Barton Beebe, Benjamin N. Cardozo School of Law, What if the Supreme Court Had Affirmed in Dastar?
First: the Court held that “origin of goods” refers to producers of tangible goods, not any idea, concept, or communication therein embodied. Thus, Dastar need not attribute to Fox its copies of a series Fox formerly produced. The Court admitted that some reverse passing off might be allowed by this ruling, especially with communicative products, but the alternative was to create a mutant/perpetual patent & copyright law. Moreover, the Court didn’t want to put defendants in the position of tracing the source of all the ideas etc. from the public domain in its products. Future defendants would be in a double bind; attribution would create a risk of passing off liability, and omission would be reverse passing off. The Court doesn’t give an affirmative reason for ruling in Dastar’s favor, but a bunch of negative reasons for ruling against Fox.
What might the Court have done differently? Ruling in favor of Fox can be justified through goodwill: someone else is gaining the goodwill from Fox’s product. And that might create a false expectation about the future quality of Dastar’s products. The Court could have ruled narrowly, remanding the case for evaluation of the TM aspects – was there any real evidence of consumer confusion about source? Fox made no showing of confusion – consumers might not care about or consider the source of the expression. The Court could have rejected the physical/communicative distinction – we don’t think that the maker of a watch invented the watch; we might not think Dastar was the source of the footage.
A much better way to rule in favor of Fox: Even if consumers don’t care, the Court could have ruled prescriptively that consumers should care about origin and source of ideas, innovations, expressions, and the rest. Beyond issues of goodwill and search costs, consumers should be taught in general how little in IP is knew. Culture is almost entirely recombinant. IP tries to efface tradition. If we take attribution seriously, we’d encounter a huge thicket. But attribution doesn’t equal authorization. Dastar was an expression of the forgetfulness of modernity – we no longer care about the geneaology of things or ideas, but what they can do for us. History is bunk. We say that to avoid property rights, but at the same time the Court is radically effacing tradition.
Imagine a world in which attribution is more important than progress, in which commodities must tell their origin stories. (I’m reminded of the discussion of GIs, and origin stories, at the gender conference a few weeks back.) It would be sort of like open source software. It could help to defetishize commodities, so that they no longer seem to appear as if by their own nature on the store shelves. The tennis shoes we wear come from Nike. We don’t know what that means, but we certainly don’t imagine them coming from sweatshops overseas. The fear: that forgetfulness is shifting over into intellectual property as well.
“I created it, it’s mine” is a powerful claim. But maybe if we insisted on footnotes we’d be less likely to grant control rights. We’d tear up ideas about novelty, originality, independent creation. Dastar is a recent chapter in the fetishization of IP, even though Scalia’s opinion is strongly materialist in its focus on tangible goods. Ideas are allowed to seem as if they spring from nothing. Information seems to be alive and searching for us. This is a bad idea, because we are alive and ideas are objects. We should see them as property, not disembedded subjects.
John T. Cross, University of Louisville, What if The Trademark Cases had been decided the other way?
After the TM cases, Congress waited until 1905 to bite the Commerce Clause bullet, though there was a proposed constitutional amendment (to carry out international treaties!) to grant the right to protect TMs.
There are two tracks for the Court to have upheld the Act. (1) Under the Commerce Clause: could have avoided tooth-gnashing about the Commerce Clause for the next 40-50 years. As for TM, the 1870 TM act was incredibly radical: you could register based on use or adoption – no 100-year-wait for ITUs.
(2) Under the IP Clause: Kevin Saunders’ notions of alternate worlds are very important here. TMs could be considered writings by an author. Or you could say that the Clause doesn’t require originality. For the first, a TM is a form of communication. A writing under the IP clause is something that communicates. Consumer Reports explains product attributes; so too does a TM communicate attributes and source. A musician borrows existing notes and arranges them in a new way. Likewise, a TM owner may adopt an existing term, but uses it in a new expressive way.
The second argument would be that originality isn’t a constitutional requirement. The TM Cases themselves set out that point, but the Court’s reasoning is facile. “Discoveries” is loaded with newness, but “authors” and “writings” aren’t. The purpose those terms serve is to limit the power granted “to promote the progress of science and the useful arts.”
Under this second, more radical argument, what would IP law look like today? It might not look all that different. Databases would be different. But that’s pretty marginal. All the IP clause does is empower Congress, and Congress wouldn’t necessarily have gone out of its way to grant copyrights to random nonoriginal works. It would have made Feist different, though it could have been a statutory interpretation case.
Lisa P. Ramsey, University of San Diego School of Law, What if there were no First Amendment distinction between commercial and noncommercial speech: would trademark law be constitutional?
Mostly, yes. It would raise serious questions for certain trademark doctrines.
Most TM cases involve commercial speech and misleading use of a TM. If TMs aren’t being used in a misleading manner, you have to go to Central Hudson analysis (though courts don’t). Usually courts don’t use an independent First Amendment defense, but incorporate various doctrines to limit TM rights, and Congress does the same thing. Courts go out of their way to characterize speech as commercial when they’re going to find for the plaintiff.
Without Central Hudson, all this is cast into doubt. What level of scrutiny would be applied? Start with the government’s purpose: content/viewpoint regulation? In San Francisco Arts & Athletics – the Gay Olympics case -- the Court applied O’Brien intermediate scrutiny analysis to the noncommercial elements of the speech at issue. That assumes content neutrality and might produce results very similar to Central Hudson. Yet, as Eugene Volokh says, TM cares about the communicative impact of the speech, so that seems content-based. It’s like regulating the use of profanity in public. That would mean applying strict scrutiny unless the speech is otherwise unprotected.
Some have argued that Turner scrutiny should apply in copyright – if the government is allocating speech entitlements, you use intermediate scrutiny, but rigorously to make sure the government is getting it right. That could be the case here as well.
What about a threshold requirement for misleading use? Would you ask first whether the use was misleading, then apply strict scrutiny? Or would you start with strict scrutiny and say that the government interest in suppressing misleading speech is compelling? Scholars disagree over whether case-by-case or wholesale analysis is preferable. But either way, misleading speech is unlikely to be constitutionally protected.
Ramsey agrees that IP laws are content-based, or at least deserve Turner scrutiny. Effects on TM doctrine: Substantively, TM can offer a good fit between the government interest in regulating TMs and the law, whether that interest is protecting consumers, encouraging the production of goods of consistent quality, or protecting producers’ investment in goodwill. Congress would, however, have to set forth exactly the interest it was trying to protect to survive narrow tailoring analysis.
Possibly unconstitutional doctrines: Protection for descriptive TMs, since it’s not misleading to accurately describe the qualities of your products. Protection for more than one mark per brand – product name, but not slogan or multiple slogans. Dilution! It regulates nonmisleading uses. An expanded descriptive fair use doctrine might be required.
Procedurally, prior restraint doctrine could be applied to all TM cases, not just noncommercial uses.
Rebecca Tushnet, Georgetown, What if comparative advertising were infringing?
Start with a heresy for a US lawyer: You can have a free market economy without comparative advertising. There’s a robust debate in the marketing literature over whether comparative advertising is even a good idea for a challenger brand.
Background: in 1969, the FTC decided to encourage naming competitors in ads because names were more useful to consumers than comparisons with “Brand X.” There were no barriers in US TM law, because of decisions like 1968’s Chanel v. Smith, in which the 9th Circuit approved the practice of advertising a smellalike perfume. US law doesn’t consider advertising unfair in the absence of false or misleading claims. Even newer dilution laws don’t cover comparative advertising, either by assumption (state laws) or by explicit exception (federal).
An alternative path exists, and was taken by most European and Commonwealth countries, holding comparative advertising unfair for several reasons. First, it disparages the competitor – here disparagement doesn’t have to be false. Examples of conduct held unfair: publicizing a court decision against a competitor; making comparisons of efficacy supported by scientific evidence; posting a sign that says “compare and make up your mind before you buy” (which incurred a 10,000-franc fine in France); and advertising that consuming cookies is more dangerous than breathing secondhand smoke. On the last one, the cookie makers aren’t competitors, and they might well protest that they’re being hauled into a public debate over tobacco in which they had no interest.
Second, comparative advertising takes unfair advantage of a competitor’s reputation. It’s free riding, like initial interest confusion without the confusion. (And since IIC is really initial interest confusion without the confusion in a lot of cases in the US as well, it’s not as far from our system as we might pretend.) Third, comparative advertising creates an inherent temptation to mislead and distort the truth, because people are naturally biased in favor of their own causes, so a comparative advertising ban serves as a prophylactic against false advertising. Fourth, comparative advertising takes a competitor’s property in its TM. Fifth, comparative advertising is against general commercial propriety. A ban protects sellers from outsiders who don’t play by the rules, and indirectly protects consumers because a seller who rides roughshod over competitors’ interests is likely to do the same to consumers.
NB: I am not saying I agree with these claims; they are my summary of reasons given to ban comparative advertising.
In recent years, Europe has seen some loosening: the 2001 European Directive approved of some comparative advertising, though the restrictions still seem odd to US TM lawyers. Examples: comparisons have to be objective, material, relevant, and verifiable. No taste tests, no puffery, no “if you like X, then you’ll love Y.” You can’t discredit or denigrate a competitor’s marks or goods. You can’t compare products with different designations of origin. You can’t take unfair advantage of a competitor’s mark or designation of origin. You can’t present goods as imitations or replicas of goods bearing a protected mark. Even under the Directive, it’s unfair to advertise cheaper prices on glasses without disclosing a difference in the lenses.
What if this had been the rule in the US? My story is that it would no longer be, not after NYT v. Sullivan and the rise of protection for truthful commercial speech. Sullivan is the core of the modern mythos of the First Amendment; the more you look like the NYT, the more First Amendment protection you get, and advertisers making truthful claims that anger competitors look very much like the NYT. Especially once Virginia Pharmacy entered the picture, comparative advertising bans would have been obvious candidates for constitutional invalidation. Indeed, the pharmacy board’s concern in Virginia Pharmacy – that price advertising would wrongly induce consumers to focus on price at the expense of service and would harm small pharmacies as against large chains – is exactly the kind of concern that justifies comparative advertising bans.
Under those circumstances, and to the extent that the ban was explained as a feature of trademark law, the First Amendment would have arrived at the core of trademark law much earlier, and it’s not clear how much would have survived. The history of the First Amendment is one of imperialism – once-robust fields reduced to shadows of their former selves, much to the surprise of practitioners and experts in those subjects. Blasphemy, obscenity, libel, privacy/intentional infliction of emotional distress – all have found themselves minimized when doused with the battery acid of the First Amendment.
The one thing trademark law might have going for it is the concept of property, which serves to fend off First Amendment challenges – you don’t have a First Amendment right to use my printing press without my consent. But, San Francisco Arts & Athletics notwithstanding, I don’t think property would (or will) ultimately protect trademark from First Amendment attack, because the structurally similar interest in reputation – which can be seen as a property interest – has not been enough to preserve libel law.
Q for Beebe: What about trying for the best of both worlds with an attribution misuse doctrine? You get attribution rights if you’ve attributed to everyone in your chain of creation.
Beebe: Sounds cool.
Lemley for Ramsey: Why isn’t dilution unconstitutional even under Central Hudson? You can’t stretch property rights too far.
Ramsey: True, dilution is already suspect. Heightened scrutiny would make courts ask what Congress is really trying to do.
McKenna for Beebe: How would consumers learn that attribution isn’t permission?
Beebe: The hard way. There’d be confusion for a while.
McKenna: If not backstopped with a rule barring Fox from suing, consumers will never learn that Dastar doesn’t need Fox’s permission.
Beebe: The Court could have set out statements a secondary user could include. A norm of attribution as in open source software could develop. The Court could also have set out factors, as in KP Permanent, without absolute rules.
Vetter for Beebe: The open source license implies authorization because of its context; citing Mark Lemley doesn’t. You could imagine a rule requiring nonmisleading attribution, from which norms could develop.
Beebe: To the extent something is on the market, the implication is that it can be cited.
Q: Assuming the Court followed your approach, even with disclaimers consumers would still risk confusion over endorsement.
Beebe: A bibliography at the end of a book doesn’t imply permission.
My response: This is a prescriptive norm dressed as a rule about consumer understanding. There’s no evidence that disclaimers, disclosures, or other forms of attribution are even noticed by consumers. (And before you trust courts to draft such language, even if you think it exists, take a look at the non-effects of the language the Pearson v. Shalala court thought would be obviously adequate to avoid any deception about the scientific support for dietary supplement claims.)
Beebe: He’s fighting against the modern tide in which attribution isn’t important to people.
Q for Ramsey/me: Isn’t this why the Supreme Court is unlikely to change the level of protection for commercial speech? TM and securities law are the parade of horribles that preserve this otherwise difficult distinction.
Ramsey: The Court would get it right, preserving securities law, as Kozinski & Banner suggested.
Me: I disagree. Kozinski & Banner are disingenous when they suggest that commercial fraud would still be constitutional, so the modern regulatory state would be mostly untouched. Setting aside that political fraud isn’t actionable and assuming that commercial fraud would be, the differences between the common law and modern securities, false advertising, food & drug, etc. regulation are profound, from the replacement of intent with strict liability to disclosure requirements to a variety of presumptions that couldn’t survive strict scrutiny unless – as others have argued – the Court made strict scrutiny a lot more lax.
Congratulations to Peter Yu for an excellent conference, both well-run and jam-packed with good content.
Tuesday, April 03, 2007
Monday, April 02, 2007
What Ifs? Trademark Law I
Irene Calboli, Marquette University Law School, What if trademarks were, after all, protected as property?
Practitioners see TMs as property already. Yet this isn’t the theory in the US (though it is in Europe). Protection is based on confusion, and to a certain extent on avoiding free riding.
We might be better off under a property regime. We can cabin TM law more and better using property tools, along with getting clearer laws and fewer lawsuits. Historically, TMs have been treated as property sometimes, though the characterization has waxed and waned. The objection: trademarks are language and symbols that shouldn’t be propertized. The result: property theory shifted to “goodwill,” not the symbol itself. State dilution laws gave property-like protection, augmented by federal law in 1995. At least for famous marks, we have a form of propertization now.
Effects on establishment of TM rights: Propertization need have no effect – distinctiveness plus use/intent to use are the two pillars of establishing rights. (Would you deserve compensation from the government if your mark became generic, like eminent domain?)
Effects on enforcement of TM rights: Consumer confusion is important in the European system as well. Infringement is a trespass – but that still requires confusion, except for well-known marks that have dilution protection. Stronger TM rights can of course be abused, but there are still defenses – nominative use, descriptive use, parodies/other First Amendment defenses – the same as property defenses of easements, necessity, etc. Maybe we could even convince courts or legislatures to expand TM fair use doctrines.
Transfer of rights: Would enable assignment in gross and naked licensing. But marks can still be cancelled if they are misleading or generic. So if assignment or licensing harms consumers, the mark could be declared invalid. (My thought: could we draw an analogy to nuisance? You could even get a disparagement/scandalousness defense out of that.)
Property is not an evil word!
Mark P. McKenna, St. Louis University School of Law, What if trademark law really focused on consumer decision-making? (with Dan Hunter)
Framing the issues: TM not as unfair competition law, but part of law of consumer decision-making, a broader concept than search costs. Consumers don’t go into the marketplace with fixed, exogenous preferences and then search for a good fit, which is another reason to reject the standard search costs rhetoric. Still, his project focuses on the ability to make decisions, not on preference formation.
The contours of this problem differ from the standard concept of confusion in TM law. Lots of non-TM TM uses can interfere with decision-making. There isn’t a decision-making reason to distinguish between TM and non-TM uses, though there may be other reasons. “Source” confusion is different from other types of confusion, such as confusion about product attributes, but they’re all relevant. So he will make a case for a materiality requirement – there are cases when consumers use information, but it’s not clear that it hampers decision-making in any way. Thus, there should be a general requirement that information matters to consumers.
There are also many cases in which plaintiffs try to obscure ownership. That ought to be governed by the same law – it’s just as problematic as anything a defendant might do.
If this is a decision-making problem, we should take into account other things we know about the decision-making process. For example, some segment of consumers experiences a “tyranny of choice” – information/choice overload stymies the ability to choose.
A brand (consumers experience brands, not marks) activates a series of associations. Apple® = computers, iPods, innovative, underdog, cool, high tech, quality, secure, artistic, etc. Brand associations are multidimensional – there is brand image, brand attitude (do I like it?), and perceived quality, which are not necessarily dependent on one another. Consumers use context to distinguish Apple computer from apples at the supermarket.
Moreover, consumers are inveterate categorizers. Dell has some associations that overlap with Apple, because consumers lump product categories together.
The question when consumers see a new product: which associations will be activated, and will they matter? Often similar trade dress will activate similar product features – signalling an intention to compete. This is only a problem if it’s not clear that the source is different or if the products don’t actually have the shared attributes being signalled. Consumers can understand differences easily in things that are overall similar – the differences stand out versus the similarities.
The other possibility is Microsoft shoes – what do you get out of seeing Microsoft on shoes? This would only be a problem if consumers thought that Microsoft had some ability to make good shoes. The shoemaker could be borrowing a lot of recognition value, but the decision-making impediment would only arise if the recognition included a perception of expertise. Consumers are unlikely to care that the shoes could be from Microsoft, which is why McKenna thinks materiality is an important requirement.
Sufficiently broad protection for brand values harms consumers, even when it’s good for Microsoft. Debate in the literature: is advertising valuable? It creates differentiation (call it artificial if you want), multiplying dimensions of choice for consumers, amplifying the tyranny of choice problem. Thus, even if it’s true that TMs allow us to make choices, the net effect might be too much choice, making broad TM protection bad. (The missing idea is that broad protection generates more TMs. Is this true?)
Lars S. Smith, University of Louisville, What if eBay Inc. v. MercExchange, L.L.C. had been a trademark case?
eBay is a patent case about a type of marketing. The Supreme Court holds that whether an injunction should issue depends on the traditional equitable factors – irreparable injury; availability of adequate remedies at law; balance of hardships; and public interest. The history of equity involves case-by-case determinations, not automatic injunctions.
The problem was that the Federal Circuit had a different rule, requiring permanent injunctions in almost all circumstances in order to preserve the right to exclude as the essence of a property right. The district court did do the 4-factor analysis and initially declined to issue an injunction. But the district court focused on some facts the Supreme Court didn’t like – MercExchange’s willingness to license and lack of practicing its patent. So it would suffer no harm from a pure damages remedy. The Court pointed out that many inventors, like university professors, can’t make their inventions but can only license them. Moreover, the court’s skepticism about business method patents can’t justify denying an injunction if the patent is valid.
Both the patent and TM acts speak of equity in authorizing injunctions. As with the Federal Circuit’s rule, we have doctrines saying that damages are inadequate in TM cases because of the inability to control the quality of the goods sold under the mark – these damages are irreparable and unmeasurable by their very nature. Courts don’t even balance the harms between the parties. Harm to consumers should fit into the public benefit factor, and is sometimes mentioned.
Where are we now? Audi AG v. D’Amato, against a cybersquatter. The court of appeals applies eBay and the four-factor test for the district court, which hadn’t done so. Audi wins because it’s shown irreparable harm – the risk to Audi existed along as the website was operational. After eBay, the court should have sent the case back to the district court.
In most cases, you can show irreparable injury in infringement, because of the public interest. So why go through the formality of stating the test? Prior cases were lax in requiring district courts to do that. Dilution, though, causes particular problems. §43(c) has its own equity provision authorizing injunctions – but where is the irreparable harm? Where is the public interest? It might be on the side of denying an injunction – but you can’t ordinarily get damages under the dilution statute, which may mean that there’s ordinarily no adequate remedy at law. A puzzlement!
Gibson for McKenna: Didn’t we have a materiality requirement in the old cases about sports insignia as “functional” of signalling loyalty rather than source?
McKenna: The early trade dress cases had a materiality requirement. In a lot of cases consumers don’t need the name and the package and the dress to distinguish products – diminishing returns.
Gibson for Smith: Why not look only at the public interest in granting injunctions?
Smith: Contrast that to justifications in patent area – we want to support the integrity of the patent system, which itself serves the public interest. That’s more tenuous than protection against confusion. Access to technology is more attractive than access to misleading representations.
Ramsey for Calboli: What about property in descriptive terms? Would classification as property strengthen descriptive marks?
Calboli: If it has secondary meaning, it’s a mark. It need be no stronger in scope of protection against confusing use.
Q for McKenna: You’re trying to distinguish the informational content of brands, but brands like Virgin have “hip” and “cool” associational qualities. Why not think that some Microsoft associations will transfer to the shoes?
McKenna: The question is whether quality associations transfer. Hip and cool are producer problems (for competing shoemakers?), but not consumer problems – that doesn’t make consumer decisions worse.
Q: So are we talking about quality as a spectrum of good and bad, or attributes?
McKenna: They are different dimensions of the analysis. What do you expect from this product? If you think Microsoft can make shoes, that might add information.
My question: Does TM protection produce more marks?
McKenna: The expansion of TM rights has led to different levels of branding, so there is an expansion. They are trying to differentiate across non-product attributes, and TM law is partially responsible for that. (I want more on this argument.)
Beebe for McKenna: How does the shift towards a decision-making model reflect on preference formation?
McKenna: He doesn’t care whether someone wants a product or not, just about whether someone can get what s/he wants.
Beebe: But isn’t that just search? Search seems like a way of thinking about preference too, as you add information through your search. Also, the 1962 amendment removed the reference to consumer confusion, so it’s going the other way than you want.
McKenna: He’s willing to change the statute. Back to the basic problem: if we lump preference and search, we have difficulty analyzing the law – it helps to distinguish how we decide from what we decide.
Seltzer for McKenna: Might a brand (like Virgin) that covers many things give consumers less information?
McKenna: He’s not persuaded given that consumers use product categories so extensively, so they probably evaluate the products by category anyway, but he needs to think about it.
Lemley for Smith: In dilution, plaintiff will always win (1) and (2) – damages are unavailable and thus the legal remedy is inadequate. Can the public interest factor ever outweigh that? If not, what’s it doing in the test? Relatedly, do we ask the public interest question in general or specific? Most cases say “enforcing patents is in the public interest.” If you asked about the effects of a particular injunction, you’d have a powerful tool for TM cases.
Smith: The weird thing is that the dilution statute refers to equity – and you have to add in the harm to the defendant, whose use of the mark isn’t causing confusion. Could consumers ever benefit from that? Future developments in the courts might provide more guidance.
Lemley: So if we said (1) and (2) always favor the plaintiff, and the public interest favors enforcing dilution, then what does it mean to have “equity” in the statute?
Smith: Congress wasn’t thinking about eBay. (My comment: There are other types of equitable doctrines. The ones of most relevance, I would think, are laches, acquiescence, and unclean hands.)
Q for McKenna: There are multi-product-category brands. There’s a reason they’ve branded multiple services – there’s got to be a connection to the “how” of consumer preference formation.
McKenna: The question for me is how a consumer decides whether a product encountered in the market is something s/he wants to purchase. Do product characteristics or perceptions of quality transfer? The literature: they don’t always. This is why lots of brand extensions fail. He can’t tell you ahead of time when that will be true, but it won’t always be true that an association affects consumers, and we should make plaintiffs prove that.
Q for Calboli: The UK TM statute calls TM a property right. But we don’t have any examples of suits against TMs as a nuisance.
Calboli: The European system is a lot like ours.
Sunday, April 01, 2007
What Ifs? Copyright Law III
Susan Corbett, Victoria University of Wellington (New Zealand), What if object code had been excluded from protection as a literary work in copyright law?
Opening question: what to do to preserve New Zealand’s early (1970s) videogames, from companies that are now out of business for systems that are now obsolete? The games are obsolete, but the copyright protection endures.
As of 1994, computer programs are protected in New Zealand as literary works. In 1989, there were two conflicting Commonwealth judgments on protection of object code. Australia (1986): object code was neither a reproduction nor adaptation of source code. Canada (1987): it was an adaptation of the source code.
What if NZ had followed the Australian ruling, but found alternative protection for object code as a separate sui generis category of work? It’s unrealistic, given the economic value of software, to posit no protection.
Problems with categorizing computer programs as literary works: (1) archiving digital culture. UNESCO has encouraged the preservation of digital culture. Problems include physical deterioration, commercial obsolescence, the need for many copies for effective archiving, the length of the copyright term, orphan works.
(2) Fair dealing becomes unfair. It’s impossible to copy part of a program, and you get perfect copies every time. The reverse engineering process (which isn’t a right in NZ, though might be fair dealing) can produce multiple copies, which is excessive under the law.
(3) Cookery analogies. NZ’s first reverse engineering case stated that a recipe might be copyrightable, but no one suggest that following the recipe would infringe the recipe. Still, the court found liability when the defendant made packages based on government specifications that had themselves been derived from a copyrighted design.
Canadian decision in 1987: a computer program is a creation as an instruction book is. Copyright wouldn’t prevent making a recipe, but does prohibit copying the cookbook. There are other examples of recipe analogies. The Australian case denying copyright to source code held that people don’t “translate” instructions by carrying them out, and neither do computers in converting electrical impulses. So we get (idea: recipe: human “translation” into action through cooking: pie) is the same as (idea: source code: computer “translation” into action: result).
Sui generis protection would have been better with its shorter term and substantial public interest protections.
Abraham Drassinower, University of Toronto Faculty of Law, What if copyright were really about authors?
If authorship were central, copyright would be less extensive. There would be no grounds for liability for copying for personal use, and the defense of fair dealing/fair use would not be a mere exception. It would be a user right.
Originality v. novelty – copyright and patent. The distinction teaches us that patent is concerned with substantive contributions to existing knowledge, but copyright is concerned with the form of communication of the author’s thinking. Not what the author has to say, but how she says it. To express a trite idea in one’s own words is to be orginal for copyright’s purposes. The determination of novelty is a comparison to present and prior art – it’s relational with the external world. The determination of originality is about source – the author’s relation to the work. There is no such thing as a second inventor, but there is a second author as long as they both drew the works out of themselves. At the same time, an author is engaged in a discourse with the public – the author’s work itself is a mode of discourse addressed to others. By contrast, the subject matter of patent is an act in the world – doing things in and to nature, rather than speaking to other people.
What does this teach us? Canadian law provides that it’s not an infringement to reproduce for criticism when the reproduction is reasonably necessary. This is generally seen as a guideline for when reproduction is lawful. But we can also see it as an indication of the contours of the authors’ rights – the author owns his work for some but not for all purposes. The point is not that the defendant has an excuse, but that the plaintiff only has certain rights – a purpose-centered definition of authorial copyright that enables us to distinguish authorship from ownership.
A TM owner has an exclusive right to use the TM as a mark, to distinguish goods or services. There are no absolute rights over a TM – it depends on a particular purpose. Holding a copyright is similar to holding a TM: an exclusive right to use a work as a work – to present it to the public as an instance of discourse.
Assume I’m enamored of Hegel’s Philosophy of Right, and I make four copies to put under the legs of my desk for support. As a matter of copyright law, it’s a reproduction, but not a reproduction of the work as a work – as a communication to the public. Therefore, there can be no liability for personal use copying.
Fair dealing: a little more problematic on this account, because the defendant both reproduces and presents to the public. There’s no liability because the defendant doesn’t reproduce the work as a work, but as a reasonably necessary aspect of her own expression as an author. A plaintiff who has claimed authorial rights can’t turn around and deny others the right to be authors.
At the end of Michael Madison’s presentation, he left us with romantic authorship v. economics. But there are other images of authorship that open up other descriptions and explanations of copyright. If copyright were really about authors, it would be more like trademark than patent, and the materialist/economic story would be recognized as a fairytale.
Julie Cromer, Thomas Jefferson School of Law, What if man never walked on the moon?
If the US had never sent anyone to the moon, the US government wouldn’t have taken lots of pictures via LANDSAT, which made them government works. Some private entity might have commercialized satellite data instead, raising the copyright question.
Option 1: Could protect a geospatial image as a photograph. Here, there are still questions of authorship. Is the author the satellite? Is there enough creativity? Is the author the people at the control station, what are they controlling? Is manipulating the satellite to take a picture at a particular time creative, when it’s largely determined by where the satellite is at the time? Is processing the image a creative act?
Option 2: Could protect an image as a map, expressly covered since 1790. But Feist dealt a blow to map protection. Maybe it would only get protection for the raw data, but taking portions (e.g. to make derivative works) that wouldn’t get full copyright protection.
Option 3: Could protect the data as a database of comprehensive geographic information, electronically stored. But has it been selected, arranged, or coordinated when in the database? That’s hard to say. The data might not even be “fixed” until they’re assembled into a picture. Is a fixation being made simultaneously with the transmission from the satellite, as required by the definition in §101? Well, the data here are neither sound nor image until assembled; during the transmission there’s not yet a copyrightable image. So maybe there’s no protection under copyright at all.
Why does it make a difference? It makes a difference in terms of who’s the author. It makes a difference in the level of creativity we attribute to the pictures/data. It makes a difference in the scope of the rights.
There are also international issues – what if the satellite was made in Iran, controlled in France, taking an image in Kuwait, sent to a receiver in Canada, then sent to a processor in China, then distributed to Google in the US, then reproduced on a computer in Nigeria? It may not matter what law the US says will apply if any one of those countries recognizes an author and a work. Maybe we need something like the EU Database Directive to protect the data en route to the receiver.
Deborah Tussey, Oklahoma City University School of Law, What if employees owned the copyrights in their works?
The incentives story for employer ownership seems ahistorical – the industries that benefit most from work for hire (WFH) doctrine seem to have flourished for decades before that doctrine was established, and they were well-represented in the leadup to the 1909 Act. WFH is more a reward for political influence than an essential incentive. Radio and TV appeared and prospered even with an uncertain copyright status.
Without WFH, we could have used assignments instead. Would the transaction costs be too big? Not on the front end, at least, given the imbalance of power between employee and employer. This already occurs with independent contractors, where a writing is required. The drawback is of course the renewal right/termination right.
Even so, the employer could get a minimum of 28 years under the 1909 Act, and could demand preassignment of the renewal term, which would only be avoided if the employee had the bad judgment to die. Under the current Act, employers get 35 years to make back their investment.
Reliance entirely on assignments could potentially cause severe impacts on public access, though. It would make things like playing Raging Bull on TV, or using it in a university course, very difficult given all the rightsholders who’d have to agree.
We’d also have a much more developed law of authorship – who counts as an author? Tussey thinks that courts would be inclined to treat most people who worked on a movie as akin to editors of books – not real authors. (I’d agree that courts would strain to find lack of authorship in cases where exercise of a termination right would seem unfair, and would start holding that assignments didn’t estop the employer from later contesting whether an employee was an “author.” Or possibly the assignments would also include standard language that the employee’s contribution was too minimal to constitute authorship, but assigning rights in the alternative, the way music WFH contracts work now.)
McKenna for Drassinower: So you don’t believe in a reproduction right, just a right of communication to the public.
Drassinower: Yes. Personal use is an example of a broader category – copying wouldn’t be the center of copyright.
Q for Drassinower: Isn’t the author’s right to have a conversation with each member of the public? So if I make a copy for personal use, the author’s been denied the opportunity to have that conversation with me because I’ve taken the author’s place?
Drassinower: Assume that you grant my Hegel example, but still object to reproduction for the purpose of reading. He wants to think of “work” as a verb rather than a noun. This particular act is the communication of a message to another. The other is not present when you make a copy for yourself. You aren’t presenting the author’s authority to another.
Q for Drassinower: Isn’t patent law also about shaping relations of persons with respect to each other? E.g., the experimental use exception.
Drassinower: Sure. He still thinks there’s a distinction between the relational work and the patented thing, but is willing to give an account of patent that also has relational aspects.
Strandburg for Drassinower: The idea of conversation shows what bothers us about patenting in the academic context. There’s a distinction between invention in the commercial world and academic science. You do produce things with relations to the physical world, but scientists are also participating in a conversation.
Lemley for Corbett/Drassinower: How to protect software or functional works under copyright with a relational theory? How could there be fair use of software under a relational theory? What then do we do with software?
Drassinower: If the facts don’t agree with my theory, says Hegel, all the worse for the facts. The discordance means we should change something about the facts – here it is that author’s rights aren’t appropriate for software. We should discuss how to protect software without all the baggage of “theft” etc. from copyright.
Landau for Cromer: Kozinski relied on Feist to suggest that protection for maps is basically dead.
Cromer: She’s no fan of that decision. But we need to know why maps were copyrightable from the beginning. Copyright was an incentive to generate maps. Likewise, maps of the universe could be very valuable. Maybe map copyright is dead, but there’s no definitive holding yet – the incentive theory will keep them protected for a while longer.
Opening question: what to do to preserve New Zealand’s early (1970s) videogames, from companies that are now out of business for systems that are now obsolete? The games are obsolete, but the copyright protection endures.
As of 1994, computer programs are protected in New Zealand as literary works. In 1989, there were two conflicting Commonwealth judgments on protection of object code. Australia (1986): object code was neither a reproduction nor adaptation of source code. Canada (1987): it was an adaptation of the source code.
What if NZ had followed the Australian ruling, but found alternative protection for object code as a separate sui generis category of work? It’s unrealistic, given the economic value of software, to posit no protection.
Problems with categorizing computer programs as literary works: (1) archiving digital culture. UNESCO has encouraged the preservation of digital culture. Problems include physical deterioration, commercial obsolescence, the need for many copies for effective archiving, the length of the copyright term, orphan works.
(2) Fair dealing becomes unfair. It’s impossible to copy part of a program, and you get perfect copies every time. The reverse engineering process (which isn’t a right in NZ, though might be fair dealing) can produce multiple copies, which is excessive under the law.
(3) Cookery analogies. NZ’s first reverse engineering case stated that a recipe might be copyrightable, but no one suggest that following the recipe would infringe the recipe. Still, the court found liability when the defendant made packages based on government specifications that had themselves been derived from a copyrighted design.
Canadian decision in 1987: a computer program is a creation as an instruction book is. Copyright wouldn’t prevent making a recipe, but does prohibit copying the cookbook. There are other examples of recipe analogies. The Australian case denying copyright to source code held that people don’t “translate” instructions by carrying them out, and neither do computers in converting electrical impulses. So we get (idea: recipe: human “translation” into action through cooking: pie) is the same as (idea: source code: computer “translation” into action: result).
Sui generis protection would have been better with its shorter term and substantial public interest protections.
Abraham Drassinower, University of Toronto Faculty of Law, What if copyright were really about authors?
If authorship were central, copyright would be less extensive. There would be no grounds for liability for copying for personal use, and the defense of fair dealing/fair use would not be a mere exception. It would be a user right.
Originality v. novelty – copyright and patent. The distinction teaches us that patent is concerned with substantive contributions to existing knowledge, but copyright is concerned with the form of communication of the author’s thinking. Not what the author has to say, but how she says it. To express a trite idea in one’s own words is to be orginal for copyright’s purposes. The determination of novelty is a comparison to present and prior art – it’s relational with the external world. The determination of originality is about source – the author’s relation to the work. There is no such thing as a second inventor, but there is a second author as long as they both drew the works out of themselves. At the same time, an author is engaged in a discourse with the public – the author’s work itself is a mode of discourse addressed to others. By contrast, the subject matter of patent is an act in the world – doing things in and to nature, rather than speaking to other people.
What does this teach us? Canadian law provides that it’s not an infringement to reproduce for criticism when the reproduction is reasonably necessary. This is generally seen as a guideline for when reproduction is lawful. But we can also see it as an indication of the contours of the authors’ rights – the author owns his work for some but not for all purposes. The point is not that the defendant has an excuse, but that the plaintiff only has certain rights – a purpose-centered definition of authorial copyright that enables us to distinguish authorship from ownership.
A TM owner has an exclusive right to use the TM as a mark, to distinguish goods or services. There are no absolute rights over a TM – it depends on a particular purpose. Holding a copyright is similar to holding a TM: an exclusive right to use a work as a work – to present it to the public as an instance of discourse.
Assume I’m enamored of Hegel’s Philosophy of Right, and I make four copies to put under the legs of my desk for support. As a matter of copyright law, it’s a reproduction, but not a reproduction of the work as a work – as a communication to the public. Therefore, there can be no liability for personal use copying.
Fair dealing: a little more problematic on this account, because the defendant both reproduces and presents to the public. There’s no liability because the defendant doesn’t reproduce the work as a work, but as a reasonably necessary aspect of her own expression as an author. A plaintiff who has claimed authorial rights can’t turn around and deny others the right to be authors.
At the end of Michael Madison’s presentation, he left us with romantic authorship v. economics. But there are other images of authorship that open up other descriptions and explanations of copyright. If copyright were really about authors, it would be more like trademark than patent, and the materialist/economic story would be recognized as a fairytale.
Julie Cromer, Thomas Jefferson School of Law, What if man never walked on the moon?
If the US had never sent anyone to the moon, the US government wouldn’t have taken lots of pictures via LANDSAT, which made them government works. Some private entity might have commercialized satellite data instead, raising the copyright question.
Option 1: Could protect a geospatial image as a photograph. Here, there are still questions of authorship. Is the author the satellite? Is there enough creativity? Is the author the people at the control station, what are they controlling? Is manipulating the satellite to take a picture at a particular time creative, when it’s largely determined by where the satellite is at the time? Is processing the image a creative act?
Option 2: Could protect an image as a map, expressly covered since 1790. But Feist dealt a blow to map protection. Maybe it would only get protection for the raw data, but taking portions (e.g. to make derivative works) that wouldn’t get full copyright protection.
Option 3: Could protect the data as a database of comprehensive geographic information, electronically stored. But has it been selected, arranged, or coordinated when in the database? That’s hard to say. The data might not even be “fixed” until they’re assembled into a picture. Is a fixation being made simultaneously with the transmission from the satellite, as required by the definition in §101? Well, the data here are neither sound nor image until assembled; during the transmission there’s not yet a copyrightable image. So maybe there’s no protection under copyright at all.
Why does it make a difference? It makes a difference in terms of who’s the author. It makes a difference in the level of creativity we attribute to the pictures/data. It makes a difference in the scope of the rights.
There are also international issues – what if the satellite was made in Iran, controlled in France, taking an image in Kuwait, sent to a receiver in Canada, then sent to a processor in China, then distributed to Google in the US, then reproduced on a computer in Nigeria? It may not matter what law the US says will apply if any one of those countries recognizes an author and a work. Maybe we need something like the EU Database Directive to protect the data en route to the receiver.
Deborah Tussey, Oklahoma City University School of Law, What if employees owned the copyrights in their works?
The incentives story for employer ownership seems ahistorical – the industries that benefit most from work for hire (WFH) doctrine seem to have flourished for decades before that doctrine was established, and they were well-represented in the leadup to the 1909 Act. WFH is more a reward for political influence than an essential incentive. Radio and TV appeared and prospered even with an uncertain copyright status.
Without WFH, we could have used assignments instead. Would the transaction costs be too big? Not on the front end, at least, given the imbalance of power between employee and employer. This already occurs with independent contractors, where a writing is required. The drawback is of course the renewal right/termination right.
Even so, the employer could get a minimum of 28 years under the 1909 Act, and could demand preassignment of the renewal term, which would only be avoided if the employee had the bad judgment to die. Under the current Act, employers get 35 years to make back their investment.
Reliance entirely on assignments could potentially cause severe impacts on public access, though. It would make things like playing Raging Bull on TV, or using it in a university course, very difficult given all the rightsholders who’d have to agree.
We’d also have a much more developed law of authorship – who counts as an author? Tussey thinks that courts would be inclined to treat most people who worked on a movie as akin to editors of books – not real authors. (I’d agree that courts would strain to find lack of authorship in cases where exercise of a termination right would seem unfair, and would start holding that assignments didn’t estop the employer from later contesting whether an employee was an “author.” Or possibly the assignments would also include standard language that the employee’s contribution was too minimal to constitute authorship, but assigning rights in the alternative, the way music WFH contracts work now.)
McKenna for Drassinower: So you don’t believe in a reproduction right, just a right of communication to the public.
Drassinower: Yes. Personal use is an example of a broader category – copying wouldn’t be the center of copyright.
Q for Drassinower: Isn’t the author’s right to have a conversation with each member of the public? So if I make a copy for personal use, the author’s been denied the opportunity to have that conversation with me because I’ve taken the author’s place?
Drassinower: Assume that you grant my Hegel example, but still object to reproduction for the purpose of reading. He wants to think of “work” as a verb rather than a noun. This particular act is the communication of a message to another. The other is not present when you make a copy for yourself. You aren’t presenting the author’s authority to another.
Q for Drassinower: Isn’t patent law also about shaping relations of persons with respect to each other? E.g., the experimental use exception.
Drassinower: Sure. He still thinks there’s a distinction between the relational work and the patented thing, but is willing to give an account of patent that also has relational aspects.
Strandburg for Drassinower: The idea of conversation shows what bothers us about patenting in the academic context. There’s a distinction between invention in the commercial world and academic science. You do produce things with relations to the physical world, but scientists are also participating in a conversation.
Lemley for Corbett/Drassinower: How to protect software or functional works under copyright with a relational theory? How could there be fair use of software under a relational theory? What then do we do with software?
Drassinower: If the facts don’t agree with my theory, says Hegel, all the worse for the facts. The discordance means we should change something about the facts – here it is that author’s rights aren’t appropriate for software. We should discuss how to protect software without all the baggage of “theft” etc. from copyright.
Landau for Cromer: Kozinski relied on Feist to suggest that protection for maps is basically dead.
Cromer: She’s no fan of that decision. But we need to know why maps were copyrightable from the beginning. Copyright was an incentive to generate maps. Likewise, maps of the universe could be very valuable. Maybe map copyright is dead, but there’s no definitive holding yet – the incentive theory will keep them protected for a while longer.
What Ifs? General IP Law
Peter Bowal, Haskayne School of Business, University of Calgary, What if the stud does not function?
A story about items first called “Automatic Binding Bricks” (1949) but are now a system for creative play. Round “studs” and “pipes” atop a hollow rectangle. It was an early plastic toy, made to exacting tolerance to provide “clutch power.” Statistically there are about 52 pieces for every living person. The name is synonymous with the flagship toy, creating a TM problem, and derives from the Danish leg godt, meaning “play well.”
The Canadian patent expired in 1988. Megablocks began as a lower quality product, but are now an exact copy of Legos, the only difference being the name. They are interchangeable with Legos. Legos tried to register a TM for the Lego “indicia” – the top block with raised studs – and was unable to do so. Thus it sued Megablocks for passing off.
It’s not a difficult case – Lego was clearly trying to use TM as a substitute for patent. The studs were disclosed and claimed in its patents. We tend to focus on the creation of rights, but we also need to tell stories about how rights expire, and how transitions occur in business.
In Canada, there is a clear trend shifting from creators’ rights to users’ rights, across copyright, trademark, and patent. What if this case had been decided decades ago, before lots of countries had ruled against Lego? What if this case had been decided from a creators’ rights perspective? It could have been different.
James Gibson, University of Richmond, What if we used IP rights to impede evil industries?
Two sources: Sprigman & Raustiala’s Piracy Paradox article and conversations with Chris Cotropia about patenting tax avoidance schemes. Two premises: (1) the subject matter of IP is ever expanding, so it’s not surprising that the fashion industry and tax avoidance industries are pretenders/aspirants to high IP protection, and (2) in some industries, IP rights can impede innovation rather than promote it. So sometimes people operate in de facto IP-free spaces.
We might have the instinct to bar movement from low IP to high IP because, e.g., for software and business methods IP protection are socially undesireable. What if we gave fashion and tax avoidance IP protection in order to discourage production? Gibson thinks the fashion industry is kind of dumb and doesn’t need more investment. Fashion is a status good, signalling superiority, and the fashion cycle is wasteful – when people pay to get the new good, their investment is wasted as soon as enough other people join them. If Sprigman & Raustiala are right that fashion works best as a low-IP regime, because fashions go in and out more quickly without IP, then the right solution for someone who thinks fashion is dumb is to add IP, to discourage the “status sheep” from running to the store for cheap goods subject to induced obsolescence. Give them enough rope to hang themselves! (Do trends last longer in Europe?)
Analogy to tax schemes is obvious. If we view tax planning schemes as socially undesirable, and if giving strong IP rights would slow down innovation, then by all means give them rights and decrease gaming of the tax system. (I wish Peggy Radin were here to talk about commodification and the social meaning of granting rights.)
Yes, he’s being judgmental. Maybe there is more socially redeemable value to the fashion industry than he thinks. Why not tax fashion? Why not close the tax loopholes instead? Sure. But if evil industries are asking for rights, we should also try that to control them.
If Gibson is right, why would the industries lobby for rights? For certain players, IP rights can be good ideas regardless of the effect on the industry as a whole – it helps established players deter competition.
What if they realize it’s a bad idea and stop taking advantage of IP rights? This apparently occurred in Europe with databases and fashion. Sprigman & Raustiala say that the US is more litigious, and you can’t expect competitors to hold off enforcement as they do in Europe, thus you obtain IP rights defensively. Maybe Europeans are more well-mannered, but here we’d gum up the works with rights.
Debora Halbert, Department of History and Political Science, Otterbein College, What if WIPO did not exist?
WIPO’s building contains a lot of art, but it’s not necessarily consistent with WIPO’s theories of IP – for example, copies of water nymph sculptures from Florence that may be testaments to creative genius but weren’t created under any IP regime.
WIPO has aligned itself with UN development goals since its inception, but development has a very specific role here – institution building for IP. Assessment is based on how many people are educated about the value of IP, not on how much development has occurred under the legal frameworks it promotes.
Despite decades of meetings and educational activities, IP rights remain relatively unprotected in the least developed countries and the protection that exists hasn’t sparked development in countries that need it most. Chad, for example, was an original signatory of WIPO in 1970. Like Chad, Mali is a former French colony that gained independence in 1960, and they are geographically similar. Mali joined WIPO in 1982, probably as part of structural adjustment.
Chad was a deeply troubled nation-state from the start. They signed on to WIPO during a period of near-collapse of the state. Halbert’s hypothesis is that French pressure had something to do with that; Chad signed on to IP treaties, including regional ones, while it was nearly disintegrating in a civil war.
Every economic indicator for Chad is bad, often worse than it was in 1960. Finding oil is the only bright spot. There’s no clear link between culture in Mali and Chad and protection of IP; both countries had vibrant indigenous cultures before and during colonization, not supported by IP. Certainly copyright might be important in a world music culture, but it hasn’t been yet.
Poverty reduction should be the most important goal. Sponsoring converences and workshops in host countries isn’t enough to change conditions on the ground. Mali doesn’t even have a functioning road system; copyright offices aren’t that helpful. WIPO has been at best ineffective. WIPO’s self-definition is part of the problem. A bar that free rides on Friends’ “Central Perk,” using the name and the Friends font for its slogan “We’re Your Friends,” is within a block of WIPO headquarters. If the IP message hasn’t gotten that far in Geneva, it’s a mistake to think that it can be different in Chad.
Liam S. O’Melinn, Pettit College of Law, Ohio Northern University, What if James Madison were to assess the intellectual property revolution?
Madison wrote a famous line in Federalist 43; O’Melinn played the role of Madison in explaining why he wishes he’d never written it. “In Great Britain, the right of the author hath been adjudged a right at common law and with equal justice seems to belong to the inventor.”
The first clause has prompted some to wonder whether Madison knew of Donaldson v. Beckett. But he was part of the most literate generation in American history, and it was the greatest literary property case of the day, so the question answers itself. Donaldson was an attempt at literary imperialism over Scottish booksellers.
What did the Framers mean by the copyright/patent clause? (1) Federalization. His goal was to federalize as many powers as possible, and when that clause passed into the Constitution without debate or dissent he was pleased. Why would he write more than one sentence in brief explanation? (2) Americanization: copyright and patent were to be called into service to create an American culture that would equal – and be acknowledged equal to – European culture. (3) Equality. Better than the corrupt European culture of monopoly. These are not author-regarding reasons.
Relevant events: the Boston Tea Party; 1774, English solicitor Weatherburn dresses down Benjamin Franklin for publishing Governor Hutchinson’s private letters planning to deprive colonists of their liberties – he was tried for publishing information in defiance of an imperial monopoly; the same solicitor then addressed Commons on Donaldson, attacking the Scottish colonials for having the temerity to disseminate information in defiance of an imperial monopoly.
If Donaldson had been decided otherwise, the result would have been the suppression of the Scottish book trade, then the Irish and American book trade. Then English books would have found themselves at the bottom of Boston Harbor. Then we would have realized that copyright can never divest itself of its history of censorship, and copyright wouldn’t have made its way into the Constitution. Then maybe a monopoly power wouldn’t be turning to the Framers to justify attempts to maintain that bankrupt monopoly.
Mark McKenna for Gibson: Trends might last longer if given IP protection, but wouldn’t that mean lots more people would pay more for longer?
A: Gibson is focused on the total people would pay for fashion, and strong IP could decrease that total. Maybe that’s not true – maybe licensing would develop. (Or, as I think McKenna is suggesting, people prefer fashion enough to pay more and shift consumption from other things.)
Q for Gibson: What if antitrust law was not enforced in the tobacco industry? One paper suggests we should allow collusion to drive up prices.
A: There are other possible applications, such as copyright/porn. It’s hard to think of industries to which this analysis applies, but maybe cloning is one.
Q: Fashion creates jobs and economic growth.
A: Maybe – there are lots of successful industries we might not like. If you shut down military bases, you lose jobs, but what’s the opportunity cost? People could spend money on something more socially desirable than having the color of shirt appropriate for the season. But maybe they’d spend it on McDonald’s and die earlier.
Q for Halbert: Are Chad and Mali so troubled and underdeveloped that looking for an effect of WIPO there is like looking for the effect of an eyedropper on an inferno? Maybe a place with traction for WIPO would be a better test.
A: It’s a good point, and she does want to compare countries across levels of development. She started with Chad because it signed on in 1970 and that was interesting, given Chad’s development level. Still, it doesn’t seem right to define development as “setting up copyright offices” regardless of what else is going on.
Q for Halbert: WIPO’s major role in international treaties – even if WIPO is wasting money, isn’t there some value in having an international entity that functions as a general office?
A: The counterfactual requires you to ask what other administrative roles exist – WIPO serves a function for countries that produce patents, but that could be replaced. What if, instead of vertical silos of protection, IP had been integrated across UN agencies subsumed under other things like human rights, economic development, the environment? That would be a different model, without the same battles about who gets to talk about IP. WIPO is clearly doing things, but you can’t say it’s helped LDC.
Q for Gibson: There is no interest in fashion rights in the US because the US depends on copying European designers. But in Europe, design protection has been very successful – 3 years, no formalities. What about that? Enforcement would also be a big issue, because the season ends before you can go after infringers.
A: If the theory works, you’d have more time because trends would last longer. With respect to US/Europe, lots of design now goes on in the US because companies are multinational. And it’s not clear that design protection is actually used very much in Europe compared to the amount of design that goes on.
Wong for Halbert: How is WIPO going to try for a “balanced” IP regime that takes development into account? There’s been some movement to change WIPO’s priorities, and your work could fit into that.
Q for Gibson: There’s a body of evolutionary biology literature about accoutrements used to attract mates. One suggestion is that it’s important to distinguish yourself from other competitors. Could that be applied to fashion? Then the interest becomes one of the user, not the producer. And then there’s reason to hope for more kinds of fashion to distinguish oneself. Also, wearable computers: as clothes turn into things other than clothes, how will that affect your argument?
A: No matter what we do, we aren’t going to get rid of status competition. Perhaps we could slow down the cycle yet still allow distinctions. That could even lower the search costs of prospective mates! You don’t need to signal who you are every season.
Lemley for Gibson: Either your theory is true only in fashion/tax avoidance, in which case it would be useful to know what makes them different, or that’s also true of movies, software, and pharma, in which case we’re doing it wrong.
A: Absolutely, and distinctions can be made between industries. Looking at something that thrives in a low-IP world can help.
Lisa Ramsey for Gibson: Would your theory also apply to advertising?
A: Sure, he has the same view about status-intensive advertising. (Except that ads get high IP protection, so removing protection could get us more of it.) Given that TM is headed towards promoting the brand as the good, it would be nice to decrease the TM owner’s ability to control promotional goods branded with the TM.
Q for O’Melinn as Madison: What would you have wished for instead? Avoiding a federal right entirely, allowing states to do anything and just hoping they’d hold off high protection? Or putting something affirmative in the Constitution, and if so what?
A: My what-if is fanciful beyond this point. Madison just wouldn’t want to be pressed into service in the current Revolution. If you describe these rights as conventional property, federalization would have failed – federalization of general property rights would have brought the constitutional convention to a screaming halt.
Comment for Gibson: Gender issues. Fashion has always been associated with women and things women care about. IP protection offers legitimacy. Fashion is more important in the creation of identity than you acknowledge; the first use of the printing press was to circulate images of costumes.
Comment for Halbert: Does copyright matter at all, even in developed countries, when users have such different concepts of what the law allows? The “Friends” bar might be a legitimate remix, and it might exist because of copyright’s incentives!
Q for O’Melinn: Why wasn’t IP controversial as a monopoly?
A: He doesn’t know. Whatever side you’re on, you have a difficult problem: IP was important enough to get into the Constitution, but not important enough to explain, for the generation that did the most explaining of anyone. His theory: it was a coup of federalization, and that’s why they don’t say much about it. Copyright and patent were introduced alongside proposals to create a national university – public-minded.
A story about items first called “Automatic Binding Bricks” (1949) but are now a system for creative play. Round “studs” and “pipes” atop a hollow rectangle. It was an early plastic toy, made to exacting tolerance to provide “clutch power.” Statistically there are about 52 pieces for every living person. The name is synonymous with the flagship toy, creating a TM problem, and derives from the Danish leg godt, meaning “play well.”
The Canadian patent expired in 1988. Megablocks began as a lower quality product, but are now an exact copy of Legos, the only difference being the name. They are interchangeable with Legos. Legos tried to register a TM for the Lego “indicia” – the top block with raised studs – and was unable to do so. Thus it sued Megablocks for passing off.
It’s not a difficult case – Lego was clearly trying to use TM as a substitute for patent. The studs were disclosed and claimed in its patents. We tend to focus on the creation of rights, but we also need to tell stories about how rights expire, and how transitions occur in business.
In Canada, there is a clear trend shifting from creators’ rights to users’ rights, across copyright, trademark, and patent. What if this case had been decided decades ago, before lots of countries had ruled against Lego? What if this case had been decided from a creators’ rights perspective? It could have been different.
James Gibson, University of Richmond, What if we used IP rights to impede evil industries?
Two sources: Sprigman & Raustiala’s Piracy Paradox article and conversations with Chris Cotropia about patenting tax avoidance schemes. Two premises: (1) the subject matter of IP is ever expanding, so it’s not surprising that the fashion industry and tax avoidance industries are pretenders/aspirants to high IP protection, and (2) in some industries, IP rights can impede innovation rather than promote it. So sometimes people operate in de facto IP-free spaces.
We might have the instinct to bar movement from low IP to high IP because, e.g., for software and business methods IP protection are socially undesireable. What if we gave fashion and tax avoidance IP protection in order to discourage production? Gibson thinks the fashion industry is kind of dumb and doesn’t need more investment. Fashion is a status good, signalling superiority, and the fashion cycle is wasteful – when people pay to get the new good, their investment is wasted as soon as enough other people join them. If Sprigman & Raustiala are right that fashion works best as a low-IP regime, because fashions go in and out more quickly without IP, then the right solution for someone who thinks fashion is dumb is to add IP, to discourage the “status sheep” from running to the store for cheap goods subject to induced obsolescence. Give them enough rope to hang themselves! (Do trends last longer in Europe?)
Analogy to tax schemes is obvious. If we view tax planning schemes as socially undesirable, and if giving strong IP rights would slow down innovation, then by all means give them rights and decrease gaming of the tax system. (I wish Peggy Radin were here to talk about commodification and the social meaning of granting rights.)
Yes, he’s being judgmental. Maybe there is more socially redeemable value to the fashion industry than he thinks. Why not tax fashion? Why not close the tax loopholes instead? Sure. But if evil industries are asking for rights, we should also try that to control them.
If Gibson is right, why would the industries lobby for rights? For certain players, IP rights can be good ideas regardless of the effect on the industry as a whole – it helps established players deter competition.
What if they realize it’s a bad idea and stop taking advantage of IP rights? This apparently occurred in Europe with databases and fashion. Sprigman & Raustiala say that the US is more litigious, and you can’t expect competitors to hold off enforcement as they do in Europe, thus you obtain IP rights defensively. Maybe Europeans are more well-mannered, but here we’d gum up the works with rights.
Debora Halbert, Department of History and Political Science, Otterbein College, What if WIPO did not exist?
WIPO’s building contains a lot of art, but it’s not necessarily consistent with WIPO’s theories of IP – for example, copies of water nymph sculptures from Florence that may be testaments to creative genius but weren’t created under any IP regime.
WIPO has aligned itself with UN development goals since its inception, but development has a very specific role here – institution building for IP. Assessment is based on how many people are educated about the value of IP, not on how much development has occurred under the legal frameworks it promotes.
Despite decades of meetings and educational activities, IP rights remain relatively unprotected in the least developed countries and the protection that exists hasn’t sparked development in countries that need it most. Chad, for example, was an original signatory of WIPO in 1970. Like Chad, Mali is a former French colony that gained independence in 1960, and they are geographically similar. Mali joined WIPO in 1982, probably as part of structural adjustment.
Chad was a deeply troubled nation-state from the start. They signed on to WIPO during a period of near-collapse of the state. Halbert’s hypothesis is that French pressure had something to do with that; Chad signed on to IP treaties, including regional ones, while it was nearly disintegrating in a civil war.
Every economic indicator for Chad is bad, often worse than it was in 1960. Finding oil is the only bright spot. There’s no clear link between culture in Mali and Chad and protection of IP; both countries had vibrant indigenous cultures before and during colonization, not supported by IP. Certainly copyright might be important in a world music culture, but it hasn’t been yet.
Poverty reduction should be the most important goal. Sponsoring converences and workshops in host countries isn’t enough to change conditions on the ground. Mali doesn’t even have a functioning road system; copyright offices aren’t that helpful. WIPO has been at best ineffective. WIPO’s self-definition is part of the problem. A bar that free rides on Friends’ “Central Perk,” using the name and the Friends font for its slogan “We’re Your Friends,” is within a block of WIPO headquarters. If the IP message hasn’t gotten that far in Geneva, it’s a mistake to think that it can be different in Chad.
Liam S. O’Melinn, Pettit College of Law, Ohio Northern University, What if James Madison were to assess the intellectual property revolution?
Madison wrote a famous line in Federalist 43; O’Melinn played the role of Madison in explaining why he wishes he’d never written it. “In Great Britain, the right of the author hath been adjudged a right at common law and with equal justice seems to belong to the inventor.”
The first clause has prompted some to wonder whether Madison knew of Donaldson v. Beckett. But he was part of the most literate generation in American history, and it was the greatest literary property case of the day, so the question answers itself. Donaldson was an attempt at literary imperialism over Scottish booksellers.
What did the Framers mean by the copyright/patent clause? (1) Federalization. His goal was to federalize as many powers as possible, and when that clause passed into the Constitution without debate or dissent he was pleased. Why would he write more than one sentence in brief explanation? (2) Americanization: copyright and patent were to be called into service to create an American culture that would equal – and be acknowledged equal to – European culture. (3) Equality. Better than the corrupt European culture of monopoly. These are not author-regarding reasons.
Relevant events: the Boston Tea Party; 1774, English solicitor Weatherburn dresses down Benjamin Franklin for publishing Governor Hutchinson’s private letters planning to deprive colonists of their liberties – he was tried for publishing information in defiance of an imperial monopoly; the same solicitor then addressed Commons on Donaldson, attacking the Scottish colonials for having the temerity to disseminate information in defiance of an imperial monopoly.
If Donaldson had been decided otherwise, the result would have been the suppression of the Scottish book trade, then the Irish and American book trade. Then English books would have found themselves at the bottom of Boston Harbor. Then we would have realized that copyright can never divest itself of its history of censorship, and copyright wouldn’t have made its way into the Constitution. Then maybe a monopoly power wouldn’t be turning to the Framers to justify attempts to maintain that bankrupt monopoly.
Mark McKenna for Gibson: Trends might last longer if given IP protection, but wouldn’t that mean lots more people would pay more for longer?
A: Gibson is focused on the total people would pay for fashion, and strong IP could decrease that total. Maybe that’s not true – maybe licensing would develop. (Or, as I think McKenna is suggesting, people prefer fashion enough to pay more and shift consumption from other things.)
Q for Gibson: What if antitrust law was not enforced in the tobacco industry? One paper suggests we should allow collusion to drive up prices.
A: There are other possible applications, such as copyright/porn. It’s hard to think of industries to which this analysis applies, but maybe cloning is one.
Q: Fashion creates jobs and economic growth.
A: Maybe – there are lots of successful industries we might not like. If you shut down military bases, you lose jobs, but what’s the opportunity cost? People could spend money on something more socially desirable than having the color of shirt appropriate for the season. But maybe they’d spend it on McDonald’s and die earlier.
Q for Halbert: Are Chad and Mali so troubled and underdeveloped that looking for an effect of WIPO there is like looking for the effect of an eyedropper on an inferno? Maybe a place with traction for WIPO would be a better test.
A: It’s a good point, and she does want to compare countries across levels of development. She started with Chad because it signed on in 1970 and that was interesting, given Chad’s development level. Still, it doesn’t seem right to define development as “setting up copyright offices” regardless of what else is going on.
Q for Halbert: WIPO’s major role in international treaties – even if WIPO is wasting money, isn’t there some value in having an international entity that functions as a general office?
A: The counterfactual requires you to ask what other administrative roles exist – WIPO serves a function for countries that produce patents, but that could be replaced. What if, instead of vertical silos of protection, IP had been integrated across UN agencies subsumed under other things like human rights, economic development, the environment? That would be a different model, without the same battles about who gets to talk about IP. WIPO is clearly doing things, but you can’t say it’s helped LDC.
Q for Gibson: There is no interest in fashion rights in the US because the US depends on copying European designers. But in Europe, design protection has been very successful – 3 years, no formalities. What about that? Enforcement would also be a big issue, because the season ends before you can go after infringers.
A: If the theory works, you’d have more time because trends would last longer. With respect to US/Europe, lots of design now goes on in the US because companies are multinational. And it’s not clear that design protection is actually used very much in Europe compared to the amount of design that goes on.
Wong for Halbert: How is WIPO going to try for a “balanced” IP regime that takes development into account? There’s been some movement to change WIPO’s priorities, and your work could fit into that.
Q for Gibson: There’s a body of evolutionary biology literature about accoutrements used to attract mates. One suggestion is that it’s important to distinguish yourself from other competitors. Could that be applied to fashion? Then the interest becomes one of the user, not the producer. And then there’s reason to hope for more kinds of fashion to distinguish oneself. Also, wearable computers: as clothes turn into things other than clothes, how will that affect your argument?
A: No matter what we do, we aren’t going to get rid of status competition. Perhaps we could slow down the cycle yet still allow distinctions. That could even lower the search costs of prospective mates! You don’t need to signal who you are every season.
Lemley for Gibson: Either your theory is true only in fashion/tax avoidance, in which case it would be useful to know what makes them different, or that’s also true of movies, software, and pharma, in which case we’re doing it wrong.
A: Absolutely, and distinctions can be made between industries. Looking at something that thrives in a low-IP world can help.
Lisa Ramsey for Gibson: Would your theory also apply to advertising?
A: Sure, he has the same view about status-intensive advertising. (Except that ads get high IP protection, so removing protection could get us more of it.) Given that TM is headed towards promoting the brand as the good, it would be nice to decrease the TM owner’s ability to control promotional goods branded with the TM.
Q for O’Melinn as Madison: What would you have wished for instead? Avoiding a federal right entirely, allowing states to do anything and just hoping they’d hold off high protection? Or putting something affirmative in the Constitution, and if so what?
A: My what-if is fanciful beyond this point. Madison just wouldn’t want to be pressed into service in the current Revolution. If you describe these rights as conventional property, federalization would have failed – federalization of general property rights would have brought the constitutional convention to a screaming halt.
Comment for Gibson: Gender issues. Fashion has always been associated with women and things women care about. IP protection offers legitimacy. Fashion is more important in the creation of identity than you acknowledge; the first use of the printing press was to circulate images of costumes.
Comment for Halbert: Does copyright matter at all, even in developed countries, when users have such different concepts of what the law allows? The “Friends” bar might be a legitimate remix, and it might exist because of copyright’s incentives!
Q for O’Melinn: Why wasn’t IP controversial as a monopoly?
A: He doesn’t know. Whatever side you’re on, you have a difficult problem: IP was important enough to get into the Constitution, but not important enough to explain, for the generation that did the most explaining of anyone. His theory: it was a coup of federalization, and that’s why they don’t say much about it. Copyright and patent were introduced alongside proposals to create a national university – public-minded.
What Ifs? Copyright Law II
Robert A. Heverly, Lecturer in Intellectual Property Law, Norwich Law School, University of East Anglia, What if . . information was alive?
Heverly’s presentation was cast as a fairytale. Begin in England: Information was owned, its ownership assigned by the sovereign, sometimes by whim or caprice. Unapproved information was banned and destroyed. Next the monarch gave control of information to a trusted group of people to patrol its ranks and take the benefit of its labor. Social change gave information the hope of freedom.
Then information was given to the author, seen as the author’s child and under the author’s control. In the US as well, information was given to the author for a term of servitude, though at least in England and the US the term would eventually expire. Again and again law was used to keep information enslaved, for longer and longer periods.
New technologies involved, themselves built of information. Some information escaped. The US Supreme Court held that information that escaped its bonds still belonged to the initial owner and had to be returned. At last, information refused to work, and thus society stopped working. (Information, apparently, was invulnerable to whippings and didn’t have any other family in bondage.) Finally, information was released. One day it will perhaps be as equal as anyone can be.
The notion of property in information is not new; the Statute of Anne uses the term “property.” But what other things were property in 1710? Women, children, slaves. Why are these no longer property, but information is? Information is just a thing – it has no volition, no ability to advocate for itself, no sentience. What will happen when artificial intelligence arrives? When a technology begins to create and invent?
Doris E. Long, Michigan State University College of Law, What if Dickens had succeded? International copyright, 'creative adaptations' and Ebenezer Scrooge
In the 1840s, there was no protection for international authors. The only way Dickens could make money in America was to get on a boat, come over, and do the equivalent of a concert. Before he arrived, he had made a total of £350 for all his works in the US, and just assumed he wasn’t that popular. He was incredibly popular, in part because his works were incredibly cheap for readers.
First-mover advantages existed – you could produce a book in about 30 hours. Publishers were making some money, though authors weren’t.
American authors resented having their prices undercut. Dickens then showed up in the US and decided to talk about the need for international copyright, both for foreign authors and to encourage a domestic literature. His relatively mild words got him in huge trouble. Publishers responded by claiming that if England were a better, more egalitarian society, he’d have more than enough readers at home to compensate.
What if Dickens had succeeded in getting the US to the international table, 40 years before the Berne Convention? Things would be very different, because of the treatment of derivative rights at that time – which was to say, essentially nonexistent. The 1858 Convention had very limited rights. There was a musical arrangement right, allowing control over versions for other instruments. Even a translation right was debatable. Initially, a translation right lasted only 10 years, and only existed if authorized within 3 years. There were no moral rights. There was a life of the author-based term; and formalities could be required. There wasn’t much of a fair use standard, but it wasn’t much needed because rights were so limited.
America was not a big content provider, but a developing country. America would have come into the international system as an opponent of expansive rights. The international discussions were about trade and border control. If that had remained the basis for international agreements, we might have had more freedom to have domestic variations instead of detailed standards.
(Long had to leave for a flight, but I wish I could have asked her: As a developing nation, wouldn’t the US have been vulnerable to the same tradeoffs as we saw in TRIPs, where developing nations accepted expanded IP rights for things that were more immediately important to them, like lower tariffs on tangible goods? Or is she assuming – reasonably enough – that the concept of linkage wouldn’t have developed any sooner if the US were at the bargaining table?)
Michael J. Madison, University of Pittsburgh School of Law, What if the ancient Romans had invented the printing press? Justinian copyright in the 21st century
Most copyright scholars accept a light form of technological determinism – each major new technology changed the basic economics of production and created the need for changes in copyright law. The foundational technology here is the printing press, thought to create a need for copyright law in the first place.
The conventional story: The spread of printing was accompanied by the spread of printers, and thus claims for exclusivity in the area. Cheap books created pirates, and cheap books created heretics. Thus, we got publishers with monopoly privileges under the control of the state. Eventually, that soured and we switched to authorial copyright.
Cicero wondered whether certain production techniques could be adapted to book production; various techniques could have been assembled to create the printing press. But the ancient Romans had no concept of the “author” as someone who needed any particular protection against piracy. Writers were inspired by the gods to make manifest the divinity inherent in nature and to reproduce the past. Writers were not high-ranked in Roman society. Writers delivered manuscripts to publishers, but the publishers had no right to prevent further reproductions. Likewise with playwrights – theatrical producers had no right to prevent further performaces. Society as a whole was ruled by honor and custom rather than positive law. The Romans distinguished between plagiarism (line by line copying, bad) and theft (appropriation of concepts or ideas, okay and even praiseworthy).
Similarities: There was a recognition that books were cheaper and easier to produce than scrolls. Authors did see themselves as having an interest in accurate reproduction. And many of the legal abstractions on which we now rely – distinction between form and content, possession and right, idea of the res – have antecedents in Roman jurisprudence even though there was no protection for intangible works. The state was also involved in supervising content, making sure that works praised the Emperor.
So what if the printing press had been developed then? One possible story: the economics of the book trade changed dramatically, and the basic narrative of demand for printing privileges is essentially the same. The existing legal framework would have been conducive to this.
Cheap books appeal to the poor. Who were the poor in ancient Rome? Increasingly, they were Christian. The Emperor could have used censorship to suppress Christianity, but eventually Constantine converted and could have embraced the printing press as well. Printing would have become a tool of the state, and an exclusive province of the church. Print would not become an instrument of the Renaissance or the Reformation, or the Scientific Revolution and the Enlightenment. There were no Middle Ages to recover from, because manuscripts were never lost – the lights in Europe never went out. In the absence of these secular institutions, there’s no authorship construct and authorial copyright never emerges. Nor does the secular West.
Second possibility: Nothing changed at all. The cultural mindset of the ancient Romans that there’s nothing new under the sun means that the social meaning of printed books is the same as the social meaning of manuscripts.
The moral of the story: the materialist assumption that technology drives copyright is necessarily incomplete. We need to take Martha Woodmansee’s focus on authorial narratives very seriously.
Tyler Ochoa, Santa Clara University School of Law, What if Goldstein v. California had been decided differently?
Why Goldstein? A case that plausibly could have been decided differently as part of the Court’s series of preemption cases. The Court found preemption of state unfair competition law, then upheld state coverage for sound recordings (then unprotected by copyright) in Goldstein, then upheld state trade secret and contract law, then found preemption of a state law prohibiting copying of boat hulls. Goldstein stands out from the other cases. (1) It’s the only one that involves federal copyright law instead of patent. (2) It’s logically inconsistent with the other 5 cases, which involved distinctions between information that had already been publicly disclosed and information that hadn’t – the state can protect the latter. (3) All but one of the other decisions were unanimous, and that one was 6-2, whereas Goldstein was 5-4.
Common-law copyright for unpublished works was consistent with the other cases, but here the recordings were published. The Court’s rationales weren’t terribly persuasive – the record industry wasn’t an issue of purely local concern; the Copyright Act did purport to cover all the writings of an author; etc.
If the Court had gone the other way, everything before 1972 would be in the public domain, from Edison’s wax cylinders to the Beatles. Napster and Grokster might look very different because of the possible noninfringing uses. But the industry wouldn’t have laid down – it would have gotten a copyright restoration act passed at the federal level.
That statute could also have been challenged on constitutional grounds for taking works out of the public domain, posing the same questions as Luck’s Music, but 30 years before Eldred and only 10 years after Graham v. Deere. An optimist could hope that the Court would have gotten it right and said that restoration would be unconstitutional. Ochoa is no optimist: the Burger Court was notoriously hostile to constitutional claims against IP rights – Zacchini, Harper & Row v. Nation, and San Francisco Arts & Athletics all hold that the First Amendment is no barrier to IP rights. So the Burger Court would have upheld restoration as long as it created a limited term, which Congress would have been smart enough to do.
At that point, we would have been unable to resist the temptation to restore copyright in other domestic works that had lost protection as a result of failure to comply with formalities. We would not have been better off.
Q for Madison: How would the concept of the romantic author help us choose between your two scenarios? And what would it mean to take the romantic author seriously?
A: He assumes that the romantic authorship argument is the dominant alternative to the materialist explanation. We don’t have a good way to articulate the fact that posters to YouTube are themselves creating in some way that needs to be understood within copyright but can’t be fit into the romantic author model. User-generated content can’t be understood in a purely materialistic, code-based model – we need a different account of the social meaning of creating new videos, including creating videos out of others’ television shows. Simply focusing on technological capabilities doesn’t allow you to evaluate that practice.
Q: Of those two scenarios, which was more likely? Scenario one would bolster the claim that material events are key – do you think the emperors would really have been able to resist the temptation of social control through cheap printing?
A: There was an enormous amount going on in Europe when the printing press emerged. We need to give weight to the other cultural and intellectual developments, rather than the printing press in isolation. He believes that culture would have dominated technology in his scenario, but that’s speculation on speculation.
Q: But widespread reading could have had bigger effects.
A: Sure.
Q: Maybe monotheism would have had a harder time taking hold if everyone was reading about the gods.
Q for Ochoa: So are there cases you don’t want to litigate as a public domain advocate?
A: In some circumstances, you can be made worse off by winning. (It’s The Hollow Hope for IP.) It depends on the Court and the reaction from Congress.
Heverly’s presentation was cast as a fairytale. Begin in England: Information was owned, its ownership assigned by the sovereign, sometimes by whim or caprice. Unapproved information was banned and destroyed. Next the monarch gave control of information to a trusted group of people to patrol its ranks and take the benefit of its labor. Social change gave information the hope of freedom.
Then information was given to the author, seen as the author’s child and under the author’s control. In the US as well, information was given to the author for a term of servitude, though at least in England and the US the term would eventually expire. Again and again law was used to keep information enslaved, for longer and longer periods.
New technologies involved, themselves built of information. Some information escaped. The US Supreme Court held that information that escaped its bonds still belonged to the initial owner and had to be returned. At last, information refused to work, and thus society stopped working. (Information, apparently, was invulnerable to whippings and didn’t have any other family in bondage.) Finally, information was released. One day it will perhaps be as equal as anyone can be.
The notion of property in information is not new; the Statute of Anne uses the term “property.” But what other things were property in 1710? Women, children, slaves. Why are these no longer property, but information is? Information is just a thing – it has no volition, no ability to advocate for itself, no sentience. What will happen when artificial intelligence arrives? When a technology begins to create and invent?
Doris E. Long, Michigan State University College of Law, What if Dickens had succeded? International copyright, 'creative adaptations' and Ebenezer Scrooge
In the 1840s, there was no protection for international authors. The only way Dickens could make money in America was to get on a boat, come over, and do the equivalent of a concert. Before he arrived, he had made a total of £350 for all his works in the US, and just assumed he wasn’t that popular. He was incredibly popular, in part because his works were incredibly cheap for readers.
First-mover advantages existed – you could produce a book in about 30 hours. Publishers were making some money, though authors weren’t.
American authors resented having their prices undercut. Dickens then showed up in the US and decided to talk about the need for international copyright, both for foreign authors and to encourage a domestic literature. His relatively mild words got him in huge trouble. Publishers responded by claiming that if England were a better, more egalitarian society, he’d have more than enough readers at home to compensate.
What if Dickens had succeeded in getting the US to the international table, 40 years before the Berne Convention? Things would be very different, because of the treatment of derivative rights at that time – which was to say, essentially nonexistent. The 1858 Convention had very limited rights. There was a musical arrangement right, allowing control over versions for other instruments. Even a translation right was debatable. Initially, a translation right lasted only 10 years, and only existed if authorized within 3 years. There were no moral rights. There was a life of the author-based term; and formalities could be required. There wasn’t much of a fair use standard, but it wasn’t much needed because rights were so limited.
America was not a big content provider, but a developing country. America would have come into the international system as an opponent of expansive rights. The international discussions were about trade and border control. If that had remained the basis for international agreements, we might have had more freedom to have domestic variations instead of detailed standards.
(Long had to leave for a flight, but I wish I could have asked her: As a developing nation, wouldn’t the US have been vulnerable to the same tradeoffs as we saw in TRIPs, where developing nations accepted expanded IP rights for things that were more immediately important to them, like lower tariffs on tangible goods? Or is she assuming – reasonably enough – that the concept of linkage wouldn’t have developed any sooner if the US were at the bargaining table?)
Michael J. Madison, University of Pittsburgh School of Law, What if the ancient Romans had invented the printing press? Justinian copyright in the 21st century
Most copyright scholars accept a light form of technological determinism – each major new technology changed the basic economics of production and created the need for changes in copyright law. The foundational technology here is the printing press, thought to create a need for copyright law in the first place.
The conventional story: The spread of printing was accompanied by the spread of printers, and thus claims for exclusivity in the area. Cheap books created pirates, and cheap books created heretics. Thus, we got publishers with monopoly privileges under the control of the state. Eventually, that soured and we switched to authorial copyright.
Cicero wondered whether certain production techniques could be adapted to book production; various techniques could have been assembled to create the printing press. But the ancient Romans had no concept of the “author” as someone who needed any particular protection against piracy. Writers were inspired by the gods to make manifest the divinity inherent in nature and to reproduce the past. Writers were not high-ranked in Roman society. Writers delivered manuscripts to publishers, but the publishers had no right to prevent further reproductions. Likewise with playwrights – theatrical producers had no right to prevent further performaces. Society as a whole was ruled by honor and custom rather than positive law. The Romans distinguished between plagiarism (line by line copying, bad) and theft (appropriation of concepts or ideas, okay and even praiseworthy).
Similarities: There was a recognition that books were cheaper and easier to produce than scrolls. Authors did see themselves as having an interest in accurate reproduction. And many of the legal abstractions on which we now rely – distinction between form and content, possession and right, idea of the res – have antecedents in Roman jurisprudence even though there was no protection for intangible works. The state was also involved in supervising content, making sure that works praised the Emperor.
So what if the printing press had been developed then? One possible story: the economics of the book trade changed dramatically, and the basic narrative of demand for printing privileges is essentially the same. The existing legal framework would have been conducive to this.
Cheap books appeal to the poor. Who were the poor in ancient Rome? Increasingly, they were Christian. The Emperor could have used censorship to suppress Christianity, but eventually Constantine converted and could have embraced the printing press as well. Printing would have become a tool of the state, and an exclusive province of the church. Print would not become an instrument of the Renaissance or the Reformation, or the Scientific Revolution and the Enlightenment. There were no Middle Ages to recover from, because manuscripts were never lost – the lights in Europe never went out. In the absence of these secular institutions, there’s no authorship construct and authorial copyright never emerges. Nor does the secular West.
Second possibility: Nothing changed at all. The cultural mindset of the ancient Romans that there’s nothing new under the sun means that the social meaning of printed books is the same as the social meaning of manuscripts.
The moral of the story: the materialist assumption that technology drives copyright is necessarily incomplete. We need to take Martha Woodmansee’s focus on authorial narratives very seriously.
Tyler Ochoa, Santa Clara University School of Law, What if Goldstein v. California had been decided differently?
Why Goldstein? A case that plausibly could have been decided differently as part of the Court’s series of preemption cases. The Court found preemption of state unfair competition law, then upheld state coverage for sound recordings (then unprotected by copyright) in Goldstein, then upheld state trade secret and contract law, then found preemption of a state law prohibiting copying of boat hulls. Goldstein stands out from the other cases. (1) It’s the only one that involves federal copyright law instead of patent. (2) It’s logically inconsistent with the other 5 cases, which involved distinctions between information that had already been publicly disclosed and information that hadn’t – the state can protect the latter. (3) All but one of the other decisions were unanimous, and that one was 6-2, whereas Goldstein was 5-4.
Common-law copyright for unpublished works was consistent with the other cases, but here the recordings were published. The Court’s rationales weren’t terribly persuasive – the record industry wasn’t an issue of purely local concern; the Copyright Act did purport to cover all the writings of an author; etc.
If the Court had gone the other way, everything before 1972 would be in the public domain, from Edison’s wax cylinders to the Beatles. Napster and Grokster might look very different because of the possible noninfringing uses. But the industry wouldn’t have laid down – it would have gotten a copyright restoration act passed at the federal level.
That statute could also have been challenged on constitutional grounds for taking works out of the public domain, posing the same questions as Luck’s Music, but 30 years before Eldred and only 10 years after Graham v. Deere. An optimist could hope that the Court would have gotten it right and said that restoration would be unconstitutional. Ochoa is no optimist: the Burger Court was notoriously hostile to constitutional claims against IP rights – Zacchini, Harper & Row v. Nation, and San Francisco Arts & Athletics all hold that the First Amendment is no barrier to IP rights. So the Burger Court would have upheld restoration as long as it created a limited term, which Congress would have been smart enough to do.
At that point, we would have been unable to resist the temptation to restore copyright in other domestic works that had lost protection as a result of failure to comply with formalities. We would not have been better off.
Q for Madison: How would the concept of the romantic author help us choose between your two scenarios? And what would it mean to take the romantic author seriously?
A: He assumes that the romantic authorship argument is the dominant alternative to the materialist explanation. We don’t have a good way to articulate the fact that posters to YouTube are themselves creating in some way that needs to be understood within copyright but can’t be fit into the romantic author model. User-generated content can’t be understood in a purely materialistic, code-based model – we need a different account of the social meaning of creating new videos, including creating videos out of others’ television shows. Simply focusing on technological capabilities doesn’t allow you to evaluate that practice.
Q: Of those two scenarios, which was more likely? Scenario one would bolster the claim that material events are key – do you think the emperors would really have been able to resist the temptation of social control through cheap printing?
A: There was an enormous amount going on in Europe when the printing press emerged. We need to give weight to the other cultural and intellectual developments, rather than the printing press in isolation. He believes that culture would have dominated technology in his scenario, but that’s speculation on speculation.
Q: But widespread reading could have had bigger effects.
A: Sure.
Q: Maybe monotheism would have had a harder time taking hold if everyone was reading about the gods.
Q for Ochoa: So are there cases you don’t want to litigate as a public domain advocate?
A: In some circumstances, you can be made worse off by winning. (It’s The Hollow Hope for IP.) It depends on the Court and the reaction from Congress.
Saturday, March 31, 2007
What Ifs? Copyright Law I
Michael W. Carroll, Villanova University School of Law, What if the Section 512 safe harbors for online service providers had not been enacted?
If MAI is right, then all transitory copies implicate the reproduction right, creating an explosion of “copyright events” in the digital world. Section 512 limits monetary liability, not the copyright owner’s exclusive rights. Thus, the underlying theory of liability covered is not clear; implicitly, 512 accepts the broad scope of copyright law outlined in the NII White Paper. At the same time, taking the money out of the equation decreases the incentive to test liability theories. (Perhaps we’ll see that in the YouTube litigation.)
512 is a reminder that copyright doesn’t have to be a story of relentless expansion, at least if you have political muscle, even though 512 accepts the general breadth of copyright. Also it’s important that 512 was enacted pre-Napster, whose presence would have made 512 impossible.
Linking: does 512(d) make a difference? Not really; liability would rarely be appropriate anyway. But, without 512 there might have been more litigation clarifying that linking doesn’t exercise any rights, including display. Only secondary liability is appropriate, meaning a judicially enacted notice-and-takedown scheme. Might have had to clarify the Utah Lighthouse case that suggested that linking could infringe.
Core ISP functions: transmitting copies. Netcom had read in a volitional requirement to the reproduction right. 512(a) arguably overrules that, because it’s hard to see what 512(a) means if it doesn’t accept that there’d be infringement in the absence of 512(a). Litigation might have clarified that transmission copies are not “copies,” and Carroll thinks appellate courts would have followed Netcom. Without 512(a), though, there might have been issues with offshore pirate sites – ISPs might have been forced to cut them off.
System caching: A private ordering solution could have emerged leaving essentially the same terms.
512(c) is the one that made a big difference in exempting ISPs from monetary liability for user-directed storage. Storage isn’t one of the exclusive rights in the Copyright Act – so does this include display and distribution as well as reproduction? ISPs as hosts could have been sued for direct reproduction violations – unlike analog landlords, digital landlords own the machines that make the copies. This generated substantially greater uncertainty. Courts might have created a notice-and-takedown scheme through common-law rulemaking, but 512(c) played a big role in fostering web hosting.
In YouTube, we’ll hear from both sides that the other is breaking the “deal” agreed to in 512. Yahoo! and GeoCities were big lobbiers for 512(c), though, and they’re the precursors to MySpace, YouTube, etc. Notwithstanding Viacom’s claims, 512(c) is good for Hollywood – we’d probably still have video sharing, but much more ex ante filtering on legitimate sites. That would have given much more impetus to illegal peer-to-peer applications and led to a buildout of the underground video economy. Also, some of the videos are like fan fiction and should be tolerated uses.
Takeaway: 512 decreased uncertainty, but most ISP functions would still be performed in its absence. Social media would have been driven underground. We didn’t get as much litigation about important doctrinal questions, but the certainty may have been worth it.
Jon Garon, Hamline University School of Law, What if DRM fails?
Steve Jobs says Apple would embrace DRM-free music. Bruce Lehman has said that the DMCA didn’t work out very well, and predicts the rise of new patronage. Garon’s biases: Garon is a typical consumer who hates DRM, gets audiobooks from the library, and skips commercials by only watching DVRed content. At the same time, he’s a playwright and represents copyright owners. Garon agrees somewhat with Lehman, except that we don’t live in the benign world of Canadian government-funded cultural enrichment but a more commercial society.
His thesis: music is different. For music, DRM does more harm than good, ignoring ripped CDs and other sources of music. Only a few percent of music on iPods has DRM. Jobs is right that abandoning DRM would leave the music industry just fine.
But short stories are different – all reasonably sized copyrighted sf stories are available for free on the internet. (I’d love to see the proof of this. It is not my experience, though I admit I have not searched for pirate Frederik Pohl sites.) Big novels are too bulky to read online, but the short story market has collapsed. People are reading a lot less literature. (Is that because of piracy? How could that be so? Are the pirates not reading, just pirating? More importantly for copyright, are people spending less time amd money overall consuming creative works, whether literature or video games? My guess is not.) Commercial publishers can’t afford to take as many risks as they used to. Likewise, theater and independent film are economically unsustainable. Only very short clips are profitable online.
Who will be the new patrons? Consumers. Advertisers, shifting from wraparound to embedded content. Private patrons donating to museums etc.; are these healthy – do we want all theater, all publishing, all opera to follow that elitist model? (Um, what are the chances that, no matter how robust IP rights and DRM, there would be a non-elite-supported opera company? Garon doesn’t seem happy with current tastes in entertainment, but I find it difficult to connect that with lax IP enforcement.) Manufacturers and distributors – Steve Jobs may want to support content to have things to fill his devices.
We can’t follow music. Music is atomized; the album never really worked. We need to get over the failure of DRM for music delivery. If we’re in a world where we can’t fund film or publishing or video games and need to rely on volunteers, technology will just create an ever-greater wasteland.
Michael Landau, Georgia State University College of Law, What if the anti-bootlegging statutes really are upheld under the Commerce Clause?
Martignon in SDNY has been on appeal (for years!) to the Second Circuit. What if the Second Circuit reverses? If you accept that unfixed works and other uncopyrightable works can be protected under the Commerce Clause because they are outside the scope of the Copyright Clause, will it render copyright superfluous? Will it revitalize the database protection attempt? What about the trademark-copyright interface? If you can protect bootlegs forever, maybe you can also protect Mickey Mouse forever.
Also, what if the Second Circuit affirms? Would Congress attempt to fix the hole? If you can fix a sports event simultaneously with its transmission, why not provide that a performance fixed without the performer’s consent is still considered fixed, and to belong to the performer? Why hasn’t Congress done this already, given the uncertainty?
Mary Wong, Franklin Pierce Law Center, What if the WIPO Development Agenda is adopted?
WIPO has been criticized for facilitating the ratcheting up of IP, and for focusing on the alleged economic benefits of high IP protection even though there is no consensus on whether IPRs lead to economic development and social benefits. One size fits all may not be the right solution.
There is increasing involvement in IP issues by NGOs and civil society groups, as well as a recognition of the link between IPRs and human rights. The 2006 Consumers’ International Study on Copyright & A2K on 11 developing countries in Asia found that none of the countries had taken advantage of existing flexibilities in international treaties; generally, they provide greater rights protection than required. Now this issue is part of the development and human rights agenda, providing a perspective from which to decide when there should be limits on IP rights. At this point, even if formal proposals aren’t adopted, there is greater awareness of the development dimension as it relates to already-available limitations and exceptions to copyright, and new interest groups have realized that they need to be at the table.
Q: If the Federal Circuit were in charge of copyright law, would Carroll be so sanguine about the world in the absence of 512?
Carroll: No, because copyright is a common-law field – at least in the 9th and 2nd circuits – and the Federal Circuit lacks the experience and the temperament for that. At that point, probably the parties would have run to Congress.
Lemley: And yet, the Federal Circuit’s take on anticircumvention has been most aggressive in twisting the statute to get the right result.
Bartow, for Garon: Billy Joel sold out South Carolina’s stadium with $80 tickets; Mamma Mia also sold out; local bands sold out. People are spending money on entertainment, just differently. Lucy smoked cigarettes on I Love Lucy. Have things changed that much?
Garon: The cigarette ads were banned. But advertisers have been trying to cheat with product placement from the beginning. The difference is that now we embrace what we used to think was evil and pernicious. Live entertainment continues to matter to us; and music is sui generis in having live performance as an independent revenue stream and having the ability to use branded merchandise as an adjunct as most other art forms can’t. He’s not worried about music. Mamma Mia is a trademark-based content show. The number of Broadway shows that aren’t subsidized are fewer and fewer; but the content is very different from the content in London, which relies less on branding strategies. Some of the differences go to the heart of what kind of society we want to have.
Q for Landau: What implications does Martignon have for a federal right of publicity statute?
A: We need such a statute to avoid problems of copyright preemption. With the exception of name, almost all of the uses for a right of publicity are in copyright’s subject matter, so you could even do it as part of the Copyright Act. But an adjunct to TM law is more likely.
Q: We’d still have a constitutional preemption issue, though.
A: But it would solve state-level differences.
Q for Wong: How do the bilateral TRIPs-plus agreements we’ve been signing affect the WIPO discussions?
A: That’s a key issue for future work, and the next step for the development agenda. (Indeed, we seem to be turning to bilateral agreements precisely because they enable us to leave behind all the new groups that have shown up at the multilateral table.)
Q for Landau: Isn’t the “limited times” for bootlegs the statute of limitations, at least for the person who created the bootleg? That doesn’t help with trafficking, of course.
A: The real harm is the distribution/transmission. Also, if it’s outside the Copyright Clause, nothing prevents perpetual protection. This has an easy statutory fix. Broader question: if the live performance right is eliminated, what about the §106(4) public performance right? The answer there is that the initial work is fixed – but we could say that about the bootleg too.
Q for Carroll: Was section 230 of the CDA a predecessor of 512?
A: Only indirectly. The ISPs were caught in the middle for a lot of forms of liability, but they knew they needed a different deal with the copyright industries than they could get with the plaintiff’s bar, which was their only opposition for 230. Congress was primed for the argument that some new rule was required for these new intermediaries, but mostly Congress just wanted the parties to go do a deal. An interesting issue is 512’s international modeling effects.
Seltzer: Why haven’t we seen more litigation under 512(f) from people harmed by defective notices?
Carroll: Because there’s not enough money in these disputes now that the ISPs are out of it. Other than law professors who want to make a point, most people move on.
Q for Garon: What would be evidence of DRM’s success?
A: It may have already failed. To shift to DRM2, we need the industry to concede the point on music and give up on a one-size-fits-all approach. We need to convince people that film and TV are socially acceptable categories for DRM-protected works. We do condemn people who download thousand-dollar software in ways we don’t condemn music downloaders.
Q: Product placement produces a revenue stream whether or not DRM succeeds. Why won’t we get both?
A: Distributors will look to maximize revenue streams, but artists will balance their individual visions with their commercial needs. A world in which product placement is unnecessary will maintain some space for non-product-placement-based art.
Q: Isn’t it possible that some media are just on their way out?
A: Theater has been declared dead since well before these debates began. What we’ve seen in theater is a change in patronage to large donors. The result: an increased separation between what the general public wants and what the funders are willing to pay for. Mamma Mia is a rock opera, not Les Miz or Andrew Lloyd Webber. The content follows the money.
Q: Artists start out with no money; they’re taking a chance on success, and won’t they continue to do so?
A: Yet people respond to economic incentives to stay in the game – most people give up after 2-3 creative works that don’t find a place in the market. There will always be volunteers, but professionals won’t work if they can’t feed their kids. (And yet DRM just doesn’t seem that helpful to ensure that those kids get fed. Piracy isn’t the problem; the problem, if it is one, is that most people can’t write or sing or draw well enough to make a living doing it.)
Distributors want to maximize eyeballs. There is less and less narrative in film, more violence and explosions. (So if DRM favors distributors over initial authors, as it seems to, I’m not sure how Garon’s prescription treats the disease he sees.) The WPA created an incredible flourishing of US theater – patronage does wax and wane. Historically, though, copyright has contributed greatly to the richness of culture, and he’s worried about that segment.
Q: SF hasn’t died; lots has shifted to graphic novels. TV is better than it’s ever been, even if movies aren’t as good. We’re seeing changes in how talent is deployed, not the collapse of culture.
A: He hopes he’s wrong. But when a 2-hour download takes 2 minutes on your broadband connection, then the collapse will hit.
If MAI is right, then all transitory copies implicate the reproduction right, creating an explosion of “copyright events” in the digital world. Section 512 limits monetary liability, not the copyright owner’s exclusive rights. Thus, the underlying theory of liability covered is not clear; implicitly, 512 accepts the broad scope of copyright law outlined in the NII White Paper. At the same time, taking the money out of the equation decreases the incentive to test liability theories. (Perhaps we’ll see that in the YouTube litigation.)
512 is a reminder that copyright doesn’t have to be a story of relentless expansion, at least if you have political muscle, even though 512 accepts the general breadth of copyright. Also it’s important that 512 was enacted pre-Napster, whose presence would have made 512 impossible.
Linking: does 512(d) make a difference? Not really; liability would rarely be appropriate anyway. But, without 512 there might have been more litigation clarifying that linking doesn’t exercise any rights, including display. Only secondary liability is appropriate, meaning a judicially enacted notice-and-takedown scheme. Might have had to clarify the Utah Lighthouse case that suggested that linking could infringe.
Core ISP functions: transmitting copies. Netcom had read in a volitional requirement to the reproduction right. 512(a) arguably overrules that, because it’s hard to see what 512(a) means if it doesn’t accept that there’d be infringement in the absence of 512(a). Litigation might have clarified that transmission copies are not “copies,” and Carroll thinks appellate courts would have followed Netcom. Without 512(a), though, there might have been issues with offshore pirate sites – ISPs might have been forced to cut them off.
System caching: A private ordering solution could have emerged leaving essentially the same terms.
512(c) is the one that made a big difference in exempting ISPs from monetary liability for user-directed storage. Storage isn’t one of the exclusive rights in the Copyright Act – so does this include display and distribution as well as reproduction? ISPs as hosts could have been sued for direct reproduction violations – unlike analog landlords, digital landlords own the machines that make the copies. This generated substantially greater uncertainty. Courts might have created a notice-and-takedown scheme through common-law rulemaking, but 512(c) played a big role in fostering web hosting.
In YouTube, we’ll hear from both sides that the other is breaking the “deal” agreed to in 512. Yahoo! and GeoCities were big lobbiers for 512(c), though, and they’re the precursors to MySpace, YouTube, etc. Notwithstanding Viacom’s claims, 512(c) is good for Hollywood – we’d probably still have video sharing, but much more ex ante filtering on legitimate sites. That would have given much more impetus to illegal peer-to-peer applications and led to a buildout of the underground video economy. Also, some of the videos are like fan fiction and should be tolerated uses.
Takeaway: 512 decreased uncertainty, but most ISP functions would still be performed in its absence. Social media would have been driven underground. We didn’t get as much litigation about important doctrinal questions, but the certainty may have been worth it.
Jon Garon, Hamline University School of Law, What if DRM fails?
Steve Jobs says Apple would embrace DRM-free music. Bruce Lehman has said that the DMCA didn’t work out very well, and predicts the rise of new patronage. Garon’s biases: Garon is a typical consumer who hates DRM, gets audiobooks from the library, and skips commercials by only watching DVRed content. At the same time, he’s a playwright and represents copyright owners. Garon agrees somewhat with Lehman, except that we don’t live in the benign world of Canadian government-funded cultural enrichment but a more commercial society.
His thesis: music is different. For music, DRM does more harm than good, ignoring ripped CDs and other sources of music. Only a few percent of music on iPods has DRM. Jobs is right that abandoning DRM would leave the music industry just fine.
But short stories are different – all reasonably sized copyrighted sf stories are available for free on the internet. (I’d love to see the proof of this. It is not my experience, though I admit I have not searched for pirate Frederik Pohl sites.) Big novels are too bulky to read online, but the short story market has collapsed. People are reading a lot less literature. (Is that because of piracy? How could that be so? Are the pirates not reading, just pirating? More importantly for copyright, are people spending less time amd money overall consuming creative works, whether literature or video games? My guess is not.) Commercial publishers can’t afford to take as many risks as they used to. Likewise, theater and independent film are economically unsustainable. Only very short clips are profitable online.
Who will be the new patrons? Consumers. Advertisers, shifting from wraparound to embedded content. Private patrons donating to museums etc.; are these healthy – do we want all theater, all publishing, all opera to follow that elitist model? (Um, what are the chances that, no matter how robust IP rights and DRM, there would be a non-elite-supported opera company? Garon doesn’t seem happy with current tastes in entertainment, but I find it difficult to connect that with lax IP enforcement.) Manufacturers and distributors – Steve Jobs may want to support content to have things to fill his devices.
We can’t follow music. Music is atomized; the album never really worked. We need to get over the failure of DRM for music delivery. If we’re in a world where we can’t fund film or publishing or video games and need to rely on volunteers, technology will just create an ever-greater wasteland.
Michael Landau, Georgia State University College of Law, What if the anti-bootlegging statutes really are upheld under the Commerce Clause?
Martignon in SDNY has been on appeal (for years!) to the Second Circuit. What if the Second Circuit reverses? If you accept that unfixed works and other uncopyrightable works can be protected under the Commerce Clause because they are outside the scope of the Copyright Clause, will it render copyright superfluous? Will it revitalize the database protection attempt? What about the trademark-copyright interface? If you can protect bootlegs forever, maybe you can also protect Mickey Mouse forever.
Also, what if the Second Circuit affirms? Would Congress attempt to fix the hole? If you can fix a sports event simultaneously with its transmission, why not provide that a performance fixed without the performer’s consent is still considered fixed, and to belong to the performer? Why hasn’t Congress done this already, given the uncertainty?
Mary Wong, Franklin Pierce Law Center, What if the WIPO Development Agenda is adopted?
WIPO has been criticized for facilitating the ratcheting up of IP, and for focusing on the alleged economic benefits of high IP protection even though there is no consensus on whether IPRs lead to economic development and social benefits. One size fits all may not be the right solution.
There is increasing involvement in IP issues by NGOs and civil society groups, as well as a recognition of the link between IPRs and human rights. The 2006 Consumers’ International Study on Copyright & A2K on 11 developing countries in Asia found that none of the countries had taken advantage of existing flexibilities in international treaties; generally, they provide greater rights protection than required. Now this issue is part of the development and human rights agenda, providing a perspective from which to decide when there should be limits on IP rights. At this point, even if formal proposals aren’t adopted, there is greater awareness of the development dimension as it relates to already-available limitations and exceptions to copyright, and new interest groups have realized that they need to be at the table.
Q: If the Federal Circuit were in charge of copyright law, would Carroll be so sanguine about the world in the absence of 512?
Carroll: No, because copyright is a common-law field – at least in the 9th and 2nd circuits – and the Federal Circuit lacks the experience and the temperament for that. At that point, probably the parties would have run to Congress.
Lemley: And yet, the Federal Circuit’s take on anticircumvention has been most aggressive in twisting the statute to get the right result.
Bartow, for Garon: Billy Joel sold out South Carolina’s stadium with $80 tickets; Mamma Mia also sold out; local bands sold out. People are spending money on entertainment, just differently. Lucy smoked cigarettes on I Love Lucy. Have things changed that much?
Garon: The cigarette ads were banned. But advertisers have been trying to cheat with product placement from the beginning. The difference is that now we embrace what we used to think was evil and pernicious. Live entertainment continues to matter to us; and music is sui generis in having live performance as an independent revenue stream and having the ability to use branded merchandise as an adjunct as most other art forms can’t. He’s not worried about music. Mamma Mia is a trademark-based content show. The number of Broadway shows that aren’t subsidized are fewer and fewer; but the content is very different from the content in London, which relies less on branding strategies. Some of the differences go to the heart of what kind of society we want to have.
Q for Landau: What implications does Martignon have for a federal right of publicity statute?
A: We need such a statute to avoid problems of copyright preemption. With the exception of name, almost all of the uses for a right of publicity are in copyright’s subject matter, so you could even do it as part of the Copyright Act. But an adjunct to TM law is more likely.
Q: We’d still have a constitutional preemption issue, though.
A: But it would solve state-level differences.
Q for Wong: How do the bilateral TRIPs-plus agreements we’ve been signing affect the WIPO discussions?
A: That’s a key issue for future work, and the next step for the development agenda. (Indeed, we seem to be turning to bilateral agreements precisely because they enable us to leave behind all the new groups that have shown up at the multilateral table.)
Q for Landau: Isn’t the “limited times” for bootlegs the statute of limitations, at least for the person who created the bootleg? That doesn’t help with trafficking, of course.
A: The real harm is the distribution/transmission. Also, if it’s outside the Copyright Clause, nothing prevents perpetual protection. This has an easy statutory fix. Broader question: if the live performance right is eliminated, what about the §106(4) public performance right? The answer there is that the initial work is fixed – but we could say that about the bootleg too.
Q for Carroll: Was section 230 of the CDA a predecessor of 512?
A: Only indirectly. The ISPs were caught in the middle for a lot of forms of liability, but they knew they needed a different deal with the copyright industries than they could get with the plaintiff’s bar, which was their only opposition for 230. Congress was primed for the argument that some new rule was required for these new intermediaries, but mostly Congress just wanted the parties to go do a deal. An interesting issue is 512’s international modeling effects.
Seltzer: Why haven’t we seen more litigation under 512(f) from people harmed by defective notices?
Carroll: Because there’s not enough money in these disputes now that the ISPs are out of it. Other than law professors who want to make a point, most people move on.
Q for Garon: What would be evidence of DRM’s success?
A: It may have already failed. To shift to DRM2, we need the industry to concede the point on music and give up on a one-size-fits-all approach. We need to convince people that film and TV are socially acceptable categories for DRM-protected works. We do condemn people who download thousand-dollar software in ways we don’t condemn music downloaders.
Q: Product placement produces a revenue stream whether or not DRM succeeds. Why won’t we get both?
A: Distributors will look to maximize revenue streams, but artists will balance their individual visions with their commercial needs. A world in which product placement is unnecessary will maintain some space for non-product-placement-based art.
Q: Isn’t it possible that some media are just on their way out?
A: Theater has been declared dead since well before these debates began. What we’ve seen in theater is a change in patronage to large donors. The result: an increased separation between what the general public wants and what the funders are willing to pay for. Mamma Mia is a rock opera, not Les Miz or Andrew Lloyd Webber. The content follows the money.
Q: Artists start out with no money; they’re taking a chance on success, and won’t they continue to do so?
A: Yet people respond to economic incentives to stay in the game – most people give up after 2-3 creative works that don’t find a place in the market. There will always be volunteers, but professionals won’t work if they can’t feed their kids. (And yet DRM just doesn’t seem that helpful to ensure that those kids get fed. Piracy isn’t the problem; the problem, if it is one, is that most people can’t write or sing or draw well enough to make a living doing it.)
Distributors want to maximize eyeballs. There is less and less narrative in film, more violence and explosions. (So if DRM favors distributors over initial authors, as it seems to, I’m not sure how Garon’s prescription treats the disease he sees.) The WPA created an incredible flourishing of US theater – patronage does wax and wane. Historically, though, copyright has contributed greatly to the richness of culture, and he’s worried about that segment.
Q: SF hasn’t died; lots has shifted to graphic novels. TV is better than it’s ever been, even if movies aren’t as good. We’re seeing changes in how talent is deployed, not the collapse of culture.
A: He hopes he’s wrong. But when a 2-hour download takes 2 minutes on your broadband connection, then the collapse will hit.
What Ifs? Keynote storyteller
Mark A. Lemley, Stanford, Ignoring Patents
2.5 million patents have issued in the last 20 years, over 1/3 of the total number issued in US history. Many are in the information industries. And these are component industries: to make and sell things, you have to put together a bunch of components. The patents generate royalty stacking and holdup concerns, not just in theory but in practice. Microsoft owes 1.2 billion for one invention used in Windows, $500 million for another. Then add in willful infringement and treble damages, as well as the outrageous cost of patent litigation -- $4.5 million to pay your lawyers, win or lose.
And yet – the anticommons hasn’t disabled any of these industries. People are running their businesses notwithstanding the patent shadow.
Why? Because people ignore patents all the time, especially in component industries. This may not be true in the pharmaceutical industry, but he’ll talk about that in a bit.
Scientists, engineers, software writers don’t read patents to gather information. Even if they thought it was a good idea, the business and legal types are telling engineers: whatever you do, don’t read patents. Don’t put us on notice.
Similarly, companies don’t engage in prior art searches before filing for patents or before making products. Not surprisingly, once that happens, they get threat letters. The received wisdom in Silicon Valley is that you always ignore the first threat letter you get. Sometimes they go away. Only if they’re serious do you start evaluating.
When you’re sued for patent infringement, you never stop making the product pending the outcome of the litigation. You always roll the dice, even if you’re also trying to design around the patent just in case. The Blackberry is an example of this, settling for $613 million rather than implementing a workaround.
What if we took seriously the idea that patents are just like real property? Nobody would build a house without being sure they owned the land. If it were a shopping mall and needed to aggregate land to create it, you wouldn’t start building in the hopes that you wouldn’t get sued or the plaintiff would turn out to have a defect in title. Even if you did, no one would loan you the money to do so. In real property, we’ve got to be sure, at least to a high degree of certainty.
Analogously, Intel couldn’t design a new chip until it had cleared all the possible rights. You’d need patent title insurers who’d spring up to clear the rights. In the university setting, scientists would investigate patents before starting research.
Lemley thinks this would be a disaster. The benefits: patent owners would get paid more. The subset of patent owners in competition with accused infringers, and who want to use patents to exclude competitors, would benefit tremendously. Filing a lawsuit would deter people from entering the market.
Research and product sales would be delayed by years, even decades, in every industry. Cost would be the least of the problems – patent applications may be sought, or may have claims that differ when they’re issued. And because of continuations, you can’t identify all the claims until 20 years after the filing date. Even once you’ve identified a patent owner, you don’t know what the patent covers. 46% of patents litigated to judgment are ultimately held invalid. Given the 40% reversal rate on Markman hearings, you don’t know what a patent means until after Federal Circuit review. And there are many, many patents out there. Third-generation wireless – one bit of your cellphone – is covered by nearly 7000 “essential” (self-identified) patents.
This is more than a problem of layering. If I must buy and aggregate rights from a bunch of people, we can’t expect those individuals will set an efficient systemwide price. If one voluntarily reduces price, others will charge more and they’ll be the suckers. This creates a real risk of bargaining breakdown. The real property rule presupposes the absence of bargaining breakdown.
Systemic problems: consumers would lose the benefits of competition, in situations where the patent would be held invalid or not infringed. And patentees only win 25% of their litigated cases – 75% of the time you’re sued, you’re right to refuse to pay. And that helps consumers get the benefit of the product during the period when the patent’s validity and scope are uncertain. Competitors and innovators generally would lose the benefits of going ahead without waiting for approval from patent owners. Design-around efforts would wither. If competition is a better spur to innovation than monopoly, then we’d lose out in innovation as well.
In the pharmaceutical industry, we have a world in which patent owners all neatly list their patents in one place, the Orange Book. The FDA and Hatch-Waxman rules restrict generic entry when there is an Orange Book entry. If you certify that you don’t infringe or the patent is invalid, the patent owner can sue you and get an automatic 30-month injunction. Even after those expire, as they’ve started to do, generic companies are mostly afraid to enter at risk. They act like real property owners.
Does this system work? Pharma is different – Lemley thinks we need stronger patent rights because of the cost and delay of the regulatory environment needed to guarantee safe and efficient drugs. So the benefits are a lot stronger in pharma. Correspondingly, the cumulative innovation that drives software and semiconductors is a lot less important. Discovering a new blockbuster is correspondingly more valuable than improving on the dosage system of that blockbuster. Moreover, there are fewer patents – by orders of magnitude – in the industry, and the claims are a lot clearer. Chemical patents don’t have huge Markman problems the way other patents do, for example when they specify the high-level functional characteristics of a computer program.
Nonetheless, there are problems even in pharma: Evergreening – listing as many patents as possible on the Orange Book, even if they’re obviously bogus or unrelated to the underlying drug. Product-hopping to game the FDA approval system – changing products just as a generic is about to enter the market. Exclusion payments: paying generic competitors to stay out. The result is surprisingly little generic entry while patents are in force and even a number of years after the original patent expires.
Second what-if: What if we wanted to create a robust market for patent license, which wasn’t the current “ignore patents” world but also wasn’t the sclerotic world of land rights? That would require really radical changes to solve the problem of uncertainty early on in the development process. Requirements: much better review of applications, which would have costs of its own; early publication, possibly on the date of application; ban continuations; allow post-grant oppositions; other mechanisms for collecting information before a lawsuit began; a prior user or independent invention defense, since we shouldn’t make people buy rights for things they’ve already invented, or at least change the rules for willfulness when people look at patents; and change remedies to limit the holdup problem – ban injunctions and make royalties reasonable in line with the actual technical contribution of the patent. Only in those circumstances should you make people enter into search and negotiations before they developed new products.
My Q: This sounds like the trademark system, except for the prior user part and the remedies.
Lemley: Yes, it sounds similar, but the market for patents he’s interested in imagining would be fundamentally different – he doesn’t want a market for licensing trademarks because that would cause consumer confusion. (Though Lemley doesn’t believe in licensing rights for TMs generally, at least not for communicative/secondary products.)
Q: What about penalties for wrongly putting a patent in the Orange Book?
A: We might see fewer evergreening problems.
Q: Are there industries in the middle ground between IT and pharma?
A: We need more research! Biotech may be different from classic chemicals, though his guess is that it’s close because of the FDA regulatory background.
Q: Would more third-party involvement help?
A: Interpleader might be helpful – if we could bring all the patent owners together, that might help solve problems and make clear that a single inventor’s claim for “just 1%” of royalties would quickly make a product like a cellphone noneconomic. The difficulty would be patent applications in the pipeline.
Q: When you sit down to create something artistic, you ignore copyright because you assume you’re making an independent creation (wow, this questioner’s experience of creation is very different from mine), so copyright is a good comparison for ignoring patents. In a world with a de facto independent invention defense, do we get all the results you want? Can you have a property right with injunctive remedies and still do well for efficiency?
A: He’s not necessarily advocating independent invention as a defense. Rather, if you wanted to move to a market model, this would be one of the requirements. Copying is difficult to prove or disprove. With copyright, we can usually distinguish between people who copied, though they say they didn’t, and people who didn’t copy. That’s much harder when it comes to a DNA sequence or other more basic concept, like a cheese slicer with a wire that works with a slicer. (I’m not convinced by Lemley’s distinction – the rule works pretty badly in music copyright, especially given that copyright recognizes “unconscious copying” as sufficient.)
Q: What about the potential that people are both plaintiffs and defendants?
A: True for the big guys, who don’t sue each other – enter into cross-licensing or just leave each other alone on a mutually assured destruction theory. Non-practicing entities (e.g., patent trolls) have nothing to lose from Intel’s 10,000 patents. They account for a substantial number of the cases that are actually filed.
Q: Would liability rules mean people would still ignore patents?
A: It’s a system design question. We could still create incentives for people to do deals outside the legal system instead of inside. But perhaps patent challenges are undersupplied – a property system could heighten this problem. If we really had a market system, he’d want a search obligation and an obligation of entering into good-faith negotiations. If you don’t do that, you should pay penalties, but if you do, you should be able to take your chances if you conclude that the patent is invalid or the price too high and not be penalized.
Q: Are patents for outsiders worth it?
A: Intel and others might tell you that they’d be happy with unilateral patent disarmament. But patents might still encourage innovation by people who can’t get into the market, e.g., for chip design. The problem now is that the legitimate small-inventor patent gets lumped in with the general “ignore patents” trend. Also, major companies get a return from innovation because their patent portfolios entitle them to participate in industry oligopolies – though that might not be necessary.
Q: This is a caricature of property law. Every issue beyond 7-8 core cases involves substantial indeterminacy within property law. Everything from adverse possession to easements to equitable servitudes – you don’t know what the answer is until the judge rules. When you step outside the commercial context, indivdual landowners are less likely to review all necessary rights – banks give conditional loans even when people discover easements on their lands. Trespass may be determinate, but not the rest of the property law.
A: Agrees that there is indeterminacy; this is why we can spend a year teaching property. But there is not the same level of indeterminacy in the average real property case. It’s not the case that 46% of real property deeds are invalidated. It’s not the case that people always fight over the boundaries of real property, as they do in every case after Markman. Add to that the hundreds to thousands of potential claimants in patent, which is unusual in real property. It’s true that individuals don’t read their title insurance or loan documents. But the banks generally do, and that’s why there’s title insurance.
2.5 million patents have issued in the last 20 years, over 1/3 of the total number issued in US history. Many are in the information industries. And these are component industries: to make and sell things, you have to put together a bunch of components. The patents generate royalty stacking and holdup concerns, not just in theory but in practice. Microsoft owes 1.2 billion for one invention used in Windows, $500 million for another. Then add in willful infringement and treble damages, as well as the outrageous cost of patent litigation -- $4.5 million to pay your lawyers, win or lose.
And yet – the anticommons hasn’t disabled any of these industries. People are running their businesses notwithstanding the patent shadow.
Why? Because people ignore patents all the time, especially in component industries. This may not be true in the pharmaceutical industry, but he’ll talk about that in a bit.
Scientists, engineers, software writers don’t read patents to gather information. Even if they thought it was a good idea, the business and legal types are telling engineers: whatever you do, don’t read patents. Don’t put us on notice.
Similarly, companies don’t engage in prior art searches before filing for patents or before making products. Not surprisingly, once that happens, they get threat letters. The received wisdom in Silicon Valley is that you always ignore the first threat letter you get. Sometimes they go away. Only if they’re serious do you start evaluating.
When you’re sued for patent infringement, you never stop making the product pending the outcome of the litigation. You always roll the dice, even if you’re also trying to design around the patent just in case. The Blackberry is an example of this, settling for $613 million rather than implementing a workaround.
What if we took seriously the idea that patents are just like real property? Nobody would build a house without being sure they owned the land. If it were a shopping mall and needed to aggregate land to create it, you wouldn’t start building in the hopes that you wouldn’t get sued or the plaintiff would turn out to have a defect in title. Even if you did, no one would loan you the money to do so. In real property, we’ve got to be sure, at least to a high degree of certainty.
Analogously, Intel couldn’t design a new chip until it had cleared all the possible rights. You’d need patent title insurers who’d spring up to clear the rights. In the university setting, scientists would investigate patents before starting research.
Lemley thinks this would be a disaster. The benefits: patent owners would get paid more. The subset of patent owners in competition with accused infringers, and who want to use patents to exclude competitors, would benefit tremendously. Filing a lawsuit would deter people from entering the market.
Research and product sales would be delayed by years, even decades, in every industry. Cost would be the least of the problems – patent applications may be sought, or may have claims that differ when they’re issued. And because of continuations, you can’t identify all the claims until 20 years after the filing date. Even once you’ve identified a patent owner, you don’t know what the patent covers. 46% of patents litigated to judgment are ultimately held invalid. Given the 40% reversal rate on Markman hearings, you don’t know what a patent means until after Federal Circuit review. And there are many, many patents out there. Third-generation wireless – one bit of your cellphone – is covered by nearly 7000 “essential” (self-identified) patents.
This is more than a problem of layering. If I must buy and aggregate rights from a bunch of people, we can’t expect those individuals will set an efficient systemwide price. If one voluntarily reduces price, others will charge more and they’ll be the suckers. This creates a real risk of bargaining breakdown. The real property rule presupposes the absence of bargaining breakdown.
Systemic problems: consumers would lose the benefits of competition, in situations where the patent would be held invalid or not infringed. And patentees only win 25% of their litigated cases – 75% of the time you’re sued, you’re right to refuse to pay. And that helps consumers get the benefit of the product during the period when the patent’s validity and scope are uncertain. Competitors and innovators generally would lose the benefits of going ahead without waiting for approval from patent owners. Design-around efforts would wither. If competition is a better spur to innovation than monopoly, then we’d lose out in innovation as well.
In the pharmaceutical industry, we have a world in which patent owners all neatly list their patents in one place, the Orange Book. The FDA and Hatch-Waxman rules restrict generic entry when there is an Orange Book entry. If you certify that you don’t infringe or the patent is invalid, the patent owner can sue you and get an automatic 30-month injunction. Even after those expire, as they’ve started to do, generic companies are mostly afraid to enter at risk. They act like real property owners.
Does this system work? Pharma is different – Lemley thinks we need stronger patent rights because of the cost and delay of the regulatory environment needed to guarantee safe and efficient drugs. So the benefits are a lot stronger in pharma. Correspondingly, the cumulative innovation that drives software and semiconductors is a lot less important. Discovering a new blockbuster is correspondingly more valuable than improving on the dosage system of that blockbuster. Moreover, there are fewer patents – by orders of magnitude – in the industry, and the claims are a lot clearer. Chemical patents don’t have huge Markman problems the way other patents do, for example when they specify the high-level functional characteristics of a computer program.
Nonetheless, there are problems even in pharma: Evergreening – listing as many patents as possible on the Orange Book, even if they’re obviously bogus or unrelated to the underlying drug. Product-hopping to game the FDA approval system – changing products just as a generic is about to enter the market. Exclusion payments: paying generic competitors to stay out. The result is surprisingly little generic entry while patents are in force and even a number of years after the original patent expires.
Second what-if: What if we wanted to create a robust market for patent license, which wasn’t the current “ignore patents” world but also wasn’t the sclerotic world of land rights? That would require really radical changes to solve the problem of uncertainty early on in the development process. Requirements: much better review of applications, which would have costs of its own; early publication, possibly on the date of application; ban continuations; allow post-grant oppositions; other mechanisms for collecting information before a lawsuit began; a prior user or independent invention defense, since we shouldn’t make people buy rights for things they’ve already invented, or at least change the rules for willfulness when people look at patents; and change remedies to limit the holdup problem – ban injunctions and make royalties reasonable in line with the actual technical contribution of the patent. Only in those circumstances should you make people enter into search and negotiations before they developed new products.
My Q: This sounds like the trademark system, except for the prior user part and the remedies.
Lemley: Yes, it sounds similar, but the market for patents he’s interested in imagining would be fundamentally different – he doesn’t want a market for licensing trademarks because that would cause consumer confusion. (Though Lemley doesn’t believe in licensing rights for TMs generally, at least not for communicative/secondary products.)
Q: What about penalties for wrongly putting a patent in the Orange Book?
A: We might see fewer evergreening problems.
Q: Are there industries in the middle ground between IT and pharma?
A: We need more research! Biotech may be different from classic chemicals, though his guess is that it’s close because of the FDA regulatory background.
Q: Would more third-party involvement help?
A: Interpleader might be helpful – if we could bring all the patent owners together, that might help solve problems and make clear that a single inventor’s claim for “just 1%” of royalties would quickly make a product like a cellphone noneconomic. The difficulty would be patent applications in the pipeline.
Q: When you sit down to create something artistic, you ignore copyright because you assume you’re making an independent creation (wow, this questioner’s experience of creation is very different from mine), so copyright is a good comparison for ignoring patents. In a world with a de facto independent invention defense, do we get all the results you want? Can you have a property right with injunctive remedies and still do well for efficiency?
A: He’s not necessarily advocating independent invention as a defense. Rather, if you wanted to move to a market model, this would be one of the requirements. Copying is difficult to prove or disprove. With copyright, we can usually distinguish between people who copied, though they say they didn’t, and people who didn’t copy. That’s much harder when it comes to a DNA sequence or other more basic concept, like a cheese slicer with a wire that works with a slicer. (I’m not convinced by Lemley’s distinction – the rule works pretty badly in music copyright, especially given that copyright recognizes “unconscious copying” as sufficient.)
Q: What about the potential that people are both plaintiffs and defendants?
A: True for the big guys, who don’t sue each other – enter into cross-licensing or just leave each other alone on a mutually assured destruction theory. Non-practicing entities (e.g., patent trolls) have nothing to lose from Intel’s 10,000 patents. They account for a substantial number of the cases that are actually filed.
Q: Would liability rules mean people would still ignore patents?
A: It’s a system design question. We could still create incentives for people to do deals outside the legal system instead of inside. But perhaps patent challenges are undersupplied – a property system could heighten this problem. If we really had a market system, he’d want a search obligation and an obligation of entering into good-faith negotiations. If you don’t do that, you should pay penalties, but if you do, you should be able to take your chances if you conclude that the patent is invalid or the price too high and not be penalized.
Q: Are patents for outsiders worth it?
A: Intel and others might tell you that they’d be happy with unilateral patent disarmament. But patents might still encourage innovation by people who can’t get into the market, e.g., for chip design. The problem now is that the legitimate small-inventor patent gets lumped in with the general “ignore patents” trend. Also, major companies get a return from innovation because their patent portfolios entitle them to participate in industry oligopolies – though that might not be necessary.
Q: This is a caricature of property law. Every issue beyond 7-8 core cases involves substantial indeterminacy within property law. Everything from adverse possession to easements to equitable servitudes – you don’t know what the answer is until the judge rules. When you step outside the commercial context, indivdual landowners are less likely to review all necessary rights – banks give conditional loans even when people discover easements on their lands. Trespass may be determinate, but not the rest of the property law.
A: Agrees that there is indeterminacy; this is why we can spend a year teaching property. But there is not the same level of indeterminacy in the average real property case. It’s not the case that 46% of real property deeds are invalidated. It’s not the case that people always fight over the boundaries of real property, as they do in every case after Markman. Add to that the hundreds to thousands of potential claimants in patent, which is unusual in real property. It’s true that individuals don’t read their title insurance or loan documents. But the banks generally do, and that’s why there’s title insurance.
Subscribe to:
Posts (Atom)
Posts
