Critical Legal Studies & the Politicization of
Intellectual Property and Information Law
Panel I: Critical Legal Theory in IP & Info Law
Scholarship
Peter Goodrich, Professor of Law and Director of Law and
Humanities, Benjamin N. Cardozo School of Law
CLS keeps returning in different guises. A degree of necrophilia or
transmutation. New generation. Moved from practice to theory to aesthetics.
Move into the institutions. Studying the
image and the virtual. Law relating to
the image from Romans: if an artist paints on my palette, who owns the image? The artist because of the power of the
image. Virtual means that authorship is
in the origin, and also comes from vis/force and virtus/angel. The immaterial; the movement to what cannot
be materialized directly.
Rebecca Tushnet, Professor of Law, Georgetown University Law
Center
What I think of as my critical scholarship: First Amendment
and copyright. I’ve written about transformative
fair use and the way it can assist in shrinking conceptions of fair use
inflected by the First Amendment; if the paradigm of fair use is the little guy
angrily speaking truth to power, that fits into a First Amendment narrative but
doesn’t protect many of the spaces in copyright that are also important to free
speech, like the freedom to make private performances, various educational
copying limitations, multiple copies for classroom use, etc. I suggest that
pure copying can also serve First Amendment purposes, in access, in
self-constitution, in communicating important messages to other people, as
distributing the Bible does. Because
pure copying does serve free speech purposes, the conflict can never be fully
reconciled.
Copyright’s treatment of images—here I really do move from
theory to aesthetics: a diagnosis rather than a prescription.
My other work: Organization
for Transformative Works. What is it?
Created to push back against commercialization of so called
“user-generated content,” which is to say creative works made by people who
love existing works; nonprofit; under US law.
Terminology: Organization: legitimacy versus the incredible
diversity and non-organization of actual fans. Transformative: adopts the legal
language of fair use, setting up authorial claims as equal or not subordinate
to the claims of other authors. Works: for works, not for workers, even though
conditions of production and communities of practice are vital to the actual
creation of fanworks; separately, the idea of the work (instead of the story,
movie, etc.) has important consequences for how creative activity is understood
as implicated in but also apart from the so called ordinary operations of the
economy—the making of chairs, cars, etc.
Work gives dignity to fans who are often culturally disadvantaged,
mocked for consuming the very things produced to be attractive and consumable. And of course consumption here means
intellectual activity—watching, listening, thinking, and creating new things in
response.
So what are we doing?
Example: DMCA anticircumvention exemption hearings. Participated in
order to explain what fan vidders do. Necessary claims to authorial genius
(taken out of community)—example of Closer, a Star Trek vid that went viralsome years back. Have to identify works that are intelligible to outsiders and
understandable as aesthetically and politically “good”—well done, legible
critical message. We don’t believe that quality in that sense is important to
fair use, but strategically we don’t get any exemption if we don’t convince
outsiders that there are a substantial number of fair uses.
Second kind of quality: technical quality. Do you need to
have good quality footage to make your critical uses? Can’t you just film the screen or use screen
capture software? Use of technical
quality forces us further into defending a particular aesthetic and also
subjects us to someone else’s determinations about how good our messages need
to be to deserve an exemption. Copyright
Office disavows quality judgments, but is still making them in deciding that
some people but not all people need more than screen capture to do their
artistic or educational work.
Sonia Katyal, Joseph M. McLaughlin Professor of Law, Fordham
University School of Law
Equality and access in digital contexts. Parallels worthy of
exploration. Structural critique of IP
deeply informed by CLS. Art. I, sec. 8:
exchange—to promote progress, law provides exclusive rights. Private right for
public good is key framing issue. Do IP
rights always have to promote the public good?
Extending copyright eventually doesn’t seem to do that. The question of
how we construct the public good/social welfare is similar to CLS approaches to
goods beyond economic efficiency: expression, freedom as a good in itself.
Social relationships and dynamic entitlements about allowing access to others
instead of pure exclusion right. Influenced by Lessig, Litman, Vaidhyanathan:
critical information studies movement. Scholars steeped in other areas of
scholarship before IP—Lessig was constitutional law, Vaidhyanathan from library
science—far beyond economic efficiency model embraced by others.
Emergence of cultural critique of IP. The power of the image; the power of
subversion, parody, satire in recoding established works. Intersection between CLS focus on minority
rights and distributive justice and the way in which fair use scholars focused
on the right of minorities to recode works—rap and jazz and creativity beyond
the control of copyright. Tushnet on
women recoding texts through slash, gender parody, etc. Scholarship unpacking the romance of
authorial control and the way in which audiences can recode works. Questions like: who’s served by IP control? Who’s
being excluded and why? Ann Bartow:
areas of creativity, particularly women’s creativity, completely unrecognized
by copyright law. Some success in that
critical approach. Infamous Gay Olympic
cases coexist with more modern cases defending gay activists’ rights to parody
websites (Fallwell.com). Critical
approach to copyright asks how entitlements are distributed and their effects
on disenfranchised groups; use fair use to restore some rights.
Third: indigenous groups; traditional knowledge; new ways to
define and manage intangible resources. Social relations to property: strong
rights of exclusion give way to more malleable group rights/collective
knowledge.
Open source: parallels to CLS’s institutional critique. Nomos & Narrative: the same rhetoric can
be seen in activism/disobedience by groups like Downhill Battle, which
organized the Grey Album protest. Have
forced malleability.
Q: Cariou v. Prince.
RT: Transformative within context, even if not understood as
new meaning/message by outsiders. AndyWarhol Foundation brief is fantastic on this.
Katyal: We live in a different world for uses of imagery. It
was easier to tell who was David and who Goliath,
commercial/noncommercial. We have
structures suggesting clear boundaries but the reality is that when fair use
expands it expands for both commercial and noncommercial entities. Well-financed artists can come along and
appropriate work of less well-financed artists. Distributive consequences among
artists. Art production as a system
makes it hard to tell when things are commercial.
Goodrich: scholarship can give us facts: who is doing what
to whom? CLS is vibrant/never faded in
international law. Assertion of
identities in oppressive contexts—all the way through to the Arab Spring.
Katyal: one big parallel is unmaking or recoding the idea of
sovereignty. CLS was useful to pierce
the sovereignty of a work; authorial control is indeterminate; audiences/third
parties have power to interpret. Internationally, that’s similar. Piercing
private and public sovereignty; fluidity in ability to reinterpret.
RT: power flows. Internationally: USTR goes to WIPO and gets
anticircumvention language, then goes to Congress and says we have
international obligations. Fluidity is
not a clear win for anyone. It can be
exploited especially by those with lobbyists; documentarians didn’t know that
their fair use rights had been given up in a foreign country. Power is
slippery: Ultraviolet/streaming media as the future; control will be moved so
that again you as individual will only be hailed as a consumer of video, on
demand, but not as a creator or an owner.
My thoughts listening to Katyal: 2009 DMCA hearings: Vividly
recall question from Copyright Office panel: couldn’t we give an exception just
for women and racial minorities? Put
liberal commitments (diversity, property/control) into tension.
Q: Maria Pallante said that the author’s interest is the
social interest.
Katyal: Doesn’t think that’s so. Copyright law can’t be authorial control
only. Constitutional principles: First
Amendment concerns over preliminary injunctions.
RT: work is valuable only because of the audience—the farmer
and the railroad are both “responsible” for the railroad’s sparks that set the
crops on fire. We learn that in law school, but copyright tries to make us
forget that. Responsibility doesn’t mean a natural allocation of rights or
responsibilities; it has to be a choice.
Q: What about using Citizens
United to help rights of free speech in IP?
RT: Deven Desai has a good article on this for trademark. I
am dubious that it will work because though the logic is very strong I don’t
believe that courts will adhere to logic when it comes to IP rights, any more
than they did in Eldred and Golan.
“Copyright” proved a stopping point.
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