwestern Law School
Talk Derby to Me: Emergent Property Norms Governing Roller Derby Pseudonyms
(my vote for best title of the conference)
Actors go to informal norms instead of formal law under certain circumstances. IP’s negative space case studies. In fashion, Sprigman & Raustiala argue that low-IP is better. Magicians, it’s different: IP is simply not available. Roller Derby as all-woman sport. Camp/punk aesthetic. Nobody gets paid to do it; participants pay in money and time. It is a real sport, not fake.
Distinctive feature: people skate under pseudonyms, expressing derby identity, fierce/punky, sounds like a real name. Mila Minute, Tara Armov, Broadzilla, Markie D. Sod, Ivanna Knockemova. Taking someone’s name would inflict a dignitary/expressive harm.
Formal norms, informal norms, and how law is emerging to govern this.
Formal rules: only one skater can skate under a given name; first in time is first in right; substantial similarity requires permission. There is now an International Rollergirls Master Roster—a recording system. Recording creates logistical issues; there is a name checker—checking degrees of similarity with test names.
Advisory notes: skaters should participate for a while before registering a name; leagues should have a single person in charge of names. Enforcement delegated to skaters both ex ante (name wranglers who send batches of names in) and ex post (individual skaters). Formal sanctions: effectively none: roster can only decline to register.
Informal norms: There is a dialogue, may lead to compromise or not (Nancy Drew-Blood v. Drew Blood); strongly worded communications. Informal sanctions; may be geographic limitations. Shaming sanctions are primary. Ineffective if impervious to shame or not part of community. D.J. “The Grand Poobah” and a longtime skater “Grand Poobah,” and the DJ just doesn’t care.
Considerations for resolving disputes over similarity. Priority of use is the dominant consideration. Then degree of similarity.
Emergent legal regulation: some leagues trademark names/require assignment of names. LA Derby Dolls: skaters cede right to exploit pseudonym to league in exchange for equity/share of merchandising. Whip It: skater Babe Ruthless threatened lawsuit and was compensated.
Every other low IP paper talks about a professional context, where people earn money in other ways (cooking, performing, selling physical copies). Expressive or dignitary value can also cause ownership norms to emerge. Norms emerge despite availability of formal law. So what is it that makes informal norms emerge? Comedians generally don’t choose to copyright (assert copyright over) their names; roller girls don’t have the money to enforce through the law. Some of his interviewees are aware of legal norms, but they don’t rely on them. Shows user-generated rules to contrast with user-generated content. Law may converge with informal norms: first in time; people may incorporate legal norms, often say “cease and desist” because they’ve heard it somewhere.
Is this law? There are written rules, but not from the state.
Bill McGeveran: look at SAG rules for naming. He thinks comedians can’t copyright their jokes—the concept, which is the gut of a joke, is unprotectable idea. But they don’t care about the wording, they care about the punchline. This isn’t an IP without IP paper. This is a community developing its own law regardless, more like Ellickson. Maybe TM is available, maybe it’s not, but that’s beside the point.
Irene Calboli: self-regulation in advertising law is strong too (this is a really good analogy—NAD is a more expensive, complex version of something very similar, though the law casts a longer shadow in ways perhaps correlated with the fact that the participants generally do have the resources to litigate). You can bring the same structure to Second Life regulation.
Q: there is service mark protection available—UDRP as an alternative dispute resolution forum. There are celebrity cases in the UDRP system. (Though note that celebrity is not a requirement here, only first in time; perhaps geographic restrictions come in depending on celebrity. Also the UDRP is decidedly not run by the participants. It’s more like Facebook terms of service.)
Fourth Breakout Session
Copyright in Specific Contexts
Herkko Hietanen, Berkman Center for Internet and Society
Creative Commons Olympics
[Due to being exhausted, I missed this presentation, which I very much wanted to attend. From the abstract:
NBC Universal’s decision to use Creative Commons licensed photographs in Olympic broadcast is an example of how media conglomerates can collaborate with amateurs, but it also reveals potential problems of letting non-lawyers negotiate copyright licensing agreements. To avoid the pit falls, media companies need to adopt policies and best practises for using amateur licensed works. These guidelines should instruct how a production should attribute collaborating authors and how the Creative Commons terms affect the licensing of the productions. The guidelines should also instruct how producers can seek alternative licensing arrangements with amateurs.]
Q: Highlights an ambiguity in CC licenses: you can often use them to make a little money (run ads on your blog) but not a fullscale major advertiser commercial use.
A: True, though here the CC-using photographer at issue licensed NBC to do more voluntarily. Note that users rarely register their works, limiting damages (again, though, given the scope of NBC’s use, he noted, actual damages in this specific case might have been substantial).
Julie Cromer Young, Thomas Jefferson School of Law
Copyright in Memoriam
Gaylord v. US: Memorials can be copyrighted, but are intended for public use and consumption, designed to help people remember some person or event. Often transferred to the government as a representative of the people. Gaylord: extensive development process, from students with the idea to a committee to a design given to an architectural firm which subcontracted; somewhere along the line, the work made for hire relationship got lost. Typically with memorials: everyone wants a piece because it’s supposed to represent (for) the public—joint work questions, and with Gaylord input from the VA.
VARA—allows artist control over some aspects, though not over things like lighting. She showed a picture of a papier mache shark built around a surfer statue as a prank—would that be a violation?
What receives priority in case of conflict between copyright and First Amendment/free speech about memorials? Gaylord did not, she thinks, do a good job. Solution: works intended for the people become public works and directed to early entry into the public domain through fair use and modification of the copyright act. Fair use: make intentional public art status a part of the second factor analysis. (Compare to enactment of law as making copyright no longer enforceable, e.g., Veeck: intent that public should adopt the law as its own.)
Sculptor was paid $775,000 for his contribution; it was an oversight not to get his explicit permission, but that shouldn’t have been dispositive.
Q: trademark protection—are there claims for this for merchandising?
Sean Pager, Michigan State University College of Law
Romancing Tradition: A Cautionary Note on Traditional Knowledge-Folklore Rights
Does IP work for developing countries? If TRIPS was all about protecting Disney and Pfizer, TK is about poor people’s knowledge; appears to right/balance the scale. This discounts the possibility that regular IP rights will work for the global South. Nollywood: Nigerian IP, making a huge number of movies, 2nd or 3d largest film industry in the world according to some measures. Entirely digital; almost no box office exhibition. Enforcement problems though do distort investment and production quality (rush to produce and distribute before copying takes hold). Could do more to make copyright a viable tool for these industries. Emphasis on TK is a distraction—an opportunity cost. Use of tradition to tell new stories about Nigerian life: not the same thing as protecting heritage or enshrining authenticity—these movies are not authentic; they are often controversial and provocative. Exactly what’s at risk from a strong TK right. Don’t want to empower government censors, who are often unhappy with Nollywood. Don’t give them a hammer.
Q: need good empirical handle on TK first. TK isn’t simply about the past—TK is a system of innovation through traditional means. That’s what we ought to be protecting, not some supposed ageless static knowledge which does not in fact exist. Easy to bring folklore/TK into mainstream IP once we understand that.
A: point taken; this is what he’s trying to figure out.
Q: Fumi Arewa says that embedded ads have helped spread this form. That doesn’t trouble her w/r/t authenticity; would want to make sure that when you’re talking about what authenticity means that you interrogate/complicate the concept. It’s troubling to say that something is inauthentic just as it is to say that it’s authentic—what does it mean to go to Thailand and say that McDonald’s is inauthentic. Care with status as ethnographer.
A: True—but could be perceived by proponents of traditional rights as inauthentic and thus worries about them using the concept of TK as a regulatory tool.
Betsy Rosenblatt: doesn’t quite get conflict between TK and traditional IP, other than the opportunity cost.
A: can happen: musician in Ethiopia made a song based on traditional melody; denied a copyright. China has similar stories. Veto rights against commercial appropriation, where councils of elders or other groups would get to control (Igbo elders filed a complaint against Nollywood portrayals), would be a problem.
McGeveran: is this a speech problem rather than a TK problem?
Eva Subotnik, Columbia Law School
Copyright, Norms, and Copyright Norms: Examining Incentives in Today’s Photojournalism
Originality in copyright through the lens of the photographic medium. Ethnographic study of photojournalism because of its rapid transition. (She notes that it’s not just amateurs who are not registering—professional photographers often don’t register either.) Research in field informs analysis here.
Scholarly and popular discussion about the originality of Manny Garcia’s underlying photograph in the Shepherd Fairey case. Does Feist’s standard do any work in the traditional arts? Should it be used to weed out certain photos? Is there such a thing as a photographic fact? An inevitable portrayal?
SCt has used proxies to determine originality and creativity, some of which are valid and others not under Feist. Burrow-Giles: author’s own narrative of his creativity. Bleistein: presumptions about human creation; expert testimony; even the fact of copying. Feist: may be more straightforward to articulate why something is not original than why it is. Is simply being a photograph (having lighting and an angle) sufficient? Courts sometimes use it. She thinks this is invalid—this merely shows that the photo is what it purports to be: a photo, using the tools of the trade. [I love the way she puts this.] Nontrivial variation—when this is about ordinary moving a 3-d object into 2-d, the conclusion of the exercise is foregone; variation will be found.
Feist should be found to require something more than non-copying. These proxies should be rejected. But we shouldn’t demand more. When the issue is similar photos, courts are by and large okay at asking whether similarity comes from unprotectable elements. But courts are uncomfortable with engaging in originality inquiries, and she thinks it would be hard to get them to apply a higher standard, leading only to convoluted explanations. Danger: structuring system so authors are consciously focused on copyright requirements will distort production away from fulfilling their artistic visions. Photographers, in interviews, don’t aim at being mediocre because the originality standard is low; they just don’t have to worry about whether it will qualify for copyright at all. Photographer should know that her photo of the Golden Gate bridge at sunset will not give her much purchase against a similar photo, but that’s different then protectability of her photo.
My Q: given what she said about protecting a photo as a matter of course, how do you take out the things like lighting, angle, etc.
A: not all photos are copyrightable, but she wants an explanation for what’s creative about the photograph. As long as you can meet the threshold as currently stated, there should be no higher threshold. (I’m not sure this satisfies me, because it sounds to me like the explanation for what is creative is always going to be “I picked this angle,” at least for non-fashion photos. I don’t quite get under what circumstances “I picked this angle” will not be sufficient. Take Manny Garcia: if he took a typical photo of a politician, even though he could have used another angle or another frame, is that sufficient?)
Greg Lastowka: what about protecting photos against reproduction and not against imitation?
A: largely photos are subject to thin protection. Caselaw divides between out and out copying and restaged/reshot photos. (I am reminded of the projects to imitate Ansel Adams photos at the same time of day/position of the moon in the sky/location—I would be interested in how her analysis applies to these.) But this is also all about pro photography. Another question is how this affects amateur photos.
Her interviews emphasize creative work that goes into apparently mundane images, and in selecting which ones to keep. People who shoot mundane commercial images often do much more creative/unusual photography for themselves. Copyright’s boring work funds the really creative stuff. (Self-subsidy, as The Gift discusses.)
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