A Celebration of the Work of Wendy Gordon, part 3

Death in Copyright: Remarks on Duration by Abraham Drassinower, University of Toronto Faculty of Law

What would a rights based account of duration look like?  Really about death, not duration. Patents have a fixed term; trademark registrations also persist for a specific amount of time before renewal is required.  © is life plus 70 (US) and 50 (Canada)—the number isn’t the same for all works.  Something other than number alone goes into the determination, which is death of the author.  What is it about © that summons mortality so deeply into its substance?  History is one answer, but not of as much interest to him.  Does the concept of mortality fit © in a distinctive way?

His proposal: The idea of independent creation contains the idea that the author is a mortal being; the theory of originality is already a theory of duration. Works as messages: communications from the living.  Not an owned object but an expressive act. Duration affirms the specificity of the length b/t author and work as copyright subject matter. B/c author and work are inseparable, the death of the author must signal the death of the right.

Commentary by Paul Gugliuzza, Boston University School of Law

Original 14 year term seems to have come from the first patent statute, which itself was double the usual apprentice term.  There’s no reason to think any of this was socially optimal for incentives [or otherwise].  And it’s gotten longer and longer b/c of © owners’ political power.  Drassinower isn’t looking for social optimality, which is a pretty impossible Q in the abstract anyway.  But US law isn’t animated solely by moral rights; suggest engaging other analytical modes, especially given the provocative nature of the claim that © should be cut back a lot compared to where it is.  Utilitarian arguments for extending some © beyond death, if not for life + many decades.  Older authors might need incentives; predictability of ensuring some duration beyond perhaps a few days. 

Talha Syed: we can resist various moves, including that independent creation requires inseparability of author from work.  We could also say that conceptual integrity in the system isn’t important: we can have independent creation and an unrelated term.

Drassinower: takes independent creation to be fundamental to what we think © is and is for.  That’s why he wants to use it to look at other parts of the system. 

Litman: earlier US terms did look at whether the author lived past a certain time for renewal term/ownership.

The Restitutionary Impulse and IP “Origin Stories” by Rob Merges, Berkeley Law

Experimental psych confirms Gordon’s insights about intuitive power of “reap where you haven’t sown” trope. Even little kids have intuitions about ownership of ideas.  Important pattern in IP law: creation or extension of common law protection due to restitutionary impulse/ “felt necessities.” Restitutionary impulse starts young: children apply ownership principles to some ideas, though not to common words. Kids by age 5-6 don’t like copying as much as they like original drawings, and they especially don’t like falsely claiming credit.

Felt necessity: economic hopes of a less confident, service oriented economy have switched to knowledge goods.  Demsetzian version of property rights: over time, property rights develop in response to growing (relative) value of intangible assets and cost-justified ease of defining boundaries. There’s a political, economic story of limitations and exceptions, whose creation can also be told in Demsetzian terms; IP rights create victims who can lobby too. 

What’s happened over decades with restitutionary impulse?  Federal dilution law; progression from common law to statutory right of publicity and almost inevitable call for federal uniformity; federal trade secrets law. 

Haelan as a moment of creation: they tried to create an exclusive right to a player’s image through contract, which couldn’t be done just by waiving the player’s privacy rights as to the chewing gum company.  It has to be done with a new right.  The alienability was at the heart of the new right. 

Restitution is a substitute for the market; sometimes comes from failed market transactions. Property is instead about creating markets: standardized bundles of rights that are easy to transfer.  Restitution is reactive and property is generative: corrective justice seeks to restore a status quo, while new property rights deviate from the status quo. Market transactions can be based on a bundle of rights more easily than on a bundle of duties.

Commentary by Bob Bone, University of Texas at Austin School of Law

Gordon is a value pluralist, and this helps with her affinity for the common law, where judges grapple with various values.  Principles may incubate in common law, though they can also come from statutes. Public choice makes it messy. Hard to say anything general about creation of IP rights.  Maybe original idea is some kind of moral insight, but they eventually get driven closer to property rights over the long run.

Intuitions about ownership are socially contingent in large part.  [Everybody eats, but different cultures find different foods appealing/disgusting.]  Plagiarism: Merges slides pretty smoothly between copying and failure to give credit, but kids seem more interested in the latter: the opportunity to give authors credit for their work, which would lead to an attribution right rather than a restitutionary claim.  Deeper Q: why follow moral intuitions? Some of them are bad!  How do we determine the lower level, more specific principles entailed by moral intuitions?  One way might be to look at the common law to see how some principles check others.  But common law is affected by other factors too; we can look elsewhere.

Q: sometimes children are mean and manipulative; they may make ownership claims as a matter of self-interest, but that doesn’t tell us what we should be doing.

Dreyfuss: EU trade secrets directive: is it property and will it therefore be controlled by human rights law? That’s a big difference b/t relational rights and property.

Q: fannish community opinions on ©: attribution and fairness are the norms; social contract idea—authors should allow fans to engage in certain types of noncommercial creative work. Moral rights concepts.

[A couple of thoughts, overlapping with the others: Glynn Lunney’s piece for this conference is all about responding to the restitutionary impulse. The YA book The Girl Who Owned a City represents a good example of one of the problems: the book doesn’t mean to do so (it’s supposed to tout Objectivism) but it demonstrates the impulse to claim ownership of that which is not new, but which was news to you and thus feels like “yours.”  Relatedly (since the book is about kids who have to recreate society after all the grownups die), maybe what kids think is a starting point in need of a justification since we are in fact supposed to be socializing them.  Indeed, kids do a lot of copying that isn’t even noticed as copying: trace the letters to learn how to write; instruction where we have students watch then do, which is to say copy, then teach, which is to say have others copy you; perhaps this can often be distinguished as processes v. outputs, but copying letters is copying outputs, not just tasks. We could say that in those situations copying is clearly valorized, but we then have to figure out why the valorization doesn’t carry over.]

Common Law Conceptualism in Intellectual Property by Shyam Balganesh, University of Pennsylvania Law School

Gordon as conceptualist who attempts to organize analysis/reasoning around discreta analytical devices that serve a simplifying role w/in relevant context. Takes legal doctrine and reasoning seriously as a mode.  Different categories of conceptualism: formalists (e.g. Joseph Beale) who thought that legal concepts had their own immanent normative logic which gave definite answers to cases. Realist conceptualism (Frances Bohlen, Wesley Hohfeld): legal doctrines as grounding for decision making but not “closed”: legal concepts could be deployed towards social ends, but they meant something. Neoconceptualist—Gordon is somewhere between a realist and a neoconceptualist. Not wedded to a singular methodology.  She adopts the Hohfeldian set for copyright, but is willing to read normative criteria into their working, and is skeptical of normative essentialism (unlike traditional neoconceptualists).  Suggests move from copyright to copy-privilege: move from P to D. Privilege is subsidiary: it needs protection by a “right” of some kind that allows the exercise of the privilege. W/o a right, there is no no-right/duty to not interfere w/the privilege.  Privileges of ownership, similarly, aren’t protected in the absence of a right to exclude.

Implicit moves: the owner’s entitlement also becomes a privilege, not just a right. Right to exclude is replaced by exclusivity as a continuum.  Questions the property/copyright analogy, boundaries, thingness. Evaluative turn: focus on entitlement structure leads to an evaluation of the utility of property analogies. It reveals copyright’s conflation of harms and benefits and the move from property to unjust enrichment.

Legal structure of © is not contingent—see Drassinower—there are some basic principles that make ©  mean something. These legal concepts allow © to accommodate a plurality of normative considerations. This may be messy in practice, but it is true. Our search for purity should not lead us to oversimplify.

Challenge of copyright conceptualism: ©’s unique challenge is its legislative origins.  It is not a creature of common law.  Conceptualism is not the same thing as textualism: looking for analytical logic underlying the text.  An idea acquires meaning through usage within a context or domain, not through fiat. Thomas is wrong in Star Athletica to leave behind all normative logic underlying the text of the statute and to say that we begin & end with the raw text of the statute.

Commentary by Talha Syed, Berkeley Law

Conceptualism begins as the search for necessary and sufficient conditions for the use of a word/term—the hunt for essences. 50s/60s: turn to essences/family resemblances.  Third version: capture ordinary uses for good enough work (HLA Hart). The problem, in any form, is the attempt to fix meaning; there is always, inevitably, an unargued for smuggling-in of a normative conclusion. This is what gave conceptualism a bad name.  Hohfeld says rights are definitionally relational: there are no rights on a desert island. He’s building an idea.  Entitlements implicate different interests in different contexts: a use privilege and a right to exclude are different.  The unbundling just follows from analyzing the issue before you. The tools are normatively neutral: focal points for positive/normative analysis, and immensely useful nonetheless. If you’re thinking about law, you’re thinking about social relations and there’s always burden/benefit, entitlement/disentitlement, and the interests vary by context and purpose and it would be odd to bundle them together and act as if answering one question answers them all.  This is a Copernican revolution, and Gordon brings it to ©. Nonrivalry is a constitutive feature of IP versus intangibles. This is the driver of Gordon’s harmless free riding: prima facie, using a nonrival resource doesn’t harm others w/r/t nonpecuniary harms. That’s a conceptual move.

Copyright Practitioners and Copyright Scholars by Jessica Litman, University of Michigan Law School

Gordon was one of 9 women teaching any IP course at any accredited law school when she began teaching. Then as now the spectrum of views on IP was wide. © lawyers saw each other as a priestly elite, and debated essential but hypothetical questions under the new 1976 Act, like “if you build a sandcastle below the high tide, is it fixed?” Then as now, the © bar was essentially a plaintiff’s bar. Genuinely shocked and dismayed when courts or Congress disagree w/their ideas of how to do things.  There were insiders and outsiders, real lawyers and those who research/practice but don’t count.  Litman worked on Gordon’s foundational Columbia LR article on fair use as market failure as a law student! [Happy coincidence exclamation point mine.]  Fundamentally theoretical work, not “practical,” but nonetheless of great relevance and potential utility to practicing lawyers.

Today, the relationship b/t academics and practitioners is more fraught; tech has brought more money at stake and new tech has also made hypotheticals more realistic. Entry of new players w/significant financial and political clout, which caused old lawmaking patterns to not work so well any more. Previously, if certain groups agreed w/each other, Congress would enact it; upstart groups could be maneuvered around or bought off.  That stopped working when the new entrants came to the table w/more economic and political resources than the quote unquote core copyright industries. 

© rhetoric has been overheated (Boston Strangler = VCR; HathiTrust as Plessy v. Ferguson) but seemed like an escalation to Litman.  Maybe it’s just the age of Trump and that’s how we do now.   Too simple to blame the rift on the fact we don’t agree; most lawyers get that other lawyers hold opposing views, and she didn’t see this problem 40 years ago.  The way legal scholars think about © versus how practicing lawyers and lobbyists think have diverged enough that we’re not speaking the same language. 

One important milestone of divergence: 1984, when Reagan Admin and State Dep’t were keen to join Berne; asked Irwin Karp to get together w/Authors League of America, Authors Guild predecessor, to write a report indicating that only minor, uncontroversial changes would be necessary to adhere to Berne. Claimed that American law already amply protected moral rights through contract, state statutes, unfair competition/TM law.  This argument was a lie.  The best anyone could say at the time was that it was just barely colorable, but no one actually believed it.  © professors were divided about whether accession was a good or bad idea.  Request for their comments put joiners into awkward position—it seemed like the only feasible path to accession, but lying about the law is not in the job description.  We see law differently! We are subject to wishful thinking, but we’re also trying to discover the law rather than to make it up. Some comments enthusiastically supported Berne adherence but disagreed with the report’s description; some kept heads down; some submitted carefully drafted comments that avoided discussion of the touchy parts.  The gambit left an unpleasant taste.

Inflection point 2: runup to the DMCA.  1993 discussions: © owners were reluctant to involve Congress in changing © at all, b/c only last year AHRA had been enacted and Congress had insisted on allowing consumers to make noncommercial copies of recorded music. Wasn’t unimaginable that it would do the same for digital files. Yet © owners spoke candidly about difficulties of current system, especially sound recording industry. Hilary Rosen (RIAA) insisted that w/o public performance right there was no means to assert control over unauthorized performances online b/c transmissions were performances. Bruce Lehman asked “can’t you treat that as distribution of copies,” and industry reps replied they’d thought of that, but first sale was a problem. If authorized transmissions are distributions of phonorecords, then the authorized recipients could redistribute them.  So they needed a public performance right. Lehman and his staff pursued a different tack—they wrote a report claiming that © law already covered almost everything the © owners wanted.  This time law professors didn’t wait to be asked, and spoke up to contest the distorted view of current legal doctrine. It didn’t matter much; academic opposition barely affected the law’s enactment, but in the ensuing 3 years, supporters of the Lehman approach managed to persuade each other to develop message discipline. That message discipline has been on display in subsequent efforts to persuade USTR, Congress, White House to get on board—“rogue websites,” value gap, etc.  It’s an effective strategy, and it’s hard to say it’s immoral from a policy perspective, but it’s not what academics do or like.  It’s an important and respected lawyerly tool but not a scholarly one: message discipline is inimical to us, whose norms look for the new and different.  That means that professors could mess the message up if anyone listens to us, which has produced a bunch of “stay in your lane” instructions to avoid advocacy, amicus briefs, etc.

Does it really matter? Instead of one priestly tent, we have two tents populated by different priestly tribes?  Yes, it’s worth addressing.  Professors have been sidelined in law reform arena and limited in our influence on regulation, compared to patent for example.  That has costs, as in the MMA which was written to be unreadable. Even if we did read it and had stuff to say, no one listened, so why put yourself through that? The law we got includes naked wealth transfers from composers and independents to big three labels, and it’s much worse for our not being meaningfully involved.  Sure, some have hooked up with new intermediaries, but many of us have things to say to the “core copyright industries.”  Gordon’s work is not about tech issues, but about fundamental justifications.

Commentary by Justin Hughes, Loyola Law School, Los Angeles

Disagree on moral rights. He believes that the © lawyers opining then believed they were lying—but they weren’t public international law scholars.  (It turns out that complying with Berne on moral rights, like complying w/ int’l law more generally, is a lot easier than you might think based on what Berne seems to say.)  Marrakesh: didn’t recognize the earlier account of the treaty negotiation process. A lot of the treaty’s prose is his, as chief negotiator.  It is true that very early on, the deal was to take the MPAA out. He did that deal. The Holy See didn’t play a pivotal role, but it addressed the EU, not the Latin Americans.  In fairness to PK, he was repeating hearsay b/c PK didn’t participate; Gigi Sohn was very politically savvy and knew PK could help best by staying out, as could Google. The acrimony b/t © and “anti-©” [my quote marks] people was so strong that disinterest was better than participation. 

The game is a rough one at this point.  Ask yourself what you expect of yourself and what you expect of others. The rules are different for social media than for amicus briefs.  Some people [I am one of them; Hughes is not] signed on to an MPAA ad against the ROP law proposed in NY; if you signed on to that, you are political fair game.  We need to spend more time thinking about the rules of engagement for ourselves, including conflicts/appearance of conflicts, which law professors often discount.  The Oracle study: there was a lot wrong with it, but we need to spend more time as a community talking about disclosure and what constitutes conflicts of interest.  Arti Rai and I have had to disclose everything to serve in government, which is the cost of service [unless you belong to this Administration], and not everyone in this room would be willing to do that. 

We don’t spend enough time talking to people outside our tent.  It’s scholarly malpractice to write about something where people are alive and you don’t talk to them, e.g. how the PTO works, but we’ve separated ourselves so much that we are treated as outsiders. Spend more time talking to practitioners and interview them, as Silbey does.  The only way you’re justified writing only on the paper record is if everyone involved is dead. [This strikes me as an interesting thing to say right after we’ve just heard so much about conceptualism; I don’t actually have to interview Tam or his lawyers to write about the implications of Tam, so I take Hughes to be making a narrower complaint about when people write about the political economy of decisions, particularly legislative decisions.]

Yen: For some of us, this seems like our parents’ fight—CSUSA has been perfectly welcoming to academics. Don’t poison what can be done going forward.

Litman: the current barrage of abuse is less than a year old, so it’s not old news. [I would also point to the rhetoric at the 512 roundtables, which is less bad than the incidents Litman describes but not exactly welcoming.]

Feld: He’s done telecom and other fields, but IP is clearly much more poisonous than his comparatives.