IPSC part 4

Fifth Breakout Session

Copyright and Identity

Brian Lee, Brooklyn Law School

Moral Rights Statutes and the Foundations of American Intellectual Property Law

Trying to explain moral rights statutes in the US as a matter of respect for the creative excellence of the work, since as a descriptive matter neither economic theories nor European personhood theories do the explanatory job. This mismatch isn’t trivial: central features of the statutes just don’t fit. If you think there’s a special connection between the artist’s personhood and the artwork, the upshot is that the law steps in to protect the personality of the artist by limiting what can be done to the artwork. American moral rights law, however, allows for outright destruction of the artwork, with the exception of VARA’s provision for artworks of recognized stature. Even mediocre artists have personalities.

A theory built on protecting creative excellence can explain central statutory features. This is not just an ad hoc theory that happens to map onto American law. This is consistent with broader American practices with respect to excellence, like sports, where even fans of the other team cheer for a no-hitter. (On the other hand, American culture also includes “everybody gets a medal/certificate” in participatory sports.) We memorialize people in halls of fame; we give public land to commemorate public artists/literary figures with memorials; etc.

What follows? The type of creativity involved in the artistry protected by moral rights is not obviously different in many ways than other types of creativity. Moral duties may also be important for understanding other areas of IP law.

Chris Newman: W/r/t personality theory, why not just say that destroying a piece of art doesn’t distort its meaning and is thus not as great a harm to the artist? Also, creative excellence doesn’t explain VARA’s prohibition on mutilation for works of non-recognized stature.

A: Mutilation v. destruction: people do debate which is worse. Not straightforward—even if mutilation is worse, destruction can be a huge insult to personality; maybe mutilation isn’t worse, depending on whether you think artists embue the work with their personalities—like destroying a part of the body.

As to VARA’s prohibition on mutilation—the recognized stature doesn’t map directly onto creative excellence. Some works don’t have much creative excellence. (I’m not sure this is a satisfactory answer. Though one may be found in the idea that the artist doesn’t get free rein in determining whether a distortion has occurred—which other moral regimes don’t allow either.)

Q: American devotion to aesthetic nondiscrimination—how does this square?

A: Maybe moral rights are just intrinsically problematic and inconsistent. Or maybe we aren’t as devoted to aesthetic nondiscrimination as we claim (and Fred Yen has persuasively argued that we aren’t and can’t be).

Q: why do we need a unified theory of moral rights? Maybe there are a bunch of separate principles/compromises at work?

A: Explanatory power/simplicity is a philosophical virtue.

My thoughts:

Very interesting paper. I wonder about using the cut-up Picasso episode to illustrate some aspects of the externality story: the value to the buyers of the 1"x1" squares of the painting might not be sufficient to compensate the loss to society, which potential buyers of the full painting can’t fully internalize.

I thought the thesis about creative excellence was provocative, but didn’t improve on the other available theories in its account of some aspects of American moral rights laws. For one thing, the person who creates the work is in a terrible position to evaluate its creative excellence, or whether it will be improved by alteration. Most artists who seek public recognition think they’re better than they are; that may be a necessary narcissism, but narcissism it is. The thesis would have more explanatory power if there were some governing body evaluating creative excellence and respect for same, as with the halls of fame the paper references. (I could see developing an argument that giving the artist/heirs the right is a second-best solution to the First Amendment problems of the first-best solution … but maybe if the best implementation of the idea has fatal First Amendment problems, it’s not a good idea—which the paper leaves on the table.)

I also think the idea that creative excellence explains why the rights are given to visual works and not nonvisual (because visual works have only one instantiation; identical copies are impossible) was undersupported. First, it doesn’t explain protection for (limited edition) photographic works, or lithographs etc., because the limitations are not at this point matters of technological inability. Although the paper gestures at the problem of film, it’s also the case that many theoretically duplicable films are in fact highly limited, so their exclusion is also a puzzle on this theory.

The paper, recognizing that singularity of an artistic artifact is often contingent, argues that the availability of identical duplicates should be considered on a practical basis—and yet for old books too the practical unavailability is high. Digitization is, we profoundly hope, coming; but many written collections (letters and other papers) are likely to escape the Googleplex for years and should be covered by moral rights under this theory as well. And if we really took practical unavailability seriously, then we should grant a moral right in the copy that gets digitized. That is, if Evil Google decides to distort the text (by stripping out the images, perhaps, or adding in ads, or even editing for content), then the version that most people will see is the altered/distorted versions. There is thus a missing link between respect for creative excellence and the availability of an unaltered original; unless somehow we ensure that everyone who sees the altered version sees the original as well, the unaltered original is a tree in an unoccupied forest.

Annemarie Bridy, University of Idaho College of Law

The Author in the Machine: Copyright in the Age of Digital Production

Computer authorship has been on people’s minds for a while, since at least 1965—people filed registrations for works at least partly authored by computers.

Examples: generative art; artists cede control to self-executing algorithms—used in design of computer games. User never runs out of terrain to explore because game generates new content as it’s played. AI painter AARON coded by UCSD art professor Harold Cohen, who started in 1973. AARON can make paintings of anything it knows about, but it knows very little—people, some objects. Work got more abstract over time.

Cohen is the author of AARON’s code, which is copyrightable. But is Cohen also the author of AARON’s paintings? Can’t predict what they’ll look like. Is creativity a purely human trait? Commentators tend to favor this result.

Case law: supernatural authorship is not approved—author in Urantia Foundation v. Maaherra is the one who held the pen. This misses that copyright already incorporates nonhuman authors: corporate owners in the case of work for hire. Because US law is grounded in protecting economics rights, we can recognize authorship in non-natural persons. Works prepared autonomously by computers could be recognized (by amendment) as works made for hire. Better than cheating by saying the programmer is the author because s/he wrote the code. Wants to recognize the degree of separation between the programmer and the creator of the work.

Q: Why is an amendment necessary? The computer is carrying out its ordinary “employment.” (I think this is too nice a pun. The computer program is not an employee. It neither has rights under OSHA, Title IX, etc. nor receives payment or benefits. Maybe someday computer programs will be employees—or slaves—but not right now.)

Newman: why not then say that the designer of the camera is the author of photographs taken by it? Output is dependent on the machine there too.

A: camera generally doesn’t work all by itself. AARON chooses what to paint. (Equivocation over the word “choice,” here, though of course many artists feel compelled as to their own subjects.) Cohen does not know what AARON will produce in a given day.

Q: does AARON/Cohen register copyrights?

A: neither have tried. AARON couldn’t sue anyone for infringement (another difference from a corporate author).

John Tehranian, Chapman University, School of Law

User Rights and the IP (Identity Politics) of IP (Intellectual Property)

Situated user (Cohen), user-focused theories of copyright (Liu and Tushnet) form the background for the project. Typically we see minimalist/maximalist debate where maximalists appeal to Lockean desert/Hegelian personhood theories to justify expansion, and minimalists appeal to utilitarianism and counterproductive effects on innovation. What about looking at user rights and giving a copyright skeptic’s appeal to personhood interests that users develop in copyrighted works?

Paper looks at tangible v. intangible property rights, and the customization we engage in when we tinker with something we own—the communicative value of a pair of jeans and how people change them/wear them.

Example involving American flag: what if we didn’t have a provision that works of the US government aren’t subject to copyright protection? A series of issues directly regarding user identity and the ability to express that identity. If a sale of a flag is determined to be a license, then we have special problems—display and destruction could be put under control. Compare to Barbie case battling Bratz. Different image of the idealized American woman than Barbie. What kind of image of All-American girl will be presented to American youth? Also: the Serenity Prayer used by AA. Recent evidence is that the purported author was not the author—many people were using it well before Reinhold Niebuhr claimed credit. What if copyright controls had been asserted? (Wikipedia seems to endorse Niebuhr on balance.)

Importance of copyrighted works in developing personhood, especially on a private ownership/control level. Increasingly what we see is threat to private use and possession that didn’t exist before.

Laura Heymann: Associational identity, not just personal identity: sharing it in common with the group is important. Sports team logos on T-shirts, etc.

A: yes, draws metes and bounds of “us and them.”

Jennifer Rothman: Situate your project in work on personal uses.

A: Looking for a theory where we take the opposite of what’s traditionally been argued—labor/desert/personhood supporting maximalism—to cut back on copyright protection.

Molly Van Houwelling, UC Berkeley Law School

The Moral Right of Revision

What happens if the author is accused of infringing an earlier work to which s/he no longer owns the copyright? Or perhaps the author was the employer in the case of a work for hire. Authors alienate copyright for good reasons: they want the publisher to take the risk of making/marketing copies; limited capacity for self-publishing, dissemination, management of rights. But alienation includes the right to make derivative works. Creates the reviser’s dilemma: artist may not anticipate revisiting the work later on.

Why worry? Some people don’t, and think it’s the predictable result of alienation and could be foreseen and dealt with by the author through contract. Why worry: author’s special creative voice; special personhood interests; special bargaining dilemmas. Catcher in the Rye: imagine J.D. Salinger revisiting Catcher and becoming the defendant in the case of an unauthorized revision. Some people think the unauthorized sequel is likely to be more reflective of new creativity. But maybe there’s a special interest in what the author now thinks, too. Salinger has special authority and we want to hear what he has to say. Along with audience, artist himself may have special interest in returning to the work. Salinger doesn’t have alternatives to Catcher in the Rye if he wants to show the next chapter. Other characters are inefficient substitutes for Holden Caulfield. J.D. California had options for unauthorized sequels of other works.

Voluntary solutions may be insufficient. Existing legal models: Special/strengthened copyright exceptions for authors—an author in this situation is simply not an infringer for revisiting previous work; another solution is an authorial right to terminate/withdraw consent. Relevant exceptions: fair use, idea/expression dichotomy, independent creation (I used my style)—potentially promising for authors. UK and Israel have exception for making additional artistic work by the same author. Right to withdraw/terminate—French model, in which author can withdraw the work, but must indemnify assignee and offer first refusal for exploitation of the modified work to the earlier assignee. Little exercised because of the indemnification requirement. Termination of transfer doesn’t work well in the US for this purpose; usually the author is dead. Hybrid solution: nonexclusive right to author to exploit work concurrently with copyright owner, possibly with indemnification/liability rule, but less than what it would cost to reclaim the entire right; perhaps with a right of first refusal for the copyright owner.

Q: worry because of alienation from means of production—author’s own brain becomes partially propertized. John Fogerty can’t help writing swamp rock.

McKenna: Monet and Fogerty seem like similar inspirations, not revisiting—are these the same set of considerations? (Han shot first.) If you want to revisit, bargain up front; if there’s imperfection in the bargaining situation, then work on that. Publisher won’t want potential direct competition; undermines initial contract rights and potential willingness to pay.

(Why do you have to tear down the non-author to give the author an interest? You’re not convincing me precisely to the extent that you have to kick the secondcomers off the bus of the personhood interest you’re asserting. Steven Brust and other fan creators regularly say: I didn’t have a choice about which characters I told stories about either. Different interest is not necessarily lesser/greater.)

Sixth Breakout Session

Copyright Distribution

Brian Carver, UC Berkeley iSchool

Not on My Watch: Avoiding Exhaustion Through First Sales Abroad

Costco v. Omega: The Omega Globe Design was registered in the US—tiny design. Why register? Answer: Omega invested in getting James Bond (since Pierce Brosnan) to wear Omega watches. Nearly $2000 suggested retail price. Costco sells them; leading to complaints from authorized American distributors. Omega makes watches in Switzerland, sells them over the globe to Paraguay and Egypt; third parties sold those watches to distributors in NY; Costco bought them from NY distributors. Costco sells them for just under $1300.

Contract? Omega has geographic limits on sales, but those are hard to enforce once the watches are sold for lack of privity; Omega also has a single distributor in many countries, and suing one’s customer is often not a good business idea; also Omega might not want to sue in a Paraguayan court.

Trademark: No likely confusion. These are identical, genuine watches that don’t differ across markets.

Patent: Omega has numerous design patents and some utility patents. Quanta today means that exhaustion would apply.

Copyright: A watch is a useful article. Maybe it’s not an accident that it’s hard to get protection against US resale of goods like this. But: put a design on the back, allowing control over distribution of the watch (not control over distribution of the design). Manufactured and sold in the US: First sale. Manufactured in US and sold abroad: first sale applies: Quality King. Manfactured abroad and sold in the US: First Sale applies too, Denbicare. But manufactured abroad and first sold abroad: we don’t know. This should not be understood as a copyright case, but as a parallel importing case—it’s copyright misuse to use the design to control the importation of the object.

Q: should owners of copyrights in books be able to prevent parallel imports in this situation?

A: case about this involving textbooks manufactured abroad—a better case in which to answer the copyright question. Urges us to not answer the copyright question in this case: that would mean the right answer, because Omega is up to no good.

Q: why not just interpret the copyright act to allow parallel importation? Why call it misuse?

A: Should ask whether the uncopyrightable element of the product makes up all or nearly all of the value of the product. If there’s separability, ask if there’s any commercial market for the copyrighted work alone. If not, there’s a sham use of copyright. Ask whether the expressive value (as opposed to perhaps the source indicating value) is a factor in the sale.

Q: why don’t they modify the watch in different markets?

A: they could do that. Or they could have a fully independent US entity hold the US TMs and then they can use the Tariff Act, which only protects US companies.

Q: Federal Circuit just said that Quanta doesn’t eliminate territoriality—Fujifilm.

A: He thinks LG/Hitachi is right: Quanta means there’s exhaustion.

Q: Supreme Court of Canada had a similar case involving Toblerone chocolate/the wrapper thereof. Many of the judges had similar reactions to yours: it’s not a work when it’s used on the wrapper.

Peter Menell, UC Berkeley Law School

In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute and Statutory Damages in the Internet Age

Juries have to decide copyright damages; Congress increased the maximums; music lost ground and lost money to online filesharing. Targeting high school students who didn’t know better is not a great way to make judges happy. Even though the Supreme Court held against Grokster, there are still a bunch of cases against individuals in the pipeline.

Legal question: is putting a file into a filesharing folder sufficient to count as distribution? EFF took the position that the copyright owner must prove actual distribution to a third party in order to prevail. (Menell seems surprised or even a bit offended that EFF took this position after suggesting that the RIAA should be suing individuals, not filesharing services; I don’t quite get what is untoward about that, given that EFF decidedly did not take the position that anyone sued would therefore be liable.) Judicial authority is split. Under the older acts, there was no authority about actual distribution; why did Congress use the word “distribute” instead of “publish or vend” in the 1976 Act?

Legislative history: no change was intended. Abe Goldman: “Publish” and “vend” were covered, but broadened so as not to leave anything out. Edward Sargoy, ABA: the reason for the change was that “publish” had taken on so many meanings (divestive/investive publication). 1965 report, the primary source: using language in an attempt to cover what will happen in the future, which no one can foresee—general approach aimed at compensating author for future as well as present uses enabled by technology. Danger: losing value of copyright due to unforeseen technical advances. Transmission of works by linked computers may soon be among the most important means of dissemination, by nonprofit broadcasting—we want to make sure that’s taken into account. Why is this legislative history not discussed? Took 11 more years to enactment. §101 includes “offers to distribute” in definition of publication. By 1976, no one remembered 1965, but this was still the pertinenent report. (Whose intent, if no one remembered?)

Disagrees with the argument that downloading by an (authorized) investigator constitutes distribution, but does think that offering to distribute counts.

Low probability detection/high fine approach is ineffective. Thinks we ought to expand the subpoena power to make it easier to identify people; make it illegal to put copyrighted works into shared folders; summary judgment should be granted if you put the file in a shared folder, and then the only question should be damages.

Chris Sprigman: The RIAA stopped doing this; even if you’re right, would they start up again?

A: Independent film companies are doing this. And had this been done right in 2004, the result might have been different. The norm problem is out there anyway. He doesn’t think the record labels are great actors; artists are caught in a vise, and are very disorganized. Social optimum might be for artists to get a market where their works are not immediately virally distributed.

(I also think the tech is changing in another way: people who use services like RapidShare are uploading to a third party server, not leaving the file in their own directories.)

Sprigman: the tech doesn’t exist for the question to come up for a while. Are you being faithful to legislative history in new context?

A: the specifics tell you that distribute encompasses publish. Congress was concerned about changes in technology, contrary to what Stevens said in Sony: wanted courts to be proactive. All the traditional tools/foresight exist.

Q: Political economy: high probability detection/low fine regimes are shown to work a lot better, and avoid embarrassment of fining a cheerleader millions. Why not?

A: RIAA offered to settle for $25,000 in payment to charity; they’ve figured out not to ask for huge amounts.

Q: why can’t we get to a different regime? Why won’t the EFF endorse it?

A: EFF is opposed to this. They were representing Streamcast at the time, and now realize that this was a good way of getting people excited about EFF. Public interest organizations are businesses too, looking for revenues. (I’m sure the EFF is happy to hear about its political clout. I would be interested to see which content industry members have endorsed dropping the amount of statutory damages available for online filesharing.)

Katarina de la Durantaye, St. John’s Univ School of Law

Finding a Home for Orphans. The Google Books Settlement and Orphan Works Legislation in the US and the European Union

(Random fact of randomness: I’m one degree of separation from Harlan Ellison, because I’m a coclaimant in the Google Books Settlement on behalf of my grandfather, who had a story in one of the Dangerous Visions anthologies.)

EU is working on EU-wide legislation with different framework. In the settlement, Google and only Google would be allowed to display up to 20% of a book unless the copyright owner objects, and generate revenue by running ads beside the books and by selling access to the full books. Revised settlement: independent fiduciary would oversee orphans and could license them to possible competitors to the extent permitted by law (now zero). After 10 years, funds would be donated to charity. Compared to legislative proposals: settlement was a very American creature (grew out of class action) but similar framework—Book Rights Registry is similar to European clearance organizations. User pays for use independently of the chance that owner of rights will eventually appear.

Rights clearance centers, though, don’t necessarily have Google’s monopoly. Collective management organizations would be subject to administrative oversight, not true of Book Rights Registry. Centralized databases: European proposal and settlement are very close. Google has changed the game by making it clear that there are situations where users want mass access and that there are significant international issues.

What’s our aim? Allow individual not for profit use: then orphan works legislation might be superior, given reasonably diligent search requirement. Mass digitization: reasonably diligent search isn’t feasible at scale; might need collective management and restriction on individuals’ ability to negotiate. CMOs are more common in Europe; Google may have been able to jumpstart a publishers’ CMO, but may be harder for other groups. May not be possible to do voluntary CMO, because it can’t cover unknown/unfindable rightsholders—automatic absent opt-out is the only feasible system. Model in place already in the Nordic countries, where CMO licenses cover not just members but nonmembers once a certain number of rightsholders are members. This is a model for US and EU legislation. Do these violate international law? Nordic countries have argued that they don’t as long as they allow opt-outs and individual negotiations.

Ultimate goal: reduce numbers of orphan works.

Van Houwelling: does collective licensing weaken ability of individual authors to license their works? Seem to suggest that it might.

A: No. If you don’t opt out, you’re covered, but if you opt out you get your own licensing.

Q: Centralization and monopolization seem to be a problem with the solution—antitrust regulation will follow. Is this inevitable? It comes because we don’t have information about ownership: a problem of owners’ making. They have some incentive to keep the information, but there are no consequences for not maintaining it. Conceptually simpler: recognize a duty of copyright owner to retain current, available information.

A: that’s a formality like registration and creates Berne problems. Collective organization can work towards the ideal of the database that knows every owner; authors have proven unwilling to create databases in the past, and we need to incentivize this creation.

Ariel Katz, University of Toronto

On the Partial (In)alienability of User Rights

Copyright carefully defines rights, but original entitlements get privately reordered through end-user licenses, terms of use, and TPMs. Should we worry?

Unsatisfactory answers: (1) No, across the board, because copyright owners shouldn’t be allowed to upset the careful balance of Congress. (2) Yes, because copyright creates only default rules that can be freely modified and there’s a clear distinction between contracts and property; per Easterbrook, a license is just a product feature like a processor speed and courts shouldn’t design products but should let competition settle the matter.

What’s between those?

Example: Poeticus only makes his poems available by download; to get the download, you have to agree never to publicly criticize the work without prior consent. Therefore you waive any fair use, First Amendment, or other rights to do so. This should not be enforced!

Indexes: autonomy/intrusiveness—is alienation respectful or intrusive on the user’s autonomy? All restrictions of copyright limit some users’ autonomy but not all are equally restrictive/justified. The more intrusive a restriction is, the more persuasive a justification should be; however, respecting autonomy also means respecting ability to make enforceable promises. Copyright traditionally focused on public, commercial, duplicative uses, less on private, noncommercial, transformative—the former set is less intrustive on user autonomy than the latter. Private performance, reverse engineering, timeshifting regulations are more intrusive than regulations of commercial piracy and public performance. Respecting ability to make enforceable promises: that depends on meaningful choice and exit options.

Market/scope: how widespread is the alienation; will the market take care of itself? Ask whether the terms are negotiable; whether there is a menu of options. How perfect the market is: competition; lock-in; information imperfections; cognitive biases; collective action problems with respect to externalities/spillovers. What’s the ratio between alienating and non-alienating users? Different to restrict one reader who is reading a private manuscript from all readers reading a culturally important public document.

Innovation/creativity: does alienation support a creative project and will it suppress other creative projects? Does alienation foster collaboration by preventing opportunism of collaborators (e.g., confidentiality for an editor/first reader, GPL)? Is it necessary for creating the product (cf. INS v. AP)? Does alienation suppress equally important sources of creativity, e.g., user-generated content? More producer control means more profit means more innovation is the traditional story, but this is not the only story and is wrong to the extent that it interferes with user innovation.

Solution: user rights should be presumptively inalienable.

Q: is this a matter of general contract principles or free speech? Or is it only in particular market contexts?

A: The point about different indexes for evaluating restrictions is that they measure different though related things. It is a fundamental right to exercise our autonomy in speaking about the world. And there is a constitutional dimension. We should be suspicious of attempts to limit that. But individuals may under appropriate circumstances agree to shut up, and we can hold them accountable to their agreements.