WIPIP, part 2: Copyright

Session 1, Copyright

 

Jim Gibson [with Chris Cotropia]: Random sample of copyright cases filed 20080-2011, coded 957 cases for parties, claims, remedies requested, final adjudication. The filesharing cases and PRO cases (music) tell the expected IP story. Ps from a core © industry, revenue/incentive arguably dependent on ©, Ds engaging in wholesale copying/priacy. In contrast, the commonplace cases were surprising. Many Ps from non-core industries; many works from low authorship subject matter. Useful articles and non-copyright claims associated with © claims: TM, breach of contract.  So, how does this work with incentives? 

 

Ps were predominantly small firms, a bit over 64%, 72% of Ds were also small firms.  Individuals: 21% P, 13% D.  Industry of lead party: at the top: apparel/fashion/textiles, 13.568%, software 12.79%. By contrast, fine arts, performing arts, video games, public sector: very low.  Core IP industries, according to WIPO=advertising & marketing, commercial arts, Film and TV, fine arts, music, performing arts, publishing and software—1/2 of Ps are non-core.  Subject matter: literary work/software 13%, commercial art 12%--highest percentage.

 

Non-© claims: 61.62% had some other claim. TM: 35.23%, breach of contract, 20.10%, other, 48.04%.

 

How hard fought was the litigation? Number of times judge has to step in and settle a dispute b/t the parties is one measure.  Motions asking judges to make a decision: not much difference as b/t high and low authorship works; not much difference between P core industry and P non-core; not much difference (larger but not statistically significant) for intra-industry disputes versus extra-industry.

 

What else can we do going forward?  Possibilities: Was work revenue-generating? Is P’s business © driven?  Was there a preexisting relationship—complete strangers, bad breakup, make or buy decision that went bad? Mess with your competitor case? One dentist sued a rival dentist over similar ad copy.  What else to code re: authors as parties; our definitions included WFH.

 

So what if incentives aren’t playing out in the courtroom?  Resist extrapolation because of selection bias.  But there may be takeaways, such as whether we need a small claims court proceeding.  Limited reach of © litigation reform: will that get at problems we see in © generally? 

 

Policy consequences: higher threshold requirements?  Higher pleading standard? Shape of the shadow of the law: if non-core cases primarily inform doctrine, that has implications.

 

RT: Relationship between core and non-core and presence of other claims?  Do TM/© pairs have a particular pattern? [McKenna’s channeling? If you do see a group of hurt-your-competitor cases, we might want to be more robust about requiring people to pick a theory. There’s discussion of bleed between © and TM, and is this a source?] [may justify some disparate treatment of music—if cases are really siloed into types, then music-specific doctrine may not be as damaging as we sometimes think it is.]

 

Lunney: Are these leftover Dastar TM claims?

 

A: we coded for presence of unfair competition/§43—trade dress/a lot of useful article claims. But we should look deeper. There weren’t a lot of quiet title/ownership disputes. 

 

McGeveran: what about outcomes? How many settle, how many go all the way?

 

Patrick Goold, IP Law and the Bundle of Torts

 

Patent infringement as a tort?  Statutory, not common law, but analogous to common law torts in orthodoxy.  View that there is a unified, singular, discrete tort labeled © infringement, same as there is trespass or battery, and same for patent.  Is that really true?  His thesis: not really.

 

© is not a tort, but a set of torts. Reproduction is different from public display. Likewise, in patent, making, using, and selling are different torts. There is no such thing as the tort of real property.  There is a set of related torts: private nuisance, negligence, waste, trespass.  We should think about the work/invention the same way as real property: an object worthy of protection, and then a set of legal wrongs that can be done with respect to that work. Reproduction is different from public display as trespass differs from waste.

 

Bundle of rights = bundle of wrongs.  Infringe right to exclude = trespass. Right to enjoy = nuisance.  Physical integrity = damages, usually negligence.  Same with IP. Right of reproduction = wrong of reproduction.

 

Why does this matter?  Liability is one reason.  In other areas of tort, you see a spectrum of different liability regimes across the bundle.  Liability for trespass isn’t the same as for private nuisance.  Trespass is archetypal strict liability.  Need not prove harm or fault. Private nuisance—some say there needs to be an element of harm and element of fault. Negligence: fault and harm.

 

©’s unitary liability regime, most people would call it strict liability, but no advocacy for differentiation between the rights.  People have tended to say that there should be some liability regime that applies across the rights.  Same with patent—making, using, selling treated the same despite their different economic characteristics.  Reproduction and distribution in ©: economic theory says you should use strict liability when only the D can take care to prevent the tort. Use negligence in cases of bilateral care, when both can act.

Reproduction: the wrong is copying.  P could attach © notice to prevent accidental copying; TPMs could also prevent copying. This is an issue of bilateral care, so negligence rule might be appropriate to give author incentive to give notice.  Distribution: the wrong isn’t the embodiment of work in copy but distribution of the infringing copy thereafter. D can take care; author’s ability to prevent this is far reduced.

 

Another implication: IP over-inclusivity?  Focus on the idea that there is one singular wrong of copyright infringement tends to result in people thinking that there is a wrong of copying. It’s a short step to overinclusivity.  Copy-fetishism: Jessica Litman. The belief that every copy must be licensed or excused.  Link to idea of “wrong of copying.” Think less of “the tort of copyright infringement,” then we can move away from the fetish.

 

RT: [Do statutory limitations matter here in the conceptualizations of the right? Educational exemptions do target particular rights.  Compare fair use: reason to make it unitary. Relatedly, overlap in rights in digital age: Tony Reese.  And overlap with derivative works right and some other right, in almost any imaginable circumstance.  Also, possible comparison to move to unitary standard for online/intangible torts in §230 and European Directive, at least as to the gatekeepers whose conduct is generally thought important to target.  Maybe for gatekeepers there is a tort of causing harm online.]

 

A: first sale also comes to mind.  Those limitations define the scope of the right in question.  Distribution right has different scope from reproduction.  Liability regimes = different plane. Conduct that infringes the right—conditions of harm and fault that need to be addressed to determine whether there’s an infringement.  [I’m not sure I get this.  Which are exemptions? Can’t you characterize them either way?]

 

Fair use—maybe it should be unitary.  Common law = disaggregated bundle.  Civil/European law’s unified system might do better with a unitary idea. 

 

Q: overinclusivity might not be because the 76 Act focuses on copying. 6 exclusive rights, only one of which is reproduction; the others are overinclusive for other reasons.

 

A: true, even if you unbundled, each right would be overinclusive.  His argument is on top of that.  Copying covers things like distribution in our discourse, which is not logically clear.

 

Irina D. Manta (and Robert E. Wagner), IP Infringement as Vandalism

 

Rhetoric of theft: “you wouldn’t steal a handbag—downloading pirated films is stealing.”

 

Why might it be theft?  Both infringement and theft take things of value; consistency in enforcement. Anti: no complete deprivation of work; owner can continue selling copies of work; loss is difficult to calculate.

 

We argue: IP infringement is better characterized as vandalism or trespass than theft. If we were consistent on how we apply sanctions this would lead to a reduction of sanctions in the IP space.

 

Rhetoric of theft is old, and emphasizes gravity of the conduct. But it turns out to be difficult to define stealing: circular—taking something that’s not one’s own.  Doctrines like adverse possession, easements that create exceptions.  Justifications for theft label: incentive theory—author mixes labor with public domain, needs reward; stealing takes away reward.  Both stealing in property and IP infringement involve a form of free riding on the efforts of the owner.  That could lead to lost sales directly and indirectly for the IP owner.  That leads to rivalrousness: there are losses for owners/buyers if a good is devalued if too many people have it.

 

Problems w/theft label: Owner retains a copy!  Almost impossible to strip an IP good of all of its value.  Significant causation questions w/r/t harm.  What harm does an individual infringer do?  Lower risk of altercations in the IP context.  Last, IP law is much more disconnected from popular norms than property/theft law is.

 

Courts: not always clear but often refer to IP theft or piracy. US v. Dowling: SCt was unconvinced it was “theft,” but unsettled.

 

Our argument: vandalism or in some cases trespass. Like vandalism, there’s a destruction of some but not all value.  Owner can still/license good.  Vandalism like IP infringement can enhance value. (Banksy: society gets the kind of vandalism it deserves.)  Limitations: infringement doesn’t harm the original copy; generally no financial free-riding, though there are hedonic benefits; vandalism has to create damage or it doesn’t count as such—more like trespass (DMCA violations?).

 

Consequences: takes rhetorical punch from label; raises questions about possible punishment level. Sentence comparisons: theft. Punishments for © infringement are generally much harsher than for theft. Same thing for vandalism.  For same “value,” you’re better off being a thief or a vandal than an IP infringer. DMCA = 5 years in prison, $500,000 fine, while trespass leads to fairly small fines and in Texas (worst) up to 180 days in prison.

Generally treat IP infringers more harshly than thieves.  Especially puzzling given actus reus occurs more quickly in © and so one can accumulate more in a short timespan. Mens rea could be a few seconds, followed by realization of wrongdoing. Sentence disparity may not be principled but rather consequence of nature of federal law and political forces.

 

RT: suggest drawing connections between theft language and “broken windows” theories.  Implications for equality/IP enforcement in physical world is highest among immigrants.  However, broken windows theory provides one possible justification for high enforcement levels: this is more important than you think it is b/c broken windows create larger cracks in communities. This would also lead you to draw connections between actual penalties (rarely given) and low-level enforcement (omnipresent in certain communities, lifestyle offenses used to regulate life generally—connection w/Julie Cohen on surveillance state and IP maximalism, © owners’ hopes to create that kind of low-level enforcement online with copyright alerts).

 

A: lack of catching people isn’t as important—choice whether to enforce, not ability.  Fairness and justice is a concern. [I wasn’t really talking about the “need higher penalties because chance of being caught is lower” argument.  I was talking about the expressive and order-maintaining function allegedly served by policing against vandalism, and the effects of the same on surveilled populations as in Alice Goffman's very interesting recent book.]

 

Q: Mindy Kaling has a great routine in response to the “infringement = theft” claim.  Framing issues: property or limited monopoly.

 

A: Even though we think © is about incentives, people in the world think it’s about natural rights. 

 

Q: other analogies—pollution, riparian rights? There’s something about vandalism that doesn’t get us that far away from theft. [I agree—there’s an implication of disrespect that I think is very strong, leading to a stronger moral rights conception if that's your thing, and also interference with exclusivity is very different.]

 

A: Pollution is interesting, but not exactly the same.

WIPIP Session 4, Cross-IP

Mark Lemley (& Mark McKenna), Scope

 

Midnight in the Garden of Good & Evil copyright infringement case.  Court rejects invalidity claim: the photo has some creative elements.  So it has to go to a jury on infringement. But we don’t tell them to filter out the elements the photographer didn’t create—filtering is only in our instructions on actual copying; infringement/substantial similarity is a gestalt.  In TM: Reynolds Wrap v. Handi-Foil. Court says that the trade dress is legitimate but narrow: blue combined with light red combined with stripes.  But then the court says on infringement that juries could find infringing similarity. What’s striking about the similarities? They say non-stick and heavy-duty, food lifts off, square footage is the same and displayed in the same place, and Made in USA language.  There is certainly similarity, but entirely in things we’ve previously said are unprotectable under TM and shouldn’t be the basis for an infringement finding. And then there’s the iPad design patent case and Apple’s patent on the rectangle with slightly rounded corners.  DCt denied PI based on invalidity, Fed. Cir. says no, they’re almost certainly going to win; jury ultimately found noninfringement (not invalidity). But one reason is that, b/c of quirk of design patent law, they got to look at the prior art. Makes clear that they don’t own all rectangles w/rounded corners—Apple must own something smaller than that.

 

General problem: we chop up world into infringement, validity, defenses, decided at different times often by different decisionmakers. This creates creep in the rights, and the only way we know to fight it is to deny all rights. What IP law needs is an integrated scope doctrine: think about validity and infringement and defenses this way. One IP regime has a step towards that: utility patent has Markman hearing.  What that does right: asks a single Q, what is the scope of the patent, prior to a validity or infringement determination.  Markman focuses on words written by lawyers and not on actual invention; this is a mistake. Patent is also not immune from the problem—it says there’s no defense of practicing the prior art.  What the court means is probably that standards for invalidity and infringement differ and we don’t want you to smuggle invalidity evidence that doesn’t meet the standard into your infringement case.  But of course there should be a defense of practicing the prior art. Integrated scope proceeding would work; could lead a case to end b/c the P is claiming more than it has, but even if the case doesn’t end it’s an opportunity to articulate what’s protectable about the IP right.

 

Greg Vetter: Does trade secret also match as a proceeding where we do validity and infringement and defenses all together? What about unfair competition/misappropriation?

 

A: Trade secret has been separated from misappropriation and put into IP, and that’s led to a greater separation b/t validity and infringement; beneficial to treat it is IP in many ways but this is not a benefit. Courts if they thought you were a bad actor were willing to overlook the absence of a secret; we want to avoid that sort of prejudice in an integrated proceeding.

 

Q: Does estoppel help here?

 

A: every once in a while, but often they don’t use it.  Reynolds Wrap is an example. Some other doctrines otherwise hard to explain are haphazard efforts to manage this problem: “thin” copyright requiring virtual identity—makes it harder for overclaiming to occur.  Merger doctrine too.

 

Courts have a natural tendency to make boxes. That’s odd way to treat a common law doctrine. Courts are more comfortable if they feel they’re checking off what someone else decided; less comfortable deciding breadth.  But they should be.

 

Ramsey: is the law ok and judges doing it wrong? Or is the law wrong? 

 

A: we’re not arguing the doctrines are wrong. But once we find validity—the TM was almost functional but wasn’t fully functional so it passes—we ignore that at the infringement stage where the elements D copied are functional. So we need to cross the barriers.

 

Q: So should judges write a claim?  Should we get rid of juries? 

 

A: big difference b/t ex ante claim written by lawyer and ex post determination by judge. Much more comfortable with the latter as getting to right answer.  Circumstances exist in which words will help, especially if one has to instruct a jury.  Don’t find liability based on unprotectable similarities. Side by side comparison could do a lot more, though Egyptian Goddess sadly moves towards separation of validity and infringement for design patents.  It’s correct to say that judge is more likely to get right result than juries, but one implication of scope analysis is that some cases will fall out before reaching the jury once you take seriously what’s actually protected.

 

[NB: I’m not sure I agree w/the TM example. Arguably, if there is a secondary meaning in a trade dress—which might not really happen in these cases—then the fact that it’s mostly functional may put a duty on others to stay further away from the nonfunctional aspects than they otherwise would.]

 

Ari Waldman, Trust: The Distinction Between the Private and the Public in IP Law

 

Public/private distinction drawing is foundational Q of privacy law, and also for IP scholars. There are problems if either side gets too big.  In privacy/constitutional law, the public tends to crowd out the private.  But there’s also a problem in IP when we define the public too large in the context of minimal disclosures.  Public use bar—if you disclose/use/demonstrate invention you can’t get a patent.

 

Who wins/loses public use bar cases?  You can cluster winners and losers (only about 30 so far). Lone inventor versus large inventors have public use cases.  Lone inventors tend to lose public use bar cases; IBMs tend to win.  More research has to be done, but wants to think about possible reasons.

 

Rule: inventor must maintain control over invention during the use, it’s considered private, but if you relinquish control, it’s public.  Too often, that retention of control = assumption of risk doctrine that you run the risk someone will talk about it. Corporate inventors have extensive legal armies/cachet that allow them to force collaboration partners to sign confidentiality agreements.

 

Courts honor norms of big inventors, not young/small ones—the latter tend to ask friends and family. Norms of confidentiality exist but without the formality that exists in corporate settings. Courts don’t appreciate the norms in different social networks.

 

If you’re agnostic about privileging one type over another—not saying individual is better—it’s still not a good idea to privilege one set simply because the doctrine ignores uniqueness/variations of social norms from network to network.  Courts privilege formally negotiated agreements between collaborators, and arguably shouldn’t, controlling for other factors.

 

McGeveran: must first justify using inventor’s perspective.  Are individual’s perceptions a meaningful guide to what ought to be considered private? For privacy, maybe—goal is to protect reasonable expectations. For patent, maybe not, if our goal is to get inventions and enhance public knowledge.

 

A: some evidence that purposes of patent are also met by this type of analysis.  Experimentation: goal is to make the inventions the best possible.  A changed vision of how we control public use would enhance that.

 

RT: how much do these inventors know about the on sale bar? Is there any way that tweaking the rule could incentivize them?

 

A: Not sure they’re affected, but individuals generally reflect/respond to the law. 

 

Q: solo inventors are often norm-jumping from informal to formal.  Collaborative IBM types aren’t.  One message is that we can’t switch norms midway through the story. Can’t get a powerful exclusion right because you started in the world of your friends.  Inventor wants patent right—powerful market-based brutal and impersonal rights. Why not make them play the norm game from the outset in the impersonal mode?

 

A: but is that offensive to other patent law norms/frustrating other goals by making this contextual analysis?

 

Q: Paper apparently has a trade secret piece, which is stronger.  Your insight from privacy is about control.  When you choose to disclose to your inner circle, you haven’t given up on privacy—danah boyd, young people do care about privacy but manage it differently.  Trade secrecy is a good place for that.  [Analogy to naked licensing in TM might be helpful here—the doctrine there does recognize context.]

 

A: broader conversation about relational norms of trust—read his book when it comes out!

 

Jessica Silbey, IP and Constitutional Equality

 

Progress Clause: one part of project comes from qualitative/empirical data, about what people working in creative industries think progress is.  Instances of market failure.

 

Today’s cases: SCt.  What progress do they imagine?  If SCt is thinking of deeply rooted equality doctrines, that’s worth thinking about and responding to.

 

Two dominant strains of equality doctrine in two cases—both Justice Ginsburg, but can also be done with Aereo, Kirtsaeng, Petrella.  Eldred: Aristotelian equality promise of likes being treated alike. Classic neutrality—similarly situated classes treated the same; difference needs justification; deference goes up as the class gets less suspect. 7 members of Court said that Congress could extend 20 years to existing, not just future, copyrights.  What incentive rationale is there? What limit is there on that? The Court didn’t have factual explanations for this—a lot of hypothesizing, which is fine under rational basis, but what really might have been going on is an understanding of the value of formal neutrality in application—treating all copyright owners the same. Language: parity, alignment, even-handedness, existing and future copyrights “alike.” Harmony, sameness—these words show up again and again.  Personalization of the benefit for copyright owners is not about incentives but about the dignity of equal treatment. 

 

Rudimentary, and there are problems with the theory. Ignores the democratic flaws in copyright legislation; assumes all authors are similarly situated when they’re not.  Failed to consider those left out, while enacting a story about inclusiveness. A classic problem of formal neutrality. We talk about this a lot in equal protection law.  Justice Ginsburg knows that all too well.  Just application of neutrality depends on starting line being relatively equal for all those being compared.

 

Golan is actually about antisubordination. © restoration for foreign works in public domain because of failure to comply with formalities. Court saw 104A as reparations for unfair losses in previous years.  Reciprocation—foreign works put on equal footing w/US counterparts. Not about treating likes alike; it’s the other side of the coin: justifying antihierarchy approach where constitutional equality dehierarchizes unjust status differences.  Targeted special benefits are ok—affirmative action reverses unfair deprivation.  Language: foreign authors “subordinated” to domestic; 104A is a “remedy,” restoring authors to the position they would have had—that is language from discrimination cases.  Critiques Breyer as American exceptionalist, which also resonates.

 

Problem with that too.  Ginsburg says: Q is whether users must pay or limit their exploitation to fair use.  Rights must be obtained from marketplace, as they must be from US authors. This sounds like equal pay for equal work.  Contrary to equal pay laws, where there are no losers but discriminators and about whom we don’t care, 104A causes real harm to people who didn’t do anything wrong—now forced to pay. Leveling up ignores harm to stakeholders who don’t have political power—misses bigger picture about benefits for public domain, thinking © benefits only authors and not the public.

 

Petrella: also a direct response to the Lily Ledbetter case in which Ginsburg dissented.  Is this fundamental to the argument? Fortuitous?  Is it a complement to or displacement of a traditional property framework? What does it have to do with Progress at all? Blank check to Congress?

 

Vetter: would this mean that in AIA the fact that we left patents through March 2013 as first to invent and not first to file would be potentially unconstitutional?

 

A: not trying to determine constitutionality, but explaining cases through other frameworks, not necessarily as predictive or normative. From perspective of IP on the ground: SCt cases read strangely, at level of generality that feels unrooted.

 

RT:  Golan argument, you say that this ignores harm to the public.  But they were wrongdoers in this account, right?  Compare Mark Twain/piracy discourses—wrong even if legal.

 

Jonathan Mazur: Ginsburg seems to be imputing normative judgment to Congress—meant to treat likes alike. Does that make a difference v. constitution?

 

A: It’s not that someone made an equal protection argument.  Golan is right w/r/t deference.  But then why is the language there?  Equal protection jurisprudence is a leaky doctrine.  It changed constitutional law generally, became a fundamental value. Q is whether it does here.

 

Q: Why use a construct that is a red flag to colleagues?

 

A: That is exactly what happens in Aereo—Scalia calls the majority out. Kirtsaeng is a split, and looks more like a substantive equality case.  Might see more splits/disputes over proper framework. 

 

Q: Lexmark: treat them all the same?  [That’s super interesting, especially since you’re seeing resistance in the lower courts to applying Lexmark to §43(a)(1)(A) even though the opinion clearly instructs that should happen.]

 

Gerhardt: is equality the new “traditional contour”?

 

A: if so, we need to put pressure on how the lines are drawn, how the class is defined. Constitutional lawyers think a lot about that.  We need to do the same.

 

Gregory Mandel, The Plagiarism Fallacy in Intellectual Property Law

 

Public perception: IP law designed to prevent plagiarism.  Experiment—trying to figure out what American adults using Mechanical Turk thought about copying.  Copying someone’s creative product: 20% conditionally acceptable; 78% not acceptable.  Why/why not: 78%: ethical/moral. 6% mention any legal basis.  Response examples: “copying someone else’s work and taking credit for it is theft.”  “People should get credit where credit is due.”  Credit/misplaced attribution was the greatest concern.

 

Popular understandings of purpose of IP law.  Developed brief explanations of incentives, natural rights, expressive rights, and plagiarism; participants asked to rank by agreement w/them as justifications for IP protection. Plagiarism: 37% incentives and natural rights, 26% each, expressive rights 11%.

 

In-depth look towards IP in specific contexts: creative subject matter: book, music, painting, medicine, electronics, software. Type of copying: idea/expression (not full product)/copying creative product.  Perspective: what law is and what law should be.

 

Results: plagiarism fallacy appears to be rooted in and partly a cause of widespread perception that IP rights are too strong and too broad.  In identical scenarios, participants believed copying should be permitted to a greater extent than law allows. 

 

In each subject area, the copying in the idea condition would be permissible, complete copying not; expression (e.g., copying some qualities and chorus of song but not entire song; reverse engineering and duplicating patented chip).  Higher numbers = more in favor of copying—largely in favor of copying ideas. But in 4/6 partial copying scenarios, public believes copying should be allowed, and for music, complete copying is ok, and books and medical devices above 40%.  So preferences are highly contextual.

 

Tested mitigating factors: copying for educational purposes; noncommercial; permission; attribution. Results: baseline: permission made it nearly ok to copy.  Attribution, educational use, and noncommerciality all should reduce infringement liability.  All differences statistically significant.  Educational use generally does better than attribution.  The majority of people think that simply providing attribution should enable the free copying of intellectual works/inventions—not just downloading a song on the internet but other creative works too.

 

Exposing the plagiarism fallacy explains some puzzling behavior: YouTube videos that say “no copyright infringement intended” (or even “no copyright intended”).  Nonresponse to “infringement is theft” campaigns.  Many people may agree with “theft,” but have a different understanding of the meaning of “theft” than IP owners. People hear: don’t claim credit for someone else’s creative endeavors, and they think, “I can do that.”  People aren’t dismissive towards IP rights, but they understand them differently. 

 

Further findings: public is ignorant of IP law.  Multiple choice quiz—average of 4/10 right, 1.5 above chance.  Knowledge of IP law doesn’t affect opinions about what the law should be: if they did really well on the quiz, they still don’t change opinions about what IP should protect, suggesting that info campaigns are unlikely to change views.  The public views patents and © relatively similarly.  Answers across subject matters vary widely, but that variation seems subject matter dependent, not about artistic domain v inventive domain.  Variation isn’t across copyright/patent divide.

 

Demographic variation in preferences.  Older people, women, conservatives, and wealthier people tend to believe in stronger IP rights, and tend to report greater self-compliance w/IP rights than alternate groups.

 

Silbey: Findings on software: where we think rights should be weakest, public thinks rights should be strongest.  Does that have to do with industry status, distance from industry (people paint).

 

A: medical scenario involved vaccine, not familiar.  (Silbey says: that saves people, is understandable.)  Scenario was someone who writes a computer program copying functionality—reverse engineering.

 

RT: so the people who say they believe in strong IP rights, do they believe in the plagiarism norm very very strongly, or do they believe something else? How do they respond to things like educational/attributed use?

 

A: Only difference we really saw: People who believe in expressive basis favor weaker rights.  We are going to study differences in response to changed scenarios.

 

Sheff: most people on MTurk are consumers and not producers. If you think IP is distributive, it might not be persuasive to have respondents only from one side of the distributive problem. Could you manipulate respondents to be creators, like Sprigman, Fromer, and Buccafusco?

 

A: our hope is to run the same survey with creators.

 

Heymann: not surprising that people think IP is plagiarism because their first encounters in research papers involve attribution norms.

 

Q: relevance of TM examples?

 

A: we were surprised by plagiarism results, but TM is about attribution.

 

Lemley: if we think this is troubling, is it the law that should conform to people’s views or should people be educated about the law?

 

A: doesn’t take the position that belief should = law. We can have other objectives. Strong point: represents dominant view among users and some creators. Can’t expect IP system to function the way we want for incentives if there’s this widespread disconnect about the law.  Think about how we are going to get greater penetration among the public.  Look at creators.  [We could create an absolute educational exemption.  That might not have a huge effect on incentives but could really help.]

WIPIP Session 3: Copyright

Session 3, Copyright

Abraham Bell (& Gideon Parchomovsky), Copyright Trust

 

Incentives to create: if we recognize too few owners, then we haven’t incentivized them enough.  If we have too many owners, we disturb the efficiency of use.  Many owners with power to license creates an effective commons, because the price of licensing would be driven down; play them off against each other. Many owners with vetoes = effective anticommons.

 

Many doctrines: work for hire, joint authorship, collective works, transfer, sole authorship, implied license.  Tasini: easy to end up outside the collective works privilege. Transfers themselves are imperfect/subject to termination.

Their idea: copyright trust, alternative form of ownership. Could be adopted by parties by contract or by court after the fact. Not all or nothing; greater v. lesser. Division between beneficial and trustee ownership, w/owner trustee and owner-beneficiary.  Beneficial shares may be unequal. Standard fiduciary duties. Mastermind will control the use of the work but not necessarily get all the profits.

 

Sources of inspiration: property, allowing division of equitable and legal ownership; corporations law—division of ownership and control.

 

Q: is this mandatory or voluntary?  If voluntary, they can contract into it and arguably does exist, e.g., for movies w/big stars; writers share income with publishers.  Fiduciary duty is not the same, but duty of good faith does exist.

 

A: Wouldn’t be mandatory, but there are situations where people didn’t think of it in advance—Aalmuhammed v. Lee, Garcia v. Google, Effects Assoc. v. Cohen.

 

Rosenblatt: relatively common/well known in entertainment industry: back-end deal; several unions provide for residuals. Not an ownership-type right but an income stream that comes as a result of success.  Devil’s in the details. One is individually negotiated, the other isn’t. Those are key details.  These cases happen because of non-union employment.

 

A: Mandatory isn’t the word to think of. Post hoc or ex ante.  We should deal w/ residuals—closest thing contractually that exists. 

 

Bob Brauneis: Now we have a test: author or not. You are adding a third category: author-trustee, author-beneficiary, and nonauthor.  How do you figure that out post hoc when the parties by definition haven’t come to an agreement? What is the test for the ownership-author versus the control-author?

 

A: Something very close to the Aalmuhammad court: among the people who otherwise look like authors, is there a mastermind?  If there is a clearly dominant person, that’s the owner-trustee, and everyone else who prima facie satisfies the criteria of authorship satisfies the criteria to be author-beneficiary.

 

Brauneis: so anyone who makes a creative contribution intended to be folded into a creative work is an author?

 

A: this is the problem with having a low threshold for © protection. Anybody can be an author.  Aalmuhammad is a drastic solution to the problem that everybody is an author; we are something in between.

 

Brauneis: I’m just curious about what that something is.  [Agreed: he seems to be going to “everybody is an author.”]

 

A: everyone who satisfies the statute on its own terms is an author-beneficiary. 

 

Q: if memory serves, Aalmuhammad got paid.  If I’m the trustee, how much money does he get?

 

A: practical problem of figuring out shares.

 

Q: The industry will indeed care about the answer.

 

A: Apportionment happens all the time.  © judges make value judgments all the time.  Thinking in advance is always the better solution, but if they haven’t, we should be able to land between zero and one.

 

Brauneis: you could stick with the even division but give one person control: percentage is separate from the issue of control.

 

Q: CARP requires 18 month proceedings with huge records. That could be very unhappy for district court judges.

 

Rebecca Curtin, The Transactional Origins of Author’s Copyright

 

Practice before the Statute of Anne might have affected that evolution in © history by which we started off with the Stationer’s right, protecting an infant industry à a right for authors.

 

Licensing Act expires in 1695: censorship in return for protection; Stationers try to get the quid pro quo up and running again, or if not that at least protect the industry. Doesn’t get political traction. Then stationers start arguing on behalf of author’s copyright. Rhetoric is there even if the rights are not.

 

Looking at what happened before to explain the Statute of Anne, and also potentially as a way to explain the renewal right.  Stationers’ petition, Feb. 26, 1706: “Discouragement of Persons from writing Matters, that might be of great Use to the Publick.” But there’s more emphasis on alienability and transferability in the rest of the petition.  Many learned men who used to dispose of their copies, and their families, are being hurt.  Looking for descendibility, devisability, divisibility.

 

1709 Petition: subtle changes; this one is ultimately successful. Protecting the ability of the author to sell to the stationers. 

 

Before 1709: do transactions give authors more rights than the legal default? There are examples.  Typical entry: name of printer/bookseller and title; author doesn’t have to be part of it.  But: a handful of alternative transactions.  E.g., additional note: copy never printed again w/out author’s consent. A reversion/right of first publication.  More complex contracts: similar to royalty streams. Milton’s contract for Paradise Lost called for a stream of contingent payments.  Another example: author paid in copies. If the book proves popular, he can sell those copies.  Author’s discount for copies, allowing author to get not just clawback rights but opportunity to become his own retailer.  These kinds of experiences allow people to be comfortable with the idea of authors’ rights, understanding that transferability would favor printers anyway because of the barriers to entry—little to fear from authors’ rights.

 

Jessica Silbey: tracing everyday practices through evidentiary fragments is great.  Are there other indices of bargaining power you are ascribing to authors? Who are they? Repeat players? Can you attach names?

 

Rosenblatt: reminds me of movie deals—clawbacks, pay or play, etc.  More like movies than the current book industries.

 

Ben Depoorter (& Alain van Hiel), The Dynamics of Copyright Enforcement

 

Enforcement against noncommercial online infringement.  Initial campaign; enforcement letters to campuses; settlement offers allegedly averaging $3000. 2008-2010—industry says it’s abandoning mass suits. But still pursuing high profile cases in the pipeline for statutory damages.

 

Empirical study: followup study of earlier enforcement studies.  Allows us to study enforcement more generally because of changes on axes of certainty and severity: low certainty but high severity (statutory damages); settlement letters medium certainty and severity; Copyright Alert System (CAS) lower severity but higher certainty of getting caught.

 

So, what was the effect on deterrence? What about norms?  Effect of CAS; influence of legal alternatives like Spotify.  Research methods: surveys and experiments; a lot of self-reported behavior and reactions to hypotheticals, which have downsides. But this is anonymous and there’s no obvious reason to lie one way or another.

 

Most students engage in some type of illegal downloading—music, movies.  Includes music swapping between devices.  41 of 349 claim never to have done that.  Legal subscriptions/purchases—correlation with that and illegal downloads. Illegal downloaders: 92% use legal alternatives too.  Future downloading: 29/100 say they won’t use illegal downloads in the future, about the same say it’s very likely—two distinct humps, not much in middle.

 

How have norms evolved?  Industry says it was about education, not deterrence.  Moral judgments about downloading music and movies—do you think immoral; does public think it; do peers disapprove? On a scale of 9, immorality of downloading music is at a bit over 4/9—not completely moral. Expectation of peer disapproval is almost nothing (2); expectation of public disapproval is a bit higher.

 

Change over time—4.5 in 2007, 4.2 in 2011, and down to 4.1 in 2014 (relatively small but downward trend). Moral judgment relating to one’s download history. Those who download a lot think it’s not immoral (3.9); never download think it is (6).  But this doesn’t tell you about causality.

 

How likely is it that file-sharers that download daily will face repercussions: 26.5% think it’s very unlikely, 60% total “unlikely.” Most think 1 in a million or 1 in ten thousand chance.  Not much difference in perceptions among downloaders and non-downloaders: both average a bit over 3/9 (unlikely that downloaders will face repercussions).  No different perception of enforcement likelihood. Deterrence is not playing much of a role.

 

Effect of receiving CAS letter: likelihood of perceiving greater chance of being caught was much greater, but very small N (7).

 

In 2014, less in the way of plans to download illegally than in 2011, but goes from around 4.5 to 4.27. Past behavior predicts future behavior.

 

Priming: unjust enforcement. What’s most unjust/disproportionate?  Statutory damages; private trolls; CAS and RIAA campaign are equivalently objectionable or okay.  Not really significant improvement.  Is there need for copyright reform/more balanced ©?  Statutory damages, but also CAS and settlement campaigns also trigger belief in need to reform. 

 

CAS isn’t a great deterrent for future infringement plans; a little better than the RIAA settlement campaign.  Backlash: do people intend to download more if you’re free from risk?  CAS = nearly 4 agreement; settlement campaign = almost exactly the same; statutory damages = more backlash by a bit.

 

Privacy concerns also may be important.  CAS is not “norm-superior.”

 

Heymann: You seem to include P2P and direct swapping.  Later questions talk about downloading. What are you trying to test?

 

A: we said any type of tech where you know you’re paying v. where you know you’re not paying. P2P isn’t as common in 2014 as streaming sites.

 

Q: did you go outside of © law?

 

A: no.  Students aren’t representative of society as a whole, but in this context they are the primary target audience of the enforcement anyway.

 

Q: what’s their appetite for risk in other situations, as opposed to this one?

 

A: we did ask for their views on others’ opinions/preferences, but that would be helpful too.

 

Elizabeth Townsend Gard (& Geena Yu), Is Fair Use Codable?

 

Thompson Reuters is licensing the Durationator for use by clients. Launches next week.  Every country in the world coded after this year.  What we’ve learned from coding the Durationator: how to think through law and communicate results in a simplified manner.

 

Course: research each case, group cases, create flowchart based on outcomes to see if they were similar in finding, and if dissimilar what mattered. Class split 50/50 on whether fair use could be coded, and pretty passionately so.  Wanted to create greater probability though no absolutes. Coding depends on the type of audience you’re trying to reach. Best practices approach might be more practical for local creators/artists, the community we want to help understand fair use.

 

Next steps: need an army for research—perhaps groups of law students throughout the country. Need many paths doing the same thing concurrently: the way every scholar did it; the best practices approach—put the same info in and put it different ways to see the answers you get.  Idea is to have experts put their system in and train it.

 

Q: qualitative coding?

 

A: we have to be exploring that. Not like Durationator.

WIPIP Session 2: Trademark

Jeremy Sheff, The Ragged Edge of the Lanham Act

 

Similar to Tushnet project; will focus on question about Lanham Act’s structuring of interface between PTO and federal courts.  Registrability v. enforceability: incontestability; §2(a) bars versus the common law—some of the bars have no analogue at common law.  Is a mark cancelled for scandalousness enforceable under §43(a)?  Renna v. County of Union said that unregistrable under §2(b) was unenforceable.  §2(e)(1) and (3): deceptive marks—if unregistrable, enforceable?  That’s not so much an issue of §43(a)(1)(A) versus (B)—use of deceptive TM might count as false advertising—so not even a right to use?

 

Judicial review and standing: direct appeal to CAFC, governed by APA standards of review; 21(b): de novo action in E.D. Va.; the director shall not be made a party to an inter partes proceeding under this subsection—leading to a motion to dismiss in Pro-Football v. Blackhorse on the theory that there was no standing. DCt ruled against that, but there are at least plausible arguments that Article III doesn’t map onto standing required to participate in inter partes proceeding.

 

B&B v. Hargis: preclusion and deference. Are the legal and factual issues in registration proceedings meaningfully distinct from issues in infringement litigation? Is the PTO entitled to deference on the legal and factual issues even if there’s no preclusion, and does that depend on distinction from issues that arise in subsequent infringement litigation?

 

What is registration for?  Procedural view: notice, evidentiary record for first in time rights system; inducement to register is to provide notice and avoid future disputes. Substantive view: those inducements have independent force and meaning: offense-side incontestability (inconsistent w/common law); nationwide priority; remedial advantages like criminal penalties and enhanced damages; evidentiary benefits like presumption of validity and notice.

 

Depending on whether you think it’s substantive or procedural, implications differ. Substantive: §2 has First Amendment problems. Standing is less controversial. PTO is probably entitled to deference. Possible preemption of state law or Congress should do it if it hasn’t already been done.  [RT: what should be preempted?] Implications of procedural view: divergence of §2 and common law protectability standards is probably unsupportable; standing in the absence of live infringement more problematic; less clear that judicial deference is warranted. [RT: not clear on that last point.  Can’t an admin agency get deference on factfinding even if there is generally judicial review?]

 

Upshot: really need to decide!

 

Lunney: Park N Fly: actual registration included design; could probably have proved secondary meaning.

 

A: but incontestability still is something you couldn’t get at common law and the opinion says it’s a carrot.

 

Welkowitz: what do you mean by deference?

 

A: maybe APA deference, to factual issues decided in registration proceedings.

 

Welkowitz: Judge said that it would be very hard to figure out how to give proper deference to the PTO in a jury trial.

 

A: there is a good argument that the question is substantively different between §2(d) and infringement.

 

Welkowitz: preclusion is an on-off switch, deference is not.

 

Ramsey: how robust is examination? That worries her about deference.

 

A: on a lot of issues, like §2(a) and 2(d), they tend to build more of a factual record. §2(d) seal of county gov’t, less contestable.  Maybe preclusion/deference only comes where detailed factfinding is necessary—which is where APA deference gets you.

 

Rebecca Tushnet, Registering Discontent

 

Sheff conferred a positive externality on me since our projects are so similar.  My starting point: Felix Cohen on transcendental nonsense and the functional approach—TM was one of the key examples of transcendental nonsense. Eleven years later he lost the battle in TM as the Lanham Act added a new set of legal fictions to the existing ones he criticized.  Are these concepts empirical?  If not, what should replace them?

 

Along with Sheff’s examples, I’m interested in the role of registration in the multifactor confusion test, as well as how to reconcile registration w/dilution, which was supposedly designed to prevent interference w/marks even on unrelated goods/services. 

 

What should be done? I agree, pick one. I’m attracted to substance: create a real divide between registered and unregistered marks, perhaps by double identity for registered marks and a robust harm requirement for unregistered marks.  Explicit balancing of non confusion based rationales as justifications of and limits on TM—since we’re so bad at the empirical tests anyway.

 

Rosenblatt: many inconsistencies w/current system and proceduralist view.

 

Sheff: agree—proceduralist turn would require changes.

 

RT: but also inconsistencies w/substantive view of registration—consider infringement test, which doesn’t consider the registered mark but only in context.

 

Bill McGeveran: if you’re attracted to a European model would there be use as a mark as a requirement?

 

RT: Maybe, maybe entailed by the very definition but if not should be done explicitly.  TM as a series of formal moves that, if made, entitle someone to a right.  If not made, don’t get caught in the cycle of “does the public perceive this as use as a mark.”

 

Ramsey: w/double identity you’d need a defense for comparative advertising/use as a mark.  Also, what about examining rigor if you’re going to go substantive route?

 

Sheff: question is ex ante costs of rigor v. ex post costs of resolving conflicts; reasonable people disagree.  Ask: is it a big deal if the PTO refuses your mark and you have to find another?  What gatekeeping function do you want?

 

RT: agree, rigor is an issue. One issue where the TM bar is in agreement is that there’s a ton of deadwood on the register.  Study: 2/3 of marks that applied for renewal couldn’t show use in one or all categories.  ¼ couldn’t show use in any.  This is a big deal; TM bar thought it was a slight problem but it’s not, especially in substantive areas.  Nonuse proceedings should be fast and cheap—Canadian model—and PTO should require more specimens as a matter of course.

 

Megan Carpenter, “Behind the Music”: Lanham Act 2(a): When scandalousness came in, Hays Code was in effect—people who committed immoral acts on screen had to be punished on screen.  Definition: shocking to sense of propriety, offensive to the conscience or moral feelings or calling out for condemnation.

 

Consumer protection is different: protecting morals rather than confusion.  Lessening in other IP regimes of regulating morality.  But political and practical realities exist.  Today’s legislative environment, unlikely that Congress will act.

 

Even w/o new legal framework, could get better, more consistent and defensible results w/marketplace context. Test: current context of the attitudes of the day, in the context of the relevant marketplace. In practice?  Empirical study: Most are rejected for containing a word listed as vulgar in the dictionary; but only 5.08% of rejections she examined considered market context.  But what is vulgarity?  Dictionary: lacking sophistication or good taste; explicit and offensive reference to sex or bodily functions; coarse and rude

 

Media like Urban Dictionary used about 25% of the time.  Mostly dictionary; next was other media (15%), a tiny bit of third party use, and 3.91% applicant’s own actions. The fact that it’s used in a context/market that accepts vulgarity, that’s used to support the rejection. TIT MITT for bras rejected because the goods would make the vulgar meaning clear. Google searches are common contextual evidence, but most often we see marketplace abstracted from that analysis.  Most are rejected for profanity and sexual reference, failing to account for narrow marketplace.

 

Adult-oriented goods/services, that also supports the scandalousness refusal. Where the goods themselves are not scandalous, like SHLONGWEAR for apparel, then the standard was the general public who’d be scandalized.  Catch-22.

 

Atypical to respond to Office Actions—usually abandoned; applicants are individuals and small businesses. Most common response when they do respond: context of mark.  Other common arguments: alternate meanings and third-party registrations. When context is argued, it doesn’t often succeed.  For every mark that’s been rejected, there’s one that passes through.  No predictability/consistency for Examining Atty or for the applicant.

 

By and large, these things are in use afterwards, though they can be hard to track down.  Used by applicant or otherwise in almost ½ the case; but that leads to a proliferation of uses.

 

RT: How many of these are really TM use and not ornamental? E.g., YOU CUM LIKE A GIRL.

 

A: A lot should be rejected for ornamentality, and that’s ok.

 

Rosenblatt: I always thought this was intuitive, and the examiner just justifies their personal intuition. If so, the examiner may go find something else even if you change the process.

 

Q: maybe, but I think “vulgar” is a much lower standard than scandalous. 

 

Farley: There is a lot of inconsistency, but there’s consistency on “shit.”  You’re telling a story of consistent difficulties; the dictionary might be more consistent.  Are you truly interested in consistency, or something else?

 

A: we don’t see all the things that pass through without challenge.  Examiners don’t have clear guidance.

 

Roger Schecter: merchants want to sell stuff. They won’t sell stuff consumers won’t buy, including because they’re offended.  If §2(a) is to have any coherence, then, the interests/reactions of nonconsumers must somehow come into account.  Maybe it’s hard for anyone to avoid anything in the internet age, but the likelihood that goods will be in a market channel where noncustomers will encounter them should be a relevant consideration.

 

A: Agree.  Similar to likely confusion factors.

 

Q: Adult stuff is approved (not always)—being for an adult product is necessary but not sufficient.