IPSC Breakout Session 5: IP Theory & History/Creation and Morality

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 20^th 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.