ISHTIP at Penn, part 6

Session 4 | Traci Zimmerman (James Madison University), Moderator

 

Confederate Copyright: The Role of Nationalism in Designing a Copyright Regime

Shane Valenzi (Carmen D. Caruso Law Firm, Chicago)

Commentator | Shyam Balganesh (University of Pennsylvania)

 

In addition to examining the story of how the Confederates made copyright law, draws normative lessons for law and policy. Using history not just for its own sake. 

 

Rich paper (I very much agree), so broad summary only: 1790, 1831 federal copyright acts were fiercely protectionist, not extending protection to foreign authors.  This was not unnoticed—deeply contested, conscious choice, multiple failed reform efforts over the years, esp. post-1830.  Senator Henry Clay introduced multiple amendments in this area.  Tried to convince public that extension would benefit US authors.  British authors/supporters offered kitchen sink arguments: lack of protection allows American booksellers to free ride on foreign authors’ efforts, an unjust enrichment rationale; not protecting foreign authors results in mutilation and alteration of works, a moral rights rationale; harm to US authors b/c foreign-authored works were cheaper, an economic argument about indirect harm; American public, not authors, was harmed b/c of the uncertainty of various editions they received, a consumer protection argument (mirror image of moral rights argument).  Doesn’t tell us what they thought of purposes of copyright law; Britain didn’t have moral rights at the time.

 

None of these arguments proved persuasive.  The only thing the Senate cared about was protectionism/nationalism.  Primary difference b/t US and Confederate copyright acts was extension of protection to foreign authors—this was an issue of heightened salience at the time.

 

Civil War breaks out; 1861: enact an independent copyright act as a piece of federal legislation.  Why?  Driven almost entirely by desire to make England an ally of the South.  All the publishers the US sought to protect were located in the North.  A few years later, extended the Act retroactively to pre-1861 works.

 

Effect of Act was empirically minor: only 122 titles registered in 4 years.  All, intriguingly, focused on the preservation of Southern culture/distinctiveness of Southern way of life.  Great Britain never became an ally.

 

Qs: what other kinds of unified laws did the Confederacy pass?  How did they pick their subject areas? Why is legislation useful as a signal? Are there additional sources sending a signal of commitment to Britain?  If many laws were signalling, that argument gets stronger. Also, why enactment instead of enforcement as a credible signal?

 

Lessons: this part is provocative/controversial.  New intermediate variable: nationalism can be a cloak for access, progress, and other rhetorical devices. Confederacy didn’t seem interested in incentivizing access, furthering moral rights, spurring creativity; moral rights rely on human rights framework—he says it’s hard to reconcile w/slavery, but that’s not so much a problem b/c (a) slaveowners didn’t care much about hypocrisy, and (b) moral rights are fundamentally based on citizenship, so if you define that to exclude slaves you don’t have a problem.

 

Nationalist interests as step zero in the © debate: the current state of IP output in the nation at issue, plus diplomatic interests. Balganesh disagrees completely—collapses descriptive w/normative. This is descriptively true: nationalism did the work of eliding the real balancing exercise. But to claim that normatively as part of ideal structure is unconvincing and problematic. What does national output mean? 

 

Internationally: US in mid-19^th c, w/underdeveloped authorship and sophisticated distribution systems, is not much different than today’s BRICs, breeding ground for piracy. Lacked authorial output to match capacity. Thinks that’s untrue. BRICs have significant amount of authorial output; the question is what portion they seek to put in the genuine/mainstream marketplace.  India clearly has a lot of debate about optimal structure of IP policy. It’s not b/c India is a pirate nation or a net importer.  [And here an enormous bug distracted me, sorry.]

 

RT suggests possible further reading: Stephen M. Best, The Fugitive's Properties: Law and the Poetics of Possession (about copying and race in the 19^th century).

 

Valenzi: Haven’t convinced myself about the normative conclusions.  When he discovered that there was a Confederate Copyright Act, his first question was why.  That has proven a difficult question to answer, but good enough for law review if not history journal.  Legal scholarship often uses history instrumentally.  No transcripts of floor debates before legislation passed, requiring conjecture for rationale for most Confederate legislation.

 

The legislature was quite active through the Confederacy—far more than they probably wanted/intended to be.  Not much passed in pursuit of creating int’l alliances, though. President Davis was urged to pursue an alliance. King Cotton strategy failed, as did their awful diplomats.

 

Research on patents was cursory so there may be more.  There were patents registered under the Confederate © Act.  As far as enforcement, there was almost none in district courts—only 1 case ever litigated.  A book of military tactics published in North, thus not eligible for protection in South, but Jefferson Davis asked the author—a Southern supporter—to republish in South; protection for earlier work was denied, and the result was amendment of law to make retroactive and law protecting that specific book.

 

Kara Swanson: there is a patent story here too.  Publishers could publish newspapers, pamphlets and books. Is this law designed to bring publishing to the Confederacy/domestic purpose as well?

 

A: Haven’t looked at newspapers but this is a WIP.  There was some publishing industry, esp. in Atlanta, and they did sometimes pay British publishers even before they were required to do so. There was concern in the US that if © were granted to British authors it would concentrate rights all in one NY publisher.

 

The first proposal for Confederate © Act was preceded by resolution that the Confederate Congress needed to respond to Emancipation Proclamation, and succeeded by compensation to a general whose horse died in battle. That’s quite a range. 

 

Jaszi: think about this story as of competing nationalisms.  Cultural and economic nationalisms are often in conflict. What do we know about “piracy” in the South? To what extent were reproductions coming out of Southern states, not just PA and NY?  IP clause of the Confederate Constitution is identical to US Constitution.  Southern diplomacy was not quite as disastrous as you characterize it as being—high water mark in end of 1862 when Gladstone came out as a big fan and said they were bound to win the war. 

 

RT: Descriptive, normative, pragmatic: third alternative (what should we predict, what tools are likely to work and likely to fail to lever changes).  Very clear that international relations arguments are key components of IP policy right now.  In fact arguably why they moved into TPP and other trade agreements is that nationalist interests proved too important to other nations; only when forced into some other deal would they agree to serve US (or at least big corporate) interests in IP.  But it didn’t work to get British support for the Confederates—analogies in 301 naughty lists; nothing China does is ever enough—Peter Yu’s work?

 

Sharing in Spirit: Kopimism and the Digital Eucharist

Aram Sinnreich (American University)

Commentator | Kristofer Erickson (University of Glasgow)

 

Reminded him of the Hacker Ethic: Weber’s concept of Protestant work ethic to try to understand hacker religiosity pervading the business world.  This paper explores a different religious group: Kopimists.  Protagonists: Isak Gerson, founder.  CTRL-C and CTRL-V are considered sacred symbols.  Kopimi symbol functions like a CC license. Contrasts copyright regime w/today’s globalized digital culture; what does a philosophy for/from the digital age tell us about the relation b/t philosophy and material social conditions more generally?

 

Is it mere pranksterism, a piece of absurdist political theater taken to its logical extremes? Originally a joke. Then someone got it registered as an official religion. Is it a hoax or tactic to tweak media appetite for spectacle or bypass © law?  And/or can we understand it as an authentic belief system, w/ideological integrity and consistency, ritualistic practices, and other hallmarks of religion?

 

Pranksterism: like/heir to Situationist detournement, which already had some copyright-oppositional practices in it? Aims to expose © as legally enforced ideological instrument by refuting it through a different legally sanctioned ideology. Situationists also wanted to draw attn to presence of ideology in the mass media image.  Bricolage: already directly confronting © through cutting and pasting. 

Why choose to perform an entire religion?  Target is not absurdity of organized religion, but absurdity of ©, its religious other.  Jedi-ism, Pastafarianism: other invented religions—a suitable tactic to be adopted to these aims?

 

Hoax: seeking legal protections to pirate w/impunity?  Again, Foucauldian tactic—maneuvering on a network of relations of social power.  Like medical marijuana advocacy in community of recreational users—by appropriating rhetoric of science and economics, activists advocate for decriminalization.  Normative political claims about ©: to keep source code hidden is comparable to slavery; IP laws are egregious violations of intellectual sovereignty and freedom.

 

Sacrament: Sacred valence of copying; similarity to monastic Christian principles/devotional practices—sharing of private information is detrimental, but sharing of public information is a sacrament. People decide for themselves: distribution of responsibility, antireligious sentiment: skepticism of moral authority is a core value. Suggests that monastic Christianity, copyright, and Kopimism can all be understood as governing information production during various periods related to technological development and information scarcity.  Monastic Christianity: sacred duty to spread the Word, which both proselytizes and allows humans to act in God’s image by creating the world through language.  Sharing the same bread = all part of the same world/system—same with sharing information.

 

Conclusion: though Sweden is one of the most agnostic/atheist nations in the world, Kopimism has attracted 1000s of active members (also chapters in dozens of countries). Religious rituals provide a benefit to people. Set of moral and ethical precepts and practices to navigage complex questions of power and identity in postindustrial society.

 

Questions: practical/operational Qs—how much does Kopimi symbol function as a license, like CC? How much is required for official recognition as religion?  Adolescent fantasy of Liberland, libertarian country at border of Croatia: declared itself a nation, but still dependent on roads, electricity, internet from neighboring countries.  Can we draw links to other libertarian politics, w/contradictory relationshps to state power/infrastructure?  Why chose religion rather than movement or political party as self-description? What are the costs and benefits of communicating politically in this way?

 

Sinnreich: relations to CC: not much.  CC is innovative, but this is not that.  Kopimism took advantage of new opening for new religions—first three times they applied they were rejected. Needed to demonstrate large base of members, religious texts, religious rituals: they backfilled/there were no texts or rituals until the state asked. Which perhaps supports the detournement/prank characterization. And maybe it did start that way. They acknowledge the inherent absurdity, but indicated deepening moral investment in belief system that seemed to surprise them more than anybody else.

 

Relation to libertarian politics/state power and infrastructure: great subject.  Unlike Sealand or Liberland, it doesn’t require infrastructure from elsewhere. You might say if Hollywood goes out of business they won’t have those films to share, but there’s no inherent contradiction in desire to stake out independence from copyright/postindustrial capitalism. The religion doesn’t require the existence of those laws and economies to function. That’s why it’s ultimately not a hoax or tactic.

 

That’s also why it’s a religion and not a political movement. Born of moral impulse that exists in social theory and legal argument: crossover w/Marxism, esp. libertarian Marxism: something inherently rotten/dehumanizing in postindustrial capitalism.  Datalove: a fundamental concept for Kopimists—through sharing information, you achieve empathy/Martin Buber-esque I-Thou relation that has been severed through industrial models of dissemination/alienation. Without living in a bunker, how do you reconnect w/other human beings when you’re structurally excluded from knowing one another? Datalove through active information sharing is an answer. Kopimism was an ethic before the religion existed; Kopimism’s ethics will persist after the religion fades—search for dignity in the networked society.

 

Q: what is the difference b/t ethical system and religion?  Is calling it a religion just another way to mediate culture through law?  Just using law in a different way.

 

A: I’m not under the misapprehension that I’m qualified to decide what counts as a religious order.  I’ve done a lot of survey work internationally using qualitative responses to examine ethical frameworks people employ to decide whether a reuse of information is valid or not. We’ve identified 12 different ethical frameworks: making money; homage or bastardization; etc.  By cross tabulating those frameworks w/more empirical demographic information, we’ve discovered that nationality, race, age, gender, income levels predict different ways of thinking, drawing on predigital ethics imported into digital world. I think about very immediate frameworks about judging permissible behavior.  Those are the kinds of questions ethics are good at addressing. As I understand it, what distinguishes a moral/religious system from an ethical one is the broader framework that serves as a model for how the universe is organized and what our place in it is and should be; ethics emerge from that larger model. And I see that larger model in Kopimism.

 

The modern individual is a social conceit whose time has basically expired. If all of our moral systems are rooted in the conception of the modern individual, and our legal and economic systems are rooted in a conception of a transactive relationship based on industrial capitalism, then as those foundational precepts evaporate they have to be replaced by something new. What is that? Kopimism is interesting b/c it’s not merely ethical but has an integrated comprehensive view of the world that supersedes the centuries now ending and offers opportunity to give us continuity w/human history even as we let go of deeply held conceits underlying this era.

 

Q: are they seeking protection from the state apparatus?

 

A: no.  There is zero chance anyone will get shielded from © through a religious exemption. This isn’t Rastafarians asking to be able to smoke pot.  More a statement of purpose. The act of registering Kopimism was more a call to arms than tactical solution to a legal problem.

 

Q: Europe has tradition of state-funded religious communities.  Creating a new one is kind of a sport.  Check the relationship between the state’s metaphysics and your own community.  Maybe they’ll get funding one day, or at least infrastructure. 

 

A: Pastafarianism is done to make the point that religion is bull, and the state has no business sanctioning religion as an institution or religious exceptions as a category. I think that’s a great political exercise. That’s not solely what Kopimism is. Kopimism could have done that much more efficiently if that were its goal. Its moral resonances wouldn’t be the same—not an integral quality from text to text. There is surely an intentional element of situationism/critique of state’s role in Kopimism but it evolved into something more than that, in part b/c of need to codify moral impulse of repulsion at dehumanizing effects of postindustrial capitalism applied to information exchange.  © maximalism’s approach to communication and info sharing provokes a revulsion that finds a voice in Kopimism that doesn’t appear in Jedi-ism or Pastafarianism.

 

One blogger on Patheos blog had a very negative reaction to Kopism—consulted religious experts, including a Patheos blogger/convert to Catholicism.  He felt very differently than the other Patheos writer.  Was very interested in resonance b/t logos theology and Kopimism.  Diversity of viewpoint is justified. 

 

Madison: paper is framed as challenge to this set of practices. IP law is default/norm and this is the exception in need of exploration/explanation. You might reverse that set of questions: why isn’t this the norm as an ethical system?  IP as faith-based social practices—Mark Lemley’s recent paper.

 

A: that is the Kopimist approach to ©. I didn’t frame the article that way b/c of my audience, which will be of skeptics who at least reflexively support ©. But that’s exactly the point they want to make.

 

The people I talked to who were ordinary adherents thought about an ethics of sharing—revenge porn, nuclear launch codes—they weren’t absolutists. Sharing was about the social effects of regimes of sharing. Seeking equalization in power relations through disrupting traditional regimes of information sharing. Wikileaks, Hollywood = good sharing through evening power relations. Sharing nude photos would be bad sharing—takes more power away from powerless.

 

Q: this paper could be a chapter in a theology of Kopimism/a sacred text.  Kopimism’s founder said he started it b/c he thought it would lead to some interesting conversations—a lot of contingency in founding. A small and diverse group.  Premature to reify the phenomenon.  Ability to get attention through grand gesture matters in © activism. 

 

A: By calling something a religion, you make it a big deal and that might just mean a big deal for attracting attention. But I thought he also considered it a big deal in terms of the human condition; restricting to legal argument would be inappropriate to the gravity of the crisis.  But that’s my read of it. I wouldn’t use the mantle of religion b/c I lack the faith required. But the philosophy resonates w/me.

Washington Post explains how the DMCA will kill your family

Buries the lede a bit, but it gets there:

The industry says the law protects consumers by preventing cars from being hacked. But the main impact, say Rad and other security researchers, is to stem the tide of revelations embarrassing to carmakers — not to improve vehicle cybersecurity. “If the stuff is out there,” she said, “the bad guys already know about it.”

When you outlaw security research, only bad guys will do it.

HT and title Zach Schrag

ISHTIP at Penn, Part 5

Session 3 | Marianne Dahlén (Uppsala University, Sweden), Moderator

 

Design and Copyright: An Open Question?

Stina Teilmann-Lock (University of Southern Denmark)

Commentator | Jessica Silbey (Northeastern University)

 

Openness in the law for fair followers?  Design in law in Denmark from 1908: fair followers can copy, despite existence of copyright protection—a balance b/t copying to develop and proliferate design and control/remuneration for designers.  Balance is very hard to achieve; pendulum swings between 1908 and 1960 due to categorical shifts in legal reasoning.  Rely on foundational assumptions about art, purposes of ©, and people © is supposed to benefit.

 

One approach: deny © to industrial design of any kind.  Platonic idea of art. Other trend is protect original ornamentation wherever found, but make it thin/identical copying only. Similar trend in US/Bleistein’s anti-discrimination principle.  Danish SCt, 1908, ruled that coffee pot was uncopyrightable—it was meant to proliferate in the market despite its decorations/artistic qualities.  It had a prototype. 

 

Modernist art: fashion and painting, font and furniture, art and politics were all linked. When Demnark amends copyright act in 1908 to cover prototypes for industrial art and handicrafts, whether or not reproduction takes place w/purely artistic purpose or industrial purpose/practical use: a kind of leveling, bringing more artists under the copyright tent. Similar to US: the copy is an individual reaction to something in nature; virtually any personal reaction will be copyrightable. Also comports w/political movements of modernism/industrial capitalism. 

 

Kantian influence over Danish © was strong and resisted this impulse. Talent or genius, used to reinforce hierarchy of fine art.  Not clear whether paper celebrates this exclusion, though calls it a chance for “openness.” Clearly based on an elitism/certain objects are only marginally protected, while jewelry and other ornamental features were protected.

 

Bauhaus chairs from 1930s: experts found them worthy of protection, but Danish courts didn’t—unique features came from style/particular materials and thus not artistic worthy of protection.  Functionalist furniture + rhetoric of modernist movement made applied art even more problematic in © terms—the binary of fine art/craft is based on this fiction of individuality/common practice also being a binary.  Mythology of originality/genius that denies/suppresses evolutionary practices while simultaneously denying to everyday creators the benefit of legal protection.

 

So broadening the categories of protection to add applied art in 1961 didn’t flatten the hierarchy.  What does this mean for industrial designs?  Simple/common forms could be copyrighted when they existed in harmonious unity, selected by the designer.  Where then is the openness? Disappearance of shared community, mutual following. Savior of openness in Denmark isn’t an antidote to romance of individuality, but rather a doctrine of thin copyright.  Low originality requirement must have as its concomitant a narrow scope of protection.  But then does that perpetuate hierarchy of copyright genres?

 

Should always ask who benefits from regimes and where the harm is.  Openness allowed: benefits of IP equality/leveling down extend beyond traditional authorship to audiences and fair followers.  Progress comes through copying; fair followers need as much openness as possible.  Category of design generally is a problem across IP disciplines.  Whether design is protected in © is also imported into TM and patent. It is a special category in almost every statutory IP regime and its specialness is confusing—a sui generis category w/o justification where there is so much overlap.

 

Teilmann-Lock: Double status of design comes from its basis in engineering as well. We mean different things when we say design—technical and artistic. See it too in the Berne Convention, where it’s left to individual nations to deal.  Conceptions of design have been very different across time/place.  Actors w/the most to say in defining design in Denmark have been graduates of Academy of Fine Arts—furniture architects, a very loaded term in Danish b/c its connotation is a particular generation of designers who made Danish Modern design globally known.

 

Ornament is a naughty word in the design world, which is trained that form follows function.  It means bad taste. Illusion that object can be stripped down to its function. 

 

Farley: in terms of history, Danish design’s heyday was post WWII to late 1960s.  Change in law of 1961, if consequential, comes at an interesting time.  Is there a consequence for design?  Danish courts became good at seeing the art in functional design; not all courts did.  American/individualistic approach—we don’t ask, can I see art in that chair? We say instead: what were the alternative designs? Were artistic choices made?  Danish ideal: reduce to its essence; that would take the US choice approach off the table.  Danish court says artistic design is “naturally” motivated where US court would see that as a reason not to grant protection. When the Q is alternatives, there are almost always alternatives; but if ct is forced to assess art, it may deny protection from fear of having to make artistic judgments.

 

A: Court-appointed experts play a role in the Danish cases.  Experts had managed to persuade courts of their understanding of aesthetics.  Almost lecturing the courts for the first half of the century about modernist aesthetics and finally courts took it in.  (Similar thing arguably w/appropriation art and the last 50 years of fair use in the US courts.) 

Danish designers always have their names on products: a French press is called a Bonum (sp?) because of the name of the designer.  A TM too, of course.

 

Challenging The Black Box: On the Accountability of Algorithmic Law Enforcement

Maayan Perel and Niva Elkin-Koren (University of Haifa)

Commentator | Maria Lillà Montagnani (Bocconi University, Italy)

 

Algorithmic © enforcement by online intermediaries. How/are they held accountable for what they do?  Framework against which we can judge them.  Tech has always assisted legal enforcement; not aware of it most of the time.  Speeding cameras.  In traditional enforcement situations, decisionmakers make a decision and the tech just helps implement it.  But online, private entities translate the law itself into an algorithm.  Functions that were actually discrete are now carried out by the same entity: law enforcement & adjudication.  And the algorithm is unknown, black box. We can’t know if the law is actually being complied with, esp. in situations of fair use. Dangerous effects on public sphere.

 

Proposal: public scrutiny, not judicial scrutiny.  (Could in the alternative have an ASCAP-style antitrust control.)  How to distinguish from content management decisions made by intermediaries as part of their business operations?  Does the public have a sufficient opportunity to challenge decisions? Can they correct erroneous decisions? 

 

Proxies for this: public literacy through transparency.  Due process—ability to challenge decision/have a voice.  Public oversight: ability to contest removal/restore content.

 

Regulated algorithmic © enforcement, as distinguished from unregulated.  The DMCA doesn’t achieve these goals.  DMCA: uploader is not informed when link is removed.  Counternotice doesn’t preserve due process b/c the content is immediately removed: an extrajudicial TRO based only on © owner’s allegations. If this is true of statutory © enforcement, it’s much worse with completely unregulated/private/voluntary regimes—e.g., filtering that prevents publication in the first place—no transparency; no notice; no due process; no counternotice.

 

Google: ex post and ex ante measures, filtering as a business model. Enables © owners to monetize other parties’ uploading. But that doesn’t meet the framework for judging accountability.

 

Barriers to oversight: Technical barriers linked to nontransparent algorithmic mechanisms as such.  Legal barriers: bars on reverse engineering, research: anticircumvention laws; requirement that you aver ownership in good faith (so you can’t test the operation of the system); user-generated barriers b/c users tend not to send the counternotices b/c the wording of a notice is so scary.

 

We know that these systems don’t work from an accountability perspective.  Public oversight would be better than nothing, but why not change the approach: if © and tech don’t work together, start from scratch, and think of something that works.  Doesn’t make sense to try to make the tech fit ©; make © that fits tech, like privacy by design.  More collaborative approach b/t regulators and intermediaries.

 

Elkin-Koren: purpose was to map issues surrounding algorithmic enforcement, and offer theoretical framework for thinking about it. Not necessarily providing ready-made solutions. Context of a larger effort on algorithmic enforcement. We have data for 3 years about enforcement by algorithm and enforcement in court—Israel is a small environment that allows a population study.  Software for example operates only by notice and takedown, not in court; other types of works are in court and not by takedown.  Most interesting finding: algorithmic enforcement is 7000-8000 notices compared to 100 lawsuits over the same 6 months. We are also looking at the notices.  50% of notices are actually related to the right to be forgotten, though filed under DMCA.  Google’s Transparency Report doesn’t give this info—requires a lot of analysis.  History can help understand where we are.

 

Perel: Empirical study that spurred this paper: we tried to learn systematically about how online platforms in Israel enforce ©; whether they verify rights claims; whether they correctly remove only infringing content. Tried to upload different materials, some clearly noninfringing and some clearly infringing (like an episode of House), and some fair use (baby dancing in Lenz-style video).  Recorded results of sending takedown notice.  Algorithmic enforcement is chaotic in Israel: most platforms did nothing to verify rights; some took down noninfringing content and some didn’t take down infringing content. Couldn’t do this experiment in the US b/c of the DMCA legal barriers (anticircumvention and oath requirement in takedown; CFAA). But anecdotal evidence of same errors in the US.

 

Elkin-Koren: skeptical both about privacy by design and © by design: doesn’t help us avoid the challenge. Don’t give priority to people who design the wires. The community should decide, using an appropriate decisionmaking process. Legislators would have difficulty designing the system too.  Challenge: how to design legal interventions that would be more appropriate for this dynamic environment. We could set standards, but those are problematic as well—can create distortions.  We are dealing with continuously changing tech.  Ongoing legal intervention is therefore required.  Platform behavior is constantly changing.  Some of our data we’ve shown to Google; they had no clue.

 

RT: I’m going to do the lawyer thing and ask for specific solutions.  So frustrating; we’ve been saying these systems don’t work for years and now, instead of any proposals for improvement, from © owners we get the Frank Luntz-style phrase “notice and staydown” as their new euphemism for filtering.  What if anything is the most effective way of making these concerns persuasive to non-IP scholars?  Multistakeholder in my experience means: we are going to wear you down with procedure and time, b/c you aren’t getting paid by the hour to represent the public interest.  Experience of recent DMCA best practices statement “multistakeholder process” hosted by PTO/NTIA: most anodyne results possible (only anodyne results were possible).  Multistakeholder process only works where there is ground for compromise: what is that ground?

 

Elkin-Koren: Multistakeholder regimes are not what we’re trying to advocate—there are indeed many problems.  © is just a test case for online disputes/algorithms.  Maybe some solutions can be achieved more broadly across regimes.

 

Q: FB algorithms that vote down stories that don’t help FB financially—serve no purpose other than as a mask for unaccountable power/to encourage brands to pay FB for access.  Similar issues.

 

Q: YT’s US terms of use don’t cover reverse engineering of takedown algorithm, but Israeli terms of use specifically say you agree not to interfere w/© security or inspection mechanism. Another type of legal barrier. Difference b/t jurisdictions is interesting.  User-generated barriers: has been approached by musicians that received takedowns after trying to monetize their channels.  They are very scared.  If you counternotify on grounds of fair use; the algorithm shuts down; maybe that’s another way to challenge (this is not universally true! I know people whose fair use counternotifications have simply been ignored).

 

Jaszi: at least two black boxes. One is the algorithm. Another Q is why the counternotice provisions are so dramatically underutilized.  You categorize some possibilities in the paper: fear, risk of exposure, simple lack of information, lack of solidarity (people feel like exposed isolates rather than part of a group), indifference (it was one of many videos; it’s already up on other platforms). There is a practical point of intervention: we need information about why people don’t counternotify; we have wonderful hypotheses but need real empirical work. If enough made use of it would throw system into disarray.

 

Perel: it’s impossible to send 1 million counternotices a day.

 

Jaszi: but why are we sure that resistance would require numerical proportion?  1000 might be enough.

 

Elkin-Koren: there is no one you can deal with if you have a FB problem in Israel.

 

Q: responses to EU consultation on ©: a lot of responses from intermediaries on increasing responsibility for blocking infringing content. Adopted discourse of economic transaction costs—burdensome introduction of new requirements.  Intermediaries are reticent to handle interactions w/public. Why won’t intermediaries reject transparency on grounds of transaction/operating costs?

 

Q: © as test case for other areas of law—surveillance machinery is the same.

 

Elkin-Koren: transparency is insufficient; comes with costs. I wouldn’t require more reports/more information: intermediaries should allow their systems to be more transparent, open to inspection/monitoring by outsiders as we are being monitored by them. Not necessarily the same type of cost.  Maybe the reason © disputes turned into political disputes is the fact that © enforcement infrastructure is the infrastructure for other types of surveillance and control.  When you want to remove a documentary on rape in India, you convince BBC to file a takedown.  That was the only way to remove it.  It’s not b/c © fits but b/c © is perceived as neutral.

ISHTIP at Penn, part 4

Session 2 | Dina Leytes (Griesing Law, LLC), Moderator

 

Lord Eldon, Lord Byron, and the Public Domain

Gary Dyer (Cleveland State University)

Commentator | Simon Stern (University of Toronto)

 

Byron’s strategies to deal with Eldon’s doctrine that created a no man’s land b/t criminality and property if works were potentially seditiously libellous or obscene; purported to find in an earlier decision a doctrine that an author could have no remedy if the policy of the law prohibited his work from being property. Injunctions should issue only when the P could clearly establish a legal right.  Eldon’s paradox: exacerbates the effect it’s created to prevent: (1) no property in what’s injurious; (2) destroying ability to profit would discourage authors from creating—but that encourages circulation. Precisely b/c applies to ambiguous circumstances, a publication might not qualify for injunction while simultaneously not being obscene or libellous. A legal ruling that a work was not obscene or libellous should mean that a court of equity should grant a remedy; a ruling that a work was should also lead to proceedings against pirate editions. But most works weren’t ever subject to a legal proceeding—simply existed under a shadow.  Pirate editions could persist on the ground that it was too shady for protection but not shady enough to get the author thrown in jail.

 

Byron adopted some self-censoring measures to enjoy this, but not a lot; he wasn’t dissuaded from engaging in libertine speech, and as a result his works circulated further than they otherwise would have. One strategy: authorized cheaper editions that facilitated sales though didn’t undermine pirates entirely.  Byron became one of the first truly national authors to be widely read as soon as his works were published.  Reduced Byron’s own profits.  If Eldon’s doctrine reflects rational choice theory about discouraging authors’ investment in smaller-profit endeavors, then Eldon was wrong/would have done well to read Kahneman & Tversky on bounded rationality or Silbey on actual motivations of authors.

 

One way to read the paper is as contribution to literature on the logic of incentives. Instead of altering his text to receive protection, Byron did other things and accepted lower profits. Also casts doubt on the endowment effect here: once an author has made a certain amount from a work, that could serve as anchor/benchmark; here Byron accepted less for nonpecuniary goals. Value of first mover advantage: Byron profited as much as he did b/c simply beating pirates into print was worth a significant amount for those willing to sell low.  Compare Robert Spoo’s discussion of courtesy of trade among 19^th c. US publishers, who also recognized value of first mover advantage in ability to achieve leading position in selling a particular title.

 

Case that provided the motive for Eldon’s doctrine lacked the precedential force Eldon wanted to give it, even if it hadn’t been dictum; could Eldon have achieved the same result using the doctrine of unclean hands?  At least more familiar/plausible doctrinal ground. Resort instead to such an improbable precedent, interpreted in capricious manner, might signal his disdain for the writings in question.  Exercise of legal imagination responding to the authors’ imagination. Contemporaries criticized the poor logic; maybe the poor logic was part of its meaning—more about denying the legitimacy of the author’s position. Maybe he didn’t anticipate the anomalous status of not-property and not-illegal, but that results still makes sense given the shaky foundation of the doctrine.

 

Paper also highlights the fuzzy contours of the public domain which can be changed both by practice and legal doctrine.  Public domain was much broader than it is today in a variety of ways (nonliteral copying); risk-averse conduct of publishers who insist on permissions for what is fair use. Publishers can shrink or expand the practical public domain.  In Byron’s case, that happened as various actors responded—Byron removed just enough criticism of the gov’t to make pirates unsure; pirates argued that the work was corrupt but hoped that it wouldn’t actually be deemed illegal.  London booksellers likewise studiously avoided common law courts that had the authority to determine that common-law copyright was property forever; repeated the claim only in equity courts where chancellor might be willing to indulge the premise and grant injunctions. Injunction is probabalistic device reflecting chancellor’s assumptions about the law, not the law.  Procedural device: a practice of hypothesis and imagination—determined the regulation of these imaginative works.

 

Dyer: Comparatively speaking, Byron didn’t modify his writings much from these concerns or worries over being prosecuted.  About the same time this was going on, John Hunt was indicted for publishing another work by Byron—possibility of third libel conviction/going to jail.

 

Chancellor is using prediction of law and rules of equity—other aspects of equity don’t come into play.  Publisher/author needs expert opinions about how this will play out.  Archives exist to study this: prosecutions for criminal libel involve opinions of AG when manuscripts are submitted to them for evaluation.  Often the answer is “clearly in point of law this is criminal libel but not a fit subject for prosecution.”  Resources; difficult to convince jury to convict; would have to talk too much about the Prince Regent’s personal life. The practicalities of suppressing speech!

 

Court of chancery wouldn’t enjoin a publication simply for being libelous.  What if you’re the author who owns the ©/the transferee—can you do that?  Eldon’s doctrine pulls the rug out from under that tactic—which people trying to suppress libel they’d disavowed actually did.  Byron tried the same thing with a 1809 defamatory poem where he later became friends with the target.

 

Christine Haight Farley: If you’re investigating policy impact, Byron is an outlier b/c he is an incredibly successful author, which means his strategies will be different. Different relation w/publisher; different ability to seek counsel before publishing; different strategies on reaching the market. What about the impact on the ordinary author?  Authors we’ve never heard of—what do their letters w/ publishers say?  [what a great question]

 

Q of doctrine is whether this text is a property or not, and won’t be if immoral/injurious.  Language of opinion is always about the intent of the author. Only barristers consulted in advance seem to read the work as a whole and consider its overall message; they look at meaning, but judge, prosecutor, and everyone else cited seem to be talking about what the author intended, including Eldon.

 

A: the intent standard here seems to mean an implied author: given what this text does, what would you understand the intent to be?  Ultimately he thinks it goes to the effects, but he needs to look at this in more detail—tied up with the part v. whole evaluation; Eldon is inconsistent on which you evaluate.

 

Unclean hands: usually A can’t get relief against B because A was bad to B—but in these cases unclean hands means “being bad to the public/public interest.”  Unclean hands doctrine is not used in the latter way during the period he’s studying, and first is used in this way in cases like this!

 

Other authors: May not be interested in strictly legal IP rights, though do try unofficial enforcement. But should consider which writers to look at—writers do have clear political agendas; needs to think more about who to look at: not sure who’s willing to be somewhat marginalized & know they’ll never have the reach of a Byron, but do want to have some IP rights.

 

Note that Byron does win here; it’s a story about the failure of law to suppress speech. The dissemination of this speech then changes the public.  Also difficulties in coordinating law with equity.

 

Jurisdictional Boundaries of Prior Use within Britain: An analysis of the House of Lords’ judgments in Roebuck v Stirling (1774) and Brown v Annandale (1842)

Barbara Henry (University of Hertfordshire)

Commentator | Eva Hemmungs Wirtén (Linköping University, Sweden)

 

Two cases, 60 years apart. Patents on improvements weren’t available in Roebuck, but were in Brown.  Received patent in Scotland (separate regime from England); litigated against alleged infringers. Ds cited public use in England prior to the date of the Scottish patent.  Patentee’s argument: Couldn’t rely on prior use in England to invalidate Scottish patent—innovation only had to be new in Scotland; court disagreed.  Concepts of center and periphery.

 

Paper concludes: these weren’t the clearest legal principles, the decision to continue the Roebuck precedent was sensible—considering improvements in transportation and communication made it harder to distinguish England and Scotland.  Single British patent was beginning to emerge; would be enshrined in law w/in 10 years of judgment in Brown.  Continuing significance of the cases?  Addressed key issues concerning courts in 18^th c.—patents for improvements, prior use/novelty and jurisdictional boundaries; first inventor v. first importer; impact of Statute of Monopolies on patent; possibly trade secrets and industrial espionage.  Similar issues arise w/ European patents.  Are there materials that would tell the story differently than the court cases?

 

Henry: modern patent law isn’t her area of expertise, but knowing the past can help explain present concerns.  For countries developing their own systems, how existing systems developed can show some of the pitfalls.

Trade secrets: there’s discussion of “treacherous servants.” Not clear how big a role trade secrets played in this case.

Q: that phrase “treacherous servants” is ubiquitous in 19^th century discourse on tech transfer. Any thoughts on that?

 

A: interestingly, the inventors here aren’t Scottish but English inventors who moved to Scotland. Industries are closely related to Watt and Bolton—probably not as bad as it might have been in © in terms of discrimination against outsiders.

Claims about computer expertise aren't puffery to ordinary consumers

Burton v. iYogi, Inc., 2015 WL 4385665, No. 13–CV–6926 (S.D.N.Y. Mar. 16, 2015)

 

iYogi provides computer diagnostics and repair, general troubleshooting, updates to computer drivers, security protection, and PC speed and performance optimization. To market itself, iYogi offers “Free PC Diagnostics,” involving a brief phone consultation between a “Technician” and potential customer. Through remote diagnosis, a “Tech Expert” “[i]dentifies the problem” and “[r]ecommends a solution.” Burton sought technical support for her “poorly performing” HP computer because it was “running slowly, freezing and locking-up.” She found an ad that said something like: “iYogi provides wide scope HP support online for users to resolve all HP computer related issues through the assistance of iYogi Certified Technicians,” and “[t]he experts can help troubleshoot several HP errors like overheating issues, registry conflicts, etc.”

 

When Burton called, the iYogi technician remotely accessed Burton’s computer, browsed through various computer files, and stated that they were contributing to the computer’s problems. The technician her Burton to download iYogi’s “diagnostic software,” which displayed a “Dashboard” indicating Burton’s computer “possessed a large amount of ‘junk files’ and ‘Registry errors,’” along with a warning in red typeface that her computer’s “System State” was “Critical.” The technician informed Burton that her computer was at serious risk, damaged, and would likely crash if she did not purchase iYogi’s services to repair her computer.

 

Burton alleged that iYogi technicians operate using scripts intended to trick customers with little technical expertise, like her, into believing that iYogi technicians are performing assessments and identifying problems. In fact, she alleged, no credible diagnostic testing of her, or any other customer’s, computer was actually conducted. Virtually every potential customer will receive a warning that “junk files” are harming their computers. The same “errors” were allegedly found on a brand new computer.

 

But for these misrepresentations, Burton alleged, she wouldn’t have bought a one-year “iYogi Gold Subscription” for $99.99. Even after subscribing, her computer allegedly continued to malfunction as it had before iYogi performed services. She sued for fraudulent inducement and unjust enrichment.

 

The court refused to dismiss the complaint based on a claim that the contract limited plaintiff’s time to sue to one year and precluded an unjust enrichment claim, even though the court found it implausible that she wasn’t required to accept terms of use before receiving iYogi’s services, because “‘click-wrap” contracts are standard in Internet-based sales and service provision.”

 

She also stated a claim for fraudulent inducement.  She adequately alleged false representations by the technician: the software is allegedly not capable of accurately diagnosing her or other customers’ computer problems, and iYogi services did not in fact fix her computer, which continued to malfunction. She specifically alleged that the “junk files” and “Registry errors” that the iYogi technician and software identified are found on virtually every computer, including a new computer, and are not necessarily harmful, and that no credible test was performed to determine whether they were actually causing the problems on her computer She further alleged that iYogi technicians follow a script that “invariably report[s] that potential customers’ computers are in dire condition” regardless of the actual condition of their computers. iYogi claimed that the statements couldn’t be false because she made similar statements.  But she admitted that there was a problem with her computer and alleged that iYogi misrepresented the source and severity of the problems and iYogi’s ability to fix them to induce her into buying iYogi’s services. “Just as a medical patient’s complaint of arm pain differs from a doctor’s x-ray analysis of a fractured limb, so too does a customer’s complaint of computer trouble differ from a technical ‘diagnosis’ of where and how there is a malfunction.”

 

Nor were the statements puffery.  Although opinions are generally not actionable, “[t]he expression of an opinion or prediction which the declarant does not himself believe is a false statement of fact.” Moreover, “where one party [has] superior knowledge, the expression of an opinion implies that the declarant knows facts which support that opinion and that he knows nothing which contradicts the statement.” Here, the court concluded, whether iYogi provided the services it claimed to and whether those accurately identify and fix customers’ problems could be proven true or false. Moreover, if the allegations were true, then iYogi was presenting statements about customers’ computers as fact based on expert assessment.

 

iYogi argued that Burton failed to allege that the technician didn’t actually believe the statements.  But she alleged that iYogi technicians are trained to use scripted dialogue. “Even if an individual iYogi representative believed the diagnostic testing was accurate, that would not absolve iYogi, the Defendant, of liability for designing the misleading software and scripts and training its employees to use them.”

 

Burton also alleged justifiable reliance by consumers of average technical knowledge. And she sufficiently alleged scienter, which can be done either “(a) by alleging facts to show defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” The allegations that iYogi designed its “diagnostic software” and scripts knowing and intending that virtually every customer, including Plaintiff, would believe they had serious computer problems and be induced into buying iYogi services constitued “sufficient circumstantial evidence to warrant a strong inference of fraudulent intent.”

 

Burton also stated a claim for unjust enrichment, even though iYogi argued that the claim was precluded because there was a valid and enforceable contract covering the subject matter of the claim.  But there was a dispute of fact as to whether there was a valid and enforceable contract here. And even if there were a contract, parties may plead in the alternative.

ISHTIP at Penn, part 3

Session 1 | Ellen Goodman (Rutgers), Moderator

 

Access and Development: The History of ‘Development’ and WIPO

Sara Bannerman (McMaster University)

Commentator | Christopher S. Yoo (University of Pennsylvania) (Yoo presenting Bannerman’s paper, followed by responses from Bannerman)

 

First, idea of “development” in IP discourse has changed over time; initially not focused on economic growth but did become so over time. Second, idea that economic growth went hand in hand w/development came under sustained critique, but was not successful in displacing that idea. Third, some reasons for persistence of old vision/incompleteness of Access to Knowledge’s ability to change the narrative.

 

First: Paper uses a natural language processing technique to look at underlying documents in major int’l treaty events to study references to “development.” Four basic meanings. (1) perfection of authors’ rights. (2) Development of int’l institutions. (3) Development of literature, arts, and culture.  All were present in fairly strong terms; (4) economic development started dead last, but starting in 1952 all the others dwindled rapidly.  See from post-Marshall Plan Europe spillover to developing nations; changed how development and IP were understood.

 

Timing: this was announced by Truman in 1949 but flowered in 1960s: proposed Stockholm revision to Berne Convention was supposed to have a development agenda but wasn’t well received/didn’t generate changes in law.  Even the word development constructs a hierarchy.  Developing world is supposed to aspire to what developed world has attained.  Decolonization movement, legacy of imperialism.

 

Movements come along: Friends of Development and Access to Knowledge question tie b/t strong IP rights and economic growth.  2004-2007: we need a new paradigm of how we govern knowledge.  Traditional assumption that everything should be IP-based needs to be rethought.  No concrete proposals, but started to talk about over-commodification; WIPO should balance costs and benefits of IP protection.  Some limited progress, but no major move away—this movement created rhetorical gains but didn’t significantly displace the economic growth position in int’l law.

 

Why?  Three major factors: Ideas: development is a conceptual map that is hard to displace.  Note that WIPO antedated the UN, and the growth vision didn’t mature until post-WWII era along w/UN. But now growth vision is wound into how we think about IP.  Second, growing importance of globalized, mobilized, coordinated industry groups.  Wane and wax of civil society: official authority to submit proposals. In the 80s civil society organizations had more power to submit proposals than in 1960s, but still A2K not successful.  Third, WIPO as organization with roots in colonial era; WIPO has a view built into its DNA that it exports to states.  Tension: if we have a growing discourse of public interest, that would start us moving the status quo.

 

Comments: Would like to know more about these documents: what were they about, who were they from?  Would also like to know absolute values of references to development, and how that’s changed across discourses.

 

Ambiguity between how much of the discourse in A2K is targeted at patent v. copyright.  The paper seems focused on copyright, but it seems broader than that.  Originally grew out of access to medicine, and that really is about patents/R&D.  Industrial knowledge/creative knowledge. Sometimes A2K uses that ambiguity strategically to make access mean whatever is useful at any given time.

 

How did WIPO change?  (Policy laundering—rightsowners move to trade agreements as WIPO proved less hospitable?)  Civil society: how WIPO participated in the process—who comprises A2K, how do they get funding, how do they identify topics to work on. Tons of civil society actors exist, coming from different places; these are the entities that have become influential in the WIPO process as opposed to others like Creative Commons. Why?

 

Traditional notion of int’l law is power projection of individual states that are normatively neutral and you don’t look inside them.  We have, in last 20 years of int’l law, added democracy as a global value. At the verge of becoming strong enough to be imposed back on sovereign states as a global norm.  But that argument was more convincing 10 years ago than today—look at the Ukraine; China’s rise.  We would like to have Chinese IP—trying to move outside traditional frameworks. Islamic countries: very different values.  World looks more pluralist; idea of finding global public interest norms about sharing knowledge seems less plausible to him today.  Do like cost-benefit analysis introduced by A2K. But there’s a polar quality to advocacy positions.  We have access/incentive tradeoff; even if our reasons for providing access are not purely economic, we have an awareness that there are tradeoffs; we do want to fund R&D for medicines somehow. Gray markets; etc.  If we don’t restrict reimportation, we should accept a single price and a loss of ability to fund R&D.  There is a tendency to ex post opportunism: once IP is created, let’s get it shared as widely as possible, but that’s not sustainable on an ongoing basis.  (I’m unaware of any A2K work of any depth that doesn’t address this question, actually.)

 

Bannerman: Full book will be coming out soon.  Projects continue to support IP as power tool for development—money is going to fund patent and copyright offices to provide more tech.  Very few projects dedicated to funding different types of access/public domain; those projects tend to be small scale.  Developing countries have gained more voice than they once had, though that doesn’t translate to real dominance at WIPO.  Book does trace civil society actors in more detail and how they went about engaging with the debates about © and Berne. But by the time they come with the ability to participate in a real multilateral organization, now states are setting the agenda; the groups are more present in a way and have official delegations; they lack the agenda setting power they used to have. At one time you would’ve found them inside the state delegations: huge transformation in means of engagement w/int’l copyright. Many factors, including inability to leave Berne b/c of other agreements, serve to lock in the existing system.

 

The idea that IP could be balanced in light of the history recounted in the book is, if not baseless, not supported by the history of who is at the table; groups invested in the outcomes are often not there or almost unrepresented.  The idea of balance was promoted by A2K but the term has been twisted around and used in ways opposite to what’s intended.  There may be too much ideology in the A2K movement, but not sure that “balance” is a way of getting us there.

 

Q: In terms of explanation for resistance to development agenda: New players arise—global platforms/new corporations funding A2K.  Why don’t they capture an organization like WIPO, as we see them do on the national level?  WIPO is an organization that registers patents.  Deliberates on © treaties, but it’s also a money machine for the UN.  Another issue: WTO is now undertaking role in enforcing treaties; no longer a role for WIPO—development agenda comes on board only as WIPO loses relevance.

 

A: competition w/other organizations has provided moments where change is possible at WIPO; can grasp on to changes to maintain centrality/legitimacy in WIPO system, so WTO is quite important. See also WIPO work on traditional knowledge.  Marrakesh Treaty for visually impaired: tremendous success b/c first time civil society set the agenda since Berne; but maybe this is a small issue that’s been hived off and it was possible to get consensus. Other proposed limitations/exceptions: maybe not.

 

Yoo: WIPO used to be locus for int’l IP negotiations; regime choice is now endogenous, and US consciously chose to shift negotiations to GATT, where bargaining environment and voting was different.  Then shift from multilateralism to bilateralism, now regionalism: TTIP, TPP, Europe’s attempt to adjust ©.  Civil society and multistakeholder nontraditional governance has more opportunities to bypass public law altogether—fascinating opportunity.  (For whom?)  Google and Samsung: A2K for patents; in ©, intermediaries want A2K but not content providers. Certain patent coalitions do not completely move over to ©. Ideally big corporations would fight each other to standstill. 

 

Q: pressure to make unanimous decisions at WIPO has an effect.  How did this happen?

 

A: Book does discuss unanimity: the ways in which it’s been interpreted; within the standing committees, the chair interprets whether or not there is unanimity.  And that can happen even with strong opposition by state representatives.  Can stand in way of maximalist IP agenda, but sometimes it’s declared to exist when it doesn’t seem to be true.

 

Q: “Development agenda” hides multiple agendas—more radical agendas exist, some crushed quickly—like complete transfer of technology.  Western publishers explicitly set out to put African publishers out of business in 70s.

 

A: Agree: there are many development agendas.

 

Peter Jaszi: WIPO’s greatest failing may be in its educational activities, heavily weighted towards maximalism and less transparent/more difficult to intervene on than official activities. Nondeliberative functions that, partly as a function of competition w/WTO, that the organization has undertaken deserve more attention.

 

A: one of the main points of development agenda was more transparency in education/technical assistance; probably failed in that regard.  Contributed to ballooning of WIPO and regional offices around the world.

 

The Body as Slippery Object, 1900-2015

Kara Swanson (Northeastern University)

Commentator | Rebecca Tushnet (Georgetown University)

 

I’m unfamiliar with the mode of presentation here, so I trust you’ll attribute any flaws to the presenter and not to Professor Swanson’s fascinating paper, which considers the human body as a “slippery object” that resists classification in multiple systems of knowledge production—or, I would add, material production—including the patent system.  The boundary between nature and culture is a long-standing question, with specific application in patent law: Patent examiners and courts need to separate the categories of the natural versus the human-made in order to separate unpatentable nature from patentable human-made technology.  Gene patents in particular mean that something is separated from the body and turned into technology—blurring the boundary of the self and generating unease and even anger in some people.

 

Swanson considers disputes over gene patents in light of a history of disputes over the status and treatment of milk and blood, identifying a long-standing tension about the boundary between natural and artificial as applied to the body.  In historical context, the current legal focus on natural v. human-made as the key characteristic separating ownable intellectual property from public domain nature replaced an earlier dichotomy: Americans earlier learned to tolerate body products as technologies by considering them as personal gifts, focusing on a distinction between gifts and commodities that diverted attention from the difficult-to-resolve question of natural vs. artificial.

 

The overlay of the patent system onto the human body disrupted this acceptance of human-sourced technologies.

 

First, a brief runthrough of the patent situation: In Diamond v. Chakrabarty, the Supreme Court ruled that a lab-created bacterium was patentable. This, along with various scientific advances, led to a flood of gene patenting.  Myriad Genetics patented certain gene sequences associated with heightened risk of developing breast cancer.  The patents were used to create highly lucrative tests and to preclude other researchers from developing tests for breast cancer and doing other research.  Women’s groups and public health advocates collaborated to challenge the Myriad patents, a challenge that reached the Supreme Court.

 

The key legal question was whether an isolated gene sequence in a form not found in nature constituted a patentable innovation.  Was the process that led to the Myriad patents more like baking (transforming raw into cooked) or more like snapping a leaf off of a tree, to take a particularly notable use of analogy?

 

The Supreme Court ruled that purified naturally occurring sequences, known as gDNA sequences, remained a product of nature even when isolated in the laboratory, while sequences created in the lab to contain only coding sequences, known as cDNA sequences, never existing in the body, are inventions.  Public health advocates touted this as a victory for the boundaries of patent and the sovereignty of the body, though its long-term effects remain uncertain.

 

Swanson asks us to consider that there’s a previous history of removing substances from the body, working on them, and making something understood as new from them: specifically human milk and blood—collected, pooled, and treated for safety.  Before WWII, there were extensive milk and blood banks, and an attempt to commercialize them, including a debt and credit model for blood.  These early 20th century practices generated deep public discomfort with the ways in which these products were bought and sold. Bankers—that is, doctors and administrators—wanted to use a biomedical model treating the human body as a source of fungible body products, like carrots or silverware (and here I pause to note the specifically domestic and thus feminized connotations of these comparisons: at a time when industrial production as well as mass consumption was a preoccupation of planners, it’s notable that the blood and milk bankers chose these specific products rather than cars or sutures).

 

Howeve,r suppliers and patients alike resisted the commodity characterization, retaining traditional understandings of milk and blood as natural fluids even when bottled and sold apart from the body—among other things, they cared very much about the race of the supplier, leading to various discriminatory practices.

 

Unconfined by the strictures of patent law, the blood and milk bankers didn’t have to choose between the natural and the technological. This is not to say they weren’t governed by law, specifically tort law, given that treating blood as a product raised liability issues when the blood was dangerous. Faced with the resistance to commodification, managers of body products gave up on a commercial production model, and settled instead on a model that could acknowledge and even reinforce the human aspects of these body-derived technologies, while also preserving the anonymous and technological aspects: the concept of the gift. This retreat from direct commercialization of bodily products had the benefit of moving back from products liability to medical malpractice as the limit of liability for causing harm in treatment. 

 

Beginning in the 1960s, state medical societies successfully urged passage of so-called “blood shield laws,” state laws that removed blood from product liability law by decreeing it to be part of medical services and not legally within the category of “good.”  As for milk, in the 1960s and 1970s there was an increasing emphasis on human milk, even in bottles, as natural. The women who organized these exchanges, and those who provided extra milk to babies, eschewed payment. “We don’t buy and we don’t sell. We don’t believe a price can be put on human milk,” said one.  Such discourses immediately put me in mind of sociologist Viviana Zelizer and her work on the ways in which market and nonmarket transactions interact, especially in areas of intimate social relations—I commend her excellent book Pricing the Priceless Child, about the rise of life insurance for children precisely as children became economic burdens rather than benefits.  After all, even in a gift model, it still costs something to get the milk from breast to unrelated child—we are just treating the central transaction as a gift transaction, but the economy around it doesn’t disappear.

 

The gift model succeeded so well that people may not even know about the alternatives.  The National Organ Transplant Act, passed in 1984, bolstered the gift categorization, making unpaid suppliers, who were merely voluntary in blood and milk banking, mandatory for the next generation of body products used for transplant: human organs could not be sold for transplant.  One related consequence was the result in the tort case Moore v. University of California: the California Supreme Court held that, because human body parts weren’t treated like marketable property by the relevant laws, a patient did not own cells that had been extracted from him under false pretenses and used by his doctors to develop an incredibly lucrative and patented cell line.

 

The court refused to recognize property in Moore’s cells specifically because to do so would implicate Moore in the commercialization of his own body, thereby recategorizing people and human-sourced products as commercial objects.  As a concurring Justice wrote, “Plaintiff has asked us to recognize and enforce a right to sell one’s own body tissue for profit. He entreats us to regard the human vessel — the single most venerated and protected subject in any civilized society — as equal with the basest commercial commodity. He urges us to commingle the sacred with the profane.”  But this condemnation of Moore’s attempted boundary-crossing involves a lot of irony.  First, given that the court drew guidance from laws about the disposal of human body products, it essentially ruled that Moore’s cells were, once removed, what Swanson calls “biotrash.” Second, Moore’s body was commercialized—just not by him! Instead, profit and control were reserved to the people the court saw as the real creators: the doctors who received a patent on the cell line developed from Moore’s body.

 

Swanson concludes that the category of technological gift seemed a false promise to those like John Moore. It no longer offered recognition of a kind-hearted source of medical services, but seemed a hypocritical attempt to deny property status and ownership to bodily mateirals that were simultaneously commercially exploited by for-profit entities. The body, because it was natural rather than technological, became a public domain natural resource. As Swanson points out, the rush to patent genes from living organisms was repeatedly likened to a gold rush, as if bodies were unoccupied land—as opposed to, like California in the 1840s, both previously occupied and lushly productive.

 

The gift/commodity distinction could not substitute for the natural/technological distinction in a legal framework that required identifying patentable inventions.  Swanson proposes that the discomfort and outrage sparked by Myriad’s patents was motivated in part by the disruption such a patent makes to what we have carefully taught ourselves about body products, commercialization, and the human, individual qualities of disembodied body parts.  Patents on human-sourced inventions commodify body products withouth acknowledging the supplier as a beneficent giver.  If we support body product patents, then, we must develop a new narrative that honors the body’s slippery status.

 

Swanson briefly suggests that there are several contradictory options: First, we could take more seriously the fact that the patent act includes the terms “inventions and discoveries” within patentable subject matter. The common meaning of “discovery” as something existing in the world, newly brought into the realm of human knowledge, has been written out of patent law by statutory interpretation and the product of nature doctrine. By loosening patentable subject matter to include discoveries as well as inventions, patents would not necessarily cover only the technical or the human-made. What would make a discovery patentable would be the act of recognition of the value of such products, thus making them new, rather than novelty in their existence as newly created.

 

Second, patent doctrine could be adjusted in the direction that the Myriad plaintiffs urged, and which has been recently suggested by the America Invents Act prohibition on inventions “encompassing a human.” A complete ban on patents to human-derived inventions would likewise avoid the need to categorize them as natural or manmade, avoiding the problem altogether.  Swanson considers this an undesirable overreaction, however.

 

Third, the patient-supplier could be formally acknowledged as an inventor within the terms of patent law, as one who “contributed to the conception” of the invention. This would probably require statutory revision to include the provision of parts of oneself as a form of inventorship—or other forms of credit could be given.  We might take instruction not from the story of John Moore, but from that of Henrietta Lacks: a poor African-American woman whose cells were the basis for an important cell culture, without her family’s knowledge or consent.  Ultimately after extensive publicity, the Lacks family received credit, but no compensation or control.  I would go further than Swanson and suggest considering some sort of mandatory payment, which was also discussed by the justices in the Moore case as an option for the legislature if not for the courts.  Different kinds of contributions might deserve different kinds of recognition, but by offering only co-ownership as an inventor or credit in the form of attribution rights, we may miss an opportunity to recognize the human body as a particular source of value.

 

Swanson concludes that the gift/commodity dichotomy is misguided and harmful as a basis for the law and policy of body product exchange, causing scarcity of body products and injustice in their allocation. From that perspective, she says, one could argue that rather than adapt patent law to support the category of technological gift, patent law as it currently exists should be left alone—which I think means forcing us to take another look at the nature/culture dichotomy and to make choices about it.

 

A few comments: the paper could fruitfully grow in the direction of taking a firmer stance on which of these options should be taken, and the costs and benefits therefrom. Seems pro-commodification, but commodification and propertization might not be the same thing, as we heard earlier in the day.

 

I would urge a more explicit feminist analysis as the paper expands: body/mind, nature/culture, gift/market are of course heavily gendered associations that map onto each other and onto cultural constructions of femininity and masculinity.  Myriad then might be seen as a victory for a certain set of women’s interests, but perhaps at the expense of an opportunity to mount a more fundamental challenge to the dichotomies that often serve to oppress women.

 

Here, I couldn’t help but think of Donna Haraway’s image of the cyborg, a female/feminized figure whose boundaries are ever-changing, reaching out to incorporate parts of the external world. Donna J. Haraway, Simians, Cyborgs, and Women (1991). Haraway’s cyborg highlights both the possibilities of technology to enable changeability and the threat that lurks along with the promise of the power to reconfigure oneself. “[C]yborg fluidity insists that borders between works matter because they are permeable.”Of course this is frightening. Penetration of boundaries is often threatening, potentially disruptive, but penetration is also the condition of creativity, outside mixing with inside and generating something new.

 

Haraway’s cyborg also draws our attention to other kinds of boundary violations: according to the dichotomy posed by many of the sources Swanson discusses, if it’s technology, then it’s not the body: but that’s not true for many bodies.  My glasses, another person’s pacemaker, another’s wheelchair—these are conditions of our embodiment in the world.  Not to mention the even less visible technologies that clothe us and groom us: the body is not a person without property—that’s why prisons and psychiatric hospitals and militaries strip inmates of their personal effects.

 

Power: Who is expected to give, and who is entitled to be paid? I was struck by the contrsat between blood banks v. traditional, personalized gift and obligation networks: severing of reciprocal obligation except in the most attenuated and general sense.  Reminded me of the so-called sharing economy and current discourses about technoserfs who are induced to create value for large companies through their own affective engagement with communities created by for-profit organizations.  Suppose we did change the law so that body products can be patentable: would it change anything for the bodies that supply the raw materials for biotech firms, or would it simply change which large entity finds it easiest to benefit from these products? 

 

Swanson: Body products developed as forms of property but not forms of IP: the comparison tries to tease out what part of the Myriad controversy is due to patent law and what is not, in terms of whether we do or don’t need to change patent law to deal with it.  Have another whole paper about body products as property and the difference between commodification and propertization. 

 

Power: Milk and blood outside the patent system—both have the same meaning in 1900 as the gene in 1990 about how we understand that it carries the identity of who we are and how we’re related to intimate family members. Separation of one to one, face to face interaction (first blood transfusions involved body next to body); moved from direct exchange to anonymizing institution—bank—that says each unit is equivalent to each other. Markets and gifting both severed the individualization.

 

The market in human milk: maternal/feminine gifting—altruism and kindness.  Today there’s a shift: there are two separate for-profit companies that have patents for forms of human milk—one shelf-stable.  They’ll pay, which makes the donor world afraid that their supplies will dry up, pun intended.  Women who sold their milk in the early 20^th century were not mercenary: they could afford to stay at home and nurse by selling milk.  Same could happen again, as Zelizer has described.

 

Q: regionalism: wet nursing in the South?

 

A: Replaced wet nursing b/c they became harder to get as 19^th century advanced and there were more options for women to earn money outside the home. Separate that from wet nursing under slavery, where entire reproductive capacity is taken over by enslavers. Wet nursing was never as established in the US as in Europe; small portion of Southern population; mostly wet nursing occurred b/c there was no mother’s milk supply available.  First mother’s milk station was founded by young Harvard grad trying to save a baby who needed a wet nurse.  Thought rushing around looking for a wet nurse was an inefficient use of his time. Found out he had to pay women to keep nursing—you can’t wait for a wet nurse job/keep nursing unless you can survive. Then he moved to having them express milk in bottles.

 

Handed to women in bottles: Seemed more anonymous; less worry that particular characteristics of wet nurse (e.g., Irish in Boston) might negatively affect a Brahmin baby.

 

Madison: Potentially a gap in the analogy b/t blood, milk, sperm and genetics/gene patents, in that the former focus on the material itself. It’s plausible to say there’s an individual human owner or origin. But in genetics, a part of the debate that affects nature v. manufacture character is that the genetic information doesn’t belong to/originate w/that human, but rather there is shared/collective interest in that info.

 

A: Moore goes to that: involves both—property and IP.  Moore’s particular cells are particularly valuable b/c he has something that’s not shared but its value is only realized through abstraction.

 

RT: I think that’s a matter of POV.  The whole process of producing milk and blood is to make it fungible—we don’t care about the genetics once we’ve typed the blood/literally homogenized the milk.  So it’s arguably less plausible to say the blood or milk is individualized versus genes found in one person.

 

Q: using notions of property to reinscribe a geneaology, recentralizing role in producing value: similarity to Marvin Gaye/Blurred Lines case—racial justice aspects.

 

Q: note that you have to keep records of provenance for blood—people in the UK during mad cow can’t donate, etc. Ads encourage men to give blood b/c women give more blood than men—principle of public duty. But if I can’t, what does that do to my sense of citizenship?  (Let me tell you a story about the social meaning of breastfeeding.)

 

A: stories of African-Americans being turned away from giving blood in the South; or they’d take it and not use it.  Now: HIV status/being gay—badge of citizenship. The constant tension b/t anonymizing and being concerned w/ the nature of the person who is giving.  (If we focus on the recipient, things look more equal.)

 

Moral outrage at company trying to buy breast milk in Detroit—exploiting poor women.  We are not necessarily becoming more relaxed over time about outputs of our own bodies.

 

Jaszi: Could one do a hierarchy in levels of distaste/disapproval?  (Jonathan Haidt’s work?) Sperm, cadavers, fetal parts—consider what’s going on w/Planned Parenthood. Disapproval of commodification would probably be greater for things that come from women’s bodies. (The work on eggs versus sperm would tend to confirm this, though someone said there was an international market in women’s hair.)

 

A: interesting in light of blood: blood donor historically quite gendered despite its formal gender neutrality.

 

Q: other countries do it differently: exploitation of body parts in China.  Also consider religious beliefs around the use of the body: it’s part of the universe that needs to be respected—not related to capitalism per se.

 

A: some countries have tried to set up milk banks and failed, b/c milk drinking = relation between the donor and baby for life (and any other children are milk siblings).