Copyright Theory (my apologies; I had to leave early for a
flight)
Redundancy and AntiRedundancy In Copyright – Oren Bracha
& John M. Golden
Doctrines that overlap: fair use/functionality; fair
use/improper appropriation; copyrightable subject matter originality;
reproduction/derivative works rights (cautionary example).
Forms of redundancy: bidirectionally partial, standard Venn
diagram; unidirectionally partial—safe harbor laid over a more general standard
(§512 and secondary liability); complete (arguably “aid & abet,” “arbitrary
& capricious,” eBay test prongs 1&2).
Fed. Cir. has resisted redundancy in things like patentable subject
matter, SCt has pushed back.
Value in redundancy: error limitation and clarity at core;
potential administrative advantages (dismissal/SJ, for example in Greatest
American Hero case where the court says no improper appropriation w/o needing
full fair use analysis/discovery); potential robustness against strategic
behavior; evolutionary potential.
Copyrightable subject matter/originality: Copyright Office treatment of
yoga sequences—usually not w/in CSM. 9th
Cir.: functionality b/c of psychological and health benefits (claimed). You won’t always have that kind of clear,
easily available evidence of functionality in admission against interest. Series of rules, each of which is an
imperfect filter, might be the best.
Bad example: Harry Potter case—court decides Lexicon isn’t a
reproduction but is a derivative work; the rights may not be producing good
overlaps.
Buccafusco: how do these overlaps affect litigation choices
and do they affect it asymmetrically? [I think w/TM the overlapping defenses
can cause trouble, as Bill McGeveran has documented, b/c if you pick the wrong
one you may be out of luck].
A: may cut both ways.
Rosenblatt: there are redundancies in protections,
exceptions, liability doctrines (indirect infringement)—these might operate
differently from the standpoint of litigants, creators, owners.
A: Maybe, and the point is more thought about design of
overlaps and functions—backstops or partial redundancy or coequal partners.
Quantifying Copyright – James Grimmelmann
We encode almost anything digitally and count the bits—the number
is a measure of complexity. Some number of bits can likely be squeezed out by
compression, and those bits didn’t really matter in the first place. You’re throwing out information, but if you
do it right/high enough, you can throw out only information that humans didn’t
care about. Lyrics to Happy birthday
have internal redundancy; can be compressed to subsequences that appear in the
digital work. Information theory:
communications, processes, encoding, noise (redundancy)—Fromer & Scafidi
have both done work in IP under the heading of redundancy. It’s about
communications systems. When do we want
to be efficient and when redundant so we can recover the message even in
presence of scrambling & noise?
Other branch of info theory: algorithmic. It’s about computation, compression, individual
works—a work is only as complex as its shortest encoding.
Tentative idea #1: Feist says there are hundreds of millions
of ways to select 50,000 listings; about 1,500,000 bits to describe an
arbitrary selection—but it’s a lot easier to describe Feist’s actual selection,
and that is an indicator of lack of original creativity.
Tentative idea #3: quantify factor 3: a compressed image
could be seen as 100%, but you could also look at how much human perception has
been discarded going from big to small, which would be less.
Rule-based creativity: can’t extract more bits of expression
than you put in; merger kicks in when there are only a ltd number of ways to express
an idea. Scenes a faire are about predictability: in a hard-boiled detective
novel, it adds almost no new info to learn that the hero drinks.
More ambition: you could try to directly quantify expression
and do filtration and similarity tests.
Problems: full complexity is uncomputable exactly. We can only
approximate. Also, that leaves off psychology and aesthetics and all the
reasons people actually care about having expressive works.
Boundary arguments: there are some situations where there is
no room for expression; you could use it as an input into expert testimony.
Maybe something in exploring lossy compression and its relationship to
psychology.
Linford: doesn’t music in Happy Birthday add a level of
complexity, which also makes it difficult to compare text to music.
A: tells you immediately that musical works are simpler than
sound recordings.
Christina Mulligan: how would you do the hard-boiled
detective thing? You need a baseline for defining the genre.
A: Hard. Mainly wants
situations where there are actual numbers—file sizes for thumbnails. A way of thinking about questions that
involve choice and constraint.
Predictability/compressibility are throughlines that explain a lot of
appeals to number of available options.
Rosenblatt: could really be misused where psychology etc.
means that perceptions are completely different but analysis finds few
differences.
A: yes, this does a faceplant in transformativeness. It
clearly informs “extrinsic” analysis but has nothing to say about intrinsic
analysis. This is a formalist approach.
Buccafusco: compared to what? Everything else sucks; this
approach only has to suck less.
Sheff: you might need different encoding selections to
measure and to compare.
A: K complexity is coding independent.
Rewarding Derivative Works – Joseph P. Fishman
Derivative works’ share of all films’ combined box office keeps
climbing. One explanation: it’s how they deal with risk. But that’s not enough. Derivative works rights subsidizes this
investment, and not other works.
Franchises on average do earn more over production budgets than
non-sequels. Merchandising is also huge: $118 billion entertainment/character
related merchandise; $38 billion box office receipts.
Jennifer Rothman: TMs are part of this; also, cross
subsidization of smaller films both by studios and by directors/etc. other
people who fund what they want to do w/the bigger films.
A: yes on TMs; maybe he needs a better term than
adaptation.
Q: Many novels were originally posted as serials; they weren’t
short stories. Maybe we’re finding that longer visual stories are increasingly
popular, and they come in segments.
Then I had to leave.
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