IPSC Opening Plenary Session: IP Openness, Secrecy, and Enclosure

Selective Exploitation, Kristelia García

Justifications for deference to rightsholders in enforcement context are less persuasive than justifications for deference to rightsholders in exploitation decisions. These aren’t infringers—outside of ©’s standard infringement/remedies scope. Conduct at issue: shifting content from Peacock to Hulu, pulling shows from streaming services once they’re cancelled, making them impossible to access. Denying a platform access to a work that a platform has decided is not worth continuing. Batgirl pulled for tax reasons. Disappearance clusters around mergers and quarterly reporting where they want writeoffs; independent of consumer demand. Subsidizes content removal in a bad way. Accounting-driven disappearances.

Reputational concerns also lead content to disappear—race-changing makeup in 30 rock; Dr. Seuss edited to remove what are now understood as racist caricatures.

Consequences: for access; for competition/raising cost of competition; for creators—lose residuals when removed from popular platforms like Netflix.

Conventional tools aren’t helpful: fair use; antitrust—pacing and breadth problems; statutory licenses siloed by medium & tech and don’t speak to suppression or streaming; misuse is closest but that’s a defense targeting license term rather than refusals to license.

Proposed interventions: nonuse reversion rights; reducing write-off incentives/introducing a public access credit; broader conception of consumer harm; open-access analog—currently FCC or FTC lack jurisdiction over streaming but we could impose some preservation mandate.

Trademarks as Gatekeepers in Open Culture, Aman Gebru

Open platforms invite community investment but retain a less visible, restrictive layer of control—descriptively, use TM on the back end. Welcome your investment until the platform is mature, then strategy of being more restrictive. Case studies.

Reliance-based information asymmetry: encourage people to contribute resources for free, then take ownership of the value thus created. Case study: WordPress: widely used nonprofit open-source content management system. Automattic v. WP Engine: competitors in for profit services built on WordPress—TM claims made against competitor; blocked access to wordpress.org. Divided community—some say that for-profit entities should have to donate/help out; others say that a single person shouldn’t control open access resources.

Dungeons & Dragons: open game license in 2000; updated in 2023 with an even more permissive and irrevocable public © license. Independent publishers invested resources developing compatible products, but leaked documents indicated Wizards of the Coast intended to substantially limit those permissions and demand royalties for projects making over $750,000.

SSRN: acquired by for-profit Elsevier in 2016. Widespread concerns about restrictive commercial practices, but concerning & unclear changes to permissions.

Musk v. OpenAI—unjust enrichment b/c OpenAI was founded in 2015 as a nonprofit research lab. No ruling on the merits, but does demonstrate reliance concerns for investment early on that is then exploited.

Reasonableness of reliance: public is not unreasonable to expect continued access to a platform. Cultivation of openness goes beyond terms & conditions, even if they preserve the power to restrict.

Q for Gebru: in past, this happened with cable retransmission of broadcast—a new business model for profiting from what was freely distributed. What’s the history?

[RT for Gebru: distinguish impersonation? AO3, which is nonprofit & open source, deals with commercial exploitation that puts user privacy and security at risk, e.g. if users input their passwords through an unofficial app; confusion is a real risk for some unauthorized uses. Maybe the answer is that most use of AO3 is to post stories and that’s the core promise of the platform, but more details would help.]

Know-How, Dan Traficonte

Know-how is a legal concept used to mean many different things. Methods and techniques: The trade secret equivalent of a method/process patent. Trade secrets are a subset of confidential information; general knowledge, skill, and experience overlap with confidential information but not trade secret. Know-how cross-cuts all three: trade secrets, confidential info, and skill/experience.

Matters to doctrine that trade secret has to be described with reasonable particularity. Uncodifiable know-how can’t be a trade secret; hard-to-codify know-how might be a trade secret if codifiable during litigation; hard to figure out how to do that or identify how much codification is enough.

Employee Privacy and (Un)Reasonable Secrecy Efforts, Deepa Varadarajan

Apple allegedly spies on workers’ personal devices while NY limited access to personal social media accounts. Problem: trade secret law doesn’t pay attention to employee privacy, which is problematic given the field’s concerns with (1) commercial morality and (2) employee ability to move. Reasonable efforts to maintain secrecy should not require privacy invasion, but are often used to justify invasions. No court has held RSE unsatisfied due to excessive secrecy.

Unclean hands might be a viable doctrinal alternative.

Strategic Openness in Innovation: When Firms Reveal to Block or Build, Bernhard Ganglmair (with Alexander Kann)

Invention disclosures: in-house journals like IBM’s; commercial outlets like Research Disclosure and IP.com; new platforms like TDCommons (Google, 2015) and proofbox.co. These disclosures are seen and cited in patents. Longer disclosures carry more enabling information and are cited more often. Placement: distance to a firm’s tech core—how central are these disclosures?

Results: mapped length & distance from firm’s core of disclosures. Firms w/longer disclosures place disclosures closer to their own core. Not necessarily industry-specific. Pattern holds even after excluding IBM and other manipulations, over time. Enormous firm heterogeneity.