IPSC Closing Plenary Session

An Author/Reader Conversation about Jessica Silbey, Against Progress: Intellectual Property and Fundamental Values in the Internet Age (2022)

Robert Brauneis: Three layers—(1) object of discovery: creator and innovator accounts, concerns, what kind of conditions support/hinder them in their work; (2) thinking about IP rules, particularly © for photographers; (3) economic & social vision; equality, dignity, privacy, etc are contrasted to hierarchy, subordination, exclusivity, precarity, commercialization. Changes to IP rules on their own in our world may have little effect on whether we go towards the good vision or the bad—cloud computing, network effects that cause convergence on a small number of intermediaries, and important tech that is protected by secrecy/real and personal property law/employment agreements. IP loosening could not have much effect/even help strengthen corporate consolidation. Norms/inculcation of values and other fields of law like antitrust might be more effective.

Questions about whether creators would agree—Lynn Goldsmith objects to Warhol’s use; maybe that’s an effect of being an unusual use compared to how photographers usually see their works adapted in art. Maybe it’s a sense of breach of contract, but the book describes more tolerance for reuse.

Silbey: ©, TM or patent becomes a device to assert certain things about yourself or your work. Insofar as people like Lynn Goldsmith or the ACLU are using IP to argue for certain justice goals, what IP is and what it’s for may be changing, even if the text doesn’t change.

Deepa Varadarajan: IP is a vital terrain for contesting fundamental values. As fiction author, struck by community norms among creative communities: creators routinely avoid the constraints of IP regulation and err on the side of more promiscuous sharing—fairer uses. But also less willing to tolerate uses “not in the same spirit.” Should IP law try to incorporate more norms, especially when defining a community is getting harder and harder? (Compare BookTok—are readers part of the fiction community?)

Trade secrecy: mixed up with commercial morality and relational duties, not just incentives—is this more receptive to incorporating the broader set of values described the book? Also intersects a great deal w/contracts. Contracts imposed on people w/lower bargaining power can get rid of the limits on trade secret doctrine; this is also a theme of the book—form contracts can undermine the rights and recognitions that creators seek. Pro photographers agree to onerous contracts from longstanding clients in order to retain them. NYT theoretically lost Tasini, but led NYT and others to require fee-free transfers. Giving more rights to authors didn’t give them more bargaining power against aggregators.

Michael Burstein: seems like disorganization is an issue—Conde Nast being able to impose terms on scattered photographers seems like a reason for discontent w/ private ordering

Rebecca Curtin: Important difference from tech upheavals of past. In manuscript to print, you can find readers anticipating what print will facilitate—the concept of an authoritative edition, the professional editor; readers wanted these things before the tech offered them. In Silbey’s book, the tech has lapped creative communities and begun to unravel norms central to creation and dissemination rather than coalescing them.

One lesson: Threats to privacy are threats to communities and practices that sustain creativity. The “clean air and water” of culture are at risk.

Michael Burstein: Presence in narratives of transactions as central—IP might be in the back seat. How the values come into play is less in creation and definition of IP rights and more in their flow, transfer through ecosystems. Equality: in discussion of equality, in Tasini, Roche, and even Kirtsaeng—the first two seem to have resurrected the romantic author not as creator but as transactor: each case claims to protect small creator/inventor, with little awareness of practical effects. IP law of creation isn’t telling the whole story.

Open arrangements/commons-based accounts are largely devoid of law and more about institutional structures/governance and self-ordering that is more than just in the shadow of the law.

Institutional precarity: Declining trust in markets, not in IP law. Creators experience these practices as coercive, hostage-taking, and the effect is on attitudes towards market structure. That’s the domain of other kinds of laws, like antitrust. Those markets obviously depend on definition of goods sold in them, and that can’t be ignored.

Public interest is often missing in anti-discrimination context like Eldred and Golan, and anti-subordination analysis like Tasini and Roche. Individual interest v. public interest opposed in those cases and in Kirtsaeng. Wonders if the baseline in IP renders issues of civil equality more difficult. It’s easier to identify superior moral claim in race/gender discrimination than in the public domain. These are policy choices, pushing IP closer to regulation than to property regimes.

Rosenblatt: power imbalance and the importance of collective action have become more central to our lives/scholarship. Ability/inability of creators to work collectively seems a recurring theme in addressing power imbalance. What does that mean for us as IP thinkers?

Josh Sarnoff: end of liberalism v. paternalism—we’re seeing that play out in IP. Paternalism in IP can be things like preemption overriding contractual waivers/overrides.

Silbey: wanted to reaffirm the idea of the public, not the public domain—we are all in this together, interdependent.