Copyright’s Higher Pleasures
David A. Simon and Patrick Goold
Refining © utilitarianism in the vein of John Stuart Mill so
it wouldn’t be fit for swine. Qualitative hedonism. Critiques of utilitarianism
can be normative: IP can/should be shaped to foster attractive culture, etc.
Epistemological: Although utilitarianism sounds nice, it’s difficult to
calculate and the complexity makes it difficult/impossible to get real answers
about law. Interpretive: Progress clause has been misunderstood to focus on
quantity not quality.
Mill distinguished between higher and lower pleasures. This
gives room for values; preference-based evaluation is likely to include values
we care about, like democracy. Probably can’t know whether copyright is
empirically justified, we can still study copyright empirically and understand
how it will be difficult.
Zahr Said: Great inquiry, but consider who you’re citing
discussing critiques: 7 out of 8 men, two people of color by her count. The
field especially in the critiques of L&E is far more diverse—Madhavi Sunder,
Maggie Chon, Betsy Rosenblatt, Ruth Okediji, Anjali Vats, Mala Chatterjee, Shubha
Ghosh, RT, others—why aren’t those others represented?
A: we’re trying to look at people who have directly engaged
with utilitarianism directly. [Sunder’s book does extensively.]
Rosenblatt: Hierarchy of pleasures might increase distributional
problems by heightening discrimination against the subaltern. That doesn’t mean
it’s not productive. But you have to contend with/explain why you think this
isn’t an approach that further marginalizes those with nonhegemonic
preferences.
A: primary criticism leveled against Mills is elitism; we
think we have ways to grapple with it.
Chatterjee: There are non elitist critiques about how to
evaluate pleasures and compare them in intensity as well as quality; suspicious
of those w/normative critiques of preference satisfaction will be satisfied
with a story that ties democracy/speech’s value to the fact that they’re
pleasurable any more than tying them to the claim that we prefer them b/c that’s
missing the point from their perspective: they matter as independent goods.
A: question is are you sneaking the value in through the
back door? Are the higher pleasures infinitely superior and always trump any
quantity of lower? Or are they a lot better? Or are they just different? We
will try to address those points.
The Macroeconomics of Intellectual Property
Eric E Johnson
Most of us think about microeconomics with L&E: supply
and demand curve, allocating production/consumption. Its goal is economic
efficiency. Macroeconomics is about, fundamentally, growth. Most scholarship in
L&E is about micro. Solow model of growth as function of three things:
labor, capital, and something else (innovation/change). At some point, growth
from capital investment plateaus, and further growth requires innovation. Your
fourth tractor may not do much given what you have to plow; your capital may
need to replace worn-out capital investments like bridges. The something else
may be called the effectiveness of labor or innovation.
Additional work: Overtaking principle: w/sufficient rapid
compound growth, economic inefficiency and even distributional justice is
rendered unimportant. Fertility: some innovations are fertile leading to more
innovations. Separation principle: separate fertile from infertile innovation; strong
IP should apply against producers/consumers, but weak IP should apply against
innovators.
His critique: (1) Implementation is implausible
(2) Compound growth assumption is
unjustified/contraindicated; innovation is not equal to dollars, and inequality
is a headwind aginst innovation)
(3) Argument is self defeating: the fertile innovation most
needing IP incentives is what most requires freedom from IP to allow further
innovation.
Macro should have precedent: Macro captures the key “progress.”
Stakes are very high at the macro level—future of humanity. Macro can make a
difference—e.g., software should be seen as enabling other sectors. Policy
default should be rebuttable presumption against IP for innovation, b/c
exclusive rights are sticky; can hurt progress. Prizes, awards, grants,
intrinsic incentives should be our first choices.
Rosenblatt: Is it possible to take a macro approach that is
also a social justice focused distributional approach?
A: We should first think macro, rather than assuming that
everything will take care of itself. It doesn’t assume away justice concerns. If
we think about economics, this is what we should do.
Anupam Chander: Can this be done at the proper level of
generality? Economics is useful when it makes predictions we can test. Are the
macro models testable or provable? For policy prescriptions like prizes, are we
looking at macro concepts to test them? Not sure.
A: Tries to address this in paper. Trying to be modest;
agree that economic approaches need a lot of rigor. Real world of policymaking
is that economic stuff is thrown around without that rigor. W/o acceding to
that, wants to reframe: if doing this, need to be thinking bigger picture and
not assuming that efficiency will take care of everything we need in society.
[RT: I’d look at Eric von Hippel’s work on innovation
wetlands: goes to both implausibility (there is not a distinction b/t consumers
and innovators) and inequality effects of what Johnson call separation—denigrates
people who are not seen as capable of producing new things even though in fact
that’s where new things often come from.]
Morality/Creation
Loyalties and Royalties
Sarah Polcz
Songwriters often share credit equally, even when
contributions are not equal; this is associated with higher quality and no
lower royalties. Being friends first is associated with more equal shares. Friendship
seems to be outweighing economic self-interest industry-wide.
In 1.2 million co-written songs, a significant percentage of
all registered with PROs, 63%, are split equally.
Music groups with gold records: of those that wrote own
songs, coded which split equally or favored the larger contributor. Equal splitting
was associated with more sales and more Grammy awards, even controlling for
other factors. Prior friendship was strongest predictor of equal split.
Experiment asked about fairness between songwriters with
prior relationship v. met through an ad. Friends preferred equal split.
Implications: courts could reinterpret control to mean
control over one’s contributions. Could look at Al-Muhammad dicta, where
control might not be important for words and music in song. Industry-specific rules
could be developed. Relation may be more important than self-interest in
predicting economic decisionmaking.
Their own explanations: explicitly disclaim prioritizing own
economic self-interest. I don’t want to win all by myself. I want to win all
together. I want everyone to be rich. It’s not a meritocracy.
Sometimes it’s not about words on page, but support that got
you there. Didn’t want to draw distinctions in ways that would be required to
allocate credit. Connections were more important—it’s our song, on our record.
The band is us. They wanted semi-permeable boundaries between themselves and
the band, and sharing credit is one way of doing that very concretely.
[“Against economic self-interest” compared to what? E.g., if
they weren’t friends they wouldn’t have a hit band. So is equal
splitting against economic self-interest? Isn’t it possible that unequal
splitting is against bands’ economic self-interest, or failing to keep
friends in the band is? How do we know that both arrangements—one with friends,
one with colleagues—aren’t efficient for their own situations [on basically
theory of the firm grounds]? Relatedly, how does that give us any insight into
situations that didn’t go well, like Al-muhammad, where there was no agreement
to give credit in the beginning?]
A: the point of comparison they had in mind was whether they’d
push for more credit for themselves—it’s their reference point, but the consequences
of proportional split are not certain.
Fagundes: instead of self-interest, you might distinguish wealth
maximization from welfare maximization; they are maximizing welfare in the
short term even if not wealth though they might also be maximizing wealth in
the long term if sharing equally makes for better creation.
Generalizing from music is difficult: the group identity of
a band may not exist for screenwriters who don’t feel themselves to be a unified
entity, or other collaborative works with dozens of people working on a film or
software.
A: agree it’s difficult to generalize, so could be a basis
for industry-specific rules. Songwriting is usually just two or three and that
may matter to the control rules.
Q: what if someone had been burned before? Did you hear from
people who had past disputes or problems?
A: didn’t analyze interview data through that lens, but
anecdotally they seemed to take each collaboration as they came and justified
whatever practice they were using in each situation.
Based on a True Story: Life Story Rights, Modularity, and
the Propertization of the Self
Dave Fagundes and Jorge Contreras
Inventing Anna: claims to be a true story except for the
parts that aren’t. Docudrama is a popular genre dating to the early 20th
century. Life story rights go for five or six figures, but the problem is that they
don’t exist: what he means is that there is no doctrine of intangible property
law that gives us private control over the facts that comprise the content of our
lives, as long as you don’t suggest endorsement or association, defame the
person, or disclose private facts. The small number of people who sue tend to
lose, including b/c it’s hard for well-known public figures to bring these
causes of action.
Why do Hollywood studios pay money to acquire rights that
don’t exist? Historical writing, trade publications, discussions w/lawyers in
Hollywood. Four functions: (1) Serve as grant (authorization), which has in
terrorem effects on subject—if you don’t like the proposed depiction, the
studio holds up the agreement and says “you signed it away.” (2) Include
waiver/covenant not to sue covering both plausible and implausible claims like ©.
This is still present with documentaries, which don’t involve life rights but
often do involve waivers. (3) Bargaining for amenities—cooperation, details, access
to materials like photos or diaries, or leaving the production alone/nondisparagement.
In 2012, Equinox released unauthorized biopic of Winnie Mandela and she said it
was garbage and nobody went to see it. (4) Exclusivity—don’t work with another
studio; some others say you can’t write articles/talk to reporters—not clear
whether enforceable. Some subjects say they knew it wasn’t enforceable, but you
hope subjects don’t know that or go along anyway.
Normative takeaway: origin story: Ellickson said you need a
stable community over time. Entertainment industry is close-knit and so there
is social capital and these transactions do occur over time—they found one
agreement from 1940 Sergeant York—docudrama about WWI hero. There is a high
degree of compliance, maybe b/c of reputational sanctions, or in terrorem effect
of agreements.
Complex process is easier to replicate if you make it
modular. Increasingly studios are tolerating some creative control for
subjects, which didn’t happen 10-20 years ago. Modularity enables transactional
efficiency. Also consistent with lay intuitions about self-ownership. Can
leverage identity for profit. Mike Tyson was furious when Hulu made an
unauthorized biopic: you have stolen my life rights.
Skepticism: good for parties, but systemic effect has third
party costs to the public—extralegally erodes spaces that law preserves for
public use, like facts being in the public domain.
Lemley: interested that you didn’t say anything about the
ROP. Worth noting that lots of people have relatively recently filed suits and
even won in lower courts, though not on appeal, on the theory “you did a biopic
on me.” Is this also about uncertainty about whether the ROP might apply? Sarver,
de Havilland, etc.
A: paper discusses ROP and our conclusion is that, like defamation/privacy,
it’s hard to win.
RT: How do studios decide which people/characters need to
sign? Does whether they’re villains matter?
A: paper discusses this—life rights deals often relate to
sources, not people. How important they are to the story—if they’re not a big
character, you get a simple release. One move many studios make is that life
rights deals include provisions for main characters that they have to make best
efforts to go get releases from other people in their lives. Being a villain
doesn’t seem to matter.
Q: do insurers require it?
A: insurers want it, as do distributors. Lawyers know that
the lawsuits are likely doomed. One thing they say is that it’s a practical
matter: $100,000 for distribution and insurance is an easy. Some carriers say
they could allow project to go forward, but it’s priced so the premium goes up
significantly.
A Matter of Facts: The Evolution of the Copyright
Fact-Exclusion and its Implications for Disinformation and Democracy
Jessica Silbey
Feist conjures the fact exclusion from a lot of cases
that don’t say “facts” and the Constitution and the statute, none of which say
facts. The argument is not that Feist was wrong, but its reasoning is
insufficiently clear today to answer some key questions about the exclusion of facts
from ©--copyrightability of codes/standards enacted to law; catalogs,
evaluations, digital archives; what is authored original expression is
contested/contestable. Not just about access to information and free speech,
but also about the nature of truth and knowledge. Where does the fact exclusion
come from? Institutional production of knowledge/maintaining authority of
institutions to produce reliable facts—legal institutions, journalistic
institutions, scientific institutions, etc.
Paper excavates the precedent, which is not about facts.
Legislative history of 102(b) is voluminous and mentions facts twice, once in
irrelevant way and once in a way talking about labor theory of copyright that Feist
rejects. Intellectual history of debates from 1880s-1930s, debates about philosophy,
law, and emerging social science about production of knowledge in disciplines. “Fact”
was highly contested—universal truths or situational—and always contested until
the discipline became deterministic. Anchored in pragmatist movements
responding to earlier philosophers.
Facts are institutionally produced/products of
institutionalized processes but that does not mean they are copyrightable.
Facts produced through these processes are reliable but the processes should be
knowable and disciplinarily grounded. The absence of legislative history may be
the result of contestation over the authority of the disciplines producing
facts—as they become solidified as fact-producing institutions, facts become
facts, and the idea of factness becomes more generalizable.
Payoffs: Facts as part of larger public domain that needs to
grow and not shrink. © needs to support the institutions that produce facts,
which may not mean protecting their outputs—it may mean staying away. Think
about how facts can support the public interest. Help us reframe difficult
cases like database cases or evaluation cases. Story of institutional
authority, not individuality and judgment; we could ask whether the institution
producing the work is asking for a kind of authority with coercive force—which Durkheim
called a social fact in 1880.
We don’t call it the knowledge/expression dichotomy, and
Baker v. Selden is important, b/c it’s disciplinary knowledge that
matters—that produces deterministic and reliable knowledge—that’s what the exclusion
is for.
Samuelson: 103(b) excludes data by excluding preexisting material—they
thought they took care of it in that.
Maggie Chon: French distinguish between connaissance and
savoir, knowledge and verified knowledge.
A: we used to have that nuance but the lack of nuance is
politicized today in a way that is very worrisome. Doesn’t want © to get in the
way of the debate about which institutions are authorized to produce knowledge.
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