Monday, February 11, 2019

WIPIP 2019, University of Houston, Copyright panel

Abandoning Copyrights, Aaron Perzanowski & Dave Fagundes: Unilateral transfer of rights. W/personal property you think about transfer to unknown but discrete third party, but in © abandoned rights are not up for grabs by some new claimant, but rather in the public domain. We expect abandonment when subjective assessment of costs of maintaining and storage outweigh the benefits of continued possession. That calculus shifts with © b/c w/o formalities and renewal requirements there are no meaningful costs w/a massive trove of low value © works.  Unlike your old couch/unworn shoes, a PD work has a potentially infinite number of users and uses—archival efforts, machine learning, general accessibility and enjoyment—so potential value to public is potentially much higher even as incentives to abandon are essentially nonexistent. There are altruistic/reputation based attempts to abandoned. But there is not a lot of clarity about how abandonment is accomplished/works.

320 cases meaningfully discuss abandonment; we’ve read 25% so far. They stretch back to mid-1850s and the issue comes up more often than you may have thought. Lack of clarity about terminology: courts tend to conflate abandonment (unilateral and intentional decision to relinquish) with forfeiture (failure to comply w/formality): both get referred to as dedications to the public domain; implied license and waiver and estoppel all get drawn in as well. Lack of clarity is in part b/c in the old notice regime forfeiture and abandonment were pretty similar, but more recent cases call out abandonment as its own thing, with a test drawn from personal property: they say abandonment requires an intent to surrender all or some rights in a work; need some overt act that evidences that intent. Some cases allow partial abandonment.

To encourage: clarified law; simple, centralized process for filing a notice of abandonment. Tax treatment could also matter. Some TM cases talk about potential tax benefits of abandoning a mark.  (Nonprofit donation: For works you created yourself, you can deduct cost of creation; for works you acquire from others, you can deduct market value.)

Q: moral rights?

A: Hasn’t yet come up for us, but intersects w/questions around termination. Can you abandon at or around time of termination?  If there’s a tax benefit to the institutional © holder, that could be a risk to the potential terminating author/heir.

Lemley: We treat abandonment in very odd ways in TM, which can help get at the Q of whether what we want is for someone else to grab the rights or for no one to do so.

A: There’s a fair Q whether we want to call it abandonment at all given the public domain aspect.

Q: why not give more attention to laches, estoppel, negligently failing to take care of the work?

A: courts aren’t always clear and so one of our aims is to create a taxonomy.

Rosenblatt: one challenge is that abandonment is an affirmative defense, so we won’t see it unless there’s a fight; there may be abandonment everywhere we don’t see. Are you more concerned w/dedication to the public domain?  Analogy to what patentees can do as a way around real/personal property issues and implied license issues?

A: difficulty is that it’s unclear whether there is a mechanism for dedicating to the public domain as there is in patent (but maybe there should be).

Uniform Jury Instructions in Copyright Law, Zahr Said
© is jury unfriendly but jury reliant, which creates policy-relevant risks of error, affecting not just any given case but the scope of ©. Instructions are low-hanging fruit b/c they’re so bad right now. Distributional concerns: in the cases, often one party proposes a lot of jury instructions and the other doesn’t.

Moral divergence b/t anticopying ethos and © law. Linguistic divergence: fair, similar, author, derivative, building, owner—they don’t actually have the meaning that the jury may think.  Deep indeterminacy, which may be where a gap-filling jury is needed, but that layers on to the other problems; often there’s an ontological indeterminacy where it’s not even clear what the “work” is and the jury is supposed to figure that out without being clear that plagiarism and infringement aren’t the same thing.  9th Cir. threw its hands up when revising its jury instructions and took out everything on substantial similarity. Yet © has a higher percentage of trials than other areas of law—2/3 to 70% of litigated cases go to a full dress trial, relating to traditions about the lay observer/reader.  Risks incorporating things into ©, like ideas, that we are trying to exclude (and may risk excluding creativity in things like selection and arrangement).

Quid pro quo: © gives you rights that are indeterminate and really easy to get; we trust litigation to sort out the boundaries. But that means you can’t come in claiming that you have a full blanket but rather a shawl with unpredictable holes (as a knitter this metaphor really isn’t working for me).

Possibilities: rely less on juries?  She doesn’t like that b/c they have a profound role to play. But jury instructions are just so bad right now that they’re a good place to start. Trial transcripts often feature comments by a judge: I don’t know what to do here.  That’s true even w/more senior judges. The parties often propose conflicting instructions and the judge picks neither; in the Led Zepplin case the judge just got reversed for doing that. Level the playing field: where a more moneyed party removes a reference to copying of protected expression, leaving it just copying of expression, that’s bad.  Should discourage minor tweaks to the instructions—a waste of the docket.

You also have to address moral intuitions—even a good jury instruction might not be complied w/.  Debias w/ respect to foreseeable jury errors, and standardize debiasing. Fogerty has good instructions about how copying facts and ideas may seem unfair, but you can’t consider in it.  Linguistic divergence: address the meaning of derivative work: derived from, not trivial/not creative.  Trim instructional clutter and statutory bloat, like eliminating references to choreography in non-dance cases. Group exclusive rights rather than scattering references and definitions throughout.  Accurate and nonpartisan jury instructions could be developed abstractly.

Bartow: are you going to separate out music?  Always been her sense that music is the disaster area.

A: less about works than about training attention on the proper Q. 

Lemley: plain meaning patent jury instructions are a thing in some jurisdictions –SDNY/CD Cal might be interested, and you could get immediate adoption. Broader Q: how sure are we that it matters? There are lots of reasons juries might screw up © cases, and it’s not clear that it’s jury instructions v. constructing their own good guy/bad guy narrative.

A: Plain meaning is sometimes oversimplified—you can make the jury think their job is super easy, so you don’t want to do that. Flowcharts, images, other things could be played w/ if you involved psychologists/social scientists. The social science literature suggests that jury instructions do matter.

Ramsey: use AIPLA or INTA—more likely to be adopted by judges if institutions are involved.

Lunney: fighting against jury’s moral intuitions is an uphill battle, and the parties have no interest in model instructions in their own case—so can you get a model that the judge will follow even in the face of pressure from the parties?

Copyright's Arc, Martin Skladany: © should vary across the globe. In poor and rich countries, we should reduce © dramatically and in middle income countries it’s doing the right job. Lunney: we have a group of elites making a lot of $; his concern is for the average artist. Skladany is concerned for the average consumer, who in the US consumes 10 hours of entertainment not counting social media, which is too much. Developing country side: incentives are working well for elites in a broken context—they’re not producing enough content within developing countries. They don’t have enough content; let’s get them content. The barrier isn’t primarily © but it’s part of the equation. We’ve attacked that educationally with A2K, but not with entertainment. Telenovels from Brazil can make social changes in Iran.

Q: 10 hours?

A: Varies; elderly people watch more TV; Nielsen counts things like listening to the radio as you drive as time spent consuming media.

Q: there’s so much content on Netflix already—even drastically reducing © wouldn’t change that.

Fagundes: if the appetite for content is so great then 10 hours stays the same. If people’s demand is for content, not for new content, then you don’t get the result of decreased elite production.

A: doesn’t need to be complete or immediate to solve overconsumption.

Q: is encouraging people to watch telenovelas from another country/watch Who’s the Boss really a good idea?  Isn’t it another imperializing move?

A: but Brazil didn’t colonize Iran—looking for all content across the world. Appreciate the spirit, but right now © helps only the elite of a poor country. Promotion of civil and gender equality has faltered; media showing people living free lives seems like it might help.

Q: what if it only decreases the quality of content and not the amount? With new tech people are willing to produce a lot of content, even for 6 months of ©.

A: big companies are using fMRI and other increasingly sophisticated techniques to manipulate us; decreasing the incentive to do that (e.g., weaponizing games into making them addictive) would be good. [Though with control over the server, you don’t need much © if you’ve addicted someone.]

Rosenblatt: risks sounding colonialist even if you aren’t. Skeptical that reducing term will meaningfully reduce demand or production even of expensive goods; you only need to look at K-pop to see that widespread short terms of exclusivity have not reduced production pace or investment. Instead people go for a short big splash.

A: if we don’t believe that © motivates creativity, what are we doing here? Nollywood has more piracy; production values and production scope aren’t as great. The problem is rural access; even piracy in cities doesn’t get media to the least developed areas, and NGOs can’t afford licensing.

Q: why do the rich countries need less consumption? 

A: Correlation b/t consumption and poor health. But every American should be creating and we’re not doing that (dad had to work in a factory instead of as a chef to get health insurance).

Tear Down the Stairway? Copyright Injunctions and the Public Interest, Tim McFarlin
Comes out of interest in determining authorship: some cases say contribution to audience appeal is a factor in who’s an author. So where else does audience impact come into © doctrine? After Petrella, it’s easy for claimants to come out of the woodwork; the Stairway to Heaven case is an example, using requests for injunctive relief and even impoundment/destruction.  Rear Window case mentioned the denial of the opportunity to the public to experience a classic could be a factor in the remedy analysis. But where’s the line b/t a classic and a nonclassic (12 Monkeys (preliminary injunction granted), Blurred Lines?).  Is the nature/genesis of the infringement relevant?  Willfulness? Percentage of infringing content?  Distance from fair use? Gilden argues that a stronger injunctive remedy might pressure judges to find fair use more often. If we don’t presume that every infringing derivative work might become a classic, then are we favoring authors who already have a track record?

We already use audience reaction to measure damages—the contribution of the infringement to the work—so can we use that to answer some of these questions?

Buccafusco: an injunction won’t matter very much in terms of access to truly valuable works [and 12 Monkeys]; will just shift the bargaining b/t plaintiff and defendant. 

A: yes, but can add additional uncertainty esp. with things like new technological uses

Lunney: relative value of contribution, or relative cost of contribution?  Cost-based returns are what happen in competitive markets.  Can we do a Rawlsian analysis?  E.g., would Led Zepplin have created Stairway to Heaven if they’d known that the rights would subsequently be divided (though I think you’d have to know whether the rights would be divided in an ordinary percentage before they were famous or whether the rights would be divided treating Led Zepplin as a famous infringer).

Gilden: flip the Q: when the audience might want an injunction—when they wouldn’t want to experience an infringing work.

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