Saturday, March 16, 2013

Santa Clara WIP 2: Copyright/IP

Copyright (and patent!)

Lydia Pallas Loren / Viability of $30 Casebook (paper)

Traditionally published casebook has a price over $200, true for a lot of casebooks. What is the law student in that model?  The law student is taking on debt, and books are part, though admittedly a small part. She saw students choosing not to buy the book—using it on reserve, sharing a book with a fellow classmate; they don’t have continuous access to the reading material.  Or they’re infringing, via torrent; or they’re physically copying the book at the copy machine—dean sent a message at her school last year advising against this practice.

Decided with Joe Miller to create Semaphore Press, with a suggested price for ebooks of $30, but students can choose to pay less or to pay nothing.  In this model, law students are reasonable individuals.  Are they freeloaders?  Are they rational actors?  But what she knows they are: people who have access to the reading materials at all times; for an educator, this is the desired result.  When you give them this possibility, what happens? 83% pay something, out of 26 classes using Semaphore Press books; 24 professors responded to our request for final class enrollment, allowing them to track payment rates.  We do get people who pay 1 cent-$5; 1.7% pay $5-10; 4% pay $10-20; 4.3% pay $20-30; some people pay more--$31, 32, 50.  Usually those people also send an email.  Some people pay $1 per hour of class time if you’re not going to use the whole book.  A few professors gave their students that suggested price.  So it seems students are making the choice “should I pay or not?” and they overwhelmingly pay the suggested price once they say “yes.” We do get emails from students who say they didn’t pay.

What’s going on? Students don’t necessarily realize that they have the option to download for free; they have to pay a little bit of attention.  $30 is pre-checked, but they have the “or” option.  At the bottom, under “charge my credit card,” there’s a cancellation button and a button says “freeride—I won’t pay now but want to download anyway.”  Are they making a conscious choice?  According to surveys, mostly.  Seems like a good deal to them: PDF, no DRM.  One student was upset—asked why he paid?  Refunded his money; her business model isn’t dealing with odd people.  Maybe students want the model to succeed.

There tend to be mechanisms for policing a norm of paying in other situations—jam bands, etc.  There’s really no way to enforce that norm here.  Is there reciprocity in this model?  We treat you reasonably so please treat us reasonably.

Why this model over a required price model?  Enough people pay that we don’t want the path of a required price, so we don’t need to battle pirates/deal with DRM that reduces usability. You don’t know what students will do if you give them these options—readaloud into audio files for listening during a commute.  Free downloads are also a possibility—Herb Hovenkamp posted a competition casebook on SSRN.

Why not a tip jar? It’s not a charity—it’s about something reasonable and providing a means to make payment. Instead of “how do we make students pay?” we ask “how do we let students pay?” We have IP Survey, Internet Law, and Interstate Compact Law.  If people want to make the leap, consider your students and your debt. We pay 50% royalties to the authors.  Prestige? Most schools don’t even count casebooks for tenure. We let you keep your IP rights.

A: we have a best practices statement with which we ask authors to comply; we have a liberal view of fair use and are confident in our ability to gauge what counts as fair use in any particular text. 

Mark Lemley: You could test whether people just go with defaults or whether they go with fairness. What if you listed three boxes without a check mark?  If you varied “free ride” to “sorry, I’d love to pay but I can’t,” you’d get a test of the endowment effect of preselected defaults, and maybe about public shaming.

Tyler Ochoa: we’ve taken the position that any image that appears in a case is fair use and a pretty aggressive position if it’s the work at issue, and our publisher lets us do that.

Peter Yu: works with a course relying on cases, but what happens when you do need permission fees, say for a book of essays/excerpts.

A: have to make a calculation about what you can afford to allocate to permission fees.

Q: are you rational actors?  If you want to offer lower-cost, DRM free textbooks, that doesn’t dictate the pricing model.  You could offer everything you offer for $50 without the free option, or experiment; could increase your revenue without decreasing adoptions, at least in part because of the agency problem!  And still get most of what you want from this enterprise.

A: Not as confident that we could change and get what we wanted.  We tested this model, and are sharing our results. As the landscape changes, books getting more expensive and breaking the $200 barrier, maybe a higher price is justified.

Q: but look at how few people pay nothing.

A: but that option might make people think it’s reasonable to pay in the first place.

Lemley: also maybe different authors can demand different prices.

Andrew Gilden: music purchasers don’t want to give money to intermediaries, but to performers.  Is there a student analogue there? 

A: maybe there’s more of a direct connection.  Students can look and see our revenue split. Ryan Calo has noted that putting a picture of eyes over the coffee in the break room induces payment; we considered putting a picture of the authors on the payment page, but our payment rate is already pretty high.  (Dan Hunter suggests a picture of James Grimmelmann holding a puppy.)

Nicolas Suzor / Collective action models in open access publishing

Commons based or collective action modes of publishing—today focusing on open access. Journal prices have increased 300% over 25 years; ave. subscription price is around $1400; increased stress on libraries. Problem is worse with monographs. As science journal budgets go up, strapped libraries spend less on monograph, so the ave. run is now 300 copies, $96.  Out of reach of most people not at well-funded research institutions. Difficult for people in social sciences/humanities, where monographs are important for tenure and promotion.

Bill before Congress: require fed funding agencies to mandate that research from fed funds will be open access, supplemented by an executive order. Funding mandates haven’t successfully reduced loads on libraries, and don’t reach the bulk of humanities research which isn’t funded directly through the grants. There are many small scale open access journals.  75% of them don’t charge article processing fees.  But can that scale?

SCOAP3: led by CERN, consortium of over 1000 research libraries and funders in high energy physics, trying to flip the field to open access.  Average fee of $1550 per article; one major publisher not included; currently charges $2700 per article. Publishers commit to decrease costs of their bundles accordingly; if that works 90% will be open access within a year.

Are physicists special?  90% of physics publications are already in open access repositories for prepublication versions.  CERN is also really good at large-scale international collaboration; can another scholarly group bring 1000 libraries together to fund a project?

Knowledge Unlatched—trying to take a similar model in the humanities. Run as a nonprofit in the UK, doing a similar thing with monographs. 30 academic publishers and 400+ university libraries. Attempting to find a sustainable model. (So it’s Kickstarter for libraries/monographs?)  If enough libraries commit to buying into the product, the title is released under an OA license; publisher retains the right to sell print version and enhanced digital versions.  It’s currently subsidized but the hope is to make it sustainable. Will libraries contribute or free ride?  Will it work under international/disciplinary norms?  Only 30 universities in Australia: aren’t enough to fund the production of Australia-specific humanities books.  Not clear what the value added versions will cost. 

Publisher-friendly model: enables existing publishers to find money and retain place/prestige in the market; reduces a lot of the risk by precommitment.  Also means libraries don’t have to find new norms of evaluating quality in publishers and can rely on established imprint. Could make it easier to publish if publishers bear less risk.  Hoping to show that commons can be managed without tragedy.  Rational actors v. cooperators.

RT: Rational actors can be cooperators—game theory (he showed a picture of Spock; Spock is hardly an Ayn Randian hero in his collaboration with others, logically).  Wikipedia v. Kickstarter: these aren’t the same models. Kickstarter: prepaying for a product; that’s a known model (it’s how universities hire professors, on promise of future production!). 

A: true; Kickstarter can be used as premarketing/prepayment; can also be used to fund open access products.

Q: Rational actors don’t always choose to free ride.  People value things other than money.  (And even if they only valued money, cooperating would often produce more of that!)  The user is being rewarded for participating.  (Here, the participating libraries may be able to gain prestige, among other things.)

A: part of the question is to define what the rewards/values are.

Loren: Disaggregating the role of the publisher—the publisher plays many roles, finding people to publish, filtering, doing the editing, then providing the actual books.  Knowledge Unlatched seems to be taking the filtering/editing to get good open access content.  Some contracts provided that when a book went out of print the copyright would revert to the author; what does it mean now to be out of print?  Some authors are willing to offer content open access once a book is out of print, but that incentivizes publishers to never let a book go out of print.

A: same incentive exists for traditional publishers.

Mark Lemley: Software Patents and the Return of Functional Claiming

Lots of evidence that software patents aren’t needed for innovation. But nonetheless there are enormous numbers of patents in the software world.  Smartphone: 250,000 patents once there are apps on it. Many of those patents are bad, but even if 90% were bad and weeded out, that’d still be a big thicket.

Some people have said the problem is scope and we need clear boundaries.  Patent trolls and companies that make stuff suing each other cost us a lot of social productivity.  But he thinks that’s not enough: if we defined clear boundaries we’d find exactly how screwed we were.  We’d find hundreds of patents required to use wifi, video on demand, etc. etc.  Lots of people pop up to claim these things, not “I own one particular component that’s necessary to wifi” but “I own the thing itself.” And that’s because we let software patentees get away with claiming the problem they claim to have solved rather than claiming the method they used to do it.

I’ve written patent claims not to the code/machine I built but to the function it performs. Worse than that because of the rise of capability claiming: a computer programmable to do X, Y, Z, so the mere fact of providing software that could be altered to produce that result arguably infringes. Thus many people can say with a straight face “I own video on demand” etc. 

We wouldn’t do this in any other area of patent law. Imagine a pharma claim not to chemical structure of a cancer drug but “atoms configured to cure brain cancer”—the idea of solving the problem, not the problem itself. Jackhammer inventor couldn’t claim “means for breaking rocks” and claim all ways of breaking rocks. People tried this 100 years once peripheral claims were developed. Wright Brothers actually invented a particular way of making plane not flip over when you tried to bend a wing to turn; run a cable to the rudder that stabilized the aircraft. Turns out not to be the only way to solve airplane stability; subsequent inventor invented the aileron.  Wright Bros. sued and won because their invention was directed to the solution. But by the 1940s courts were sick of this and started to reject patent claims as indefinite if they just said what the problem was and not how to solve it.

Congress compromised in 1952: you can use functional terms if you want to, but you don’t get ownership of the entirety of the function: functional terms is a signal to read the specification and limit you to the actual structure you built and equivalents thereof.  But not in software! Software claiming of the kind I’m talking about, means plus function, is functional claiming but courts haven’t treated it as such. We confused hardware and software by backing into software patenting by claiming we were really allowing patents on machines (the computer) even though it’s the software program achieving the function. That’s just like saying “atoms configured to cure brain cancer”—confuses substrate for the claims themselves.  Software inventions require software implementations not just the fact of occuring in a computer.

Second reason we got here: Fed. Cir. is a formalist court. Well, we want a rule for what counts as a structure; presumption is that if you use “means for doing X” we presume it’s a means plus function claim and if not, not.  Having done that, never allowed the presumption to be rebutted as a practical matter. Dedicated the decision to patent owners.  That’s a bad idea. Law doesn’t say the patent owner can have a functional claim if they want one.

His proposal is simple: read the statute and apply the rules that apply in every other area to software. If we do that, patents that say “a computer program to do X” will need a structure. Either you never did build a structure/algorithm to implement it and just thought it was a nice idea, and you have an invalid, indefinite patent; alternatively and more frequently, your patent will be valid and you’ll own what you invented, but that won’t be the problem you solved, but rather the particular way you solved the problem and the equivalents thereof. Not limited to exact code; there will be fights about equivalents. But those are the fights we’re supposed to have in patent law over scope. That will get rid of the thing clogging the patent system with this enormous thicket with lots of people claiming “everyone in the industry has infringed”—you’re limited to the things you used to solve the problem.

Ochoa: isn’t a large part of the problem that you don’t have to disclose code?

A: under current law, disclosure didn’t help except to weed out the people who didn’t write anything at all. Phantom patentees are some of the problem, but a decent chunk are those who in 1992 came up with a system for providing video over a network and are now claiming any system for providing video over any network. They have a valid, but limited, patent.

Once we determine it’s means plus function, your patent is invalid unless you have an algorithm showing how you did it. That doesn’t mean software code, and it’s not clear that the actual code would be the most useful disclosure. More useful: structured 3-page description of implementation or other kinds of abstraction. There’s a fight in Fed. Cir. about required level of detail, but “more than zero” is a step in the right direction.

Loren: you’re relying on indefiniteness; what about written description and enablement, constraining the inventor to what they invented because they haven’t enabled everything they later claim.

A: plausible approach, not terribly successful under existing caselaw, whereas once you understand that you’re in means-plus-function land courts have been willing to hold software patents invalid or limited.  Okay with enablement, but there’s bad early case law.  Fed. Cir. early on said that executing code was merely a job for code monkeys.  Fed. Cir. is getting better on enablement; written description is also a possibility, though doesn’t know we need a separate requirement.

Scott Boone: opportunity for a litigator to win reverse doctrine of equivalents?

A: good luck with that. This is the best tool because it requires no change in the statute or even overruling the Fed. Cir., just having them allow rebutting the presumption.  If and when this issue goes to the SCt, there’s no binding interpretation requiring this. A Supreme Court that goes and reads a statute that says “something without structure is in this category” and confronts a lower court that adopted a formal rule changing that standard is not going to uphold that.

Carlos Andres Rubio Luna / ‘Blackstonian Copyrights’ and other Flawed Claims about the Early History of Copyrights

How often we come to dead ends where it is difficult to allocate value generated in copyright contexts. Default: we say there’s a right in the copyright owner.  Propertization literature: was it problematic to treat copyright/IP as forms of “property” rights. Does property language lead us to incorporate without thinking about it ideas that favor copyright owners, through embedded connotations? Semiotic approach to law.

People claim that Chancery decisions after the Statute of Anne impliedly recognized copyright as property or literary property.  But: historians are prone to read history from current concepts. The word copyright didn’t exist before the Stationers introduced it; “literary property” is absent from the Statute of Anne and Chancery decisions. Most legal actors back then were aware that “property” claims were basically a hoax; no one fell for them. When we remove our linguistic presuppositions and start reading history on its own terms, what happened in the 18th century was very different from what happens today.  Some legal actors are using similar language to what was used then: instances of individualized rights. But that wasn’t the only form of legal thought then; most discussions revolved around considerations of wrongness.  Once we read the debate as about wrongs, we’ll understand it better.

Mere wordplay?  Language develops first, then we develop theories around the language.  Common law and Chancery developed without any theory of rights—yes, they protected rights, but they did so through procedural rules and with consideration of wrongs.  Blackstone tried to systematize the law.  Important to approach historical sources with awareness that they incorporate several different codes.  Discussions turned on acts of invasion, not origin, of property.  That means they were actually talking about wrongs—how can a pirate infringe? What is the wrongful act for which a pirate may be blamed? This is a mode of thought that focuses us on the particular problem to be addressed, not the “rights” of the owner, which Lord Camden in Donaldson called a “phantom.”

The ideology was broader than ours is now: property is not just individualistic, private right. 18th c. lawmakers thought in much broader terms: what is the person accused doing, and what will our rules do for future wrongdoers.

Next step: study “ownership” claims in copyright and patent, but there is a distinction between natural language and the legal lexicon.  Do those meanings have effects in judicial/legislative outcomes?

Ochoa: IP rhetoric is relatively recent, but property rhetoric is older: Adam Mossoff’s work on this in the 19th c.  Statute of Anne is very different, true.

A: If you look at the common law, it’s common to see the judges incorporate that rhetoric into decisions. Then there’s a collision between the connotative natural language and the law.  Yes, the rhetoric was there.

Andrew Gilden: Eldred and Golan arguments also involve using history to dehistoricize the present moment. So you can see the same process presently, which may illuminate the normative argument here. Is there something lost by not seeing the shift from more of a tort based system to more of a property based system?

A: Once we can think about 18th c.: they gave more deference to a vision of property that was relational: how do rights in authors/publishers impact competitors/the public?  When we discuss property, the words matter.

RT: Reminds me of Adrian Johns on how piracy preceded the concept of copyright. (Also more tangentially Mark McKenna’s work on how concepts of TM infringement changed over time, so that the same words meant different things without judges really noticing that.)

A: Literary piracy debate was more focused on pirates than on authors—not on authors’ desert or legal protection, but about whether the Statute of Anne was sufficient? 

Ochoa: Justice Gould said that if a book goes out of print it should be considered public (Luna clarifies that Gould actually favored common-law protection—the Statute of Anne never gave remedies, just a criminal penalty—that should tell you something about the nature of literary property). But that starts from the proposition that there’s common-law copyright until publication, and if it doesn’t stay in print it goes into the commons. We’ve lost that concept on both ends—pre publication and public domain.

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