A Celebration of the Work of Wendy Gordon

A Celebration of the Work of Wendy Gordon, Boston University School of Law
A Cover Note from Wendy

Workshop Schedule

Intellectual Property Harms by Jessica Silbey, Northeastern University School of Law

From book focusing on the idea of progress in IP law, with more interviews w/people in creative industries. Is it just more IP?  What IP is today has shifted dramatically from past concepts.  Uses of IP in various ways, including using the patent act to remove inventors from a patent when a relationship has failed when that provision of the Patent Act contemplated adding them.  IP is grounded in fundamental interests/values: equality, privacy and its evolution, distributive justice, harm.  The book considers equality and privacy in the case law and looks at concepts of justice/harm.  Many harms are not about individual injuries but about systemic dysfunctions, though usually conceived of as individual (pirates, trolls, greedy companies).  Cases about volition and intentional inducement: individual motivations and bad actors. But what we might hear as individual harms/abuses are in fact descriptions of failing, dysfunctional institutions: poisoned barrels, not bad apples.  Hard to see in our everyday life. Imbalanced, corrupted by incumbency bias, plagued by breakdown of civility norms—not foregone licensing fees, zero-sum contests. The critiques are about bias, imbalance, structural disadvantage. A moral critique of how IP should function.  Precarity: late stage capitalism produces insecurity and vulnerability around the uneven distribution of cultural and economic resources; insecurity about future.  Feelings of belonging are about identity/difference rather than about a shared fate, and that’s what she’s hearing in the interviews: this isn’t a story just about IP but about late stage capitalism and the naïve promise of technolibertarianism.

Interviewees: patentees are cynical about it; the system enables and even incentivize forms of nonphysical assault.  It’s about men spraying testerosterone.  Interviewees predict who will win based on characteristics of the parties: Ps identify the “weak links” in a change—who can survive “squeezing”—the language of coercion.  Many use “feudal” or “rapacious.” And this infects the quality of the work they do.  A system where the rewards aren’t proportionate to who’s doing the work and how: e.g., an archive gets a collection of photos for free and then insists on large fees—ineffective competition and market restriction. We should talk about the values embedded in IP and how they’re being achieved: a shared fate is a good way to think about what progress ought to mean for IP.

(Accompanying Book Synopsis: Against Progress: Intellectual Property and Fundamental Values in the Internet Age)

Commentary by Mike Meurer, Boston University School of Law

Silbey’s previous book challenged IP as incentive story. Public debate now includes lots of sociopolitical issues such as diversity and nationalism, esposing debates about progress that are no longer centered around economics/incentives. The Patent/© clause of the Constitution isn’t helpful in figuring out what to do b/c there’s not enough from the Founders to interpret. Graham v. John Deere & Feist talk to us about the rationales—utilitarian even if not entirely incentive based—but Silbey is really interested in propertarian concepts of IP, not incentive/economic accounts; lots of economists are not propertarians.

Many interviewees feel screwed by the system, but there are other examples of successful collaboration/openness—The Knockoff Economy.  There is sharing at conferences, e.g. open source/AI (except Apple).  Informal “research exception” for genetics researchers who just ignore existing patents.  Precarity is a problem in low tech and high tech—not limited to knowledge economy or US. Decline in labor’s share of value/productivity divergence. The solution probably isn’t changes in IP; employment and labor law would be an area for intervention; policies that speed diffusion of new tech, perhaps by essential facilities doctrine.

Bob Bone: how do you distinguish between the harm and the cause of the harm?

Silbey: answers have to be interpreted.  Filmmaker complains that she can’t get access to photos and the $ demanded doesn’t even go to the photographer!  Have to attach meaning to that narrative, and have to justify explaining that as a result of systems and not individuals.

Q: IP is not autonomous, but the project may be too big if it’s about malaise/social breakdown. [Although if nothing will help authors without bigger changes outside of IP, that seems like a fact worth knowing.]

Copyright Jumps the Shark: The Music Modernization Act by Lydia Loren, Lewis & Clark Law School
Gordon has written about © as tort; the MMA can’t be justified on tort theories. It’s a complex licensing deal worked out by industry insiders to fix (in several senses) aspects of music licensing.  Added 24,072 words to the Copyright Act, which was 33,759 words in total in 1976.  The Musical Work Modernization Act is the bulk, largely in §115, which is now 18,324 (up from 2742 words).  Mechanical copies of musical works and “covered activities” for purposes of a blanket license.  Blanket/compulsory licenses reduce transaction costs.  Streaming previously didn’t create a mechanical copy; now it is considered to do so for certain circumstances—created a transaction cost and then solved it (though the problem started in ratesetting proceedings).  An interactive stream is a digital phonorecord delivery, so a mechanical license is needed, so a blanket license comes to the rescue.

Harm v. benefit: harm matters to most people on a moral level; prohibitions against doing harm are deeply embedded whereas not paying for a benefit is iffier.  To have any moral bite, harm must mean something other than a benefit not achieved.  What is the harm the MWMA seeks to remedy? The right to be paid for mechanical copies created in the course of streaming.  But it was a public performance before, and still is, and musical work owners got paid for that—they just wanted to be paid more, and now they’ll get paid for the public performance and for the mechanical copy.

Another possible harm: unequal treatment of different creators.  Sound recording © owners were getting more money!  This is subjective distress: harm comes from someone you see as similarly situated getting treated better.  So what would keeping authors at the core of © look like?  Title II of the MMA is the Classics Protection and Access Act, dealing with pre-72 sound recordings.  Now they have federal rights, though not federal ©.  Rights not to the performing artists, but to whoever owned the reproduction right in the sound recordings under state law, and that’s the record labels. Fails Gordon’s standard for expanding © by granting rights to non-authors who disseminate works: it should be in aid of authorial creativity.

Another violation of authorial preeminence: MMWA covers royalties collected for “unmatched works.” Collected, but not owed to an artist. After 3 years, if uncollected, the statute says they should be given to matched © owners—allocated to the owners of the most popular works, furthering inequality in the music industry.  Statute says “equitably” distributed to known © owners (which most people assume mean distributed by market share); can’t do anything creative like providing health care to session musicians or fund arts in schools.  Only if there’s a side deal will money flow to the artists.

Equality and fairness: for musical works, interactive streaming is now a mechanical copy, license set under willing buyer/seller standard; noninteractive: not a mechanical copy, no license needed. For sound recordings, we don’t know about interactive streaming and there’s a statutory license for noninteractive streaming. So in fact there’s no equity in any of this treatment. And when you add in nondigital transmission it gets worse! For musical works there’s PROs subject to antitrust supervision because they have a public performance rights, but sound recording © owners get nothing.  Each type of treatment is different.

There is also not equity as between pre and post 72 sound recordings.  One place where it’s equal: digital payments to performing artists for non interactive streaming royalties: the statute prevents diversion to the labels.  For post 72 artists, for noninteractive streaming, there are no requirements whereas the pre 72 artists get direect payments.  (Note that many of these pre 72 artists are dead; the money will go to the heirs or the labels.)  Pre 72 artists have no termination rights, and post 72 artists may.

Commentary by Greg Vetter, The University of Houston Law Center

Theme: mischaracterization of creators’ interests by disseminators in their advocacy. Why is this area so reliant on Congressional writing of licensing schemes?  Is it about which industries focus on creators more than disseminators?  E.g., theater/performing arts is creator focused and software is disseminator focused.  Why is music (and broadcasting) so overly dependent on congressional codification versus movies, books, news, etc. [I’d add in market concentration among disseminators—without that, there’s less legislative pull]. Software has its own private licensing systems (FOSS). More generally, why is it so industry-specific compared to patents, which is a much more unitary system?  Patent people use © as an example of why we don’t want industry specific patents given all the rent-seeking.

Even with the inequity, is getting licenses for orphan works a net win for transaction costs? [Compared to what? If there’s a no-right situation, then there’s no holdup either way.]  The issue is possible state law protection—standardization from that could have benefits.

Loren: true, the standardization from state rights was a benefit.

Litman: a couple of bombs hidden in the text: one of the reasons to say the pre-72 works weren’t “©” was to deny a termination right, and also another was that many state laws didn’t require written transfer of © interests, so lots of record labels don’t have to demonstrate that they actually own the rights—that’s cheating. With MWMA, the major labels all have direct deals with the streaming services—so the statutory license is really covering independent/self-publishers, but the result is that the organization gets to collect and keep the royalties, even though pretty much all the royalties are from other people’s music. No academic had any input into this bill at all, as far as she can tell. 

Hughes: paper should make more clear that digital photorecord delivery was already messed up. Now that Spotify etc. permit tethered downloads, there really is a copy, so it’s less messed up than it was. Given that we were already in that mess, when you couldn’t identify the owner, you filed a Notice of Intent w/the Office, and Spotify & Pandora & Amazon & Google filed 25 million of those. They don’t have to pay until the © owner comes forward.  Isn’t this a little better, because at least some of the money will go to the artists? If the database is good, the unidentified works will shrink.

Loren: there’s definitely some things that are better, but we should see how the whole thing works. Has her doubts about whether the unmatched works will shrink a lot.

Chris Sprigman: NOI issue was a response to the inability to match sound recordings to underlying compositions, an inability that has been going on for a century.  Blanket license: you can think of the payment to popular © work owners as a penalty default; independent labels presently provide very bad data to streaming services. Majors do a better job. Maybe this is a stick to get independents to provide better data; if it doesn’t work, their money will get given to someone else, and maybe that’s not an outrage.  Data need to be shared not hoarded.  [He disclosed: he represents Spotify.]  International standard recording codes and international standard musical works codes are really badly matched.  Congress is resolving a public goods problem with a penalty default. Not the most kind hearted response, but one with a purpose.

Hughes: Spotify did propose sending the orphan $ to the arts/musicians; it got shot down.

Traditional Knowledge in the Image of Private Law by Ruth Okediji, Harvard Law School

AKA Locke, the Bible, and Wendy: Lessons from Marrakesh: Gordon’s A Property Right in Self-Expression has been one of Okediji’s guiding stars in thinking about int’l ©.  There’s a lack of clarity in Locke’s treatment of the right to exclude.  The sphere of liberty excludes other claim rights, but doesn’t resolve conflicts between spheres of liberty. Liberty is a right of everyone; it doesn’t permit hierarchy.

The public domain has a heavy burden: tool of choice for policy arguments about the appropriate limits of IP: distributive justice; misalignments b/t economic incentives to create and distributional results; access to knowledge for downstream innovators.  Global context: effects of the incentive argument and public domain argument on human development needs of the global South.  Human progress/flourishing as motivation force behind IP protection, but limitations & exceptions don’t go to the needs of the Global South. Treating the public domain as property can also do damage; our doctrinal tools are too limited to counter the influence of property rights as one of the principal tools.

Implications for traditional knowledge, where law is silent but there is a conflict. Public domain advocates, and incentive advocates, often treat access to TK as a good thing. But takes intellectual capital from vulnerable communities: our theories essentialize the nature of creativity; reorients society around commodifying practices.  Nondiscrimination as a principle in the public domain is a fallacy like colorblindness in antidiscrimination law.  The notion of the public domain as a place for more & more goods to consume is impoverished—we need to challenge the notion of what it means to flourish in human society.

For Locke, liberty is mandatory—it has a social, relational benefit and not just an individual one.  Stewardship is the concept for thinking about individuals who are operating rationally and autonomously but in a community. 

Tacking Locke/Gordon/the Bible seriously would require a fundamental change in limitations and exceptions.  We think of L&Es as things we’re forced to do; reluctant to recognize constraints on property rights. Dominant treatment is that L&Es are discretionary; property rights are supposed to be certain and so it’s ok if L&Es are uncertain.  Voluntary codes encourage payment.  Inconsistent w/Lockean idea that speaking, remixing, creative play shouldn’t be left to the discretion of the state or institutions that facilitate access to public goods.  Like telling kids they don’t have to learn to read if they don’t want to. Our L&Es emphasize civil/political liberties and not community [hey, I wrote something about that].  They are discriminatory (treatment of hip hop in music) and emphasize the economic/material and not the social. Human rights are less prominent than they ought to be.

Uncompensated L&Es in the Berne framework are centered around liberties. Some reinforce subject matter boundaries, such as news of the day. But states can decide whether to give © to official texts and works of applied art. Need to address different kinds of users, larger scale of use (including by gov’ts), and cost of bulk access to works. Need to deal w/formal and informal customs & practices that don’t have the certainty that we demand of “legal” rules.

Marrakesh Treaty: not perfect, but it works.  Mandatory exception; freedom to cross national boundaries, not just institutions but person to person; recognition of “the least of these”; incentives to structure institutions that enable human flourishing. Right to property corresponds to obligations arising from property.

Commentary by Harold Feld, Public Knowledge: Lobbyists can’t usually just hand bags of money to politicians; they need to create narratives to justify their interests. MPAA almost killed Marrakesh Treaty at the last minute; there’d been a deal to exclude visual works and they wouldn’t oppose, but MPAA reneged on the deal at the last minute, demanding language to protect © owners from the blind: they didn’t like the narrative that there are rights and public interest considerations sufficient to displace what MPAA believed was fundamental right of ownership.  A compelling and simple story to the contrary—fundamental values can trump this right, as in real property—is terrifying to them. What changed things: the Pope and Stevie Wonder.  The Pope sent an official papal embassy & told them “thou shalt not put a stumbling block before the blind,” and Stevie Wonder told the delegates that they should do this.