Photos: Flickr, iStockphoto: a CC regime establishes both an
open- and closed-source community. Can
pay $5 for a very professional-looking image.
You need copyright to support the dual model.
Pushing back on specific examples. Fashion: what really matters in fashion is
the TM/brand. Consulting on Coach fabric—company
bought 20 rolls of vinyl fabric with the Coach brand on it; selling swathes to
people on Etsy who presumably were making iPhone cases. Coach sued, listing 100
TMs, including 2 on fabric, but Coach doesn’t sell fabric at retail; instead
they supply it to contractors. Asking
for millions in statutory damages for the logo.
Cuisine: parts of a dish are known while parts are
innovative—but is this a completely unique community because it’s so different
from other creatives?
Comedy: can we really say that norm enforcement that
includes occasional beatdowns is a superior form of regulation? Connection/history with organized crime. What supports a willingness to use violence?
Football: League is a cartel; league is very strict about
TMs and other IP; highly specified what the team can do, what only the league
can do, what the players can do. There, underlying copying norm is the notion
that the cartel would fall apart if someone could monopolize a play that would
always win. Probably true for the NCAA.
What about high school? The
league may have norms of a certain kind of competition. Not competitors slugging it out in an open
market, but a closed cartel.
Fonts: thinks that fonts are overproduced; 5000 fonts you
get with your purchase are marketing, not used.
Finance: are trade secrets as important as the authors
say? Tacit knowledge is important, as it
is in biotech. People jealously protect
tacit knowledge developed in the lab.
Knowing what a client prefers isn’t really a trade secret, but not
something you want to share either.
Lea Shaver (Indiana University Robert H. McKinney School of
Law)
Consider willingness to share smaller share of larger
pie. One theory: provide maximum rewards
to the person most responsible for the pie.
Anyone else who takes a piece is stealing. But that wrongly assumes a pie of fixed size.
Case study of early light bulb industry—Edison’s patent
litigation strategy. Early industry:
people knock off designs because they don’t understand the patents and are too
poorly financed to sue anyway. Innovation
is everywhere. Edison, who’s financed
and has an emperor’s view of his Lockean role, chases everyone else out. Innovation slows; maybe a Pyrrhic victory.
Don’t fall into the fallacy of the fixed pie. IP enforcement
can be less rational viewed over a longer timeframe; hard to convince firms
with a shortterm mentality to see benefits of competition.
Implicit in the book is a question of distributive justice
and innovation. Knockoff seems to make innovation affordable to the masses—trickle-down
theory.
South Africa: English books are readily available, as are
books in Afrikaans (for white minority w/sufficient disposable income to induce
robust regime), but you don’t see many works in Zulu or !Xhosa, not because
people can’t read in those language—a Zulu newspaper publishing industry has
arisen. May come down to the fact that
the community isn’t wealthy enough to afford the copyright model of innovation. Transaction costs/can’t deliver innovation
cheaply. We should modify copyright to
allow translations, which could allow the industry to thrive and then Zulu authors
could also earn a living by accepting a smaller share of a larger pie.
Fred von Lohmann (Google)
Kept thinking of the dysfunction of policymaking. Why can’t legislators deal with the richness
and variety of these fields? Rep. Kastenmeier
& Michael Renner, who served on his staff for many years: Kastenmeier used
to view requests for extensions/expansions of exclusive rights in relation to a
principle from David Lange (influenced by a law professor!): a civil procedure
for copyright reform proposals. Four
burdens of proof for new copyright legislation to expand exclusive rights—proponent
ought to show that the interest can fit harmoniously within the existing legal
framework; proponent must be able to commit the new expression to a reasonably
clear and satisfactory definition—the sort of thing you could explain to the
average member of Congress (many provisions of current law flunck this); honest
analysis of costs and benefits of proposed legislation—the argument that a
particular interest group will make more money and thus be more creative doesn’t
satisfy this standard or the requirements of the Copyright Clause; and finally,
any advocate of a new interest should show how giving protection will enrich or
enhance the aggregate public domain—the public gain should outweigh the private
benefit. It’s this last part that’s the most important.
If you ask not “would comedians/fashion industry be better
off?” but “would the public benefit exceed the benefit to the comedians/fashion
industry?” the answers would be very clear.
But he’s never heard anyone explain how the public would benefit more than
the recording artists from enhancements to recording artists’ rights.
Peter DiCola’s results from survey of
5000 working musicians. Revenue
sources were 80%, on average, not related to copyright or at best indirectly
related to copyright. Echoed The KE’s
themes. Robust incentives that are remote from what we think of as the
copyright incentive/monopoly model.
Dave Fagundes (Southwestern Law School; University of Miami
School of Law)
Last-mover advantage.
Derby, like football, is an open-source strategic innovation world. May be dying for lots of reasons, including
bad business model; it’s kind of a novelty and most people don’t come
back. New strategic innovation: slow
derby, both highly effective and horrible to watch. You can typically gain points more
effectively with this strategy; but whether it’s worse is contested—participants
say it’s more interesting for players and rewards different kinds of play and
strategies. Ass’n is trying to intervene
to change the rules against this, but hasn’t been able to do so.
The KE is useful
for taking things that are in plain sight and pointing out that they have
implications that are not in plain sight.
Puzzle, though: there are a lot of angry people in this book. Louis CK is made at Dane Cook, etc. Third parties are also mad at copiers. Why
are they mad if they’re not losing money or prestige? Third parties have no monetary investment in
brand even if we believe dilution theories.
They should be happy about the positive effects of copying on a brand!
They’re mad because they feel like they got ripped off,
which triggers an instinctive sense of moral outrage. Highlights a difference between the way The KE thinks about unauthorized use and
how it’s actually experienced. In this
room, we think of unauthorized copying as an economic phenomenon that can be
optimized. Owners, authors, some third parties at least sometimes see it as a
deeply harmful activity that inflicts expressive harm. Many people say it wasn’t about economic harm
or brand dilution: someone stole my name!
Speaking a different moral language.
Moral psychology language, primary popular expositor
Jonathan Haidt. Basic claim: moral
reasoning is something like innate—organized in advance of experience. Just as we use heuristics to perceive the
world, we have the equivalent of moral heuristics. Basic descriptive claim: these moral
heuristics are not just the harm
principle, but feature different dyads: justice/fairness, sanctity/perversion,
loyalty/betrayal. They vary a lot among
cultures and people. Some people are fine with copying.
What is to be done?
Counterpoint to claim made in The
KE, which is about social benefits of unauthorized copying. Can represent an additional social cost
beyond the ones we usually think about.
Demoralization costs of observing work being copied, for the copied
person or for third parties. Maybe
dynamic costs for people who experience sense of moral loss; maybe they’ll be
less trusting in creative process.
Why aren’t people more receptive to this? Gets to what law
can do about copying and what industry can do.
Resistance to copying among substantial percentage of population is
going to exert gravitational pull—hard for law to encourage more copying. Sees this as a teacher. American copyright law has tons of natural
rights language. If people are not
consciously adopting the content of law, they will have a hard time changing
reactions no matter what law says.
Moral psychology helps us understand why self-governance
pops up. Norms coalesce around behavior.
Not just a norm story in the sense of coming from other people; feels
like it’s coming from the self.
Sprigman: we criminalized adultery for a long time; the
moral intuitions are deep but that doesn’t mean that we want the law to
intervene. Also endogenous—if you change
the rules, people understand that the rules allow copying, and people like what
they’re used to.
Von Lohmann: some idea that the tweaker is lining its
pockets at the expense of the originator—but if there’s competition, the
tweaker doesn’t keep social surplus—in the competitive market of VCR makers,
the price falls to marginal cost; the benefit goes to consumer surplus. Maybe that’s wasting some valuable asset, but
the idea that the follow-on innovator is rentseeking doesn’t work if the market
in that segment is competitive.
Opderbeck: Games sometimes prevent even the innovator from
using the innovation—that’s one thing a cartel can do if it slows down the
game.
Von Lohmann: Mixed martial arts also had “bad” innovation—resulted
in combatants immediately going to ground in very static wrestling holds: made
matches unfun to watch and very short.
McKenna: across sports—NFL rule changes are intended to
score more.
Buccafusco: not “bad” just subject to different incentives.
McKenna: likely to cost the group a bunch of money (in the
long term—arguably this happened to the brand of college debate in which
Fagundes & I engaged).
Buccafusco: moral intuitions are sufficient to allow people
to find harm when they’re told they need to in order to impose a sanction. (Not automatically, but definitely there are
big swings in the research I saw.) But
they can be debiased.
Raustiala: we focused on the central question of what causes
innovation, and not so much about who gets the gains, but that’s a huge
issue. Often happens that larger pies
lead to greater distribution of benefits, he believes. Shepherd Fairey: really pissed off that his
fashion line is often knocked off.
Illustrates that people have moral intuitions, but they find ways to
make those fit their economic interests.
McKenna: it’s not just economic interests; it’s that you don’t
have a fully explicated sense of which copying is wrong. CVS always locates next to Walgreen’s and
vice versa, and no one sees that as wrong just because the other ID’d a market.
Heller: in European laws that could be unfair competition.
Von Lohmann: doubts anyone in the book would have an
objection to a purely personal copier—a restaurant will happily share a recipe
with an ordinary citizen.
Sprigman: one comedian said, “If you can use one of my jokes
to improve your lame life, go ahead.” Fashion designers say that their rights
shouldn’t apply to home sewing.
Ellickson: maybe it’s a Lockean norm, I made it so I should
own it—but that’s not what you really see in the world. To allow property in football plays would be
destructive of the league, so efficiency demands no rights; but is there any
moral outrage that is just trumped by other considerations?
Sprigman: the moral outrage tends to be directed at the
innovation.
Me: I think Fagundes makes a great point; the question is
how that psychology gets operationalized in any given society—because it’s
clearly very different across times and places, as well as with ingroups and outgroups. E.g., Joe Karaganis’s copying study shows
that many people don’t take very much account of the interests of distant
record companies. Likewise you see different
cultural results in the dictator
game, on a base that is stable (people like fairness).
Fagundes: doesn’t think moral outrage is itself a reason to
grant rights, but something to be factored into calculate. Is Hume right? Do we begin with intuitions and then reason
our way to them? No one knows whether copyright
really promotes progress of science/useful arts; maybe we should stop
pretending we know the answer. The Qs
are empirical in that people differ even individually as well as within
culture. If something is seen as a
transgression, then it triggers your sense of wrongness; if you don’t have that
heuristic and just think in terms of economic harm, you’ll never see that as a
problem. Compare consensus about what’s
transgression in football (copying plays is ok) versus no consensus in fashion
(big disagreements about what copying is ok).
Von Lohmann: moral intuitions have a distributional element.
Vast difference in revenue distributions depending on how successful musicians
are—if you’re making over $200,000/year off of music, sources of your revenue
more likely to be copyright-related.
Young musicians starting out may have a very different moral compass
compared to older/successful ones, influenced in both cases by economic
situations.
Shaver: not Lockean; she thinks people often think ideas
should be protected, and they don’t give moral credit to the people who take
the idea and make it operational/executable; they think of the patent system as
kind of a lottery.
Fagundes: people angry on behalf of third parties make the
pure Lockean story harder to tell.
(Though wanting to enforce norms can come from a Lockean place, I’d
think.)
McKenna: the NFL might well step in to stop teams from
protecting plays, but that doesn’t explain why the copying norm exists in the first
place. At the very bottom level, the reason why there’s no norm against copying
in football is that it would be unmasculine. You win by dominating, not by
whining about the play used. Also,
coaches make a reputation by being able to come up with a new thing and staying
ahead on a week to week basis.
However, some ways of copying would be deeply offensive.
Teams share game tape, now enforced through conferences but by norm first. You’d be shamed for not complying. But if someone spied on practices, or on a
playbook, that would be deeply offensive.
You have to figure it out on your own, and only once we put it out on
the field. Has to do with first mover
advantages. Can’t take away our chance
to have a successful play.
Also, people get mad when there’s too much innovation. Cultural norm about who gets to define what
the game is—you’re playing some other game if you change it too much. (Along with policy debate, see: golf and the ADA;
letter
values in Scrabble.)
Raustiala: interests of designer/chef in being
innovator/being copied can be very different from that of a firm by which s/he’s
employed. Better reputation as innovator
allows you to move up—a principal/agent problem that needs to be considered.
One thing that ties our examples together is that they’re often individuals.
McKenna: firms who are most interested in sharing are also
the most innovative—feel they can stay ahead and improve their reputations.
Von Lohmann: engineers in Silicon Valley can also get a lot
of reputational capital from sharing code.
Ellickson: doesn’t share the intuition that firms are
constrained more by norms than individuals—individual deviance is more highly
distributed. (Depends on which kinds of
norms, it seems to me—Fox News was mentioned.
Herein we are talking about norms about freedom to copy and the extra
benefits available to individuals when there’s free copying and improved
reputation that don’t accrue to their firms, not norms about how accounting
will be done or whether your clients are muppets.)
Sprigman: Institutional conservatism can keep a
client/institution out of trouble. Not
so much about law but about norms of enforcement agencies. In the financial crisis, stuff got done that
wouldn’t have gotten done in earlier regimes, with really aggressive advice
from lawyers. Firms read the law and asked what they could do, not what the
norms were.
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