On fine print

The New Inquiry (excellent publication) has an essay about fine print by Kevin Breathnach:

“Always read the fine print.” With its definite article serving at once to distance and to universalize the practice, the old adage is deemed fair warning. And yet fine print asks specifically not to be read. It is a deliberately non-communicative speech act, erasing itself by miniaturization, accumulation, and esotericism….

Magritte is said to be pointing out the unbridgeable divide between representation and reality. His painted pipe is not an actual pipe. Contracts and (particularly) advertisements that use fine print operate on a similar level. The ad’s loudly stated, carefully worded attractions are representations of a proposed deal, the legitimacy of which the fine print discretely disavows. “This is not the deal,” the fine print says. On the subject of Magritte’s painting, Foucault speaks of an “operation cancelled as soon as performed,” a line that might as easily apply to advertising that offers deals too good to be true. Foucault’s second reading of The Treachery of Images is a little subtler. He suggests that what the sentence “ceci n’est pas une pipe” actually refers to is itself: “this is not a pipe” is not a pipe. In recent years it has become common for fine print to include “unilateral amendment provisions” that entitle the company to change the terms of the deal at anytime as long as they give you written notice. In such cases, the fine print is also referring to itself when it whispers “this is not the deal.”

Changed meaning is fair use, but can't justify fee award

Seltzer v. Green Day, Inc., No. 11-56573 (9th Cir. Aug. 7, 2013)

The court of appeals affirmed a fair use finding by the district court over the use of an illustration in the video backdrop of Green Day’s stage show, but reversed the award of attorneys’ fees to Green Day.  Derek Seltzer created Scream Icon, a drawing of a screaming, contorted face, in 2003:

He made copies, including large posters and smaller prints with adhesive backs, which he sold and gave away.  Many posters were plastered on walls as street art in LA and elsewhere.  Seltzer at times used Scream Icon to identify himself or his work in ads for his gallery appearances, and he licensed it for use in a music video.

Defendant Roger Staub, a photographer and professional set-lighting and video designer, photographed a brick wall at the corner of Sunset Boulevard and Gardner Avenue in LA in 2008. It was covered in graffiti and posters, including a “weathered and torn” copy of Scream Icon:

Staub created the video backdrops for Green Day’s tour in support of its 2009 album.  Each of the 32 songs on the set list got its own video backdrop, which Staub created after repeatedly listening to the new album and studied the album art, which used graffiti and street art as significant visual elements.  For the eighth song on the album, East Jesus Nowhere, Staub created a backdrop with the goal of conveying the song’s “mood, tone or themes”; he saw the theme as “the hypocrisy of some religious people who preach one thing but act otherwise. . . . The song is about the violence that is done in the name of religion.”  The resulting video was approximately four minutes long.  It depicted a brick alleyway covered in graffiti:

[S]everal days pass at an accelerated pace and graffiti artists come and go, adding new art, posters, and tags to the brick alleyway. The graffiti includes at least three images of Jesus Christ, which are defaced over the course of the video. Throughout the video, the center of the frame is dominated by an unchanging, but modified, Scream Icon.

Staub used his photo, cut out the image of Scream Icon, and modified it by adding a large red “spray-painted” cross over the middle of the screaming face. “He also changed the contrast and color and added black streaks running down the right side of the face. Staub’s image further differs from Scream Icon because Staub’s original photograph was of a weathered, slightly defaced, and torn poster.”  Still, the work was nonetheless clearly identifiable in the middle of the screen throughout the video.

This video was played behind Green Day during the performance of East Jesus Nowhere at about 70 concerts and also during Green Day’s performance of the song at the MTV Video Music Awards.  Afterwards, Seltzer registered his copyright in Scream Icon; Green Day stopped using the video backdrop, and Seltzer sued.  After the district court granted Green Day summary judgment on the copyright, Lanham Act, and related state law claims, it awarded Green Day over $200,000 in attorneys’ fees on the theory that Seltzer’s claims were objectively unreasonable.

Fair use is a mixed question of law and fact, reviewed de novo.  “Where no material, historical facts are at issue and the parties dispute only the ultimate conclusions to be drawn from those facts, we may draw those conclusions without usurping the function of the jury.”

Transformativeness is often hotly contested.  The court here drew on Judge Leval’s 1990 article defining transformative use as a use that is productive and employs the “quoted matter” in a different manner or for a different purpose than the original.  “[I]f the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings … this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”

Under this standard, Green Day’s use was transformative. Scream Icon was “raw material” in the construction of the four-minute video backdrop.  It wasn’t simply quotation or republication.  Though Scream Icon was prominent, it was “only a component of what is essentially a street-art focused music video about religion and especially about Christianity.”  By contrast, the message and meaning of the original work was debatable.  To the court of appeals, “it appears to be a directionless anguished screaming face.” Seltzer testified: “It addresses themes of youth culture, skateboard culture, insider/outsider culture, . . . it’s an iconic reference to a culture and time in Los Angeles when the image was made.” The court of appeals noted that, “regardless of the meaning of the original, it clearly says nothing about religion.”  With the cross added on top, “in the context of a song about the hypocrisy of religion, surrounded by religious iconography, Staub’s video backdrop using Scream Icon conveys ‘new information, new aesthetics, new insights and understandings’ that are plainly distinct from those of the original piece.”  Seltzer acknowledged this in his deposition, when he said that the backdrop “tainted the original message of the image and [] made it now synonymous with lyrics, a video, and concert tour that it was not originally intended to be used with.”

(Note: this language fits with my general argument that the juxtaposition of music and images each change the way the other is perceived, as I presented on at IPSC.  And it is good support for the fair use arguments of vidders, who use music and images that weren’t intended to go together to achieve precisely this transformation.  The Ninth Circuit is clearly following the lead of Prince v. Cariou in separating transformativeness from a requirement of critique, as long as the new work has new meaning and independent expressive value.)

The case law is splintered, but the court here deemed its conclusion “in line” with other appellate authority.  Publishing photos of a secret wedding, by contrast, weren’t transformative because they didn’t alter the first work with new expression, meaning, or message, and using clips of Elvis’s TV appearances also wasn’t transformative when the clips were played without much interruption and served the same intrinsic entertainment value (Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 629 (9th Cir. 2003)).  The court also distinguished L.A. News Serv. v. CBS Broad., Inc., 305 F.3d 924 (9th Cir. 2002), as involving only “plucking the most visually arresting excerpt” from riot footage, and Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70 (2d Cir. 1997), which possibly might have seemed like Seltzer’s best bet, since that involved use of a poster as a decoration on a TV show; again, the poster was used for “precisely a central purpose for which it was created” and defendants hadn’t added anything new (except the surrounding show). 

This case was more like other cases finding transformativeness “as long as new expressive content or message is apparent,” even where “the allegedly infringing work makes few physical changes to the original or fails to comment on the original.”  (Citing Cariou; Dorling Kindersley; Blanch v. Koons; Kelly v. Arriba Soft; and the other L.A. News Service holding that a montage was transformative.) There seems to be an underlying concept of integration: conceptually, the Scream Icon was integrated into, and thus transformed by, the rest of the work.  It’s hard to see a bright line between this type of integration and, say, the news reporting/documentary-lite in L.A. News Service and Elvis Presley, but that’s not a new problem, as reflected by the fact that both of those plaintiffs have also lost cases when defendants’ treatment of clips was different/added new meaning in the courts’ view.

Transformativeness plus the fact that the commercial nature of the use was limited favored Green Day: it was incidental use as part of a commercial enterprise, not exploitation of the copyright for commercial gain: the image was never used to market the concert, CDs, or merchandise.

Nature of the work: Scream Icon was creative, meriting “strong” protection, but it had already been published and widely distributed, making it more likely to qualify as fair use.  Seltzer was able to control the first public appearance of his work, which weighed in Green Day’s favor, making the overall factor weigh only slightly in Seltzer’s favor.

Factor three: Green Day copied most of Scream Icon, quantitatively and qualitatively, but the image wasn’t meaningfully divisible. In such cases, this factor doesn’t weigh against an alleged infringer, even one who copies the whole work, if it takes no more than necessary for an intended use.  This factor interacts with factor one, and here the use of the entire work was necessary to achieve Green Day’s new expression, meaning, or message.

Factor four: when a use doesn’t substitute for the original and serves a different market function, that weighs in favor of fair use.  Seltzer repeatedly testified at his deposition that the value of his work was unchanged, but that he just didn’t like Green Day’s use.  Rather than arguing that he’d lost sales, he claimed that Scream Icon was “tarnished” for him personally.  Green Day presented evidence that its video backdrop had a different market function than the original, which was primarily intended as street art.  Green Day’s use was “never placed on merchandise, albums, or promotional material and was used for only one song in the middle of a three hour touring show.”  There was no reasonable argument that this type of conduct substituted for Seltzer’s primary market.

How about traditional, reasonable, or likely to be developed markets?  Seltzer declared that Scream Icon was licensed in a music video by a band named “People.”  But he didn’t explain how much revenue he earned, how the band used the music video, or how the music video used Scream Icon. Without more, this fact didn’t show that Green Day harmed any existing or likely-to-be-developed market.  This factor weighed in Green Day’s favor.  Overall, it was a fair use.

The court of appeals turned to the Lanham Act claims.  The district court concluded that Seltzer failed to show that he used the image as a mark in the sale of goods or services.  He argued that he put Scream Icon on certain ads for his appearance at an art gallery show, but that wasn’t enough evidence that the use of the mark was “sufficiently public to identify or distinguish the marked goods in an appropriate segment of the public mind.” He didn’t show how the ads were distributed, who might’ve seen them, when they were distributed, to what shows they were connected, or any other facts that might be necessary to evaluate trademark protection.  Summary judgment was proper.  This doomed the state law claims as well.

Seltzer did get off the hook for Green Day’s attorneys’ fees.  When a defendant wins a fair use case, the key question is whether the successful defense furthered the purpose of the Copyright Act, but the loser doesn’t always have to pay.  The district court found Seltzer’s claim objectively unreasonable, given that Seltzer lost on summary judgment because three of the four fair use factors favored Green Day, and that his deposition testimony effectively conceded transformative use because he claimed that the new use “tainted the original message” and “devalue[d] the original intent” of Scream Icon.

 

But the “mere fact” that he lost didn’t show objective unreasonability, and Green Day only won on two of the four factors (the two the court had just declared the most important, sigh) and a third was neutral.  And his deposition statement only expressed his opinion and couldn’t concede transformativeness, since how the reasonable observer sees the work is critical and not what the artist says.  (Citing Cariou, which is relevant to Eva Subotnik’s paper from IPSC, I think.)  Thus, the district court abused its discretion in concluding that Seltzer’s case was objectively unreasonable when he brought it; the case was “close and difficult.”  The transformation “was far from obvious given Green Day’s only slight alterations to the original.”  There was no reason to believe that Seltzer should’ve known from the outset that his chances of success were slim to none, and so the court of appeals vacated the award.

disguising antitrust violations with false public statements isn't ad injury

Epson Electronics America, Inc. v. Tokio Marine and Nichido Fire Insurance Co., 2013 WL 3811203 (N.D. Cal. July 19, 2013)

Epson was one of dozens of entities that allegedly engaged in a price-fixing conspiracy for TFT-LCD (thin film transistor liquid crystal display) flat panels incorporated into various products.  The resulting nearly thirty cases were consolidated in a multidistrict litigation proceeding; they included twelve alleged violations of unfair competition or deceptive trade practice statutes.  Epson sought defense coverage from its insurer Tokio. The court held that it wasn’t entitled to coverage because the claims in the underlying litigation didn’t allege advertising injury.

The underlying plaintiffs either incorporated panels into their electronic devices or sold products incorporating the panels.  They alleged that the defendants, including Epson, were liable for making false promotional “public statements” giving untrue reasons for the relatively high prices they were charging for their products.  The defendants allegedly falsely reported that price increases resulted from shortages and undercapitalization.  They allegedly reported to the media that their fabricating plants were operating at full capacity even when they weren’t, publicly stated that demand outstripped supply, claimed that prices were high because of component shortages, etc.

The underlying policy defined an “advertisement” as “a notice that is broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters.”  And advertising injury meant, among other things, “The use of another’s advertising idea in your ‘advertisement.’”

The duty to defend is broad as long as the underlying claim may fall within the policy.  Epson argued that the possibility of coverage was enough.  Though Epson was right that neither the labels nor the theories of the underlying action were dispositive and the issue was whether the facts pleaded might support a covered claim, the underlying allegations must still show some injury arising out of the use of another’s advertising idea. Epson’s argument stretched the policy language beyond any reasonable interpretation.

In California, courts ask whether the insured was engaged in advertising at the time of the alleged injury, whether the allegations created potential liability under one of the covered offenses, and whether there was a causal connection between the alleged injury and the advertising.  Here, the specific allegations in the underlying complaint that Epson argued were ads were various statements by representatives of other companies made in the media, to investors, etc., purporting to explain price increases. Even assuming that an inference was justified that Epson representatives made similar statements in similar contexts, these weren’t properly characterized as “advertisements.”

Plus, this wouldn’t be “use of another’s advertising idea.”  Epson’s theory was that the idea of misrepresenting the reasons for price increases came from the other members of the alleged conspiracy, and therefore it was using that idea when it made similar statements.  But the policy language “on its face plainly contemplates some kind of misappropriation claim.”  Even assuming that the underlying plaintiff isn’t required to plead misappropriation of its own advertising idea, there was still no basis to construe the policy this broadly.  The underlying claims weren’t for use of another’s advertising idea, but for statements that were allegedly false and misleading.

Product placement gone very wrong

This NYT story clearly only scratches the surface of Foodfight!, an animated movie made with many licensed characters.  Add another entry into "even managers of very recognizable brands don't necessarily know what they're doing"?

IPSC, Second Plenary Session: Clinical Perspectives on IP

Julie Ahrens, Jack Lerner, Victoria Phillips, and Jennifer Urban; moderated by David Morrison

David Morrison: his clinic represented over 30 film projects—contracts, IP license and sales, advice to filmmakers on clearance issues.  Great opportunity for students to gain skills and experience associated with film—copyright, licensing, and TM to some extent.  There are days in which we’re essentially a small business clinic for films; one piece of a larger puzzle. 

Victoria Phillips: started IP clinic at AU in 2001.  Can feel like a bad fit in clinical and IP world: rare to get to talk about both at once.  Curricular reform is upon us, and the buzzword is experiential.  It’s been building for a while.  Early model of clinics: direct service, emerging out of civil rights movement.  Different substantive areas came onto the scene—environmental, int’l human rights—more impact litigation/public policy focus. Third wave: substantive areas like IP are merging with experiential component, with the support of doctrinal faculty, which is what makes our clinics unique.  IP clinicians have occasionally felt excluded by other clinicians as capitalist tools, but now there’s a real movement for IP clinics around the country, running the gamut—tech, arts & entertainment, strict IP.  It’s always a tension in clinical education—some are more mechanics of lawyering, and some are more impact litigation/social justice.  It’s a powerful way to teach students real issues in IP policies and practice, whether it’s people seeking rights to people cramped by existing IP regimes.

Jennifer Urban: Different kinds of work.  Policy work: had students write model legislation for Public Knowledge—white papers considering reforms and explaining choices.  Now useful as Copyright Office contemplates actual copyright reform.  Connects technical expertise to legal problems/scholarship: regulatory proceeding for California Pub. Util. Comm’n regulating smart meters/smart grid—brought in technical experts to help understand the privacy implications of the rich information flows from these devices.

Phillips: Harjo seemed to hit the sweet spot of social justice and IP, so it was something we were excited to take on. Synergy of scholarship and doctrinal work, and the clinic being able to get a connection with a case read in classes. We did a white paper for her at a National Museum of the American Indian conference, and are going to spin it out for Congress—multifront lawyering beyond the TM Office.

Jack Lerner: Cross-clinic collaboration and collaboration with experts in the field/doctrinal faculty: the DMCA rulemaking process.  Began in 2008 with att’y for documentary filmmakers seeking help getting an exemption.  Sought & achieved the exemption for which we applied (in 2010) and had to apply again in 2011.  Prepped and briefed 14 witnesses; students testified; followup letters; they did all the work themselves, supervised by Lerner. Huge learning curve—you don’t just need to learn the law, but also the technology.  Students called it lifechanging and career-altering.  Exemption was incredibly complicated and it took us months to figure out how to train a client or explain how to use the exemption to a layperson; put together a 45-minute tutorial as part of the IDA’s materials. Students wrote and presented the tutorial.  Great way to get involved in documentary community, and to get jobs. Students develop deep appreciation for how to bring in the technology: you have to understand your client’s business, technology, artistic technique.  Also deeply informed by writing of people like Tony Reese and Fred von Lohmann in interpreting the convoluted language of 1201.

Urban: many of us have collaborated across the DMCA space because they’re difficult and meaty projects.  Big learning curve: they’re learning tech, research, theory, doctrine, and how to translate it to the form required for the representation.  Intense experience. 

Julie Ahrens: litigation!  Larry Lessig called fair use the right to hire a lawyer; if we have people who can do pro bono representation we can develop the law and make precedent robust/more reliable.  We did Golan in the SCt.  Much amicus work.

Urban: direct litigation can be difficult in a clinic because of resource constraints.  Normally we either need to partner with someone or find a case, but you can get the evidentiary experience and work on policy through quasi-litigation proceedings like patent reexaminations: EFF as the client, seeking reexamination of a troll/NPE patent telling municipalities that when they install GPS on buses/trains and have apps telling people when the buses will come, that infringes. Students researched the law and the prior art.  Had some claims disallowed, though not clear it dissuaded the claimant.

Phillips: small entities who get into trouble when they seek TM registration—quasi-litigation, but also wonderful opportunities to teach students about larger policy issues.  Wrestle with public interest dimensions of all their cases. Normally TM would be withdrawn after opposition; clinic gives ability to persist.

Lerner: international work as well. Doctrine and practice are closely related; clients don’t just want to know what the law says or what comparative law is but also the scholarship—there is lack of clarity over things like the three-step test in Berne.  Opportunity to bridge theory, policy and practice for students. Huge need for pro bono work in int’l arena; someone in developing world or NGO may not have access to scholarship from other jurisdictions.  Chilean Ministry of Education as client: surveyed copyright limitations and exceptions for APEC, group of 22 member economies around the Pacific Rim. Helped students understand immense heterogeneity of exceptions/limitations.  Survey was apparently discussed in recent visually impaired treaty negotiation.

Urban: a project for national library organizations translating and explaining fair use for them because of the burgeoning discussion of flexible exceptions/limitations around the world. US based policymakers and int’l policymakers are hungry for help.

Phillips: dispels the myths of 1L: that law is solitary and that facts are static.  Factual development for DMCA exemption: students had to find out, how do film profs use clips? Students often have a hard time factfinding.

Urban: what about counseling? Valuable for students: nitty gritty of client’s case.  Help students see client’s situation on the ground, and then translate that using tools from scholarship and policy world: Best Practices on Fair Use.

Phillips: cautionary tale. Wrote a piece about quilters of Gee’s Bend, Alabama, and the quilters found her. Now we’re developing a client relationship to teach them about what’s possible under the IP regimes.

Lerner: we now write letters based on Best Practices to let filmmakers get insurance. And these have very much changed filmmaking from before the Best Practices (maybe getting back to how it was in the 80s, but that counts as progress!).  Jim Gibson’s gatekeepers—that informed our thinking.

Urban: fair use for poets (no, not a joke).  Best Practices for poetry as one project.  Robert Pinsky wanted to do a site on favorite poems: Americans use poetry in their lives in a bunch of ways and he wanted to highlight that, people writing in about their favorite poems and why they were favorites. Videos of the people were played on PBS. Got permissions for everything, but ran into an issue with a particular poem by Countee Cullen, an important Harlem Renaissance poet.  He wrote about many things, but not about being gay; this became important when a young man picked his Yet Do I Marvel and read it and talked about its meaning to him.  Thorny fair use issue: reading the poem in its entirety, but also transformative in context.  Pinsky was shut out by the licensor because of the fact that the reader was gay, and the licensor didn’t want to be public about Cullen’s sexuality according to his family’s wishes. Students researched ownership; intestate and testate succession; they found a will in a Manhattan courthouse; and they looked deeply at fair use. In the end, the woman with whom Robert Pinsky was trying to deal didn’t have gatekeeper responsibility but just thought she did, and it’s now up on the website.

Quick plugs: (1) needs a new associate director for Samuelson clinic, open for applications until Aug. 15; (2) Cardozo is also hiring for Entrepreneurship clinic; (3) so is Villanova.

IPSC, day two, breakout session 4: long presentations

Jim Gibson & Christopher Cotropia, Copyright's Topography: An Empirical Study of Infringement Litigation

Presented by Jim Gibson

Deep dive into cases filed 2005-2008 so they could study terminations.  17,119 total (based on coding by others who check boxes; if they checked TM box and not © then the study wouldn’t pick those up; made some attempts to fix that).  Sampled 1077 cases, allowing 0.95 confidence level even for subsets.  112 cases complaints weren’t available, and 7 weren’t copyright.  Of 958 left, 510 were filesharing cases; wanted to focus on run-of-the-mill cases rather than a campaign that was concentrated and was dying off even then.  Could be that the media companies were filing these instead of other cases, though. Other big subset: music publishers/PRO cases, 62 of them, which we do consider run-of-the-mill, nonunique cases.  386 “other” cases.

Haven’t run regressions yet or compared much (literary works v. nonliterary works).  Looking for correlations to explore, assumptions to test.

Coded for party size; most litigation that’s not filesharing has a small firm plaintiff (under Fortune 1000 or subsidiary); those are even more likely to be the targets, 70% of the time.  Goliath rarely sues David in nonfilesharing cases; 5.7% in just the catchall (non-filesharing, non-PRO cases)—which is the same percentage of David suing Goliath.  Big media is not a major player by number of cases, though they may bring impact litigation.  Only 15.29% of non-FS, non-PRO cases. They rarely sue each other and rarely sue individuals.

Subject matter, using §102 categories (though that lumps software with books): most popular non-FS category is pictorial/graphic/sculptural works (34%), literary second (28%), and architectural works 3d (between 7-9%).  Similar with plaintiff’s industry: biggest category is industrial design plaintiffs, including architectural firms (15-18%) and clothing/textiles (over 10%) (not so much fashion design as fabric design).  For teaching, this makes limiting doctrines perhaps more relevant—useful articles doctrine.

Is copyright litigation different from other litigation? How contentious are the cases?  “Hard orders”: judge actually has to figure something out/make a decision or issue a default judgment.  This looks like other civil cases, about 50% of the time in both. But there tend to be more such hard orders in any given case that has one—4.3 instead of 2.3 in the average case.  More docket entries than average, too, though dockets are fuzzy because of differing practices.  Trial rate was 3.8% compared to 1.4% for all civil cases in Hoffman’s study.  Copyright seems more contentious.

Termination: we think they mostly settle: settlement, 30%, agreed judgment, 15%, voluntary dismissal about 33%.  That’s higher than other civil cases.  Median pendency is a bit longer in copyright but not by much.

Implication: litigation is for the fringe; raises questions about breadth of impact of litigation reforms. But they may essentially be doing small claims now.

Commentator, Paul Heald: He thinks self-selection bias in litigation can’t be overcome. This study does the best job possible of avoiding that by not limiting itself to published opinions and going to dockets. This is still just the tip of the iceberg for copyright disputes.  Consider the YouTube Content ID program—more than 1000 (allegedly) infringing uploads on YT every day—those disputes get “settled” in a day or two.  The video gets taken down or monetized or left alone, and that’s how disputes arise; we can’t learn any of that by looking at litigation. This isn’t a criticism of the study but rather a contextualization of its relevance.

Digital Rights Corp. settlements: contracts w/movie studios and publishing companies, and when you get a nasty letter accusing you of infringing downloads, before suit is filed, letter directs you to DRC and asks you to pay some ($15 per movie or thereabouts) and you get a printed document saying the dispute’s been settled. Maybe in this context PGS works aren’t all that important.  (Though what will students need to know about how to work this system?)

Hypothesis driven studies: we think malpractice litigation is booming/costly, so we study it; likewise patent litigation.  Gibson is aware that he has data waiting for a hypothesis to test.  Study period is too short (four years) to show effects of changes in law on litigation over time.  But it is wonderfully careful selection and coding, with solid random sample of large size and high internal validity. Personal curiosity: what about criminal cases?  Other topics of investigation: who are the attorneys handling these cases? In-house, small-firm lawyers, etc.?  Disputes between big companies: their absence suggests a large part of the dispute picture is missing.

Any relationship between Copyright Office filings and lawsuit filings percentagewise?

Other interesting results: secondary liability 36% and DMCA 4%.  TM claims in 30% of cases, breach of contract in 17%; fits into industrial design narrative—outside the pure creative works context.  May make sense to become more familiar with thin copyright.  Defendant answered in a little more than ½ the cases.  Is the difference in percentage going to trial significant? Thinks this may be true in tax cases too—is idealism at work on the part of the defendants?

60% ask for willful damages, and 1% get them.

Gibson: selection bias—a lot happens in the shadows/clearance culture.  It’s easy to get to the wrong result in that shadow market. 

Lunney: maybe architectural cases are more common because they’re worth bringing: in the absence of timely registration, actual damages might still be worth litigating. Likewise fabric.  Many copyright claims are valid, but have damages in $5-10,000 range which isn’t possible if your lawyer isn’t working pro bono. 

Gibson: that’s compelling, but sometimes the real payoff is to get an injunction against a competitor’s use of a logo on a T-shirt, squashing the competition.  Sometimes a doctor’s office sues another over an ad that looks too similar, so it’s not a revenue generator in itself.

My suggestion: attempt to figure out what percentage are timely registered. Gibson says the data are incomplete, which I understand is a huge problem, but it’s the first question a lawyer would ask a client who got a threat and will affect everything thereafter, so any information could be really informative.  People allege in complaints that they’re entitled to statutory damages but they’re very often wrong given date of registration.

McKenna: are copyright claims addons to TM claims in these 30% where they’re together, or vice versa? How are they dispersed between categories?

Gibson: PRO and filesharing cases are cookie cutter, so we don’t need to revisit them and could code the others for this. Anecdotally, it’s a good mix from the ones he’s coded. Bad breakups between licensors and licensees.

McKenna: useful to know if it’s a kitchen sink complaint.

Lunney: may be basis for federal jurisdiction (McK notes that Lanham Act will do it too).

Further discussion: secondary liability often brought with primary liability not independent.

 #2 Room 205

Haochen Sun, Living Together in One Civilized World: Why Luxury Companies and Consumers Owe Ethical Responsibilities to the Poor

Commentator: Jeremy Sheff

Sun proposes ethical responsibility initiative for luxury brands to distribute information about antipoverty programs.

Comments: how will this be initiated/enforced? Government intervention?  How will we make luxury producers comply? Perhaps use of carrot of increased TM protection or stick of lowered TM protection might be thought to induce brands to confront consumers with pictures of starving children; his guess is that not too many retailers will take that deal.

Doesn’t want to break TM more than it already is.  The ethical component—are you a responsible corporate citizen—seems to have no particular connection to the factors for fame.  Suggests at one point that Tiffany v. eBay should’ve come out the other way if Tiffany were a better corp. citizen, but Sheff thinks that’s a terrible idea since that case was about competition in the secondary market.

Sun suggests that social distance is why rich don’t care about the poor—but that’s exactly what people are buying when they purchase luxury brands; they buy distance from the poor.

Real property/free expression issues. If social distance is the problem, the real issue is real property that separates the rich from the poor.  Zoning that keeps them apart.

Sun: Luxury industry has become very important to the global economy.  Barton Beebe on sumptuary codes.  Debates over increasing protection for fashion design.  Irresponsibility mentality; luxury sales are linked with bribery of officials.  Rich people spent $250 billion on luxury goods while 15 million died of starvation.

How to initiate social responsibility? Both government and nongovernmental organizations can exercise pressure.  Will luxury companies resist this? Worry about tarnishment from distributing brutal brochures?  He doesn’t think so because luxury companies can benefit from extra TM protection. We also need to change perception about the nature of brands—traditionally we perceive them in economic terms (100 most valuable brands), and then we also have words to describe them aesthetically. Something is missing: ethical value. It is time to discuss that. 

Ann Bartow: women control less than 6% of the world’s wealth.  Bags/shoes: seems like you’re positioning the problem as one created by women and one that women need to solve.  Why isn’t BMW the model?  In China, the luxury/corruption nexus also involves women as status symbols. If you talk about social justice, consider the gender ramifications.

Q: on refining definition of luxury brand. Banana Republic is more expensive than Old Navy: is it luxury?

A: literature has debate on this—luxury might be about exclusivity, high quality, conspicuous consumption.  Pluralism: in Africa Starbucks might be a luxury brand; in Italy it’s a denigrated brand; in the US it’s ubiquitous. 

IPSC day 2, session 3, long presentations

Christina Mulligan, Why Personal Property Servitudes Are Disfavored: Lessons for Digital Content

Google Glasses: came with restrictions on use/resale. Digital cameras have done this for years with ToS for the software embedded in the cameras. You couldn’t have a use restriction on an analog camera, but the restrictions seem to run with software embedded goods. Odd to have such a difference v. chattels in general.

Why are servitudes disfavored? Chattels are smaller, mobile, hard to distinguish/fungible.  We can glean how these differences, which are differences on balance rather than differences in kind from land, change information costs.  (1) Absolute cost of determining restrictions on mug v. determining restrictions on use of land—you have to figure out if it’s the same mug because placement isn’t certain. (2) Relative cost of determining restrictions, given lower cost of many chattels.  (3) Aggregate cost: we buy and use many more chattels than pieces of land, and figuring it all out could take more bandwidth than we have.  Could have rules distinguishing cars from other chattels, since we deal with fewer cars than chattels generally. (But that piles on quickly.)

What should this say about software-embedded goods? We should be suspicious especially as we move to the internet of things about unexpected use restrictions.

Creepy and Orwellian world if all the things you own keep track of where they are, which is what you’d need to change the difficulty of identifying each object and making sure it’s the same.

Commentator: Miriam Bitton

Paper mentions decreasing information costs: chattel registries for cars, registration for insurance purposes.  (Nature of obligation: ownership interest is the usual thing a registry has and the real property regime is pretty hostile to use restrictions even when recorded.  And try to register a use restriction when you register the title of your car; it won’t go well!)  Other legal systems don’t necessarily use the same land registry, which means that the information cost theory has to be more attentive to differences (history, path dependency?).

My reaction: note the literature on failures of notice in consumer protection/nudging contexts—may further justify restrictions on what kinds of limits can be written into the ToS.

Paul Heald: common-law cases finding nonpossessory security interests in personal property are fraudulent.  The language of these cases is vitriolic.  It’s fraud for the potential that the person granting the interest will sell off the article, even if the person does nothing more.

Q: in practice, registries are replete with bad recordkeeping, fraud, etc.; acknowledge that it’s a way to handle the information problem but it doesn’t lower cost substantially especially as contextual uses of objects change.

Q: another thing to look at is costs to judicial system: were the servitudes really imposed or not. That may offer a difference between built in and contractual restrictions.

Interesting discussion; I had to leave to ensure I was on time for the next panel!

Wendy Gordon, Dissemination Must Serve Authors: How the US Supreme Court Erred

Commentator: Rebecca Tushnet

In Eldred and then Golan, the Supreme Court accepted the proposition that copyright expansion retrospectively extending the term and clawing back certain works from the public domain could be justified not as incentivizing authors, but rather as incentivizing certain distributors to invest in distributing the newly repropertized works.  Professor Gordon suggests that this conflicts with a proper understanding of copyright’s author focus, not to mention with Feist’s insistence that creativity and its support is the only appropriate justification for copyright rights. 

If copyright is for authors, what led the Court and various commentators into error?  Gordon offers three kinds of explanations grounded in economics, history (which I would call politics), and law.  Properly understood, the assumptions of these arguments don’t justify a stand-alone embrace of disseminator interests.

Economics starts with the idea that copyright makes dissemination easier and more profitable, and you don’t get “progress” without dissemination.  I’ll return to this in a bit because I think it’s the most important part of the argument, but let me quickly sketch her other explanations.  The second explanation, history, is that publishers and other distributors profit from copyright and therefore engage in extensive and successful interest group politics to ensure that the law favors them.  The third explanation is legal; Gordon argues that it’s easy to mistake the form of copyright—distribution rights and a special focus on publication, both of which make dissemination look independently important—with copyright’s substance, which remains author-focused.  Both publication rules, pre-1978, and the distribution right exist only in furtherance of the first, economic objective: publication and distribution are key points at which legal support may seem necessary to keep too much value from leaking out of the chain from author to authorized publisher; without a distribution right, a reproduction right would be toothless since third parties could make the reproductions and then disappear.

Since the second, historical/political explanation for publishers’ rights can have limited moral or conceptual force, and the third legal explanation dovetails neatly with the first, economic explanation, I want to return to the economic argument.  Gordon argues that authors of copyrightable works face a version of Arrow’s information paradox.  Unlike inventors who might be able to keep processes and machines secret and still derive value from them, authors generally can’t use their ideas and expression without disclosing them.  Because disclosure is the only option, legal protections that substitute for other barriers to copying encourage publishers to take the risk of paying authors for permission.  Gordon is skeptical that as much encouragement is needed as it once was, but the point is that the protections for publishers are dependent on the idea that we want authors to get paid.  Dissemination in itself is not valuable—disseminating books and disseminating widgets both need to get done for the economy to work, but that doesn’t mean that special legal protections for book disseminators are justified, and indeed they have no special claim compared to the claims of widget distributors.  Investment in advertising, selecting which products to offer, helping consumers choose among their options, and distribution infrastructure are required in all markets, and Gordon argues that special subsidies for these common costs of doing business need justification beyond the idea of incentives for creation.

Gordon engages in particular with Professor Jonathan Barnett’s work, also presented here, that publishers make a unique and costly contribution by evaluating and choosing which works to publish, and by using losers to subsidize winners, “increasing the chances that the next, latent bestseller will get the exposure it needs to take off.” If copiers can cherry-pick winners, this strategy doesn’t work.  As Gordon points out, this argument is not expression-specific; indeed, it can be recognized in INS v. AP and Doris Silk v. Cheney Bros.  Gordon’s conceptual point is that Barnett’s argument is at base still all about authors: all the arguments about finding the next great American novel et cetera hinge on the role of the individual creator awaiting discovery and subsidy.

She also has a related point about competition, prefigured above: all businesses must search and sort.  And all businesses disclose, in some ways, the results of their searching and sorting, at the very least through price signals—any business that has discovered a profitable niche can be seen and competition is likely to enter to drive down prices, unless the law prevents that.  Non-authorial contributions of distributors may well be extremely capital intensive.  But Gordon points out that this proves little without comparison to other industries, and other ways that capital needs might be met.

One fruitful question for further discussion, it seems to me, is whether competition is really the default, though, or whether we in fact live in a world with barriers to entry that make competition a phenomenon on the margins.  Consider Amazon’s price comparison app, which—quite relevant to Gordon’s argument—allowed consumers to compare prices on books, lawn mowers, or anything else in a physical store also sold through Amazon. Retailers complained that this harmed them by forcing them to bear inventory and other costs that Amazon avoided, allowing Amazon to compete on price only by free riding on these other stores.  Is this any different from the free riding publishers fear?  And if it’s not, does that prove that copyright is special pleading or that retailers need more protection from internet free riders? 

Yesterday, Barnett emphasized that are other possible mechanisms to capture revenue, like lead time, but from an efficiency perspective we shouldn’t just be trying to get a reasonable level of output; we should get an optimal level of output, and for that, we don’t know whether lead time advantage is sufficient. Without copyright, intermediaries have to choose mechanisms like lead time.  As I understand Gordon’s point, it’s that if you’re serious about optimality, that requires an assessment of the alternatives for capital investment, and if copyright provides a method of capturing value that is unavailable to investors in other industries, then you’ll see overinvestment in copyright works/overproduction compared to the optimal result.

Gordon also makes a side point worth further discussion: the “invest in the next big hit” justification needs some more refinement given that big hits generally make almost all their money in a few months or a year.  Why copyright should persist longer than that to subsidize publishers is less clear, certainly on a blanket basis not requiring any renewal and allowing expansive rights over derivative works.

Gordon concludes that “Only a comparative institutional analysis can show whether disseminator industries need help that is more or different than other industries need, and whether, if such help is needed, copyright and its roughly 95 years of lead-time-advantage is really an appropriate tool.”  Again, I’d ask whether this comparison is as dangerous to copyright-for-publishers as she suggests: it’s not clear to me that there any low-IP mass industries left; our examples of low-IP phenomena like tattoos and stand-up comedy are centered around craft production—perhaps ironically, where the physical performance of a particular authorial individual is important to the otuput.  But these are the questions we need to be asking: do disseminators of expressive works need anything special that copyright provides, compared to disseminators of other things?  Are there non-copyright ways—grounded perhaps in competition policy—of providing what they might need?  What are the costs of favoring disseminators, especially in cases where there doesn’t seem to be a need to pay authors who are creating things anyway? 

Gordon’s own comments: paper has various things to say, including explaining what common-law copyright was for (like trade secret) and why it didn’t need to persist after the 1976 Act.  Distribution right is a kind of specialized secondary liability. Dissemination is a legitimate part of copyright policy, but not disseminators.  (Sounds to me like the standard line about antitrust: the law protects competition, not competitors.)

Publishers count, according to Golan, because they disseminate; she fears the next step that their interests justify anything expansive. Holding makes disseminators’ self-interest hide under cloak of progress. Gordon believes dissemination must aid authors to be constitutionally relevant.

Adam Mossoff argues that even if professors don’t need copyright royalties, our publishers need them.  Her question is: does this mean that giving copyright to professors serves publisher interests per se? The answer is clearly no.  If copyright is needed for scholarly publishers, and if professors need journals to gain reputation/flourish, then copyright is only conditionally justified: it still has to be tied to authors.  Thought experiment: what if journals perished? If there were other ways to get the job done, sorting for quality, we shouldn’t care if journals died. If there aren’t other efficient means, copyright should care: but that shows we only care about the incentives of authors.

Balganesh: you’re arguing from purpose and structure. What about copyright-like structures to further disseminators’ interests, such as the Broadcast Treaty, with rights independent of right in the content of the broadcast.

A: Jeanne Fromer explains Golan as the SCt’s desire to avoid the question of whether treaties can bypass constitutional commands about progress.  This reminds her of that.  SCt is always using copyright this way—it’s a garbage can.  Given the presence of the IP clause, there’s a tension—she thinks it would be improper to make IP-like rights without limited times/creatorship or inventorship.

Q: how do you deal with Lady Gaga, who released Born this Way on video free to view before she released the album—does she care about copyright?

A: sounds like advertising.

Q: celebrities may be able to ignore copyright/use network effects.  If this happens a lot, why worry about intermediaries?

A: But advertising is consistent with the copyright incentives for authors model.  She does think that incentives are overstated as justification for authors, given the nonmonetary incentives.

Justin Hughes: Congress should be held to furthering progress by means of authorial rights—do you mean that, or do you mean “when it grants exclusive rights, they have to be to authors”?  What happens when you subsidize authors with NEH grants—would that be ok to further progress?

A: yes, of course—she’ll tweak the statement.

Q: what about the public?  Can we consider the benefits of preservation of works to the public?

A: what she fears isn’t so much that Congress will enact things that aid dissemination, but that without the limitation she recommends that Congress can do whatever it wants at the behest of disseminators, without considering public interest. If we could get over the epistemic problems of proof, and courts could see that parts of the argument were selfish and parts in aid of distribution to the public, she’d be more sanguine. 

Q: how does the progress clause do this work?  This seems like a rational basis problem.  Congress says it’s trying to help authors, even if academics disagree/don’t need copyright.

A: she’s undermining the stance she took in Fair Use as Market Failure, where she proposed that any social benefit mattered.  She’s not sure how to square that with the idea that disseminator interests of publishers shouldn’t matter, if dissemination interests of copiers do matter (even if they’re just making pure copies).

Q: Arrow’s information paradox doesn’t engage directly with copyright; why not point to Landes & Posner’s discussion instead?

A: They’re brilliant, but they’re completely unpersuasive arguing that centralization is good for progress.

Ann Bartow: are there differences between Wikipedia and Encyclopedia Britannica as disseminators; the latter edit/quality control.

A: to the extent they’re editing, they’re doing copyright work, even though editors politely don’t claim copyright.  Lots of intermediaries do creative things—colorization of film, even.  Treat them as authors when they’re doing that sort of work.

IPSC, day 2 session 2, short presentations

Kevin Hickey, Consent, Refusal, and Fair Use

Consent is irrelevant in black letter law, but consent and disapproval are not binary. Case law’s most extensive treatment: Letterese v. Scientology, 11^th Cir. 2008; use over decades, and then falling out between the parties.  DCt considered ordinary fair use factors + history of parties’ dealings.  11^th circuit rejects, saying consent is irrelevant.

Modeling communications between authors/copyright owners and users. Pre-use and post-use. Author faces choice before use: offer to license, ignore, etc.  After use: adds whether to sue.  Pre-use, user faces choice about using at all, trying to get permission.  Pre-use negotiation, all else being equal, should better trace the social value of the use. Pre-use the user can threaten not to make the use.  Post-use the user is locked in and faces statutory damages. When the communication costs are low (preexisting relationship) or low-cost mechanisms to opt out of a particular use, the model concludes that should matter.

Failure to consider consent allows opportunistic behavior by users and copyright owners. Users can use strategies to avoid detection even in bad faith.  Copyright owner has incentive to engage in wait-and-see strategy to take advantage of improved post-use bargaining situation.  When communication costs are low, we should encourage pre-use negotiation; users won’t be tricked into relying on acquiescence.

If consent isn’t binary, how dealt with? Quantitative dimension is explicit on both sides and silence in the middle. Qualitative is motivations for copyright owners’ and users’ behavior—good and bad faith. Timing of communication also matters.

Implicitly, courts consider consent in a number of ways.  Opt-out in Field v. Google, finding Google’s caching fair; talks a lot about Google’s provision of an opt-out, and that affects the analysis as does the copyright owner’s bad faith.  Mistakes made in iParadigms: 4^th Circuit found it fair based on Perfect 10 and Field v. Google etc.  But iParadigms’ system is not consent-based and individuals can’t opt out.  That should weigh against fair use and possibly swing the balance, and the court doesn’t even address it. 

Another category of implicit consent cases/partial consent: Worldwide Church of God.  Breakaway church wanted to use a text that the WWCG had rejected.  Estate of MLK v. CBS: MLK encouraged CBS to use the footage of his speech, and that should matter when the estate changes its policy and demands a huge licensing fee.

Q: catchall nonstatutory consideration.  What do you do about the fact that courts never really consider additional factors though they can or should?  Are these extras just about whether the judge liked the work or not?

A: true courts are hesitant.  Thinks that’s wrong and is trying to be convincing otherwise.  Moral notions can lead to more efficient outcomes.  Good faith/bad faith is part of his proposal.

Q: we do see the value of tolerated use and not pushing copyright owners to attack each use; doesn’t your proposal work against that?

A: most serious concern.  If consent is properly formulated, the concern over overactive policing isn’t great.  Analogy would be TM (where policing obligation isn’t anywhere near what many lawyers/brand owners claim or think as a way of shifting obligation). His standard would be case by case; tolerating one thing wouldn’t have any bearing on tolerating the next. Change in use would matter—commercializing the Harry Potter Encyclopedia.  Only estoppel would be things allowed for a very long time.

RT: I always worry about what happens when you add a factor; this is one that would ordinarily weigh against users in the cases that get to litigation, and that disturbs me.

I don’t think the description of not considering consent was strictly true of iParadigms: the court talks about the effect of minority and how the students had to use it to graduate and got a benefit from using the system.  Those are consent-related.

A: wants to be neutral for users.  Thinks iParadigms is a close fair use case. They’re unpublished works; the users are minors; there isn’t an optout; they’re using the whole thing; there’s a market harm (!).  Transformativeness is present, but he doesn’t think that’s enough.  (Which is why I’m nervous!)

Eva Subotnik, Intent to Fair Use

The law should formally accommodate those who can document that they tried/intended to make a fair use. Downstream practices by courts—how do they affect upstream creators? References to intent in farflung places, including Georgia State coursepack cases, where the court reviewed 75 claimed infringements and found 5 unfair.  Court concluded that GSU did try to comply with the Copyright Act, but didn’t perfectly predict the court’s results; but intent wasn’t relevant to infringement even though fair use is notoriously unpredictable.  This seems straightforward: either you complied with the law or you didn’t. 

But remaining on the fair use side isn’t like remaining under 65 mph. Fair use can be a difficult call.  Scholars have looked for patterns and groupings.  This paper attempts to close the circle by suggesting that in close cases where a seondary user looked for guidance that should be a thumb on the scale of the fair use defense. That can better guarantee breathing space.

Judge Leval argues for no role of intent.  Tony Reese points in a different direction—early courts did consider good faith in intent to abridge rather than supersede to draw lines in hard cases. Even Folsom makes a passing reference to intent: a reviewer can cite largely, if his design be really and truly use the passage for the purposes of fair and reasonable criticism.

While a bad faith standard might be a bad idea, giving weight to a good faith attempt to comply is utilitarian because it encourages calculated risks that benefit the rest of us.  What is good faith?  Usually discussions of good faith in the case law are actually about what bad faith is—knowing use of purloined work, obtaining copy under false pretenses, removing copyright information, or asking and being denied permission (which last Campbell says is not a problem).  Some of the Court’s language is “whether a parodic character may reasonably be perceived,” but other language talks about the reasons for the defendant’s choice.  Opening for subjective and objective evidence.  Prince v. Cariou doesn’t shut the door on subjective evidence entirely—Prince’s failure to explain himself might have lent strong support to his defense, but that’s not dispositive. The test is not simply what the defendant says.  Court even cites Prince’s deposition to show his drastically different approach.

Aspects on the spectrum: intent to comply, intent to transform (but not necessarily with copyright oriented sensibilities), absence of intent, contrary intent/intent merely to supplant.

A steadfast but wrong claim of fair use, or an attempt to comply with a mistaken understanding of the law, shouldn’t let D win fair use. But attempt to comply should count in D’s favor. One distinction: privilege statements tendered prior to litigation, though SCt has said proper labeling isn’t a prerequisite.  Seeking out legal advice/opinion letters should be favored. With less access to counsel, consulting various sources on law should also count.  Best Practices.  Seeking license to use should count in user’s favor.  Process of informing themselves should lead user to make more acceptable use to copyright owner.  Any distortion in use is natural and ok given that we have copyright.

RT: (1) Lack of knowledge.  People don’t know what they don’t know; don’t know fair use best practices exist.  Level of misinformation is so high.  MPAA distributes curriculum for classes.  People making remixes etc. are often 15—they don’t know they need to seek advice and they don’t know where to go.  TM doctrine: if you’re wealthy enough to conduct a survey and don’t, we weigh the absence of a survey against you.  I could much more easily get behind a standard that was more like that: if you’re wealthy enough to get legal review, then doing so favors you, contra GSU.  (2) I know in TM we have factors that never benefit the defendant. But can you have a factor that never benefits the plaintiff? If there was no good faith attempt, then won’t that weigh against the defendant?  Barton Beebe’s data may have some bearing here; maybe you can have such factors. (3) That’s an interesting spectrum, understandable but it prioritizes law and submission to law over artistic judgment, which may be fundamentally incompatible with the artistic projects of people who most likely be affected by this change, which again means the effects may be different.

Lunney: normative side—what is fair use for? How does intent adjust the balance?

Rosenblatt: implementation is a real barrier.

A: Current situation is asymmetric: the question only comes up when bad faith is addressed.  Even 9^th Circuit has mentioned good faith, though, and she’s trying to give content to that.

Mary Gani-Ikilama, An Analysis of the Effects of Copyright Law on the Creative Autonomy

of the Performing Author in the Nigerian Popular Music

Authors and performers are often the same person in Nigerian popular music.  Legal system inherited from Britain; part of Berne and TRIPS. 170 million people: big market. 15 years ago, American music was more popular, but there’s been a Nigerian renaissance. Growing commercial influence in the African diaspora as well.  At the moment, growing concerns about sameness of sound of Nigerian popular music.  Many complain that you can sing the verse of one song to the chorus of 10 others. 

Research: record label subjects overwhelmingly saw authorship as business measure versus authorship as self-expression. Business managers suggest style and content to artists; many had disputes with artists.  Performing authors overwhelmingly saw authorship as means as self expression and had often experienced pressure on commercial grounds.  Some of their favorites had been rejected.  Label: we define the artist when we choose to sign them; we don’t allow them to express themselves differently. But 90% of artists she interviewed either had or desired record deals because of the financial platforms. Developed world: possibility of independent promotion allows some people to work around the labels.  In Nigeria, internet access/electricity issues make this unviable.  Immediate effect is that music is homogenous.  Adorno: the problem of a technological theory of culture/mechanization.  Economically, reduces cultural output and revenue.  Ratio of songs written to songs released: 4:1.  Culturally: a gift that isn’t used will wither.

Copyright’s position: moral rights theoretically exist.  Producer still has edge over performer—though ownership initially vests with author, that can be changed by contract, and performers lack bargaining power.  Nigerians aren’t keen on litigation and there isn’t much case law.  Also business problems. Inconclusive restrictions on transfer of moral rights, which are negative/waivable rather than property rights; she’s seen it a lot.  360 deals are also used; the performer has to sing the songs that promote the record label.  Also there aren’t distinct payments for assignment of publishing rights and recording contracts.  Reversions aren’t recognized in Nigerian law.

Shyam Balganesh, Copyright and Good Faith Purchasers

Alienability is crucial to property.  Good faith purchaser for value doctrine: if a transfer from A to B is voidable/tainted (fraud, etc.) and before A learns of the taint B alienates the chattel to C.  This sale itself is clean and C lacks knowledge of the earlier taint.  C’s title in common law originally was void: nemo dat—you can’t give what you don’t have.  Problematic, because chattels pass through many hands; if everyone must worry about tracing chain of title back to untainted first sale, value of chattels will drop.  Voidable title doctrine developed: transfer to third party bona fide purchaser (BFP) in good faith and at arm’s length/for value gives perfect title to the BFP.  Codified in UCC and in many recordation statutes for land.  Avoids clogging title.  As between A & C, there is a sale we can reconstruct.  (Void title—stolen property—is different.)

What about with distribution right? Things are very different.  A makes an infringing copy and transfers it to B.  Assume that B had no knowledge that the copy was infringing and that it’s an arms-length transaction.  B gets imperfect title: under current law, B will be infringing if B sells the copy to C. Distribution right’s only mechanism of parsing ownership is first sale, but the very first sale of the copy has to be authorized and lawful.

Adopting a BFP doctrine would move the consequences of infringement from innocent purchasers to copyright owners; incentivizes copyright owners to publicize infringement and provide notice; variable determination from one purchaser to the next; avoids the need for innocent infringer doctrine.

Q: think about other requirements—for land, there’s often a registration requirement before taking advantage of BFP doctrine. Why is copyright so different?

A: doesn’t have a historical answer for why copyright differs.

James Grimmelmann: 3 other things of interest from UCC—the warranty of noninfringement/incentives for purchasers.  UCC’s distinguishing of void from voidable, going to care taken by copyright owner; are there differences that we could look at to see what the copyright owner has done to avoid voidable sales; rules for conflicting transfers from a common owner—could they be borrowed?

Andrew Gilden: how would this actually work?  Would this hypothetical sale be visible to the copyright owner?  Contributory infringement is also relevant.

A: mechanisms where you look whether the person has tried to make an effort to distinguish genuine from nongenuine goods—eBay sales.  Big brands refuse to validate whether a resale is valid or not.

[Adrian Johns has a lot of writing about the historical reasons for making distribution a right; though he doesn’t put it in those terms, the issue is the whack-a-mole quality of having to go after printers.  Also Wendy Gordon’s paper, which I’ll be presenting later, gets into the source of the distribution right: again, it was historically hard to go after manufacturers who could just disappear.]

Sarah Burstein, Costly Designs

We’re not necessarily worried about screening out bad art; we don’t mind giving copyright to really crappy paintings.  But bad design patents are a problem.  This week a patent was issued on an underwire for a bra. Not only is it functional, but also no one sees it in ordinary use, which seems to defy the point.  Partial designs are claimed; Apple uses continuations/divisions to claim little parts.  This allows immense scope for people smart enough to game the system. Also note that we’re not getting anything new: we already have the whole device, so if you care about incentives it’s not clear what extra the partial claim allows.  Patent on the bottom of a thought bubble icon.

Costly screens for patenting: what gets through are things with high private value, whether they have high or low social value.  Things with low private value get screened out; the question is whether there are designs with low private value and high social value that we’d lose, because they took a while to be successful.  Are there differences in industries?  Industrial designs v. fashion/experimental and discursive design?  How IP-sensitive are the areas that we want to encourage v. those that are just incidentally covered?  Costs can be a feature, not a flaw.

Sprigman: if you think design is mostly cheap to make, you might think that the prospect of getting there first and tying it to your TM is enough; a costly screen might be a way of saying that we don’t think design generally needs extra incentive.  Designs that are very expensive also tend to be highly functional—design of a jet airplane. What you’ll have left with costly screens + some functionality screen, that will whittle design patent down a lot. 

A: might be good.  In theory functionality is part of the examination, but not so much in practice.

Collins: hard to manipulate utility patent standard to get rid of the many patents, one object issue.  Is the partial design patent problem something you could address with a costly screen, or does that require some other fix?

A: doesn’t think there’s no role for partial claims, but doesn’t like claiming every tiny bit.  The next step in the project is to figure out what should cost more—so maybe every continuation and every divisional should be more expensive.