Works in progress: Peter Winn

Peter Winn, Unauthorized Access, Computer Trespass and Privacy: Really interesting, though beyond my core field.

Winn is examining the CFAA and Stored Communications Act (federal), plus state and foreign unauthorized access statutes. What is the meaning of “unauthorized access”? The problem is one of overbreadth, as also occurs with concepts of trespass to chattels in cyberspace.

Two approaches: One way is to say that the legislatures were trying to address hackers, outsiders breaking into a computer, like burglary. The other way is to say that the statutes are intended to protect information in the computer system (which means that insiders can violate the law too, like a houseguest who pockets the silver). Many courts have interpreted the statutes the second way.

Very first case in which hacking was addressed, U.S. v. Morris: Morris was a grad student who created one of the first internet worms in the late 1980s. Morris was prosecuted under the 1986 version of the CFAA; Morris’s defense was that as a grad student at Cornell he had privileges to access the internet, and he designed his program to access the other computers in that system just as they were designed to be accessed – just as the code allowed him to do.

It’s a stupid argument at some level: that wasn’t the way they were designed to be accessed, because the programmers didn’t anticipate what he was doing. But from the machine’s viewpoint, there wasn’t any difference. The Second Circuit rejects Morris’s argument. You have to reference something other than the way that the code was designed. The Second Circuit was referencing norms – if Morris had called up the owners of the hardware and said what he planned to do, they probably would have told him “no.”

If we’re working with unwritten norms in the core cases, we get the expansionist cases – mostly civil cases – now companies sue former employees for taking customer lists with them. We’re no longer in the world of hacking, but courts are still applying intent standards and finding unauthorized access. Also with scraping a competitor’s website. Most interesting case: A law firm that issues an overbroad subpoena of an ISP where the opposing party has its email server, and gets the ISP to give them all the email without notice to the opposing party. After the firm was sanctioned, the employees whose emails were obtained filed suit against the person who issued the subpoena, and the 9^th Circuit rules they have a cause of action under the CFAA and under the Stored Communications Act.

When courts go beyond hacking, they’re using the idea of trespass in the internet context. Using it against employees subverting confidentiality, hacking, competitors all fits this model. But the employees whose email was searched have no possessory interest in the email stored at the ISP, nor do they have a leasehold, since the lease is their employers’. This is a case about rights in pure information. There’s a long line of 4^th Amendment cases recognizing standing for a constitutional trespass based on a purely privacy/information-based interest in not being surveilled, and the 9^th Circuit borrows from that line.

Why don’t we have a nightmare of overprotection in the digital world? Indeed, a lot of people who’ve written about this suggest that we’re shutting down the free flow of information. The solution: (1) We’re applying common law trespass to this idea of unauthorized access; let’s look at the common law, not trespass to chattels but trespass to real property and the time when trespass was a general cause of action for what we now call tort. The trespass to real property cases do not allow owners to dictate all terms. Particularly with property like inns that is private but open to the public, it is really very hard to bring a trespass case – a person who goes into the inn intending not to pay for supper is not a trespasser. A federal agent who goes on to private land where the owner is illegally selling liquor out the back is not a trespasser. If there’s a community practice of presumptive consent, then people can come hunt and fish on private land. Courts try to balance property and reasonable, appropriate uses of the property by the public. The common law wants to have it both ways. Posner decides a case about ABC, which promised not to do ambush journalism or hidden cameras and does just that to an opthalmologist who sues for trespass. Even in the face of fraud, there’s no trespass because fraud doesn’t go to the basic interest trespass was designed to protect.

(2) The need to reference something else: if you bring a trespass case, you’re referencing the system of property rights. Courts in expansionist cases are not simply allowing the business owner or the email senders to sue because they don’t like the defendant, but rather because they can find specific common-law torts and trespass is used to translate those into internet law. The proposal to shut down common-law rulemaking is to restrict the meaning of unauthorized access to code-based circumvention: regulation by nerds. Winn thinks instead that we should let the courts work it out. New Zealand has a very tight definition that doesn’t allow common-law rulemaking. But other Commonwealth/US courts are doing a good job of balancing the interests. If you ratchet it down to code-based circumvention, you’re just transferring the decision about what’s authorized to the nerds from the judges. And it means you can’t protect the privacy of third parties as with the email case, because only the owner has the incentives to create a code-based protection. (I’m not sure I buy this, since the owner has incentives to create code-based protections in order to make its hosting more attractive to consumers. And I’m far from certain that it’s a good idea to make competitors liable for scraping a site when it’s not trespass for them to acquire a printed catalog with the same information, even if they acquire that catalog by subterfuge. In other words, “balancing the interests” gives courts another way to go after what they think is unjustified free riding, which they are all too willing to do.)

Winn points out that there are alternate privacy protection regimes: you can put duties on information collectors to manage information responsibly. So we don’t need to do it this way. Right now, he says, third parties don’t have a cause of action against the privacy-violator along with the info-collector who allowed privacy to be violated, but I would find that a much better solution to the problem he cares about than relying on the flexibility of the trespass doctrine, which as he acknowledges is not traditionally about protecting third parties’ interests.

Works in progress: Scott Boone

Scott Boone, On Virtual Property and Copyright: His followup project to this, incidentally, is called “Han Shot First!” Which is great.

As we move from physical copies to digital copies, the personal property part of the balance between copyrights and rights in the copy has dropped out of the equation, as if all there is is the copyright: there aren’t copies any more. Boone is seeking a return of the property balance. Can the idea of “virtual property” bring personal property back into the equation?

By virtual property, he means property rights in virtual objects. There has been some previous work on virtual property, and more work on property concepts like trespass applied online.

Fairfield’s formulation of virtual property: it is rivalous, persistent over time, and interconnected (including across servers). Examples: email addresses/accounts, URLs, websites, chat rooms, virtual world objects.

How does this relate to copyright? Look at virtual world objects, in MMOGs where people interact in a persistent, 3D environment. World of Warcraft has 7 million subscribers, maybe 3-4 million unique players. The objects in these games, like weapons or houses, may or may not be subject to personal property rights. There’s a huge real-money market for transfers of these objects. But who really owns the rights? Game producers sometimes attempt to shut down outside markets. Korea and China have granted some sort of rights to players even in the presence of contractual agreements.

That transfer of a virtual object from one player to another doesn’t violate any copyright rights. There’s no copy made. (I really wonder about this. If RAM copies count, why doesn’t this?) It’s not a distribution – it’s either first sale or not a distribution in the first place.

There’s no inherent conflict between virtual property and copyright, at least no more conflict between personal property rights in a traditional copy and the copyright. There’s no experiential difference between virtual world objects and digital copies. Thus, if virtual world objects are rivalrous, why not treat them the same as physical property? Rivalrousness, or the lack thereof, exists at the level of code and code can create rivalrous virtual world objects – even if it is not likely with the current state of code. (So, technological measures inherent in a game can prevent the duplication that made copyright owners so leery of “digital first sale.” But I imagine that copyright owners would fear circumvention – not to mention the real objection, which is of course that they don’t like first sale in the first place, and if they can avoid injecting it in a new world order they will do so.)

Questions for discussion: At what point is a digital copy sufficiently rivalrous to merit property rights? Is a publicly ordered property system preferable to a privately ordered system of contracts and technology?

Q: Is there really no copy made in a transfer from one to another?

A: When Cartman sells a hammer to Stan, there’s no additional copy made, because Cartman ceases to have that hammer and Stan now does. The code that manifests the hammer exists on every player’s computer. The ability to use the hammer is the authorization that’s passed, which exists on the game company’s server. Unlike sending an mp3, no additional copy exists as the result of a transfer. Rather, just rights to use and control and exclude are transferred – built in at the code level.

Eric Goldman: What about the contract?

A: That’s the public ordering/private ordering choice. Contracts do cover all these instances, so the virtual property issue may never come up.

Eric: Authorization to create a derivative work – that’s a contract that shapes the scope of rights in a derivative work. We have a foundation that’s contract based and assets are created on that foundation. But the contract is still king.

A: It’s true that many game corporations have stepped in asserting their contracts. But we could say that game companies couldn’t put restraints on in-game alienation.

Eric: We already have an example of a legal system where the contract trumps (or channels) the rights in copyright – derivative works. What’s so special about virtual property?

A: The default rule is different, §109A. Digital property has the potential to be the same as physical, which makes the default rule of who has control that of first sale. That’s the difference – the non-contractual allocation is different than that for the right to control derivative works.

Beth Winston: Dan Burk has some articles on comparing seed and genetic use restrictions and the incorporation of the contract into the tech as compared to DRM.

A: The terminator gene is another place where we see the same questions arising.

Bruce Boyden: Within the game, the game designer has created some property-like aspects to objects within the game. But the game designer could change that.

A: And Second Life has!

Bruce: So it’s completely within the game designer’s choice – the question is who do you have property rights against. It seems unlikely that you have rights you can enforce against the game designer – and if you did, as the result of your participation, then Jack Balkin’s article on virtual liberty suggests there are free speech implications. (Boone and Boyden dispute whether the speech interest supports player property or not – Boyden says that player ownership would harm the game designer’s ability to speak, whereas Boone points out that player ownership would improve the player’s ability to speak. There is a tradeoff, but my reading of Balkin leans more toward Boone’s, since the player corresponds here to the citizen and the game designer to the state, whose “free speech” interests are at best fraught and instrumental rather than foundational and inherent.)

A: Boone hasn’t answered whether property rights added to contract and tech would be a good idea. If you start to go down the property route, you may start to dictate the technology, which could be a strike against virtual property.

Brett Frischmann: What’s the basic policy payoff? Should government intervene?

A: If digital copies are rivalrous, we should look at bringing personal property rights back into the discussion.

Brett: So you’re indirectly making the case to improve the infrastructure for DRM, since rendering digital objects rivalrous would allow this change.

A: I’m not advocating this change, but I want to consider it if the technology moves in that direction – property could moderate the effects of DRM.

(Seems to me that despite copyright owners’ fetish for control, game property is already at least as rivalrous as, say, music CDs. Those are subject to first sale even though they’re easy to copy and often copied – whereas game property, as far as I have heard, is only occasionally hacked.)

Works in Progress: Peter Yu and David Welkowitz on Human Rights and IP

Peter Yu, Reconceptualizing Intellectual Property Rights in the Human Rights Framework: Conflict or coexistence between human rights and IP? If there’s conflict, should human rights take precedence? Or are there enough safeguards in IP that there is no conflict? See, e.g., U.S. cases finding that copyright accommodates the First Amendment with built-in limits. Is IP a human right? This is connected to whether IP can be easily analogized to real property.

Lessons from basic human rights documents: (1) IP has always been controversial within international treaties. (2) There are multiple dynamics – the Cold War leads communist countries to reject protections for private property; hesitations about using UNESCO for copyright when there’s a plan to push for broader protections in a separate proceeding later (Berne). (3) Many of today’s issues have been explored in the 1950s, and we’re rejuvenating old, forgotten debates.

Moral interest: Protecting integrity or attribution. A lot of people who are pro-access to knowledge want to use human rights to preserve access, but a human rights regime would offer strong moral protection, working against their ultimate aims.

Material interest: Does right to property always mean right to private property? The treaties are not clear – property can exist as a right of a group. A lot of the communist countries wouldn’t agree to private property protections, so the treaties don’t specify. Other considerations: remuneration for scientists doing research, when many countries didn’t want to have to give them individual patent rights.

Treaties focus on “just remuneration for labor,” and also mention protection of the moral interest. They aren’t protecting full economic interests in IP. Property rules or liability rules would be acceptable under these treaties.

We could have a human-rights-based compulsory license, combined with just remuneration. But we assume that people have money to pay for a license. That might not be true. Freedom of the press belongs to those who own one? Also, when we emphasize compensation, we may overemphasize the material interest over the moral interest. Perhaps appropriate credit or appropriate disclaimers would be more appropriate.

Alternative: a “core minimum” approach. In human rights, there are resource constraints, and lots of countries can’t fulfill their obligations, but they may nonetheless not violate human rights treaties. The core minimum approach says that you have to devote the resources you have to your obligations. Drawbacks: if you focus on core and keep on expanding, no guarantee you can figure out where the boundaries are. We also don’t know what the priorities are: countries need a lot of different things, not just IP. Finally, core minimum means that we don’t look at the relationships between the various human rights. If you can apply core minimum to IP, why not to the right to health, education, or food? Why not use that to expand IP given that a core minimum protection for education etc. exists?

Progressive utilization approach: Need to keep expanding protection based on available resources. Yu proposes seeing it as a sustainable development regime: use IP to empower people and progressively expand rights. Three-step balancing: look within an IP provision first, then at general IP provisions, then at overall human rights obligations.

Challenges: (1) Human rights ratchet. Dangerous ideas about property will be imported into IP. You’re elevating the importance of IP to that of human rights, and that is dangerous. Yu responds: There’s always limited protection, and countries need not protect to the limit. Also, when we talk about protecting moral and material interests in IP, we are not talking about importing the whole US apparatus. Things like work for hire and rights to employee inventions are not human rights because they apply to corporations.

(2) Institutional capture. IP rights owners are more likely to have resources to manipulate the human rights community. But those corporations are already part of the discussion, using NGOs to influence process. Also, Yu thinks the human rights regime is robust and could fight against capture. And if we can get big players to think about food, access, and development, that’s a good thing. Language used in a human rights forum can spill over into IP, as after Doha when people are talking about rights to health and about access to knowledge.

(3) Cultural relativism. Are human rights just western imperialism? Yu doesn’t think so – others participated in forming treaties. Human rights aren’t fixed. Protection for indigenous groups and women has expanded. Also, the US is opposed to putting IP with human rights, as are other western countries. Is the US stupid? If not, maybe developing countries should persist in pushing for linkage.

Don Chisum: The French Revolution treated authors’ rights as basic rights, so there’s a history in the west as well.

David Welkowitz, Privatizing of Human Rights? The Application of the European Convention on Human Rights to Intellectual Property: A lot of attention given to human rights in the IP context has been about conflict – how can we limit IP by using human rights terms? Using public law to limit private law. From an outsider perspective, we may be entering a situation in which private actors with IP interests, including nontraditional IP holders, may be seeking human rights as a means to create and enforce IP rights.

Why the European Convention? It’s a good starting point because it’s fairly widely adhered to, 46 countries strong. It also has an accessible jurisprudence: judicial interpretations, cases, all the things US lawyers find familiar. Ironic, because most countries involved in the Convention are civil law countries. But case law is infiltrating into their system.

Article 8, privacy.
Article 10, freedom of expression: often invoked as counterweight to IP
Article 1 of the first protocol: Protection of property – every natural or legal person is entitled to the peaceful enjoyment of his possessions

Could argue that article 14’s antidiscrimination provisions also apply to IP, if for example trademark law discriminates against celebrities.

Von Hanover v. Germany, ECHR 2004 and Anheuser-Busch v. Portugal, 2006.

Von Hanover is the ruling family of Monaco. Princess Caroline is the object of a great deal of attention, frequently photographed in public and in private. This case involved a series of photos published primarily in Germany. Technically she sued under French law, but she sued in Germany. Germany’s Basic Law has a right to privacy. After not much success below, she reached the federal constitutional court. The German court found that she was a public figure and has to tolerate a certain amount of interference with privacy. There is a recognizable public interest in receiving information about her as a celebrity, even if she’s not a ruler and even if the public is mainly interested in entertainment. The court enjoined publication in France under France’s far more protective laws, but under German law she was entitled to have some pictures suppressed (pictures with her children, and pictures of her in a “secluded” place like a restaurant) but not pictures of her in public – even when a telephoto lens had been used to get the pictures. In the balancing the court did, it specifically said the German press was entitled to freedom to maneuver, exercise of editorial judgment.

In the ECHR, Caroline succeeded. The court balanced article 8 against 10. Court didn’t agree with the emphasis the German court placed on her status as public figure. She has no authority and is basically ceremonial, and the pictures weren’t taken as she carried out official duties. And the public has a minimal interest in entertainment value.

In awarding Caroline a victory, the ECHR said Germany has an affirmative obligation to provide her with a civil tort action to protect this right. Implications for IP: we’re used to a private enforcement regime, but this implies the state needs to back it.

Anheuser-Busch v. Portugal: Dispute over the rights to use Budweiser all over the world. The Czech company claims a protectable GI, and A-B claims trademark rights. A-B applied to register in Portugal in 1981, and the Czech company opposed. Negotiations ensued. After 8 years, A-B moves to cancel the Czech company’s GI rights, and succeeds. The TM office of Portugal is then directed to grant A-B a registration. By now it’s in the 1990s. The Czech company appeals based on a 1986 treaty between Portugal and Czechoslovakia protecting GIs; the appeal succeeds.

The ECHR didn’t uphold A-B’s claim, but the case is still of interest. The court agreed that IP rights are “possessions” under Article 1 of the first protocol. The rejection of the claim was narrow: since A-B had applied in 1981 and was immediately opposed, it was really one long application process, in which A-B had merely an expectancy that wasn’t sufficient for a possession. There was a dissent that would have allowed A-B’s claim even though the state has leeway to regulate under article 1 – a proportionality requirement. The dissent thought that invalidating the registration was disproportionate, given that the treaty came after the application was filed.

Welkowitz saw a lack of deference on the ECHR for the decisions of member states. In the IP context, lack of deference allows the court to create a common-law regime, ignoring a country’s own attempts to reach a balance.

Possibilities: A robust right of publicity? Based in dignity interests, perhaps. The alternative is to say that people have property rights in their images. Unauthorized use might be considered interference with possession, creating a private right to prevent such use. There is a contrary decision in the ECHR, in which a beer bottler used a portrait of someone’s grandfather on the beer and the court refused to recognize a right – based largely on the fact that the portrait had been given to a museum and displayed publicly. The court also said that there was no indignity, because the grandfather had been connected with the brewery. He’d been dead for 80 years, which creates further products for the claimant.

TM dilution: It’s possible to see TM dilution as a right under article 1, particularly uses that might make a mark generic – even in a movie or book.

On the other side: Rights of indigenous peoples. If traditional folklore is a property right, that might be a source of an article 1 right against letting outsiders get copyrights or patents on traditional material – individuals can have standing under the law.

Who’s likely to be advantaged? Celebrities are advantaged by being celebrities, famous for being famous rather than famous for a function. Complications for the EU: If the ECJ doesn’t agree with the ECHR, there’s no obvious mechanism for resolving the problem. Also could complicate international IP negotiations, if the rules are enforceable in court decisions and the US has to pay attention to the ECHR.

Will it end up cheapening human rights by injecting too much commercial value into the human rights discourse?

Works in progress: Michael Meurer

Michael Meurer, If You Can’t Tell the Boundaries It Ain’t Property: The project comes from a book by Meurer and James Bessen, Do Patents Work? The chapter is available at the conference website, and is worth reading if you’re interested in the subject.

There is a huge notice problem in patents, varying across types of technology. Claims can be submerged for long periods, amended during the application process without publication, and otherwise hidden. Even when the claims are public, it’s hard to figure out what’s covered, and most businesses don’t bother to try. As opposed to title insurance and E&O insurance for copyright infringement, both of which indicate the existence of mature and predictable markets, patent infringement insurance is essentially unavailable because it’s so unpredictable.

Much infringement is inadvertent. Defendants tend to be large and to invest more in R&D than plaintiffs – in fact, the hazard of patent litigation increases with more R&D. Pirates would do better by increasing R&D and hiding their tracks; this is further evidence that independent invention drives most patent lawsuits, as with the Blackberry. Parties are often in different industries and patent in different technology classes.

The harm of notice failures is greater than the harm of low-quality patents.

Structural features of the relevant industry to some extent drive patent prosecution. Maybe with more valuable technologies drive investment in patenting, but he thinks the causation flows the other way – the cost of defining clear rights changes the property people try to stake out.

Mark McKenna: What about protection by other means? Trade secret, copyright (for software), trademark.

A: That may affect the differences between industries. We may be giving more rights where they’re least needed.

Josh Sarnoff: Blackstone saw the difference between protecting real property, where possession helped give notice, and protecting ideas with embodiments. Abstract claims are used to control presently unanticipated potentials, and that’s just wrong.

A: Software is interesting as a general-purpose technology – along with business methods. There’s an abstractness to the invention which generates more abstract claim language.

Jay Kesan: Your analysis suggests that the only good patentee is one who invests a lot in R&D. You privilege technologies that require a lot of investment instead of the tiny inventor.

A: Independent inventors, nonpublic firms, and universities: We can estimate the patent premium for those different groups; for some of them (university profs) there is essentially no risk. The patent premium for small guys is smaller than the patent premiums for big firms, but the costs are also lower – there’s a net benefit for small guys, whereas there’s a net tax for big companies. Small guys will make most of their money by licensing. Still, improving notice quality would be good for small guys (by enabling licensing?).

Mark Lemley: What is to be done?

A: A rigorous indefiniteness doctrine. If we can’t make the notice function work and if patent isn’t really property, then we shouldn’t have strong injunctive remedies – and this could be industry-specific, depending on how easy to define technologies it is per industry. Even in pharma, the value of patents has declined over time, perhaps because of new problems with biotech.

My comment: I'm a little disturbed by the idea that the licensing thicket that exists in movies is a model for a well-functioning system. Right now, until insurers start accepting the documentary filmmakers' fair use principles, you can get insurance against copyright infringement if and only if you rigorously license or cleanse your film of obvious references to identifiable copyrighted works. This is hardly an ideal system.

The orphan works problem is a separate indication that notice is not exactly working perfectly in copyright. Moreover, the insurance system that works so well for Paramount works not at all for individual/amateur film productions, which now risk discovery by copyright owners if they're posted on YouTube.

What the E&O market shows is that the large-scale commercial film industry can produce works by editing and distorting their products more easily than a big tech firm can avoid patent infringement. But that's hardly a recommendation.

Works in progress: Mark Lemley

Note: I'm not a patent type. The shorthand flew fast in this discussion, and I couldn't necessarily unpack it. Lemley's paper is available at the conference website.

Mark Lemley, The (Unnoticed) Death of the Doctrine of Equivalents: Unrelated story: The CEO of Research in Motion, the company that just paid $612 million on a patent troll, just bought the Pittsburgh Penguins for less than a third of that.

Perceived abuse of the doctrine of equivalents was the troll phenomenon of the 1990s. All patent owners were asserting doctrine of equivalents, swallowing the rule of literal infringement. Courts then created a variety of rules to restrict the doctrine. Most significant and highest profile, prosecution history estoppel limits the doctrine of equivalents. The Supreme Court applies a “foreseeable bar” of surrender of rights under the doctrine.

Great test of how patent world reacts to exogenous legal shocks – 3 different rules for the doctrine of equivalents. Thus Lemley & colleague collected data for the 18 months before and after the 3 relevant opinions, which created a set of over 400 cases. Of course there are limits on using only written cases, but he doesn’t think they’re systematic problems in this data set.

(1) The changes in the rule in Festo had no statistically significant effect on virtually any set of outcomes, even in cases of prosecution history estoppel based on amendments and not arguments. (2) The reason is that by 1998 the doctrine of equivalents was already dead. Patent owners almost never win on equivalents.

Total win rate on doctrine of equivalents is 24%, small compared to theory of efficient litigation and small compared to results in patent cases, where patentees win more than half the time. Somewhat more likely to win in district court (31%), 17% in the Federal Circuit, but that’s an artifact of pre-Festo district courts – they learned from the Federal Circuit. Two-thirds of these wins are surviving summary judgment. Defendants win summary judgment 79% of the time. Less than 10% of cases actually involve final patentee wins.

Subset of cases involving prosecution history estoppel: plaintiffs win 14% pre-Festo, 31% mid-Festo, 33% after Festo. Not statistically significant, and radically counterintuitive. Couldn’t more people be raising bad prosecution history estoppel defenses because Festo encouraged them? No change in absolute number of cases filed. Also, most of these cases had been pending for a while when these cases happened. Finally, the share of cases talking about amendment prosecution history estoppel actually dropped.

Industry-specific differences show up very strongly in the number of cases. Mechanical inventions: 33% overall universe, 62% of the cases using the doctrine. Software: 8% overall, 22% equivalents. Electronics, 8%, 20%. Chemical and biological areas are underrepresented. The doctrine may simply work better in sets of claims that are harder to map to products. But there is no effect of industry on outcomes.

Also tested doctrinal formulations – it turns out accused infringers are happy with the “all elements” rule – patentees win 18% of the time when courts use that formulation, but more often with “function, way, result” tests.

Means plus function won’t help. The patentee won 5% of means plus function cases.

Why did the doctrine of equivalents die? Hypothesis: Markman. Once the Court decided that claim construction was a question of law, trial courts devoted a lot of time and energy to analyzing the literal language, and were usually in a position to grant sj one way or another on literal infringement. If they didn’t reject the doctrine of equivalents, they’d then have to hand the whole thing over to the jury to undo their hard work. Thus they were inclined to rule against the patentee. Unintended consequences of one area of law for another separate area.

Don Chisum: The doctrine may be limping, but it’s not dead. Patent owners and their contingent-fee lawyers look at a Blackberry case and think a 5% chance of winning looks pretty good.

A: Absolutely – it’s hyperbole. “Serious injury” would place at a lesser law review, but perhaps we should change the title now.

Michael Meurer: Empirical work on courts claimed that the doctrine was important to patentee-friendliness in the 1980s.

A: We don’t have the data, but we’re looking at the early 1990s. What we can definitely reject is the idea that the doctrine continues in strength through the late 1990s.

Jay Kesan: In claim construction, you’ve already interpreted the file wrapper and the rest of the history. So you’ve already decided the estoppel question, in a way.

A: But we see that patentees lose cases not just about estoppel, but about any issue of equivalents, including “all elements.” Your theory may be at work, but it can’t be the only reason.

Q: Did you look at argument-based estoppel cases?

A: Yes. The results are the same.

Q: Fed. Circuit developed the “clear and unmistakable” doctrine for limiting claims through prosecution history when assessing literal infringement – making literal infringement easier to find, so why do you need equivalents?

A: That’s true, you’re often not going to get to equivalents if you’ve found literal infringement. Some district courts will do both to insulate themselves from appeal, but they’re usually inclined to make the literal infringement result go in the same direction as the equivalents result.

Q: If patentees are doing so well on literal infringement, maybe only the really weak plaintiffs need to try equivalents.

A: That’s possible – if claim construction is really broad already, then equivalents is only invoked by losers. Our data gathering may be able to help resolve this.

Eric Goldman: What about the claims that did win under the doctrine? Were they a stretch, or a good use?

A: Hard to do that in a statistically rigorous way. The quality of the decisions is all over the map, from one sentence to extremely detailed – a plurality of the cases apply more than one test for equivalents. Without a baseline, it’s very hard to tell whether the cases are “good” or “bad.”

Dennis Crouch: The DOE is a settlement tool, providing fuzziness and allowing for compromise. Does that create a problem with the litigation dataset?

A: How would it systematically bias the dataset? Lemley has problems with the Priest-Klein hypothesis in patent law, but to the extent it applies it should push the win rate to 50%, making the results here interesting.

Works in progress: Dan Cahoy

Dan Cahoy, Confronting Myths and Myopia on the Road from Doha: His interest in the topic grew out of discussions about a potential bird flu pandemic, which could have created a massive need for Tamiflu, a patented product. If the patent had been overridden for public health reasons, which countries should have been allowed to do so and what should they have had to pay for it?

What is the purpose of compulsory licensing? Views have changed over the years. Traditionally it was considered a way to promote home industries, as with the requirement that patents be worked in the country. That’s disappeared as a rationale. The primary rationale now is to increase access to public health. Secondary category: remedial licensing to remedy antitrust violations.

Once access is our goal, the mechanism becomes of interest. Most research and commentary concerns what will trigger compulsory licenses, presuming that the compensation will be low. But compensation is an independent variable from what triggers the license, and looking at it might offer some solutions not otherwise apparent.

Myths of remuneration: (1) license must always be something less than market value; (2) a submarket rate is adequate or reasonable (there are problems determining what reasonable compensation is because a drug is usually just part of a company’s portfolio; what perspective are you going to take, the value of what the drug does for the user or the value of the investment to the shareholders?); (3) remedial antitrust licenses offer a model (punishment for badness isn’t the same thing as licensing for greater social good, and antitrust-imposed licenses are artificially low, often zero, because they’re designed to deter bad behavior rather than to affect levels of involvement in the industry).

His proposal: Move toward default regimes preserving innovation incentives but also access where necessary. Suggests default of market compensation, including in LDCs. Compulsory licensing is not a way to lower prices, but to solve emergencies and permit a relief valve. The model would not be that different from infringement. Under most cases, compulsory licenses wouldn’t be favored – only when a patent owner is charging a supercompetitive price.

If there were an industrial development rationale for licensing, that would change things.

How do we maximize access under these conditions? Under TRIPs, any country can do a compulsory license, and adequate remuneration isn’t defined, so it’s relatively arbitrary. We should try a hybrid: In a pandemic that impacts countries across the spectrum, industrialized countries should pay market rates, developing countries should pay development-indexed royalties, while LDCs should pay no royalty. If we really care about access, LDCs are the ones with no real ability to pay (and thus no potential gain to the patent holder). This would at least allow drug companies to do better predictions.

Works in progress: Mark McKenna

Mark McKenna, Trademarks and Contextual Meaning. Past project: consumers historically weren’t at the center of TM law, and we need a new way of attacking TM law other than saying that it’s gone way beyond consumer protection. It has always been producer-centered, with a thin candy coating of consumer protection to make it more palatable. There has been a substantial change in TM law’s focus, but not the one we’ve been thinking about.

Rather, the concept of the interest to be protected has changed. Trade diversion was the core of the old system; the new system is about protecting brand value. Traditionally, the mark’s purpose was matching, mediating a relationship between consumers and producers. It had no value in itself, only in preserving a flow of consumers finding the products they wanted. Schecter comes along and says that TMs have value in themselves, for reasons related to changing marketplaces. “Buick” means cars and related concepts, rather than simply linking car buyers to GM. Thus its ability to mean deserved protection from TM law.

The mark is now the center of a set of associations, with products receding to the background (if not gone). The mark has many meanings, but none necessarily has anything to do with the product. Thus it can attach to anything and can be harmed by distant uses.

Potential harm to the brand seems to be conceived in two ways, beyond trade diversion: (1) use by a third party not under the control of the mark owner that might create new negative associations that would impact the brand in its own markets – (a) could affect ability to recall the mark unaided, (b) could create new substantive associations; (2) use by a third party limits the scope of possible expansion of the brand, which these days is infinite.

In this new conception, all harm is dilution. Even if we’re saying consumers are confused about association in a distant market, the reason we care is that it might change the nature of what the mark means, which is dilution.

This conception ignores contextual elements, which the marketing literature recognizes. In marketing, context is everything. Most TMs have non-TM meaning. Apple isn’t just a computer (it’s a dessert topping and a floor wax!). Non-trademark meanigns compete if we are exposed to a term in a vacuum. At least Schecter was trying to focus on made-up words. Of course we’re not exposed to marks in a vacuum, which is why it’s not that hard to make the right associations and avoid the wrong ones.

When you start looking at context, whether an association will transfer from one product to another depends on fit between the products, the appropriateness of the association in the second context, whether cues are present to activate an association, and the dominance of the brand in its category (the effect of which is somewhat ambiguous). Dominance is a function of what brands you remember when cued with the category. Marketers want category dominance, but there’s some evidence that, regardless of dominance, use of the mark in other markets actually helps recall of the parent by activating its associations.

The tools of TM law map poorly onto these concepts. Strength measures exposure, not relative dominance. Distinctiveness has nothing to do with dominance; there are many dominant TMs that aren’t particularly distinctive in a TM sense – that’s because marketing is about brands, not about marks. Fame in the new statute isn’t defined with regard to market segment. We need some new tools.

Q: Marketing factors look like likelihood of confusion factors – “fit,” cues, etc. – are consumers going to make the association?

A: Except that in a lot of cases the legal analysis would find confusion where the marketing analysis would find no effect on the preexisting brand. Even if consumers think there’s a relation, they just don’t care – but the likelihood of confusion factors say that the plaintiff wins in that case.

Q: Migrating associations over time: brand managers think of brands as elastic and changeable. How does that affect the analysis? There are a wide range of brands – “Betty Crocker” doesn’t need much context to be identified.

A: Yes, there are a wide range, and a bunch of the dominant ones need context!

Q: Note that online, you may just get a contextless search using a TM term. That may affect the analysis.

A: Maybe. (But as questioner Eric Goldman has so persuasively written, lacking context for the mark doesn’t mean that we should infer confusion or dilution – other explanations are a lot more plausible when the term is used in guiding search.

Q: Is this about confusion or dilution?

A: Once you get to sponsorship/affiliation confusion, it’s only a baby step to dilution, so we should be concerned about those kinds too.

Lemley: Once you take the consumer protection out of the equation, why is it that we want to protect brands? There must be some subset of legitimate interests in brand value?

A: There’s a way to write consumer-centric TM law. But descriptively consumers haven’t been and aren’t central. McKenna doesn’t have a great answer yet – part of this is looking at the harm on its own terms. He’s not sure there’s something real left over.

Lemley: Yeah, but without the consumer, all we’ve got is “If value, then right.” (Which we know is bad.)

Q: What about free riding?

A: It’s not a harm to the market. It’s a potential harm to an individual market participant, but not a legitimate basis for law

My question: This objection to dilution makes a lot of sense. But it doesn’t deal with a separate big dilution problem: Insinkerator, Caterpillar, others who huff and puff when there are negative or humorous references to them. That relates to the fact that this presentation didn’t once use the word “tarnishment.” If you buy the associational analysis, are you committed to tarnishment?

A: Hoping no one would ask that. Harm to a brand can occur from acts that change the associations connected with the brand, so tarnishment is a potentially legitimate harm. There are reasons not to provide a legal remedy, such as the First Amendment, but at least it exists.

Q: That goes back to the question of why we care. Even if the brand owner is harmed, what justifies a cause of action? Maybe the answer in blurring is search costs.

A: He’s trying to call the search costs justification into question. The marketing literature says Buick for shoes won’t interfere with search for Buick for cars.

Irene Caboli: What other reason to protect TMs is there other than consumers? Property rights justification – people will make more of whatever they have rights to.

A: Sure, TM is industrial policy and we should speak in those terms.

Q: Is that compatible with the constitution?

A: Commerce clause these days allows a lot of breadth.

Gerard Magliocca: The standard being applied in many cases is not a reasonable consumer standard, but a dumb consumer (15% dumb) standard. You may have to deal with that to get where you want to go.

A: The marketing literature imagines consumers to be pretty dumb.

Q: Even if associations are nonharmful or beneficial, it involves risk. Why should mark owners have to bear the risk? Especially when noncommercial contexts increase risks to marks more these days, TM owners need some help from the commercial side.

A: Good question – relates to Mark Goldman’s point about mark elasticity over time. We may want to allow mark owners to control (to the extent possible).

My question: I can’t make the property rights justification work for brand value, which isn’t about maximizing the number of TMs created (the usual, not-very-good property justification) but about maximizing the associations in a person’s brain. What does it even mean to maximize brand value? How do we compare that to a situation in which there are a lot of brands, each with some value? It seems incoherent to me.

A: He’s trying to take the harms seriously and to talk about whether they’re real. Maybe they won’t justify legal protection, but we need to define them first, with less speculation.

Works in progress: Bruce Boyden

Bruce Boyden, Copyright’s Middle Ground: The Role of the Player in Creating Video Game Audiovisual Displays. Players control what they look at, what they do (sequence of events), and the like. If the game developer wants to fight knockoff games which don’t reproduce the underlying code but do reproduce sight and sound, can it claim copyright ownership of the display?

Arguably, the display wasn’t fixed by the developer because it changes with play. Also, it isn’t original to the developer because of the player’s contribution. The relevant law was developed in the early 1980s for arcade games, and it was totally favorable to the game developer. There were enough constants and constraints determined by the developer that were the same in any play that the player didn’t have much affect on the display. The court treated them as essentially cartoons with minor player-controlled features. Judge Newman noted that future games might be different, but refused to draw any lines.

We have arrived at Newman’s future. Most games aren’t simple repeating sequences any more. Now players control camera angles and can change the display at any time.

Twenty years ago, Pam Samuelson went through the possibilities: (1) Player ownership of the display (weird result, because the player is more of a performer/athlete attempting to achieve some sort of goal, not an author). (2) Developer ownership of the display, despite conceptual problems. Samuelson argues that ownership of all the possibilities, even possibilities the designer hasn’t imagined – Red v. Blue, anyone? – overcompensates the developer. (3) Joint ownership – fails for the same reason (1) fails, since mostly the player doesn’t intend to act as an author. (4) No one owns the AV display. Samuelson criticized that result as underincentivizing distribution of works resulting from playing the game. Boyden thinks this is the most promising answer. It reveals something about what it means to play a game. Games are different from ordinary copyrighted work because players’ actions form an integral part of the work. Play is functionally equivalent to real-time perceptual experience of a book or film.

Games are meant to be played in the same way that books are meant to be read and films meant to be watched. Such activities are all outside copyright’s scope. Boyden analogizes gameplay and the thought that occurs when a person watches or reads a different type of work. His resolution explains the puzzle noted by some that imagination seems to allow people to infringe the derivative works right just by holding story variants in their own brains. Either copyright law is ridiculous, or there’s some sort of implied exception here – Boyden thinks it’s the latter. An ad hoc exception for brains. The user’s experience, which is outside the scope of copyright, is taking place in the brain for films and books; with games, there’s a feedback loop and the user’s experience is manifested outside as well.

Q: To what does the initial property right attach? What can the game developer claim as works of authorship?

A: Boyden got into the question by playing Counterstrike and recording demos. He wondered whether he owned the recordings. The answer he came to was that the game developers’ rights are not rights in an AV work. The only solution: they are some unclassified work under §102. They’re interactive works. The developer has a right in the setting, the scenario, like a set for a play or for an improvisational performance. Music, any scripted sequences, props, etc. – that’s what gives them a right to go after knockoffs. But they don’t have a right in the AV display per se. They may still have rights in the appropriation of the materials that appear in the background.

Q: So if someone makes a greatest hits CD of Halo and sells it, can Microsoft sue?

A: Microstar v. Formgen, with mod files, which are different – they’re add-on code. The hypo is different. Maybe it’s like a form of fan fiction. Cases involving movies might apply here (e.g., the 12 Monkeys case, where putting a chair in one scene leads to an injunction). Boyden finds those cases highly troubling.

Q: Is playing the game the same as playing the work? Aren’t you playing “with” the game, which conceptually separates you from the work? The developer is mixing the expression with functional features that allow it to work as a game. That might help us think about allocating rights and who’s generating the value.

A: He agrees there’s an accidental overlap between uses of the word “play” for DVD movies versus games. You can’t infer from the fact that games are being played that they’re being performed. Developer gives an implied license to play by sending the game out, and perhaps to play it publicly if it’s an arcade game. This was missed by an earlier court decision which found that playing a game was an infringing public performance.

Comment: Julie Cohen’s work on degrees of freedom and freedom to play and how they’re outside of the uses copyright owners should control is relevant here.

Works in progress: Jane Winn

Works in Progress IP Colloquium at Pitt. Program with abstracts and papers here (papers will come down some time after the conference, so that authors can revise). As usual, I focused on trademark and copyright papers to the neglect of patents, and had to make some tough choices. These are notes, not a transcript.

I was interested in the dean’s suggestion in her intro that works in progress conferences are part of the internet-pushed transformation of legal education, involving more outreach to new audiences. I hadn’t thought of it that way (and I also haven’t been teaching long enough to see a change), but I imagine that it can make a difference. People do show up at conferences with works in progress regardless, but perhaps we’re willing to take more risks with “WIP” conferences.

Jane Winn, Legitimate Authority in the FOSS [Free and Open Source Software] Community:

FOSS matters because certain FOSS products have significant market share (Firefox, Apache, Linux servers) – modest player in some big markets, major player in some niche markets. It’s also spreading as a model, to things like Creative Commons.

How she got into this project: Did a project for the Shidler Center for Law, Commerce & Technology (originally funded by Microsoft, but now abandoned by it) – lots of hostility from FOSS community because they were presumed to be Microsoft shills. At one level, that’s not true; at another, a conference on the commercialization of FOSS may have inevitable normative implications. They got three federal circuit court judges to do a moot court on the scope of the GPL, about which practitioners are desperate to have some precedent. If only they could actually have ruled! To get participants, they had to write a phony, pseudo-GPL to debate instead, and even then it was hard.

Why such anxiety? Practitioners didn’t want to support the Free Software Foundation because they think it’s wrong, but they didn’t want to say so in public because they were afraid of enforcement actions.

In the light of harsh questioning, the FSF’s more expansive claims for the license (pseudo-license) broke down. That’s why they don’t want a public debate.

GPL: Creates a huge problem of noise, because it’s a manifesto and not a license if you read it as a lawyer.

The reason the FSF fights so hard to suppress discussion about the scope of the GPL is that their claims are fragile. (Discussion of this on the U. Wash. Website, she says. The big problem relates to derivative works – if you have a commercial open source business model, how close can you get to the GPL product and make your program functionally integrated before you get too close? Many people want to leverage the market share of Linux for their own commercial products, relatively conventional proprietary software models. The FSF has taken different positions over time, but they suggest that proprietary software would often have to be made open source. The property contract/license dispute exists, but it’s not as important.) The FSF claims to speak for a large movement but the loyalties of the participants are tenuous. There’s a political constituency (people who want to challenge capitalism), a professional constituency (problem-solvers), and a commercial constituency (IBM).

Allegiance of tinkerers to Stallman’s agenda was initially quite weak. Now, the demographics are different – the political constituency is weaker, and the professional also weaker because the commercial constituency has jumped to ¾ of the community. Here the community is defined as including people who go to work and use Linux servers, who didn’t do anything to choose Linux.

Question: Why assume that the masses have any influence if they’re just foot soldiers? Answer: Because the FSF is so terrified of them. Commercial companies support FOSS because it gives them leverage against Microsoft, but they think the FSF is nuts – there’s a huge amount of hypocrisy. (Still not seeing influence from the 75% of the community that are mouse potatoes working on the servers. Maybe this analysis needs a fourth class, managerial or administrative.)

Theory of legitimate authority in the FOSS system, tracking Durkheim: Early hacker culture had norms though they weren’t formalized. It was tribal. Charismatic leadership emerged for FSF. Leaders have a calling to lead, and followers also believe. They’re strong as long as followers have personal ties. It’s very hard to routinize. This is Stallman!

Legal-bureaucratic authority: Linus Torvalds personalizes the shift to administrative organs with specified spheres of competence, hierarchical organization administered by officials. Big commercial groups can live with this type of organization. Torvalds is happy with commercial groups that interpenetrate with Linux.

Legitimate authority in the professional class involves work that can’t be fully commodified because it is specialized or requires discernment; neither market nor bureaucracy provide the right incentives.

Anglo-Americans are particularly deferential to professionals. Today, historical status professions like lawyer and doctor are being eclipsed by occupational professions (hairdresser, engineer, now separated by a difference of degree and not category because they both have control over specialized knowledge). Software engineering lacks many of the professional standards that other engineering has. Innovation professionals are therefore reinventing the historical moral mandate of professionals to protect the public interest into a mandate to maximize accountability to outside review.

Winn loves the Apache way: a culture of mutual respect for contributions. Aphorism in the Apache community: “Let Darwin Decide”: put your proposals out and remain sensitive to the responses you get. Apache might be able to survive and grow, but it might also be limited to the people who are very committed to it now – their model is psychologically intense.

The GPL isn’t incompatible with outside accountability, though the FSF isn't accountable. The new GPL revisions expose the fragility of the FSF’s sweeping claims, which are going to split the community. Corporations can live under modified reciprocal licenses if they’re not on the receiving end of FSF enforcement actions. Right now, they have to act as if they’re complying fully with the FSF's interpretation, which raises the cost of doing business – it creates uncertainty about the implact on of FOSS on the value of other IPR, and uncertainty about their rights to integrate proprietary products with GPL products.

Basically, early governance structures are ill-suited to present commercial reality. Can a new model of innovation professionalism replace the combination of charismatic leadership and commercial acquiescence that exists now? Winn doesn’t know, but she hopes it can.

Unkindest Cuts?

Cuts promises "You bring the video, we bring the edits." Users can condense video, mash it up with other video, create popup commentary, even recast movies with different actors. By separating the edits from the underlying movie, Cuts believes it's complying with copyright law. Cuts promises to work with multiple formats, including protected WMV files and files downloaded from the iTunes Store. You can share your "cuts" with anyone else who owns the same file. But the original content is never shared or altered, which is why Cuts thinks it's complying with copyright law: its editing software is even called a "virtual remote control." (Separate query: does using Cuts violate the iTunes contract? If so, is Cuts therefore tortiously inducing breach? The current contract doesn't seem to prohibit this conduct -- but give it time.)

We never did get an answer to the question "Does a ClearPlay program create a derivative work?" Because what Cuts does goes beyond that authorized in recent amendments to the Copyright Act, perhaps that question must be asked now. Some discussion from Cuts here. Video demo here.

I am particularly interested in the attribution aspects of this. Cuts contends that, by separating edits and original content, integrity and proper attribution are assured. No one could mistake one for the other. That's surely true of the parents using this to edit out the scary scenes of Finding Nemo. But I can't reconcile the attribution-safety claim with the simultaneous boast that, because there will be more viewers than editors, people will be able to download others' edits rather than redoing the work for themselves. If they're not familiar with the underlying content, they won't be able to distinguish the original from the edited version -- and certainly their kids won't.

A shot across the bow for notice pleading

Evco Technology & Development Co., LLC v. Buck Knives, Inc., 2006 WL 2773421 (E.D.Pa.)

A patent owner who doesn’t manufacture or sell the patented product itself still has Lanham Act standing to challenge a defendant’s false claims about its version of the patented product. In this case involving bows for archery, the court refused to dismiss the plaintiff-patentee’s claims that defendant made false or misleading statements about “the nature, characteristics, qualities, or geographic origin of the Infringing Bows”; the identity of the company selling and providing the lifetime warranty on the bows; and “[defendant’s] authorization to manufacture and sell Infringing Bows in the United States.” As with many such cases of false statements about IP rights, materiality seems to me a serious issue, though not one that can be decided on a motion to dismiss.

The court found that the patentee had standing even without allegations that it sold or made the patented product, because defendant’s activity “directly affects [plaintiff’s] reputation and goodwill arising out of its ownership of the [patent].” The ultimate result makes sense to me, but courts ought to be careful not to take this rationale too far, or the result will be an easy evasion of Dastar by claims that a defendant’s copying affects a plaintiff’s goodwill.

The court also ruled that Lanham Act false advertising claims need not meet the heightened pleading requirements of FRCP 9(b), but needed to offer more particularity than traditional notice pleading under Rule 8. The 9(b)/8 question has divided courts considering Lanham Act claims. I understand the appeal of a sort of “Rule 8.5” solution in giving defendants a little more notice of the claim without requiring plaintiffs to plead all that 9(b) requires – since many elements required by 9(b) aren’t really suited to claims dealing with a traditional advertising campaign. But calling it a “Rule 8.5” solution highlights the problem: Notice pleading is the federal rule in the absence of special circumstances. If those circumstances aren’t present, as they aren’t with Lanham Act claims – which don’t require fraud – then a median solution isn’t justified, because for the purposes of the federal rules there is no problem in need of a solution.

Here, the court found that the complaint’s allegations were sufficient to satisfy this “notice-plus” standard, because it referenced and incorporated defendants’ promotional brochure containing the allegedly false/misleading statements. Obviously, plaintiffs are well advised to incorporate the advertising they’re attacking into their complaints. But since no one knows what the “notice-plus” standard really requires, it just introduces more complexity and uncertainty into the process.

Let them eat trademarks (and copyrights)

Jane Fisk makes cakes. There's Vuitton cake, Harrods cake, Guinness cake, Encarta cake, Smaug cake, Testarossa cake, Superman cake, architectural cake, a truly impressive Discworld cake for her daughter's wedding, and my personal favorite, a DRD cake. If you know what that is, you're my kind of geek. If not, Netflix can help.

Does turning a Vuitton bag into something that gets sliced up and eaten constitute dilution?

TPRC: Return of the commentators, and Q&A

Faulhaber: The tone of these remarks is different from the book. The book says the whole world is changing, it’s all new. (Note: Though I believe in multiple readings, I think I read the book that Benkler thought he wrote, which is perfectly consistent with his remarks.) Faulhaber agrees with Benkler’s criticisms of copyright, so he plans to tear out the front page of the book and republish it under his own name.

Sohn: Of course that’s not what Benkler said. Rather, he argues that the history of large companies using copyright has resulted in less production, not more. He said nothing about stealing.

There are plenty of places where accreditation and relevant information is found. The difference is whether it’s user-driven. YouTube kicked up the net neutrality debate by widely distributing the Stevens “the internet is a series of tubes” speech (and remixes); it has possibly affected George Allen’s political future by popularizing his “macaca” remarks. Even if there are plenty of trivial videos there, it’s already making a difference.

Benkler understates the extent to which entrenched industries use regulation to stifle competition out of desperation.

Noam: (1) Benkler sounded much more reasonable in the presentation. User-generated content is important, but it’s only one of many ways, whereas the book seems to say it’s taking over the world. (Here I started to wonder about the shift to “user-generated content” from “peer production.” Isn’t CNN a “user” of information? What ideologies are assumed in this terminology? Benkler also made the point later that “user-generated content” is a subset of peer production, though I’d probably say rather that there’s a Venn diagram overlap between them.)

(2) We should discuss the negatives of networks. Diebold is a great story of unsuppressability, but there are other examples. (Like unsuppressable dissemination of major label music, maybe.) The effects of populism on politics may not be good.

Cohen: One important question is about the interplay between mass commercial culture and what people do with it. Lots of smart people at AOL, Disney et al. realize that mass culture depends on pop culture. They are not so much interested in stomping out participation as in conditioning it on staying within certain channels (venue, good taste, etc., as with the new Warner deal with YouTube that lets Warner remove fan videos instead of sharing revenue from them). Current stakeholders hope to use the internet to intensify and exploit our fascination with television – that’s one vision of interdependence, in which popular desires are coopted and channeled.

But lipsynching on YouTube is the kind of thing 12-year-old girls have always done. Cohen’s aim: The terms of your interaction with pop culture will not be completely framed for you by someone else. We need to research those terms and how they’re changing.

Weiser: Benkler challenges us to take peer production seriously on its own terms rather than assuming that it has to stack up against television (which it can, in some cases).

David Waterman, Indiana: Established media dominate through marketing and distribution, allowing them to raise funds and produce quality materials. Can we see peer production as a talent selection mechanism? It encourages more people to experiment, producing job interviews for the mainstream media, improving the established players.

Benkler: He tries to emphasize that selection is a discrete information problem and peer production is applied to it no less than to the initial flow of information. Agenda-setting can be unbundled from selection and from the ability to generate, store, and distribute information. The comment assumes that the public sphere continues to rely on the same actors’ judgment, but peer production improves the quality of that judgment. Benkler argues that agenda-setting and selection itself is also affected by peer production.

When you’re looking at a relatively limited number of channels, 3 or 500, you still need a relatively broad audience. With millions of people, the selection is inverted: you look for information that’s intensely interesting to engaged people rather than moderately interesting to many.

David Post: Is it coincidental that the internet is itself a consequence of peer production? [Hmm. I seem to remember a debate about this on cyberprof.]

Benkler: Hasn’t thought about that. Because current trends come from bootstrapping on initial capability, it’s worth thinking about.

Mike Nelson, IBM: Nelson is very worried about efforts to inhibit the next generation through standard-setting. ITU is developing the next-gen network, including bottlenecks allowing companies to shut down Skype, YouTube, or other “noncompliants” at the network layer.

Sohn: We aren’t paying enough attention to this in policy circles. [I think that’s what she said but I may have misheard her.]

Stuart Benjamin, Duke: Are we worried about information cascades, creating like-minded neo-Nazi groups? Deliberation leaves people more polarized by reinforcing their views.

Benkler: The one study he knows indicates that right-wing blogs link to left-wing ones marginally better than vice versa. One in six links is across the divide, which is actually pretty good, given that in normal conversation we spend lots of time reinforcing each others’ perceptions. It’s all a question of baseline (Fox or InstaPundit?). Compared to the past fifty years, it’s an improvement.

There is no question that terrorists use the internet. The internet makes human action more effective, and some humans are bad. It’s a policing problem. But will strong copyright (or pay-as-you-go instead of net neutrality) make the internet less useful for terrorists? If the internet gives us a neo-Nazi congregation, have we undermined democracy or complicated policing? At least in the US, Benkler doesn’t think we’ve caused harm to the construction of the public sphere – the concentration may make the neo-Nazis more visible in good ways too.

Polarization means that people don’t talk and don’t see each other. Fringe groups cohering on the fringes, and possibly getting more dangerous, is a separate problem.

Cohen: The question presumes that we can avoid information cascades and get to the right decision. She doesn’t think that is correct. The nice thing is that the open architecture of the internet lets you see that cascade happen. On Nelson’s question about standards: governance questions are being played out in standard-setting. Decisions will have cascade effects on lots of behaviors but we don’t see those decisions. That’s not better.

TPRC: Benkler speaks

Yochai Benkler, Yale: I would recommend not relying on a mildly obscene caricature in lieu of reading the actual book.

The cost of starting a daily newspaper in constant dollars has shot up over the century, which bifurcated us into producers and consumers. But now costs are changing in a different way. In raw teraflops, SETI@home dwarfs single supercomputers – though both are well above where they were two years ago. The result is a radical decentralization of capitalism: 600 million people have the physical capacity to communicate on the internet. Inputs into core economic activity are widely distributed in industrialized nations for the first time since the Industrial Revolution.

Peer production involves large-scale collaboration without price signals or in-firm direction. Peer production behaviors have always been there, but they’ve changed salience. You still can’t produce with your friends on the weekend a car that will compete with a Toyota, but you can produce something that competes with Britannica.

If peer production is not notable, then Apache’s share of the server market is unsurprising, Wikipedia’s ability to compete with Britannica is old news, Bill Gates surely anticipated that Corbis would have to compete with Flickr for stock photography – peer production isn’t new, but its effects are.

A novel or Hollywood movie can’t be done through peer production – the point is to figure out what can be done. How do we resolve questions of cooperation through mechanisms like granularity?

There is a related shift from well-behaved appliances like TVs and CD players to production tools like PCs. The bifurcation between commercial and consumer goods is blurring.

Businesses are trying to figure out how to use this. IBM is making more money from Linux services than from patents (I think I missed a qualification of this claim – don’t blame Benkler if this is inaccurate). The BBC is getting cellphone pictures for reporting on things like recent bombings. Google captures individual judgments about relevance, builds Blogger to generate more content, allows annotation of maps, runs on GNU/Linux servers. This isn’t a fad or bubble 2.0, but a sustainable and growing movement. But it is a threat to and threatened by incumbent business models which seek regulatory intervention. Examples: software patents, attempts to mandate trusted systems. These regulatory interventions are the key to the future.

The internet is a source of democratization. In 2002, the mainstream media didn’t cover the rollout of voting machines, but one activist got ahold of some Diebold files and posted them for anyone to look at. One academic did so and found interesting results. Someone sent the activist a bunch of Diebold emails and put them up. She got a DMCA letter, but copies had already spread to Swarthmore and elsewhere – they could not be suppressed. The content of the emails revealed that voting machines had not been properly certified in California; the revelations led to decertification of many machines. The Swarthmore students ultimately won a court case against Diebold, but that came long after the election: The internet was the source of democratization.

The first generation critique of internet democratization is that it will lead to a Babel of chattering voices.

The second generation critique invokes power laws to say we’ll all still be watching blockbusters, so nothing will change.

Benkler is Goldilocks, as he discusses in Chapter 7 of Wealth of Networks. He is making an empirical claim that the internet supports topical clusters of interest and mechanisms of peer review that move certain information up in visibility. We are not all pamphleteers, but we are not all lemmings. These changes make us more free, not completely free.

TPRC on Peer Production: Opening comments

TPRC, The Promise and Perils of Peer Production: Evaluating Benkler’s Wealth of Networks, moderated by Phil Weiser, Colorado:

Gerald Faulhaber, Wharton: Is social production a revolution? Of course it’s not new. Volunteer teachers, coaches, fire departments, newsletters are social production. What is new is change in costs. Social production isn’t the only thing affected by decreased cost of production – consider retail financial services. (I’m pretty sure Benkler recognizes these points.) Microsoft may badmouth open source, just as it badmouths Oracle; we shouldn’t expect Bill Gates to roll over because our hearts are pure.

Benkler offers a standard characterization of private property as a right to exclude, but also as a right that lets corporations control what we see and hear. Media moguls bend us to their will. He doesn’t think competition overcomes these problems because of transaction costs, so befuddled consumers can’t make free choices. (Wow. Way to dichotomize and ignore degrees of freedom.) Someone should tell the networks this because they’re now deciding which 60% of shows to cancel because they couldn’t get us to watch them, and the movie studios also can’t seem to staple us to the seats.

Gigi Sohn, Public Knowledge: Likes Benkler’s sense of optimism. He’s not arguing that networks create utopia or are the ultimate in democracy. But it’s a hell of a lot better than a top-down, centralized, mass-media system we’ve had for the past hundred years.

The term “governance” makes her nervous. That’s not behind the success of open source, Wikipedia, and Second Life. Rather, a policy of openness, modifiability, and transparency – an ability to have a discourse about what the community is doing – is behind these successes. Individuals have to make choices rather than get top-down instructions.

Julie Cohen, Georgetown: There are new things about infrastructure that favor peer production in certain ways, and Benkler urges we make the most of that. It’s hard to generalize about governance because there are so many different examples, so she’ll say something about Wikipedia. Wikipedia is fabulous. There’s a current effort by the Association of Internet Researchers to create a trusted Wikipedia, to avoid problems of authentication and verification, to certify a subset of Wikipedia articles as “trusted” and peer-reviewed. This provoked a lot of debate about how to do it and whether it would be a good idea. She’s not sure it’s a good idea, because Wikipedia allows a conversation about how authoritative knowledge is produced.

We had taken it for granted that there’s a system of peer review and certification that worked, and that there were obvious ways to organize knowledge (Library of Congress classifications), but Wikipedia exposes these things as up for debate. Peer review is good, but we all know it has its defects, and existing systems of academic certification of knowledge function to perpetuate bitter feuds about small things, to entrench the knowledge of certain cliques, and to do other things that aren’t necessarily aligned with fostering knowledge. We might still end up saying Wikipedia made a mistake in any particular instance, but comparing the two is an important thing for scholarship and for pedagogy – teaching your students to distinguish between the systems cultivates critical thinking in new and useful ways. Conversations about problems in Wikipedia are valuable in themselves, by encouraging scrutiny of what and how we know.

Another area: Blogging by people on both sides of Israel-Lebanon conflict sought to open up new windows on what was going on. Rapidly this raised questions: were the photos altered? How do you know what these people say is true? You don’t know. But that’s worth talking about: How do you know what mainstream journalists say is true? The answer sheds light on critical thinking generally.

Eli Noam, Columbia: We meet in physical space, about a physical book sold in private stores (though also available free on the internet), written by a single author, whose major collaborators are physically down the hall from him. Yet Benkler also says everything is different now, networks change everything. This is a tension in the book: Things are pretty much the way they’ve been. Of course it’s possible to organize things in open source, peer production ways. But networks also make other organizations possible, like the amazing gatekeeping role of just two private companies, Yahoo! and Google. Broadband and electronic auctions (eBay) are highly concentrated, which concentration is also enabled by networks.

History: every generation thinks it’s invented sex. Every generation also thinks it has found the way to overcome capitalism. There are centuries of experiments in socialism and anarchism of various stripes, kibbutzim, collectives etc. What is required for these systems to work?

Economics: Benkler sets up a straw man by defining economics very narrowly. Utility, hedonics, incentives, collective action and other concepts are part of economics. Voluntarism usually is about the fun stuff: writing scripts is fun, setting up lights is work (after the first month), which is why we end up paying people to do it. It’s true that tech has decreased some barriers to entry, but has increased others. We’re flooded with content, which means we have to improve the quality to compete, which is why films and newspapers have become more expensive to produce – if you look at cost weighted by viewership, mass content is becoming more expensive. This is where the organizational form of the firm, whether BBC or ABC, comes in.

Of course there’s room for peer production, often to generate a critical mass supporting commercialization. Example: radio, where amateurs created buzz, then entrepreneurs came in. Then the entrepreneurs used the political process to squeeze amateurs out.

Benkler, in the inverse of the joke about economists, is a man who knows the value of everything but won’t talk about price.