Notice and Notice Failure at BU, panel 3

Pamela Samuelson – Notice Failures Arising from Copyright Duration Rules

 

Agrees w/ other expressions of concern about notice failures in copyright—here she focuses on notice failures related to the long duration of copyrights.  More information about work’s © status was available with fixed duration. Life plus models took over for understandable reasons.  But then you need lots more complexity, including means for determining the death of obscure people—only 37 people have registered death dates with the CO.  (These are people who died.)

 

Extended collective licensing? Fair use is better. What about tax incentives to devote work to public domain?  Promising idea.  Rights reversion: get more people to terminate transfers and then, esp. for scholarly authors, dedicate it to public domain or put it under a CC license.  Institutional policies for open access, also a good thing. But how do we get some sort of registry of when authors died so we can then at least try to calculate their terms?  Not enough incentive for any one institution, but possibly crowdsourcing. 

 

Extended collective licensing

 

Tun-Jen Chiang – Trolls and Orphans

 

Trolls: appear in patents after an investment has been made.  Orphans: in ©--use would be valuable but author can’t be found. Implication: not being able to find © owner is itself problematic.  Holdup by patent trolls is problematic because you make fewer investments in useful technologies, though you can’t tell which specific patent holder will hold you up.  Orphan: parent is permanently gone, and gone for no specific reason.  If that’s the situation, Copyright Office suggests that the solution is for the user to search, and to create a registry of users that would facilitate search.  That could work if search costs are feasible, which they probably aren’t.

 

But there are other solutions to holdup problems.  You could prevent ex post assertion of rights through a liability rule standard.  Laches as a solution to the orphan works problem—could work quite well (if not for the SCt).

 

Commentators: David Olson: Real presence of a moral rights approach reflected in life plus system.  Instead of “keep working” it’s “author should be able to live off work she did when she was 20,” not a utilitarian view.  As for “orphan works,” Chiang seems to want to change the name—Loren suggested “hostage.”  Dangerous works—bastard works?  Troll works?

 

For patents, the issue is not just surprise but lack of deterrence.  Large competitor in the field is constrained by mutually assured destruction.  What’s the frequency w/which inventors who obtain patents do holdups?

 

Michael Meurer: We usually think that people in the industry are problems when we think about standard setting organizations—Rambus, for example.  But Chiang’s message is about the language of orphan v. troll.  Need more evidence of how language makes a difference, perhaps in the political arena—arguments being made in policy arenas.  (Orphans needing to be cared for by someone.)  Can we show how language makes a difference?  (I wonder if the George Lakoff/Frank Luntz line of political discourse/punditry can teach us something about that.)

 

Both parties need to be involved in search: Chiang’s message. Calculate where we should expect more and from which party. Similar to questions of gatekeeper liability/ISPs. Who is in the best position to monitor? Same Qs about responsibility for monitoring/matching is important in many areas of the law.  Stolen art also provides another example.

 

Chiang criticizes Copyright Office’s putting burden of search on user—they seem to be looking at this as a holdup/surprise problem, though.  So somewhat sensitive to holdup concerns.

 

Bargaining: sometimes parties don’t show up to bargaining directly b/c they’d like to push issue to legislature or executive. Google Book Search, perhaps.  Sony’s issues with Digital Audio Tape—© owners managed to push the issue into Congress. In Europe, pushed into parliament and the result was a tax, both for photocopying and for videos. Not clear whether this is more democratic or more corrupt.

 

Peggy Radin: Rhetorical capture—the word cybersquatting was invented; took an asset that was unknown and allocated it to TM owners as soon as it was “born.” So that was successful. Doesn’t like the word holdup because that may just be the normal practice of competition/exploiting a resource that I own that is valuable. Is it wrong to buy up land that I think will quickly become valuable because of development?  Isn’t that just savvy?

 

Chiang: I agree that labels matter.  Economic theory provides enough content to what is wrong w/the behavior. Not simply buying up farmland. Buying up farmland, knowing that someone else will be using it, not knowing that you own it.

 

Radin: why is that morally wrong?

 

A: after the investment has already been made by the third party, who has assembled a bunch of different components. It doesn’t matter if it’s morally wrong; it’s economically problematic.

 

Radin: but some of the things called holdup are just distributional issues.

 

Meurer: Chiang’s paper discusses this—the economists who came up with this are simply looking at contract difficulties where ex ante complete contracting is difficult/impossible. The holdup notion, at least before law profs got hands on it, had no moral judgments.

 

Radin: so let’s use the economist’s notion.  If we can’t get the efficient result because of holdups, that’s one thing, but if we have other situations it’s another—becoming confused in the public sphere.

 

Meurer: Chiang’s paper helps us moves in this direction: we should be looking at behavior, not status. 

 

Bracha: usually two problems w/holdups: one of them is surprise after sunk costs.  Another is the necessity of a particular resource for a particular project that can’t be designed around, and then it’s worse if there are many of them (stacking problem). 

 

Chiang: Is it a problem if we have uses which the owner is not inclined to give permission even if you didn’t have surprise/info problems: All rights allocations could be known and negotiations wouldn’t go through.  That’s not the problem we’re interested in at this conference—it’s just an issue of allocation of rights.

 

Olson: You can always have trouble when you’re trying to assemble resources—someone can decide to behave strategically.

 

Chiang: short-term rentals—no incentive to improve the property even if that would be good for society.  That’s hold-up without surprise—if you improve the property then your rent will increase.  That’s a different problem from the troll/orphan problem he’s trying to name.

 

Olson: we’re talking about rent-seeking and that’s bad because free market transactions require free exchange; rent-seeking is when someone figures out how to extract money without giving something of equal value to the buyer.

 

Radin: but all markets have rules—you are making assumptions about what the rules are, and you should just make it explicit.

 

Olson: having you over a barrel: making you an offer that you wouldn’t have taken if you’d been given the information beforehand.

 

Samuelson: Orphan works folks see the edge case as the late-arriving author, but that’s not the main issue, which is that there are a lot of culturally and historically valuable resources that are not being made available, and you either really don’t know who the author is or really can’t find them. It’s an institutional risk assessment. While there’s risk assessment on the patent side too, want to put in the record that orphan works is not as similar as Chiang’s paper suggests.  There’s a dimension of the long term of © that also plays a role. Patents will at least expire at some point, much faster than ©, especially since we can’t easily know death dates.

Wendy Gordon: Cousin to the hold-up problem is lock-in. Many managers are taught how to create lock-in—how to surprise their suppliers or customers or other entities with relationships that in fact make it difficult for them to switch to more efficient/desirable entities.  Has potential for an independent ground of defense in IP suits, such as in Oracle v. Google. 

 

Bone: If something’s an orphan work, then shouldn’t we just treat it as in the public domain?  Why spend all this energy?  Won’t impair incentives to consider it in the public domain—if you don’t want work to be orphaned, keep using it.

 

Samuelson: we could, as a policy matter.  There are true orphans but also concerns for being respectful of ©.