IPSC Closing Plenary Session: IP In the Courts

 Automating the Uncertain Judge

Courtney M. Cox

Ignoring uncertainty is wrong. An ideal judge aims at proper outcomes, and if they ignore uncertainty they ensure error, sometimes serious error. Ignoring strength of belief won’t always result in error but sometimes it will. Rule-driven and data-driven models both need to grapple with uncertainty. Jurisprudential tools & doctrines exist, along with rational methods for coping with uncertainty. More research is needed.

Q: can a data-driven machine be a legal realist? If the idea is to take into account sufficient social context, the training data is the beginning but not the end of decisions, won’t it converge on rule-based formalism?

A: Probably a machine can respond to whatever it had for breakfast. Underlying the Q are the difficulties in the data: what judges had for breakfast causing variations is baked in, which is commonly discussed in the context of bias. We at least have a sense of what we want to control for or what they’re doing wrong, but work has been started on that; here, with uncertainty, there’s not a lot of work figuring out when a judge is doing something for jurisprudential reasons or because they’re uncertain about which method of textualism to use.

Silbey: What’s the difference between uncertainty and highly contextual analysis?

A:  Probably related.

Q: why not program different versions, one that tries to minimize transaction costs, one that tries for legal realism, etc. and pit one against the others?

Some discussion; she showed a diagram about judges who were committed to different theories of jurisprudence (e.g. originalism, pure natural law) with different degrees of confidence, and used that to show a model of how those judges would evaluate overruling Plessy/deciding Brown as it was decided. I didn’t really end up convinced that this was doable or descriptive of uncertainty in judging at the jurisprudential level as opposed to the factual level.

Schedule A Defendants

Eric Goldman

Complaint doesn’t list actual defendants; schedule A. Often sealed; often contents are Chinese manufacturers who are alleged counterfeiters. Similarity to Doe defendants—one advantages is plaintiff can use the revelation of identities of defendants as leverage to get settlement, as in the porn/© cases. Another option: list them in the caption; making joinder concerns more obvious. No confidentiality of Ds’ identities—defendants can coordinate; asset freezes may not work.

Location by state, per Bloomberg Law: ~3000 in Illinois, ~500 in NY, 374 NJ, long tail. About 3000 default judgments, 688 voluntary/joint dismissal, 44 admin dismissal, 33 trial/judgment entered, 15 contested dismissal, 15 summary judgment, 2 other. Where unsealed, about 218 defendants per case, meaning that Emojico sued over 10,000 defendants in one year. Most of the cases are TM (3000).

Concerns: Robo-pleading; problems with service/how do we know it’s working properly; personal jurisdiction—we know that harm in jurisdiction is not enough, and addresses may not be listed; joinder/filing fee issues—how are the parties related enough to all be on the same complaint? Very few judges raised it on their own.  Sealed defendant lists: a red flag b/c we can’t track what’s going on in courts that way—the rejoinder is that we need to seize their assets, but we don’t get unsealing even when there is no concern/seizure is accomplished. Emojico dismissed defendants who showed up to fight back. All this is ex parte. Judges used to adversary process can allow lots of errors to creep in if the other side doesn’t show up.

The point is not to litigate, but to get the court order to take to a place like Amazon, which will shut down the entire business and not just the targeted conduct. The judge doesn’t know this and things look like they’re going pretty well to the judge.

What do we do? Judicial education? FRCP?

Emojico targets people selling mugs that have emoji on them advertised as “Emoji Gifts Birthday Present”—rubber-stamped as TM infringement every step of the way in court and by Amazon. This is worth fighting back against.

Lisa Ramsey: Lifeguard licensing also claims to own rights in “Lifeguard” and cross. When someone fought back, they dropped the case and the court denied an attorneys’ fee request. So we need something to be done.

Lemley: Defendant class actions do exist—there are protections for the class, judges have to sign off, could be expanded.

A: loves that idea b/c it would force evaluation of commonality between the parties, which is worth looking for.

Felix Wu: how much do substantive claims matter? Troll usage is bad, but can imagine legitimate usage by mass infringers.

A: needs to consider more—horrified by the procedural aspects.

The Class Action as Licensing and Reform Device

Xiyin Tang

Google Books settlement was rejected; quasi-legislative provisions were more for Congress. Have there been other settlements in class actions that tried to obtain a release not just for past harms but for forward-looking uses. Relatively few 1938-1990: 7. Three filed by the same person, head of ASCAP; another performance rights; composers. From 1990-2000, 22 class actions. Tech was a driver. Many were attempting to address new tech uses. Cahn v. Sony, SDNY 1990, was about audio tapes; settlement wasn’t monetary but promise among settling parties to pursue subsequent legislation, resulting in Audio Home Recording Act. Frank Music v. Compuserve, SDNY 1993, for liability for ISP for infringement by users. First settlement in copyright class action providing for future royalties. Pre-512; Compuserve testified in Congress multiple times about the need for safe harbors, and their class action experience alerted them to the uncertainty in law/need for legislative resolution.

Ferrick v. Spotify, SDNY 2018: licensing the long tail of songwriters/publishers; claim was that they shouldn’t have used the NOI compulsory licensing process, esp given that Copyright Office couldn’t keep up with the volume—work by work process wasn’t tenable for music streaming; settlement provided a lot of framework for Music Modernization Act.

Mass tort settlement as regulation: global peace. Here, though, the rights aren’t necessarily recognized in substantive law, which leads to the filings in the first place—the class actions are gap-filling. Will continue as new tech uses challenge ©.

Q: CAFA?

A: Proceduralists worry about Ps getting too little and © folks worry about Ps getting too much. But courts are supposed to scrutinize settlements more carefully, which is significant.

Sprigman: Public info: Spotify relied on Harry Fox early on, before NOI—Harry Fox would match what it could. Over time they would rematch and pay out arrears for new matches. The plaintiffs said paying arrears wasn’t allowed. What’s the reaction? Harry Fox lost its place—it’s not the central player now that it was then. Statutory damages made this messy: damages were either very payable or astronomical, and it was very difficult to know the range. Another source of uncertainty: there was a claim that for normal streaming (no copy) there was no digitial phonorecord delivery, which meant there was no license needed, which created uncertainty on the other side. So both parties had an incentive to get the process fixed and NOIs rationalized.

A: HFA is owned by the music publishers so the fact that they could not actually get it together to figure out who owned what was also significant.

The Solicitor General’s Mixed Record of Success Before the Supreme Court in Copyright Cases Pam Samuelson

Started w/significant contrast b/t SG’s brief in GvO and the outcome. Likewise the SG supported Georgia against PublicResource.org. Compared to the patent side the SG does not have a great record of success on substantive © issues. OSG has won two cases for the US (Eldred & Golan) & lost one (Dowling). Justices have more confidence in how they thought about © for themselves, especially with Breyer and Ginsburg.  SG filed only 2 amicus briefs in 20^th c private litigant cases (CCNV, Quality King), but amicus in all but 2 of 21^st century cases—pretty big shift. Procedure/remedies, SG analysis or close prevailed in 5 of 6 cases. Substantive: didn’t agree with SG 9 times. In 4 cases agreed with SG about who should prevail but not about why, different/narrower. 4 cases: disagreed with both who and why. One 4-4 split in Costco v. Omega, where SG failed to persuade SCt to rule in Omega’s favor. Also did not prevail in 2 remedies cases. Where the divergence was only on analysis, not outcome: Grokster, Aereo. Divergence, but not huge: CCNV, Star Athletica, Kirtsaeng II (atty fees).

In only 2 of 18 majority opinions did majority cite approvingly to SG arguments—it was Ginsburg. In 3, explicitly criticized SG: Quality King, Kirtsaeng I, and Star Athletica. But mostly just ignored SG, especially in substantive interpretation cases. Contrast w/other studies of SG influence and citation rates.

On average, SG espoused high protectionist views. One reason: growing influence of Copyright Office lawyers on SG briefs. CO lawyers are on 5 substantive briefs and 3 procedure/remedies cases, and also advise the SG.

Why ignore SG? SCt likes its own decisions, including older ones like Bobbs-Merrill.

When should the SG file in private cases? Not as often, absent CVSG or direct implications for CO procedures in registration—Star Athletica or Fourth Estate—or effects on foreign relations/border enforcement—Quality King/Kirtsaeng. Constitutional challenges (though they didn’t file in Felner or Allen v. Cooper). But they shouldn’t file in substantive cases like GvO, Warhol v. Goldsmith. They too often ignore the public interest.

Dan Burk: increased unwillingness to defer to the executive, which might be a bad thing overall.

A: note that the CO is not an executive agency, which should complicate things. And it stayed out in the 20^th c. IPEC, USTR, and © group in the USPTO all reinforce the CO’s high protectionism, so it would be good if they reached out to other entities. No real federal interest.

Burk: EPA’s views on how statute should work should be weighed even in private litigation.

Silbey: cynical explanation—where they practiced before?