IPSC 2016 First Plenary Session

Thanks to Rachel Sachs for the following summary of the opening plenary session at IPSC! The following papers are summarized, and Q&A recounted, below the fold.

Scarcity of Attention in a World without IP
Jake Linford

What’s In vs. What’s Out: How IP’s Boundary Rules Shape Innovation
Mark McKenna & Christopher Sprigman

Patent Clutter
Janet Freilich

What We Buy When We “Buy Now”
Aaron Perzanowski & Chris Hoofnagle

 

Jake Linford: Attention Scarcity in a World without Copyright

The standard account of copyright is that we have it and impose artificial scarcity so that artists can recoup their sunk costs in creating information. But the costs of creating/disseminating information have fallen, and some argue that maybe we should narrow copyright as a result.

This paper argues that narrowing copyright for this reason may be too hasty! It does so by introducing a complicating wrinkle: attention scarcity. The cheaper it is to disseminate information and the more information we get, it may create information gluts. Information gluts can impose costs on consumers, including consumers of copyrighted expression. And the competition for scarce attention is often a zero-sum affair, in which competitors benefit by using copyrighted expression (some of which they don’t pay for and thus use impermissibly) to attract and manipulate scarce attention. As such, some calls to reduce copyright protection may worsen these problems of attention scarcity and information gluts.

Linford does consider the possibility that less copyright protection is better for attention scarcity. What might happen if we reduce copyright protection? One option is that we have less entry. If we have narrower protection then there’s less incentive to enter, but then at the same time there are lower “expression costs.” With copyright retained, you have a relatively higher incentive to create, but you also have higher expression costs. Linford’s concern is that lowering protection might result in less creative or distinct entry, things that are more similar to each other, which is duplicative and results in wasteful racing to capture the first-mover advantages for derivative works. Here, Linford relies on recent work by Joe Fishman (Vanderbilt) arguing that constraints imposed by copyright can sometimes push creators to be even more creative, work that is supported by recent psychological research.

Lemley question: It turns out that crowdsourcing is at least as good and maybe better than expert selection in helping us separate good from bad creative works. So yes, if twenty people make a derivative Star Wars movie, the crowd is good at telling us which is good and bad. Are we really worse off?

Linford: One key danger is that Lucas has to rush out The Empire Strikes Back to compete with those twenty derivative movies, and we may be concerned about the effect of that pressure.

Betsy Rosenblatt: We live in a world where trends are pervasive, even in a world with heavy copyright. One successful horror film leads to twenty more mediocre ones. People tire of sameness. The solution doesn’t seem to be “stop the trend from happening,” it seems to be “let the trend run itself out.” Information scarcity may not create the problem/solution set Linford is describing.

Linford: Thinks what’s more likely is that trends will purge themselves by, instead of having 20 horror movies that pick up the tropes of the genre, you end up with 20 more identical horror movies. The more you narrow it, the more similar those interpretations are.

Mark McKenna & Chris Sprigman: What’s In vs. What’s Out: How IP’s Boundary Rules Shape Innovation

Central question: What sorts of things are sorted into the utility patent system rather than design patent, copyright, or trademark law? This matters for the current utility patent debates over patentable subject matter but more importantly for the tructure of the system overall. Copyright, trademark, and design patents all have doctrines designed to exclude useful or functional matter on the grounds that such matter is the proper domain of utility patent law. They define themselves in opposition to utility patent law. They all police the boundaries differently, and with different levels of rigor. They don’t do it because the material doesn’t otherwise meet the requirement of those systems – functional material may still indicate source (trademark) or have expressive content (copyright) – but they do it because we think it’s the domain of utility patent law. Mark & Kathy STrandburg have called this the Utility Patent Supremacy Principle. This only works if the other systems have a reasonably clear view of what belongs to the utility patent system.

However, in their view the sense of utility patents deployed in other areas of IP is quite reductive and intuitive, and lack of a clear sense of patent law’s boundaries creates problems both for patent law and these other fields. It’s especially hard to apply when utility patent eligibility is in flux, as it is now. Patent law itself has an inconsistent sense of its own grounding – what counts as technological innovation?

Conundrum: there’s a widespread belief that utility patent law focuses on technological innovation, but in practice that’s inconsistently enforced. Yet all other areas of IP act as if there’s a clear sense of what utility patent law is about (technological innovation) and that other areas of IP should defer to utility patents in that area.

Provides as an example the Varsity Brands case, decided by the Sixth Circuit and scheduled to be heard at the Supreme Court this upcoming term. What divided the appellate opinions in that case was their assessment of functionality. For the majority, the chevrons on the cheerleader uniforms just served to cover the body. But for the dissent, the function is to identify the wearer as a cheerleader. And in that chase, the chevrons are not separable. But if the function is just to cover the body, chevrons are separable and thus copyrightable. This case turns on the definition of functionality and what kinds of functionality the courts are supposed to keep out of copyright, which is undertheorized, as they’ve been arguing.

Linford: What’s the right answer in terms of which way should we push the doctrine?

McKenna: The paper is mostly diagnostic, it’s not prescriptive. The primary point is to identify a paradox at the heart of the system, if you think of the various forms of IP as a cohesive system. We don’t have a particular answer yet.

Ouellette: Where do you think this causes the most difficulty? Overlap may not obviously create problems.

McKenna: Overlap does create some problems, makes it more difficult for people to know what the bounds are of permissible conduct and expression. The accumulation of rights is a problem at least some times for overprotection. When we think about what kind of fair use rights we want to give, as an example, we don’t account for the possibility of overlap.

Sprigman: Some things will end up being protected in multiple ways, but some things won’t end up being protected at all – patent law may kick things out on grounds of novelty or non-obviousness, but other fields will kick it out as being functional.

Janet Freilich: Patent Clutter

Patent claims point out and distinctly claim the invention, and they’re often thought to be shorthand for and synonymous with the invention. But there are few empirical studies of these claims. This study asks whether claims are really only about the invention, or whether claims do a lot more than just point out the invention. The method she uses is to look at whether language appearing in the claim language also appears in the specification. We should care about this because if something in the claim isn’t discussed in the specification, it’s unlikely to be new or used in a new way, or alternatively it may fail the enablement or written description requirements.

Freilich finds that a great deal of claim language (roughly 25%) appears rarely or never in the specification. An average of 9.4% of claim words appear nowhere in the specification, 8.3% appear once, 7.5% appear twice. She calls this non-inventive language, and about 90% of it appears in dependent claims. Patents that have more non-inventive language have fewer forward citations and it’s less likely that the patent is maintained, two common measures (though imperfect) of patent value. Her theory is that language in the claims but not the specification is not part of the core invention of the patent.

Freilich considers limitations of her study. For instance, her methodology can’t account for drawings. She also can’t account for genus/species discussions.

Why do patentees do this? There’s an information transmission functions for the patentees. It may also serve a decoy function – competitors may not be sure what you’re planning to do with an invention. It might help to avoid rejection during prosecution. And it might provide insurance against future commercial uncertainty or litigation.

Freilich argues that some of these claims may not satisfy the enablement and written description requirements. There’s also a clarity difficulty here. Claims are already hard to read – non-inventive language makes claims more difficult to read even, especially because the additions by definition are not defined in the specification. Examiners also report struggling with non-inventive language, making their jobs harder. It also makes patents hard to search, when you use keyword searches (a lot of false positives). It may also create the illusion of a patent thicket in an area.

Ultimately, Freilich urges us to think of claims as very complicated and doing more than just describing the invention. It opens up questions like what does the ideal claim look like? There is a tradeoff between precisions and concision. It may not be practical to get rid of all of this, but some of this is clearly problematic.

Fromer: Troubled by the assumption that what’s in the claim language is the only thing that relates to the invention. The specification is frozen at the time the patent is filed, but claims may be amended throughout prosecution. Without looking at the original claim language, it’s difficult to make these kinds of conclusions. More generally, there are many ways to express something and often in practice the specification is more heavily written by the inventors, while the claims are written by lawyers. It doesn’t mean it’s not inventive, just that different people write something in different ways.

Freilich: This is not a precise proxy, but in general patent prosecutors try to ensure that what’sin the claims is reflected in the specification. And she does have some data on claims as proposed versus

granted. A good amount of patents add non-inventive language during prosecution, but others take it out or remain the same.

Vishnubhakat: What you describe as non-inventive language could be language in the claim and simply be what the inventor regards as her invention. If you have it in the claims and not the specification, it could be ill-enabled and described but still satisfy novelty and nonobviousness. So the finding that 9.4% of words never appear in the specification suggests that if this is a story about people who are inventing things and not describing well enough to claim the full scope of the invention is that they’re leaving claim scope on the table, and that seems consistent with a finding that about 10% of patent grants are first-action allowances where there’s not a back-and-forth between examiners and patent applications.

Aaron Perzanowski & Chris Hoofnagle: What We Buy When We “Buy Now”

This project builds on a big question: what does it mean to own something? What does it mean to buy something? The now-famous Amazon 1984 case is a big example of why this is a difficult question. Some people look at this and say that consumers understand that they’re buying a license to something, not a copy of it. Perzanowski has never heard a consumer say this. Perzanowski & Hoofnagle set out to understand how consumers perceive this language.

They created a fictitious marketplace and surveyed almost 1300 consumers and asked them about what the “buy now” language means. They screened consumers to be sure that they were all in the market for digital books, music, or movies, and ensured representativeness – pretty close to census data on nearly all metrics. They sorted them into three categories. They saw a page for an ebook, an mp3 album, or a digital movie. Each respondent could also choose between different titles within those media forms. Look at the ebook category as an example. Some people got the “buy now” button for a digital item, some people got “buy now” for a paperback copy, some people got a “license now” button for a digital item, and some people got a little notice about what they were permitted to do with the digital item they were paying for.

Key findings: 1. The “Buy Now” button misleads a substantial number of consumers about the rights they acquire in digital media. Substantial numbers of people think they can lend, gift, or devise these copies by will. The number of people who think they “own” a product drops significantly between people who saw “buy now” or “license now,” although the “license now” group still had a high percentage of people in the lending and gift categories. Many subjects, though, chose “don’t know” in the “license now” group.

2. Those misperceptions are material to consumer decision making. More than half of the respondents would pay more for digital goods that enabled lending, reselling, or using device of that choice, and respondents said they would prefer to retain those rights. And many consumers said they were more likely to download things illegally or stream them if they didn’t have those rights.

3. Replacing the buy now button with a short notice explaining the rights coming with the copy significantly reduced misperceptions. The short notice group seeing the ebook shows significant reductions in the owning, lending, gift, will, and resale categories. However, this wasn’t true for the digital movie group.

Goldman: I wonder if you can tell a different story from the data, which is that it’s really hard to educate consumers. You can still argue that most consumers aren’t getting the message even in the short notice group. What is the best way to educate them?

Perzanowski: Keep in mind that these people had precisely one exposure for ten or fifteen seconds to the short notice. He’d imagine that with repeated exposure you might see those results increasing more. Further, he’s not a professional user interface developer, and someone who has expertise in this might be able to improve it. It’s a promising avenue for improving consumer understanding but more work needs to be done. What we might see is instead of consumers learning is that they don’t bother to read it, which is the opposite of what we’d hope for.