Friday, October 02, 2015

Notre Dame Roundtable on Drassinower, Parts 2 & 3

Session II – The Work as Dialogue
           Mike Madison
An element in the book: The “work” is a Macguffin.  The the thing that holds our attention/draws the narrative together while not necessarily having meaning in and of itself.
A book about concepts/conceptual framework.  Error to ask too much in doctrinal solutions/payoffs/nuances of © on the ground.  Complicated landscape of how works get created, not singular author/text.  Speech as part of community/co-creation.  Drassinower’s story is not set up to process at the institutional level. 
What is the agency of the audience?  If it really is a dialogic process, then there is a back and forth.  Book spends most time on authorial side, less on audience.  Also, materiality: material presence of the work is part of the understanding of what’s going on with the work.
           Laura Heymann
Intermediate step of audience is important b/c helps understand whether second individual is speaking as an author or merely for an author.  Multiple instances in which intent is a bad standard for authorship: Prince’s deposition in Cariou; post-hoc rationalizations. Audience is the way we assess authorship. 
Work for hire: is it in some way a fraud, if the audience perceives the individual as author?  Transfers issue: the “Cherry Ripe” case, where the photographer sells the rights to the first phoot and is held to infringe his own work.
Compelled speech: someone who engaged in unauthorized filesharing is in some sense speaking exactly as author intended.  Author didn’t intend to speak to those who didn’t pay.  (Although that’s a weird way to divide an audience—and author may well have intended to speak to those people through radio play, etc.)  Is it important that others know about it for the insult to the author—being treated as a puppet?  May be the difference b/t compelled association and compelled speech.
A and B may independently create the same work.  C gets permission from B to speak; has C caused A to speak as well?  Ties into Qs of whether attribution matters.  Replicas of the old masters made in China: how do we think about their production and reception?
           Jessica Silbey
Parrot on the cover of the book: When parrots copy they don’t speak for themselves—social behavior—a form of practice and engagement.  Not copyright-relevant. 
Equality paradigms: equal treatment may result in a denial of equal opportunities—e.g., failure to accommodate pregnant or nursing women.  Entitled to certain needs in order to facilitate opportunities.  Denial can be a form of denigration or domination.  As compared to antidiscrimination, antidominance is about subjugation, which compelled speech could be part of.
Deliberate freedoms/capabilities approach: equality deprivation is assessed not by whether other people have them but what is a denial of dignity/autonomy.  Drassinower relies on equal dignity/substantive equality—fuller connection to dominance would be useful. He says dominance over another’s work is piracy; personal/private engagement w/ a work is not dominance and fulfills the work’s destiny.  Equal dignity seems to require nonsubordination, but being enjoined from speaking another’s words is a form of control—lawful mutual restraint.
Independent creation and the primacy of the public domain are underneath the explanation of legitimate restraint.  We level up: freedom to, not freedom from.  If copyright as balance is war, than equal dignity is peace: the quality you’re striving for as a person.  Necessary consequence is no derivative works right: that would impose an impermissible hierarchy of authors.
Interference w/work is not so much inequality but unfreedom. So we’re back to the freedom from/freedom to divide.
           Chris Sprigman
© is a world of sequential innovation; must trade off ex post and ex ante interests.  Some external justification we’re trying to maximize?  Joint productivity?  Or a rights-based account as here, a reciprocal relationship between first and second-comers.
Instrumentalism provides a weak normative basis at best for ©; impoverished account of progress/the thing we’re supposed to be treating as a maximand. You don’t get an understanding of progress solely through observing the world; you need to have an idea of what it is.
More broadly, efficiency is a weak normative justification for anything. 
Justify v. specify: lawyers deal with specification. How do we tradeoff between Cariou’s rights and Prince’s?  Rights-based theories have little to say about this.  P. 211: discussion of Pruneyard—need to assess gravity of impairment of rights to each.  Sprigman thinks you can’t do that with anything internal to the rights based account; you need an external referent.  You are not judging impairment of right but deciding to shape the right, using utilitarianism.  Like Rawls, which shapes rights according to the sum of a bunch of utility calculations in the original position (how well off am I?).
Maybe this cafeteria model is ok: deontic model providing broad outer constraints; then specifying details of the law with an external referent, like here a deeper concept of progress, then treat that as a maximand.  This may be difficult, contestable, often imprecise, but that’s about where we are.
Gordon: still puzzled about why we want to allow people to control the way their speech is used in the world.  For example: pro-choice book of interviews w/women who’s had abortions or given a baby up for adoption; anti-choice author wants to use these accounts. 
Drassinower: that’s fair use. The interest I try to describe doesn’t track an author’s desires or wants.  You can’t publish on condition that your ideas aren’t discussed.
Madison: The Chinese painters in Dafen are using the source work as a work.  Audiences in hotel rooms know it’s not an original. What is the nature of their engagement?
Drassinower: Mousetrap and poem both require skill; but the types are different. Just as translators do something deeply sophisticated, so do Dafen’s copiers, but that doesn’t make them authors. We can quibble about whether activity is located in right place in our distinction, but the whole endeavor depends on us being able to make the distinction.
Rebecca Curtin: translation. Consider Seamus Heaney’s translation of Beowulf: what he does is absolutely a translation, but also uses a lot of Irish words, feminized images; his project was to undermine that nationalist epic of England.  There is clearly compelled speech there if we assume the monk wouldn’t sign on to this project. But Heaney is also communicating using this other speech.
Drassinower: one answer is to call him not a translator.  When to call someone a translator is the question.  Don’t have to have an answer in any particular case—just a translator can’t be an author b/c she is translating into another medium. There are factual qs about whether a particular instance is transformative.  He wants to shape how we frame the Q.
Underneath all utilitarianism is a rights-based theory, b/c you are distinguishing persons (who have utility) from other animals (which can also have utility/experience)—fundamentally rights theories say that there is a difference b/t persons and things.
[stepped out for lunch]
1:00 p.m.-­2:30 p.m.  Session III Speech vs. Value
           Rebecca Curtin
[came in late from lunch] Is the proprietary right idea as hostile to the author as the book believes?
           Peter DiCola
Utilitarian maximand is unclear: works, creativity, number of creative workers/authors. Sympathetic to the idea that utilitarianism and deontological approaches are in eternal death struggle that no one will win. Both are different sides of the same whole: instances in which the good is best described as maximizing value and others in which it is best described as a deontological commitment.  What if we picked, including between subjective well-being and preference maximization, a huge dispute in utilitarianism.  Does that distinction have anything to do w/the emptiness of the version of utilitarianism at work in © balancing?
A good (in utilitarian terms) could be a process, not a commodity.  Can perhaps help understand why liberty/autonomy are valuable.
Drassinower says: Economists are saying: legal lines like originality are proxies to find value (or value that should be privatized?) despite Type I and Type II errors.  Drassinower finds this aesthetically unsatisfying, which he gets—doesn’t really seem to explain the doctrines in detail. 
Systemic analysis is required: one user taping one show is not the issue. It’s a question of how the industries will be organized and the effects of these behaviors on a large, repeated but unorganized scale.  Is an implicit assumption of the methodology atomistic, assuming a core dispute between one author and one user?  Is that necessary to the approach?
Quite useful to show how the models ignore the infinite chain of creators we see in reality—a better explanation of the public domain than rather arbitrarily picking one author and calling them “first” and another “second-comer.”
           Glynn Lunney
Economist: Drassinower challenges his life’s work.
Deriv work right and protection for computer programs: not consistent w/theory/should be excluded from ©: why were these data points excluded from your “looking at the world” method.  What if the plaintiff didn’t know about the copying—is there a puppetry problem?  What about subconscious copying—it seems that’s still making the plaintiff the puppet, just not on purpose.
Other doctrines that aren’t explained: why have criminal liability (patent doesn’t)?  Economics can offer a more sensible reason (less of a problem with fly-by-night patent infringement), as can political economy (lobbying).
Other doctrines can be explained instrumentally: limited times.  Realms that neither patent nor copyright covers, left to the workings of the market—why not?  Patent has no independent creation doctrine for economically rational reasons—independent invention is common and allowing all would dissipate the benefits/destroy the incentives, while truly exact/substitutable independent creation isn’t; Ants and Bugs are not perfect substitutes.
Length of © didn’t really matter until we got the internet, which allowed out of print books to have a second life.  Low protectionism got a boost from online empirics.  Will we get another 20-year term extension before 2018? Empirical/instrumental approach has opportunities to influence policy now.
The wrong of copying: he doesn’t see the moral wrong as compelled speech, but as misrepresentation/misattribution.  He wants lots of copying, but he wants the credit for being right.
           Amy Kapczynski
Likes starting w/Feist to show that an economic perspective can’t explain what © is. 
Community/self-constituting nature of authorship helps explain the difference between compelling commercial speech (ok) and compelled political speech (not ok).  But corporations have all sorts of © ownership—here they’re given full rights, w/minor differences for WFH.  Does that have to go under Drassinower’s theory?  You need to explain 90% of © with a doctrinalist account; if you can’t explain most of it, then something else is at stake.
Likewise, book may not explain low required level of originality: does writing the shampoo narrative on the bottle embody the communication of a speaking being to another? 
Sprigman: tractability of a problem is important, but not the only thing. The best minds of their generations elaborated Ptolemaic astronomy, as we’ve wasted the best minds on constitutional law (hey!). 
Drassinower: explicitly metaphorical agenda.  Try to think about different metaphors for ©. It may be that compelled speech is very different in the First Amendment context, but the speech trope was helpful in talking about the public domain as something immanent/inherent in ©.
In terms of transfers: can see it as the granting of a right, though it’s true he hasn’t provided a theory of how that takes place.  Contract doesn’t have to mean transfers of property/commodities; can be licenses.
Thinks he has captured most of © in making his critique—an immanent critique: Feist attempts to carve out a specific domain for © from the sphere of value.  It’s very hard to have a non-negotiable public domain once you start calculating balance—just b/c we’re “winning” more user rights cases now doesn’t mean that there’s a solid foundation.
It’s true that lay concept of copying isn’t necessarily compelled speech—but it’s also not “you’re minimizing my welfare!”
Mark McKenna: Old unfair competition cases are rife with natural law concepts, but also make clear that property is not in the mark as such, but in the relation. You may be identifying property as a thingification, focused on the work as such, but the property interest could be defined in a similar way—not the work.  Is there anything lost by a sufficiently careful definition of the property interest—an interest in a use rather than an easement or something like that. 
Drassinower: committed to the idea that authors speak, they don’t own.  The proprietary language misdescribes the relation.  Performances/works of authorship/expression—they aren’t property concepts.  Yeats: Vehicles of meaning can’t be owned by someone other than the thinker.
Madison: there’s a slippage in the dialogue about legal categories of property/things, then the phenomenal character of what actually happens when author and audience engage in some way. Requires a lot of nuance to keep track of which level you’re operating at.
Samuelson: author’s perspective: this is mine is not just about this is my speech, for some authors.  Self-conception as autonomous person may require concept of ownership.
Sprigman: Peggy Radin would say that property isn’t an instrumentalist concept. 
Drassinower: I don’t think that the idea that a work is property is consistent with the idea that an identical copy, in some circumstances, is not property.  The act of producing the thing.
McKenna: TM is that way—one mark isn’t property in a completely different field/use.
Drassinower: speech discourse/property discourse are different, even as rights discourses. 
McKenna: property isn’t inevitably that: property law has been warped, though.  The history you’re working with is the same period I worked with in TM history.  So he doesn’t think a lot rides on the property distinction if you have a more nuanced sense of what property was that ws true of the courts that developed the TM concept. 
Drassinower: I can’t reject that easily the idea that property requires thingification. 
Silbey: First Amendment—there are so many parts of the 1A consistent w/Drassinower’s theory, especially early 1A doctrine before distortion by corporate speech/corporate personhood.  Speech as attribute of dignity and citizenship in public sphere as well as just political sphere. More to say about how the 1A imagines the public domain as primary/radically nonfungible.  As free speech maximalism has (supposedly) taken over the SCt, the public domain is shrinking!  Creators believe in right of property/radical nonfungibility of free speech: this is an inconsistency for them but really profoundly felt.  Low level of originality is an easy place to resolve the inconsistency, though—creators don’t think the shampoo bottle text should qualify.
Garnett: it’s totally ok to be a thing person (property is a thing) instead of a bundle person in property. Maybe you can’t just make up relational rights and call them property; maybe that doesn’t make sense of what’s going on.
Madison: there’s progressive pushback even on the thing side.  It’s possible to use thingification to achieve certain goals, but intuitively Drassinower doesn’t feel it.
Balganesh: To Kant, exclusion was critical, so it’s understandable from a Kantian.

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