Panel 1: Copyright and CyberLaw
Prof. M. Scott Boone, Appalachian School of Law
Virtual Property and Copyright: Taking the First Sale
Doctrine into Virtual Space
General concept: apply virtual property/object theories
originally developed in connection with virtual worlds to first sale. Copyright Act speaks of “property rights in
any material object,” §202, and also “computer programs,” §117. The latter was designed to protect ordinary
user rights, starting to capture the idea of a virtual object which isn’t
necessarily just one iteration of code sitting in RAM or sitting on the hard
disk. The object is the combination of the functional software with the data
with the copies in multiple places that together allow the user to do
something. That’s the underlying idea anyway.
Those things shouldn’t be treated separately for purposes of
infringement, because they work together to create one usable object.
Barrier: contracts. A license isn’t a transfer of ownership,
and thus first sale doesn’t apply to avoid distribution liability even if there’s
no reproduction. One possibility: revise §109 to add in rightful possessors, or
a principle of mutuality—whatever user gets from copyright owner, user can
transfer. Copyright owners argue that
they retain power to terminate licenses, even though they never really intend
to do so. Some software might be linked
with a service and we wouldn’t want it transferable—might want an exception for
such cases where it’s really a personal negotiated relationship instead of a
sale of consumer goods.
Second problem with contracts: restraint on alienation; can
still add a contractual promise not to distribute even if it’s not a license.
Barrier: technology.
DRM can prevent transfer; legal restraints on circumvention. Need §109 for §1201?
Prof. Thomas C. Folsom, Regent University School of Law
Property concepts can change with code: if X sells poisoned flowers
and Y doesn’t like the petals drifting over her fence, one must give; but if X
can code the flowers to be nonpoisonous unless they leave the property with her
permission, then both can win. Code
allows performativeness: can change reality immediately upon utterance. There should be degrees of coded
exceptionalism. Build code to manage
people’s relationships to focal points (Superman, the Eiffel Tower) that shape
their decisions.
The Magician’s Horse: Designing Code and Other Laws Beyond
Cyberspace
Prof. Jon M. Garon, Chase College of Law, Northern Kentucky
University
Legal Education in Disruption: Headwinds and Tailwinds of
Technology
Disruption: when change is choked off, the ultimate change
is even greater and more disastrous.
Disruptive tech, etc.; globalization, pressure on state from ability of
individuals to communicate; ability to aggregage/disaggregate info in cloud
culture, including Facebook; internet of things, RFID chips; network effects
creating real winners and losers from being on or off the dominant system—all triggers
for disintermediation. Globalization is
also affecting law; BigLaw is where most people have focused on—huge economies
of scale/control are possible so that consolidation of power in corporations is
mirrored with law firms providing similar services. His focus: the bottom of
the pyramid—software, self-help dramatically changing the environment.
2/3 of legal services have moved to corporate clients, who
are more price sensitive. Most model rules are designed to protect the
individual against the lawyer; the bargain is not as skewed with 500 lawyers
in-house. Lawyers as gatekeepers to info
have fallen out of favor and we’re in a self-help world; costs of legal
services have become incredibly difficult to pay and the value proposition is
hard to justify if you can research it yourself. Texas courts tried to block software
formbooks but the legislature struck back. We’re only self regulated when the
public wants us to be.
Money is coming to legal forms: Kleiner Perkins invested
$100 million and Institutional Venture Parters invested $41 million in
LegalZoom; Google has invested; FindLaw is a ThompsonReuters company, who’s
also invested in the leading Indian legal outsourcing company. Direct legal services and mediating access to
the public—not just a little WestlawNext app.
Small is also big: models of socially mediated/curated legal
forms are becoming popular; some are free/nonprofit and others proprietary;
many use as loss leader. LegalZoom is
being attacked on the bottom--$99 is too expensive for incorporation, we can do
it for $34. Virtual law firm: ex-BigLaw
lawyers are connecting virtually through software portals, getting rid of
physical overhead; being used by AmLaw 500 companies. This is the wave of
middle corporate law firm access, creating new relationships with attys. New practice guides/ethics rules are
emerging.
These strategies are being adopted by lawyers but not being
taught in law school. We’ve always
decried the end of the profession, but there are changes: modern client wants
24/7 service, without jurisdictional boundaries, very fast. This creates
specific dangers for lawyes who need time to think: there’s an ethical
constraint on how fast we can work. Thus prepackaged solutions prepared in
advance are ethically responsible.
Law school market shift: 45,000 students will graduate in an
average year, to 25,000 jobs requiring a JD.
We’re producing to an eroded market.
Lawyers must be tech savvy, networked, specialized, unbundled, scalable.
To do it well: socially responsible, civically engaged; work-life balance;
valued intermediaries providing highly personalized consultative advice. Legal education teaches content, and some
skills—fact investigation, negotiating, client counseling. Not enough of curriculum is directed towards
corporate client practice instead of litigation; we don’t teach how to operate
as businesspeople or how to talk to businesspeople. Core curriculum has to be taught: people need
to understand fundamental legal content.
But we should teach critical reasoning and analysis as a course, rather
than inferring skills from 1200 page casebook.
Experiential learning—clinics, field placements, simulations, reflective
learning from summer jobs/in-house, etc.
We must also pull skills from MBA programs: at a minimum, organizational
behavior, management and leadership.
Quantitative and qualitative skills are also important.
Prof. David S. Levine, Elon University School of Law
Bring in the Nerds: Secrecy, National Security and the
Creation of Intellectual Property Law
We have no idea what’s happening internationally; compared
to international lawmaking, Congress is transparent!
Observation one: secret law is not law. The ability to see sausage-making on the
international stage: FOIA has a national security exemption. The rubric through which int’l IP law is
running currently is “national security.”
This isn’t based on the anecdotal data that piracy sometimes funds
terrorism; the concern at issue here is one of diplomatic relations/effective
int’l negotiations. The ability to
negotiate without the public glare; he is not suggesting that all int’l
negotiations should be completely transparent and documented. His concern is that there are fundamental
info asymmetries between certain corporate entities with access to the USTR
through an administrative process and others.
And the info at issue is the basic negotiating text, which is not known
to the public but is known to representatives from content industries.
Current executive order includes a variety of topics:
national security information, including foreign gov’t info (where IP law tends
to fall—draft text has info contributed by other countries); intelligence activities;
foreign relations of the US including confidential sources; scientific matters
relating to national security; nuclear safeguards; system vulnerabilities;
WMDs. WMDs should probably not be treated
in the same way as draft texts about IP law.
The impact is severe: ACTA.
Draft FAQ, retrieved through FOIA, included “What if U.S. positions
evolve during negotiations?” “A: The
public can see how the U.S. position has evolved when the final text is signed.” With regard to the Transpacific Partnership
agreement: US says it will disclose this four years from entry into force of
the TPP agreement, or four years from the close of negotiations if no agreement
enters into force. If TPP never becomes
law, the public will still not know what the negotiations look like for 4
years. Why does this need to be
withheld? We know more about Russia’s ICBMs than about the US position on TPP.
Observation two: transparency, accountability and public
input. We need nerds to avoid poorly drafted and unbalanced law—see, e.g.,
SOPA/PIPA and the DNS provisions.
FOIA needs to be reconfigured to be more about when public
inputs to government are needed; difficult to apply “right to know” in abstract
when competing with significant concerns on the other side. Transparency is important when an expert
would need to know more to opine. Strong
right/presumption for US negotiation texts and other information.
Prof. Deborah Tussey, Oklahoma City University School of Law
Work for Hire, Work for Free: The Dilemma of the Digital
Freelance
Background: Lawsuits by HuffPo bloggers; direct
dissemination by authors; crowdfunding; voluntary contributions on wikis;
worries about getting paid less online.
Is WFH fair, and is it well adapted to a changing environment? Her focus: Freelance contributors to
collective works in the industries most specifically benefited by WFH. Including revision rights and license
interpretation. Excluding academics and
sound recordings.
Freelancers’ rights get determined at initial allocation,
and then subsequently exploitation under license—new uses/new media. Law is
written by/for publishers at both stages.
Justified as necessary to facilitate investment in and exploitation of collectively
produced works. Concerned with
freelancers and “employees by interpretation”—people who get called employees
because of CCNV. Some special commissions are voluntarily
negotiated WFH agreements (Spike Lee directing Malcolm X) and others are involuntary—former employees who’ve been
downsized and turned into workers for hire.
Consequences may, of course, be severe for
rights/duration/termination. If a
freelancer stays out of WFH, new media uses become an issue. Tasini tried
to protect freelancers by excluding electronic republication from the statutory
privilege, but this was easily nullified by standard form contracts. Publisher holds the cards. Proposals for rectifying this: abandon agency
rules as inappropriate; rejigger CCNV
and import concepts of informed consent from employment law; encourage authors
to organize and collectively bargain.
Intrigued by importing concepts from civil law: generally start from
basic rule that employees don’t lose their copyrights, corporations can’t be
authors. Then they limit transfers, require writings and specifically
enumerated grants; narrowly construe grants; provide statutory royalties. Intriguing but will Congress take lessons
from Europe?
The reality of freelancing: highly variable rewards (makes
academic writing look nice). Many writers’ organizations are out there, hugely
diverse by sex, genre, ethnicity, medium, etc.
Also lots of networking sites.
Some are actual unions engaging in collective bargaining; others offer
services including contract review. There are some collective licensing
societies. Copyright tends to lump these
folks into a few categories, but freelancers sort themselves more carefully.
This might impair collective action, but also indicate problems with copyright’s
treatment. A lot of experimentation with
new business models—pay what you want; direct dissemination. A fair number of
positions are unpaid, as with HuffPo.
Maybe we need distinctions between the kinds of works and/or
industries that will likely remain in centralized production mode. We’re used to centralized studio system for
movies, but tools are now available to decentralize. Could also take differences in creativity
into account: contributor to a case report in a database might not deserve
copyright, but a contributor of an article to a magazine is different. May need less incentives for
publishers/aggregators as individuals start their own dissemination.
Maybe employee should just mean full-time employed, salaried
workers. For non-salaried contributors, they
should keep copyright and we should focus on exploitation, taking lessons from
civil law countries and deal with licensing as a way to even up the balance.
Greg Vetter: we now regulate medical records software—to get
federal funding you have to make “meaningful use,” which is really tightly
regulated. Is this what Folsom is
talking about?
A: if we look at code world as network that affects living
organisms, that can lead us to the right questions.
My q: The last three presentations are all about crony
capitalism: we live in a world where the winners win big and the costs are
outsourced to the individuals on the bottom; tournament structure. Three different strategies suggested—live
with it and help the winners win; top down reform; and something else that
might include bottom-up reform.
Garon: the bar’s inclination is to protect us from these
changes, and it’s been ineffectual; the legal profession is not going to have
exceptionalism that will keep competitors out.
The rise of internationalization, WTO, etc.—the model that suggests that
we can hold onto our piece of the pie is naïve. My fiduciary duty to my
students: be transparent with them.
Levine: Not attempting to delude himself about the role of
public choice. Trying to take the actors and assume that they’re operating in
good faith. Has no doubt that campaign
finance is the fundamental issue here.
Even if we solve that, there are still info asymmetries—let’s take
seriously that policymakers want to make right decisions and look at structural
impediments. Most of these decisions are vested in the executive, and you need
to resolve procedural/administrative issues.
Tussey: WFH is what it is because publishers got it in the
1976 Act. Freelancers have been at their
mercy for a while, and she is not terribly hopeful that will change. More hopeful that changes in tech may
accomplish some things as works are capable of being produced and disseminated
directly to their public.
Garon: Freelancers provide an interesting forum for collective
bargaining; theater and sound recordings have been very heavily negotiated and
aren’t in WFH, which illustrates that collective organizations can perform
quasi-legislative functions. Getting all the actors in the room makes a
difference, as Levine suggested.
Levine: Rep. Issa’s alternative to SOPA/PIPA—public suggestions
for the bill.
Boone: would also say his project is tied to this—big copyright
owners v. the consumer. If you look at
history of first sale, you see a shift/reversal of roles. Copyright owners
traditionally fought to hinder secondary markets, like used CDs, VCR rentals.
But if the change in the method of distribution leads to getting rid of
secondary markets, then it’s the users who need to seek legislative assistance
and legalize secondary markets.
Sapna Kumar: FOIA change for priority when input to the
government is most needed. Who would
make that decision? You don’t want it to be the agency itself—they’ll think
they already got the necessary input. Agencies
don’t invest much in FOIA answers.
Levine: tech is changing the ability of government to
respond more quickly and thoroughly, though e-government has been largely
defunded. Bigger theoretical question is
who decides—he’s thinking about how to define the factors. Things like whether
there’s a collective interest at issue.
When there’s a specific body of experts with something to provide. Not trying to eliminate the right to know!
Katja Weckstrom: First sale and TM? Also, for Folsom, beware of legislation—not that
great at fine-tuning technical solutions.
Boone: What would it mean to look at first sale in TM?
Weckstrom: in copyright, contracts are a vehicle to profit
from consumer’s use; in TM, this is usually not the case. Usually no contractual relationship between
TM owner and user. (Compare FB’s new
user agreement claiming rights over “Face” and “Book.”) So on that model ability to control market is
less; also no DRM.
Boone: He’s focused on areas dominated by copyright rights—ebooks,
games.
Levine: legislative support for the change might come from
TM concepts like nominative fair use—it’s ok to sell a legitimate copy--that’s
worked very well for hundreds of years.
Folsom: yes, skeptical of legislative competence. He proposes a rule of thumb that any
institution can apply. He doesn’t like statutes that become outdated by the
time the legislature acts—too much specificity. He wants a rule more like TM,
kind of fuzzy.
A. Christal Sheppard: Industries say they won’t participate
if their comments aren’t private.
Levine: he’s skeptical of this. Diebold says that it won’t
sell voting machines if it has to be public in a state; a state says no; turns
out Diebold wants to be in that market enough to comply! His response: let’s find out; we know that we’re
not getting good law with this flawed process. If you want to be in the room,
you’re going to have to deal with the process.
Yu: For Levine: Your proposals aren’t very nerdy, but rather
legal: is there a nerdy proposal?
For Garon: what’s the IP hook?
Garon: has an IP/innovation paper coming out on
this.
Levine: yes, his proposal is relatively un-nerdy. Could do
more with info formatting. Could also put nerds on consultation communities,
but FOIA is just not even grappling with these issues.
Garon: for Boone, maybe the proposal is strongest when DRM
works: you’ve converted the work into an object, and then §109 rights should
apply.
Boone: agrees; his paper goes into the theory of the virtual
object. You have to regulate both DRM
and contract, since either can allow the copyright owner to prevent a secondary
market. That’s asking a lot, so we ask if we really need a secondary market.
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