WIPIP, SESSION 2.B. — Copyrights

Cathay Smith, University of Montana Blewett School of Law

Weaponizing Copyright

Pure suppression: Dr. Drew’s minimization of Covid; YouTubers compiled these clips and he sent takedown notices. Lawyer asserted © over text messages to ex partner when they were published on a blog by the ex partner to substantiate that she experienced abuse. Netflix v. negative tweets of those who shared the trailer of its controversial film Cuties (but only negative tweets). Religious © assertion to control doctrine. Suppressing criticism, but not necessarily suppressing content. Finally, punitive assertions: Hustler v. Moral Majority; Campos Santos v. Pewdiepie where a game studio asserted © against Pewdiepie b/c of his racist comments in livestreams of another game. Sony v Cohen: Sony says an artist who’s trying to terminate transfers can’t use album artwork in advertising his work. And another potential candidate: moral rights/no econ interest: Pepe the Frog v. Alt-Right, Greenblatt v. McCloskey (the St. Louis gun couple who used photo of them); musicians v. Trump, Success Kid’s mom v. Steve King; Anish Kapoor v. NRA (for using Chicago’s Bean). To preserve privacy? Much scholarship on this—Hill v. Public Advocate (engagement photos used in anti-gay political ad); revenge porn; Monge v. Maya/secret wedding photos.

Copyright is asserted for personal interests, not market exclusivity/economic interests in the work. “Weaponizing” can be good or bad—a weapon can be in the hand of an aggressor or in the hands of powerless/traditionally defenseless. But there are also abusive uses of © that seem weaponized for economic purposes: anticompetive uses, abusive overclaims. Those are excluded from her definition because they’re ultimately financially driven and have money/market objectives.

Why ©? It’s better than other causes of action which are limited by 1A and §230.

Blurry lines/overlapping objectives—erase information/bury facts, suppress speech/criticism, punish/retaliate, protect dignity/reputation/against tarnishment, preserve privacy—but the lines are blurred and overlapping. Greenblatt says it’s not about the money when he asserts rights against the gun toting couple, but is this about dignity, or retaliation when they’re smugly handing out greeting cards with them pointing guns, or punishing speech, or money, or all of these things? Hard to find a line within © that will allow her to distinguish revenge porn victims from Harvey Weinstein for purposes of identifying abusive claims.

Lemley: maybe this is more about how © has infiltrated our lives so that we all exist in a field of uses and infringements—society couldn’t exist if we stopped all that but it means there’s an ability to invoke the rule “you’re all violating the law all the time” in order to achieve non © goals. One way to deal with that is at the back end—weeding out bad uses—but maybe this is more about the overall problem that too many things are ©able and too many things are infringing.

Guy Rub: reminds him of Wendy Gordon’s anti dissemination motives from the 1980s—sounds like manybe all of these would be washed away by fair use.

Andrew Gilden: Note that trespass law is weaponized all the time—who has the ability to get the cops to come harass their neighbors? What’s the comparative power dynamic in ©? Is it more egalitarian?

Yvette Liebesman: the McCloskeys are suing Redbubble, the photographer, and others for trespass, violation of publicity rights—for the same images that they used to become famous. They are trying to get awarded the ©.

Jake Linford: is there a way to structure this to allow punching up but not punching down? Compare attractiveness of Simon Tam’s claim v. that of the Washington football team. May be difficult to do.

Annemarie Bridy: Google sees a ton of DMCA abuse. Intermediaries can sometimes step in where legislatures are paralyzed, though laws against nonconsensual porn are now coming in. Now when we get a DMCA complaint, we don’t take them down for © reasons but for violation of the policy against nonconsensual images. A way to keep © more in its lane.

Xiyin Tang, UCLA School of Law

The Privatization of Copyright’s Public Law

Subtle but profound shift: shifting public-facing principles to require/defer to private agreements. The old strategy: extending © by statute: in the 90s, term extension, foreign works, anticircumvention, adding subject matter. The new: contract around the statutory limits. Or get the statute to change—the revision of music license ratesetting by wiping out public interest/access considerations to be replaced by “willing buyer/willing seller.” Contracting out of first sale by framing functional sales as licenses.

Although misuse isn’t new, the fact that it hasn’t much revived in response to these changes shows something about deference to private markets. Contracted to more antitrust-like situations. But misuse is important when, say, © owners create tuggable blanket licenses that allow them to remove any uses to which they object—super-moral rights. And while Art. 17 requires a complaint/redress mechanism for material that is used lawfully in criticism, review, pastiche, it doesn’t say anything about penalties for wrongful blocking. They could just send multiple takedowns.

Lemley: what do we do about Content ID? The cops playing music to prevent records of their behavior being shared are doing a bad thing. Neither side should be able to demand perfection or the platform will have to pay statutory damages.

Tang: statutory damages could be a sliding scale—an AI that messed up could mean a few hundred in statutory damages. There is a deterrent effect.

Andrew Gilden, Willamette University College of Law

Capacity and Copyright

AI and © discussion hasn’t discussed mental capacity at all. Creative spark is required, but there is no additional threshold of capacity. Example: Ron Swanson’s will, which he wrote when he was 8: it would not likely be probated, but is almost certainly ©able. Children can’t execute a will, but they can create. But note that both © and trusts/estates are supposed to structure rights for heirs. If the dominant theory of © is that authors are rational actors, that’s difficult to reconcile with not having a capacity requirement.

Capacity requirement protects individuals from exploitation; the concerns are also present w/authors but not in expected ways. Authors who lack ability to contract can be highly vulnerable to family members—example of Britney Spears who can produce highly valued IP but is not allowed to control any of it. If she were unable to author works during incapacity, perhaps there’d be more incentives to work to restore her capacity. Parents’ decisions to commodify children might be questionable.

However, capacity doctrines are discriminatory in application. Burden people w/disabilities; insane delusion doctrine is applied to invalidate people w/marginalized beliefs (such as a donation to the National Women’s Party rejected for neurotic degree of feminism).

Also, perhaps capacity is in tension with ©--the cultural association b/t creativity and madness is a long one.

What would a capacity requirement look like? Author should have a general awareness of context in which they are creating; ability to deliberate about creative process; voluntarily participates in fixation; be able to connect these elements in a coherent plan. Perhaps an age limit, though not sure what that would be.

Victoria Schwartz: © is about acquiring rights rather than giving them away. Assignments/WFH agreements seem better candidates for capacity requirements/analogies to wills.

Gilden: Agrees that giving rights away is an issue, but also interested in why we give people © in the first place if they lack capacity.

Zvi Rosen: Coverture and ©. (I couldn’t find a book by that name but this looks interesting.) Where would the © go with a capacity requirement: would it dissolve? Or go to someone else?

Rebecca Curtin: note that the capacity to marry is lower threshold.

Gilden: what’s closer to the core of autonomy/human choice? Interesting question.

Sean O’Connor, George Mason University, Antonin Scalia Law School

Copyright, Science, and Federalism

Part of “Means of Innovation” project—trying to expand our interpretation of the IP clause by showing how French philosophes were thinking about it. Uncovering meanings of words before late 1800s that have very different meanings today. Takes seriously that you look at writings, authors, science v. discoveries, inventors, useful arts in the Clause. Art is the way we do something in the world; science is the way we step back as an observer and systematize. Title confusion: is this just a historical paper?

Covid brought new attention to ©’s role in science, not just artistic expression. Premise: of standard IP justifications, no one has won out. We have no real sense of © because of shift from protecting substantive scientific expression to protecting artistic content.

Deep purpose of ©: to get things out of manuscript and get them into circulation, even before the printing press. Publishing as a concept goes back to Greco-Roman times: to make public statements. Censorship was secondary; the idea was to control all fields through guilds, and printing was thus a guild occupation. But the Enlightenment sought public availability v. private hoarding of knowledge, especially among guilds. Desire: codify knowledge in text and plates and put out there for all to access and learn from. Statute of Anne flows from that background. Important that Statute of Anne provides for library deposit. Notably, music was confirmed as statutory subject matter on its basis as a science not an art: Bach v. Longman, 1777; judge expressly compares mathematical and scientific notation to musical notation and says former is ©able so latter is too. That’s why there’s no performance right. Musical notation is a mode of analysis.

IP clause: in that reading, creative or fine arts appear intentionally left out. Probably because that was all that was needed for national economy/defense. An argument in favor of saying that the Constitution only provided limited powers. Framers aren’t against © for fine arts, but they were leaving it to the states. Unprotected subject matter like pre 72 sound recordings were in fact protected under state law.

Confirmed by 1790 Copyright Act limited to maps, books, and charts. Argues that we allowed new subject matter for sheet music—added again in science mode—and engravings, because engraved plates are key for scientific publications such as encyclopedias and Grey’s Anatomy, as well as official documents like stock and currency. Thus, in early 1800s, expansion of © is still for knowledge, not pure creativity.

It’s at the end of the 1800s that art and science start to shift, and art shifts to meaning fine/decorative/creative arts, not just artifice/manipulation of environment for functional purpose, while science gets narrowed from generalizable knowledge to more tech-focus. We’re losing our mooring. Nothing changed in the Constitution but the subject matter expanded without coherence.

So what? If we’re not going to roll back subject matter, and he’s not advocating that, then what do we do about the expansion exceeding Congress’s constitutional authority? Maybe we just give up on the IP clause as a constraint. Or do we try to revise it? That’s probably infeasible. We just don’t have a coherent account, and until we do we will be in a muddle. Even more practically, if the protection is for creative works, then utilitarian justification only probably does not work. Attribution/integrity would have to be brought in.

Tyler Ochoa: Malla Pollack’s article on meaning of progress as dissemination is relevant/consistent. But on federalism: the Federalist Papers say that states can’t do this effectively, and he’s seen nothing making that distinction b/t creative arts and scientific knowledge—might just drag creative arts incidentally along with it. 1802 protection for prints is only a few years after the first © Act, but nothing in the Act says it’s limited to scientific purposes even if that’s the core motivation.

Derek Miller: The Stationers/publishers are the other piece: the authorial right arises out of opposition to the publishers, and your account seems to leave them out. The Bach case is about what’s a “writing.”

A: read the case again—he reads it as being a scientific writing.

Zvi Rosen: Ruth Shaw Leonard wrote a great dissertation in the 1930s where she went through every registered Mass. ©, worth looking at.

A: Agrees that by the end of the 1800s it’s all fine arts, but that’s the problem.

Rosen: to what extent is that about constitutional interpretation?

A: Commentator at the time notes the shift in use of the term: useful arts have become “technology,” and so they just ignore the word “useful” and say the clause protects “arts and sciences.”

Peter Karol: Q about role of religion. So many engravings were religious.

A: theology would be the related science. Even if I’m right, there’s so much stuff that seems to be conveying wisdom/systematic knowledge of environment. If you’re conveying substantive knowledge about the religion, then it’s part of “science.” So the fundamental difficulty is: when does it cross the line from knowledge to entertainment?

Tang: what did the Framers think the relationship b/t © and patent was? What work was © doing that patent wasn’t already doing in this framing?

A: patents were still evolving at the time especially in terms of what disclosure was required. Instructive that they don’t use those terms, patent and ©, because they didn’t necessarily want to adopt the European versions. But the paradigmatic way of scientific dissemination at the time was treatises—think of Euclid etc.

Christine Farley: Invention of photography as changing how we think of fine art: as representational and therefore a way to disseminate knowledge.

A: you keep getting these dual use media where you can do both; even the Greek plays were about teaching morality. The original system keeps breaking down—the Enlightenment dream is about identifying knowledge, but much creative expression conveys important info.

Graham Reynolds, Peter A. Allard School of Law, University of British Columbia

Copyright as (Progressive) Property

Critique of IP as property: protects the power of the already rich & powerful, especially people who are white/male/from the global North. So could replacing the property concept make © more equitable?

Frequent references to © as property in courts, legislatures, constitutions around the world complicate this effort. Building on literature by exploring progressive property theory as a response: PPT recognizes that common conception of property as protection of individual control over specific resources is legally influential and intuitively powerful. But inevitable impact of one person’s property on others make it inadequate. Have to look at underlying human values and social relations. That can help © theory, and it can also help PPT—which may need more attention to acquisition of rights and redistribution, both of which © theory has explored. We can also look into the back catalog of property theory more generally to find more useful building blocks.

Lemley: Understands the desire to make the best of a bad situation, but fears it’s still a rigged game. Adoption of property rhetoric has not led us either in IP or in property law to progressive policies; the instinctual/easy sell of “absolute despotic dominion” is powerful. What to do about that? Maybe not talk so much about extending PPT from real property but more about how we differentiate types of property.

Rub: the problem isn’t property per se, but what people think property means! Let’s assume we can change people’s minds: does it solve the problem that both “good” and “bad” people use © to further their interests?

A: might help in certain ways around how we define reproduction; fair dealing/fair use; but not a total reconceptualization.

Tang: Note that © owners move away from property when it helps them: characterizing sales as licenses, which doesn’t work in real property; characterizing works as their “children” where it would no longer be acceptable to say you own your actual children.

Carys Craig: Canadian SCt case accepting notion of © as property was a throwaway sentence without debate; we do have to deal with it strategically but may not need to be resigned to it. It’s not property that’s the problem but rhetoric and imagination.

Bita Amani: Unjust enrichment as another relevant concept—uses and abuses.

RT: Another variant of the worry expressed by some of the comments: At least some defenders of expansive exclusive rights are presenting © as already progressive: CO educational materials trying to get students to think of themselves as creators and therefore to refrain from what we call copying, or infringement (compare to the quote from a progressive economist as reported by John Maynard Keynes: “[w]hen he was asked if he favored private property, Montgomery replied, ‘I do—so strongly that I want everyone in Texas to have some.”’); claims that © is a way for members of marginalized groups to build wealth without starting with other social capital.