IPSC session 2

Session 2: IP History and Theory,

Stephanie Bair, IP Inequality

Artists and innovators are not equally distributed. Rich people are more likely to acquire IP rights than poor people; whites than minorities in the US; males than females.  Theoretical lens: income inequality. Children from high-income families are 10x more likely to apply for a patent than children from low income families, even controlling for educational achievement. Only 18% of inventors were women. Brauneis/Oliar on ©.  Income inequality has similar race/gender aspects, and both IP and income inequality contribute to concentration of wealth in the hands of a few. Some people think income inequality is good b/c it encourages risk-taking.  Is the same true of IP inequality?  No, it doesn’t hold water b/c IP is already structured as an optional incentive system. If you want financial and status benefits, you can create something; what’s not required to serve this incentive function is relativity or inequality in the system itself—having more IP than others is not what’s driving the system.

IP isn’t a perfect proxy for innovation, so there could be IP-related reasons for disproportionate participation in the formal IP system. Financial, cultural, value-based reasons. Or they could be disproportionately innovating in areas of IP that aren’t protectable, like social innovation. They could be denied IP rights at higher rates due to explicit/implicit bias, and there’s some empirical evidence of this in patent. Stereotypical male conception of innovation.  There is also a true innovation gap—people from certain groups are innovating at suboptimal levels.

Role of exposure to other inventors/innovators—exposure to such a mentor increases likelihood that person from underrepresented group becomes an inventor.

Psychology literature: Circumstances of poverty bias decisionmaking away from types of thought processes that lead to creative breakthroughs.  Effects of past chronic stress on explorative v. exploitative thinking—when people experience the world as harsh and unfair, people stick to what they know rather than exploring new options. Problematic from creativity perspective. Also, dichotomy b/t habit based and goal based decisionmaking. Chronic sleep deprivation, linked to poverty and racial subordination, contributes to habit based decisionmaking, which also hinders creativity. Even if IP system is fair and open, hard to respond to its incentives.

[Woolf’s A Room of Her Own.  Time and leisure and space, mental and otherwise, are in short supply when people are overburdened with care work/survival work.]

Jeremy Sheff: Effects of poverty on lived experience of individual poor people: if I don’t make a living, I won’t eat and my kids won’t eat.  Don’t need psychology to explain the absence of the capital/time required for innovation.

A: this is additional to the explanations like that one.  Chetty study specifically found financial barriers to entry weren’t as important as one might have hypothesized in that if those barriers were absent but there wasn’t a mentor, it didn’t matter as much.  [People from poorer backgrounds who can make high incomes often feel pressure to do so to support others/justify the sacrifices made to get them there; perhaps a mentor can direct that in the direction of innovation.]

Sean Pager: note that new innovation/creation from underrepresented groups may fill gaps that need filling, rather than more of the same.  Role of incubators set up by interest groups etc.?

Copyright, Andrew Gilden, Copyright’s Market Gibberish

Cases like Nunez and Bond v. Blum reject privacy as something w/in scope of market analysis. Other cases where Ps resist sale for any reason, like Salinger, reason that though Ps don’t want to sell these rights now, they might in the future, so there’s market harm; or they’ve sold similar photos/rights in the past and so have market-based rights now. Cases about political opponents: P isn’t allowed to say there’s market for headshots used by opponent, but Don Henley is allowed to presume a market for political licensing of his songs. Weirdly large body of caselaw about religious disputes: Lerma/Scientology.  Worldwide Church of God: P able to stop splinter group from using founder’s highly racist views—no financial interest in the work or interest in selling it, but court hypothesizes there’s still economic value to defeat fair use.

Does not want to require actual/foreseeable harm to P’s market interests. Not possible to rigorously separate market and emotional reasons. There are distributive problems w/ economic only view—advantages those with track record of success in the market, like Salinger. [Though that doesn’t have to be the case if you use traditional, reasonable or likely to be developed as a standard.] Slicing apart economics and emotions have a disproportionate impact on women, minorities, and the poor, whose injuries are less likely to be valued highly (or at all) in monetary terms.  “Coddling artistic vanity” is a gendered concept w/no place in the © system. Author’s right to change “his” mind and eventually sell a sex tape; courts use “his” and not “her” in this framing.  Courts should instead openly and explicitly discuss the interests that they are actually weighing.  Basis in the statutory text: effect on the potential market for, or value of, the copyrighted work, stated in the disjunctive.  Video Pipeline: © isn’t just about monetary compensation.  We have developed a good taxonomy of defendants who should be allowed to copy and not a good taxonomy of plaintiffs who should be able to assert nonmonetary interests.

Likely pushback: expand © in problematic ways.  He thinks it will help reign in abuses and censorship. We can distinguish between privacy and autonomy and online business reviews or efforts to suppress political opponents.  In cases where courts do openly discuss privacy/religious interests, they do so to deny claims, so expansion of © comes from opacity.  If courts can be open and explicit about noneconomic interests, so can parties, which means that remedies can be tailored to those interests.

Annemarie Bridy: Longstand policy choice not to have moral rights in ©.  Your argument seems to be that courts are backdooring this through market harm, so let’s just embrace it. Normatively I would be inclined to hold the line and criticize the cases. © is looking for public benefits and that generally happens through markets/dissemination, so we should keep that.

A: don’t take a strong stance on what the balance should be, saying that the cases are wrongly framed as market interests v free speech rather than surfacing the conflict. [Shouldn’t the criticism then be that the cases making up fake market interests shouldn’t do that?] He doesn’t think there should be a cause of action for mutilation/distortion, but actual copying cases should consider the motivation behind the invocation of ©. There’s no way to distinguish economic/emotional motivations.

Bridy: but isn’t that what the fair use factors are for, testing for the right motivation in asserting a 106 claim?  If you aren’t experiencing harm under 107, you shouldn’t win.

A: but you can’t actually police that because of the market language that non-market Ps are able to use.  We can’t draw those lines.

Q: Why not tell these Ps that they should bring privacy claims if they have privacy interests, not © claims?

A: then we have to ask why they don’t—it’s b/c of weaknesses in those cases. [But why does that mean it should matter to the fair use analysis?]  Selective access to privacy protection through © is the worst of all worlds.

[Yeah, I have the likely pushback. Allowing “value” to mean “nonmonetary value” creates what I call the “Centerfold” problem: I may feel bad that you made a critical, fair use, and the work may now feel contaminated to me, but I don’t believe that the law should weigh that against fair use.]

Dustin Marlan, Unmasking the Right of Publicity

Protecting the internal dimensions of the person is generally considered the role of privacy, not publicity rights. Jerome Frank’s conception was very influential.  Now a hydra-like right, merchandising, endorsement, and “impressment.” Similar to intrusion upon seclusion, false light, etc. in terms of privacy categorization, but what caused this bifurcation between economic interests and personhood/privacy interests? What is the persona—“mask”—for publicity rights? Might be based on Franks’ own conception of a self split into the private true self and the public false self which is constructed and commodified.  Haelan was the first recognition legally of the persona as an assignable, alienable right independent of the right of privacy.  Frank had been psychoanalyzed and recommended it to his colleagues; wrote about psychological concepts of the law in which judges were father-substitutes making the pretense that law was clear and precise.  He was a fact-skeptic, believing that uncertainty in judicial process resulted not just from uncertainty in law but uncertainty in judge’s perception of facts—law varies w/judge’s personality.

Consider other concepts of the self that better integrate privacy and publicity: Julie Cohen’s postliberal approach to the problem of selfhood is relevant to both: subjectivity emerges gradually, shaped but not determined by surroundings, situated within relationships, practices and beliefs. Celebrity as a mask that eats into the face (hey, I wrote a thing about that)—may be impossible to distinguish them in the way the law now presumes.

Shyam Balganesh: wonders whether other stuff in Frank’s life was more important than his earlier book—Frank himself was very clear about his academic persona versus his judicial persona.

Copyright, Christopher Yoo, Are Ideas Independent from Expression: Implications of Linguistics and Cognitive Science for Copyright

Sapir-Whorf: language structures our worlds, determines our actions, constrains our thoughts. Steven Pinker believes that we think in mentalese: we have a concept of blue that is independent of the word for blue.  Even though Korean treats blue and green the same, Pinker thinks there’s something innate, as does Noam Chomsky who posits a universal grammar and that language/acquisition can be studied out of context.  “Colorless green ideas sleep furiously” is grammatically correct even though it is meaningless—there’s an inherent structure.  Another version of language is agglutinative, with verb at end and particles changing the meaning, like Finnish, Hungarian, Korean, Japanese—another major form that just happens to manifest in different parts of the world b/c there are a limited number of ways to structure language.  Now: renaissance of interest in Sapir-Whorf—studies of directional languages/thinking.  Huge controversy about which way causality runs.  Inuits have multiple words for snow, but the number is in dispute and they need them. 

Implications for ©: Paramount v. Axanar—unauthorized Star Trek prequel; Paramount asserts © in Klingon as a language.  Natural languages aren’t copyrightable, but what about constructed languages that originated from a creative work but are now spoken by people? Axanar case says it’s a jury question. Sapir says language is an agreement b/t people to communicate on certain terms. Doesn’t have to be formal agreement, but genericide is an example: by practice we use thermos to mean a thing.  Tolkien’s estate asserts © in Elvish but doesn’t assert rights in noncommercial uses.  See also Esperanto, Loglan, Na’avi, Dothraki.  Loglan is a constructed language to test the Sapir-Whorf hypothesis, to see if they thought differently when using it; creator asserted © to stop others from using, which seems self-contradictory.

Wikipedia and Aboriginal languages: Tasmanian palawa kani is an attempt to synthesize fragments of 12 extinct indiginous languages and promote its use. Wants to set rules on who can use it, claiming under UN Declaration of Human Rights of Indigenous Peoples, not copyright. Raises how shared language can define a community. Wikipedia rejected request for removal.

Oracle v. Google: can’t © overall computer language, but a specific computer program can be. Where is API in that scheme?  Fed. Cir. reversed two jury verdicts saying it was ok. This is about levels of generality/taxonomies.  Reminiscent of Nichols v. Universal Pictures; EU came out the other way.

Other implications: right to speak a particular language; importance of gendered speech.

Pam Samuelson: how would you rule on computer languages developed in order to become “lingua” of that community versus things that are more artistic such as Klingon? What tool do you use? She thinks of language as system with structure & component elements.

A: the way statute is drafted excludes all that. We have a generality problem. He would draw the line at functionality. Similar to transformative use—now w/database cases it’s about making creative works more useful rather than more/differently creative.  Tolkien’s Elvish: Kind of like laches—once you let it loose in the world, other people should be able to use.

Justin Hughes: Malaysian/Ba’ahasa was a pidgin/trading language for coastal peoples, built into a language—this seems like a functional purpose.

Betsy Rosenblatt: you talk about genericide; we don’t protect systems b/c we think they’re functional. To the extent that it’s a communication tool, it’s functional even if it is expressive in the origin. So wouldn’t draw a line b/t Klingon and Java b/c they are both building blocks.

A: Coders say code is beautiful but most of them don’t do that in their daily work.  Klingon was designed by linguists.