Thursday, August 10, 2017

IPSC Breakout Session II

IP Theory 
The Boundaries of Intellectual Property: A Preliminary Exploration of Constitutional Salience –
Amy Kapczynski

What IP law is about: what values beyond efficiency we might be able to say this law serves.  You can’t justify IP v. grants or prizes based on efficiency w/o further beliefs, such as beliefs about the dangers & competences of the state. The value is thus more something like liberalism—better, more free society if we minimize the role of the state, creating private property in ideas.

More than liberal values, republican values.  Republicanism has a theory of political economy.  Jefferson believed in an agrarian republic preventing vast inequalities of wealth and the corruption associated w/aristocracy.  Jefferson restricts primogeniture & slavery in Northwest Ordinance—conception that property law had to reflect and build a society they wanted. More opportunity for white men in the West than the South in the decades following the Northwest Ordinance: it worked.  Property qualifications for voting were restrictive, based on idea that you needed a stake to be politically responsible; but there were progressive strains as well. 

Best reading of IP clause thus makes public interest a truly meaningful concepts. Anti-oligarchical, equality, anti-monarchical commitments, giving limits in IP clause resonance.  Look also at early state © laws which emphasized public interest, limits.  Somewhat startling egalitarianism of early US patent law. 

Focus on boundary cases: what’s in and what’s out? Wheaton v. Peters: why allow © on court reports? At the time, reporters may have needed incentives, but also weren’t reporting exactly what judges said.  May also help understand patentable subject matter and preemption—concerns about competition, anti-oligarchy, equality of access that aren’t organized around incentives.

INS v. AP: creating quasi-property right in news: Court first has to say why give a property right at all, v. Brandeis pointing out that people hurt others in business all the time.  Majority: news is important.  B/c we live in a democratic society, not b/c we have preferences for news.  Second move in the case: why doesn’t the quasi-property right extend to everyone?  If preferences tell us what news to produce, a robust property right might be efficient.  But Pitney shuts that off: Framers couldn’t have wanted to give first reporter exclusive rights—our constitutional order can’t permit property in news.  From efficiency perspective, that’s a bit puzzling, but not from republicanism.  Anemic right created under INS.

Government patent infringement: mostly there was immunity; now you can get reasonable damages, not lost profits.  Gov’t may be interested in national security, drugs—there we suspend property logic.  Commitment to the public determining through political process how we want to treat these goods.

Q: I understand why not grants, but what republican advantage does IP have over prizes?

A: Might be in part the lack of a highly developed administrative state at the time. Over time, more elaborate state apparatus could achieve some of these values in different ways/playing a more active role.  [Seems like reasonable to talk about Bayh-Dole at this point.]

Q: What’s the role of the state in INS?  Pinckney has a conception of private property that doesn’t purport to rely on the state.

Chris Sprigman: Is this a matter for the courts to enforce, or is that not included in a republican conception?

Jonathan Masur: is the argument that there are strands of republicanism or that republicanism is a dominant theme?

A Heap of IP: On the Essential Indeterminacy of Intellectual Property Rights –Jeremy Sheff

IP rights, or scope of any individual rights, will have some zone of irreducible indeterminacy. (1) intellectual property operates based on categories rather than based on physical phenomenon. A car is a thing in the world you can touch. There may be questions of boundary definition between one plot of land and another, but there is no question that there is a plot.  IP defines either things or possible things that might be subject to rights to control others’ use or bringing other things into the world.  (2) IP rights, even defined by exemplar, have features—they are composed of the whole of those elements. If you take one piece away, you will face questions about whether you are still dealing w/the same thing.

Philosophy has tools for this.  Experiences of people in a position to make the decision will determine (1).  Old philosophical puzzle: you have a heap of wheat & take one grain away—at what point does it stop being heap?  Goes to the idea that there are some predicates that are very clear at the extremes but unclear in the middle.  We do this w/IP all the time.  Infringement doctrines get at this part-to-whole or little-by-little relations in various ways.  Egyptian Goddess does away with point of novelty; says to look at article as a whole. There is no one feature of a patented design that makes the difference b/t infringement or noninfringement. If that’s true, how are we to determine whether a particular accused device/work is or isn’t within the scope of an IP right. Philosophers have a few approaches, none of which are particularly useful for lawyers. One: epistemic limitations prevent us from knowing where the truth is, although there is one. But in law, someone is going to decide.  Two: Truth gaps w/r/t certain predicates—there are definite truths at the extremes, and no truth or falsity in the middle—it is neither true nor false.  Lawyers & judges can’t do that with specific disputes.  Third: truth can be a matter of degree, not bivalent. Law again can’t do that w/r/t infringement.

What then? If it’s true that application of rules isn’t determined in advance but by social context/practices of people making these decisions, then we have to recognize that different people from different contexts will come out different ways. Who decides becomes incredibly important—allocation of decisionmaking authority may be more important than the rules’ content: whether a question is for a jury or a judge. We see them divided up in different ways, w/some instability.  The law itself will not determine the scope of the right; only in practice through application by people who approach questions based on context/institution from which they come. So we should look at systematic differences.

James Grimmelmann: why is IP special?  Your answer may be on IP’s in rem nature—not necessarily corresponding to specific physical objects.  The jury is special here b/c it can take a decision that doesn’t have to be reasoned or consistent.  Standards of review that permit higher bodies to say “it’s in a range that we can allow the decision to stand.”

A: Allocating to jury is a way of saying “who can say?”  There’s no clear truth value, so give it to a relevant community, and maybe a jury is that in a democratic society.

Q: connect philosophical ways of understanding vagueness to using different communities as a solution.  One philosophical resolution is semantic indeterminacy.  We just haven’t managed to nail the answers down, but we could in theory do so.  One way of understanding outsourcing to various communities is engaging in the task of building answers—the jury can answer one way or another. Then based on jury’s determination the issue might become less vague, via precedent.

Masur: Explain what purchase you get through Wittgenstein etc. that we didn’t get through Holmes and the realist revolution—the life of the law has not been law, it has been experience; law is about predicting what the jury will do; based on policy not pure logic.

Felix Wu: seconding Grimmelmann: to what extent is IP special?  Linedrawing is always difficult: what counts as speech protected by the First Amendment? Has the same characteristics you just described.  Not clear to him that the whole game is institutions/allocation of decisionmaking—what part of the game might be elsewhere?  You send something to the jury, but presumably they get instructions about some notion of substance we want to maintain.

RT: Puffery: you can actually decide that the truth is undecidable by a court.  Burden of proof: can’t it take care of these issues (assuming, as Wu says, that you have the substance defined properly).

Q: people in a creative community might notice unpredictability, and might want to avoid the judicial system.  They could create ADR where they’d trust other community members to make more predictable, sounder judgments about how much borrowing is ok, how much new stuff one must add.  We do sometimes see ADR in creator communities, in response to perception that courts don’t understand.

Sheff: one question is whether best practices are entitled to any deference—a way of assigning responsibility to a community.

The Game’s the Same, But the Rules Have Changed: Rights of Publicity, False Endorsement, and the First Amendment – David S. Welkowitz

Football players who object to uncompensated use of images in videogames: two cases that are the same that come out differently, depending on what he alleges.  From the First Amendment perspective, they are the same case.  EA says the First Amendment protects its right to use the image.  Court acknowledges full 1A protection.  This makes no sense.  Contrast: 6th Circuit’s Rosa Parks case uses same test for ROP and for false endorsement.  It is unusual to have such a conflict—for at least one of the claims, the statute might do the work instead of the First Amendment.  Here’s Johnny toilet case: no likely confusion, but that didn’t matter to the ROP claim.

Analogy: Hustler v. Falwell. Can’t use IIED to substitute for 1A-barred defamation claim.  Compare contract law, which can be used to override otherwise existing 1A rights.  Tentative conclusions: maybe to reconcile this by looking at what interests the 1A protects; may also imply things for remedies in ROP—if you are seeking a defamation-like remedy, perhaps you shouldn’t be able to seek that to evade the 1A—Food Lion v. Capital Cities, 4th Circuit limited remedy for contract-like claims to avoid defamation-like remedies.

Heymann: Hustler comes from a sense that the P is trying an end run.  You’re making the same sort of argument here [but courts are happy saying ROP is different—it was invented precisely to make this end run, whereas IIED had a different history and really a different set of aims].

A: The 1A outcome can’t vary unless the interests are sufficiently different, and that’s where the problem lies.

Pam Samuelson: ROP/privacy claim and copyright claim at the same time—1A protected D from privacy/publicity liability, but not ©--based on a photo of a gay couple kissing, used by a conservative political group.  Might look at nature of the interest in © versus ROP.

Yen: look at who got paid—Brown was paid and Keller was not (as college player).  That may influence the way courts think about it.  Falwell is about 1A’s Faustian bargain for politicians: in return for coming forward, you expose yourself to attack—where’s the bargain?

A: the panel drops a footnote in Brown saying that if it were a ROP case we’d do it differently, so that status doesn’t seem to have mattered. 

Rothman: Agree that we need to harmonize.  Brown refiled w/ROP claim and succeeded in moving the case forward; EA then settled for $600,000.

Choice of Law and the Right of Publicity – Mary LaFrance
Differences in subject matter: whether it’s protected at all; what aspects are protected; duration (postmortem; whether it will be forfeited if not exploited in life, etc.).  Courts typically apply forum’s default conflict of law rules to ROP.  To determine scope of P’s exclusive rights courts usually apply law of place of infringement, but to determine existence of protectable right, majority rule applies the law of the exploited person’s domicile, or domicile at time of death. Domicile rule is typically justified as traditional choice of law rule for property ownership.

Domicile rule conflates issues: (1) whether there is a protectable postmortem right in the exploited persona, by analogy to other forms of state protected IP—the place of infringement should determine that (e.g., state law copyright, which has suddenly taken off, and whether it protects pre-1972 sound recordings; trademarks protected under state law; trade secrets)—courts ignore that in other types of IP, not personal property, courts look to the place of infringement.  Conflated with (2) if the right exists, who owns it? That’s just a matter of state inheritance law, and we look to the law of the state governing inheritance, which is probably domicile at death. There it makes perfect sense to look at decedent’s domicile.

Transferability/assignability presents similar issues: which state’s law should determine whether it’s assignable, which depends on whether it’s a property right or personal right. If there is an assignment, is it valid? Which state’s law governs contract interpretation?

Case, Bi-Rite, which didn’t apply Mass. law (local) or UK law (domicile). Illinois, Connecticut, and Georgia, b/c some of the UK performers granted exclusive licenses to Illinois & Conn. To exploit their ROP; others licensed through a Ga. Company. Therefore, court applied law of place where licensees were domiciled.  This is weird.

Sometimes courts don’t even spot the conflicts question; automatically applied law of place where infringement occurred, e.g., Zacchini, or Estate of Presley (D.N.J.) where at the time Ga. didn’t recognize a postmortem right but NJ did, even though estate couldn’t have won a suit in his home state.  Policy arguments against current domicile approach: How can you have a class action w/the domicile rule?  If the ROP is a property right, as most courts treat it, why treat it differently from other IP rights?

One argument in favor: for books, internet—you can’t really limit it to one state where you can’t be sure where you’ll be an infringer.  Domicile rule might not be the answer but we need some form of predictability.

These laws do seem to discriminate against nonresidents.  Judge in Bi-Rite case suggested it was unconstitutional to discriminate against foreigners.  But in going through antidiscrimination provisions, the problem is that the plaintiffs are not necessarily nonresidents. Discrimination is usually based on content of goods, not location of the merchants—content isn’t protected under the laws of our state b/c it's based on some nonresident’s persona.  [I’m not sure I see that.  The P still wins or loses depending on residency.]

Q: Potential difficulties: where the owner of the rights under one state’s law would be different through inheritance than others.

Q: why not a uniform federal law?

A: not going to happen any time soon; no one is really lobbying for it.

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