IPSC part 5

Seventh Breakout Session

Liability and Digital Technology

Steven Hetcher, Vanderbilt Law School

The Death of Strict Liability in Copyright

Proposal: Recognizing a fault standard for amateur-generated copyright. Copyright infringement is a tort, but we don’t take that concept seriously. Why do we have strict liability? General answer: don’t know. Not really strict right now properly understood: fair use, even though the burden is on the defendant.

Why only one liability standard when there are three in torts generally? In tort, generally a fault rule has been considered morally superior. Fault instead of causation improved on trespass by inserting a moral principle. Economics story: fault liability is economically efficient by finding the least cost avoider. Strict liability is the exception: wild animals, ultrahazardous/unreasonably dangerous activities/land trespass.

Restatement offers a 6-part test for when liability should be strict. Requires high degree of risk of harm, and likelihood that the harm will be great. These are hard arguments to make for user-generated content. Inability to eliminate risk by exercise of reasonable care. Copyright infringement as an intentional tort? Amateur content: most of it is fair use, in which case you’re doing something that’s probably legal but that creates a risk of harm, which puts us in negligence territory. There’s nothing inherently intentional about infringement. E.g., norm in fan fiction not to commercialize work; avoid spoilers from newly released works: this is due care. Likewise, other factors in Restatement don’t seem to fit, for example whether the practice is not a matter of common usage.

You really get fault liability when you have nonreciprocity of risk (e.g., using explosives): car accidents show that strict liability is about reciprocity of risk—we don’t have strict liability for car accidents because the risks are high to everyone. In user-generated content there is reciprocity of risk, everyone using everyone else’s stuff.

Finally, infringement is not like trespass to chattels. Idea is that infringer is better placed to avoid the error. But that’s true of drivers as well, and yet we don’t have strict liability for driving accidents. Intentional and innocent infringement are not finegrained enough; fail to acknowledge the element of risk. Much amateur risk may risk accidental harm; if injury results, the issue should be whether the defendant exercised due care.

Standard example of innocent infringement: Harrissongs: should George Harrison have taken more care to figure out whether he was copying someone else’s song?

Fair use is as close as we usually get to fault, but should be closer.

Jennifer Rothman: you have to define what counts as harm first; otherwise copyright owners get to say that they want to monetize UGC and you’re causing harm by not paying.

A: harm question is always circular. Why are noneconomic harms not cognizable in tort? Future risk of harm? We just say so. Harm to existing/traditional markets just mostly doesn’t exist. There may be harm in some cases: spoilers; pornographic portrayals. (Hetcher says Rowling purports to allow everything but pornography; in this he is mistaken, as Rowling/the WB made some noises about this years back but have stopped, though age-rating of explicit fan content, including HP content, is regularly practiced. Also of course harm from that type of portrayal is not cognizable as copyright harm.)

Peter DiCola, Northwestern University School of Law

A Reverse Liability Rule for Copyright in Digital Samples

Some licensing transactions work great between repeat players with a major label. They work with one sample per track; they work when professionals can verify the credentials of sophisticated, connected players. New entrants/independent players can’t participate. Multisample works are commercially impossible. Fear of a Black Planet could not be released today.

Proposed reforms: enhanced property rights (Bridgeport), compulsory licensing, noninfringing uses (de minimis use, fair use); innovations in voluntary licensing from transaction-facilitating institutions like PROs, Creative Commons, individual firms, authentication databases. Even with solutions like CC, we didn’t do anything for the Beastie Boys and Public Enemy.

Why don’t licenses happen? Because negotiations never start: costly to seek and ID owners, hire intermediaries, and negotiate. Because copyright owners seek to obtain higher fees; price discriminate. Because copyright owners don’t like other creators: “I don’t like rap music,” says the guy from the Turtles. Public Enemy: “I don’t like their politics.”

Property rule for the downstream user would be a well-defined de minimis threshold. Other options: copyright owners or downstream users could have various entitlements, from alienability to property rules to liability rules. Choices today: instead of property rule for owners, create a liability rule for downstream users. (This is the classic nuisance case of Spur Industries v. Del Webb.) That would mean downstream users would have an entitlement to sample, but copyright owners could block sampling as long as they were willing to pay. Copyright owners can flip the default. Fair use would continue to apply even if the copyright owner paid to block.

This is a reverse of compulsory licensing. Owners would be decisionmakers—they’d have control. But they’d have to pay instead of getting paid. Money and control are both goods that owners value. Why not trade them off, instead of assuming that copyright owners want money more?

Criticisms: need measures to deal with extortion by the downstream user as well as by the copyright owner. Administrative complexity. Nonstarter for copyright owners unless they expect to lose their entitlement with property rule protection.

Can do a sliding scale: use length as proxy for value. Sufficiently short samples could have a reverse liability rule and longer could be negotiated. Could manipulate mutability (whether owners could choose between compulsory licensing or reverse liability); timing; where the money goes (to the government, ideally for the arts).

Incentives: could result in more sampling, more licensing, or both; might help build database of copyright owners. Might show the balance between authors’ desire for money and their desire for control.

Why bother talking about options not on the legislative horizon? Reminds us that copyright is designed. Responds to serious problems that exist now. Shows that compulsory licenses aren’t the only option. Could be part of a reform package; motive to private actors to get them to fix the system.

Justin Hughes: there have been proposals to put copyright money into the NEA: does this raise a formality problem, though?

Molly van Houwelling: worries about small players always getting sampled, because they don’t have the money to make it stop—worries about digital sharecropping.

A: Interesting that what seems like being a weaker property right might raise these concerns.

Q: Consider whether new DMCA exemptions for DVD ripping affect substantive copyright law in terms of how sampling will be regarded more generally. (You’re welcome. ;) )

Tonya Evans, Widener Law

Sampling, Looping and Mashing...Oh My!: How Hip Hop Music is Scratching the Surface of Copyright Law

Sampling: first done in ignorance; then done despite risks; then practice ebbed and is now rarer than it should be, except in underground contexts. Paper goes through the details of why sampling produces different/better aesthetic results than replicating a composition in the studio.

Analogizing to collage/tapestry and other artistic justifications for using samples. Also wants to highlight the unequal treatment of sound recordings versus musical works generally. Bridgeport case; recent case in Saregama (now on appeal) wrote a scathing rebuttal to Bridgeport’s infringement analysis. The way that music is created is different than the way that texts are created; copyright needs to appreciate this.

Wants to analogize to semiconductor chip protection: specific rights against copying without reverse engineering were granted, but right to reverse engineer protected, in part because innovation is highly cumulative, the same way music production is.

My Q: Bridgeport actually treats text and music as different, just gets the difference wrong. Bridgeport looks at industry structure: ‘get a license or do not sample.’ The court would, however, easily have seen that this was a ridiculous requirement to apply that to writers. Focusing on creativity might be a way to identify relevant differences.

DiCola: what happens when people innovate to avoid sample clearance issues? (My thoughts: The fact that artists don’t shut up doesn’t mean that the situation has improved/not deteriorated. Finding a workaround—there, I fixed it—can be great when the restrictions are self-imposed; not so great when they put a class of works outside the realm of creation (collage, as Evans points out) and restrict other classes (single-sample works) to artists wealthy enough to pay for them.)

A: Classic example of Public Enemy. Industry changed; but it doesn’t work as well to pay for a single use. Lose collage.

Lital Helman, Columbia Law School

Voluntary Payment as a Complementary Model for Music Copyright

Proposes that every site offering music should be able to transfer music directly to the performing artist regardless of copyright ownership by the label. Technology has not kept pace with the link between artists and audiences.

There are literatures about tipping and voluntary payment. We all engage in these activities a lot. When does it work and why? People are more comfortable in reciprocal relationships; they often don’t like only to get, and want some kind of equality. People like to feel open-handed, kind, not cheap. We are music fans; many care about the persona behind the music.

Van Houwelling: how well does this translate online? People watch me put money in the hat in the physical world, and I can also feel that I’m encouraging others to contribute; harder to do that online.

A: online is not necessarily anonymous. (AMV.org, I think, gives donating contributors a special designation.) Wikipedia has also been able to engage in fundraising successfully.

Stauffer: would this be a windfall in the case of works for hire/transfers? Also, age/cultural differences in tipping matter—many cultures don’t tip or don’t tip much; age also affects tipping behavior.

A: given what artists make today, we don’t need everyone in China to pay to help them out.

Q: is it good for artists to be people who are tipped? To be people who are at the whims of others? (As opposed to their great independence now with respect to the record labels? Not that I’m not sympathetic—but who is the kind of person for whom it’s good to be in the position of being tipped, and what does that say about our understandings of class and human dignity?)

Eighth Breakout Session

Technological Change Affecting IP, Room 630

Gaia Bernstein, Seton Hall University School of Law

Disseminating Technologies

Diffusion of innovation. Looking at copyright and patent to figure out what’s happening with dissemination of technologies. Looking at copyright: filesharing cases and contributory liability affect dissemination of technology (copyright concerns itself with dissemination of knowledge, not dissemination of technology). Main patent doctrines related to dissemination include patent misuse and compulsory licensing. But the user as couch potato (compared to user as innovator) has been ignored—every day decisions users make about whether they want to adopt a new technology. Law has ignored how to encourage such adoption.

Should the government intervene to encourage adoption of new technology? Not to encourage adoption of one over others, but adoption of a technology that doesn’t seem to be gaining even though it would be good. Usual reaction: let market operate. But there are market failures. When a technology is dependent on a critical mass. When time is of the essence.

Network effects: minitel in France: many of the conveniences we now associate with the internet; grocery shopping, travel reservations, chat rooms, etc. Videotext systems weren’t adopted elsewhere in the world. Swine flu: window for vaccination; government intervened with massive advertising campaigns and distributing the vaccine for free. Digital TV: government mandated a move.

Legal framework that might encourage user adoption: specific case by case regulation? Broader IP mandate?

Q: Picking winners and losers is a challenge.

A: She tries to set aside where there are several technologies that do the same thing; picking is difficult. (How often will this be the case? Compare Medicare reform, where we created so many options that picking was too difficult.)

Jennifer Rothman: Say something about the difference between access and innovation. Access to drugs/internet raise slightly different but related issues. Is swine flu technology?

A: Yes, swine flu is technology—fear of vaccines is an adoption issue. Interested in consumer resistance to something new, not consumer desire for information that is not available.

Q: to what extent should government act as market participant or restructure the market? Some examples, IP law has no role because the government has acted by using money. When do we want it to change the rules of the game?

Q: Government provided a DTV voucher. It presents one method of not having to choose winners if you can ID the technology you want to encourage broadly (digital receivers for analog TVs) (though you are, I’d say, expressing a preference for DTV over the air compared to internet TV/other forms of disaggregating the receipt of audiovisual content).

My thoughts: I’m reminded of the arguments that copyright owners needed special rules to “put cars on the information highway,” and the arguments that the DMCA would spur content owners to make their content available on new devices that would then make those devices attractive to consumers.

Bruce Boyden, Marquette University Law School

Copyright’s Collapse

Copyright isn’t growing. The world is just shrinking.

Types of expansion that have been identified: in rules—categories of works covered, rights in those works, term, removal of formalities. Standards: nonliteral infringement expanding (derivative works right), contraction of fair use. Enforcement: damages larger, criminal provisions expanded, anticircumvention. Users: controls on personal use, form contracts.

Is expansion a good metaphor for what’s happening in reality? It’s a spatial metaphor. What’s the space that’s “around” the law? It’s also about time: be clear about timescale under discussion. Finally, things used as evidence of expansion have to be connected to the law that then causes the phenomenon in the relevant time period.

Correct period: over the past 30 years. That’s the area around which there’s some consensus in the scholarship that has been the period of expansion (and the literature itself has developed over that period).

Many of these things don’t serve as evidence of expansion: change in law leading to expansion of what the law covers—new things in the relevant space. Expansion of categories/increase in number of categories has occurred since copyright’s inception, as have rights; development of nonliteral infringement as a concept comes from the 1800s; fair use has been set since the 1930s. There are recent changes, but it’s moving around rather than increasing or decreasing.

Changes in enforcement are not evidence of expansion—doesn’t extend law to cover new things, just changes strictness with respect to what’s already covered. (This seems to me a mistake or at least a meaningless definition of expansion.)

What’s going on is a problem of perception. The view that copyright is expanding makes sense if you are taking a particular point of view. In copyright c. 1909-1970, you might have been able to make a Venn diagram with non-overlapping circles showing “producers” and “users”—the former would be about mass production; the latter would be individualized activities. Copyright is founded on the assumption that there are two groups of people acting with respect to a work who can be neatly separated, though connected by distribution. Copyright law was drafted broadly to regulate producers, in somewhat universal terms that go beyond what producers were actually doing. It’s the cost of publication that established natural bottlenecks at which gates could be erected without much direct governance, so that money could be collected for content.

That structure, however, is collapsing. Emergence of reproductive technologies came first; technologies of easy distribution of those individual reproductions then became widespread. Familiar chokepoints were gone. Law is being asked to do more with respect to individuals because law hasn’t expanded but users have moved into the space occupied by large entities.

Q: Things that are spread too thin collapse when they’re being extended, like military empires. Your opposition between expansion and collapse may not be an opposition.

A: His question: what’s the cause of the turmoil? Where do you trace it to? (Okay, but what about formalities? That’s a real change in law with real consequences for people who aren’t sued, but who fear being sued, and I don’t think you can say “that’s not the law’s fault, that’s the fault of understandings of the law.” Likewise with duration.) His question: Holding everything else constant, has the law intruded? (I disagree that you can hold everything else constant. Copyright owners assert more claims because they think they have more rights; this produces effects on teachers, publishers, intermediaries, etc. Also consider the way in which sound recording copyright owners argue—increasingly successfully—for expanded rights: they should get what musical work copyright owners get. Rights talk is, I think, pretty important. There is a reason why our international treaties set all these floors and essentially no ceilings in the IP area.)

Cheryl Preston, Brigham Young University Law School

The Infancy Doctrine for Off- and Online Contracts

What is the effect of an infancy doctrine on online behavior, especially behavior by OSPs? Teens have much more online experience than most adults, but tech savvy is not comprehension of consequence; the lore of innocence is less convincing with respect to teens. It’s arbitrary and capricious to assume competence sprouts on the 18^th birthday, but the Supreme Court defended categorical age cutoff for capital punishment, but that’s not the same. There’s no legislative movement away from age 18. Studies suggest that adolescents have some capacities, but still some differences from fully developed adult brains.

Can OSPs avoid voiding contracts by minors? Necessity is a defense: social networking, music downloads, and email are not yet necessities. Most teens with computer access can rely on parental support. Emancipation of a minor is rare.

Exception to unenforceability: when the minor retains the benefit of the transaction; means that whatever’s left of the benefit has to be returned. OSP would no longer have to provide services. But the minor’s right to void would not be lost just because she benefited from the service in the past.

Misrepresentation of age: the law is that this requires more than the adolescent’s representation. Adults should know that adolescents have motives to lie and need to investigate.

Recent attempt to nullify doctrine of infacy in AV v. iParadigms: the district court held that the infancy doctrine shouldn’t be a sword to injure others. If an infant enters into a contract with conditions, she can’t take the benefit without the conditions. Appealed to 4^th Circuit, which did some convoluted work to reach a fair use result (I think this is obviously fair use, not convoluted at all!): the court of appeals cited a case that was adamant in retaining the infancy doctrine, but quoted the district court how the infant can’t retainthe benefit and refuse to pay (here school credit and standing to bring the action). Williston says that if you retain returnable consideration, you have to return it; but if not, the contract is voidable.

Was there retained benefit? The district court said that students benefited from getting standing and credit. But this is wrong. They had standing under the Copyright Act, not from submitting the paper. They couldn’t give the credit back to iParadigms.

Standard terms: Access restrictions for users under age 13, because of COPPA. Only eBay bars people 13-17 from moving forward (which makes sense). Some of the terms in the TOS are overreaching; minor might want to disavow.

Is the infancy doctrine chilling business development? No. Why not: when you raise the doctrine as a defense with the OSP, they pull out their boilerplate saying “you agree you’re 18.” It’s a huge market segment where OSPs know very well and are pursuing customers under 18, but don’t care.

Greg Lastowka, Rutgers - Camden Law

Virtual Justice

Eve Online: dystopic alternate universe game where you form corporations and attack each others and steal each other’s resources. Player started up investment bank. You can trade real money for game currency. He promised a 10% return; it was a Ponzi scheme and then walks away with several thousand dollars’ worth of virtual currency. The Eve Online contract prohibits Ponzi schemes, but Eve Online said that fraud was part of the game. That didn’t lead to a lawsuit.

Dragonsaber: worth a little under $1000; friend asked to borrow it, then sold it. Owner went to the police, who refused to arrest the thief. He murdered his friend; his death sentence was later commuted.

Mirror image: Netherlands kids beat up another kid and held him at knifepoint to get all his stuff from Runescape, worth real money. Was this robbery? Or just assault? Court said that virtual property had legal reality and was robbery under Dutch law.

Woman in Japan was arrested for computer hacking for murdering her virtual husband: deleted his avatar in Maple Story.

Gold farming millionaires: subject of lawsuit.

There are 200 law review articles on virtual worlds. Much experience with law professors asking him: Isn’t this all just Monopoly? Why spend time on it? We have entertainment law, sports law; what bothers people about the law of these games in particular? Gamer stereotypes perhaps, though the stereotypes are often untrue (large numbers of women are playing online; gamers in better health than average).

Law is ill at ease with games for good reason. Rules are arbitrary, suggesting that all rules may be arbitrary. Suggest autonomy of structures from law. If real law is in abeyance, then what happens? Is the answer that code is law? Famous decision that owners/maintainers of LambdaMOO would not intervene in user behavior/dispute. But couldn’t do this, because control of server technology meant they were making important decisions; add to that contract and IP law.

How does copyright influence virtual justice? Its influence is pervasive. Copyright amplifies the differences between physical and virtual jurisdictions. MDY v. Blizzard shows how copyright can be used as a cudgel/governance mechanism. Marvel v. NCSoft: players create superhero costumes; owner of the platform says that players need to assign costumes to NCSoft, which upsets Marvel. So what role do we want platform owners to have? Ownership claims appear to flip copyright on its head.

(Compare the Geek Hierarchy: my people in their media fan identities are further down than the people Lastowka is writing about in their MMORPG identities, for gendered and other reasons, and yet I didn’t see (maybe I ignored) much dismissiveness/wondering among colleagues why I was writing about this stuff. In fact fanworks have done pretty well in terms of standing as core examples in the legal literature of nonprofessional creative works that copyright ought to be concerned about. I wonder if that’s because it’s easier to see the creative contributions of fan authors from the outside? What role do ideologies of authorship play in legal academic attitudes? The other thing, which I think Lastowka averted to when I asked this, is about the American ideology of doing things without permission, which is quite complicated. As he mentioned, gamers often show a fair amount of deference to the game makers, considering themselves legitimately subject to most of the rules (which are of course arbitrary, as he noted, and thus only changes midstream are easy to object to as unfair). So fan authors also have that frisson of doing something without permission, maybe?)