Friday, February 12, 2021

WIPIP, PLENARY SESSION 1 — Race, Gender, and IP

Dan Burk, University of California, Irvine School of Law

Racial Bias in Algorithmic IP

Unpacking bias: divergent meanings: statistical bias (sampling), design (wrong type of model, model created for one purpose used for another), the fact that “raw data” is an oxymoron, social bias (inappropriate social outcome—different than the bias that designers often talk about, so they may talk past each other even if there’s overlap). This can make some responses beside the point: transparency, auditing, “human in the loop”—those are mostly attempts at better technical accuracy. That’s a red herring. Example from criminal justice: parole determinations. Zip code is a major factor in these, and that’s correlated with poverty and race. It’s a really good predictor, but that’s the wrong question: why do we put up with that connection/digital redlining? An AI patent examiner that rejects/narrow claims based on race of inventor, that’s not inaccurate to past practice. It’s wrong in the sense of being immoral and [supposedly] socially unacceptable.

Machine bias may be the wrong question. Let’s deal with the bias in the system; it doesn’t matter whether it comes from a human or from an AI trained on the past practices of humans. But there are differences in practice: Illusion of objectivity; humans put too much faith in numbers, Donna Haraway’s “God trick” in which the human is no longer visible in the picture. E.g. overweighting of numerical evaluations. Algorithmic performativity: they enact what they assume and create their own social facts. The yearly ranking of law schools by USNWR. Wendy Chun suggests: we should use these systems as diagnostics. We don’t think a weather forecast is diagnostic or that it can be used to create better weather; we can use AIs to find out what our biases are.

Ann Bartow, University of New Hampshire Franklin Pierce School of Law

Ruth Bader Ginsburg’s Copyright Jurisprudence (with Ryan Vacca)

Strong copyright and liberal politics. As a DC Circuit judge and SCt Justice, she authored sixteen opinions in © cases, ten majority, four concurrences, two dissent, and joined 11 others, ten majority, five of which were unanimous, and one concurrance. Mostly owner-favorable and Goliath over David, which may seem surprising. Five opinions favor authors: Tasini, Eldred, Golan, Reid (WFH), and arguably Muchnick, the followup to Tasini. Many were in favor of owners: Petrella, Nat’l Cable TV Ass’n v. Copyright Royalty Tribunal, Atari v. Oman (2x). Concurred in Grokster & Star Athletica; fiery dissent in Kirtsaeng. But did favor accused infringers sometimes: Fourth Estate v. & OddzOn v. Oman as well as concurring in Quality King. She joined Campbell, Fogerty v. Fantasy, Feltner, and several others.

Unpersuasive explanations: widely known love of opera and art (other Justices have those too); Jane Ginsburg’s uncontested expertise (Ginsburg fille isn’t particularly highly cited by Ginsburg J. and Breyer cited her against a Ginsburg opinion).

Better: Incrementalism—if judges reach unnecessary issues, this creates instability/undue stress on judiciary. Evident in gender equality work and critique of reproductive rights litigation based on lack of incrementalism. Intergovernmental deference: evolution/interpretation of law shouldn’t be diatribe against Congress, President, admin agencies, or states, but as dialogue. Courts have instiuttional capacity constraints and must do this to be effective. Lily Ledbetter Fair Pay Act after loss at Scotus; Petrella opinion recounts back and forth with Congress and courts. Atari v. Oman: Sent it back to Office twice and told them to look at Feist.

Eldred and institutional capacity: worried about whether the courts were the right institutions to decide duration. How does Breyer know his economic analysis is right? [Framed as “where is his economics degree from? And Lemley in chat says “Oxford.”]

Some divergence in © jurisprudence: seemed to favor alternative remedies in ©--In Tasini, suggested court shouldn’t issue injunction preventing inclusion of the disputed articles, but instead compulsory licenses/consent decrees. She was much more skeptical of alternative remedies, like a lesser military school for women instead of VMI, for gender discrimination.

Ryan Vacca: responding to chat point that citing Jane Ginsburg isn’t a great proxy for being influenced by her, and they acknowledge this.

Dalindyebo Shabalala, University of Dayton School of Law

Solomon Linda, Traditional Knowledge Pirate? Mbube, “The Lion Sleeps Tonight” and Traditional Knowledge

Challenging the originality of Linda’s work as potential cultural threat. The story: popularized in the 1950s including by Pete Seeger from a pop music record in South Africa. That song, story goes, was composed by Solomon Linda, who died penniless while millions were made. 2000 article resurrected the story of misappropriation and injustice; led to a suit against Disney. Settlement elided the basic question of who really created it. He argues it should be tested in court because it’s a key issue in TK: What happens when a traditional piece of music gets translated, derived from, built on, recorded, and moved into the © system? The classic TK story is an outsider coming in and taking it into the © system. Story of Linda is, he suggests, a much more traditional trajectory: an insider who traverses the boundary of the community to the outside and acts as the translator, then lays claim themself to the TK. Musicologically the origin story is more complicated, and the question of what rights insiders should get is much more complicated than misappropriation by record companies.

Linda was an originator of a style. Urban music/dance, built on tradition of rural Zulu style. He took a wedding song sung by village girls. Developed in a sharing/building/borrowing culture. How should that affect what we think the world owes Linda? Community rules may continue to bind insiders when they try to exploit works outside those communities. We should not think of this as a new problem. © has always been bound up with nationalism. The problem to be solved was misappropriation across borders. The problem for traditional communities is very much the same. Should think about solutions for insiders who flee.

Bita Amani, Queen’s University Faculty of Law

Law, Race, and Alchemy: Exclusion(s), Existential Crises, and the Transformative Possibilities of Intellectual Properties

Operationalizing privilege through law presented as formally equal. Curricula/cultural materials are an important part of naturalizing privilege. “Exclusivity” of rights: IPRs are part of broader colonial legal regimes, so why would we expect anything other than disparate impact in rights acquisition and enforcement? Authorship in fact v. authorship in law is gendered/raced; work v. play distinction means some of us are disenfranchised from labor/means of production while others become owners.

Carys Craig, Osgoode Hall Law School, York University (with Anupriya Dhonchak)

A Feminist Theory of Moral Rights: Creative Agency and Voices from the Margin

Not surprising that feminism would have something to say about a right conceived of as intensely personal. Dichotomies: public/personal; economic/moral; rational/emotional; masculine/feminized; valued/devalued: so moral rights are the feminized Other. Personhood rationales have therefore tried to masculinize/propertize the justifications. The image of the artist is that of the solitary male genius, individualized author. Hegel, proponent of moral rights, held that women were not capable of art. Kant likewise thought that knowledge unfitted women for their places. Not clear why a feminist would start from Kant and Hegel! Moral rights rhetoric is also filled with references to paternity; patriarchal metaphors of birth without women, right to control offspring. We need a better ontology of authorship.

A feminist relational theory of authorship locates creativity in cultural situations and social relationsh; creative capacity is enabled by relational web. Relational autonomy, capacity to make meaning is the foundation of authorial rights. Authorship as dialogue/relationships of communication. Every text is multivocal; for feminists, this invites exploration and activating of the unvoiced, exiled world of women (Mary O’Connor).

Could say that integrity right ensures dialogue is a real one, but we think that clings to the romantic idea of there being a single meaning bestowed on work by author, and dialogism refutes that at the core. Risk of weaponizing moral rights against those who critique the dominant culture. Integrity right misundersands relationship b/t author, text and public in way that casts disruptive dialogic engagement as moral and legal wrong; not consistent w/feminist politics of confrontation, resistance, and social reform. Example: Fearless Girl attacked as violation of moral rights of bull sculpture’s sculptor.

But: attribution right deserves attention through feminist lens. Tracing who is speaking, from where, on behalf of whom can be about feminism and authorship. De-Kanting acknowledgement: Kant thinks that the harm is compelled speech, but feminist theory is that the harm is the silencing, the refusal to acknowledge that someone has spoken. The power to make knowledge claims v. the people who have been erased from/made invisible in our narratives. Attribution is a call against erasure.

Caveat: it doesn’t follow that © is the right space to achieve political goal of amplifying marginal voices given the bluntness of legal tools and power needed to wield them. Empowering communities of practice is the goal. Moral rights don’t occupy a moral high ground; they’re based on the same patterns of exclusion and control as ©, but can benefit from feminist reeimagining.

Moderator: J. Glynn Lunney, Texas A&M University School of Law

Lemley: AI does expose some fundamental contradictions in what we think of as inequality: a broader problem of how we measure equality and how we want to balance procedure and substance. Making that explicit can be useful.

For Bartow: Don’t shy away from the harm she did in throwing out Sony in her Grokster concurrence, Petrella and its authorization of a wave of © lawsuits forever, etc. There are interesting agency/courts/etc. metrics to all of these, it is still worth noting that she ends up on the side of the © owner and he doesn’t think that’s a coincidence.

Burk: all human tech may be prosthetic: cars are feet prosthetics; AIs may be cognitive prosthetics, but bring all human baggage. Amplifying and disclosing may be the useful parts—using them as diagnostics to figure out where we’ve been screwing up. But they are our messes to solve.

Bartow: yes, and that’s painful about this project.

Betsy Rosenblatt: For Shabalala: Norms are good at governing in communities, but they are really bad at governing outside of communities. Natural takeaway might not be that everyone owns TK but that no one does, but that may be imposing a norm on the group from outside. Maybe that’s exactly where we need laws (when it moves outside the community) but then whose rules should we adopt as the law?

Shabalala: This is the key part of the project. The premise has to be cultural sovereignty: the only communities with a strong claim have to build on a preexisting political sovereignty, b/c the right to regulate citizens’ lives is built on sovereignty. Rosenblatt says that’s a very American way of looking at sovereignty, but Shabalala responds that African nations have wholeheartedly adopted it, although there are sub-sovereign, sub-metropolitan communities that are clearly left out of this formulation, and that is a real problem. Reaching outside the community is required to regulate exploitation, but TK may not be the answer.

Amani: Note that in the US the definition of an Indian comes from the federal government; the problem is complementarity of structural inequality that is imposed.

RT: for Craig: Is this a right/interest of the author or a right/interest of the audience? Consider anonymity; women writing as men; whites writing as natives.

Craig: it’s about relationships, with text as vehicle for dialogic engagement. Ideally we’d know who is speaking, but wouldn’t insist upon removing anonymity. Risk of silencing voices with removal of anonymity matters. [RT: we valorize some kinds of contestation, but there are situations where the speaker treats the audience as marks to be exploited—good to think about those situations when conceptualizing moral rights.]

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