Wednesday, August 04, 2021

IPSC: Copyright & Trademark

Panel 2 Copyright Enforcement:

Faye Fangfei Wang, Resolving Copyright-related Cases Over the Internet with the Assistance of Artificial  Intelligence in Europe

Automated notice and takedown/Content ID with appeal mechanism as an example of how the new European rules are supposed to work. Automated mechanisms are supposed to be used for identification but not legal assessment. Conflict over whether this is a general monitoring obligation. Proposed Artificial Intelligence Act requires assessment of AI to ensure that it doesn’t distort behavior or cause physical or psychological harm: this interacts with the © regime. Identifying audio/video is a challenging task where there are changes in speed, background noise, etc. Use as part of a lecture, video game being played, etc. Risk assessment/risk scale should be part of the integration—degree of confidence in detection should matter to treatment.

Cathay Smith: Do you foresee a point in time at which an AI might be able to make a fair use/fair dealing decision in the moment? Consider example of police officers playing music to deter online posting of video of their actions—exploiting the automated systems.

A: not ready yet. But fair use/dealing typically involves reproduction of a limited portion, and AI could calculate portion. This may be one factor. Identifying reason for reproduction may be far harder for an AI—commentary or just attractiveness.

RT: “Limited portion” is more true with video and songs, less true with photography. The European regime doesn’t seem to have given any thought to how this will work with photography; does AI make distinctions? Also interested in reactions to German implementation proposals which seem to have some thresholds attached, not just sliding scale.

A: Content ID is video and audio; AI may be able to match pictures.

Elizabeth Townsend Gard, Creativity in the Shadow of the Case Act

Podcast for creators focused on quilting and copyright; online copyright camp for creators, mostly women—educating creators on nuances is empowering and they spread the world. Disrupted by CASE Act. Reviewing the comments on CASE Act: the comments were focused on procedure. EFF doesn’t want fair use cases in the system; MPAA does. Comments demand ease and accessibility but the discovery rules are insanely complex, which is a concern. There is fear and threats surrounding opting out on both sides. Librarians are threatening people: you might have bigger fees; some tell patrons not to opt out. Should there be public lists of institutions that plan to opt out so that people don’t waste the fees on filing? There’s no conversation about creativity. CASE Act is detracting from education about the fundamental principles of copyright.

In comments: Songwriters say that they can’t afford to file cases if there will be opt-outs, despite their activism in pushing for CASE in the first place. Science Fiction authors: won’t be useful for SWFA. The creators themselves are saying it’s not for them. Big corporations say they’ll opt out; libraries the same. Then who is this for?

How do you separate TM and ©? The disputes often overlap. The CASE Act doesn’t seem to help.

RT: Who is it for? I think it’s for photographers. I wonder what it would be like if it had been written just for photographic works.

A: Is hearing other creators say “it’s my time for revenge!” and also people worried about liability so they may not opt out. It’s the uncertainty that is so difficult.

Dmitry Karshtedt: Overlap with constitutional issues in patent: resolution of claims in administrative proceeding. The policy issues you raise are different but perhaps there’s an interaction with the constitutional issues.

A: The comments raise the constitutional issues. It wasn’t really fully baked when it passed and the fact it went through Dec. 20 as part of the Covid package created problems. Putting David Carson, with a track record with the Office, in charge suggests they really want it to work, but it’s still half-baked in terms of implementation details.

Dmitry Karshtedt and Sean Pager, Volition and Intent in the Law of Direct Copyright Infringement

Patent and © treat these areas very differently. Advent of new tech changed focus from direct to indirect, and back to direct again. Congress amended the statute to ensure that retransmissions of cable would be public performance; then the issues shifted to copying. Netcom raised the problem of volition for copying for online servers. Aereo brought direct infringement back into focus where Netcom had seemed to settle the issue; put pressure on the line between direct and indirect liability. Netcom said that volition was lacking when the user was the one who made the copy and the service was a passive conduit and could not be directly liable though indirect liability was possible in theory; it was almost a moral distinction. Aereo complicates that. Cable-likeness established its direct liability. It’s unclear if there’s a direct infringer, which matters because there can’t be indirect liability without someone else directly liable. Loosely similar to divided infringement in patent law where no one person infringes but their conduct together does.

Confusion: 9th Circuit thinks that volition is still an element; SDNY courts have held in the embedding context that volition is not an element after Aereo and embedding can be infringing display.

Scalia’s dissent was focused on Aereo’s lack of curation, but they don’t think that matters. Indirect liability depends on the associated circumstances. If you set up a webcam in a coffee shop, and someone happens to sing a song that gets transmitted, you are responsible for the resulting public performance even if you lack knowledge that it happened. Thus, even if the majority’s cable-likeness test is unsatisfying, Aereo’s setup was directly responsible for the public performance, which justifies liability in this case. Cablevision has a much more elegant analysis: asks whether contribution to creation of infringing copy is so great that it warrants direct liability even though another party has made the copy. For Aereo, only the tech entity is responsible for the public performance. Both majority and dissent in Aereo agree that on-demand providers perform. SDNY opinion on display gets to the same result through proximate causation, which they don’t think is right—causal responsibility is different.

The way forward: a causal responsibility approach to direct liability. Rooted in moral philosophy, criminal/tort law about innocent instrumentalities.

Aereo doesn’t have a purely passive role; functions automatically at behest of user. Aereo could be said to be supplying a product, but Aereo has the ability to control. Simplistic to say that only button-pusher can be a direct infringer. Did the defendant play a substantial enough role in the user’s acts to become causally responsible? Did defendant control the circumstances in which the user performed the acts in question? Aereo transmit content on demand, and the user triggers that by pushing a button. In the aggregate, this is infringing public performance because Aereo is causally responsible.

So we think that public display SDNY results are correct because D are causally responsible. But Usenet simply provides access, which is not enough for causal responsibility, so 9th Cir. Giganews can be right too (Perfect 10?).

Matt Sag: intent?

A: intent exists as an element but not w/r/t specific works, just general intent that there will be a performance. If your whole service is designed so that content can be transmitted to people, then hard to deny knowledge that it will get transmitted. [That sounds a lot like indirect liability to me. The underlying idea is that all or most of what gets transmitted will infringe, and that’s a standard indirect question.]

RT: (1) Perfect 10? (2) Haven’t you just shoved the Aereo question into the phrase “in the aggregate” because the right is public performance, not performance, so we have to decide what counts as a performance to the public, so that you’re assuming the conclusion? Compare Dropbox which happens to back up multiple copies of The Big Lebowski, each downloaded by a different iTunes user that has legitimately paid to do so?

A: it’s a different kind of intent. In the public performance cases you do have to answer the aggregate question, which goes back to the transmit clause which defines public as including different places and different times. The mens rea is not whether the underlying work is ©d but whether a performance will occur. [What distinguishes that from a copy shop?]

A: the copy shop has set up technology that allows the user to make a copy, who is causally responsible. But the webcam creates a transmission that would otherwise not exist.

Bruce Boyden: proportion of infringing uses can’t be the distinction; even if it’s substantially certain that infringement will occur, you can’t be sure which or when. It has to be about whether the overall purpose is ok. The purpose of the copy shop is to allow copying of things, some of which will infringe; the purpose of Aereo is to retransmit network signals, where it’s not a matter of uncertainty about what will be retransmitted.

A: important to consider equities between user and technological provider. The user in the copy shop has to take a book to the copy shop and make a choice about what to copy, whereas the user of Aereo will not be liable on their own because they aren’t making a public performance. [This seems to assume the conclusion: there must be liability for one party, as opposed to the conduct being legal in its entirety.] Maybe we’re going back to Breyer’s functional analysis, but for cases like Polyvore it may provide a more satisfying analysis.

Sag: is this principle or policy?

A: trying to start from first principles. The waiter who delivers the poison is less causally responsible than the person who creates the poisonous drink. [I think this embeds the conclusion of whether there was poison in the drink in the analysis of who is responsible for delivering the poison. If it’s not public performance/display, then it’s just a drink, not a poisonous drink.] Being a button pusher is not the sine qua non of liability, though maybe indirect liability gets to the question easier.


Mark A. Lemley and Mark P. McKenna, Trademark Spaces

There is a space on a product where TMs go—on the back of a computer in the center, as a logo on clothing. But others are harder. Stitching on pockets? Sometimes hard to tell whether something is a design or a brand. Seabrook Farms: design elements around a name/logo are not marks. By contrast, Georgi vodka case says that a big O can count as a TM and may be inherently distinctive even though it circles a logo; maybe it’s part of the logo itself. Other packaging elements can serve as middle elements, like color on packaging/multiple colors on packaging. Finally, Tom Lee’s fabulous empirical studies: when you put something in the “TM space” on a box of cookies, many people will perceive it as a TM even with a generic term.

Courts and the TTAB are evaluating branding at step zero for both products and packaging, without taking evidence, often without knowing they’re doing it, based largely on intuitive sense of whether consumers are likely to view an image as serving a tm function. Much of that intuition stems from TM spaces. TM owners can create new spaces, conditioning user response, but doing so requires more than secondary meaning for one mark—Louboutin’s red soles don’t mean that any color sole automatically functions as a TM. TTAB and courts should make findings on TM spaces; we should require secondary meaning as a default outside an established TM space. Even if you are in a TM space, you still need to show distinctiveness. Cts/TTAB should make broader findings about whether a space is a TM space generally. W/understanding of inherent distinctiveness as a place, makes it easier to require secondary meaning as a default in places outside the TM spaces. But putting generic word in TM space shouldn’t generate ownership of that generic word. If in a TM space, do normal Two Pesos analysis; if not in a TM space, secondary meaning required regardless of whether inherent distinctiveness might be possible in another space.

Linford: what do you do about the fact that TM owners are now willing to slap logos everywhere, e.g. on race cars. [I will note that’s not everywhere generally; it is everywhere on race cars, and that might matter! Betsy Rosenblatt has a similar response: that may ID what is actually an ad space not an ordinary product, and racecars and sports jerseys are now equivalent to billboards]

McKenna: some TMs may only work as marks because their placement is rare. [tragedy of the commons!]

Jeanne Fromer: Brunetti’s lawyer had a discussion of collar marks.

Lemley: Lululemon registration case is a really interesting example: moving a logo outside of a Tm space so it looks like a stylized thing on a jacket may not move the meaning.

RT: (1) Booking may make your recommendations of limits (when FUDGE COVERED COOKIES is in the TM space it’s still generic) impossible because restrictions will always be on scope of rights not existence of the mark in the first place. (2) Interaction with Grace McLaughlin’s article on marks in the TM space that fail to function nonetheless. (3) Descriptiveness refusals in ITU cases— Eastman Kodak v. Bell & Howell versus the 1/64th Mattel case—provide useful analysis.

Lemley: on (1), yeah that’s a problem; maybe everything is malleable and TM is whatever you say loudly enough is a mark. 

Jennifer E. Rothman, Navigating the Identity Thicket: Trademark's Lost Theory of Personality, The Right of Publicity, and Preemption

The interface b/t TM and ROP is a mess—Joseph Abboud case isn’t just a fair use case; court avoids the question of whether he could transfer his ROP by holding he didn’t, and the court found no false endorsement, but those questions don’t go away b/c one court dodges them. People are starting to claim these kinds of things more commonly. Not always owned by same P—high profile cases involving chefs who purportedly transferred both TM and ROP to another and then transferee claims that they can’t use their own names on their own restaurants. Happened with a wood-fired pellet company too.

Hubert Hansen IP Trust v. Coca-Cola led to $10 million jury award, more than what Michael Jordan got; CC owned Hansen’s Soda founded by Hubert Hansen (d. 1951 when postmortem rights didn’t exist). Grandkids sued for ROP violation.  Even assuming that Hansen’s family succeeded to postmortem rights, how to reconcile that with CC’s ownership of the TMs? CC’s ability to use photos of him, references to his life story? If CC owns all the IP except the ROP, what does that mean for the successors? Can they start their own juice business and use his name in advertising?

Conflict preemption as a possibility. Claim: federal TM has as one objective protecting autonomy-based and dignity-based personality interests, along with the others that are more commonly referenced. (1) Natural/sacred right to one’s name; (2) limits on using another person’s identity; (3) limits on transferability of personal marks; (4) limits on abandonment. These doctrines are largely intact from the 1800s even if we have forgotten why they exist.

Implications: we should further restrict alienability of personal marks (distinguish de jure and de facto marks—can’t always separate identity from person—Ford Motor Co.—we might initially have thought Ford integral to the corporation, but now we know it’s distinct); we should continue robust latitude to use one’s own name/identity after transfers of marks; shores up TM’s negative spaces by permitting confusion when we tell the truth/provide information about self; and finally explains TM’s expansionist impulses and provides a means of limiting them when only corporations and not natural persons are involved.

Implications: Hansen: CC has the rights to do what it did, but Hansen heirs have rights to use name in juice though maybe not as marks.

Abboud: if didn’t transfer ROP, has a lot of flexibility to do what he wants.

Two bad options: ROP swallows up TM to become mutant TM law, or if we don’t have that, we have TM law that vastly overlooks and shuts down legitimate personality-based interests often asserted as ROP but also are adequately protected under TM properly understood.

McKenna: historically names wouldn’t have been (technical) TMs; this would have been unfair competition law. Limits on the remedies in these cases would have been true in any unfair competition case. All of unfair competition got assimilated into TM; all the remedial modesty went away. Is there anything special about names or is it just a consequence of the collapse of all unfair competition law into TM? It’s fine to say that names should be pulled back out for specific reasons, but why it happened may matter.

A: paper covers differences in context of personal marks.

Victoria Schwartz: Negative v. positive rights: ability to tell one’s own story versus the ability to block others from telling a related story—may deserve different treatment. Name versus other aspects of identity may also change the analysis. Could CC really tell Hansen’s life story in its ads? Is that the same as using his name?

RT: consider literature on ideological drift/preservation through transformation—right now you seem to be resting a lot on “we used to do it this way.” But it would be actively shocking if 1800s judges understood how celebrity and market dynamics worked now. These doctrines crumbled at the edges for reasons that seemed good to their proponents; I think you should confront more directly that it’s not obvious why 1800s cases would be right now.

A: Thinks there is a normative case for separating out personality interests and will defend that directly.

Felix Wu: names v. other things?

A: interesting changes in this over time/different cases—signature/likeness may not transfer with transfer of name because more connected to moral interests.

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