Megan’s post about copyright and the muse reminded me to get back to this post that I started to draft a couple of days ago and never got back to because my computer crashed.

As I mentioned in my comment on Megan’s post I’ve been reading a lot lately about the act of creating literary works.  A number of people have spoken about the creation of literary narratives in the context of Jung’s theory of the collective unconscious and Campbell’s theories of all stories being based on a given set of mythological or classical narratives.  In short, if you subscribe to these theories, you accept that human literary narratives come in a relatively small group of basic structures and what changes from culture to culture and author to author is the expression of the tale.  Thus, one would have to be careful in copyright terms not to protect literary works at too high a level of abstraction for fear of really cutting off major routes of creativity following a particular narrative path.

Over the weekend I was reading a book by Bailey on constructing narratives and his suggestion about what differentiates one narrative from another within a particular genre or story structure is basically the characters, rather than the plotlines.  This got me to wondering whether copyright law should focus more on protecting characters with respect to literary works and less on protecting stories and plotlines.  This would certainly make authors/publishers happy when they are trying to stamp out derivative works – which may or may not be a good thing depending on your perspective.  (As readers of my work will know I kind of like promoting things like fan fiction and fan mashups although I’m also sympathetic to author and publisher arguments about avoiding unjust enrichment in a commercial sense based on others’ characters and situations.  It’s all a – very difficult – question of balance as we all know.)

I remember some years ago when I studied copyright in the UK and Europe, there was much less readiness in those countries to protect characters via copyright than there seems to have been in the U.S. at the same time.  I’m wondering if people have thoughts on the copyrighting of characters perhaps as an alternative to focusing on storylines and given levels of abstraction with respect to the substantial similarity question for infringement purposes.

Obviously copyright is supposed to only protect the expression of a given storyline in any event but from time to time courts take things to higher levels of abstraction when assessing substantial similarity questions.  Does focusing rather on protecting characters create a better balance or not?  And does this approach argue in favor of sector-specific copyright principles?  Obviously you can only protect characters in literary and dramatic works ie works that actually HAVE characters (probably also including video games).  And what of Second Life, avatars etc?  Thoughts, Prof Boyden??

On behalf of the editors of JOLTI at Case Western Reserve, some readers may be interested in the following:

Case Western Reserve’s Journal of Law, Technology & the Internet is searching for a final article to publish in its spring edition. Any scholarly work related to cyber law, intellectual property law or the intersection of technology and the law will be considered. This is a great opportunity to see your research in print and online by the end of the spring semester. The Journal of Law, Technology & the Internet is a recognized student journal at Case Western Reserve University School of Law located in Cleveland, Ohio. Please forward all submissions, along with a CV or cover letter, to the attention of:

dtc22@case.edu | (734) 812-7373

In my Boston Review piece on SOPA, I mentioned a sad story about a drawn-out copyright lawsuit’s effect on an entrepreneur. I should have also brought up a whole book on the problem of IP overenforcement, Jason Mazzone’s Copyfraud. Important on the day it was published, it’s particularly salient now that Congress is considering expanding the powers of copyright and trademark owners.

Mazzone argues that overenforcement of copyright is rampant:

False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

Mazzone’s book highlights an underappreciated problem of rights fabrication that threatens to become a form of private legislation. If the intellectual property system is to genuinely promote innovation and creativity, it will need to address the issues he describes. It should certainly do so before adopting the types of intrusive remedies proposed under SOPA/PIPA. Mazzone’s policy recommendations are wise and often original, both recognizing and building on a large law review literature on IP reform. As Mazzone has argued:
[Read more →]

I have been thinking a lot about authorship lately.  Perhaps this is because I am learning my first instrument and trying to write my first song.  Or because I failed miserably at a write-a-novel-in-a-month exercise last November.  Or because I am in the middle of a wrestling match with an article.

An interesting episode of the show Radiolab addressed in part the question of romantic authorship and the muse.  In “Me, Myself, and Muse,” Jad Abumrad and Robert Krulwich question whether there is something more than individualistic, independent authorship to the act of creation.  In the podcast, Elizabeth Gilbert (author of “Eat Pray Love”) talks about an interview she did with Tom Waits for GQ, where he asserts that each song comes into being with its own unique identity, and that there is some sort of a muse involved, an “external collaborator,” one that he talks to, negotiates with.  Waits described one day driving down an LA freeway when a melody came into his head.  He was in traffic, had no pen or paper or recorder to capture the tiny and beautiful piece of music.  So, he decided to talk to that song, saying, “Excuse me.  Can you not see that I’m driving?  If you are serious about wanting to exist, then I spend eight hours a day in the studio.  You’re welcome to come and visit me when I am sitting at my piano.  Otherwise, leave me alone and go bother Leonard Cohen.”  Elizabeth Gilbert talks about relying on this external component of authorship and sweet-talking it when necessary, commenting, “I know the difference between something I thought of and something I was given.”

Songwriters often say similar things.  Townes Van Zandt said the song “Pancho and Lefty” came to him in a dream, fully formed, and he wondered for years what it was about.  It is widely known that Paul McCartney claims the song “Yesterday” also came to him in a dream.  Bob Dylan, in his interview with Ed Bradley on “60 Minutes,” describes how he wrote “Blowin’ in the Wind” in 10 minutes (at 1:12).  He describes the process as some kind of magic (and clarifies that it is not the Siegfried and Roy kind of magic), and that he has no idea how he wrote “Blowin’ in the Wind” except to say that “it came from… um… like, um… right out of that wellspring of creativity, I would think.”

A few years ago I tried to express some anxieties about the rise of a remix culture that valued technology and novelty over timeless content. Those worries resurfaced while I was reading Rob Horning’s recent reflections on his own defensively reactionary tastes:

[T]he key issue is to think about why we choose novelty over immersion. Why do we choose convenience—the speed of consumption—over the sensory qualities of a consumption experience?

What [Simon] Reynolds dubs retromania seems a paradoxical way for capital to proceed to secure ideological dominance, but it makes a diabolical sort of sense: get novelty and innovation on the cheap by recycling the ready-at-hand past. This has the added bonus of fusing the new with the familiar, so consumers can appease two contradictory longings simultaneously. Nostalgia and novelty fuse in a new kind of cultural artifact, which Reynolds spends a lot of time cataloging: stuff like I Love the ___’s, reunion tours, bands playing their old albums in sequence, Web 2.0 music like Flying Lotus, Girl Talk, etc.

The fusion of “new and the familiar” also reminds me of the ideas of “flocking and differentiation” in the Hemphill/Suk article on fashion. Rather than being epiphenomenal, one more sad aspect of status anxiety, fashion to Hemphill and Suk is an authentic expression of a broader dialectic of individual self-creation: to both conform to social norms and to distinguish oneself from them. Christening these impulses “flocking” and “differentiation” (respectively), Hemphill and Suk see fashion as not merely an economic phenomenon, but a cultural one, reflecting deep-seated human needs. But a rapid and fruitless cycling between bedazzlement and boredom could just as accurately characterize fashion trends as an ennobling narrative about “flocking” and “differentiation.”

Who knows whether fashion, or the fused nostalgia/novelty Horning describes, is a component of authentic self-expression, or a form of false consciousness? As Denis Charles Philips explains, “many rival narratives can be devised by an individual to account for a given action, just as, in natural sciences, many rival hypotheses can be invented to account for any finite body of data.” The law of culture can be vexing in part because we can disagree so profoundly about the right narrative “frame” for the phenomena we encounter.

It’s tempting to simply refuse to give an account of value, or even intention, in some circumstances. When we move from processes of appreciation to those of creation, that’s an increasingly popular strategy. Richard Prince appeared to retreat to the realm of the non-rational at a recent deposition in a celebrated copyright case:

In a deposition in the case that was recently published as part of an unlikely art book by the writer and director Greg Allen, lawyers for [plaintiff] Mr. Cariou follow [defendant] Mr. Prince deep into the strange and often trackless territory of artistic intention. About as close as they get to pinning him down is that he wanted to use the borrowed pictures to explore his fascination with the painting of Willem de Kooning and also thought of his collages and paintings as part of an idea for a movie about a post-apocalyptic world in which Rastafarians, famous literary lesbians and others commandeer hotels on St. Bart’s.

“So what are four lesbians from the early 20th century doing on St. Bart’s in, now, when there’s a nuclear war, like why are they there?” a lawyer asked Mr. Prince, who responded: “Your guess is as good as mine. That’s what I do, I make things up.” At another point in the transcript of the deposition, a lawyer asked, “What is the message?” Mr. Prince replied, “The message is to make great art that makes people feel good.”

Maybe Prince also answers Horning’s initial question, “why we choose novelty over immersion”? Or perhaps we should turn to Sven Birkerts, who observed, in The Gutenberg Elegies, readers “awed and intimidated by the availability of texts, faced with the all but impossible task of discriminating among them, [tending] to move across surfaces, skimming, hastening from one site to the next without allowing the words to resonate inwardly.”

Information overload has an aesthetics; only time will tell if it’s deep or shallow. While that debate rages on, Horning grounds us in the material foundations of an oppositional stance:

Value now is captured by harnessing the filtering that consumers perform for one another, monitoring the lateral cultural chatter and trying to time the implied markets. This is another aspect of the retromania phenomenon. Amateur bricoleurs sort through the digitized detritus of the past (Danny Kirwan solo albums, Falco, etc.), trying to make cultural capital out of it. How one feels about the question of resistance probably depends on how successful one is at that task.

The lords of the memes (or, in Jaron Lanier’s terms, lords of the clouds) aren’t complaining, and support a fair number of projects designed to defend the status quo. But we also need to think about the cultural consequences of a class of newly empowered sorters, filterers, and curators centrifugally pursuing their bliss. A literature criticizing the narcissism of the “daily me” has already done that for politics and journalism. Can a similar project work in culture, without being abrasive, elitist, or sectarian? Spiritual traditions attempt to identify the enduring truths, forms of beauty, and institutions of justice that contribute to human flourishing. Do they have a place in the normative evaluation of culture that lies a bit beneath the surface of legal cases like Prince’s? Could a new Adorno enliven the rights/utility literature in this area, which seems to have hit a dead end? Remix culture owes a great deal to postmodernism. Perhaps a critique of it will need to rely on both religious thought’s appreciation of tradition and critical theory’s willingness to interrogate enlightenment accounts of autonomy.

Image credit: Siebren Versteeg and whatever random viewer caused those images to appear on the touchscreens.

America’s bias toward “negative” conceptualizations of rights is on full display in Vint Cerf’s opinion piece in the NY Times entitled “Internet Access Is Not a Human Right.” Cerf states:

[A] report by the United Nations’ special rapporteur went so far as to declare that the Internet had “become an indispensable tool for realizing a range of human rights.” Over the past few years, courts and parliaments in countries like France and Estonia have pronounced Internet access a human right.

But that argument, however well meaning, misses a larger point: technology is an enabler of rights, not a right itself. There is a high bar for something to be considered a human right. Loosely put, it must be among the things we as humans need in order to lead healthy, meaningful lives, like freedom from torture or freedom of conscience. It is a mistake to place any particular technology in this exalted category, since over time we will end up valuing the wrong things. For example, at one time if you didn’t have a horse it was hard to make a living. But the important right in that case was the right to make a living, not the right to a horse. Today, if I were granted a right to have a horse, I’m not sure where I would put it.

I wish Cerf had seen the excellent presentation at AALS on cyberlaw and the internet kill switch, which was organized by Annemarie Bridy and included fellow bloggers Rob Heverly, Michael Froomkin, and Jack Balkin. As Balkin noted, “new school censorship” is constantly shifting; Cerf’s confidence that abstract categories like “freedom of speech” could identify it all is more blinkered than the rapporteur’s endorsement of concrete modes of realizing communicative autonomy. Heverly drew on the literature of cyborgs to demonstrate how intimately connected personal identities can be with the machines and technologies in which they are embedded. As Julie Cohen argues, we are “networked selves,” and need “greater control over the boundary conditions that govern flows of information to, from, and about” us them.

In any event, I am glad to see that Paul Bernal has taken Cerf on, with the following commentary:

[Cerf] reflects a particularly US perspective on ‘human rights’ – a minimalist approach which emphasises civil and political rights and downplays (or even denies) economic and social rights amongst others. Most of the rest of the world takes a broader view of human rights: the International Covenant on Economic, Social and Cultural Rights was introduced in 1966, and has been ratified by the vast majority of the members of the UN – but not by the US. The covenant includes such rights as the right to work, the right to social security, rights to family life, right to health, to education and so forth – and it isn’t too much of a stretch to see that right to internet access might fit within this spectrum.

That Cerf doesn’t see it this way is not surprising given that he is American – but I think his argument is weaker than that. . . . [Cerf also] doesn’t mention privacy, he doesn’t mention freedom from censorship, he doesn’t mention freedom from surveillance – I wish he would, because next after access these are the crucial enablers to human rights, to use his terms. I’d put it in stronger terms myself. I’d say we have rights to privacy online, rights to freedom from censorship, and rights to freedom from surveillance. If you don’t want to call them human rights, that’s fine by me – but right now, right here, in the world that we live in, we need these rights.

It does not surprise me that Cerf works for a US company which, as Siva Vaidhyanathan has exhaustively documented, is not exactly distinguishing itself in terms of cross-cultural sensitivity. Like the “voice of neoliberal God” editorial pose of The Economist magazine, US technologists’ presumptions are wearing thin in a world where the “west is no longer the motor of history.”

[Updated January 15, 2012:  I changed the post title, because I am still learning that search engines dislike non-literal titles.  The original title was "'W"'Stands for Infringement."]

An emerging by-product of Pittsburgh’s claim to be a new entertainment capital (see blog post here – the claim is not entirely without merit, as a lawyer might say) is that the incumbent local copyright / trademark academic gets a particular blend of interesting questions from the local media.

Last week, I explained the in’s and out’s of infringment of music copyright to the music critic of the Pittsburgh Post-Gazette (you read that right:  a small urban daily still has a music critic!) in connection with an allegation that Pittsburgh’s own hip hop megastar, Wiz Khalifa, appropriated “Black and Yellow” from a local unknown, who recorded “Pink and Yellow.” The problems that Wiz’s accuser faces are two-fold.  One, it appears to be unlikely that Wiz ever heard or otherwise had access to the plaintiff’s song.  Two, on my quick listen, the original elements of the songs don’t sound much like each other.  The core of the claim seems to be the similarity in the titles — “and Yellow” — which is a thin foundation for a successful copyright suit.

Today, the local angle is Andy Warhol, son of Pittsburgh.   The Velvet Underground has sued the Andy Warhol Foundation, which administers rights to the late artist’s works, for trademark infringement.  I haven’t seen the complaint, but I am told that VU is unhappy that the Foundation licensed the banana image that Warhol designed for the band’s 1967 debut, Velvet Underground and Nico, for use on i-related (that is, Apple iPad-related) products.

The IP issues there are a little bit tortuous.

The complaint apparently alleges that Warhol’s banana image was never “officially copyrighted.”  Presumably the reference is to the possibility that the work was distributed (as cover art) without an appropriate copyright notice.  I don’t have a copy of the album lying around, but if you do, you can check that.  If there was no notice on the cover, then there’s a good chance that the image itself went into the public domain — the copyright public domain, that is, right away.  Just about anything is possible in IP, but that (the absence of notice) strikes me as unlikely.  The other argument that VU has raised is that the image was in the public domain in the first place, apparently because Warhol based his design on a picture of an actual banana.  That argument is unlikely to fly, unless Warhol’s banana is actually identical to the source banana image.  If Warhol made any “creative” changes to the source image, then there’s little doubt that a valid copyright was possible.  Nevertheless, it’s possible that copyright is out of the picture.  If the image is protected by a valid copyright, then the Foundation has an argument under Dastar that arguable trademark claims should not interfere with the Foundation’s right to license the image.   That preemption argument would keep anyone from even getting to the points in the next paragraph.

As for the trademark claim, the suit apparently alleges that the banana image has become the very symbol of the VU.  That may be true, but that doesn’t quite establish the band’s trademark rights; the legal question is whether the band has used the mark commercially so that consumers have come to associate the mark as designating the source of products (or services) that the mark is attached to.  Let’s assume that the band can make *that* case.  Then the question is whether the Foundation infringed the mark — used it in commerce in a way that caused likely consumer confusion.  Usually, one would think that any arguable confusion would arise at the point that the mark is used on the i-products (an iPad cover, say), but it appears that the actual sellers of the products are not targeted.  I’m guessing that the producers don’t have assets worth pursuing.  The Foundation clearly does.  But the tie between signing the license and causing consumer confusion seems … pretty weak.  VU may be Waiting for the Man to provide trademark redress, but at the end of the day, I predict a case of There She Goes Again.

Updated Jan. 13 2012:  Here is a link to the Pittsburgh Post-Gazette story about the case. The story doesn’t get the issue right; the question is not whether the public associates the banana image with VU or with Warhol.  The question is whether the defendant’s use of the mark (assuming that it is a mark), in connection with goods or services, causes a likelihood of confusion in the minds of consumers.  I’ve now had a chance to read the Complaint.  The key allegation reads this way: “The use of the Mark on goods purportedly licensed by defendant will likely cause, and continue to cause, confusion, mistake or deception as to the source or affiliation of such third party goods.”  If that’s the crux of the case, then I don’t think that the Complaint alleges facts sufficient to meet the statutory definition.  The Warhol Foundation has a decent chance of getting the trademark claims dismissed.

The iPad / iPhone cases themselves are produced by Incase, as part of a Warhol collection.

David Brooks had an interesting column earlier this week in which he asked, “Why aren’t there more liberals in America?” According to Gallup Poll numbers, about 41% of Americans self-identify as conservative, versus 36% moderate and 21% liberal. This strikes Brooks as a bit of a puzzle, since the financial crisis and the economic downturn would seem to support liberal beliefs in some ways. Brooks’s answer: “Americans may agree with liberal diagnoses, but they don’t trust the instrument the Democrats use to solve problems. They don’t trust the federal government. A few decades ago they did, but now they don’t. Roughly 10 percent of Americans trust government to do the right thing most of the time, according to an October New York Times, CBS News poll.”

Brooks goes on to speculate about the basis for that distrust: “Why don’t Americans trust their government? It’s not because they dislike individual programs like Medicare. It’s more likely because they think the whole system is rigged. Or to put it in the economists’ language, they believe the government has been captured by rent-seekers.”

This all sounds very familiar. It’s essentially the basis of the current critique of copyright law: that Congress has become beholden to a few stakeholders, and as a result modern copyright law has become unmoored from any legitimate purpose and now simply apportions rents to favored dinosaur industries.

But even that description of the situation is not dark enough. [Read more →]

Serious snow has yet to appear in many US states this winter, but it’s never too soon to dig out an old post about parking chairs. Long-time and sharp-eyed Madisonian readers will remember this post about said chairs, which was mostly an effort to extend the life of that same post in its native Pittsblog habitat.  (The question that I was trying to answer, in a brief, bloggy way, was the eternal “If I did my car out of the snow, do I ‘own’ the resulting space in the sense that I may ‘claim’ it via the presence of a crappy plastic chair while I am off driving to the store?”

I recently noticed on SSRN an engaging paper that uses the parking chair problem as a lens on broader questions of property and legal culture:  “J. Locke, Op. Cit.: Invocations of Law on Snowy Streets,”  by MIT anthropologist Susan Silbey, forthcoming in the Journal of Comparative Law.  The abstract:

Each winter in the northern cities of the United States, a familiar scene illustrates tacit and deeply sedimented, yet common invocations of law. After a heavy snow storm, one can see old chairs, traffic cones, milk crates, light weight tables, dead house plants, or other noticeably bulky objects in recently shoveled out parking spots on an otherwise snow-filled public street. “Before snowfalls, a parking space belongs to the one who occupies it: you leave it, you lose it. In wintertime Chicago, however,” writes Fred McChesney in an economic analysis of this practice, “excavating one’s car [from the snow that fell on it] changes the system of property rights… The initial digger of the spot is given a limited monopoly for its use.”

Although calculating an efficient duration for the monopoly preoccupies some analysts, my attention to the practice of claiming parking spots on snowy streets derives from an interest in understanding legal culture, more specifically, how practices of everyday life sustain the rule of law. The practice of holding shoveled-out parking spots on snow covered streets is not a recent invention in northern American cities, neither is it universal, nor without contest. It is, however, widespread, a subject of regular and increasing discussion in public forums, newspapers and internet media. It has been subject to legal regulation, although uneven law enforcement, and a topic of scholarly analysis. This essay uses the example of the chair in the shoveled out parking spot to illustrate how cultural analysis can document both the practices and systematicity of legal culture(s), in this way hoping to unravel some of the confusion characterizing discussions of legal culture as well as culture more generally. Following a more extended introduction, the section following both describes and interprets the practice of space-saving on snowy public streets, using the actors’ own accounts to construct an interpretation of what placing chairs in parking spots on snowy streets means to the participants. I follow this descriptive and interpretive work with a short discussion of what such cultural analysis brings to legal inquiry.

And yes, my Pittsblog post makes a (brief) appearance.

Another thing I picked up while auditing a publishing course over the break was the statement by an instructor that “If you don’t copyright your manuscript, it is in the public domain.”

Obviously, this is incorrect on a number of levels, and again illustrates how difficult copyright law is to understand even for people who are professional writers and teachers of publishing (ie outside of law schools).

But I’m interested in how many things the sentence could actually mean, for instance:

1/ If you don’t affix a copyright notice on your work, people may not think you mind if they borrow from it without attribution.  (Either you won’t sue for infringement or you are intending to grant an implied license for others to use the work for any purposes.)

2/ If you don’t register your copyright work, you will have more trouble asserting your copyright in court and will want to register before you commence infringement proceedings.

Anything else it could mean?

The Spring semester is about to start, and in my world that means that I will be teaching Copyright Law again.  Every year, like many IP teachers, I look for one or two contemporary examples of copyright in action to prime the students’ pumps, so to speak, during the first day of class, or two.  This year, among other things, we’ll be talking about Cee Lo Green.

Given the man’s notoriety over the last couple of days, you might think that I plan to get the students talking about what Cee Lo did in Times Square last Saturday night, covering John Lennon’s Imagine, changing a key line of the lyrics (from “no religion too” to “all religions true”), and setting off a howling firestorm online about whether Cee Lo dishonored Lennon’s memory or his message.  The copyright angle, of course, is this:  When Cee Lo and the relevant producers cleared the rights to the song, did they clear the rights to the change?  Did the contract even talk about changes (or no changes) to the lyrics?  It’s hard to imagine that Yoko would have said that the change is OK, if she’d been asked in advance.  So let’s assume that she didn’t agree …  that Cee Lo changed things on the fly … etc. etc.

That’s interesting, but it’s hardly worth a class session.  (For the record, I think that what Cee Lo did with the song was senseless (as in, it made no sense), but assuming that the rights were cleared, then the song was Cee Lo’s to sing, and he sang it.  No one thinks that Cee Lo made Lennon look bad, and no harm was done to Lennon’s memory or to  Lennon’s song itself.  If anything, the whole controversy revived interest in the original Imagine, which reads and sounds more marvelous than ever.)

No, the Cee Lo discussion for my class will have to do with the Muppets.  If you haven’t seen the recent Jason Segel/Muppets movie (and I recommend that you do!), you may not have seen this entertaining cover version of Cee Lo’s Fuck You:

And if you’ve been in a cave for the last many months and haven’t heard the original (or the Gwyneth Paltrow version from Glee), here it is:

(That’s the PG-rated, safe-for-radio-and-broadcast TV version.)

The question for the students will be this.  Let’s assume, as surely is the case, that Jason Segel and the other producers of the Muppets cleared the rights to Fuck You.

Why did they do that?  I don’t want to suggest that it was a bad idea to clear the rights, and I don’t want to spend much if any time on the hypothetical “if Cee Lo sued the Muppets, would/should Cee Lo win?”  I  want to surface the dozen or so reasons that went into the actual bargain — many of which have less rather than more to do with classic justifications for copyright law.  My semester in Copyright Law spends a lot of time talking about the institutional setting of copyright law, so that the students can see just what copyright is doing out there in the real world, and equally important, just what copyright lawyers actually do out there in the real world.  There are lots of ways to do that, and Cee Lo isn’t the only thing (or person) that I plan to talk about from the get-go.  But why not get started with that on day one?

Katharine Gelber offers a thoughtful review of The Offensive Internet in the Australian Review. (David Levine conducted an interview with the book’s editors, Martha Nussbaum and Saul Levmore, available here.) I contributed an essay to this volume, and I found both the other essays in it and the conference it was based on very illuminating. As Gelber notes,

Anyone who believes the Internet to be exclusively, or even primarily, a site for the democratisation of the media or a mechanism to enhance participation in public discourse needs to read this book. This outstanding collection tackles the dark side of the Internet, its use by ‘cyber mobs’, liars, aggressive misogynists and purveyors of hate to distribute their views largely with impunity, while their targets suffer the consequences of this predominantly unregulated arena for speech. . . .

[Read more →]

I’ve been auditing a magazine writing/publishing course run through my local rec center over the break, partly for fun and partly to find out how professional and semi-professional writing teachers who are not copyright lawyers understand the nature of authors’ rights.

I wasn’t necessarily surprised at the number of inaccuracies in the lecture on copyright law.  Obviously, this is a very difficult subject to get across to people of various educational backgrounds and publishing experience.

But one suggestion made by an instructor really stood out for me because it resonates with some questions I have been pondering in recent articles about the role of strict liability in copyright law and the limitations of the fair use defense.  The instructor listed the four fair use factors from section 107, noted that they were very difficult to apply in practice and that each situation is different, and that her best advice to give to writers hoping to avoid copyright infringement claims when borrowing or quoting from the work of others is that if you feel like you’re doing something wrong in your writing, then you probably are.

So that wasn’t a legal opinion and was likely an off-the-cuff comment, but I wonder if it gets at something deeper.  Maybe subjective intentions really should play a greater role in copyright law than they currently do.  In a couple of recent articles, I have suggested moving away from strict liability towards a mens rea standard for copyright infringement at least in certain contexts (unauthorized noncommercial fan video mashups and blogs for example).  Perhaps bringing in a sense of ‘right and wrong’ does make sense, given the impossibility of explaining the contours of fair use to new and emerging writers and artists many of whom are experimenting with new forms and genres, and not making any money from others’ proprietary works.  In fact, much of what is currently licensed from copyright holders should probably be regarded as fair use in any event, but it’s often easier to pay a license fee than to argue about it in court.  Would a more ’subjective’ system help us or cause us greater problems?

I’m not a First Amendment scholar, nor am I an employment discrimination scholar. I did, however, go through a hiring process twice, and this decision by the Eighth Circuit surprised the heck out of me. The gist of the opinion is that a jury must decide if a professor who was not hired at a public law school was discriminated against in violation of Section 1983. The allegation, quite simply, is that she was conservative and a liberal faculty (or more specifically, the dean following the recommendation of the faculty) refused to hire her.

The court held that this is a legally cognizable injury, and that a jury has to decide whether she wouldn’t have been hired anyway.

For those of you on the market this year (or thinking about it), the case is also an insightful view into the black box of academic hiring. It shows how mixed signals can occur, and how uniformly positive feedback can still not lead to getting hired for all sorts of reasons outside of the candidates’ control. I won’t comment on the reasoning or facts in this case, because I just don’t know them. That is, as they say, up to the jury now.

One final point – there is a key faculty governance nugget buried in this case. One factual question was whether the dean always followed faculty recommendations, and/or whether the dean must. While most deans follow almost all faculty hiring recommendations, they usually (technically) don’t have to. One issue in this case is that no such policy was in writing. After this case, deans might want to put such a policy in writing, but maybe the deans (or university provosts and presidents) won’t want discretion so limited.

H/T How Appealing

Back in October, Valve co-founder Gabe Newell explained the economics of video games as his company sees it. The Geekwire article is worth the read. For now, I’ll point out that he admits “We don’t understand what’s going on” and uses the language of co-creation of value, which I happen to believe is the current future as it were, to describe what the company is doing:

This is probably the biggest change that’s affected the gaming business over the last few years. It’s not just that we have digital distribution to our customers. It’s that we have this incredible two-way connection that we’ve never had before with our customers.
We’ve gone from a situation where we dream up a game, we spend three years making it, we put it in a box, we put it out in stores, we hope it sells, to a situation that’s incredibly more fluid and dynamic, where we’re constantly modifying the game with the participation of the customers themselves

The comments on piracy comport with insights from other industries:

One thing that we have learned is that piracy is not a pricing issue. It’s a service issue. The easiest way to stop piracy is not by putting antipiracy technology to work. It’s by giving those people a service that’s better than what they’re receiving from the pirates. For example, Russia. You say, oh, we’re going to enter Russia, people say, you’re doomed, they’ll pirate everything in Russia. Russia now outside of Germany is our largest continental European market. … the people who are telling you that Russians pirate everything are the people who wait six months to localize their product into Russia. … So that, as far as we’re concerned, is asked and answered. It doesn’t take much in terms of providing a better service to make pirates a non-issue.

The information on pricing is really cool. “[W]e varied the price of one of our products. We have Steam so we can watch user behavior in real time. That gives us a useful tool for making experiments which you can’t really do through a lot of other distribution mechanisms. What we saw was that pricing was perfectly elastic. In other words, our gross revenue would remain constant. We thought, hooray, we understand this really well. There’s no way to use price to increase or decrease the size of your business.”

Yet he goes on to describe how sales such as a 75% price reduction lead to a “gross revenue increased by a factor of 40.” They tested against a product they did not own and saw similar results. Then they tested free. It turns out free to play and and free work differently. His thought is that the user base matters because they value the products differently including “what the statement that something is free to play implies about the future value of the experience that they’re going to have.”

Furthermore, conversion rates shift too. Free to play often “see[s] about a 2 to 3 percent conversion rate of the people in their audience who actually buy something, and then with Team Fortress 2, which looks more like Arkham Asylum in terms of the user profile and the content, we see about a 20 to 30 percent conversion rate of people who are playing those games who buy something.”

What do all these tests mean? As Newell said, it’s unclear. That is why I could see some rather cool studies being done for this emerging area.

OK, that title is a riff on a line from The Player. I loved it when the film came out and still do. It says so much of nothing, but captures a vibe that persists. Yet again it seems the film industry is in trouble, or rather doldrums. The Times reports that this year’s box office was a bit off from last year. Another favorite film industry (and maybe true for all content industry) is “Nobody knows anything.”) So as the article notes “Movies are a cyclical business” and last year’s numbers may have hangovers from the previous year’s Avatar release. Then again the prices have gone up and attendance is down so there may be a real drop in the industry. There are some better answers in the article than other wrap up stories I recall reading as a kid growing up in L.A. and devouring the Calendar section of the L.A. Times when it was good.

For example as the NY Times puts it:

What has gone wrong? Plenty, say studio distribution executives, who point to competition for leisure dollars, particularly among financially pressed young people (the movie industry’s most coveted demographic); too many family movies; and the continued erosion of star power.

One more thing: “You have to go back and look at the content,” said Dan Fellman, president of domestic distribution for Warner Brothers. “Good movies always rise to the occasion. Bad ones, not so much.”

In the immortal words of Keanu Reeves, “Whoa.” Studios admitting that they compete for leisure dollars? Acknowledgement that star power is not that powerful? Furthermore, the article notes that consumers use social media and the Internet to sort rubbish copycat films from good ones” Per the Times, Phil Contrino, editor of BoxOffice.com, offers, “Because they have less disposable income and because they are more plugged in to audience reaction on Facebook and Twitter, the teenage audience is becoming picky,” he added. “That’s a nightmare for studios that are used to pushing lowest-common-denominator films.” Now let’s throw in video games. Call of Duty did $400 million dollars in its first day of sales.

In sum, the youth audience does not have huge amounts to spend and if choosing between a film that seems unoriginal and a video game, the video game often wins. And despite some odd spin about films aimed at older audiences doing well, the article also explains star vehicles aimed at older audiences failed which seems to go back to make a good movie and people are more likely to see it in the theater.

Will sequels and re-releases in 3D draw me to the theater? Yes (damn you Lucas and your 3d Star Wars ploy!)!! But would it help if there were really good new stories? Heck yeah!

For an odd closing, I offer that economists and academics in law could do well to study the way leisure dollars are spent, the demographics of the content industries, and way that some digital industries thrive while others claim to flounder. Then again, maybe nobody knows anything.

So, I read that Louis Vuitton is suing Warner Brothers for the line “Careful, that is a Louis Vuitton” in the movie “The Hangover II.” This got my hackles up – after all this IS a nominative use, unlike Bella’s Twighlight Jacket, and it is a non-trademark use – a description of the bag that’s presumably being damaged by hijinx and shenanigans (I haven’t seen the movie yet, so I don’t know).

Except, of course, that it wasn’t a Louis Vuitton bag – it was a knockoff. And that can create problems. After all, the use is no longer nominative, and no longer a fair description. Now there is a chance of consumer confusion – people might think the knockoff is a Louis Vuitton and be fooled into thinking that the sub-par stitching (so clearly visible on the screen – yeah right) is Louis Vuitton’s and of poor quality. Trademark people call this “post-sale confusion,” like the kind that comes when you wear a $10 Rolexxx. You weren’t fooled, but others might be fooled.

There’s one problem with the argument – under the Lanham Act, Section 43(a), the unlawful behavior must use the mark in connection with goods and services. That is, a trademark use. Thus, we hold the seller of the Rolexxx liable, but not the wearer, because the wearer is not making a trademark use – they are not using it in connection with goods and services.

That, I suspect, won’t stop Louis Vuitton (or sadly, the courts) here. I suspect that the finding will be that the movie is a “good or service” and that use of the name “Louis Vuitton” will be “in connection” with the movie, and confusing, and thus create liability. I can’t imagine this is what the authors of the Lanham Act had in mind. Nevertheless, courts have accepted survey evidence that credits consumers who think that the movie must have gotten a sponsorship deal with Louis Vuitton, even if they did not. In other words, courts are willing to find a trademark use just because consumers think there was one, even if there wasn’t.

So, this is another one of those “don’t do it” cases. I’m all for pushing the envelope of non-trademark use by having studios refuse to pay just for the right to utter the name of a famous mark. But it is a bad idea indeed to then use a knockoff in the movie. 

Some may remember Trading Places and the importance of the crop report on frozen concentrated orange juice to that movie. It turns out USDA commodities reports and their data are still important. For example, the Times reports that when the USDA decided to cut a program that produced “dozens of long-standing statistical reports on a wide range of farming activities, including beekeeping, hop growing and flower farming,” those industries were upset. That is not a surprise. The reports helped farmers “decide how much to plant and how many animals to raise; they use the information to persuade bankers to lend them money and to advocate for other types of government support.” The cut was going to save a reported $11 million a year. After some outcry, the decision was reversed for most, but not all, the sectors. Whether those not saved failed to lobby is unclear.

Another factor may have been better methods to collect and share data. The Times reports, “The U.S.D.A. said in a notice this month that savings obtained by creating a national operations center to centralize data collection had freed enough money to keep the reports going.” So what was the lever? Was there one lever? We may never know. Also interesting to me, is that hops industry has been paying to subsidize the reports (about $15,000 per year), was told it was not needed this year, but the industry is setting aside the money in case the budget crunches to come again jeopardize the ability to produce the reports.

I am wondering what centralized data collection did here. If it reduced internal costs, that seems good. But if the data were open for those in the industry to study and for others to create tools that approach may further reduce costs or shift them. Here, I am drawing on a paper written by David Robinson, Harlan Yu, William Zeller, and Ed Felten, called Government Data and the Invisible Hand. They

“argue that the executive branch should focus on creating a simple, reliable and publicly accessible infrastructure that exposes the underlying data. Private actors, either nonprofit or commercial, are better suited to deliver government information to citizens and can constantly create and reshape the tools individuals use to find and leverage public data. The best way to ensure that the government allows private parties to compete on equal terms in the provision of government data is to require that federal websites themselves use the same open systems for accessing the underlying data as they make available to the public at large.”

It is not entirely clear to me what is going on with the USDA and these reports. But if the government is improving how it gathers data and shares it, that seems like a good thing. If it is also analyzing data and writing reports, that activity too has merit. It may be better to have a somewhat objective party offer the data in a report format. And, if the government is putting that data out there so that others can interact with it, a range of good things could flow from private reports. Reports that question official stories would be more possible. Apps and tools could be created so that those who may not be able to pay for a report could still use the data and maybe learn from it over time. Raw data about hops and weather or catfish and water temperatures and so on, might allow farmers, conservationists, and others to learn how to achieve balances in farming techniques, cost management, and interests in sustainability. None of these potential upsides is guaranteed. But I think the potential for them increases in a system that recognizes where government is well-placed to provide fundamental resources and some neutrality (and thus needs funding) and where to allow non-governmental actors to draw on those resources to be creative.

As Deano and others might say Baby, It’s Cold Outside. And, heating costs are no joke. Neither is about $250 for a thermostat. Nonetheless, data and networks are changing the way we manage heating. As Wired reports, Tony Faddell, founder of Nest Labs makes this compelling point:

Untold tons of carbon were being pumped into the air, with people losing billions of dollars in energy costs, all because there was no easy, automatic way to control the temperature. But what if you could apply all the skills and brilliance of Silicon Valley to produce a thermostat that was smart, thrifty and so delightful that saving energy was as much fun as shuffling an iTunes playlist?

So far, you may be thinking that programmable thermostats are old hat. They are and may not have worked as well as hoped given that the Times reports “Two years ago, the federal government eliminated the entire programmable thermostat category from its Energy Star program.” Yet, there is something different here. Improved, networked climate control is not your father’s Oldsmobile. It sounds crazy, but the pre-orders sold out and demand is high. Others are in the game as well. Some require more tech savvy to install. Regardless the idea is that data and networks will allow one to manage energy costs well.

The Nest seems to be the leader for easy use and install. The Times explains that the design is great but then the iPod designer would have to do that, right? The best part for me is that the Nest uses Wi-Fi which means software updates, programming from the Web or an App, and it learns.

Learns? Yes, learns. The system tells users how much time it will take to raise a house’s temperature (which stops the habit of cranking heat to get to a lower temperature), notes manual adjustments for home, midday, away, etc. to start to offer an automatic cycle attuned to habits. Motion sensors help set basic overrides for heating and cooling to take care times when no one is home. In a nod to behaviorial economics and some things that I think Ryan Calo has been considering, the Times explains that “Nest says that turning down your thermostat by even a single degree can save you 5 percent in energy. To that end, it offers a little motivational logo: a green leaf. It glows brighter as you turn the ring beyond your standard comfort zone. As a positive-reinforcement technique, it’s a lot more effective than an exhortation from Jimmy Carter to put on a sweater.”

I always feel a little sad when reminded of President Carter’s attempt to address the energy crisis of the 1970s. It seems to flow from a view of WWII America when people buckled down for the greater good, but that had perhaps faded years before his plea. Still, if we have learned that other approaches can aid better judgment and action, maybe we will turn those thermostats to 68 and wear that sweater as the then President asked us to do.

Some months ago I mentioned a textbook called Networks, Crowds, and Markets to Susan Crawford (hat tip for the book recommendation: Nicklas Lundblad). After I told her how the text helps explain the basics about networks, game theory, and more, she said that I had to tell people about the book. So now I am. It is by David Easley and Jon Kleinberg who are both at Cornell. The pre-publication site has the draft text in pdf and the official pub is at Cambridge.

It requires a full read, and I recommend reading it pretty much start to finish. That being said, the sections break out in rather nice ways. For example, the markets and information section offers a great way to understand things that are often thrown around in law and policy circles. The most obvious example is the Wisdom of the Crowds idea. It turns out that only certain types of crowds are “wise.” As the authors point out: “The basic argument there, drawing on a long history of intuition about markets, is that the aggregate behavior of many people, each with limited information, can produce very accurate beliefs.” They explain:

Our results on state prices illustrate some of the technical basis for this intuition. In particular, we found that the crowd at the racetrack determines the odds, or the state prices, and these odds are an average of the opinions in the crowd. If the opinions in the crowd about the probability of horse A winning are independently drawn from a distribution whose mean is equal to the true probability of horse A winning, and if wealth shares are equal, then the state prices actually do converge to the true probabilities as the size of the crowd grows. This occurs because the state prices are actually the average belief in the crowd, and this average converges to the truth with the size of the crowd.

But these claims have two important qualifications embedded in them, both of which are important for understanding the limitations of the wisdom of crowds. First, it is important that the opinions are independent. … Second, it is important that all beliefs are equally weighted.

My read of the above is that those who invoke crowds as being wise should stop and consider whether the judgments are independently made. Online independent judgments are probably not as common as many think. In other words, crowds are not necessarily wise. To be honest, I am not sure I have digested the equally weighted insight. But I defer to the authors about that one.