WIPIP part 4

Olufunmilayo B. Arewa, Writing Rights: Performance, Creativity, and Copyright's Visual Bias

Hermit Songs: we can hear the composer performing his own composition, through early recording technology.  He doesn’t play them as written.  Should we sing as played or as written?  Her voice teacher: sing as written—key feature of classical voice tradition. Eminent singers have more leeway.  19^th century was very different for performers’ liberties to insert arias etc.

Technologies: sheet music.  Technical revolution started with technical applications of acoustic science.  The phonautograph: first sound recording technology, invented 1856.  Vibrations from sound could be turned into writing—inventor thought that the best way to preserve music was to preserve it visually; no way to reproduce sounds at that point.  The gap between him and us: he thought sound could truly be understood by looking at it.  “Yawning epistemic gap” between him and us, according to researcher quoted in NYT.

How written relates to oral varies in musical traditions. Phonograph: 1877, Edison discloses his invention, and a number of competing technologies followed.  Dictaphone was do-it-yourself; early innovators like Bell and Edison were interested in the deaf and not so much in music, though Edison did talk about music as an application. Others soon realized that music was the killer app. This led to a struggle to find content. Opera singers, who were the rage, were hard to record—sopranos and basses in particular given the tech. Caruso established a huge career as a recording artist because he could sing for the new tech; many of the old recordings don’t sound so good because their voices didn’t fit.  So then the industry turned to bandstands and music halls. Cakewalk, minstrelsy, “coon” songs. Encountered emerging body of African-American popular music. This is an important turning point because this body of music was based on different assumptions about orality and visuality.

Tendency from Enlightenment is to think of sight as privileged.  Visual bias assumes that notation is authoritative source and we gain understanding by using it. Not always true. This has implications for how we think about performers.  Reflects assumption that composition/composer are creative locus in music, which is not always true. Sources of visual bias: historical—sacralization of European canon changing performance culture so that things like aria insertion at the performer’s choice were no longer allowed; displacement and takeover of African-American music by “popular” music.

Rhythm is very difficult to notate; music based on complex rhythms may have to be learned orally.  Timbre (musical color—difference between trumpet and flute—looks same in musical notation, though sound different).  Psychology of music literature suggests major means of recognition of music is timbre, but that’s very hard to notate.  African-American music has a very distinctive timbre. May not be evident because our ears have changed. If we listened to music 100 years ago, there’d be a remarkable change. A succession of black genres stamped themselves indelibly on generation after generation: blues, jazz, R&B, gospel, doowop, soul, etc. No one would have predicted this in 1860.

Go back to first slave song collection, published 1867. Most not heard by general public until former slaves started to leave locations of slavery in great numbers; early encounters—white people weren’t even sure how to write it down. Voices have “a peculiar quality that nothing can imitate.”  Difficult to express “by mere musical notes and signs.”

If musical forms are based in timbre and rhythmic variation, notation won’t work/is incomplete.  Making a musical work infringement determination may differ by genre, where notation may capture 80% of one genre and only 60% of another. Notation is not neutral. 

There’s more oral tradition in classical than we understand; more notation in African-American music than we understand—used more broadly in early jazz scene than is widely understood.  Would sometimes learn from notation and then perform without it—a way to play with expectations that African-Americans were naturally skilled at music.

Cognitive aspects of visual bias: how do we construe meaning via sight versus sound? If we rethink infringement, would that change outcomes?

Q: How much difficulty noting is inherent and how much because we settled on one way of writing down compositions that doesn’t catch these particular nuances?

A: Some is historical, European tradition. But how do you notate timbre?

Q: Newton v. Diamond—court actually saw things noted on the sheet music but wasn’t sure whether to treat as part of music or part of performance, because they seemed to tell the performer how to perform.

A: the performance/composition dichotomy comes out of this bias; a performance can be many things, not just one thing.  Criticizes that case.  Performance could be generic, but could be composition in itself.

Ramsey: What would you compare in infringement of a sound recording?

A: We need to think about this in a more complex way, contextually.  Also depends on musical tradition.  Experts?  In Newton, the court should have looked at the jazz context even though she agrees with the outcome.

Loren: what do you think of the timing of sound recording protection, 1972? We now have this dichotomy.

A: huge lobbying by industry.  Limited protection for sound recordings is based on visual bias

I want to know what this project implies for Jamie Lund’s incredibly interesting work on juror evaluation of musical work infringement.  Sounds like Arewa is saying that Lund is asking the wrong question because by changing the performance style she’s changing the musical work.

A: She’s interested in how those differences play out; legally we don’t know. She’s agnostic.

Eric E. Johnson, The Konomark Project

A public interest project with a paper explaining it. Konomark is a made-up word, kono as Hawai’ian for “invite.”  A signal of intent to share—go ahead and ask to use this for free.  What do people want to get out of sharing? Make money, get credit, be social.  Getty Images is an example of money.  Creative Commons is largely about credit.  Konomark is intended to fill a gap where people want to get something—contact.  An invitation; don’t be shy about asking for permission.

Economic gains & sociocultural gains.  Overkill loss—some people create for money, but others don’t. Konomark aims to decrease the loss from failing to use stuff that could easily be used. How much overkill is there in the system, and how much is it worth?  Look at historical record where people didn’t put proper notice on works and thus weren’t protected—70%, roughly.  If copyright industries are worth a trillion, that suggests that the unused value is more than twice that.

Outport effect: pictures of Hawai’i are cheap to get in Hawai’i, but valuable to someone in New York.  Transaction creates value.

Workpart multiplier effects: providing inputs to some other artistic creation to add value—sound effects, B-roll, stock footage.

Intrinsic motivation agonism: abetting the effects of intrinsic motivation.  Positive feedback, gratitude, and useful information about the contribution abet intrinsic motivation.  See it on Wikipedia: you get badges/positive feedback/gratitude/sense of relatedness.

Konomark can provide these, as well as indications of competence, feelings of autonomy, experiences of relatedness.

Market-clearing efficiencies. Benkler: gifting/sharing is economically efficient for excess capacity where people end up with more of something than they need, but not so much more that it’s worthwhile to sell—lumpy/midgrained granularity. Computer processor timeàdonated to SETI@home or folding@home.  Casual commuting/carpooling.  IP has a lot of excess capacity: your pictures are probably not worth selling in most cases. In 2005, Getty images were sometimes sold at $585.  Now we’re looking at average prices of 14 cents. Does selling photos for a pittance really make sense, when people could be getting other things like positive feedback?  People on these cheap sites want to know where there photos are being used, they don’t want a check.

Sharing is especially well suited to give the gratitude & info etc.

Sociocultural: improves expression/participation in culture/deeper reservoir of works/meritocratic artistic production.

Barrier to sharing: awkwardness of asking for something for free.  Invitation to ask lowers that barrier.  Konomark is a simple, social signal.

There are some transaction costs, but they are features, not bugs.  All the transaction costs of having to ask someone for permission and establishing a relationship creates intrinsic motivations which increase the giver’s benefit.

Beta test on flickr: large reservoir of 10,000 photos with a little explanation.  A bit under 100 people have contacted him.  About one every week.  Used for a court reporting service.  Iowa State used a picture for an event.  Trolley picture used by husband-wife streetcar guide.  This was fun!

Should the paper be about Konomark, or should it be about social sharing of IP?

Ramsey: consider TM implications of the mark.

A: feels ok with his use.

My reaction: the idea here seems to be to substitute for smaller community norms (where people may feel able to ask, e.g., the fan podficcing community—or, also, students feeling free to ask pretty much anything of their teachers, or the people who write me for free legal advice based on my blog). Need to have a thick description of norms about asking to predict how this will change behavior.  For one thing, fair use is also substituting for “please ask”—why do we think that the value Johnson claims is locked up is actually unused right now?  Are positive feedback etc. connected to reuse in any clear way?  I like your picture/like button: easier to give that feedback and more common than “I’d like that for my wallpaper.” And then you right-click save if you want to save it.  Likewise, Wikipedia rewards aren’t given by people who copy; they’re given by other contributors.  At the very least, you have to treat this as marginal contribution rather than entire gap-filler.

Q: does success threaten this project? It’s fun to get one request a week, not five hundred.

Liam O'Melinn, The Mythology of Common Law Copyright

Founders rejected the content industries’ view of copyright, which was present at the time.  RCA v. Whiteman, unauthorized transmission over the air.  Whiteman was a conductor and was unhappy about transmission.  District court ruled in his favor on a common-law theory, and was reversed, though district court’s thinking was the wave of the future. 

District judge said: at an early stage, performer had a right to prevent transmission even though there was no apparatus to do so. “Prior to the advent of the phonograph, a musical selection once rendered by an artist was lost for ever, as far as that particular rendition was concerned. It could not be captured and played back again by any mechanical contrivance then known. Thus the property right of the artist, pertaining as it did to an intangible musical interpretation, was in no danger of being violated. During all this time the right was always present, yet because of the impossibility of violating it, it was not necessary to assert it.”  In this theory, people reserve the right to communicate the performance even though it can’t be done. Doesn’t seem consistent with how people think, behave, and share performances.

Birth of copyright: censorship delegated to London’s company of stationers.  Today’s censorship is pallid by contrast.  Puritan wrote a pamphlet licensed by the censor, but the Archbishop of Canterbury disagreed and he had his ears cropped, LS branded on his forehead, and a life sentence in prison.

Copyright att’y in 1961-1962, part of lobbying to extend copyright: The Ghost of Donaldson v. Beckett: the translation is that it’s time to extend copyright to sound recordings.  Excellent piece of adversarial scholarship, though O’Melinn doesn’t believe a word of it.  Ignores the inconvenient past in which there was no common-law right of copyright.  Author denies that Donaldson reached American shores, so that when America enacted its law it was following Millar, which held that copyright was a perpetual common-law right.  Ben Franklin had to have been exposed to Donaldson, though O’Melinn can’t prove that he remembered 13 years later at the Constitutional Convention.  Key argument: Millar expressed the true spirit of copyright; common-law copyright simply suffused the world at that point, booksellers all understood that (somehow omits authors). Common-law theorists substitute a philosophical past—principles and relationships—for a historical past populated by events and people.

Paucity of authors known to have supported the common-law theory, though a few famous ones like Defoe and Jonathan Swift (discredited attribution of early version of Statute of Anne to him).  Shakespeare?  Used by several proponents, even though he was a notorious plagiarist and it’s not known that he oversaw/authorized publication of his works, though maybe so with his sonnets. Learned Hand has used him to support common-law copyright, as have a few others.  Shakespeare’s Fight with the Pirates—a book in which Shakespeare rarely if at all appears.  Many, perhaps all, of his works were printed without attribution, but the author, Pollard, saw a pattern. The Shakespeare that was pirated were the main/inferior texts, the bad quartos. It seems to him that the true, superior texts were authorized.  A moral economy of copyright—even if self-interest forced the publishers to publish, they printed bad ones; Shakespeare and his players were worried about corruption so they worked with publishers to put out good versions.  This history has been challenged.  If the authors/printer Paxton had competitors, Pollard argued, he would’ve stood up for common-law copyright, but he had none so he didn’t.  Note how that reasoning is similar to that of the district judge in the RCA case.  That’s one way to deal with the paucity of authors: they should have demanded protection.

Tonson v. Collins, 1760, later dismissed as collusive: sought to vindicate common-law perpetual right.  Started with the right of the author—the right to a profit from printing.  Manuscripts weren’t important, the advocate said, because they weren’t for profit—though it seems there was a lively trade in manuscripts in Europe.  Not clear there was any norm against unauthorized copying of manuscripts; authors raised no objections as far as the record shows.  The printing press was the game-changer. Advocate didn’t want to suggest that manuscripts had ever vindicated authors’ interests; and didn’t want others to think too hard about how manuscripts made their way into print, given that a fair number of unauthorized manuscripts seem to have found their way into print.

Common-law theory: it’s timeless, over and above history. Continued insistence on essential relationship between authors and public secured by the printing press and accompanied by copyright, as a philosophical necessity rather than a historical fact. No/little room for public domain. If people are walking around with a primordial right to control transmission even absent tech, that doesn’t seem consistent with a public domain.

More modern influences: the extension of copyright to sound recordings.  Constitutional insouciance. Campaign to extend copyright began around 1909.  Are records “writings”?  Objections have withered away over time because nobody cares.  Barbara Ringer used the district court opinion in RCA (which she said was “reversed on other grounds”) to establish a common-law copyright in sound recordings.  Copyright Office was evidently disappointed that Congress was unwilling to act/follow the true spirit of copyright.  His inclination: they passed the law they wanted. But the common-law theorists have an unrealized ideal, which every legislative enactment is a partial attempt to realize.

Q: Wheaton v. Peters?

A: The theorists do their best to ignore that, suggesting a spirit of common-law copyright infused the colonies.

Arewa: In Highbrow/Lowbrow, Lawrence Levine talks about the sacralization of Shakespeare and contrasts prior ways of dealing with Shakespeare with what happened by the end of the 19^th century—a norm of copying/altering that shifted.

Jeanne C. Fromer, The Audience in Intellectual Property Infringement

Joint work with Mark Lemley, who had to leave. Most IP disputes involve whether the D’s product, idea, brand etc. is too similar to the P’s.  Who decides similarity?  Who is the audience?  Not merely judge v. jury, but about complexities beneath the surface.  Taxonomy of aspects of the audience, and observations about them.

1. Is the audience real or hypothetical?  Tort’s reasonable person/patent’s PHOSITA, a construct with perfect information.  TM: looks at actual consumers, at least in theory.  (My thought: First Amendment TM defenses often borrow from general First Amendment and look for a more hypothetical presumptively smart audience.)

2. What group? General public or technical experts (patent, to some degree trade secrecy).  Copyright can also involve smaller groups: computer software, music of a particular genre.  TM: whether 386 is generic for semiconductor chip architecture?  General public has no clue, but people making purchasing decisions of chips will have opinions.  Competitors’ perceptions may be relevant: in trade secrecy, where business norms drive both D’s liability and whether there is even a secret.  Copyright: sometimes comes up in asking whether there’s a licensing market.  Legal experts: relevant in patent law, for claim construction.  With TM, 15% confusion can be enough, but in trade secret a larger group probably needs to think that the conduct violates commercial norms.

3.   Judge or jury.  Plays into the fact/law-norm divide.

Choice can matter quite a bit.  A lot of the choices made are effected by (or will be affected by) allocating to the jury or the judge the determination of infringement. Jury’s own perceptions: are they being reflective of actual audiences?  Actual audience might be less attentive than a jury required to sit there and pay attention.  Mismatch may worry us. Can juries or judges channel the real world or the PHOSITA?  Maybe they’ll be better at modeling someone not like them (or maybe the opposite).

When the model is less like them, what role does expertise play?  Should we survey people in the field? Present experts?  Rolling Stone interviewed jurors after the Bee Gees case about How Deep Is Your Love.  Jurors said “we just did what the expert told us.”  Reversed; the trouble with what the jurors said was that the expert was supposed to be testifying about factual copying, not substantial similarity.  Jury is more representative of consumer in some cases than the PHOSITA—should we care about differences indistinguishable to the consumer in the market? Patent law makes scientific distinctions, but is that right?

Is copyright equipped to decide cases where the jury doesn’t map on to the regular audience? Courts more willing to rely on experts in software cases; have told us to think like kids in kid-oriented work cases; etc.

Design patents: amalgam of patent and TM.

A big focus: how well can juries handle expertise? Choices may differ across areas of the law.

Goldman: weird construct—audience v. consumer.  Judges are higher variability as a focus group of one than focus group of 12, but they’re also more trained in evaluation.  But that seems like a different question than how we measure what the audience/consumer thinks.

A: Not sure you can divorce the questions. You have to decide who’s going to decide—juries might be better, given known problems about TM surveys. Compare: why doesn’t copyright use surveys?  Practical issues, but also conceptual.  We sweep a lot under the rug by sending substantial similarity to the jury and letting them work it out.

My reaction: consider expert v. survey.  In Lanham Act cases, courts actually reject experts and say only surveys count, especially in false advertising cases.  Rare even to see expert testify about confusion, though TM cases sometimes smuggle that in through expert testimony about the relevant market. A pathology that is distorting how we present evidence?

Michael Meurer: comparative law treatment of the subject? Do we see the audience defined in the same way around the world? Judges decide patent cases around the world except the US. Are we path-dependent and idiosyncratic? 

Shubha Ghosh, "If Music Didn't Pay:" Justice Holmes and the Commercialization of Intellectual Property

Commercialization comes up in Eldred and Golan, as well as in patent cases.  Holmes shaped the “traditional contours.” 

Holmes also gets cited a fair amount, so it’s useful to look at what he said.  E.g., “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used”—cited in Markman concurrence and other significant cases.  Quoted by Judge Newman on patentable subject matter on the relationship between law and policy: litigation is necessarily bound up with public policy.  Quoted by Stevens in concurrence in Bilski (a page of history is worth a volume of logic).  The Indian High Court also cited Holmes in an IP case on deference to the new patent appeals court. And also quoted in a Delhi high court case on trade in DVDs: copyright is an abstract right to exclude not directed to any object.

Holmes was a positivist versus a natural rights theorist. Does that mean the state can do anything it wants?  His theories of property generally have to have some implications for IP.  Golan: one striking thing is Ginsburg’s reference to vested rights of users to disparage arguments that users have any reliance or expectation interest that works will be kept in the public domain—seemed out of an earlier century. 

Should we think of Holmes as a utilitarian?  Not a very serious one; any litigator is a utilitarian who talks about burdens and benefits; he was interested in consequences.

Was on the Mass. S.Ct. for about a decade; there were IP cases, like the Waltham Watch case, but also patent cases.  Commercial cases involving patents, not infringement cases.

“If music did not pay”: focuses inquiry on causation—why would they do it?  Doesn’t use term “free riding” but it’s implicated: D is getting commercial value.

Relevant to how you think about other commercial interests, including university commercialization—which may push other university interests onto the back burner.

Related: role of judiciary in shaping policy. Holmes thinks about institutional relationships, and that’s important to his IP policy.  Deference to Congress. 

Bleistein: artistic personality; uncertain competence of judges; existence of commercial value as a way of measuring its creativity and just because something has value is no reason to disparage it.  In a letter, he wrote that he upheld “the cause of low art.”

Holmes on antitrust: he was skeptical, free market views; narrow construction compared to deference to legislature.

His Mass SCt cases: he sees TM become business assets, which in some ways becomes a model for all IP.  One case: transfer of TM in will was assignment in gross.  TMs as commercial assets in various ways.  Patent cases are really interesting because also involve IP rights as commercial assets: in trusts, in stock fraud cases (worthless patent), resale price maintenance based on patent, libel based on patent infringement claim, unpatented zithers that could be copied without triggering unfair competition liability.

Jekyll and Hyde: deference to majority/commercial assets on one side; defense of creative personalities and free expression on the other—let those fools talk, seeds of more protective First Amendment doctrine.  His jurisprudence focuses on buying and selling over the creativity underlying IP.

Me: In INS v. AP, Brandeis’s dissent is more institutionally oriented than Holmes’s, in my opinion, though Holmes does mention that he can’t do anything without legislation but require disclosure despite what he sees as the potential wisdom of an anticopying remedy.

A: Brandeis is sort of a pseudo-preemption analysis: Congress didn’t put it in. Holmes is more common-law, rejecting natural right and using common law to remedy the harm he saw.

Q: pragmatism has interesting relation to IP because IP is so metaphysical. He doesn’t like high/low art distinction. Is commercialization simply a running away from abstract concepts of art etc.?

A: we have a Gordon Gecko view of commercialization in 2012, but it’s more complicated than that. A relationship between individuals. Holmes is somewhere between Gibbons v. Ogden and “greed is good” in his thinking.  There is or can be a divide between the beach (social life) v. the market—but Holmes eventually rejects IP as play: wants people to be serious and get down to work.

Yu: Was Holmes creating/trying to create markets?

A: different forms of markets were then emerging, and opinions reflect that; doesn't seem to be trying to engineer their development.