WIPIP, part 2: Copyright

Session 1, Copyright

 

Jim Gibson [with Chris Cotropia]: Random sample of copyright cases filed 20080-2011, coded 957 cases for parties, claims, remedies requested, final adjudication. The filesharing cases and PRO cases (music) tell the expected IP story. Ps from a core © industry, revenue/incentive arguably dependent on ©, Ds engaging in wholesale copying/priacy. In contrast, the commonplace cases were surprising. Many Ps from non-core industries; many works from low authorship subject matter. Useful articles and non-copyright claims associated with © claims: TM, breach of contract.  So, how does this work with incentives? 

 

Ps were predominantly small firms, a bit over 64%, 72% of Ds were also small firms.  Individuals: 21% P, 13% D.  Industry of lead party: at the top: apparel/fashion/textiles, 13.568%, software 12.79%. By contrast, fine arts, performing arts, video games, public sector: very low.  Core IP industries, according to WIPO=advertising & marketing, commercial arts, Film and TV, fine arts, music, performing arts, publishing and software—1/2 of Ps are non-core.  Subject matter: literary work/software 13%, commercial art 12%--highest percentage.

 

Non-© claims: 61.62% had some other claim. TM: 35.23%, breach of contract, 20.10%, other, 48.04%.

 

How hard fought was the litigation? Number of times judge has to step in and settle a dispute b/t the parties is one measure.  Motions asking judges to make a decision: not much difference as b/t high and low authorship works; not much difference between P core industry and P non-core; not much difference (larger but not statistically significant) for intra-industry disputes versus extra-industry.

 

What else can we do going forward?  Possibilities: Was work revenue-generating? Is P’s business © driven?  Was there a preexisting relationship—complete strangers, bad breakup, make or buy decision that went bad? Mess with your competitor case? One dentist sued a rival dentist over similar ad copy.  What else to code re: authors as parties; our definitions included WFH.

 

So what if incentives aren’t playing out in the courtroom?  Resist extrapolation because of selection bias.  But there may be takeaways, such as whether we need a small claims court proceeding.  Limited reach of © litigation reform: will that get at problems we see in © generally? 

 

Policy consequences: higher threshold requirements?  Higher pleading standard? Shape of the shadow of the law: if non-core cases primarily inform doctrine, that has implications.

 

RT: Relationship between core and non-core and presence of other claims?  Do TM/© pairs have a particular pattern? [McKenna’s channeling? If you do see a group of hurt-your-competitor cases, we might want to be more robust about requiring people to pick a theory. There’s discussion of bleed between © and TM, and is this a source?] [may justify some disparate treatment of music—if cases are really siloed into types, then music-specific doctrine may not be as damaging as we sometimes think it is.]

 

Lunney: Are these leftover Dastar TM claims?

 

A: we coded for presence of unfair competition/§43—trade dress/a lot of useful article claims. But we should look deeper. There weren’t a lot of quiet title/ownership disputes. 

 

McGeveran: what about outcomes? How many settle, how many go all the way?

 

Patrick Goold, IP Law and the Bundle of Torts

 

Patent infringement as a tort?  Statutory, not common law, but analogous to common law torts in orthodoxy.  View that there is a unified, singular, discrete tort labeled © infringement, same as there is trespass or battery, and same for patent.  Is that really true?  His thesis: not really.

 

© is not a tort, but a set of torts. Reproduction is different from public display. Likewise, in patent, making, using, and selling are different torts. There is no such thing as the tort of real property.  There is a set of related torts: private nuisance, negligence, waste, trespass.  We should think about the work/invention the same way as real property: an object worthy of protection, and then a set of legal wrongs that can be done with respect to that work. Reproduction is different from public display as trespass differs from waste.

 

Bundle of rights = bundle of wrongs.  Infringe right to exclude = trespass. Right to enjoy = nuisance.  Physical integrity = damages, usually negligence.  Same with IP. Right of reproduction = wrong of reproduction.

 

Why does this matter?  Liability is one reason.  In other areas of tort, you see a spectrum of different liability regimes across the bundle.  Liability for trespass isn’t the same as for private nuisance.  Trespass is archetypal strict liability.  Need not prove harm or fault. Private nuisance—some say there needs to be an element of harm and element of fault. Negligence: fault and harm.

 

©’s unitary liability regime, most people would call it strict liability, but no advocacy for differentiation between the rights.  People have tended to say that there should be some liability regime that applies across the rights.  Same with patent—making, using, selling treated the same despite their different economic characteristics.  Reproduction and distribution in ©: economic theory says you should use strict liability when only the D can take care to prevent the tort. Use negligence in cases of bilateral care, when both can act.

Reproduction: the wrong is copying.  P could attach © notice to prevent accidental copying; TPMs could also prevent copying. This is an issue of bilateral care, so negligence rule might be appropriate to give author incentive to give notice.  Distribution: the wrong isn’t the embodiment of work in copy but distribution of the infringing copy thereafter. D can take care; author’s ability to prevent this is far reduced.

 

Another implication: IP over-inclusivity?  Focus on the idea that there is one singular wrong of copyright infringement tends to result in people thinking that there is a wrong of copying. It’s a short step to overinclusivity.  Copy-fetishism: Jessica Litman. The belief that every copy must be licensed or excused.  Link to idea of “wrong of copying.” Think less of “the tort of copyright infringement,” then we can move away from the fetish.

 

RT: [Do statutory limitations matter here in the conceptualizations of the right? Educational exemptions do target particular rights.  Compare fair use: reason to make it unitary. Relatedly, overlap in rights in digital age: Tony Reese.  And overlap with derivative works right and some other right, in almost any imaginable circumstance.  Also, possible comparison to move to unitary standard for online/intangible torts in §230 and European Directive, at least as to the gatekeepers whose conduct is generally thought important to target.  Maybe for gatekeepers there is a tort of causing harm online.]

 

A: first sale also comes to mind.  Those limitations define the scope of the right in question.  Distribution right has different scope from reproduction.  Liability regimes = different plane. Conduct that infringes the right—conditions of harm and fault that need to be addressed to determine whether there’s an infringement.  [I’m not sure I get this.  Which are exemptions? Can’t you characterize them either way?]

 

Fair use—maybe it should be unitary.  Common law = disaggregated bundle.  Civil/European law’s unified system might do better with a unitary idea. 

 

Q: overinclusivity might not be because the 76 Act focuses on copying. 6 exclusive rights, only one of which is reproduction; the others are overinclusive for other reasons.

 

A: true, even if you unbundled, each right would be overinclusive.  His argument is on top of that.  Copying covers things like distribution in our discourse, which is not logically clear.

 

Irina D. Manta (and Robert E. Wagner), IP Infringement as Vandalism

 

Rhetoric of theft: “you wouldn’t steal a handbag—downloading pirated films is stealing.”

 

Why might it be theft?  Both infringement and theft take things of value; consistency in enforcement. Anti: no complete deprivation of work; owner can continue selling copies of work; loss is difficult to calculate.

 

We argue: IP infringement is better characterized as vandalism or trespass than theft. If we were consistent on how we apply sanctions this would lead to a reduction of sanctions in the IP space.

 

Rhetoric of theft is old, and emphasizes gravity of the conduct. But it turns out to be difficult to define stealing: circular—taking something that’s not one’s own.  Doctrines like adverse possession, easements that create exceptions.  Justifications for theft label: incentive theory—author mixes labor with public domain, needs reward; stealing takes away reward.  Both stealing in property and IP infringement involve a form of free riding on the efforts of the owner.  That could lead to lost sales directly and indirectly for the IP owner.  That leads to rivalrousness: there are losses for owners/buyers if a good is devalued if too many people have it.

 

Problems w/theft label: Owner retains a copy!  Almost impossible to strip an IP good of all of its value.  Significant causation questions w/r/t harm.  What harm does an individual infringer do?  Lower risk of altercations in the IP context.  Last, IP law is much more disconnected from popular norms than property/theft law is.

 

Courts: not always clear but often refer to IP theft or piracy. US v. Dowling: SCt was unconvinced it was “theft,” but unsettled.

 

Our argument: vandalism or in some cases trespass. Like vandalism, there’s a destruction of some but not all value.  Owner can still/license good.  Vandalism like IP infringement can enhance value. (Banksy: society gets the kind of vandalism it deserves.)  Limitations: infringement doesn’t harm the original copy; generally no financial free-riding, though there are hedonic benefits; vandalism has to create damage or it doesn’t count as such—more like trespass (DMCA violations?).

 

Consequences: takes rhetorical punch from label; raises questions about possible punishment level. Sentence comparisons: theft. Punishments for © infringement are generally much harsher than for theft. Same thing for vandalism.  For same “value,” you’re better off being a thief or a vandal than an IP infringer. DMCA = 5 years in prison, $500,000 fine, while trespass leads to fairly small fines and in Texas (worst) up to 180 days in prison.

Generally treat IP infringers more harshly than thieves.  Especially puzzling given actus reus occurs more quickly in © and so one can accumulate more in a short timespan. Mens rea could be a few seconds, followed by realization of wrongdoing. Sentence disparity may not be principled but rather consequence of nature of federal law and political forces.

 

RT: suggest drawing connections between theft language and “broken windows” theories.  Implications for equality/IP enforcement in physical world is highest among immigrants.  However, broken windows theory provides one possible justification for high enforcement levels: this is more important than you think it is b/c broken windows create larger cracks in communities. This would also lead you to draw connections between actual penalties (rarely given) and low-level enforcement (omnipresent in certain communities, lifestyle offenses used to regulate life generally—connection w/Julie Cohen on surveillance state and IP maximalism, © owners’ hopes to create that kind of low-level enforcement online with copyright alerts).

 

A: lack of catching people isn’t as important—choice whether to enforce, not ability.  Fairness and justice is a concern. [I wasn’t really talking about the “need higher penalties because chance of being caught is lower” argument.  I was talking about the expressive and order-maintaining function allegedly served by policing against vandalism, and the effects of the same on surveilled populations as in Alice Goffman's very interesting recent book.]

 

Q: Mindy Kaling has a great routine in response to the “infringement = theft” claim.  Framing issues: property or limited monopoly.

 

A: Even though we think © is about incentives, people in the world think it’s about natural rights. 

 

Q: other analogies—pollution, riparian rights? There’s something about vandalism that doesn’t get us that far away from theft. [I agree—there’s an implication of disrespect that I think is very strong, leading to a stronger moral rights conception if that's your thing, and also interference with exclusivity is very different.]

 

A: Pollution is interesting, but not exactly the same.