IPSC Breakout Session IV

Copyright Enforcement 

Protecting Copyright Integrity – Shyamkrishna Balganesh & Gideon Parchomovsky

Dominant theory: © is about value. Additional assumption: w/every exclusive right comes important limitations. Every grant of power is also clear placing of limits on scope of that power. Classify them as those internal to the grant, based on its very structure (originality, fixation); prerequisites for enforcement for right (substantial similarity); defenses or exceptions (first sale, fair use).  Broad approach to limitations.

© has a clear enforcement asymmetry b/c rights owners have a clear mechanism of enforcing rights, but there’s no mechanism for public rights. Implemented if at all through litigation predicated on actual or threatened action. If you want the limits independently enforced, you want a clear sense of scope, there’s no cost-effective mechanism to know the parameters. §505 is the closest, but not clear how it will be applied—is prevailing party parity even possible after Kirtsaeng? This feeds into risk aversion on the side of users, but not of owner-claimants.

Concept: integrity violations.  The way in which common law develops incrementally is by identifying principles that fit within the present system and can be justified by present principles.  Integrity—building on existing system—idea is “fit” and justification, like a chain novel.  Where a © owner makes a claim that can’t be fit to current © doctrine or can’t be justified by current © principles, a P should be able to challenge it.  “Fit” is a doctrinal concept, while justification is about the underlying principle—a Dworkinian approach.  Doctrine is black letter, while justification is about development of rules.  © owners should be able to determine the boundaries, so we don’t want them to be deterred from bringing claims as such, only from bringing overbroad claims.

Components: Substantive integrity violation.  Procedural: qui tam structure (addressing fraud on the public, misuse of a state grant).  There would need to be a formal claim via litigation or otherwise—C&D would suffice.  Would not fit with existing © doctrine—not merely that it’s uncharted territory.  Cannot be justified using copyright principles as an attempted expansion of doctrine. Courts do a pretty good job of this in the common law generally.

Paradigmatic situation: Paramount v. Axanar: crowdfunded fan film.  Claim to own Klingon language as a whole was the integrity violation (though the claim based on derivative works was “on the wall”).  Paradigmatic lack of integrity violation: Kirtsaeng—the distribution right was an area of ambiguity, which could be justifiable in © principles.

Standing: structure similar to False Claims Act: protection of public domain.  Remedial teeth: instead of waiting for declaratory relief, create an incentive for 3d party enforcement—reverse statutory damages.  Aggrieved P can get statutory damages w/o proving actual harm.  Statutory minimum for successful claim; alternative actual damages where P is directly affected.  Equitable relief as well.

Lemley: I understand what overbreadth means in a claim-based system like patent, and I know what overenforcement looks like in © but I don’t know what ex ante violation looks like in © where you might assert rights against a fair use or against a not-fair use.

A: Has to be a formal claim of some sort.  A simple statement w/o enough proof of overbroad claim: P’s claim would fail.  P has incentive to wait until the breadth of the statement becomes clear. 

Lemley: then you lose the advantage of solving the in terrorem effect.

Deterring Copyright Extortion: A Consumer Protection Approach – Ben Depoorter & Peter S. Menell

Perfect storm: digital age, Napster, increased statutory damages; RIAA et al. ended up targeting individual users.  Bittorrent used for porn movies; created a nice little business model, identifying people who’d be embarrassed to be named in a suit; make a deal w/© owner; get lots of people in one swarm and send lots of threatening letters; profit.  No cases are litigated all the way through; seamy side of P’s bar.  Many ISPs comply w/these subpoenas.  The Prenda letter got a lot of a notice—people like you have been subject to large awards; go through the history in a somewhat misleading way, mentioning default judgment of $1.5 million dollars (but that’s a seeder, not a downloader).  Doing harm to © system.  Only 2 adjudicated cases where someone in this situation gets held to be an infringer.

Motions to quash: improper joinder, undue burden, lack of personal jurisdiction; 1A right to anonymity.  Advice for those who shared files: (1) don’t hire Charles Nesson; what happened to Tenenbaum, who thought he could discharge damage in bankruptcy but was wrong, was bad. (2) Default judgment risk is serious; the cost of doing business is about $3000—you’ll pay that much for a lawyer to fight or to settle. (3) Don’t lie. (4) Might be able to avoid liability on a technicality; Matt Sag’s article gives good advice to lawyers, but you’re paying either way. (5) Clearly $150,000 is not what you will pay. You should probably settle, but the number to put in is not clear.  Sag uses about $1500; he thinks that’s a good starting offer but not guaranteed.  We’re not looking at this from a socially optimal perspective, but private cost/benefit analysis.  (6) Get a subscription service.

If you didn’t share files, the unfortunate truth is that the advice is somewhat similar.  Still a disruptive experience.  This is the price of a civil society that uses litigation and doesn’t fee shift by default.

© Office could provide objective advice, though he’s not confident they’d do it; many of their patrons are committed to statutory damages.  Try to put what’s almost ½ of all filings into some kind of small claims/UDRP system—judges would very much like this off their dockets.  Fed courts have many costs v. a modest process that is a slap on the wrist—but should also make it easier for © owners to find out who these people are. 

Hard to solve w/o recalibrating statutory damages.

Taking Intellectual Property into Their Own Hands – Amy Adler & Jeanne Fromer

Not a new problem, but perhaps growing—high profile examples.  GucciGhost—artist using Gucci logo on clothes. They hire him to design part of their line.  Big hits, sold out for $.  Gucci elements w/own take—lots of positive critical attention. Success at coopting him.  Gucci claims street cred as “essence of the Gucci brand.”  Playing w/theme of authenticity—using Guccy on elements.  Contrast: Gucci put a piece forward w/puffy sleeves w/Gucci logo, which looks a lot like Dapper Dan’s work (Harlem based tailor who bought actual products and made new clothes out of them).  Not such a clean-cut story. Not everything that’s reappropriated is critically acclaimed.

Aquazzura and Ivanka Trump: straight up social shaming in the media.

Richard Prince’s New Portraits & appropriating appropriation: new portrait series taken from Instagram.  Portraits “curated” from Instagram, sold for $90,000; 4 people have sued, while one target, the Suicide Girls, an alternative porn collective, chose to appropriate the appropriator—they got a lot of what litigation would have afforded, but they got it overnight on the cheap.  They sold his work for $90.  Internet loved it; they made money (for charity).

Drake and James Turrell, an iconic light artist.  Drake loved Turrell’s work and created Hotline Bling using sets that were copies of Turrell’s installations.  Rap IP diss songs: Tupac Shakur’s Hit ‘Em Up v. Young Jeezy’s Stay Strapped.  Accusing people of taking other things, and they reappropriate and rework what was taken and call the taker out.  Tupac adapts the beat of Get Money by Junior Mafia and raps Take Money.  Reworks a hook from another song and delivers it w/same melody and turns it violent.  Lots of accusations of stealing, copying, beat biting, taking—taking samples that he knew Tupac was using. 

Working outside the law to (1) get financial compensation, (2) get attribution, (3) avoid misattribution of who’s the appropriator.  It’s cheaper, but there are no procedural protections; it’s very easy to call someone out for copying, even in a way the law might not recognize as a cognizable taking.  Effects on IP law’s goals?  Do we get more or better creativity when people create art in response to a taking instead of filing a lawsuit?  Do we get better branding (Gucci)/claims of authenticity?  Does it create more or less risk aversion on the part of appropriators?

Q: Greg Mandel’s empirical work suggests people view IP as an attribution law. Your project suggests that this is the heartland of what people believe the law to be—they think they aren’t acting outside the law but enforcing it.

Lunney: take a broader view on self-help, which has fallen into disrepute in other areas—landlord-tenant repossession; cars.  [I really like Steve Clowney’s article on this.] Drug territories and how those are maintained through self-help. Don’t treat this in isolation.

A: we haven’t decided this is all good.

Sheff: focus on distinguishing TM/©.  Attribution and control are distinct. Reappropriating something that’s been appropriated, for a brand, means collaborating in cultural creation of meaning. If you hire the guy that’s different from appropriating a street artist’s work. Tiger by the tail: can come back to bite you when alcohol brands, fashion brands are trying to appropriate youthful energy, and then youthful energy starts riots.  Doesn’t seem as much of a problem in ©.

Laura Heymann: Feedback loop—does it communicate anything to the community about what the law is?  Suicide Girls action didn’t deter Richard Prince.  He wasn’t required to disgorge any $.

A: yes, it’s odd to get relief w/o the appropriator having to pay—you get $, but not from Richard Prince; you get attribution w/o his involvement. So what are the incentive/deterrent effects w/o some other reputational harm?

Copyright Irrelevance in Architecture – Kevin E. Collins

Lots of protection overlaps, but architects aren’t using any of them. Underenforcement (not normative judgment but vs. broad protection that is available).  Irrelevant in architecture based on what theory? Incentive to create?  Enabling transactions?  © is irrelevant for custom designs, but not for stock designs (where it is licensed to many). Almost all non-residential design is custom, and stock designs dominate residential communities. There are few licensed architects in stock design world, where most of the designers are “registered designers” not licensed architects.  Licensed architects have contempt and embarrassment for registered architects who design stock houses—“ambulance chasers.”

Suits against transactional partners—employees who leave firms, or people who fall out w/builders or clients—those are different kinds of enforcement. Enforcement against transactional strangers is where © is necessary to go out on the market; enforcement against transactional partners is different.  © isn’t relevant for bolstering exclusivity, but for other purposes.  Relevant to help architects get paid, but not the ordinary “incentive to create” story.  Almost all suits in custom design are against partners; almost all suits in stock design are against strangers.  Sometimes suits in the custom space are owners of homes who are pissed off at copying of their houses.

Of 3 custom design nonresidential cases against strangers, two are industrial designs.  All © trolling is in stock design.

Q: different transaction costs exist in each case (strangers v. transactional partners).

A: True. Custom side ends up w/ a lot of suits against clients; both sides have about the same # of suits against departing employees.

Lunney: consider legal work—custom legal brief is generally not copied, tailored to fit facts of your case; you’re paying for professional judgment.

A: true, demands of clients and sites are different; that just may affect substantial similarity. Different projects can end up looking quite similar!