In preparation for an upcoming conference paper, I’ve been doing some research into the role of intent in copyright law, particularly in the context of direct infringement. I understand that Steven Hetcher may have presented a paper along these lines at IPSC this year, but I was one of the unfortunate few who missed the conference this year. So if anyone was at the discussion of his paper, I’d be interested in your thoughts.
There seem to be a number of historical explanations as to why copyright infringement attracts strict liability. They include the fact that, at least in the United States, registration and notice of copyright works were historically linchpins of the system and so potential infringers were relatively easily said to be put on notice of the copyright owner’s claim to his/her copyright. Additionally, there seem to have been a lot of historical analogies made with property law, and the tort of trespass in particular. There is also the argument that between the plaintiff and the defendant, the defendant is often best placed to avoid the loss, so as a matter of economics, it makes sense to put the liability risk on the defendant. A corollary to this point is that it is often difficult to for a plaintiff to prove what a defendant’s subjective intent was with respect to his/her use of the protected work, so strict liability is a fairer option.
I’m interested both in whether I’ve missed any historical explanations and as to whether many of these explanations still hold water. It seems to me that notice and registration of copyright works are now less significant than in the past because of compliance with the Berne Convention. I’m also a little leery of the analogies between copyright infringement and real property trespass (although I’ve recently been reading some of Wendy Gordon’s work in this area which runs some good arguments to the contrary).
Does anyone know of any good recent work on the issue of intention/strict liability in copyright? I’m particularly interested in looking at the direct infringement question, because obviously the defendant’s state of mind has been relevant in various forms of secondary liability – well at least contributory liability.
Where intermediaries and bots rule, de facto fair use (or at least tolerated use) may end up being whatever slips by the anti-piracy program. Experimenter Scott Smitelli reveals the following:
It is quite possible to thwart the YouTube Content ID system, but some methods mangle the song too much to be used in anything useful. . . . The most subtle approach is to use a resampling function, which simply increases or decreases the speed of playback. For these modifications, a speed increase of 5% or greater will work, as well as a speed reduction of 4% or greater.
No problem for some artists. Justin Bieber is basically unlistenable until you slow down his songs by 800%.
Everybody hates a patent troll. But the broader economy of Web 2.0 is not exactly a landscape of virtue rewarded and failure punished. One of the recent put-downs of Paul Allen’s patent lawsuit inadvertently puts that fact into high relief.
[I]t looks like Interval patented basic operations of web sites that seem pretty obvious — and therefore should not have been granted patents. They govern the navigation of audio visual data on a web site, allow information to be located quickly, and present images to get users’ attention. If [Allen's entity] Interval Research had never existed, these “inventions” would have happened anyway.
For someone who wants to protect the likes of Google, Facebook, and eBay from suits like Allen’s, the “would have happened anyway” line is a bit dangerous to pursue. There was long-standing consumer demand for a social network: maybe Facebook just happened to be consumers’ darling when internet speeds and social conditions were optimal for rapid scaling. I find it hard to believe that any given Silicon Valley billionaire is a thousand times more talented than a peer with a “mere” million. As Jaron Lanier writes, some of the Web 2.0 business model is merely a game of redistribution from content creators to content aggregators:
“Web 2.0” designs . . . [have] valued the information content of the web over individuals. It became fashionable to aggregate the expressions of people into dehumanized data. There are so many things wrong with this that it takes a whole book to summarize them. Here’s just one problem: It screws the middle class. Only the aggregator (like Google, for instance) gets rich, while the actual producers of content get poor. This is why newspapers are dying.
It might sound like it is only a problem for creative people, like musicians or writers, but eventually it will be a problem for everyone. When robots can repair roads someday, will people have jobs programming those robots, or will the human programmers be so aggregated that they essentially work for free, like today’s recording musicians? Web 2.0 is a formula to kill the middle class and undo centuries of social progress.
Though I would not go as far as Lanier, I have to admit that I find it hard to get excited about some recent economic battles affecting Silicon Valley, ranging from net neutrality to patent trolling. Given the endless string of privacy snafus coming out of Palo Alto, should I really care if Facebook ends up being owned by Mark Zuckerberg or Verizon? Both subject users to lots of surveillance, and both are profit-maximizers. Here is “Zuck” from an early IM session:
Zuck: Yeah so if you ever need info about anyone at Harvard
Zuck: Just ask.
Zuck: I have over 4,000 emails, pictures, addresses, SNS
[Redacted Friend's Name]: What? How’d you manage that one?
Zuck: People just submitted it.
Zuck: I don’t know why.
Zuck: They “trust me”
Zuck: Dumb f***s.
It’s hard to trust Silicon Valley any more than one trusts Wall Street.
Power law dynamics in Web 2.0 create “big winners” in various realms online (tweets, search, social networks, picture sharing, etc.), and we can’t assess the extent to which any winner’s success was due to the sheer luck of offering a certain service at the right time. If net neutrality or anti-troll legislation is really all about assuring that the gains of innovation go to the lucky instead of the powerful, I don’t really see the value in pushing them.
(Don’t get me wrong–I think there is a really good case to be made for net neutrality, via the work of people like Jerry Kang (see Race.net Neutrality), Paul Ohm (focusing on privacy), and Dawn Nunziato (focusing on the First Amendment). I also think there are many powerful arguments available against patent trolls (in books ranging from The Gridlock Economy to Patent Failure). I just don’t feel the “equity” argument very strongly in the Web 2.0 field, where legal commentators appear all too prone to celebrate black box technology as business genius and social transformation.)
As the 2010-2011 academic year gets underway, congratulations are in order for several Madisonian.net contributors who have new faculty appointments. In alpha order:
Brett Frischmann has moved to Cardozo Law School at Yeshiva University.
Rob Heverly has moved to Albany Law School
and Josh Sarnoff has moved to DePaul University College of Law.
I can’t help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners. The courts have been rebuffing efforts to use the DMCA as a tool to impede competition, and content producers seem to be relying less and less on the types of DRM technologies that were at issue in the early wave of cases.
Two recent developments have me wondering whether the trend towards limiting the DMCA’s overreach has reached a point where it’s now possible to declare victory of a sort. First, two Circuits—the Fifth and the Federal—are now on record as essentially requiring a plaintiff in a DMCA case to prove copyright infringement, and a third court, the Sixth, is not far behind. … Second, each recent round of the Librarian of Congress’s triennial DMCA rulemaking incorporates stronger and stronger protections for users. The 2006 rulemaking allowed DVD access controls to be circumvented by some users; the 2009 rulemaking (which was delayed until just last month) dramatically expanded this to include virtually all noncommercial users, so long as not too much of the underlying copyrighted content is taken (which looks an awful lot like a fair use type of inquiry).
Tim concludes by wondering “whether the DMCA controversy is now behind us; whether the worst of the statute’s sharp edges haven’t now been effectively worn away.”
Here’s a fascinating visualization of soft drink brands, showing how Coke and Pepsi dominate about 74% of the market via a kaleidoscope of brands. The creator of the visual argues that the industry’s concentration is “obscured from us by the appearance of numerous choices on retailer shelves,” which Steve Hannaford “refers to . . . as ‘pseudovariety,’ or the illusion of diversity, concealing a lack of real choice.” There is a certain “tyranny of the market here,” which obscures the real dominance of a small handful of companies in beverages (and perhaps also illuminates the extraordinary political activism of the American Beverage Association, even in light of the national security threat some of its products pose.)
Jake W. Barnes proposes a novel legal response to the brand proliferation and resulting obfuscation of the “true source” of products:
Trademark law is unjustifiably permissive because it protects more than one mark for each supplier of goods and services. . . . Multiple marks are not necessary to indicate source. . . . This article proposes and justifies a radical restructuring of trademark law limiting trademark protection to one mark per source, a “single signal” rule. It argues that the proper scope of trademark law requires emphasizing source-indicating function of trademarks and liberating the product-describing function. It suggests a program for minimizing the dislocation costs to consumers and suppliers that result from removing trademark protection from many famous marks.
An idea whose time has come? A leading novelist suggests the pseudovariety problem will only get more intense; Gary Shteyngart’s new dystopian fiction features UnitedContinentalDeltAmerican Airlines, LandO’LakesGMFord credit, and AlliedWasteCVSCitigroup retail in a “very near future.” Can DrPepperSnappleGroupDessertToppingFloorWax be next?
The idea stems from the law review system in which people submit their papers to a clearinghouse where it can then be assessed by all of the law review editorial staffs that the author targets for submission. You can submit to as many law reviews as you’d like. Once one law review accepts the paper a bidding war begins between the reviews. The author almost always takes the offer from the most prestigious law review, which often doesn’t come until a number of lower-tier publications have made their case for why you should publish the paper in their review. It may be easier to convince a higher tier journal to accept your work if you already have 15 acceptances. The system is fast. You submit papers twice a year, which is followed by 2-3 months of negotiation until all of the publishable papers are divvied up among the reviews.
I can see how the law review world could be interpreted as working this way, particularly by a scholar who specializes in organizational theory, but my bet is that most law review authors would look at it differently.
As one Chinese salesman selling counterfeits in Beijing told me: ‘The shoes are original. It’s just the brands that are fake.’
Reading the story, I also wondered about the word: sneakers, sometimes called “tennis shoes.” The “Online Etymology Dictionary” gives what I suspect is a standard account: rubber-soled shoes were noiseless. On a court, however, they are anything but. The word “sneakers” has an old-fashioned quality, one that suggests that when we buy shoes, we care mostly about their function. I wore adidas Stan Smiths for a decade when I was young; those really were tennis shoes. If Western consumers cared only about function, would Putian be such big business?
Höffner has researched that early heyday of printed material in Germany and reached a surprising conclusion — unlike neighboring England and France, Germany experienced an unparalleled explosion of knowledge in the 19th century.
German authors during this period wrote ceaselessly. Around 14,000 new publications appeared in a single year in 1843. Measured against population numbers at the time, this reaches nearly today’s level. And although novels were published as well, the majority of the works were academic papers.
The situation in England was very different. “For the period of the Enlightenment and bourgeois emancipation, we see deplorable progress in Great Britain,” Höffner states.
Indeed, only 1,000 new works appeared annually in England at that time — 10 times fewer than in Germany — and this was not without consequences. Höffner believes it was the chronically weak book market that caused England, the colonial power, to fritter away its head start within the span of a century, while the underdeveloped agrarian state of Germany caught up rapidly, becoming an equally developed industrial nation by 1900.
Even more startling is the factor Höffner believes caused this development — in his view, it was none other than copyright law, which was established early in Great Britain, in 1710, that crippled the world of knowledge in the United Kingdom.
Germany, on the other hand, didn’t bother with the concept of copyright for a long time. Prussia, then by far Germany’s biggest state, introduced a copyright law in 1837, but Germany’s continued division into small states meant that it was hardly possible to enforce the law throughout the empire.
If this history of copyright suggests that the law itself channels success and failure more than it encourages broad development and diffusion of knowledge, then a superb modern acknowledgement of the same point comes from this summary at Ars Technica of a proposal that federal law should require that FM radio receivers be bundled with mobile phones. Record labels and radio broadcasters are, it appears, all in favor. Such an expansion of the pie would, presumably, facilitate a deal on public performance rights for sound recordings. If such a deal emerges and the proposal goes forward, we will likely hear that it has nothing, whatsoever, to do with copyright interests and is all about making consumers — who seem (to me, anyway) to be pretty happy with their current and still-evolving range of music-access options — “better off.”
Google’s defection from the supporters of an open internet changes the political dynamics for the worse, opens the door to creation of a second-class internet for non-corporate content, and tries to disable the FCC’s ability to do anything about it.
Last week I wrote up a guide of the FCC negotiations on net neutrality, setting out all the loopholes, and noting that the carriers needed only one loophole to kill an open Internet. Verizon and Google announced their pact two days ago. Rather than including one loophole, they went down the checklist and included just about every loophole they could.
I recently noticed some publicity about a court case in Italy involving a clothing line using the trademark “GC by George Clooney” which has no affiliation with the popular actor George Clooney. Looking at this online write up of the dispute (source here), it strikes me that one could construct a neat exam hypothetical in the TM/personality rights area from these facts:
“Does George Clooney dress well off and on the screen? Thanks to Giorgio Armani, he does. No one wears a suit better. Which is what some Italian entrepreneurs in Milan thought two years ago, when they cooked up a clothing line called GC by George Clooney. Problem is, the superstar had nothing to do with it. The fraudulent business people even organized a show in a Milan hotel and used the actor’s name to promote the line. But this week, the real George Clooney – who has a home in Lake Como, Italy – had to appear in an [sic] Milan court to play out a lawsuit against the people who used his name without consent, permission, or even an attempt to contact him. Of course, there was a crush of cameras in the Milan court, but Clooney remained cool throughout, even cracking jokes. Only one defendant — Vincenzo Cannalire — attended the trial. He and associates apparently forged Clooney’s name – and photo – on many documents. They even claimed Clooney was dating one of their female partners, and doctored pictures to insinuate that. Clooney turned to greet him after recognizing the man from of the photos he was looking at. “This is the first time I’ve ever seen him,” Clooney said, motioning to the defendant. Then with he added, “So I’d like to say hello, nice to meet you.” So if you’re in Italy and someone tries to sell you clothes by George Clooney – buy Armani instead. But – perhaps someone should get Clooney to design and back a line of mens’ clothes. It would probably be extremely cool – and well tailored.”
The New York Times highlighted the recent opinion of the Third Circuit in Bimbo Bakeries v. Botticella. upholding a preliminary injunction against a former senior employee of Bimbo Bakeries from assuming a position at rival baker Hostess. The former employee, Botticella, was accused of misappropriation of trade secrets. The injunction was issued and upheld on the ground that there is a substantial likelihood that he would divulge secrets regarding the production of Thomas’ English muffins, one of Bimbo’s flagship products, and specifically regarding the genesis of Thomas’ famous “nooks and crannis” texture.
The case itself is moderately interesting. The Third Circuit goes to some pains to distinguish its analysis from application of the “inevitable disclosure” doctrine of trade secrets law. The employee, his former employer, and the initial acquisition of the trade secrets all took place in California, which takes a (dim) view of non-competition law that differs considerably from the more conventional view taken in Pennsylvania. Out on the West Coast, aggressive trade secret cases and enthusiastic claims of “inevitable disclosure” are sometimes viewed as work-arounds for the limits that California places on enforcement of covenants not to compete. In the Third Circuit, the court seems to go out of its way to describe this case in conventional terms. Botticella clearly had access to the plaintiff’s secret process, and his explanations of his activities just before his left his employer (he was copying files in order to practice his computer skills!) were just lousy. Moreover, according to the opinion, Botticella’s employment contract did not include a non-compete — and it specified that PA law would govern its enforcement. Botticella’s new job with Hostess would have placed him in Texas.
The case is noteworthy for IP teachers, however, and perhaps even for IP theorists, because it involves the news that English muffins are surprisingly difficult to reverse engineer. For many years, IP lawyers and scholars have used the “secret” formula for Coca-Cola as the paradigmatic case of a trade secret: an innovation that is highly valuable and protectable under the law, despite being inherent in a widely-consumed product, without being disclosed via the patent system. The Coke formula maintains its trade secret status and its value, we say, because of the high difficulty of reverse engineering that particular cola. But I’ve always understood that the Coca-Cola formula is not truly so difficult to reverse engineer, even if we don’t see Coca-Cola clones on the market. Coke’s power really lies in its branding, not in its chemistry.
With Thomas’, we now have an extremely public example of something where reverse engineering of a consumer foodstuff has been tried — and has failed. How could something that looks so funny, taste so good? Only a tiny handful of people know, and can know. Now that’s a trade secret.
Who knew? I am reminded of the film Duplicity, with Julia Roberts and Clive Owen as corporate spies and Paul Giamatti and Tom Wilkinson as the corporate barons dueling over access to a secret formula. No bakers in that one, though.
I will be attending the 2010 Intellectual Property Scholars Conference next week at UC Berkeley, as an observer rather than a presenter. I’m looking forward to the conference: seeing lots of friends, listening to presentations, fishing for great new papers. But I have a curmudgeon’s view of much of the working-paper-conference phenomenon. Rather than wait until the conference is over to express that view, I’ll put it out here now. From this post-IPSC post that I wrote all the way back in 2007:
Law professors who don’t have terminal degrees don’t get trained in the ethos of scholarship the way that graduate students are supposed to, so learning an ethos is sometimes a hit-or-miss proposition. In IP, with the growth in the field over the last several years, there are a couple of places (in addition to not submitting a paper when an abstract has promised one) where the misses are pretty obvious.
One is presenting raw and half-baked ideas at big public conferences like this one. Presenting a work-in-progress doesn’t necessarily mean presenting an unfinished work. There are times and places for sharing very-early-stage work: With small numbers of trusted friends and colleagues. At brown-bag lunches. With an Associate Dean for Faculty Development, or a mentor, if there is one. At roundtables organized for that purpose. At a big public conference, however, the paper may not be in its final form, but the form that is delivered should be final. That type of conference isn’t always a reputation maker, but it can be a reputation breaker. And the audience will give better and more thoughtful feedback to a presentation that has been evidently thought through than it can to one whose gaps are obvious.
Two is not being aware of the historical context of the work. By far the biggest flaw in presentations and papers by junior IP scholars (and sometimes by more senior IP scholars) was and is their evident ignorance of earlier work. And not just or even work published within the last year or last five years; I’m thinking of the fact that a lot of foundational work published ten years ago or earlier remains significant today. IP doesn’t have a sclerotic hierarchy, but it does have senior people who are still active scholars today, and their earlier work still matters. And, of course, there is quite a lot of relevant work from decades ago and scholars no longer with us.
That post prompted several great comments, which are still worth reading.
It took me a while to do something in response to my own critique, but at last, earlier this year, I stepped out with a series of blog posts that I called “Lost Classics of Intellectual Property Law,” identifying older works of patent, trademark, and copyright scholarship that are important to the history of the discipline(s). The series begins here, and it (and each list) is a work in progress.
After years of knocking off luxury products like $2,800 Louis Vuitton handbags, criminals are discovering there is money to be made in faking the more ordinary — like $295 Kooba bags and $140 Ugg boots. In California, the authorities recently seized a shipment of counterfeit Angel Soft toilet paper.
In some cases, fake products are being listed for more than the originals. That news supplies some helpful context for this photo, which a friend in Turkey snapped:
“Reverse” confusion, where a (more famous, junior) infringer leads the public to believe that it is the source of goods or services produced by a (less famous, but senior) mark owner, is a viable theory of trademark infringement.
If a faux product that incorporates a famous trademark makes the real thing seem *more* valuable, does the mark owner have a claim for “reverse” dilution?
What now seems to be a back-t0-school ritual of confusion over the complaint (what’s the problem? that students are not wholly original, or that they are not wholly truthful in crediting sources when they are not wholly original?) is prompted by a recent book by Susan Blum, a scholar at Notre Dame.
There is little new here, I think, including the round of criticism that blames the students for being thieves and cheaters, and/or blames Western culture for continuing to be in thrall to Enlightenment ideals of individual authorship. (I’m referring to the debate/dialogue, not to Professor Blum’s book, which relies on original research.)
Legal education is hardly immune to the plagiarism problem. Nor is legal education any more successful in general than education at any other level in combatting the problem by hectoring students about what’s right and what’s wrong when it comes to research and sourcing.
This is what I have done, partly to deal with the plagiarism issue: I teach differently. Like many teachers, I put a premium on teaching my students to develop the faculty for independent thought and expression, including understanding differences between contexts where “new” expression and judgment is called for, contexts where uncited “old” (others’) expression and judgment is fine, contexts where “old” (others’) expression and judgment is fine but citations are required, and contexts (this last category is the largest one) that involve blends of these things.
I can’t do that with standard law school end-of-semester exams, whether they are in-class or take-home exams, because end-of-the-semester exams generally don’t challenge students to write well. That is, exams generally don’t challenge students to write as lawyers in practice are expected to write: Clearly, concisely, efficiently, and with the sense that the lawyer’s personal judgment is what the client expects and deserves.
I can do that to a large degree, but imperfectly, by assigning my students to write a series of short papers based on hypotheticals that I design and that are not ripped from the headlines, the advance sheets, or the Teacher’s Manual — and that, in the main, don’t ask solely or even primarily for “legal” analysis. I ask students for their judgment, which depends on legal analysis but which has to go beyond it. I have found that papers that respond to my hypotheticals are, by definition, not subject to plagiarism problems, because the hypotheticals do not lend themselves to cut-and-paste responses, even in part. With multiple assignments during the term, I can raise and address issues of citation and see whether students have learned appropriate lessons. Am I certain that no student of mine has ever slid a cut-and-paste job past me? No. But I don’t worry about plagiarism. I worry about structuring my teaching so that my students are forced to think for themselves.
In re Erving Industries, Inc., a Bankruptcy Court opinion from last Spring in which the court considers whether the sale of “electricity” involved the sale of a “good” for UCC and therefore Bankruptcy Code purposes.
[T]his Court discerns a marked difference between electricity and television, radio, telephone, and internet signals (”telecommunication signals”). Although their manifestations may appear similar, they are differentiated by both their physical attributes and the purposes for which they are purchased. Telecommunication signals are properly considered services because they are mechanisms by which other non-goods — intellectual property, ideas, sounds, music, images, and words — are sent from one location to another. Electricity, in contrast, is not merely a medium of delivery, but is the thing the customer seeks to purchase. Customers paying for telecommunication signals may, on the whole, be fairly unconcerned with the physical properties or mechanics of the telecommunications signals, except to the extent that those physical properties enhance the delivery of information. On the other hand, electricity customers are undoubtedly concerned with the intimate physical properties of electricity. That is, customers rely on the specific physical properties of electricity to fulfill their needs — anything deviating from those properties simply will not do. And it is those physical properties, the very nature of electricity, that customers contract to purchase.
The Court agrees with NewEnergy that, although its ultimate nature may be mystifying to most, electricity is tangible and does possess physical properties. It is not simply an “idea” akin to intellectual property. Although perhaps lacking in corporeal shape and not easily observed, electricity really is some thing, something that can be felt (although we are loathe to) and something that can be created, measured and stored.
This reasoning strikes me as deeply, even profoundly, confused. Aren’t telecommunications signals, like “electricity,” forms of electromagnetic energy? Is music, transmitted by wire, somehow separable in physical terms — which is what the court seemed to be concerned with — from the electromagnetic signals that “carry” the music? Don’t actual forms of IP possess genuine “thing-ness” (i.e., discreteness) that electricity, on my layman’s understanding, lacks? I’ll overlook the court’s upside-down description of IP as such.
A hypothetical:
Resolved, in light of Erving: All copyright and patent transactions are subject to Article 2 of the UCC, for they involve subject matter that can be felt, created, measured, and stored.
In case anyone missed it, yesterday the Librarian of Congress released the new exemptions from the DMCA’s access control protection measures. The details are here. Looks like some good news for some fair uses of DVD snippets.
For a certain generation, the following quotation captures a time and place – and a technological (if then-fanciful) promise – precisely: “Steve Austin, astronaut. A man barely alive. Gentlemen, we can rebuild him. We have the technology. We have the capability to build the world’s first bionic man. Steve Austin will be that man. Better than he was before. Better, stronger, faster.”
Swap out “bionic” for “biologic,” and you get the following:
Discuss – from any perspective you like (economic, IP/innovation (much of the relevant research in this area is patented), distributive justice, ethics). Just to complicate the story a bit, note that an enormous amount of the funding behind the research that is highlighted here comes from the Defense Department. Basic training is a huge source of traumatic knee injuries.
In full disclosure, I have a couple of personal interests here. I have one bionic knee, and two arthritic knees; the speaker, Dr. Kevin Stone (bio here) is my surgeon, and I think very highly of him as a physician.
