Tuesday, December 09, 2014
The New Cognitive Property & Human Capital Law
Intellectual property is all about the bargain, no absolutes. But below the radar, a patchwork of law and contract is operating to expand the types of knowledge and information that become propertized. My new article, The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property, forthcoming Texas Law Review 2015 is now up on ssrn. Here is the abstract and as always, I would love to get your thoughts and comments:
Contemporary law has become grounded in the conviction that not only the outputs of innovation – artistic expressions, scientific methods, and technological advances – but also the inputs of innovation – skills, experience, know-how, professional relationships, creativity and entrepreneurial energies – are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property but also cognitive property. The new cognitive property has emerged under the radar, commodifying intellectual intangibles which have traditionally been kept outside of the scope of intellectual property law. Regulatory and contractual controls on human capital – post-employment restrictions including non-competition contracts, non-solicitation, non-poaching, and anti-dealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as non-patentable and non-copyrightable ideas; and non-disclosure agreements, expansion of trade secret laws, and economic espionage prosecution against former insiders – are among the fastest growing frontiers of market battles. This article introduces the growing field of human capital law, at the intersections of IP, contract and employment law, and antitrust law, and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.
Posted by Orly Lobel on December 9, 2014 at 10:45 AM in Article Spotlight, Employment and Labor Law, Information and Technology, Intellectual Property, Orly Lobel, Property, Workplace Law | Permalink | Comments (0)
Tuesday, October 14, 2014
Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.
Posted by Marcia L. McCormick on October 14, 2014 at 11:00 AM in Civil Procedure, Corporate, Criminal Law, Employment and Labor Law, First Amendment, Gender, Immigration, Information and Technology, Intellectual Property, International Law, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Property, Religion, Tax, Teaching Law, Torts, Travel, Workplace Law | Permalink | Comments (0)
Tuesday, September 23, 2014
The Washington Redskins, the Lanham Act, and Article III
As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.
I. The Lanham Act's Cause of Action for "Adverse" Parties
In their Complaint in Pro-Football, Inc. v. Blackhorse, the Redskins explained that they were seeking:
an Order of this Court: (1) reversing the TTAB Order scheduling the cancellation ofthe Redskins Marks; (2) declaring that the word "Redskins" or derivations thereof contained in the Redskins Marks, as identifiers ofthe Washington, D.C. professional football team, do not consist of or comprise matter that may disparage Native Americans; (3) declaring that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a),is unconstitutional, both on its face and as applied to Pro-Football by the TTAB, under the First Amendment of the U.S. Constitution, and is void for vagueness; (4) declaring that the TTAB Order violates Pro-Football's rights under the Fifth Amendment of the U.S. Constitution; and (5) declaring that Defendants' petition for cancellation in the TTAB challenging the Redskins Marks under Section 2(a) was barred at the time it was brought by the doctrine of laches.
But whereas the Redskins' Complaint routinely describes their lawsuit as an "appeal" of the decision by the TTAB (where it wouldn't be that weird to have the complaining party before the TTAB--the Blackhorse defendants--as the putative appellees), the Lanham Act actually authorizes something else altogether--a standalone, new civil action against an "adverse party" so long as that party was "the party in interest as shown by the records of the United States Patent and Trademark Office at the time of the decision complained of." The problem with application of that provision here, as the motion to dismiss quite persuasively explains, is that it's not at all clear how the defendants here are "the party in interest," at least in light of the specific nature of the Redskins' challenge:
Ordinarily, the adverse parties in an opposition or cancellation proceeding before the TTAB are two businesses claiming rights to the same or similar trademarks. Thus, when a party dissatisfied with a decision of the TTAB brings actions under 15 U.S.C. § 1071(b)(4), it is usually involved in a dispute with a business that uses a similar trademark, with the parties often joining claims for trademark infringement, unfair competition and other causes of action.
Here in contrast, there's no such relationship, and "PFI does not allege any wrongdoing on the part of the Blackhorse Defendants. PFI does not allege that they breached a contract, committed a tort, or violated any law. Instead, PFI’s allegations are directed solely against the USPTO and PFI seeks relief only against the USPTO." In effect, the Redskins' claim is that the TTAB wrongly cancelled their trademarks--which, for better or worse, has rather little to do at this point with the complainants who initiated the cancellation proceedings in the first place. Thus, it certainly appears as if 15 U.S.C. § 1071(b)(4) does not in fact provide the Redskins with a cause of action against the Blackhorse defendants--and that the suit should be dismissed for failure to state a claim upon which relief can be granted.
II. The Case-or-Controversy Requirement
But imagine, for a moment, that the Lanham Act does so provide--and that § 1071(b)(4) actually authorizes this suit. The motion to dismiss argues that, so construed, the Lanham Act would violate Article III's case-or-controversy requirement, and that seems right to me--albeit for slightly different reasons than those offered by the Blackhorse defendants.
The motion argues that "The Blackhorse Defendants’ legal and economic interests are not affected by the registration cancellations and they will not be affected by this litigation." But I think the case-or-controversy defect here goes to the Redskins' Article III standing. After all, it's black-letter law that a plaintiff must allege (1) a personal injury [“injury in fact”]; (2) that is fairly traceable to the defendant’s allegedly wrongful conduct [“causation”]; and (3) that is likely to be redressed by the requested relief [“redressability”]. Although the Redskins were clearly injured, it's not at all clear to me how the Redskins satisfy either the causation or redressability prongs.
On causation, as should be clear from the above recitation of the Redskins' claims, none of them even as alleged in the Complaint run against the Blackhorse defendants--who were the complaining parties before the TTAB. After all, even though they initiated the proceeding that produced the TTAB order the Redskins seek to challenge, they did not themselves issue that order, nor are they a competing business somehow reaping financial or noneconomic advantage from the deregistration of the Redskins' trademark.
As for redressability, neither the TTAB nor the Director of the U.S. Patent & Trademark Office are parties to the Redskins' suit, and so it is impossible to see how the relief the Redskins are seeking could be provided by the Blackhorse defendants. Again, one can imagine a different set of facts where the adverse party before the TTAB could have both (1) caused the plaintiff's injuries; and (2) be in a position to redress them, but I just don't see how either is true, here. It's certainly odd to think that the defect in this suit goes to the Redskins' standing--after all, if nothing else is clear, the Redskins are certainly injured by the TTAB's cancellation decision. But standing isn't just about the plaintiff being injured by a party nominally connected to the injury...
III. The Equities
Finally, although the motion to dismiss doesn't make this point, there's an equitable point here that I think deserves mention. Whatever the merits of the TTAB's underlying ruling, I have to think that the Lanham Act was not designed to disincentive individuals like the Blackhorse defendants from bringing non-frivolous claims seeking the cancellation of registered trademarks on the ground that they are disparaging. But if the Redskins are right, here, then any party that pursues such a proceeding before the TTAB is necessarily opening itself up to the (rather substantial) costs of a new federal civil action if it prevails, even when the subject-matter of the suit is simply an effort to relitigate the TTAB's underlying cancellation decision. (All the more so because the standard of review in the new lawsuit is de novo, with full discovery.)
Such a result strikes me not only as unwise, but as not possibly being what Congress could have intended when it enacted § 1071(b)(4). Indeed, in many ways, the Redskins' claims sure seem analogous to a SLAPP suit--all the more so when you consider that the Redskins could have, but did not, directly appeal the TTAB ruling to the Federal Circuit.
Posted by Steve Vladeck on September 23, 2014 at 08:47 PM in Civil Procedure, Constitutional thoughts, Corporate, Culture, Current Affairs, Intellectual Property, Steve Vladeck | Permalink | Comments (2)
Friday, September 12, 2014
Intellectual Property Infringement as Vandalism (Part 2)
We first explore in the paper why the theft label for IP infringement has become so sticky in many milieus. We believe that the main reason that content owners and their associates use the rhetoric of theft is that they want to emphasize the gravity of the conduct. The average downloader might tell herself that it makes little to no difference in the grand scheme of things if she illegally downloads music or movies, or if she shares such materials with friends and even a few strangers. Basically everybody, however, understands the concept of theft and has been raised to understand, often axiomatically, that stealing is wrong.
If one were to ask content owners and other proponents of the “IP infringement as theft” theory to explain their views in greater detail, they would cite to a number of factors that create parallels between the two types of violations. The IP owner, just like the property owner, generally mixes her labor with pre-existing materials to provide society with goods and help it to flourish. She will sometimes only do so, however, if provided with a critical mass of remuneration, or at least that remuneration will affect her level of productivity and of her efforts to distribute her work. To the intellectual property owner, large-scale illegitimate distribution of her works may economically create the same effect as a horde of potato thieves does for a farmer. In the farmer’s case, there will be nothing left to buy if all the potatoes are gone. In the infringer’s, even though the song will still “be” there at the end, few people may want to buy it if they can obtain it at zero cost elsewhere.
Looking at it from the other end, the potato thief ends up with a good for which he provided no labor or other valuable effort in exchange. Thieves, by definition, free-ride on others’ efforts (although not all free-riding constitutes theft). Similarly, the IP infringer is just a few clicks away from illicit goods that he can obtain without in turn contributing to society. Had the infringer not downloaded illegally, for example, one of two things would have happened. For one, he may have bought the good legally and the owner would have made more money. Or, he may not have bought the good at all and while the intellectual property owner would have felt no financial difference, the infringer would not have been free-riding and would not have had the opportunity to distribute that good to people that would have purchased the good legally but for this opportunity. There is a further possible loss that arises from the fact that intellectual property can—contrary to popular wisdom—be rivalrous at times. In the case of trademarks, the fact that lots of people use fake Louis Vuitton bags could disincentivize legitimate buyers from buying that brand if they value exclusivity or fear being viewed as potential infringers themselves, as I discussed in my article Hedonic Trademarks, 74 Ohio State Law Journal 241 (2013). In the copyright world, some legitimate buyers of concert tickets may no longer be willing to pay the same amounts of money for what should have been an exclusive show if they know that illegal tapings of that show will circulate later. The more rivalrous intellectual property turns out to be in a given case, the more it resembles property and the more its infringement parallels theft.
There has been strong opposition, however, to the idea that the harm to an intellectual property owner that originates in infringement can be equated to the plight of the potato farmer in the example used above. For one, critics have suggested that the intellectual property owner retains the original work at all times even if it is infringed, whereas theft deprives an owner of a good, including the ability to enjoy it himself or sell it to someone else. Second, it is virtually impossible to remove all value from a good even through a large-scale infringement operation, which again distinguishes this scenario from theft. Third, the individual culpability of a given infringer tends to be much smaller than the culpability of a thief. Even if an infringer would have bought an artist’s work, she would have perhaps paid a few dollars in most cases given the high proportion of infringement that consists of illegal file sharing, and so a few dollars is the most that the artist is likely to lose. While many infringers together can occasion a large loss to a copyright owner, the infringers each tend to only chip away at the value of the work. Put differently, few infringers can truly be called the “cause” of a loss in this context, which is not true of thieves.
Some have argued that from a safety perspective, intellectual property infringement also simply tends to involve a much lower risk to the public than theft does because the latter could lead to physical altercations and the like. From a moral (and practical) viewpoint, a number of scholars have questioned what it means to say that what has become routine behavior for many is genuinely reprehensible. Scholars have argued that current intellectual property law makes infringers out of everyone, even people that do not engage in blatant behaviors like illegal downloading. Tying that in with theft and with the fact that the thief is generally viewed as an outcast of society who disrespects its rules, the concept of vast proportions of the population as thieves is puzzling. In the next part of this post, I will delve more deeply into why vandalism and trespass may provide better analogies for IP infringement than theft does.
Friday, September 05, 2014
Intellectual Property Infringement as Vandalism (Part 1)
In addition to empirical work in intellectual property, another area that has been keeping me occupied is the intersection between IP and criminal law. A few years ago, I wrote an article entitled The Puzzle of Criminal Sanctions for Intellectual Property Infringement, 24 Harvard Journal of Law and Technology 469 (2011), in which I explored why we have criminal sanctions for copyright and trademark infringement but not for patent violations. Earlier this year, I published a paper called The High Cost of Low Sanctions, 66 Florida Law Review 157 (2014), that examined how low sanctions can lead undesirable laws to be passed and can eventually morph into high sanctions, an analysis whose focus was partly on copyright law. I then moved on to study, in an article called Intellectual Property and the Presumption of Innocence that is forthcoming in the William & Mary Law Review next year, the constitutional dimension of intellectual property criminal cases. I argued that prosecutors should have to prove that every element of such crimes, including the jurisdictional element, has been met beyond a reasonable doubt before convictions can occur. Most recently, I turned my attention to the relationship between the criminal (and civil) sanctions in intellectual property and those that we observe in property. This project, co-authored with Robert E. Wagner, is entitled Intellectual Property Infringement as Vandalism, and I would like to take the opportunity to describe it further here.
One of the recurring questions in scholarship is whether intellectual property qualifies as property and, as a correlative matter, whether IP infringement is theft. Content owners significantly push this analogy, including in heavy-handed ads that seek to remind people not to “steal” songs or movies. Meanwhile, critics have chipped away at the theft label. They have argued that when an object is stolen, the owner is entirely deprived of it, whereas IP owners maintain integral copies of their works when infringement takes place. Unlike in the case of theft, the intellectual property owner can also continue to sell copies of said work to willing buyers, if the market will bear it. Furthermore, to the extent the owner suffers a loss at the hands of the IP infringer, that loss is difficult to calculate. Not every infringer would have bought the work had he lacked the opportunity to infringe. At the same time, nobody can say with certainty about herself—even assuming perfect honesty—which works she would have bought in a zero-infringement world because the impulse to rationalize one’s actions in this setting is strong.
The sphere that discusses intellectual property infringement is thus mostly split between two camps. One of them believes that infringement is theft and concludes that if it is theft, the criminal sanctions and harsh civil sanctions that we have on the books are warranted. The other side denies that infringement is theft, sometimes downplays the gravity of infringement behavior, and regularly believes that the level of sanctions that American law provides is unjustified. We argue in our paper that the dichotomy that these two camps endorse is faulty, and that the question of whether intellectual property infringement parallels violations of property law requires much more nuanced analysis before it can influence the calibration of sanctions for intellectual property infringement. We seek to show that there is little meaningful difference between intellectual property infringement and property violations, but that the question of whether infringement is theft has led to the creation of an unnecessarily confusing and polarized discussion framework. While many scholars are correct to state that intellectual property infringement is not and cannot be literally the same as theft for the reasons briefly delineated above, such infringement bears significant similarities to and few distinctions from lesser property-related offenses such as vandalism or in some cases trespass.
If one accepts the idea that IP infringement does at times parallel property violations, albeit not necessarily theft per se, the startling realization emerges that IP laws actually may punish wrongdoers more harshly than property law punishes defendants for equivalent offenses. After creating an analytical model to determine the content of “equivalence” in this context, we demonstrate that adopting a truly property-oriented IP legal regime may actually mandate a view of lowered criminal and civil sanctions. I will explore the ideas from this paper in more detail in future posts.
Thursday, September 04, 2014
Using GoFundMe for Litigation
Here is a creative way this local news anchor is trying to raise public awareness and money for defending his case against a non-compete he had signed with his former employer. Watch him and his litigation team explain their woes.
Friday, August 29, 2014
Substantial Similarity and Music
From Guest Irina Manta.
For those interested in more scholarship on the topic of substantial similarity in copyright law, Carys J. Craig and Guillaume Laroche (York University-Osgoode Hall Law School) recently posted a piece entitled Out of Tune: Why Copyright Law Needs Music Lessons. Here is the abstract:
This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the authors illustrate how and why this test may fail to perform its necessary role in the infringement analysis. The authors conclude by identifying some ways in which the legal analysis could be improved, including a more extensive use of both expert and survey evidence, and greater consideration of the accepted norms and practices of the relevant creative community. The overarching aim of this chapter is to demonstrate the importance of bringing the insights from musical and other creative disciplines to bear on the law of copyright, so that it might more accurately reflect the very practices it is meant to encourage.
Rebecca Tushnet has posted some of the key excerpts here. The authors give an interesting overview of the special problems entailed in similarity determinations for musical works and show that Canadian law largely suffers from the same problems as U.S. law in that area. They are also open to the possibility of introducing surveys in copyright litigation (similar to the ones we use in trademarks cases), as I suggested in previous work.
Monday, August 25, 2014
Judging Similarity (Part 3)
This post is by guest Irina Manta
Now that I have discussed the background and methodology of the studies in “Judging Similarity”, it is time to turn to a fuller discussion of the implications of our results for the third and last part of this post.
We had three key findings:
1) Knowledge of copying significantly raises the similarity rating.
2) Knowledge that a high level of labor went into creating the original work significantly raises the similarity rating.
3) Knowledge that market substitution occurred does not appear to significantly raise the similarity rating.
As discussed in Part 2, we have reason to believe that the first finding is the result of confirmation bias. This finding is troubling in that it suggests that, at the most basic level, decision-makers may be unable to separate the two prongs of the substantial similarity test and that the copying prong (to borrow rhetoric from Barton Beebe’s work on the trademark multi-factor test) is “stampeding” the similarity prong.Unlike in a trial setting, where the facts in copyright cases greatly differ from one situation to another, our first study enabled us to isolate the copying element. Nothing changed between the two conditions aside from the statement that the creator of the junior work copied from the original. Given our research design and the fact that we purposefully picked work pairings that are the type likely to go to court, there is reason to believe that the powerful effect of the knowledge of copying may sway decisions on infringement at the margin.
The second finding raises its own problems. We believe that knowledge of a high versus low expenditure of labor played a role in two possible ways. First, it might have triggered the intuition that the greater expenditure of labor ought to correlate to a stronger property right or ownership interest. Generally associated with Lockean ideals, this intuition is thought to map onto people’s beliefs about owning the products and fruits of their labor-intensive activities. The association with “stronger protection” for the work may have translated into a looser standard for similarity. Second, the expenditure of labor may not have triggered subjects’ beliefs about the strength of the property right, but instead directly affected their intuitions about the wrongfulness of the copying. Copying is commonly perceived as a form of free riding and is often associated with plagiarism or cheating. It is therefore conceivable that the creator’s expenditure of labor led subjects to view the copying involved as entailing greater (and more morally outrageous) free riding, which they treated as wrongful.
If our interpretation of subjects’ reasoning is correct, it suggests that copyright law and policy have done a poor job of cabining labor-based considerations. In its now notorious decision in Feist Publications, Inc. v. Rural Telephone Services Co., 499 U.S. 340 (1991), the Supreme Court categorically concluded that “sweat of the brow” considerations—i.e., that copyright should be used as a reward for hard work—are largely irrelevant to copyright law, especially in determining whether and how much protection works obtain. While this may be true as a formal matter, our study shows that decision-makers have a tendency to re-introduce these labor-based considerations during their assessments of similarity as part of the copyright infringement analysis. Interestingly, while scholars usually try to adjust copyright law based on utilitarian considerations, subjects were swayed in their similarity ratings at a statistically significant level by labor considerations (finding 2) but not by market substitution ones (finding 3).
Our study suggests that instead of claiming to have labor-based considerations play no part whatsoever in its working, copyright law should do one of two things. First, it could make a more concerted effort to eliminate labor-based considerations from the different elements of the analysis. Alternatively, it could embrace the reality that moral intuitions relating to labor and free riding directly influence the assessment of similarity, which in turn serves as a simple proxy for wrongfulness. I have written previously about how we might work toward the first goal, but much research remains to be done in this area.
Thursday, August 21, 2014
Judging Similarity (Part 2)
This post is by August/September GuestPrawf Irina Manta.
In my first post on this subject, I wrote about the background that motivated us to conduct our studies on copyright infringement for our paper “Judging Similarity”. Today, I would like to discuss our methodology and results in more depth.
In the first study, we tested the hypothesis that images seem more similar simply by virtue of being copies. We used an online format and recruited subjects on Amazon Turk. Subjects were told that they would be shown image pairs and would be asked to rate their similarity on a numerical scale. We specified that subjects had to base their answers entirely on a comparison of the works themselves. We also told subjects that while there would be both similarities and dissimilarities, they had to judge the works as a whole. Further, we told them to assume each time that the work shown on the left was created before the work shown on the right. Subjects were randomly assigned to either the independent group or the copy group. The former group was told that the creator of the work on the right did not know about the work on the left during the process of creation. The latter group received the instruction that the creator of the work on the right copied from the work on the left during the process of creation. Subjects then proceeded to view image pairs such as this one.
We conducted statistical analyses and found that the individuals who were told that copying occurred rated works as significantly more similar to one another than did individuals who believed that the creation process had been independent.
The results of the first study can mainly be explained in one of two ways. First, confirmation bias may lead individuals to find similarities more easily when told that a work was copied. Alternatively, motivated reasoning may influence people to punish copiers as part of the similarity analysis because they find copying morally distasteful. The first explanation struck us as more plausible in this case because subjects were not told about the consequences of the similarity judgment.
We then conducted a second study that would provide more legal context for the similarity judgment. Our goal was to test two hypotheses about how moral intuitions about unfairness of copying might affect judgments of similarity. We tested the effect of information about high versus low effort invested by the original creator. We separately tested the effect of information about negative versus no change in market demand for the original since the copy became available. This study used a single image pair in hopes of eliciting a clean response and approximating the conditions that a jury or judge would encounter in a trial. We changed our instructions to include explanations of copyright infringement and of the types of consequences that could result from a finding of liability. We also briefly explained “substantial similarity” and how it had to be present for a claim to succeed. The rest of our instructions resembled those from the first study, and subjects were told to rate similarity on a numerical scale comparing only the works themselves and viewing them as a whole. We told subjects across conditions that the work on the left is the original and the one on the right is the copy. We used this image pair.
We used four conditions. In our “high labor” condition, we told subjects that the creator of the original spent about two months designing and setting up the shot on the left. In the “low labor” condition, we said that this process had taken ten minutes. In the “market effect” condition, we told subjects that since the copy has become available, it has had a strong negative effect on the demand for prints and licenses of the original and that sales of the original decreased by over 60% since the copy came on the market. In the “no market effect” condition, we told subjects that the arrival on the market of the copy had no effect on sales of the original.
When we compared the two labor conditions, we found a significantly higher similarity rating for the group that believed that the original work had taken a high level of labor to create. When we analyzed the two market substitution conditions, however, we found no statistically significant difference between the groups. In part 3 of my post, I will discuss the implications of our findings.
Monday, August 18, 2014
Judging Similarity (Part 1)
This post is by GuestPrawf Irina Manta.
I thought I would kick things off by talking a bit about the empirical intellectual property work in which I have been and continue to be engaged. Empirical work in this subject matter has been increasing in popularity in recent years after some pioneers like Barton Beebe and other scholars led the way. The relationship between social science and IP issues has fascinated me for years, so it is a much welcome trend in my eyes. Most recently, I collaborated on my own first project in that area with co-authors Shyam Balganesh and Tess Wilkinson-Ryan. The paper that resulted, Judging Similarity, will appear in the Iowa Law Review later this year, and I would like to offer a sneak peek here into some of the issues we examined.
The test for copyright infringement asks in part that fact-finders determine whether the original work and the allegedly infringing work are “substantially similar” to one another. Put differently, fact-finders—usually jurors—have to decide whether a “reasonable observer” would believe that the similarities between two works were of such a high degree as to involve wrongful appropriation. Further, fact-finders have to establish that actual copying took place, and similarity often plays a role to meet that prong as well when there is no admission of copying. While different circuits each have their own version of the copyright infringement test, they all require a showing of substantial similarity in some form or another. I expressed the concern in my earlier article “Reasonable Copyright”, 53 Boston College Law Review 1303 (2012), that the seemingly simple matter of determining similarity may create an inquiry that is particularly open to numerous cognitive biases. These biases, I argued, would distort the judicial process in a way that would likely generally benefit plaintiffs. My empirical work with Shyam and Tess allowed me to test some of these earlier intuitions I generated.
The first issue in the context of substantial similarity is that by the time the question of similarity reaches a jury, its members have already heard a great deal of evidence about the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and, on occasion, the market effects of the defendant’s copying. Although the similarity finding is meant to involve no more than a comparison of the two works to assess whether they are sufficiently similar to render the copying problematic (i.e., improper), that judgment may be affected by the availability of this other evidence. The fact-finder is required to answer the question of substantial similarity through a mere comparison of the two works, which will often involve actively ignoring instinctively relevant and highly salient information. Copyright law thus seems to assume that the inquiry into substantial similarity can serve as a simple comparison of the two works, even in the face of extensive factual evidence that bears directly on the dispute in question. The fact-finder is presumed to be able to cabin and exclude from the analysis all of the evidence with which the court has been presented in the lead-up to the issue of substantial similarity.
We know from other contexts that it is very difficult to ignore salient information when performing difficult cognitive tasks. In the judicial world, for instance, many have attacked the instructions to ignore inadmissible evidence as often not only failing to alleviate the problem but in fact aggravating it by actually making the information more salient. The similarity determination may have traditionally lulled people into a false sense of confidence by creating the impression that it involves a purely perceptual task that does not contain complex moral judgments. We posited, however, that similarities would appear as more similar and dissimilarities as less obvious when the judgment was embedded in a narrative that identified an actor who intentionally engaged in copying.
As I will describe in more detail in my next post, we conducted two different studies that asked subjects to rate the level of similarity between pairs of images. We varied the instructions and extraneous information with which we provided subjects so that we could determine which factors, if any, influence what the legal system would like to see involve an entirely perceptual task. We were able to show through these studies that knowledge of copying led subjects to view two works as significantly more similar than otherwise. In addition, the belief that the original work had taken a lot of labor to create also significantly increased the similarity rating. Meanwhile, information that suggested that the junior work partially supplanted the original work in the market, i.e., that market substitution took place, did not affect the similarity rating. I will discuss our methodology and explain our results in part 2 of this post.
Monday, August 11, 2014
Fair Use and News Reporting
The US Court of Appeals for the Ninth Circuit has stated that "[w]aving the news reporting flag is not a get out of jail free card in the copyright arena." In Swatch Group Mgmt. Services v. Bloomberg L.P., __ F.3d __, 2014 WL 2219162 (2014), however, the Second Circuit took a charitable view of such flag waving and interpreted fair use broadly to protect a news organization's dissemination of a highly newsworthy recording. The Second Circuit's broad interpretation of fair use to accommodate news reporting is especially noteworthy in an era in which news organizations are often faced with difficult questions about whether they may legally reproduce "user-generated content."
In Swatch Group Management Services v. Bloomberg, Swatch Group sued for copyright infringement because Bloomberg disseminated a sound recording of a conference call between Swatch and investment analysts to discuss the company's earnings report. Swatch did not admit the press to the conference call, but Bloomberg nonetheless obtained and disseminated a recording of the call to its paid subscribers. A district court granted summary judgment for Bloomberg on fair use grounds, and the Second Circuit affirmed.
First, the court found that “whether one describes Bloomberg’s activities as ‘news reporting,’ ‘data delivery,’ or any other turn of phrase, there can be no doubt that Bloomberg’s purpose in obtaining and disseminating the recording at issue was to make important financial information about Swatch Group available to investors and analysts.” That Bloomberg profited from the dissemination of the recording did not alter the court’s analysis, because almost all news services obtain profits by publishing factual information. The court further observed that the nature of Bloomberg’s use of the recording supported a finding of fair use even though Bloomberg reproduced the original verbatim: “[T]he need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work without alteration.” (emphasis added) This use even could be considered “transformative” because Bloomberg was publishing “factual information to an audience from which Swatch Group’s purpose was to withhold it.” [!]
Analyzing the second fair use factor (i.e., the nature of the copyrighted work), the court found that Bloomberg’s use of the recording did not threaten Swatch’s copyright interests because the information disseminated was entirely factual, and Swatch had already “publicly disseminated the spoken performance embodied in the recording.” Third, the court assessed “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Although Bloomberg used the entire work, the use “was reasonable in light of its purpose of disseminating important financial information to investors and analysts.” Fourth, Bloomberg’s use of the sound recording had no market effect on the value of Swatch’s unpublished recording, and Swatch created the recording for other advantages unrelated to “the possibility of receiving royalties.” Finally, the “balance of factors” favored Bloomberg’s dissemination being treated as a fair use, particularly given the importance of the public interest in financial information.
From a media law scholar's perspective, this decision is praiseworthy because the court clearly recognizes that the public interest should play an important role in fair use analysis. (Compare the Ninth Circuit's decision in Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1183 (2012), in which it said "fair use has bounds even in news reporting, and no per se public interest exception exists."). Instead of getting hung up on technical application of the fair use factors, the court implicitly looked to the broader goals of copyright law and found that the newsworthiness of (and lack of originality in) the recording trumped the fact that Bloomberg had used the whole thing without alteration.
Whether other courts will interpret the fair use factors as broadly when a defendant uses an entire copyrighted work remains to be seen. But in an era when copyright law is being (mis)used in an attempt to force takedowns of photos taken by monkeys, the Second Circuit's decision provides a neeeded dose of common sense.
Wednesday, May 28, 2014
Schemas, Shortcuts, and Software
We are constantly being provided with information -- whether we want it or not -- about what is going on in the world around us. Luckily our brains are equipped to handle the data (at least most of the time). In cognitive science, schemas are structures that help us to organize and interpret this information efficiently. We also use heuristics, or shortcuts, to process information quickly. And for the most part, these are good things. We may have a schema that organizes the data we need to drive safely and when faced with an unexpected obstacle, we have heuristics that help us to avoid that obstacle in time.
(NB - I'm still making sure I'm understanding the cognitive science terminology, etc. - see my earlier post on the subject...the point of this post isn't the precision of the cognitive terms but rather some implications in law.)
This raises at least two concerns for me. First - while it certainly is important to be able to process legal issues quickly, when considering questions about the law and its applications, should we always be focused on efficiency and speed or are there times when getting it right, even when it is slow or inefficient, should take precedence? Second - what happens when the schemas and heuristics we are working under are wrong?
I have an article that's coming out later this year in the George Washington Law Review that looks at the schemas and some of the heuristics that have arisen around the question of whether software and computer-related inventions should be eligible to receive patents. My arguments are basically that there are two schemas that are driving the software patent conversation -- the bad patent schema and the troll schema. In very brief, the schemas go like this: the Patent Office can't properly examine patent applications on software and computer-related inventions so it is issuing many invalid patents in this area -- therefore we should ban software patents. And because a lot of these patents are invalid and because they are easy to obtain, etc., patent trolls assert software patents in disproportionate numbers and trolls are bad -- therefore we should ban software patents.
Basically there is a framework set up underneath the software patent discussion that has very little to do with whether we want good software patents -- in my opinion, a bad schema. This problem is exacerbated by some flawed shortcuts, which I won't go into here.
But I don't want to make this post all about my paper or software patents or patent trolls (regardless of how much I like all three of those things). I'm wondering where, besides this question in patent law, is the conversation being had largely unrelated to the central question. Patent law can't be unique in this area - at least I hope not. Any thoughts of other flawed schemas?? Are there other important areas of law where the conversations are being misdirected by the structure set up to examine the problems?
Research on heuristics and the implications of these on law are much more common. In fact, much work has been done on flawed shortcuts. For example, stereotyping is one prominent heuristic that has been given a lot of ink in scholarly literature - in part because it often strikes us as just plain wrong. I imagine its a lot harder to sell you on a stereotype narrative about patent trolls, isn't it? This brings me back to my troll taxonomy - as long as patent trolls are seen as universally bad, it is unlikely that any argument that the stereotype is flawed will succeed.
Tuesday, May 13, 2014
Troll Taxonomy - Why Does It Matter?
It's a question that always evokes a love/hate relationship for me when I hear it at academic conferences or works-in-progress events...so what? It's painful, but if I can answer it, the paper will always be more valuable. (You think I would have caught on and started answering the "so what" question preemptively...but I'm a bit thick sometimes.)
Anyway, going back to the idea of a troll taxonomy that I mentioned last week...so what?
Why does it matter what kind of patent troll you are? As one commenter noted, if you need to throw the baby out with the bathwater to end the types of litigation abuse that are associated with trolls, then so be it. Is this just a useless exercise in classifying, counting, sorting, and grouping?
Here's why it does matter. We already break out certain types of non-practicing entities -- for example universities. Why? Because we are willing to accept some non-beneficial behavior (patents being held on inventions that are not commercialized by the patent holder) to receive other beneficial behaviors that this particular type of troll -- universities -- are good at (upstream research, medical research, etc.). My argument is that other types of patent trolls might similarly provide beneficial behaviors that outweigh (or at least counteract) the non-beneficial behavior of holding patents without practicing the technology. Without looking more closely at these trolls, it's hard to know what behaviors they engage in. And that's where I step in.
Notice, though, that I'm not pointing to the non-beneficial behavior of vexatious litigation or sketchy cease-and-demand letters, because those behaviors are not how we sort patent trolls now. We look only at whether or not they practice the patented technology - so when we're doing the beneficial/non-beneficial calculus, we should be using the non-beneficial behavior that landed the patent troll in the category to start with. If Congress and the courts want to start classifying patent trolls based on their litigation behaviors, then the conversation would be different and maybe a taxonomy wouldn't matter. However, as long as patent troll reform starts from the grouping of non-practicing entities, a troll taxonomy does matter.
Thursday, May 08, 2014
A Taxonomy of Trolls
I want to start with a little story - I'm at an academic roundtable in the land of the snowbird, so please don't take offense. Everyone knows that old people drive slowly. They keep young, vibrant folks from getting to where they want to get to, clogging up the roads with their big old cars. No one would argue that this is a problem that needs to be solved, so let's pass laws to get these old people off the road, right?
The legislators propose a set of laws to fix the problem:
1) Old people are no longer permitted to drive; and
2) Because it isn't easy to identify an old person without looking at who is driving, any person driving a late model Lincoln Towncar or any similar type vehicle is also prohibited from driving.
3) There is an exception for old people who are driving to work at soup kitchens or other charitable activities are allowed to drive, no matter how slowly and even if they impede the driving of other people.
If you don't see any problems with this story, then you're probably OK with the pending patent troll reform bills...but I'm not.
Patent troll legislation looks an awful lot like the laws above. Patent trolls purportedly get in the way of companies that are making and selling stuff, most egregiously by bringing nuisance litigation suits or sending fraudulent cease and desist demand letters. To deter this trollish behavior, many reform provisions have been proposed. By way of analogy to the old person driver laws above, if you don't make something, you are a patent troll subject to any number of limitations on your behaviors. If we can't tell whether you make something, you are a patent troll subject to said limitations. There are some people who don't make things, like universities; however, we like them, so they aren't subject to the limitations.
What's going on here can be attributed to cognitive biases - most prominently, the stereotyping or grouping bias, whereby certain characteristics are imputed to a group without regard to individual differences among the members of the group. Although the term "cognitive biases" usually carries negative connotations, cognitive biases actually help us get through life in an age when we are constantly bombarded with information - so much information that it is not possible to process it all. So instead of simply giving up, our brains use various heuristics and cognitive biases to lump the information and process it quickly.
Similarly, it is very difficult to craft legislation that can take into account all possible information - and so legislators need to take shortcuts and create groupings. But pending patent troll reform is simply too broad and ignores the fact that many of the behaviors that are driving the legislation are not captured by the stereotypical definition of patent troll. There are old people who drive fast (and young people who drive slow and impede traffic). And there are companies that do not make things that do not engage in the harmful behavior (and companies that make things and also file nuisance lawsuits, etc.).
I have begun a research agenda that is looking behind the broad definition of "patent troll." The overarching theme of my project is to develop a taxonomy of patent trolls, looking behind the curtains to tell the stories of these different groups. A few empirical studies have broken the group of patent trolls into types, but only for the purposes of counting. I, instead, want to study the entities behind the label, to tell the stories of the entities, and to compare the actual stories to the fairy tales and fables that are being built up around these patent trolls. The narratives, in many cases, will illustrate that the problems that Congress is looking to solve are not present for certain classes of these trolls.
My first stab at digging into the taxonomy of patent trolls is to look at formerly manufacturing entity. In a piece forthcoming in the University of Connecticut Law Review (that I'll talk more about shortly), I provide case study data on these entities that used to make something but for any number of reasons no longer do. While they fall squarely in the definition of patent troll (an entity that does not make things), they are not the same as other types of patent trolls. Are they engaging in the purportedly bad trollish behavior? If not, why are we comfortable with including them in the broad patent troll category? Maybe we shouldn't be.
As my guest term here goes on, I'll tell you more about the taxonomy I'm laying out, as well as giving you a peek behind the curtain at the stories of these different types of patent trolls. (And I'll try not to offend old people any further!)
Monday, May 05, 2014
Fee Shifting -- The Supreme Court vs. Congress
Fee shifting is one of the most talked-about provisions in pending patent legislation aimed at fixing the patent troll problem. The House passed a bill (HR 3309 - the Innovation Act) in December 2013 that, among other things, implements a "loser pays" system in patent law. In particular, the bill amends the Patent Act to state that a court shall award fees and expenses to a prevailing party in a case in which any party asserts a claim for relief under patent law, unless the court finds that the losing party's position and conduct were justified in law and fact (or else there are special circumstances that make the award of fees unfair). The purpose of this is to allegedly discourage patent trolls from bringing lawsuits, as they are believed to behave badly and take unreasonable litigation positions.
But patent law already has statutory language for fee shifting. Specifically, section 285 of the Patent Act (35 U.S.C. 285), as it currently exists, permits a court to award reasonable attorney fees in "exceptional cases." In an NYT op ed from June 2013, Federal Circuit Chief Judge Randall Rader, along with Professors Colleen Chien and David Hricik, noted that section 285 gives judges the power to award attorney fees to deter patent trolls but that it is rarely done. They then urge judges to make use of this power they have.
It is not entirely clear why judges had not made much use of section 285 , but one reason could be the high standards that the Federal Circuit had imposed. In particular, the court had set the standard for "exceptional cases" to be sanctionable litigation misconduct or a determination that litigation was "brought in subjective bad faith" and "objectively baseless." Further, the Federal Circuit reviewed determinations of "exceptional cases" de novo.
Last week, the Supreme Court overturned both aspects of the Federal Circuit's "exceptional cases" jurisprudence, making it more easy for district court cases to apply section 285. In Octane Fitness v. ICON Health & Fitness, the Supreme Court stated that there is no rigid test for determining "exceptional cases." Instead, section 285 can be satisfied by showing that an infringement case "stands out from others with respect to the substantive strength of a party's litigating position [either law or fact] or the unreasonable manner in which the case was litigated." In Highmark v. Allcare Health Management System, the Supreme Court overruled the Federal Circuit's de novo standard of review, stating that abuse of discretion is the appropriate standard for section 285.
Given the Supreme Court's directive for determining "exceptional cases" under section 285, it would seem that the only difference between existing section 285 and the amended version passed by the House is "may" versus "shall." Of course, the difference between these two tiny words is huge, as are 1) the accompanying provision in the House legislation that would require certification of ability to pay upon non-prevailing and 2) potential joinder of other parties having financial interest in the lawsuit if unable to certify the ability to pay.
In the face of the perceived patent troll problem, both the Supreme Court and Congress have stepped forward to address the issue via fee shifting. The problem is that the approach taken to implement and encourage fee shifting is drastically different. Which answer is better?
Other countries, of course, use mandatory fee shifting in patent cases, as well as other lawsuits. And other people (one example) have discussed how, for example, the British rule works and how a similar system might affect US patent law. But at least the way I see it (and the way some inventors, venture capitalists, and industry organizaitons have told me), the combination of the "mandatory" fee shifting, payment certification, and joinder provision is likely to shut the courthouse doors to parties well beyond the group of bad patent trolls that is driving patent reform today.
Now that the Supreme Court has stepped in to untie the hands of district court judges to award fees in patent cases, it would seem that the best thing for patent reform would be to take a deep breath, step back, and wait to see if section 285 -- as it is currently written and now flexibly interpreted -- provides a tool to curb bad litigation behavior (by trolls or anyone else), before rushing forward with a law that probably goes two steps too far.
Thursday, May 01, 2014
A Quick Hello
I am happy that Dan and PrawfsBlawg are letting me guest here this month. Thanks!
I'm Kristen Osenga from the University of Richmond School of Law. My teaching and research interests are intellectual property, interpretation, and language and the law, with a particular interest in patent law.
This month I plan on sharing some of my research and thoughts on my latest obsession -- patent trolls. Who isn't fascinated by these terrible creatures? I also want to talk about some cognitive biases I see at play in intellectual property law. Finally, this term has also been a banner year for patent cases at the Supreme Court...of course I'll be weighing in on these as the opinions come down.
And so as not to bore you all with patent law, patent law, and more patent law, I have been thinking about (and experimenting just a bit) with "flipping the classroom." Although I think this is an intriguing way to teach and allow for more problem-based learning or experiential exercises in the classroom, I am surprised at some of the skepticism and pushback I have heard. I look forward to sharing my (not so great) experiences, my plans for doing it better the second time around, and some of the debate about whether it is good for students and/or worth the excess work.
The Canadian ALPS
O Canada. O wordplay. For the title of this post refers not to the glorious snow-capped Canadian rockies (which are sometimes, though apparently not terribly often, referred to as the "Canadian Alps"), but rather the soon forthcoming Annual Meeting of the Association for Law, Property, and Society (hence, ALPS, get it?), which will be held this Friday and Saturday, May 2-3, at the University of British Columbia in Vancouver.
ALPS had its origins as a small property scholarship workshop that I was fortunate to be invited to when it was first held down at Chapman Law School in early 2008. Since then, different iterations of the conference have been held more or less yearly and the event has ballooned into this year's major event, which will feature a couple hundred attendees, with around 150 presentations over the course of two action-packed (or at least property-scholarship-packed days). Keynotes to be given by Joe Singer and Andre van der Walt. Property-related field trips. Mixers. Canada. You get the picture.
Two points, one small and one more general, about ALPS.
First, for those who can't attend, I'll be live-tweeting the event here. I can't promise any Tushnet-level detailed play by play of the proceedings, but I'll assay to comment on the proceedings when and where relevant.
Second, I have a particular interest in this edition of ALPS because I was part of the program committee. Along with Shelley Saxer of Pepperdine and Sally Richardson of LSU, we sorted the submissions, organized them substantively, and put them into an order that had to balance thematic coherence with everyone's scheduling preferences.
This was a lot of work (especially because the conference was big this year--easily the most attendees ALPS has ever had), but it was interesting and fun too, and I'm glad I was part of the team effort. I hadn't served on a program committee before, and it turned out to be a great way to get a sense of what people in the field from all over the world are working on, and to get a satellite-level notion of the lines along which contemporary property scholarship breaks down.
Junior scholars in particular could benefit from serving on the program committee of a major conference in their field. I wish I'd had the chance to do this in the first couple of years I was teaching. Not only is it a good way to get an instant crash-course in what kind of scholarship is happening in your area, but it's also an ideal means for meeting and making connections with people with similar or related scholarly interests (not to mention being the kind of service to the academy that looks good on a tenure application).
Off to Vancouver! I may see some of you property profs there. Otherwise, I'll blog at you all when I get back, unless I get eaten by a polar bear or decide to join a hockey team or some other Canadian cliche.
Tuesday, April 29, 2014
"Shadows" and "Innocence," copyright and performance
Earlier, I wrote about the Ninth Circuit’s recent Garcia decision, which is turning out to be the copyright Ishtar* of 2014. One take on what is so rank about the opinion is that it flouts a basic copyright principle that performances (separately from the works they are based on) are not copyrightable.
But earlier this month, just after Garcia was decided, the District of Nevada issued a far less remarked-on opinion entering summary judgment in favor of Teller (the silent, shorter member of the famed Penn & Teller duo), who argued that a YouTube video by Dutch magician Gerard Dogge infringed Teller’s copyright in his illusion “Shadows.”
At first glance, it’s hard to tell these cases apart. If Garcia was wrongly decided because (in large part) it erroneously held that performances are copyrightable, then shouldn’t Teller have lost as well? The answer is no, but it requires a closer look at the circumstances of these deceptively different cases. And the value of taking that closer look is to parse out more carefully what does, and does not, work about the “performance is not copyrightable” aphorism. More below the fold.
It’s worthwhile to give a quick sense of the infringement in Teller. Teller’s “Shadows” is a very elegant and affecting illusion that begins with a rose on a stand with a light in front of it causing a shadow of the rose to be projected onto a screen behind it. Teller then appears, and cuts away the petals of the rose’s shadow, and when he does so, each corresponding petal on the actual rose falls as well. In Dogge’s video, he performs a virtually identical illusion with nearly identical set dressing and materials (indeed, the name of his illusion is “The Rose and Her Shadow”), though there are some slight variations (Teller uses a rose in a vase, while Dogge’s is in a bottle; Teller’s and Dogge’s performances end with different performative flourishes).
That said, the way to reconcile Garcia’s wrongness with Teller’s (relative) okayness lies in the nature of the latter’s asserted copyright interest. Teller registered his work, “Shadows,” as a dramatic work (actually, "dramatic pantomime" in the registration certificate) with the Copyright Office in 1983 (though he had been performing the illusion since 1976). The registration comprises a detailed description of “Shadows” to the minutest detail. By contrast, Garcia’s purported copyright in “Innocence of Muslims” derived solely from whatever originality her performance added to the underlying words written by the screenwriter.
Moreover, Teller’s registration of “Shadows” also clarifies and simplifies his authorship status with respect to the work. He is solely listed as the dramatic work’s author, because he is—the entirety of “Shadows” is the product of his creative mind alone. Again by contrast, Garcia’s authorship status with respect to “Innocence” is a wreck. She is at best one of many joint authors of the work, though her relative contribution to the final product is vanishingly slim.
Still, these two cases raise a puzzle: Is performance copyrightable or isn’t it? I don’t think we need to get too Clintonian about this (i.e., no need to default to “it depends on what ‘performance’ means” hair-splitting). Teller didn’t hold that performances are generally copyrightable. It held that Dogge’s YouTube video amounted to an unauthorized public performance of Teller’s copyrighted dramatic work.
If you want to get really technical about it, Teller’s claim was not that Dogge’s video was substantially similar to Teller’s performance of “Shadows” (indeed, there are many different performances of “Shadows,” though they are all nearly identical), but rather that it was similar to the dramatic work “Shadows” that was embodied in the copy Teller filed with the Copyright Office back in ’83. A performance is something that you can do with a work, just as you can reproduce or adapt or distribute copies of it, it’s not the work itself, and only works are copyrightable.
Throughout this post, I’ve been saying that Teller seems basically right. The reason I’m equivocal lies in one part of the opinion that went largely unremarked. The court remarked that the defendant’s work was substantially similar to Teller’s in part because “both performances are based on the incredibly unique concept of a performer cutting parts of a rose’s shadow, thereby cutting the corresponding parts of a real rose.”
Putting aside the court’s problematic usage of “performance” and “performer”, what raises a red flag about this passage is the court’s suggestion that Teller’s copyright extends past his specific expression of the particular dramatic work articulated in the deposit copy he included with his copyright registration, and applies generally to the “concept” embodied in his dramatic work.
This phrasing seems to flout copyright’s good old idea/expression dichotomy, though as with all idea/expression issues, the distinction is a hard one to draw. I’m OK with the outcome in Teller because Dogge’s video mimicked Teller’s work down in detail with only a few exceptions. But one could imagine variation on “Shadows” that are not as slavish in their copying. Consider a variant where a garrulous magician cut the petals from the projected shadow of a sunflower, causing the real thing to fall. Or more abstractly, imagine a version where a talkative illusionist came out and cut the limbs off of the projected shadow of the human effigy of some great historical villain (Hitler, Stalin, Donald Sterling), causing the limbs on the actual figure to fall off. I think the latter two would be far enough from Teller’s work to be allowable, even though they are based on the “incredibly unique concept” that animates “Shadows.”
Finally, if Teller is (mostly) rightly decided, does that mean that magic tricks are copyrightable, contra the major premise of Jacob Loshin’s really cool article on informal means of protecting illusions in the magician community? No way. What Teller owned was the copyright in a dramatic work that happened to contain a magic trick. The underlying idea that animates the specific expression of the performance remains, in my opinion if not the D-Nev’s, fair game.
*This 1987 movie, featuring Warren Beatty and Dustin Hoffman lost in the Sahara Desert, was generally considered unspeakably awful and became a legendary Hollywood bomb. This tends to be my go-to reference for Hollywood disasters because, unlike Waterworld or Cutthroat Island or Heaven’s Gate, I actually saw Ishtar in the theater when I was a kid. God knows why. Maybe it was some form of punishment.
Wednesday, April 09, 2014
A Typology of Authorship in Highly Collaborative Works
To paraphrase Anna Karenina for the kajillionth time, all copyright scholars think Garcia was wrongly decided,* but every copyright scholar thinks so in their own way. When the Ninth Circuit held a couple months back that an actress has a “copyright interest” in the film in which she briefly performed, the (understandably) apoplectic reaction was as entertaining as the decision was mysterious. I’m on board with the general reception that the Garcia opinion was the copyright equivalent of sitting on a whoopee cushion, so instead of beating that long-deceased equine, I will instead explore a related issue raised by the case.
Copyright’s notion of authorship works great when we’re dealing with the classic, solo Romantic author: Some genius artist sits alone in a room painting a masterpiece all of her own invention, and—boom—thanks to section 201(a), the copyright in that work vests in her, making her the author of the work for the duration of the copyright, and the owner of the work until she transfers her copyright.
But a much harder question arises when we complicate the story of authorship to include multiple collaborators on a project. The solo writer or painter is clearly the author of their work, but when we imagine a fashion photograph involving a photographer, model, makeup people, and numerous technicians, the notion of authorship becomes far murkier. This is, then, one of the major issues raised by Garcia: how do we allocate authorship when many people make expressive contributions to a final creative product?
So this post seeks neither to praise Garcia (obv.) or to bury it (that’s been done amply and adequately already). Instead, below the fold, I want to develop a typology of the different kinds of creative contributions people make to works, and how these different kinds of contributions might give rise to what we call copyright authorship. Importantly, this is not a normative claim that all of the contributors in these classes are or should be entitled to joint or freestanding copyrights, but merely to organize and make sense of the different kinds of contributions to works that could plausibly be understood to be the result of creative authorship.
First is what I will call visionaries. This is a grandiose term because I can’t at present think of a less pretentious one, but I mean it simply to refer to the person who is in charge of the overall vision of a highly collaborative work of authorship—the director of a film, the producer of a sound recording, and perhaps the photographer of a sophisticated, artistic photograph (hence there will be no rehashing of the Ellen’s-selfie debacle here).
The visionary comes closest to the person who fits the Romantic notion of authorship of a work. The director of a film, for example, typically has the initial vision of and the most creative control over the content of the entire film. Hence courts have tended to conclude that (presuming we are to regard works as unitary rather than comprised of many different subworks by many different artists, which Garcia surprisingly called into question) the person exercising this visionary function is the presumptive author of a highly collaborative work. E.g., Burrow-Giles v. Sarony (U.S. 1884) (holding that Napoleon Sarony was the author of a famous photograph of Oscar Wilde because Sarony determined the setting, lighting, subject placement, and other features of the work).
Second, consider performers—actors in films, models in photographs, singers and session musicians in sound recordings). It was the Garcia court’s willingness to consider performers as authors of works that was so jarring to settled understandings of copyright (and also to the Copyright Office, which had rejected Garcia’s application for a copyright in the same performance that the Ninth Circuit held was protected).
I share the intuition that something seems very wrong about extending Garcia a copyright in her performance. But what complicates this is that I don’t have that same intuition in the context of sound recordings.** It does not seem obviously wrong to me that singers and musicians should not be the owner of the sound recordings they create at a studio. Their performances vivify the otherwise highly abstracted musical works on which they are based, and comprise the substance of the recorded sounds themselves. The seeming plausibility that musical performers might have a copyright in their sound recordings makes it a little harder to reject out of hand the notion that dramatic performers can never have a copyright interest in the audiovisual works to which they contribute.
The third category is the technician. This is the person who actually causes sounds or images to be fixed in the tangible medium of expression that is required for federal copyrightability—the cinematographer in film, the sound engineer in a recording studio, or the person taking a photograph (modernly, this is usually the visionary as well, but this was not always the case—Napoleon Sarony, for example, never touched a camera in his life).
A colleague once pointed out to me a formalist argument for why such technicians should have authorial status. The work in photographic works, audiovisual works, and sound recordings is pretty much indistinguishable from the fixation. So for a sound recording, the work is the actual sounds fixed in the studio’s digital audio tape. By this logic, then, the person who is actually creating the work is the person who is actually fixing the sounds (or in the case of other works, fixing the images).
This argument works well when the technician also makes crucial creative decisions about the work. The best example is the photographer. Eddie Adams or Manny Garcia (no relation to the “Innocence of Muslims” actress—as far as I know, anyway) are both the visionaries who imagine their photos (to the extent possible with photojournalism, which typically requires spontaneous creation) as well as the technicians who execute the fixation of their creative vision. Sound recordings are a harder case. Some sound engineers make creative contributions, while others act at the direction and discretion of producers. And the case where this makes the least sense is the cinematographer, who exercises great technical skill to operate the camera but who typically acts in the service of realizing the director’s creative vision (again, there are exceptions—Spielberg, for example, takes a relatively greater technical role in his films than most Hollywood directors).
The fourth and final category is the writer. This category will be populated only where the highly collaborative work is derivative of some other work—a screenplay, a musical work—so would exclude works like a painstakingly posed photograph. And it is beyond obvious that in order to create the film or sound recording at all, the creator of the derivative must get a license, either through bargaining (in the case of a film) or through section 115’s compulsory license provisions (in the case of a sound recording). But the fact of acquiring a license does not diminish the central role that the writer’s contribution plays in the creative impact of films or sound recordings. It just means that here, unlike with other categories, the copyright ownership issues are reasonably well demarcated and understood.
These categories—not meant to be exhaustive, but just illustrative—comprise four different ways that one might contribute to a highly collaborative work in a creative way that approaches copyright’s notion of authorship. One could contribute an overall guiding vision, or provide an original and electric performance, or supply the work’s underlying narrative structure, or contribute technical expertise in a thoughtful way that contributed to the aesthetic success of the final creative product.
The problem with acknowledging this multiplicity of forms of creative contribution for the purposes of law, though, is that copyright is ill-suited to manage the descriptive reality of authorship in highly collaborative works.*** This may suggest that Garcia is flawed pragmatically more than doctrinally. There may be some plausibility to the idea that a performance could be copyrighted, but the practical implications of going down that rabbit hole are just too messy to contemplate. So while the Romantic notion of locating authorship of all works in a single individual—visionary, technician, or whoever—may not square with the need to have a manageable notion of authorship (and, related, ownership). Hence this may be one rare instance in which Romanticism and pragmatism are on the same page.
*In all fairness, there were apparently a handful of Garcia supporters (other than members of industry groups benefited by the decision’s outcome).
**Based solely on casual empiricism, I think others share this intuition. I always ask my class (before we get into what law actually says about these things) who they think the author of a movie should be, and most people answer "director." But when I ask them who the author of a sound recording should be, the most common instinctive response is "the vocalist." No love for the producer, I guess.
***This may be a problem endemic to all property, actually. Real property law does ok with the idea of limited co-ownership, but once the owners of a given plot become too numerous, management problems and devaluation kick in. This is a particular problem for familial or tribal holdings over time.
Wednesday, April 02, 2014
A salience-bias defense of marginal law reforms
Hey y’all. It’s always good to be back guesting at Prawfs. I’m looking forward to sharing thoughts about property—physical, intellectual, and otherwise—over the course of the next month. I’ll kick it off with a news item that caught my eye today: The UK just announced a forthcoming reform to its copyright law. Among other things, British citizens and subjects are now free to—wait for it—make personal copies of legally acquired copies of digital media (e.g., eBooks, CDs) for format-shifting or backup purposes.
This aspect of the British copyright reform strikes me as a perfectly good and sensible idea (as did its other features, like broadening the UK notion of fair use), but response to it sounded more in the register of “meh” or “so what?” than “hallelujah.” After all, this part of the revision legalized conduct that most people assumed was already legal (and may indeed be legal in other countries with broader notions of users’ rights), was certainly widely underenforced (because it doesn’t make a lot of sense to spend resources breaking into people’s homes to see if they’ve made a nefarious illicit backup CD copy of, say, Fartbarf’s “Dirty Power”*), and was, in any event, largely a moot point thanks to the increasing marginality of the relevant technologies (because, as my students helpfully point out to me when I refer to this medium for experiencing music, who uses CDs anymore, Grandpa?).
And yet I think there is something interesting about the UK’s move, not so much for the substantive impact on copyright law or user practices, but about a strategy for how and why we may want to reform laws generally. I explore this notion below the fold.
The major justification for these reforms (which grew out of the very thoughtful Hargreaves Report, which, for what it’s worth, could be a model for US copyright reform, in the vanishingly unlikely event that any congressfolks are reading this) is simply that it makes sense to update law to reflect actual practices. By one estimate, 85% of people in the UK assumed that making personal use copies was already legal, and the practice is already widespread. On this explanation, the personal-use element of the UK's copyright reform is well-taken but inconsequential, like fixing a spelling error that didn’t really confuse anyone about the meaning of a sentence.
But there’s another, broader, reason why this reform might be good even—perhaps especially—for the kind of copyright industries who were likely to resist it. This kind of conspicuous gap between social norms and practices on one hand and regulation on the other can be an embarrassment to the law that exacts outsized costs in terms of credibility. The reason that law/norm disjunctures can be especially problematic is that non-specialists may generalize about the entire law based on one conspicuous silly or outdated provision. This is a species of salience bias or the availability heuristic. Observing one particularly notable example about a place or, say, a body of law can falsely lead us to believe we have a true sense of its overall character.
The UK group Consumer Focus made just such a leap in this setting, pointing out that the illegality of innocuous conduct like making personal backup copies had caused the credibility of all “UK copyright law to fall through the floor.” This move—deriving the character of an entire body of law from its worst provisions—is not limited to copyright. A roughly analogous phenomenon is the tendency of laypeople to assume that when one (purportedly) guilty man goes free, that the criminal law system is generally very lenient—despite the overwhelming rates of conviction for accused criminals.
This is sort of like synechdoche in law—using a part, and especially a flawed or discordant part—to represent the whole. And what it means for law reform, and in particular the reform of statues like the Copyright Act, is that law/norm disjunctures may be more problematic than is usually appreciated. We generally tend to think that these kind of disparities between law on the books and actual practices are bad because of the people they unwittingly regulate. Out of date laws could impose sanctions for conduct that has become widely, imposing outsized penalties on unsuspecting people for trivial violations. But the UK example reminds us that the law/norm gap may be a major problem for law itself, especially in light of the tendency of lay observers to infer from a single out-of-step provision that an entire regulatory structure is flawed.
*Yes I used the name of this band in this illustration for amusement (mainly my own). But also yes, there actually is a band called Fartbarf, and perhaps more surprisingly, they actually have appeal once the juvenile humor value of their name fades, assuming that you’re into 80s-inflected synth-pop performed by a bunch of guys in gorilla masks. And hey, isn’t everyone?
Sunday, February 09, 2014
Misunderstanding of fair use? Shrewd marketing move? Or both?
Friday, June 14, 2013
The Fine Details of Molecular Biology
So the most anticipated of yesterday's decisions is obviously Myriad Genetics, the gene-patenting case. (The less said about my embarrassingly wrong prediction in Tarrant Regional Water District, the better!) The Court's decision seems to be pretty much what everybody expected after oral argument. But after straining to follow all of the majority opinion, I enjoyed Justice Scalia's brief concurrence:
I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.
Some people have called this bizarre or mocked it as anti-evolution. Others defend it as intellectual humility. I have to say, my sympathies are with Justice Scalia. Whenever I read a long, complicated fact section in an opinion I cringe. (Which of these facts are really relevant? And if really relevant, how confident are we that they are correct?)
Indeed, Justice Scalia puts me in mind of the work of Allison Orr Larsen, who's written several interesting articles that are skeptical of the Supreme Court's treatment of questions of legislative fact. (I think that the molecular biology in Myriad would qualify as a legislative fact rather than an adjudicative fact, but I am not 100% sure I always understand the distinction.) Given that it is not clear that this is something the Court does well, it may be better for it to do less of it.
I also appreciate Scalia's candor, and wonder if it reflects something about the Court's attitude in its relatively large recent patent docket. Perhaps it is not a coincidence that the concurrence appears in a case where the Court seemed particularly eager to seize a middle position proposed by the government. The Court now has several cases (Mayo, Bilski) where it seeks to intervene in the Federal Circuit's patent jurisprudence withouw necessarily having a super clear idea what it wants to replace it with. Of course, the lack of a fully developed legal theory and the lack of a fully developed understanding of the "fine details" of the facts need not be connected -- but maybe they are. Maybe part of the reason it is hard for the Court to do patent law is because it is hard to understand the underlying science in any of the disputes it actually wants to resolve.
Tuesday, May 14, 2013
Is a broadcast to everyone private under the Copyright Act?
For the final post in my extended visit here, I want to focus on another example in my series of discussions about formalism vs. policy in copyright. Today’s case is WNET v. Aereo, which allowed continued operation of a creative television streaming service. As I’ll discuss below, the case pretty clearly complies with the statutory scheme, much to the relief of those who believe content is overprotected and that new digital distribution methods should be allowed. This time, the policy opposition is best demonstrated by Judge Chin’s dissent in the case.
In the end, though, the case shows what all of the cases I’ve discussed show: copyright was not really developed with digital content storage and streaming in mind. While some rules fit nicely, others seem like creaky old constructs that can barely hold the weight of the future. The result is a set of highly formalistic rules that lead to services purposely designed inefficiently to either follow or avoid the letter of the law. This problem is not going to get any better with time, though my own guess hope is that the pressure will cause providers to create some better solutions that leave everyone better off.
Here are the basic facts. Aereo runs a system with thousands of dime size antennas. Each of these antennas can capture over-the-air broadcast television, but not cable or satellite signals. OTA signals are “free” – viewers don’t have to pay for access to them the way they do for cable.
Aereo then runs what is essentially a remote digital video recorder for each subscriber. That is, when a user wants to watch or record a program, the Aereo system tunes one of the antennas to the appropriate channel at the appropriate time, saves the resulting TV signal (a show) to disk, and then either streams it to the user over the internet or stores it for the user for later viewing.
Aereo does this for every single subscriber; if 10,000 people want to record a show, then 10,000 antennas store 10,000 copies of the program. Why, you ask, would it do something so ridiculously costly and redundant? Because it’s the law, of course. A prior case, called Cartoon Network stands for this proposition. Here’s the logic: a) a user can use DVRs to store recordings at home (relatively well settled law since the Supreme Court’s decision not to hold VCR makers liable back in 1984); b) a cable operator can store those DVRs at the cable site, because where a customer’s DVR is located does not change the nature of its use, but c) the cable operator must maintain each customer’s choices like a DVR, meaning that the customer chooses what to record, and that a separate copy must be maintained for each customer.
The question in Aereo, then, is whether this basic framework changes if the “cable provider” is now an “antenna farm” provider. There are some differences. The cable subscriber is paying a fee that allows for the rebroadcast of content from the cable operator to the subscriber. Without such a fee/license, such rebroadcast would be infringement. Aereo has no such license, and thus its service could be considered a rebroadcast, which is a no-no. Just ask the folks who tried to rebroadcast NFL games into Canada.
The Aereo Court agreed with the rationale in Cartoon Network, however; the license was not relevant. Instead, the individualized copies were simply not “public” performances. They were private: selected by the user, recorded in the user’s disk quota, and shown in that form only to the user. As the court noted, it was as if the user had a private antenna, DVR, and Slingbox located at Aereo’s facility, and the fact that Aereo owned it and charged for the service was irrelevant.
Judge Chin dissented from the opinion, and took an opposite view, best described using the original dissent’s text:
Aereo's "technology platform" is, however, a sham. The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.
Judge Chin’s dissent goes on to argue that the formalistic reading of the statute fails, and that we should see Aereo’s acts for what they are: a transmission of content to members of the public, which thus constitutes public performance.
This disagreement is a great ending illustration of the cases I’ve blogged about this month. The tension between formalistic statutory reading and policy based glosses is palpable. In my last post, I made clear that I favor following the statute unless convinced otherwise.
But that doesn’t answer the fundamental question, which is: what do we make of all this? Sure, this case was rightly decided. Perhaps now this might lead to the formation of an efficient/licensed broadcast network streaming service that costs users less than Aereo because it is less resource intensive.
I’m not sure the Aereo ruling is the right one in the long run. One of the thorny issues with broadcast television is range. Broadcasters in different markets are not supposed to overlap. Ordinarily, this is no issue because radio waves only travel so far. When a provider sends the broadcast by other means, however, overlap is possible, and the provider keeps the overlap from happening. DirecTV, for example, only allows a broadcast package based on location.
Aereo is not so limited, however. Presumably, one can record broadcast shows from every market. Why should this matter? Imagine the Aereo “Sunday Ticket” package, whereby Aereo records local NFL games from every market and allows subscribers to stream them. Presumably this is completely legal, but something seems off about it. While Aereo’s operation seems fine for a single market, this use is a bit thornier. I’m reasonably certain that Congress will close that loophole if any service actually tries it.
Thus, dealing with what should be clearly legal under the statute is thornier than it appears at first. While I believe that more and cheaper streaming options would be a good thing, I wonder whether the disruption to local broadcast markets is the right way to get there. One thing is clear: copyright law is ill equipped to answer the question.Thanks again to Prawfs for having me, and I'll see you next time around (and in the meantime at madisonian.net).
Thursday, May 09, 2013
Teaching and Testing Law Students
I'm glad to be back for another rotation here at PrawfsBlawg. Like many of you, I've just finished up spring semester, and I'm grading exams while I think about new projects, line up my research and writing for the summer, and think about what I'd like to do differently the next time I teach. In this post, and some future posts, I'll share some things I did differently this year, and my thoughts on whether or not they were a success. I hope you'll share your ideas in the comments: I'm always on the lookout for better ways to teach my students.
This spring, in both Contracts and Copyright, I added a graded, mid-semester memo to the course requirements. In case you don't know, the typical law school class bases the entire grade on one exam at the end of the semester, so this is a departure from the norm, although I'm not the first person to try it. In fact, I shamelessly lifted the idea (and my implimentation of it) from Michael Madison at Pittsburgh. In copyright, I put together my own closed universe of materials and wrote a problem for the students to analyze. I asked them to pitch the memo at two different levels: give the client what she needs to understand what you think she should do and why she should do it, and provide the partner with a grounding in the case law and a suggestion for whether and how to litigate the case.
I tried something similar for Contracts, although I gave the students one "shadow" graded memo as a warm-up. I graded it for them, so they could see how I approached the memo, and what I was looking for. We followed it up with a graded memo a few weeks later. For both memos, I took my material from Doug Leslie's CaseFile Method assignments for contract law. I like the CaseFile method problem sets for this purpose because they provide a narrow issue, with a closed universe of reading materials.
In both cases, my hope was that the memo would help me assess how the students comprehend and synthesize the law, without worrying that they failed the assignment because they didn't find something they should have. I'm not downplaying the importance of research skills for the practising attorney, but I feel like that is a skill better handled in a course structured toward developing those skills.
The students in Contracts really rose to the challenge. The graded memo dealt with UCC 2-207 and the "Battle of the Forms." It's tricky stuff, and I feel confident that they mastered the material better than they would have after a day in class, although there were plenty of missteps in the memos themselves.
The memos written for the Copyright class collectively underwhelmed me. It's possible the problem I constructed, which asked roughly the same question that was posed in the recent litigation over custom Batmobiles, was somehow off, but they didn't come at the problem with as much energy and care as the Contracts students. Perhaps it's a difference between 1Ls and more experienced students. It's also possible that they needed the warm-up like the one I provided my Contracts students.
Despite my concerns, I feel like the memo assignment in both classes provided a unique opportunity for students to dig into a substantive area of the law and get feedback from a scholar who has developed some expertise in that area. I'm certainly not the best "legal writing" instructor that these students could have, but my perception is that the end result is nevertheless worth the effort, both for me and for the students.
Wednesday, April 24, 2013
On Policy and Plain Meaning in Copyright Law
As noted in my last post, there have been several important copyright decisions in the last couple months. I want to focus on two of them here: Viacom v. YouTube and UMG v. Escape Media. Both relate to the DMCA safe harbors of online providers who receive copyrighted material from their users - Section 512 of the Copyright Act. Their opposing outcomes illustrate the key point I want to make: separating interpretation from policy is hard, and I tend to favor following the statute rather than rewriting it when I don't like the policy outcome. This is not an earthshattering observation - Solum and Chiang make a similar argument in their article on patent claim interpretation. Nevertheless, I think it bears some discussion with respect to the safe harbors.For the uninitiated, 17 U.S.C. 512 states that "service providers" shall not be liable for "infringement of copyright" so long as they meet some hurdles. A primary safe harbor is in 512(c), which provides exempts providers from liability for "storage at the direction of a user of material that resides on a system" of the service provider.
To qualify, the provider must not know that the material is infringing, must not be aware of facts and circumstances from which infringing activity is apparent, and must remove the material if it obtains this knowledge or becomes aware of the facts or circumstances. Further, if the copyright owner sends notice to the provider, the provider loses protection if it does not remove the material. Finally, the provider might be liable if it has the right and ability to control the user activity, and obtains a direct financial benefit from it.
But even if the provider fails to meet the safe harbor, it might still evade liability. The copyright owner must still prove contributory infringement, and the defendant might have defenses, such as fair use. Of course, all of that litigation is far more costly than a simple safe harbor, so there is a lot of positioning by parties about what does and does not constitute safe activity.
This brings us to our two cases:
Viacom v. YouTube
This is an old case, from back when YouTube was starting. The district court recently issued a ruling once again finding that YouTube is protected by the 512(c) safe harbor. A prior appellate ruling remanded for district court determination of whether Viacom had any evidence that YouTube knew or had reason to know that infringing clips had been posted on the site. Viacom admitted that it had no such evidence, but instead argued that YouTube was "willfully blind" to the fact of such infringement, because its emails talked about leaving other infringing clips on the site - just not any that Viacom was alleging. The court rejected this argument, saying that it was not enough to show willful blindness as to Viacom's particular clips.
The ruling is a sensible, straightforward reading of 512 that favors the service provider.
UMG v. Escape Media
We now turn to UMG v. Escape Media. In a shocking ruling yesterday, the appellate division of the NY Supreme Court (yeah, they kind of name things backward there) held that sound recordings made prior to 1972 were not part of the Section 512 safe harbors. Prior to 1972, such recordings were not protected by federal copyright. Thus, if one copies them, any liability falls under state statute or common law, often referred to as "common law copyright." Thus, service providers could be sued under any applicable state law that protected such sound recordings.
Escape Media argued that immunity for "infringement of copyright" meant common law copyright as well, thus preempting any state law liability if the safe harbors were met.
The court disagreed, ruling that a) "copyright" meant copyright under the act, and b) reading the statute to provide safe harbors for common law copyright would negate Section 301(c), which states that "any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067." The court reasoned that the safe harbor is a limitation of the common law, and thus not allowed if not explicit.
If this ruling stands, then the entire notice and takedown scheme that everyone relies on will go away for pre-1972 sound recordings, and providers may potentially be liable under 50 different state laws. Of course, there are still potential defenses under the common law, but doing business just got a whole lot more expensive and risky to provide services. So, while the sky has not fallen, as a friend aptly commented about this case yesterday, it is definitely in a rapidly decaying orbit.
Policy and Plain Maining
This leads to the key point I want to make here, about how we read the copyright act and discuss it. Let's start with YouTube. The court faithfully applied the straightforward language of the safe harbors, and let YouTube off the hook. The statute is clear that there is no duty to monitor, and YouTube chose not to monitor, aggressively so.
And, yet, I can't help but think that YouTube did something wrong. Just reading the emails from that time period shows that the executives were playing fast and loose with copyright, leaving material up in order to get viewers. (By they way, maybe they had fair use arguments, but they don't really enter the mix). Indeed, they had a study done that showed a large amount of infringement on the site. I wonder whether anyone at YouTube asked to see the underlying data to see what was infringing so it could be taken down. I doubt it.
I would bet that 95% of my IP academic colleagues would say, so what? YouTube is a good thing, as are online services for user generated content. Thus, we read the statute strictly, and provide the safe harbor.
This brings us to UMG v. Escape Media. Here, there was a colossal screw-up. It is quite likely that no one in Congress thought about pre-1972 sound recordings. As such, the statute was written with the copyright act in mind, and the only reasonable reading of the Section 512 is that it applies to "infringement of copyright" under the Act. I think the plain meaning of the section leads to this conclusion. First, Section 512 refers to many defined terms, such as "copyright owner" which is defined as an owner of one of the exclusive rights under the copyright act. Second, the copyright act never refers to "copyright" to refer to pre-1972 sound recordings that are protected by common law copyright. Third, expanding "copyright" elsewhere in the act to include "common law copyright" would be a disaster. Fourth, state statutes and common laws did not always refer to such protection as "common law copyright," instead covering protection under unfair competition laws. Should those be part of the safe harbor? How would we know if the only word used is copyright?
That said, I think the court's reliance on 301(c) is misplaced; I don't think that a reading of 512 that safe harbored pre-1972 recordings would limit state law. I just don't think that's what the statute says, unfortunately.
Just to be clear, this ruling is a bad thing, a disaster even. I am not convinced that it will increase any liability, but it will surely increase costs and uncertainty. If I had to write the statute differently, I would. I'm sure others would as well.
But the question of the day is whether policy should trump plain meaning when we apply a statute. The ReDigi case and the UMG case both seem to have been written to address statutes who did not foresee the policy implications downstream. Perhaps many might say yes, we should read the statute differently.
I'm pretty sure I disagree. For whatever reason - maybe the computer programmer in me - I have always favored reading the statute as it is and dealing with the bugs through fixes or workarounds. As I've argued with patentable subject matter, the law becomes a mess if you attempt to do otherwise. ReDigi and UMG are examples of bugs. We need to fix or work around them. It irritates me to no end that Congress won't do so, but I have a hard time saying that the statutes should somehow mean something different than they say simply because it would be a better policy if they did. Perhaps that's why I prefer standards to rules - the rules are good, until they aren't.
This is not to say I'm inflexible or unpragmatic. I'm happy to tweak a standard to meet policy needs. I've blogged before about how I think courts have misinterpreted the plain meaning of the CFAA, but I am nevertheless glad that they have done so to reign it in. I'm also often persuaded that my reading of a statute is wrong (or even crazy) even when I initially thought it was clear. I'd be happy for someone to find some argument that fixes the UMG case in a principled way. I know some of my colleagues look to the common law, for example, to solve the ReDigi problem. Maybe there is a common law solution to UMG. But until then, for me at least, plain meaning trumps policy.
Tuesday, April 23, 2013
Impact of the “Lander Brief” in the Myriad (Gene Patent) Case – and an answer to Justice Alito’s QuestionThe Supreme Court heard oral arguments on April 15 in Association of Molecular Pathology et al. v Myriad, concerning whether human genes are patent-eligible subject matter. The case focused on Myriad’s patents on two genes, BRCA1 and BRCA2, involved in early-onset breast cancer
Surprisingly, many of the Court’s questions for Myriad’s counsel focused on what Justice Breyer dubbed the “Lander Brief” – an amicus filed on behalf of neither party by one of the country’s leading scientists, Dr. Eric Lander. (Lander was one of the leaders of the Human Genome Project and co-chair’s the Presidents Council of Advisors on Science and Technology.) [Full Disclosure: I am one of the authors of this brief] Justices Breyer, Ginsburg and Alito referred to the brief by name, and several other Justices were clearly influenced by the information in the brief.
I believe that the “Lander brief” was a hot topic of conversation because the Justices realized that it was central to applying the Court’s product-of-nature doctrine to DNA. Importantly, the brief demolished the scientific foundation of the Federal Circuit decision on appeal. The Federal Circuit panel held that human chromosomes are not patent-eligible because they are products of nature, but a majority found that “isolated DNA” fragments of human chromosomes (such as pieces of the breast cancer genes) are patent-eligible. The Federal Circuit’s distinction rested on its assumption that (unlike whole chromosomes) isolated DNA fragments do not themselves occur in nature, but instead only exist by virtue of the hand of man.
The Federal Circuit cited no scientific support for its crucial assumption – neither in the record below, nor in any scientific literature.
Embarrassingly, the Federal Circuit’s assumption turned out to be flat-out wrong. The Lander brief summarized 30 years of scientific literature showing that natural processes in the human body routinely cleave into isolated DNA fragments. Isolated DNA fragments turn out to be abundant outside of cells – including in cell-free blood, urine and stool. They are so common that they can be used for genetic diagnostics of inherited diseases and cancers. In fact, they are so prevalent that several scientific groups have shown that it is possible to determine the entire genome sequence of a fetus based on analyzing the isolated DNA fragments found in a teaspoons-worth of its mother’s blood.
Justice Breyer relentlessly pushed Myriad’s counsel to declare whether he agreed or disagreed with the Lander Brief. When the counsel finally declared that he disagreed, Justice Breyer demanded:
JUSTICE BREYER: Okay. Very well. If you are saying it is wrong, as a matter of science, since neither of us are scientists, I would like you to tell me what I should read that will, from a scientist, tell me that it's wrong.
The only reply that Myriad’s counsel could muster was to point to a declaration that had been filed (by Dr. Mark Kay) in the District Court case in 2009. (In fact, Dr. Kay’s declaration said nothing whatsoever about whether isolated DNA fragments occur in Nature. It concerned how to construe terms in Myriad’s patent.)
A few minutes later, Justice Ginsburg returned to the point:
JUSTICE GINSBURG: Do you concede at least that the decision in the Federal Circuit, that Judge Lourie did make an incorrect assumption, or is the Lander brief inaccurate with respect to that, too? That is, Judge Lourie thought that isolated DNA fragments did not exist in the human body and Dr. Lander says that --
MR. CASTANIAS: No, what -- I think Justice -- Judge Lourie was exactly correct to say that there is nothing in this record that says that isolated DNA fragments of BRCA1 exist in the body. Neither does Dr. Lander's brief, for that matter. And for that matter, those isolated fragments that are discussed in Dr. Lander's brief again are -- are what are known not -- not in any way as isolated DNA, but as pseudogenes. They're typically things that have been killed off or mutated by a virus, but they do not –
Here, Myriad’s counsel proved to be confused. Contrary to Mr. Castanias’s statement, the Lander brief (on page 16) explicitly stated that isolated DNA fragments were found covering the entire BRCA1 and BRCA2 genes. Also, “pseudogenes” had nothing to do with Lander’s brief; they arose in the ACLU’s brief for Petitioners and in Myriad’s reply. (“Pseudogenes” are sequences in the human genome that occur when RNA is rarely reverse transcribed into DNA; they are relevant to the patentability of cDNA but are unrelated to the patentability of genomic DNA.)
Justice Alito then jumped in, offering the only glimmer of hope for Myriad’s counsel:
JUSTICE ALITO: But isn't this just a question of probability? To get back to your baseball bat example, which at least I -- I can understand better than perhaps some of this biochemistry, I suppose that in, you know, I don't know how many millions of years trees have been around, but in all of that time possibly someplace a branch has fallen off a tree and it's fallen into the ocean and it's been manipulated by the waves, and then something's been washed up on the shore, and what do you know, it's a baseball bat.
In other words, Justice Alito asked whether isolated DNA fragments of the BRCA genes might be freakishly rare. Neither opposing counsel nor the Solicitor General had an opportunity to address Justice Alito’s question, because they had already spoken.
The answer to Justice Alito’s questions turns out to be: VERY common. A typical person contains roughly one billion isolated DNA fragments of the BRCA genes circulating in his or her blood.
The Lander Brief (in footnote 23) cites several papers showing that, in 1 milliliter of blood (1/4000th of total circulation), each nucleotide in the human genome was covered by about 250 fragments on average. In total circulation, this corresponds to about 1 million fragments (= 4000 x 250) covering each individual base. Across the length of the BRCA genes, this translates to about 1 billion fragments.
More explicitly, footnote 25 points to a web site published by Stanford Professor Stephen Quake (the author of one of the studies), in which he specifically reported the coverage of the BRCA genes in the blood stream. Dr. Quake’s data directly showed that a typical person carries roughly 945 million fragments of isolated DNA from the BRCA1 and BRCA2 genes.
I was very happy the Lander brief has got this much attention, since I think that once the Court understands the fundamental mistake made by the Federal Circuit (and apparently Myriad’s counsel), as several of the Justices questions suggested they did at oral argument, the outcome of the case becomes clear. The Court actually can sidestep a number of more difficult questions in patent law (about the precise meaning of the standard under Diamond v. Chakrabarty for when a molecule is “markedly different” than a product of nature), because isolated DNA fragments of the human genome are precisely products of nature themselves.
Saturday, April 20, 2013
The Securitization of Patents
[I cross-posted this at Patently-O last week, but thought it might be of interest to a more general audience]
My forthcoming article in Duke Law Journal, The Securitization of Patents, argues that the best way to create patent markets might be to start treating portfolios as securities. A full draft is accessible at this SSRN page. The article makes four basic points:
- Aggregation and trading is not limited to non-practicing entities – everyone is doing it.
- Companies are trading aggregated patent portfolios as they do other patent instruments, either through sale or licensing.
- Aggregation is beneficial, even critical, for efficiency; this is directly contrary to the conventional wisdom.
- Based on the above, markets might be improved by applying securities treatment to patent portfolios.
[NB: I focus on portfolios, not individual patents. I also focus on sale and licensing of patents, not the initial patent grant. The paper explains why in more space than I have here.]
When I first wrote Patent Troll Myths, there was very little empirical data about NPEs. Since then, such research has exploded, with new data every week seemingly counting the number of NPEs and their cases. This data, though helpful, leaves a lot to be desired, I think. First, there is a rarely a real apples-to-apples comparison with the activity of product companies (and when there is, the comparison is not very granular). To that end, I’ve been developing a matched data set for my Patent Troll Myths data so we can test what real differences in quality and quantity, if any, exist. Second, the data largely ignores licensing practices, which can be quite similar. To be fair, licensing data is difficult to come by, but without it, normative determinations are difficult. Third, studies like mine, which look at the provenance of NPE patents, are rare.
These issues lead to my first point: aggregation is not just for trolls anymore, if it ever was. The public is becoming a bit more aware of this with new focus on privateering, the outsourcing of patent enforcement by product companies to licensing and assertion specialists. The idea that aggregation is just fine when a product company does it, but suddenly evil when those same patents transferred to a third party has never sat well with me. And regardless of moral considerations, the fact of the matter is that patent aggregation is everywhere.
My second point follows from the first: aggregated portfolios are being used as assets, and traded as such by all sorts of companies. This is nothing new; people have been writing about patents as a new asset classes for a while now. Transactions are getting bigger, however, and they are hitting the news. Perhaps no transaction better illustrates my point than the recent Kodak patent auction. First, Kodak offered its patents for sale as a financing strategy in bankruptcy. Second, the eventual buyer was a consortium including, among others, Microsoft (a product company); Intellectual Ventures (a licensing company, but also one that litigates, but also one that aggregates defensively; and RPX (a defensive aggregator). This one transaction is my argument in a nutshell: everyone is aggregating, and they are doing so in buy/sell type transactions for financial purposes.
My third point is that such aggregation is not always (or necessarily often) a bad thing. This is decidedly against the conventional wisdom. Companies with large portfolios surely have the ability to cause “royalty stacking,” but in practice this is less likely than if many separate parties enforced those same patents. Litigation looks much the same; regardless of the size of the portfolio, courts are just not going to hear a case asserting 1000 patents. Only a few (at most 5 or 10) patents will be at issue, and then the aggregator looks like anyone else. Similarly, in negotiations, the parties usually haggle over a few “lead” patents. This is little different than negotiation with the owner of few patents – with one big exception. When you come to terms with the aggregator, you can settle and license hundreds or maybe thousands of patents at once. Not so with single-patent owners. These folks line up one after another, asserting a few patents at a time. The biggest NPEs will often assert patents obtained by individual inventors; would product makers really rather that the inventors assert their own patents separately? Maybe, before a time when people figured out a viable mechanism for funding patent assertion, but now that individuals might seek funding for enforcing their own patents, a single aggregator must surely be a better option than many inventor plaintiffs.
There is one difference with aggregated portfolios, of course. When the parties are done haggling over the lead patents, the portfolio owner always has more to discuss while the small patent holder has none. But rather than being the greatest cost of the portfolio, a seemingly bottomless portfolio is its greatest benefit.
And that is my fourth point: when parties are trading portfolios, the haggling should be over price instead of quality and infringement. In a large enough portfolio holding patents directly related to a particular product, there will surely be some number of patents that are both valid and infringed. The question is how many, and how much it will cost to find them. A central thesis of my article is that treating portfolios as securities will help lower transactions costs in a variety of ways by limiting the litigation costs of finding those infringing patents and instead better pricing patents in the market. For you legal sticklers, I didn’t just make this up: the paper looks at portfolios under the Supreme Court’s famous Howey test and concludes that such treatment is at least plausible under the law.
How might securities laws benefit markets? Not in the traditional “public offering” way. I suspect that most transactions would be excluded from the registration requirements. However, such transactions might be regulated as dark pools, and require clearinghouse treatment that makes such transactions public. Further, stock fraud laws might require the disclosure of information that might affect portfolio value. For example, patent holders who know of anticipatory prior art might be required to disclose it rather than keep it secret. Perhaps most important, accepting that portfolios are simply financial transactions might drive efforts to develop objective portfolio pricing. The goal of such pricing schemes is to determine a portfolio’s price even though the parties cannot agree on the price of any of the particular patent in the portfolio. I examine several pricing strategies that might work (and several destined to fail) in the paper.
There is obviously much more in this paper than I can write here. I detail my arguments in the full paper.
Tuesday, April 16, 2013
Solving the Digital Resale Problem
As Bruce Willis's alleged complaints about not being able to leave his vast music collection to his children upon his death illustrate, modern digital media has created difficulties in secondary and resale markets. (I say alleged because the reports were denied. Side note: if news breaks on Daily Mail, be skeptical. And it's sad that Cracked had to inform Americans of this...).
This post describes a recent attempt to create such a market, and proposes potential solutions.
In the good old days, when you wanted to sell your old music, books, or movies, you did just that. You sold your CD, your paperback, or your DVD. This was explicitly legalized in the Copyright Act: 17 USC Section 109 says that: “...the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” As we'll see later, a phonorecord is the material object that holds a sound recording, like a CD or MP3 player.
But we don't live in the good old days. In many ways, we live in the better new days. We can buy music, books, and DVDs over the internet, delivered directly to a playback device, and often to multiple playback devices in the same household. While new format and delivery options are great, they create problems for content developers, because new media formats are easily copied. In the bad sort-of-old days, providers used digital rights management (or DRM) to control how content was distributed. DRM was so poorly implemented that it is now a dirty word, so much so that it was largely abandoned by Apple; it is, however, still used by other services, like Amazon Kindle eBooks. Providers also use contracts to limit distribution - much to Bruce Willis's chagrin. Indeed, Section 109(d) is clear that a contract can opt-out of the disposal right: “[Disposal rights] do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.”
But DRM is easily avoided if you simply transfer the entire device to the another party. And contracts are not necessarily as broad as people think. For example, I have scoured the iTunes terms of service and I cannot find any limitation on the transfer of a purchased song. There are limitations on apps that make software a license and limit transfers, but the music and video downloads are described as purchases unless they are "rentals," and all of the “use” limitations are actually improvements in that they allow for multiple copies rather than just one. Indeed, the contract makes clear that if Apple kills off cloud storage, you are stuck with your one copy, so you had better not lose it. If someone can point me to a contract term where Apple says you have not “purchased” the music and cannot sell it, I would like to see that.
Enter ReDigi and the lawsuit against it. ReDigi attempted to set up a secondary market for digital works. The plaintiff was Capitol Records, so there was no contract privity, so this is a pure “purchase and disposal” case. A description from the case explains how it worked (in edited form here):
To sell music on ReDigi's website, a user must first download ReDigi's “Media Manager” to his computer. Once installed, Media Manager analyzes the user's computer to build a list of digital music files eligible for sale. A file is eligible only if it was purchased on iTunes or from another ReDigi user; music downloaded from a CD or other file-sharing website is ineligible for sale. After this validation process, Media Manager continually runs on the user's computer and attached devices to ensure that the user has not retained music that has been sold or uploaded for sale. However, Media Manager cannot detect copies stored in other locations. If a copy is detected, Media Manager prompts the user to delete the file. The file is not deleted automatically or involuntarily, though ReDigi's policy is to suspend the accounts of users who refuse to comply.
After the list is built, a user may upload any of his eligible files to ReDigi's “Cloud Locker,” an ethereal moniker for what is, in fact, merely a remote server in Arizona. ReDigi's upload process is a source of contention between the parties. ReDigi asserts that the process involves “migrating” a user's file, packet by packet — “analogous to a train” — from the user's computer to the Cloud Locker so that data does not exist in two places at any one time. Capitol asserts that, semantics aside, ReDigi's upload process “necessarily involves copying” a file from the user's computer to the Cloud Locker. Regardless, at the end of the process, the digital music file is located in the Cloud Locker and not on the user's computer. Moreover, Media Manager deletes any additional copies of the file on the user's computer and connected devices.
Once uploaded, a digital music file undergoes a second analysis to verify eligibility. If ReDigi determines that the file has not been tampered with or offered for sale by another user, the file is stored in the Cloud Locker, and the user is given the option of simply storing and streaming the file for personal use or offering it for sale in ReDigi's marketplace. If a user chooses to sell his digital music file, his access to the file is terminated and transferred to the new owner at the time of purchase. Thereafter, the new owner can store the file in the Cloud Locker, stream it, sell it, or download it to her computer and other devices. No money changes hands in these transactions. Instead, users buy music with credits they either purchased from ReDigi or acquired from other sales. ReDigi credits, once acquired, cannot be exchanged for money. Instead, they can only be used to purchase additional music.
ReDigi claimed that it was protected by 17 USC 109. After all, according to the description, it was transferring the work (the song) from the owner to ReDigi, and then to the new owner. Not so, said the court. As the court notes, Section 109 protects only the disposition of particular copies (phonorecords, really) of the work. And uploading a file and deleting the original is not transferring a phonorecord, because the statute defines a “phonorecord” as the physical medium in which the work exists. Transfer from one phonorecord to another is not the same as transfering a particular phonorecord. So, ReDigi could be a secondary market for iPods filled with songs, but not the songs disembodied from the storage media.
As much as I want the court to be wrong, I think it is right here, at least on the narrow, literal statutory interpretation. The words say what they say. Even the court notes that this is an uncomfortable ruling: “[W]hile technological change may have rendered Section 109(a) unsatisfactory to many contemporary observers and consumers, it has not rendered it ambiguous.”
Once the court finds that transferring the song to ReDigi is an infringing reproduction, it's all downhill, and not in a good way. The court notably finds that there is no fair use. I think it is here that the court gets it wrong. Unlike the analysis of Section 109, the fair use analysis is short, unsophisticated, and devoid of any real factual analysis. I think this is ReDigi's best bet on appeal.
Even despite my misgivings, ReDigi's position is not a slam dunk. After all, how can it truly know that a backup copy has not been made? Or that the file has not been copied to other devices? Or that the file won't simply be downloaded from cloud storage or even iTunes after it has been uploaded to ReDigi.
If ReDigi, which seemed to try to do a good job ensuring no residual copies, cannot form a secondary market, then what hope do we have? We certainly aren't going to get there with the statute we have, unless courts are much more willing to read a fair use into transfers. The real problem is that the statute works fine when the digital work (software, music, whatever) is stored in a single use digital product. When we start separating the “work” from the container, so that containers can hold many different works and one work might be shared on several containers all used by the same owner, all of the historical rules break down.
So, what do we do if we can't get the statute amended? I suspect people will hate my answer: a return to the dreaded DRM. A kinder, gentler, DRM. I think that DRM that allows content providers to recall content at will (or upon business closure) must go -- whether legislatively or regulatorily. It is possible, of course, for sophisticated parties to negtotiate for such use restrictions (for example, access to databases), and to set pricing for differing levels of use based on those negotiations. That's what iTunes does with its "rentals."
But companies should not be allowed to offer content "for sale" if delivery and use is tied to a contract or DRM that renders that content licensed and not in control of buyers. This is simply false advertising that takes advantage of settled expectations of users, and well within the powers of the FTC, I believe.
But DRM can and should be used to limit copying and transferrability. If transferability is allowed, then the DRM can ensure that the old user does not maintain copies. Indeed, if content outlets embraced this model, they might even create their own secondary markets to increase competition in the secondary market. In short, the solution to the problem, I believe, is going to be a technical one, and that might be a good thing for users who can no credibly show that they won't copy.
And DRM is what we are seeing right now. Apparently, ReDigi has reimplemented its service so that iTunes purchases are directly copied to a central location where they stay forever. From there, copies are downloaded to particular user devices pursuant to the iTunes agreement. This way, ReDigi acts as the digital rights manager. When a user sells a song, it ReDigi cuts off access to the song for the selling user, and allows the buying user access without making a new copy of the song on its server. I presume that its media manager also attempts to delete all copies from the sellers devices.
Of course, this might mean that content, or at least transferring it, is a little more expensive than before. But let's not kid ourselves - the good old days weren't that good. You had to buy the whole CD, or maybe a single if one was available, but you could not pick and choose any song on any album. Books are heavy and bulky; you couldn't carry thousands of them around. And DVDs require a DVD player, which has several limitations compared to video files.
DRM may just be the price we pay for convenience and choice. We don't have to pay that price. Indeed, I buy most of my music on CD. And I get to put the songs where I want, and I suppose sell the CD if I want, though I never do. As singles start costing $1.50, it may make sense to buy the whole CD. Alas, these pricing issues are incredibly complex, which may take another post in the future.
Wednesday, April 03, 2013
...it's good to be here, and I'm glad to be back. I plan to blog about a few different IP/Internet topics this month, including the CFAA and some recent copyright cases.
I'm traveling this week, so likely won't jump in for a couple days. In the meantime, a few plugs.
Here are some links to recent blog posts I've written that might be of interest to readers here:
My thoughts on the SHIELD Act (one way fee shifting against patent trolls)
My Wired Op-Ed on NPEs
I'm also speaking at two events in April, including this Friday. Please come if you can make it! (You have to register for the design patent conference.)
Finally, I've finally joined twitter:
That's it for the shameless self promotion for now. I look forward to the rest of the month.
Thursday, January 31, 2013
Wrap-Up for Book Club on "Justifying Intellectual Property"
- Introductory Post
- Gordon: Thoughts on Justifying Intellectual Property
- Masur: The New Institutional Philosophy of Rob Merges
- Merges: Merges on Gordon on Rawls and IP
- Gordon: Replying to Rob Merges, Justifying Intellectual Property
- Bracha: What Good are Midlevel Principles in IP? [Thoughts on Justifying IP]
- Merges: Midlevel Principles: Response to Jonathan Masur
- Merges: Even More on Midlevel Principles in IP Law - Response to Bracha
- Duffy: Merges and Descartes
- Hughes: More on Rawls and Intellectual Property
- Bracha: Still on Midlevel Principles in IP: A Reply to Rob Merges
- Masur: Masur on Merges on Masur on Merges
- Merges: Justifying IP: Putting the Horse Before Descartes (Response to Duffy)
Wednesday, January 30, 2013
ost Book Club: Justifying IP -- Putting the Horse Before Descartes (Response to Duffy)
In this, my final response to the many interesting posts in my book, I want to traverse some comments that John Duffy made. To the other authors of posts, especially those who wrote reactions to my responses -- we will have to continue offline. I have taken too much space already. And the many readers of Prawfsblawg who care nothing for IP are I am sure tired of all this.
I am going to skip over the blush-inducing praise in John's post, and get right to his main point. He says:
" [I]f we are frustrated with the complexities of economic theories and are searching for a more solid foundation for justifying the rules of intellectual property, is Kant (or Locke or Rawls or Nozick) really going to help lead us out of the wilderness?"
John says no. He says further that just as Descartes' doubts drove him to embrace foundations that were thoroughly unhelpful when it came to elucidating actual physical reality, such as planetary motion, so my doubt-induced search for solid foundations will lead nowhere (at best), and maybe to some very bad places (at worst).
This argument may be seen to resolve to a simple point, one often made in legal theory circles: "It takes a theory to beat a theory." (Lawrence Solum has an excellent entry on this topic in his Legal Theory Lexicon, posted on his Legal Theory Blog some time back.) The idea here is that utilitarian theory is a true theory, because it is capable of proof or refutation and because it guides inquiry in ways that could lead to better predictions about the real world. By this criterion, deontic theories are not real theories because they cannot be either proven or refuted. Einstein's famous quip comes to mind; after a presentation by another scientist, Einstein supposedly said "Well, he wasn't right. But what's worse is, he wasn't even wrong."
My response starts with some stark facts. We do not know whether IP law is net social welfare positive. Yet many of us feel strongly that this body of law, this social and legal institution, has a place in a well-functioning society. Now ,we can say the data are not all in yet, but we nevertheless should maintain our IP system on the hope that someday we will have adequate data to justify it. The problem with this approach is, where does that leave us in the interim? We could say that we will adhere to utilitarian theory because it stands the best chance of justifying our field at some future date -- when adequate data are in hand. But meanwhile, what is our status? We are adhering, we say, to a theory that may someday prove true. By its own criteria it is not true today, not to the level of certainty we require of it (and that it in some sense requires of itself.) But because it will be "more true" than other theories on that magic day when convincing data finally arrive, we should stick to it.
My approach was to turn this all upside-down, I started with the fact that the data are not adequate at this time. And I admitted that I nevertheless felt strongly that IP makes sense as a field; that it seems warranted and even necessary as a social institition. So it was on account of these facts that I began my search for a better theoretical foundation for IP law.
If you have followed me so far, you will not be surprised when I say that for me, Locke, Kant and Rawls better account for the facts as I find them than other theries -- including utilitarianism. Deontic considerations explain, to me at least, why we have an IP system in the absence of convincing empirical evidence regarding net social welfare. Put simply: We have IP, regardless of its (proven) effect on social welfare -- so maybe (I said to myself) *it's not ultimately about social welfare*.
This is the sense in which, to me, deontic theory provides a "better" theory of IP law. It fits the facts in hand today, including the inconvenient fact of the absence of facts. Of course, we may learn in years to come that the utilitarian case can be made convincingly. I explicitly provide for this in JIP, when I say that there is "room at the bottom," at the foundational level, for different ultimate foundations and even new ultimate foundations. It's just that for me, given the current data, I cannot today make that case convincingly. And it would be a strange empirically-based theory that asks me to ignore this key piece of factual information in adopting foundations for the field. To those who say deontic theories cannot be either proven or disproven, I offer the aforementioned facts, and say in effect that an amalgam of deontic theory does a better job explaining why we have IP law than other theories. And therefore that it is in this sense "more true" than utilitarian theory. Again, it fits the facts that (1) we do not have adequate data about net social welfare; and (2) we nevertheless feel IP is an important social institution in our society and perhaps any society that claims to believe in individual autonomy, rewards for deserving effort, and basic fairness.
One final point: to connect Kant with Hegel with Marx, as John does, is a legitimate move philosophically. But I have to add that for many interpreters of Marx, he is the ultimate utilitarian. What is materialism, as in Marxist historical materialism, but a system that makes radically egalitarian economic outcomes the paramount concern of the state? The famous suppression of individual differences and individual rights under much of applied Marxist theory represents the full working out of the utilitarian program under which all individuals can be reduced to their economic needs, and all government can be reduced to a mechanistic system for meeting those needs (as equally as possible)? If we are going to worry about where our preferred theories might lead if they get into the wrong hands, I'll take Locke and Kant and Rawls any day. In at least one form, radical utilitarian-materialism has already caused enough trouble.
This is hardly all there is to say, but it is all I have time to say. So I will keep plodding along, like a steady plow horse, trying not only to sort out the foundational issues, but also to engage in policy discussion and doctrinal analysis. And with this image I close, having once again put the (plow) horse before Descartes in the world of IP theory.
Masur on Merges on Masur on Mergers
I greatly appreciate Rob Merges' generosity in taking the time to respond to my original post. His response is, characteristically for Rob, incisive and thoughtful. I am not sure, in the end, how much we really disagree. But I will take a shot at briefly disentangling and clarifying a few points with the goal of identifying whether or not disagreement actually exists.
Rob is absolutely correct that there are two separate questions: 1) whether an IP system can be justified at all; and 2) how well a particular system is performing. Rob argues that, with respect to question #1, the IP system cannot be justified on economic (by which we mean utilitarian or welfarist) grounds. Why would this be? One possibility is that utilitarianism or welfarism or consequentialism (which is what we mean when we talk about an "economic" foundation) cannot provide a morally satisfactory basis for intellectual property rights. There is a short section in the book (pages 151-153) that coulud be read as developing this argument, but that section is better understood as a critique of a completely unfettered free market, a point with which few economists would disagree. As a general matter, the book does not appear to be making this point, and indeed it would be a mammoth undertaking to do so (even for Rob Merges and this book) given the extensive arguments that scholars have been making for centuries about welfarism as a moral foundation. Rob will correct me if I am wrong, but I do not understand this to be his main argument.
A second possibility is that economics (read: utilitarianism or welfarism) cannot generate the midlevel principles that operate in intellectual property. But as I pointed out in my previous post, it can generate them -- or at least the ones that are really central to the American IP system.
The third possibility, and the one I understand Rob to be advancing, is that the IP system, as it is currently constituted, does not actually promote the utilitarian ends that an economic approach would demand. That is: as an empirical matter, IP doctrines as they operate today do not actually increase social welfare. As Rob wrote in his post:
"The data required by a comprehensive utilitarian perspective are simply not in evidence in this field -- at least not yet. Put simply, I do not think we can say with the requisite degree of certainty that IP systems create net positive social welfare."
That seems exactly right to me, and this is why I believe that Rob and I are actually in violent agreement as to most of the important issues. But this means that economics fails in response to Rob's question #2 -- how well is the system actually performing? -- rather than question #1, which is how the IP system can be justified on a theoretical basis. That is why I wrote that economics has failed an empirical test, while Rob's deontic theory has passed a theoretical test. This touches upon an excellent point made by a commenter to my first post. This is not a reason to abandon deontic theory; rather, the point is simply that when we evaluate different types of theories, we should do on comparable grounds.
Nor do I mean at all to say that Rob's deontic theory is not correct, or compelling, or even superior to economics. It is certainly the first two and maybe the third as well. It is just that I do not believe a utilitarian economic theory can be ruled out on the theoretical grounds used to evaluate Lockean and Kantian deontic theories. Economics is part of the overlapping consensus as well.
Book Club: Even More on Midlevel Principles in IP Law - Response to Bracha
In a previous post I explained the concept of midlevel principles in IP law. In this post I respond to a couple of detailed points made in a very insightful post on this topic by Oren Bracha. Oren has a number of interesting things to say, but his critique has two main points: (1) the conservative bias of midlevel principles; and (2) the fuzzy nature of midlevel principles, a product of their origin in a (hypothetical) consensus-building procedure.
(1) The conservative bias: I think there are two senses of "conservative." In my view, what are conserved are meta-themes that derive from but transcend specific practices. These themes do not uniformly point to results that are "conservative" in the other sense -- tending to preserve the status quo; continuing with trends currently in place. Let me illustrate with two specific examples. When Wendy Gordon introduced the idea of "fair use as market failure," she tied together a number of emerging themes in copyright law and connected them with a large body of thought (including caselaw) that came before. But her ideas -- based largely on what I would call the efficiency principle, though surely infused also with considerations of proportionality, nonremoval (public domain), and perhaps even dignity -- were not conservative with respect to outcomes. In fact they created a revolution in consumer or user rights, by shifting the focus from the copyright owner's interests, the amount copied, etc., to higher-level issues such as transaction costs and the nature of markets for IP-protected works.
A second example is eBay. The majority opinion, based on traditional equity doctrine (as codified in the Patent Act), was conservative in the sense that it deployed well-known rules. The Kennedy concurrence had a richer policy discussion, which centered (in my view) on the proportionality principle. The basic idea was that sometimes the automatic injunction rule gives patent owners "undue leverage" in negotiations; and that equity was flexible enough to take this into account. I see this as the embodiment of a very general principle, one that finds expression in many areas of IP law, from the rules of patent scope (enablement, written description, claim interpretation, etc.) to substantial similarity in copyright law, and so on. Again the discussion "conserved" on meta-principles by deploying a familiar theme from the body of IP law. But the outcome was not therefore necessarily conservative in the sense of preserving the staus quo. The status quo heading into the case was the automatic injunction rule. And that was rejected in favor of a more flexible approach.
(2) The fuzz factor: Oren's second point is that the midlevel principles just do not seem to have the requisite level of granularity to resolve difficult problems in IP policy. This leads him to conclude that the only way to gain true resolution is to engage each other at the (admittedly contentious) level of our foundaional commitments.
Here I would advert to the master for some guidance. John Rawls, in A Theory of Justice, describes a detailed multi-stage procedure by which fair institutions can be established. In the course of the discussion he says this about the problem of fuzziness:
"[O]n many questions of social and economic policy we must fall back upon a notion of quasi-pure procedural justice: laws and policies are just provided that they lie within the allowed range, and the legislature, in ways authorized by a just constitution, has in fact enacted them. This indeterminacy in the theory of justice is not in itself a defect. It is what we should expect. Justice as fairness will prove a worthwhile theory if it defines the range of justice more in accordance with our considered judgments than do existing theories, and if it singles out with greater sharpness the graver wrongs a society should avoid." (A Theory of Justice, sec. 31, pp. 200-201).
So foundational consensus will inevitably be general. But that does not mean that citizens cannot engage each other in contentious argument at more operational, implemenetation-oriented stages. The way I see things, the midlevel principles are expansive enough to cut through the generality required to agree on them. (Note that this pluralistic sensibility is a product not of the early Rawls of A Theory of Justice but of the later Rawls of Political Liberalism.) These principles admit of sharper disagreement and a deeper level of engagement than Oren seems to believe. Perhaps they require greater elaboration than my brief treatment made possible. But they are not in my view fatally vague as a vocabulary of policy debate.
I should add one additional point. Oren notes my emphasis in JIP on the complete independence of foundational commitments and midlevel principles. I have begun to rethink that a bit, based in large part on a thoughtful critique of this aspect of the book by David H. Blankfein-Tabachnick of Penn State Law School. His critique and my response are both still in process and are forthcoming in the California Law Review, so I do not want to say too much. But suffice it to say that I have rethought the "complete independence" thesis a little bit. I can see that in a few rare instances, where policy issues are in equipoise, resort to one's ultimate commitments -- the foundations of the field as one sees them -- may be useful and even necessary. So, to close with Oren's wonderful imagery, after the flash of white light on the road to Damascus, the rider surely does remount and head on down the road. But he or she is changed utterly at some level -- and that change is bound to peek out, now and then, in the clinch.
Book Club: Justifying IP -- Midlevel Principles: Response to Jonathan Masur
In this post I respond to some comments on my book (abbreviated "JIP") by Jonathan Masur. It is not surprising to me that Jonathan takes aim at Part II of JIP, in which I introduce and explain what I call the midlevel principles of IP law. It seems whenever the book is addressed in depth (most notably at a full-day conference at Notre Dame organized by Mark McKenna; and a number of discussions at a conference on the Philosophy of IP rights at San Diego convened by Larry Alexander), this is the topic that seems to stir up the greatest interest.
Before I turn to Jonathan's specific points, let me say a word about what I mean by midlevel principles. Basically, these are meta-themes in IP law that mediate between pluralist foundational commitments and detailed doctrines and case outcomes. They are meant to serve as the equivalent of shared basic commitments in the “public” and “political” sphere as described by Rawls in his book Political Liberalism (2005). That is, midlevel principles supply a shared language, a set of conceptual categories, that are consistent with multiple diverse foundational commitments. They are more abstract, operate at a higher level, than specific doctrines and case outcomes; but they are pitched in a language that is distinct from that of foundational commitments. They create, as I say in JIP, a shared public space in which abstract (non-case-specific) policy discussions can take place. The payoff is this: a committed Kantian can conduct a sophisticated policy argument with a firm believer in the Talmudic (or Muslim, or utilitarian) basis of IP law about the proper scope of fair use in copyright, or the proper length of the term for patent protection, or what should be required to prove that a trademark has been abandoned. The argument can proceed without the Muslim needing to convert the Kantian or utilitarian to a religious worldview, and without the Kantian talking others out of the view that religious texts provide a set of workable guiding principles for right behavior. Diverse people can – and indeed, often do! – speak in terms of an appropriate public domain (i.e., the nonremoval principle); a fair reward for creators (the proportionality principle); the importance of moral rights (the dignity principle); or the cheapest way to offer legal protection at the lowest net social cost (the efficiency principle). All without the conversation devolving into fights over ultimate commitments.
Jonathan Masur recognizes the versatility of the midlevel principles. And he acknowledges that although these principles are fully consistent with utilitarian foundations, the IP system as a whole has failed to fully implement the policies called for by those with a thorough commitment to utilitarian foundations. As he puts it:
"The problem, as Merges correctly describes it, is that IP doctrine, as implemented by courts and other parties, has failed to advance the economic aims that it set out. This is an empirical judgment, and quite possibly a correct one."
As Masur notes, I have come to believe that utilitarian foundations are inadequate in the IP field. The data required by a comprehensive utilitarian perspective are simply not in evidence in this field -- at least not yet. Put simply, I do not think we can say with the requisite degree of certainty that IP systems create net positive social welfare. Yet I still had the intuition that IP rights are a valuable social institution. Which is what led me to search for alternate foundations. Hence Part I of JIP, in which I describe foundational commitments growing out of the ideas of Locke, Kant and Rawls. These deontic conceptions provide a better set of foundational commitments for the IP field, in my view. Others of course disagree, which is why the midlevel principles are so important as a shared policy language for those with divergent foundational commitments.
Masur notes the lack of empirical support for utilitarian IP foundations, but says in effect that deontic foundations do not provide much of an alternative. As he puts it,
"But what is the comparable standard by which a deontic conception of IP is to be judged? What would it mean for IP doctrine in practice not to have properly advanced Lockean or Kantian ethics? How could anyone tell? The problem—or, more accurately, the advantage for Kant and Locke—is that those approaches are purely theoretical and do not generate testable predictions. Economic theory has foundered on a set of tests that cannot be applied to the alternatives Merges proposes."
The way I see things, Jonathan has conflated two separate issues here. The first is whether IP can be justified at all. The second is how well any particular IP system is performing, given that there is a basic consensus that there should be such a system in the first place. The first issue is where foundational commitments come in. The second is operational; it is a question more of "how" or "how well" as opposed to "whether." (I address this in more detail in an article forthcoming in the San Diego Law Review, "The Relationship Between Foundations and Principles in IP Law.")
Seen in this light, there is no need for empirical tests to prove the viability of Lockean, Kantian, and/or Rawlsian foundations for the field. The only question that needs to be answered is whether a body of IP law can be envisioned that is consistent with these systems of philosophical thought. If so, the foundational question has been successfully answered. Then it's on to the operational level -- designing actual institutions and rules to implement a workable IP system. In my view this is where the efficiency principle comes into play: one important design principle for IP law is and should be getting from our IP system the greatest social benefit at the lowest net cost (as best we can estimate these values). Efficiency is an operational (midlevel) principle, in other words. It does not (and in my view cannot) justify the existence of the field. But it can serve us well in crafting the detailed operations of the field -- once we decide, consistent with ultimate commitments, that it makes sense to have such a field in the first place.
Tuesday, January 29, 2013
Merges on Gordon on Rawls and IPWendy Gordon, as might be expected, gets right to the heart of the most difficult issues in her post on the Rawls chapter in my book, Justifying Intellectual Property ("JIP"). In this post I want to give some quick context and then point the interested reader to the fuller discussion that addresses the issues Wendy raises. Chapter 4 of JIP is on "Distributive Justice and IP Rights." It comes after an introductory chapter that lays out the architecture of the book, and then two chapters on foundational figures in the philosophy of property rights, Locke and Kant. While Locke and Kant are both sophisticated enough to include "other-regarding" features in their accounts of property, I wanted to include a more thorough, systematic, and comprehensive account of distributive justice issues in my discussion of IP rights. So naturally I turned to Rawls. Rawls himself, especially the early Rawls of A Theory of Justice, is fairly lukewarm on private property. But there is a good bit of subsequent literature that extends and adapts Rawls's framework in various ways that reflect more contemporary concerns. And of course since the 1970s there has been a huge upswelling of interest in property theory and philosophical discussions of private property. (Think Jeremy Waldron, The Right to Private Property; Stephen Munzer, A Theory of Property; Richard Epstein's Takings book and subsequent writings; Henry Smith, Lee Ann Fenell, Carol Rose, Greg Alexander, etc. etc. And in IP law, Peggy Radin, Wendy herself (indispensable on Locke) and others.) So it was in this spirit of updating and adapting that I tried to defend IP rights as consistent with a comprehensive Rawlsian account of distributive justice. I began, reasonably enough I think, with Rawls' two principles of justice. Principle 1 says that all persons have an equal right to the most extensive system of basic liberties that is consistent with the liberty of others (the "liberty principle"). The balancing of individual ownership with the interests and rights of the community is a major theme of contemporary property theory -- arguably *the* major theme. So it was relatively easy to draw on the property rights literature for a defense of property (and particularly IP rights) under the liberty principle. I will spare you the details here; but I would add that for me Kant's emphasis on property as a way to facilitate personal autonomy factors heavily into my description of IP as a true, basic individual right. Rawls aficionados will recognize that I could have stopped there. Under his "lexical priority" approach, if a right is demanded by the liberty principle it need not be justified in terms of the second principle. Because I was not sure everyone would buy my defense of IP under the first principle, and more importantly because I could not resist the challenge, I also tried to defend IP under Rawls's second principle. The second principle is the famous "difference principle." A deviation from strictly equal resource allocation can be justified only if it results in the greatest benefit to the least advantaged members of society. My argument here is based on the fact that industries reliant on IP rights contribute significantly to the quality of life of the poorest members of society. Popular culture (including much TV programming); technological improvements such as air conditioning; low-cost long-distance communication and transportation (especially important for immigrants); and cost-saving innovations of all kinds (mobile phones, hypertension medicines, etc.) are, the data show, highly valued by low-income members of our society. These data are surely what Wendy Gordon has in mind when she says that I have not persuasively defended IP under Rawls's second principle. She makes a good point. IP rights stand behind a number of personal fortunes that in themselves represent wildly extravagant deviations from a pure egalitarian distribution (think Bill Cosby, Bill Gates, Jay-Z, George Lucas, Oprah Winfrey). Consumer enjoyment, particularly for the least advantaged, must be factored into a discussion of these fortunes and the institutions (including IP rights) that make them possible. I would note, incidentally, an interesting feature of my list of IP-backed fortunes. Did you notice that 3 of the 5 people mentioned are African Americans? While not strictly relevant to the second principle, I think it is interesting that so many prominent fortunes in the African American community have been enabled by IP rights. This may not be justifiable unless the poorest of our citizens somehow benefit from the conditions that make these fortunes possible, but it is surely an interesting point from the general perspective of distributional concerns in our socio-economic system. (Incidentally, Justin Hughes and I have undertaken some joint work to pursue this idea in more depth). Nevertheless, as I acknowledge in JIP, what I provide is really not much more than a sketch of a full-blown defense of IP under the difference principle. A fuller defense would have to accept the higher marginal prices brought about by IP, and balance these against the consumer surplus created even for the poorest members of society by IP-based entertainment and technology products. My defense gestures in this direction but falls far short of being truly comprehensive. On the other hand, at least I have tried to integrate a comprehensive account of distributive justice into the discussion of IP rights. It may be less than a full feast. But perhaps it's also more than chopped liver.
Thoughts on "Justifying Intellectual Property" from Wendy Gordon
Here is an initial post for the book club from Wendy Gordon, William Fairfield Warren Distinguished Professor, Boston University, and Professor of Law, BU School of Law:
Rob Merges’s new book book is an immense achievement. Intellectually it is stunning, plus Rob is an amazing and appealing writer.
Not since Peter Drahos’s 1996 book, A Philosophy of IntellectualProperty, has someone attempted to bring together a plethora of philosophic perspectives on IP. Rob adds to this panoptic philosophic view a sharp knowledge of economics, and he puts at the center an acute recognition of how much we need – and lack—crucial empirical evidence about the effects of IP.
Ironically, it’s Rob’s valuable focus on the need for better facts that fails him in the chapter on Rawls. Rob argues that broad IP rights are consistent with giving Rawlsian priority to the worst off in society. But the Rawls chapter is riddled with factual assumptions which, if empirically investigated, might well prove the opposite.
One could quibble on philosophic grounds with Rob’s interpretation of Rawls (details of quibble available on request), but even on Rob’s own terms it’s far from clear that the worst-off benefit from the restraints that patent and copyright impose on the use of inventions and works of authorship.
Book Club on "Justifying Intellectual Property"
Welcome to the Book Club on Robert Merges' Justifying Intellectual Property. Joining us for the club will be:
- Oren Bracha, University of Texas School of Law
- John Duffy, University of Virginia School of Law
- Wendy Gordon, Boston University School of Law
- Justin Hughes, Benjamin N. Cardozo School of Law
- Jonathan Masur, University of Chicago Law School
- and our author, Robert Merges, University of California Berkeley School of Law
Tuesday, December 11, 2012
Incentive Granularity and Software Patenting
For my last post, I would like to address a comment repeatedly seen on my prior post: “Show me an invention that would not have happened for the entire patent term, and maybe then we can discuss whether the patent system does any good.”
I’m not convinced this is the right level of granularity. But first, a couple caveats:
- I tend to think the patent term is too long for the speed at which technology develops today, especially computer software. This may not be true for pharmaceuticals, which leads to tension in the system.
- Of course we should look at whether individual patents were incentivized by the patent grant. It would be a bad system indeed if we protected everything that would have occurred anyway. Note that I think the “inducement” standard proposed by Duffy & Abramowicz and discussed in my previous post has some real merit.
But even with these two caveats, that’s not the question we should be starting with. The goal of the patent system is to promote progress of the useful arts. That might happen by encouraging investment in start-ups. That might happen by encouraging research & development funding. That might happen by inventions that come earlier than they would have, even if they would have otherwise come within 20 years. That might happen by allowing inventors some breathing room to invest in commercialization and dissemination of the invention. That might even happen by ending duplicative (wasteful) races carried out in secret. And all of these things might create costs, perhaps tremendous costs for some who come later.
To be sure, there is great (and I do mean tons of) study and debate about whether any of these benefits actually materialize and outweigh the costs. The analysis, though, takes place at a higher level than whether each and every invention would have come about within 20 years. That analysis – or something like it – certainly has its place, but not when assessing the system as a whole. And that's all I have to say about that.
Thanks again to Prawfsblawg for having me back. I enjoyed my stint, in what may be the most active commenting I’ve received (which may not be a good thing!).
Tuesday, November 27, 2012
Two Worlds of Software Patents
I recently participated in Santa Clara Law School's great conference on "Solutions to the Software Patent Problem." The presentations were interesting and thoughtful, and...short! A total of 34 presentations in one day, including some Q&A from the audience. Op-Eds from the conference are continuing to appear at Wired Magazine's blog, and Groklaw has a fairly thorough article summarizing the presentations.
I want to focus this post on an epiphany I had at the conference, one that is alluded to at the end of the Groklaw article. In short, there appear to be at least two world views of software patenting (there is probably a third view, relating to natural rights and property, but I'm going to put that one to the side). More after the jump.
On the one hand, you have the utilitarians, who believe that the costs of patenting might be worth the benefits of patenting. Or maybe they aren't, but that's the important question to them: to what extent does allowing software patent drive innovation? The Groklaw article implies that this group is primarily large corporate interests, but I think that's too restrictive. For example, I'm unabashadly a member of this world view, and my affinity is toward start-ups.
On the other hand, you have what I'll call the friends of free software (more fully called FOSS - Free and Open-source Software). These individuals believe that software is thought, and math, and that no one can own it. I've found that some take this view to the extreme - they have no problem with a circuit that performs the same thing as software, so long as it is performed in hardware. Members of this group believe that software patents should be unpatentable as a matter of principle, and that by allowing any kind of software patenting bad things will happen to individual programmers, to free software, and in the world generally. As further evidence that the divide is not just about large corporate interests, there are plenty of people who subscribe to this world view that started large successful companies.
Now, here is the epiphany - I belive that bridging these two worlds is possible if one believes that any software patent should issue. (If you agree that software patents can never satisfy utilitarian ends, then you can bridge the worlds. Benson Revisited by Pamela Samuelson is a great example of such a bridge.)
Believe me, I tried to make the leap. I wrote a lengthy post at Groklaw that garnered more than 1300 comments where I tried to better understand the free software view and they tried to understand mine.
Surely, I thought, they might see that there are some lines that can be drawn that would allow for inventive software innovations. Surely, I thought, we can discuss some tweaks that would help alleviate the deleterious effects of low quality patents but save the system for one good software patent.
Surely, they thought, I would see how software patents are a bane to society, and must just go. Surely, they thought, I would see that there is no such thing as a good software patent.
The problem is that the goals of each world view are just too different. The following exchange from the Santa Clara conference between John Duffy and Richard Stallman drives the point home. I'm paraphrasing the statements, of course:
[Stallman's keynote]: Companies don't need software patents to innovate - just look at the rise of Google. [later] My proposal is that we can enforce software patents in standalone devices but not in general purpose computers.
[Duffy's talk]: I'm glad Stallman points out that software companies don't need patents - I think we agree on a solution. My proposal is that if an inventor is not induced to invent because of the prospect of a patent, then the invention is obvious and no patent should issue.[later]Stallman's proposal, though, is a kludge - a patch on the system rather than an elegant solution like redefining obviousness.
[Stallman in response to Duffy]:It doesn't matter if the patent induced the invention, it is still a bad patent. It may actually be worse, because now it can't be invalidated. My solution is not a kludge, because it handles the very real problem of software patents and eliminates it.
[Duffy]: But you have to look at the ex ante incentive to invent. If we don't allow patent enforcement, inventions might not happen that would have happened with the patent system.
[Stallman]: It's OK if we don't get those inventions. Maybe they will be developed, maybe they won't, maybe they will take longer, but the harm to any future software programmer/company is never justified by encouraging that investment with a patent.
And there you have the core of the problem. Utilitarians like Duffy (and me) believe that it is worth driving the ex ante incentive to innovate, but trying to hone the system to minimize collateral damage. Free software folks like Stallman (and probably 99% of Groklaw readers) believe that the collateral damage never justifies the ex ante incentive in a practical way.
You can see the core of these arguments in the debate about whose invention is elegant and whose is a kludge. Duffy believes that tweaking inducement to invent is elegant because that's what utilitarianism is all about. Just barring patents on general purpose computers is a patch, because there might be valuable innovations in the use of general purpose computers that are worth encouraging. Investment in standalone software might decline if there is not general purpose application at the end of the rainbow, especially in the age of smartphones.
On the other hand, Stallman believes that barring enforcement on general purpose computers is elegant, because it eliminates the most harmful effects to programmers. He believes that changing obviousness is a kludge, because it refuses to acknowledge that even the patents that come from the new rules will be bad for society. As Stallman commented to me after the conference: "There may be weak patents, and there may be strong patents, but they are all bad patents."
So, where does that leave us? I don't know, but I have to think it is helpful to understand why we can't seem to understand each other. I'm not sure where it leaves the utilitarians. They seem to be winning in policy circles, as this recent speech by PTO director David Kappos shows, but utilitarians can't even seem to agree among themselves the best course of action with software patents. Perhaps this recognition will aid those with the free software view to hone their arguments in a way that will get more policy traction - by making their same important points, but somehow framing them in a langauge utilitarians will hear. Samuelson's Benson Revisited article is a good example.
UPDATE: Thank you all for the thoughtful comments. It's really the only way to know anyone is reading at all. Because there are some common themes in the comments, I thought I would respond here rather than a long comment.
Theme 1: Software is just ideas and math, the debate isn't utilitarian because you never get to patenting in the first place. I would submit that a) this is evidence of a separate world view (and one widely shared - by calling it separate, I don't mean to disparage it). However, it also reveals an important definitional divide -one I thought about putting into the main post, but then decided against as it ran too far afield of my point. Maybe I was wrong about that. The question is what is software. One comment below essentially says, "Well, of course circuits are patentable and software isn't. Software is just abstract math." The problem is that most patents don't claim just the abstract math part. They claim "The steps of making A happen by doing X, Y, and Z." Once you view a patent that way, a circuit and software are equivalently infringing if they do X, Y, and Z - they are the same - a means to some other patented end. This is another bridging difficulty. FOSS folks may think utilitarians are not hearing their points about math, but reading some of these comments (asking me to "wake up," for example) sure makes me feel like my points about how process patents work are not being understood.
Theme 2: Software patents harm innovation. This might be true, but you have to look at the benefits on the front end. It's an ex post v. ex ante thing. Utilitarians will agree that software patents harm innovation on the backend if they can get the benefits on the front end. This leads to...
Theme 3: Software patents don't help innovation on the front end. This is facially a utilitarian argument, I will admit. Commentors ask, "show me the evidence of such benefits." And that is what utilitarians debate about - whether the evidence is there.
But here's the thing - and the reason why I put in the Duffy/Stallman exchange that was so eye-opening for me. Duffy was quite clear: If there is no software patent that would have been induced by the patent system, then fine, there should be no software patents. He thought there was agreement. But Stallman was quite clear that no, even if there was such a patent that withstood that test, that survived the evidence, it would still be bad and should still be unenforceable. That was the point of my post. For all those people who say there is no evidence, I ask you: what if that evidence came? What then? Would you change your mind? I suspect most would say no.
Thursday, November 15, 2012
Sowing Self-Replicating Seeds of Change
The Supreme Court will soon be hearing oral arguments for another case pitting agricultural giant Monsanto against a farmer, Vernon Bowman, whom Monsanto accuses of infringing its genetic seed patents. First some background, then some patent law, then a handful of questions...
At the beginning of any given soybean season, Bowman plants a first soybean crop using expensive patented seeds containing a genetic modification that makes the resulting plants resistant to Roundup® (a common herbicide not coincidentally also manufactured by Monsanto). Bowman harvests the soybeans and sells them to a local grain elevator. Later in the growing season, Bowman plants a riskier (because it’s so late) second soybean crop, but instead of using expensive patented seeds purchased from Monsanto’s licensees, Bowman buys cheap commodity seeds from a grain elevator (maybe the same ones he sold the year before, the commodity seeds are saved from the previous year’s growing season). Because so many farmers use Roundup Ready® brand seeds from Monsanto, about 94% of the undifferentiated seeds available for purchase from the grain elevator display Roundup Ready® traits.
Bowman (and anyone who purchases patented seeds from Monsanto’s licensees) must enter into a technology agreement with Monsanto that forbids him from replanting saved seeds but does not forbid him from selling his harvested crop to a grain elevator (for obvious reasons). Bowman is not violating his license agreement. The problem? The harvested crop consists of seeds ready for replanting (soybeans, by their nature, self-replicate). Bowman and his fellow farmers avoid buying expensive seeds for that risky second season: if everyone sells their seeds back to the grain elevator in season 1, then when the seeds are bought in season 2, they will be predominantly Roundup Ready® at a fraction of the price. Monsanto sued, claiming that Bowman infringes regardless of being square with his agreement because he is growing Roundup Ready® plants without permission.Patent law can be tricky in this area. The gist is that once the patent owner makes an authorized sale of a patented good, the good can move in commerce (it can be used, sold or offered for sale) without liability to the patent owner for infringement. This is a pretty unremarkable doctrine. If I buy a ballpoint pen covered by a patent, I can resell it on eBay or write a letter with it without paying more to the patentee. Where it gets tricky: determining what “authorized sale” means in a world of licenses and post-sale restrictions. For a long time, courts have refused to enforce post-sale restrictions as to price and territory—we hate those because either they alienate chattel or they give us antitrust heebie-jeebies or both (for example, if my pen had a label that said I could only use it in Louisiana or that I could only resell it for $2). But we’ve held onto field of use licenses (i.e., a licensed radio manufacture may be licensed only to manufacture radios for home use) such that when the license is violated (the licensee sells to a home user in violation of the license), we find infringement. Post-sale restrictions not involving price or territory must be reasonable and not outside the scope of the patent in order to prevent an authorized sale (and thus exhaustion of patent rights) from occurring. For example, when I stamp my patented pre-filled syringe with “no refills, single use only” and sell it to you, provided I’m not violating antitrust laws and provided my patent claims are reasonably related to this condition, when you refill it and sell it to someone else, you are infringing—it’s not an authorized sale because, according to the Federal Circuit in Mallinckrodt, it’s a sale conditioned by the post-sale restriction. These questions were supposed to be resolved by the Court’s 2008 case, LG v. Quanta, but the Court was able to punt them by resolving that case narrowly on the terms of the license to the manufacturer (which was broad enough to give the licensee all of the rights necessary to exhaust the patent with respect to sales to downstream purchasers).
How should the Court decide Bowman then? Monsanto conditionally licenses to the seed companies and the seed companies conditionally sell to the farmers. The Court could hold that the sales are conditioned, so there can be no exhaustion as to farmers who purchase the seed; Monsanto wins. (The Federal Circuit might like this view, as it comports with Mallinckrodt and its other seed cases, Scruggs and McFarland.) Or they could hold that because none of these conditions are violated, it would seem that the patent rights to use and sell the patented technology (the seeds) are exhausted—I’m not infringing when I buy the seeds from the grain elevator, sell them on eBay, or use them as jewelry. But this leaves the patentee’s right to exclude others from making the patented technology. When Bowman buys the undifferentiated commodity seeds from the grain elevator, plants them during his later season and grows plants that produce second-generation seed, is he making the second generation seeds in violation of the patent right to make? And when he sells these second generation seeds, is he running afoul of Monsanto’s right to exclude others from using or selling the technology, creating a perpetual loop of growing and making unauthorized sales back to the grain elevator pool?
The Supreme Court has to figure out whether to clarify (or shutter) Mallinckrodt’s conditional sale doctrine and reconcile Quanta and early twentieth century case law born during a time of great suspicions regarding patent monopolies, or create a rule of law specifically addressing how this all works for self-replicating technology. The term “make” in this context makes very little sense—the licensee seed companies insert the modification into the genome of their seed lines and then produce seeds, the only true manufacturing done in the case. Those seeds carry genetic material that dictates traits, and sexually reproduce to create copies of the genetically modified seeds. Notably, the Plant Variety Protection Act of 1970, a special (and limited) patent right directed toward sexually propagating plant varietals, never mentions the word “make”, just the using and selling of the patented invention. Will the Court recognize, as in the PVPA, that authorizing what you do with the seed (sell to neighbors, keep for yourself, sell to a grain elevator as a commodity, etc.) generates the value for the patentee rather than authorizing creation?
More importantly, as a matter of patent policy, is it better to scrap Mallinckrodt and state more clearly that no post-sale restrictions are enforceable as a matter of both patent and contract law, or would it be better to acknowledge the ill fit of self-replicating technology (seeds in this case, but also nanotechnology and other things on the horizon) in our exhaustion law and create a carve out that leaves post-sale restrictions, whatever may be left after Quanta, intact? Or some third way?
Software Patents and the Smartphone
I will be speaking at Santa Clara Law School's outstanding conference about Solutions to the Software Problem tomorrow. It promises to be a great event, with academics, public interest advocates, and government officials all weighing in.
As a lead-in to the conference, I want to discuss an oft repeated statistic: that there are 250,000 patents that might be infringed by any given smartphone. I'm going to assume that number is accurate, and I have no reason to doubt its veracity. This number, many argue, is a key reason why we must have wholesale reform - no piecemeal action will solve the problem.
Here are my thoughts on the subject:
1. Not all of these patents are in force. Surely, many of them expired due to lack of maintenance fee payments.
2. Not all of the remaining patents are asserted. After all, we don't see every smartphone manufacturer being sued 250,000 times.
3. Many of these patents are related to each other or are otherwise aggregated together. Thus, there are opportunities for global settlements.
4. Even if you think that 250,000 is huge number of patents (and it is, really - there's not disputing that), it is unclear to me why anyone is surprised by the number when you consider what's in a smartphone. More specifically:
- A general purpose computer and all that comes with it (CPU, RAM, I/O interface, operating system, etc.).
- Active matrix display
- Touch screen display
- Cellular voice technology
- 1x data networking
- 3G data networking
- 4G data networking
- Wi-Fi data networking
- Bluetooth data networking
- GPS technology (and associated navigation)
- Accelerometer technology
- Digital camera (including lens and image processing)
- Audio recording and playback
- Battery technology
- Force feedback technology (phone vibration and haptic feedback)
- Design patents
The areas above are by and large "traditional" patent areas - they aren't software for the most part. And there are thousands of patents in each category, before we even get to the potential applications of the smartphone that might be patented (and these are of greater debate, of course).
So, yes, there are many, many patents associated with the smartphone, but what else would you expect when you cram all of these features into a single device? Perhaps smartphones are the focus of the software patent problem because, well, they do everything, and so they might infringe everything. I'm not convinced that this should drive a wholesale reform of the system. Maybe it just means that smartphones are underpriced given what they include. Not that I'm complaining.
Tuesday, November 13, 2012
A couple of years ago, Chief Justice Roberts presided over our College of Law’s moot court competition and our faculty held a reception in his honor. After being introduced to the Chief Justice as our faculty’s one and only patent person, he turned to me and asked, “Are we getting our patent cases about right?” Flustered, I answered, “I think so, sir. They're difficult cases and your opinions are very thoughtful.” I’ve been thinking about this very brief exchange quite a bit these days. The Court has four more intellectual property cases on its docket this term: Kirtsaeng v. John Wiley & Sons (whether copyright exhaustion applies to works purchased legally overseas and imported), Already, LLC v. Nike, Inc. (whether a covenant not to sue for trademark infringement moots a declaratory judgment counterclaim for invalidity), Bowman v. Monsanto Co. (whether the first sale doctrine precludes infringement liability for using seeds produced by GMO plants purchased under a limited license) and Gunn v. Minton (whether federal courts and the Federal Circuit have jurisdiction over a legal malpractice claim involving an underlying patent case). The court has already heard arguments in Kirtsaeng and Already: the transcripts can be found here and here. These cases (copyright and trademark, respectively) likely will have implications for patent law, and Bowman and Gunn address two patent issues that have been percolating in the Federal Circuit and lower courts for some time.
Will the Court get these cases “about right”? We’ll soon find out.
(The Chief Justice was very gracious, by the way. It was a memorable exchange.)
Thursday, November 08, 2012
Cease and Desist
For nearly 10 years, scholars, commentators, and disappointed downloaders have criticized the now-abandoned campaign of the Recording Industry Association of America (RIAA) to threaten litigation against, and in some cases, sue downloaders of unauthorized music. The criticisms follow two main themes. First, demand letters, which mention of statutory damages up to and including $150,000 per infringed work (if the infringement is willful), often lead to settlements of $2,000 - $3,000. A back of the envelope cost-benefit analysis would suggest this is a reasonable response from the receipient if $150,000 is a credible threat, but for those who conclude that information is free and someone must challenge these cases, the result is frustrating.
Second, it has been argued that the statutory damage itself is unconstitutional, at least as applied to downloaders, because it is completely divorced from any actual harm suffered by the record labels. The constitutional critique has been advanced by scholars like Pam Samuelson and Tara Wheatland, accepted by a district court judge in the Tenenbaum case, dodged on appeal by the First Circuit, but rejected outright by the Eighth Circuit. My intuition is that the Supreme Court would hold that Congress has the authority to craft statutory damages sufficiently high to deter infringement, and that there's sufficient evidence that Congress thought its last increase in statutory damages would accomplish that goal.
We could debate that, but I have something much more controversial in mind. I hope to convince you that the typical $3,000 settlement is the right result, at least in file-sharing cases.
The Copy Culture survey indicates that the majority of respondents who support a penalty support fines for unauthorized downloading of a song or movie. Of those who support fines, 32% support a fine of $10 or less, 43% support fines of up to $100, 14% support fines of up to $1,000, 5% support higher fines, 3% think fines should be context sensitive, and 3% are unsure. The average max fine for the top three groups is $209. Let's cut it in half, to $100, because roughly half of survey respondents were opposed to any penalty.
How big is the typical library of "illegally" downloaded files? 10 songs? 100 songs? 1,000? The Copy Culture study reports the following from survey respondents who own digital files, by age group:
18-29: 406 files downloaded for free
30-49: 130 files downloaded for free
50-64: 60 files downloaded for free
65+: 51 files downloaded for free
In the two cases that the RIAA actually took to trial, the labels argued that the defendants had each downloaded over 1,000 songs, but sued over 30 downloads in one case, and 24 downloads in the other. As I see it, if you're downloading enough to catch a cease and desist letter, chances are good that you've got at least 30 "hot" files on your hard drive.
You can see where I'm going here. If the average target of a cease and desist letter has 30 unauthorized files, and public consensus centers around $100 per unauthorized file, then a settlement offer of $3,000 is just about right.
Four caveats. First, maybe the Copy Culture survey is not representative of public opinion and that number should be far lower than $100. Second, misfires happen with cease and desist letters: sometimes, individuals are mistargeted. One off-the-cuff response is to have the RIAA pay $3,000 to every non-computer user and the estate of every dead grandman who gets one of these letters.
Third, this doesn't take fair use into account, and thus might not be a fair proxy for many other cases. For example, the Righthaven litigation seems entirely different to me - reproducing a news story online seems different than illegally downloading a song instead of paying $1, in part because the news story is closer to copyright's idea line, where more of the content is likely unprotectable, and because the redistribution of news is more likely to be fair use.
Fourth, it doesn't really deal with the potentially unconstitutional / arguably stupid possibility that some college student could be ordered to pay $150,000 per download, if a jury determines he downloaded willfully. I'd actually be happy with a rule that tells the record labels they can only threaten a maximum damage award equal to the average from the four jury determinations in the Tenenbaum and Thomas-Rasset cases. That's still $43,562.50 per song. Round it down to the non-willful statutory cap, $30,000, and I still think that a $3,000 settlement is just about perfect.
Now tell me why I'm crazy.
Saturday, November 03, 2012
"The past is never dead. It's not even past."
Hello all and a tremendous thank you to Dan and the PrawfsBlawg crew for having me this month! I'm usually thinking about patent law, but today I've got a short note on other IP...
Last week, the estate of William Faulkner filed two lawsuits over quotes from Faulkner works – one against Sony for the movie, Midnight in Paris, featuring a misquote of the above quotation from Faulkner's novel, Requiem for a Nun, the other against the Washington Post and Northrop Grumman for an ad featuring a quote from a Harper’s piece on civil rights. The complaints can be found here and here. Both suits allege three causes of action: copyright infringement, trademark infringement and misappropriation for commercial advantage of Faulkner’s likeness and image. I’m guessing that the suits spark a little surprise and outrage in most folks, folks who feel like this shouldn’t be actionable copyright or trademark infringement because the use seems like a fair (and quite common) one. And I believe these mildly outraged folks would be right—both copyright and trademark fair use doctrines appear to protect this sort of use. We might give Faulkner his due on the misappropriation count, however—after all, the movie and ad are clearly commercial endeavors. Yet without delving too deeply into right of publicity torts, it seems reasonable that an incidental use in works of entertainment like a movie does not trigger liability. The ad may be a more difficult case because it’s not an entertaining work of fiction.
This is really interesting to Faulkner (and Woody Allen) fans. But an IP fan might have a couple more questions.If everyone but the Faulkner estate thinks this case is a slam-dunk loser, why file it? And why pick these as your first suits ever in defending the estate’s intellectual property? One hypothesis: These suits are a shot across the bow to moviemakers, ad men and other creative types who want to quote (or misquote) Faulkner (a suggestion made by BU's BC's Dave Olson here) without getting the estate's permission.
Another hypothesis: Assume the misappropriation claim with respect to the Northrop Grumman ad has a chance (however slim) of winning for the estate. Perhaps buttressing the state tort claim with two federal infringement claims frames the case as one of intellectual property rights and, in doing so, legitimizes and strengthens the state claim. Having a conversation about the quotes as protected expression or as protected marks (however weak those claims may be) may set up the misappropriation conversation more favorably for Faulkner than if it stood alone. The movie case (and others in the future) have to be filed to keep the momentum going—building a case for respect for their IP rights, whatever they may be.
As an aside, the estate appears recently to have licensed a quote to the television show, Modern Family. This is a question I usually ask my students. Should the fact that some people get and pay for permission inform our decision on whether those who do not seek permission and/or do not pay for similar uses are using fairly? For example, Weird Al usually gets permission for his songs even though they seem like fair uses after Campbell v. Acuff-Rose and when Lady Gaga would not grant permission, he created a parody of her song anyway, relying on fair use.
Looking forward to a great month here!
Friday, October 26, 2012
The Future of Books at NYLS
I'm at a wonderful conference, In re Books, hosted by New York Law School and Internet / copyright guru James Grimmelmann, and you can attend, at least virtually: http://www.nyls.edu/centers/harlan_scholar_centers/institute_for_information_law_and_policy/events/upcoming_conferences/in_re_books/webcast
Thursday, October 25, 2012
Copyright's Serenity Prayer
I recently discovered an article by Carissa Hessick, where she argues that the relative ease of tracking child pornography online may lead legislators and law enforcement to err in two ways. First, law enforcement may pursue the more easily detected possession of child pornography at the expense of pursuing actual abuse, which often happens in secret and is diffcult to detect. Second, legislators may be swayed to think that catching child porn possessors is as good as catching abusers, because the former either have abused, or will abuse in the future. Thus, sentences for possession often mirror sentences for abuse, and we see a potential perversion of the structure of enforcement that gives a false sense of security about how much we are doing to combat the problem.
With the caveat that I know preventing child abuse is muchmuch more important that preventing copyright infringement, I think the ease of detecting unauthorized Internet music traffic may also have troubling perverse effects.
When I was a young man, copying my uncle's LP collection so I could take home a library of David Bowie casette tapes, there was no way Bowie or his record label would ever know. The same is true today, even though they now make turntables that will plug right into my computer and give me digital files that any self-respecting hipster would still disdain, but at least require me to flip a vinyl disc as my cost of copying.
On the other hand, it's much easier to trace free-riding that occurs online. That was part of what lead to the record industry's highly unpopular campaign against individual infringers. Once you can locate the individual infringer, you can pursue infringment that used to be "under the radar." The centralized, searchable nature of the Internet also made plausible Righthaven's disastrous campaign against websites copying news stories, and the attempt by attorney Blake Field to catch Google infringing his copyright in posted material by crawling his website with automated data gathering programs.
What if copyright owners are chasing the wrong harm? For example, one leaked RIAA study suggests that while a noticeable chunk of copyright infringement occurs via p2p sharing, it's not the largest chunk. While the RIAA noted that in 2011, 6% of unauthorized sharing (4% of total consumption) happens in locker services like Megauploads, and 23% (15%) happens via p2p, 42% (27%) of unauthorized acquisition is done by burning and ripping CDs from others, and another 29% (19%) happens through face-to-face hard drive trading. Offline file sharing is apparently more prevalent than the online variety, but it is much more difficult to chase. So it may be that copyright holders chase the infringement they can find, rather than the infringement that most severely affects the bottom line.
In a way, leaning on the infringement they can detect is reminiscent of the oft-repeated "Serenity Prayer," modified here for your contemplation:
God, grant me the serenity to accept the infringement I cannot find,
The courage to crush the infringement I can,
And the wisdom to know the difference.
All this brings me back to the friends and family question. The study on Copy Culture in the U.S. reports that roughly 80% of the adults owning music files think it's okay to share with family, and 60% think it's okay to share with friends. In addition, the Copyright Act specifically insulates friends and family sharing in the context of performing or displaying copyrighted works to family and close friends in a private home (17 USC s. 101, "publicly"). Thus, there is some danger in going after that friends and family sharing. If the family and friends line is the right line, can we at least feel more comfortable that someone to whom I'm willing to grant physical access to my CD library is a "real" friend than my collection of Facebook friends and acquaintances, some of whom will never get their hands on my vinyl phonograph of Blues and Roots?
Tuesday, October 23, 2012
The New Normal
Two news items from across the pond highlight the adaptability of musicians, but also a highlight a shift from music as a good to music as an experience, necessitated by the ubiquity of file sharing.
+, the debut album by British singer and producer Ed Sheeran, has apparently been downloaded illegally more than any album in the U.K this year. Sheeran is sanguine about the whole thing, gushing on Twitter about purchasers and free-riders alike, because he concludes that both types of fans are buying tickets, and as Sheeran puts it, "I'm still selling albums, but I'm selling tickets at the same time. My gig tickets are like £18, and my albums £8, so ... it's all relative."
Venerable British pop stars Squeeze are also moving to a more DIY, performance-based financial model this year. Fans who attend concerts can choose to purchase a download of the show at a "pop-up" shop after each performance, and meet the band as well. To date, this is the only way for fans to get their hands on Squeeze's first new songs in 14 years...at least until they are posted online. Squeeze founder Glenn Tillbrook is also excited about this brave new world. Tillbrook states, "I love the opportunities and surprises thrown up by the digital age and the fading away of the major labels. Being able to innovate and take control of our own destiny is something I could only have dreamt of back then." And for bands like Squeeze, the old label-centric business model may well have passed them by. As Tillbrook notes, “With the traditional record label no longer relevant for us, our relationship with the merchandisers is increasingly important in order to help us deliver quality products for our fans.”
As I postulated a few months ago, with regard to comic books offered online, I can't help but wonder whether the end result will be less professionally crafted music because the system will support fewer professional craftspeople, or whether we'll just get more artists who are more comfortable with a DIY esthetic, and fewer that rely on big machinery or well-placed intermediaries to make things happen.
It may be that the most important thing a new artist can do is leverage networks and relationships. Here's an example: I'm a huge Josh Ritter fan. Chris Thile's band, Punch Brothers, recently covered a Ritter song, and offered a free download of it for fans that purchased the new Punch Brothers EP. How did I find out? I follow Ritter on Twitter, and he let me know. I wouldn't have otherwise purchased the Punch Brothers EP, but was excited about this opportunity. Once upon a time, you could rely on certain labels for a certain aesthetic in its recorded offerings. Relationships between artists might in the future do some of that same work.
Tuesday, October 16, 2012
Chickens and Eggs in Music Consumption
As I blogged about in my previous post, the Copyright Culture survey, which looks at music consumption habits in the U.S. and Germany, has leaked in bits and pieces. Another interesting tidbit found its way to TorrentFreak yesterday. It turns out that p2p file sharers, both in the U.S. and Germany, have bigger music collections than non p2p file sharers. Perhaps more importantly, the file sharers buy more music than their counterparts. U.S. file sharers bought 30% more music, and German file sharers almost 300% more music, than non-p2p luddites. [TorrentFreak has a nice chart that breaks this down for you.] The tone of TorrentFreak's summary suggests that this means file sharers are the best friends the music industry could have, because they love music. I am a bit skeptical, because there's another way to cut the same data, which I share after the break.
File sharers bought more music than non file sharers, but they also obtained more music without paying for it. U.S. file sharers paid for only 38% of the items in their collection, while non file sharers paid for 47% of their music. And the difference was more stark for German consumers. German p2p users paid for only 26% of their music, while non p2p users paid for 60% of their music, although this amounted to significantly smaller sales.
Do non p2p users buy less music than their counterparts because they aren't exposed to as much music as p2p users? Or do p2p users pay for a smaller proportion of their music consumption because they elect to use more unauthorized avenues to purchase music? I don't have an answer. I'm slightly more sympathetic to the latter interpretation than the former, but I'm really interested to see what the full report looks like, when it's released.
Wednesday, October 10, 2012
FriendsHello all. Glad to be back at Prawfsblawg for another round of blogging. I'm looking forward to sharing some thoughts about entertainment contracts, the orphan works problem in copyright, and the new settlement between Google and several publishers over Google Books. Today, I want to talk a bit about file-sharing and friendship. A recent study asked U.S. and German citizens whether they thought it was "reasonable" to share unauthorized, copyrighted files with family, with friends, and in several different online contexts. Perhaps unsurprisingly, respondents in the 18-29 range responded more favorably to file sharing than older respondents in every context. What interests me is that respondents in every context see a sharp difference between sharing files with friends, and posting a file on Facebook. We call our Facebook contacts "friends," but I'm curious why the respondents to this study made the distinction between sharing with friends and sharing on Facebook. I have a few inchoate thoughts, and I'd love to hear what you think. Megan Carpenter wrote an interesting article about the expressive and personal dimension of making mix tapes. I grew up in the mix tape era as well, and remember well the emotional sweat that I poured into collections of love songs made for teenage paramours in the hopes of sustaining doomed long-distance romances. Carpenter correctly argues that there is something personal about that act, and it seems reasonable that it would fall outside the reach of the Copyright Act. I also remember copying my uncle's entire collection of David Bowie LPs onto casette tapes when I was in junior high. In that instance, music moved through family connections, and in my small town in Wyoming, there were no casettes from the Bowie back catalog on the shelves of the local music store. But the only effort involved in making those casettes was turning the LP at the end of a side. Less expressive, but within a fairly tight social network. A properly functioning copyright system might reasonably allow for these uses, and still sanction a decision to post my entire Bowie collection on Facebook, or through a torrent. I'm skeptical of any definition of "friends and family" so capacious that it would include Facebook friends, and I suspect that many people realize now, if they didn't then, that what constitutes a face-to-face friend is different than what constitutes a Facebook friend, but you may have a different impression. I hope you'll share it here, whatever it is.
Sunday, July 01, 2012
Trading away the internet
[The following is by my FIU colleague Hannibal Travis (links now have been corrected)]:
Last week, the office of U.S. Trade Representative Ron Kirk denied a request by Darrell Issa, chairman of the House Oversight and Government Reform Committee, that he and his staff be allowed participate in the next round of negotiations of a new treaty that Issa believes will have an "immense impact" on the U.S. economy. According to the American Civil Liberties Union, the treaty, known as the Trans-Pacific Partnership (TPP) pact, would set the stage for "worldwide crackdowns on Internet activity by a coordinated authority that could work at cross-purposes with the laws and policies of the participating countries." In this, it resembles the Anti-counterfeiting Trade Agreement (ACTA) and Stop Online Piracy Act. Expected as early as next year, the TPP would, according to a U.S. proposal, impose civil liability for the removal of copyright terms or other “rights management information” from a copy of a copyrighted work as part of the commission or facilitation of copyright infringement. A draft of another such treaty, being negotiated under the auspices of the World Intellectual Property Organization, provides for civil liability for negligently removing rights management information from an audiovisual performance in order to communicate the performance or make it available to others without permission.
Both the TPP and the WIPO Audiovisual Treaty threaten the Internet by potentially outlawing remix culture and fair use of existing content. Many YouTube videos are mashups of news, entertainment, or public affairs videos with additional commentary or montage. There are already precedents for using the removal of “rights management information” from a remix in an attempt to censor artists and other creators of fair use works. For example, the video search engine Veoh was sued out of existence for storing users’ videos that allegedly contained infringing clips of copyrighted music, even though the Ninth Circuit upheld a lower court ruling that the site complied with the “safe harbor” for Web sites set forth in the Digital Millennium Copyright Act of 1998. The Associated Press sued the artist Shepard Fairey, who made the Obama “Hope” poster, for removing from his stylized version of President Obama’s visage the copyright management information attached to the image of Obama after the Associated Press fixed it in a photograph. It also sued a news aggregator site for providing excerpts of news articles available to subscribers without the original rights management data.
The TPP and the WIPO Audiovisual Treaty go beyond existing law in prohibiting not only the intentional removal of rights management information for purposes of infringement as opposed to fair use, but in potentially reaching the negligent removal of such information to commit infringement or to encourage or facilitate infringement by another person, or perhaps even the negligent removal of such information to make a fair use. Article 10 of the TPP requires parties to criminalize the intentional removal of copyright management information from copyrighted work en route to infringement, and to impose civil liability even for the negligent removal of the information. Article 16 of the WIPO Audiovisual Treaty requires parties to provide civil remedies against those who negligently facilitate the distribution, importation for distribution, communication or making available to the public, “performances or copies of performances fixed in audiovisual fixations knowing that electronic rights management information has been removed or altered without authority.” This would appear to prohibit, for example, the use of clips of news, films, or television shows with the copyright notices, credits, or contractual use terms intentionally omitted, even when the clips are used in transformative works such as documentary films, news reports, parodies, lip-synching videos, etc. Existing U.S. law has a copyright management information provision (17 U.S.C. s. 1202(a)), but it requires intentional removal or alteration of the information for purposes of infringement, not mere negligence.
Article 5 of the WIPO Audiovisual Treaty states that independently of any economic rights, and even after the transfer of them, a performer has a right as to fixations of live performances “to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations.” This of course could lead to endless litigation concerning mashups and the like, redolent of the attempts to restrict the fair use of songs, music videos, and video games in Lenz. v. Universal, Lewis Galoob v. Nintendo, and Campbell v. Acuff-Rose Music. Article 6 seems to grant a broad new right to restrict the "communication" of unfixed performances not already broadcast, exceptions to which “may” but do not need to be granted. Goodbye to YouTube access to rare concert footage?
Even worse, Article 17 of the WIPO Audiovisual Treaty forbids any formalities in the audiovisual performance ownership right, which threatens the many important roles that formalities play in U.S. copyright law from playing their usual part. As Jason Mazzone has argued: “The U.S. Copyright Office registers copyrighted works, but there is no official registry for works belonging to the public. As a result, publishers and the owners of physical copies of works plaster copyright notices on everything. These publishers and owners also restrict copying and extract payment from individuals who do not know better or find it preferable not to risk a lawsuit. These circumstances have produced fraud on an untold scale....” Imagine the scale of the ownership-related misrepresentations that will occur as audiovisual performances are protected but formalities such as registration are done away with. John Bergmayer of Public Knowledge has argued that: “Creating new kinds of ‘middleman rights’ could increase the complexity of dealing with content exponentially. It could give broadcasters the right to prevent recording shows for later viewing, or even effectively remove works from the public domain.”
Although Article 13 of the WIPO Audiovisual Treaty provides that parties may provide similar exceptions and limitations to the audiovisual protection right as they do for copyright, paragraph 2 of that article states that such exceptions and limitations must not injure the normal licensing expectations of the owner of any right in the audiovisual performance. Thus, the USA could be brought up on World Trade Organization claims (or threatened claims) for allowing fair use of audiovisual clips on YouTube, and be pressured to reform its copyright law in response; there are precedents for this from the 1989 copyright reform and the 2011 patent reform.
The threat to the Internet is compounded by the process by which the TPP or the WIPO Audiovisual Treaty may be adopted. The TPP is apparently being characterized as a “sole executive agreement,” which will not be ratified by the Senate or passed by the Congress in the form of legislation. This removes many of the checks and balances that prevented the Clinton administration’s proposals to impose crippling copyright liability on Internet pioneers from becoming law as a result of section 512 of the Digital Millennium Copyright Act of 1998. Unlike most international criminal laws, as well as the North American Free Trade Agreement and the WIPO Copyright Treaty, the TPP and the WIPO Audiovisual Treaty may not be submitted for the advice and consent of the Senate. This prompts the ACLU to complain that treaty “negotiations are being conducted behind closed doors with details shared only with ... top executives from [such corporations as] AT&T, Verizon, the RIAA, the pharmaceutical lobby, and Cisco.” Most sole executive agreements have not been criminal law reforms, intellectual property expansions, or vast new trade pacts, but rather governed the discretion of the executive in military, nuclear, aviation, scientific, postal, and international financial affairs. A defender of the TPP or WIPO Audiovisual Treaty might respond that Congress would have to act before Americans could face civil liability or criminal charges for their YouTube videos or other remixes, but the federal government has been seizing Web sites that do not themselves infringe copyrights. The fear is that the many vague clauses in treaties such as the TPP, ACTA, or WIPO Audiovisual Treaty will lead to the end of the Internet as we know it, as Internet companies are forced to edit out the quotation of copyrighted material, and all Internet traffic is inspected by the state.