Global Advertising Lawyers Alliance (GALA) Webinar – “Hot Topics in Advertising Law in North America”

I always enjoy these and recommend the free GALA webinars to
those interested in advertising law; I joined in progress due to some technical
difficulties on my end.

Joseph Lewczak: FTC v. Teami ($15 million settlement, all
but $1 million suspended), where there were other bad things like fighting
cancer claims and also nondisclosure by influencers like Cardi B. FTC does not
want disclosure below the “more” expansion link, if any; it has to be above so
anyone will see it even if they don’t seek out more info.

Kelly Harris: In Canada, Competition Bureau brought
enforcement action against FB for misleading privacy representations even
though it’s a free service. New bill: regulating online programmers like
Netflix, though UGC will be excluded (but might be included if commissioned for
or developed by the service). Regulator will impose “conditions of service,”
though not quite traditional broadcaster licensing.

Jose Antonio Arochi: Mexico doesn’t have specific
regulations. Twitter reviews for Sephora where consumers were demanding money
for allegedly expired products and saying they couldn’t get refunds from
Sephora. Apparently Consumer protection agency called Sephora to clarify the situation—there
was no litigation.

Melissa Steinman: Shop Safe Act introduced trying to stop
fakes in ecommerce; didn’t go through (attempt to create contributory liability
for platforms) but will be reintroduced, so keep an eye out. Theme for this
year: platform liability.

Reviews: Vitamins Online v. Heartwise: Manipulation of reviews
actionable under Lanham Act, including manipulating “helpful” votes and giving
people free stuff for positive reviews.

Maryland: First ever digital advertising tax, on gross
receipts. Vetoed by governor but overridden; lawsuit brought by platforms like
FB and Google—wait and see. NY, DC, WA are considering similar taxes so it’s a
trend to watch.

Harris: In Canada, the provinces regulate consumer
agreements online. Certain procedural requirements: must be able to see &
save a copy of the disclosures/contract w/in 15 days, via email receipt for
example. Certain practices are limited: unilateral changes of material elements
like price. Failure to comply: right to rescind; damages, including on class
basis and class actions in Canada are rising, especially Quebec and B.C.
Competition Bureau is very interested in digital economy. Drip pricing (adding
fees after initial disclosure) is an area of significant interest: StubHub,
TicketMaster, car rental companies that charge “environmental” fees.
Substantiation of “regular” price claims is also a big issue.

Arochi: Again, Mexico has nothing specific to online shopping,
just consumer protection and COFEPRIS (Mexican FDA), which does regulate
advertising. Suspended 34,000 webpages during pandemic of people trying to
publicize products that are health-related or make health claims. Permits for
certain products are required in advance: health related, supplements,
food/beverage, pesticides, alcohol/tobacco. Also new disclosures for high-fat
etc. foods with big labels on the front of the package.

Jeff Greenbaum: Don’t assume that online disclosures are
clear and conspicuous, even if “everyone is using them.”

Harris: Canada: disclosures can clarify but can’t correct a
misleading main claim or contradict the main claim. One click away is likely
low risk of regulatory enforcement, but ensure disclosures travel across
platforms and ensure consistency in disclosures in multiple places and/or
media: that was at issue in recent self-regulatory competitor challenges. This
is an issue of coordinating teams that might be in charge of different media.

Arochi: Mexico enforcement is more likely to target different
products that become a problem. There aren’t as many cases day by day and that
lack of emphasis from the authorities affects behavior.

Lewczak: consider that disclosures need to be fit to medium
and consumer’s consumption thereof: disclosure in YT video description may not
be enough. Not a lot of US action on sweepstakes. Covid concerns: don’t be tone
deaf; giving away cruises, event tickets, and other in person prizes can be
risky and generate bad PR. Don’t require physical presence for entry or award
of prizes. Do your rules have a force majeure type limit that allows
covid-related flexibility? Avoid unintended sweepstakes with attempted
charitable giveaways to doctors, restaurant workers, etc.; may require
disclosures and charitable registration: Draper James teachers giveaway. Loot boxes
are on the horizon.

Harris: Winner of contest must complete test of skill; cases
vary on what’s enough, but 4-part, multi function math question with a time
limit. You can do it on entry or just for the winner; depends on structure of
promotion. Also: no forcing purchase to enter, but can say, “submit an original
essay.” Quebec: registration requirements (doesn’t apply below a certain
monetary threshold, and to non-advertising promotions like a contest for
employees) + French language availability. A minimum disclosure is required in
all advertising, adequate and fair disclosure: number and value of prizes and
other material facts—entry dates, eligibility requirements, geog. distribution of
prizes if any. Can be difficult depending on how contest structured.

Arochi: Interior Ministry and Consumer Protection Agency require
permits for some sweepstakes/contests. TV contest for example requires a
specific agency permit. Chance-based contests may not need a permit. Division
of authority may not be clear so may have to ask both agencies and then pick
one to apply to.

Steinman: Lots of US action on country of origin. NPRM, July
2020 on Made in USA claims, codifying current enforcement policy and adding
ability to seek civil penalties: need all or virtually all of manufacture, or
component parts/ingredients, to make Made in USA and related claims. This can
include use of flags, eagles. But can use qualifiers like “made in USA of
domestic and foreign components.” “Designed in US” can also work. California
has a 5% foreign content requirement. FTC also challenged “Danish cookies” that
weren’t made in Denmark.

FTC v. Williams-Sonoma: $1 million penalty and prohibition
on unqualified US origin claims without being able to substantiate them. FTC v.
Chemence, Feb. 2021: $1.2 million for violation of existing order, highest
monetary judgment ever for Made in USA case. Made in US: final
assembly/processing and all significant processing in the US, and all or
virtually all ingredients/components are made/sourced in the US. Assembled in
US: product is last substantially transformed in the US, its principal assembly
takes place in the US, and US assembly operations are substantial.

Harris: Made in Canada standards are similar: last
substantial transformation in Canada; at least 51% of total direct costs of
producing/manufacturing occurred in Canada, and accompanied with appropriate
qualifying statement (e.g. made in Canada with imported parts). Moose Knuckles
parka, 2016, lacked qualifying statement (made with Canadian and imported components);
settled for $750,000 donation. Product of Canada: like made in Canada, but all
or virtually all of the total direct costs (98%) must be Canadian.

Arochi: Mexico has one of the highest numbers of
Appellations of Origin; more than 8 processes for obtaining certification for GIs.
Hecho in Mexico is a certification; must be (majority) produced in Mexico, not
precisely corresponding to AOs or GIs, but permit coming from Mexican
government.

Greenbaum: Environmental marketing: Little FTC enforcement
but some states have enacted more stringent requirements or made Green Guides
into enforceable rules. Mattero v. Costco: class action over Costco’s “environmentally
responsible” claims for detergent: were claims sufficiently qualified/were
other benefits communicated: court denied motion to dismiss. New administration
and revision of Green Guides may be an opportunity for FTC to change its
approach.

Harris: Canada is similar; no specific green marketing laws,
just Competition Act/provincial statutes. Federal guidance on green claims like
recyclable exists, and self-regulatory code/guidance specific to environmental
claims. Ongoing consumer class actions regarding pesticide in supposedly “organic”
medical cannabis. All 2020 self-regulatory consumer complaints were upheld,
including against a joke about benefits of saving water, because water scarcity
is a serious issue and implication that product could help was found misleading—humor,
puffery defenses rejected. Also home fragrance claimed to have “natural”
ingredients—some ingredients were natural, but no evidence that all
scent components were. Exaggeration of environmental benefits also were
challenged. Grain Farmers of Ontario: depicted farms and farmers under stress, food
supply shortages, empty grocery stores: condemned as inappropriate
fearmongering.

Arochi: Also enforced by consumer protection agency
(PROFECO) and COFEPRIS. CONAR is the self-regulatory body.

Taste and cultural concerns:

Lewczak: BLM and #MeToo—but not clear that any regulator or
self-regulator will do anything. Major TV networks have their own guidelines
against violence, antisocial behavior, oversexualization, stereotyping. Third
party organizations also complain: PETA for animals, MADD for alcohol, other
rights groups. Frida Mom’s ads showing reality of postpartum recovery rejected
from 2020 Oscars for being too graphic—at least get some PR benefit from that.

Harris: significant Canadian regional differences. Claims
likely understood more literally by regulators. Supreme Court of Canada uses
the “credulous, hurried and inexperienced” standard. Can’t demean, denigrate,
disparage: one complaint can bring you before Ad Standards. Canadianisms to
watch out for: mostly metric except for height and weight of people; Celsius
for weather. French exists outside Quebec. Spelling is different: colour,
behaviour, honour, centre, etc.

Arochi: Spanish is the official language. Regional
differences are significant; a federation with 31 states and Mexico City. 10th
most populated country in world, most Spanish speakers. Measurements are always
metric/Celsius for weather. Can start claims before consumer protection agency
without disclosing identity, which allows competitors to bring claims strategically.

Covid enforcement

Steinman: FTC recorded more than 130,000 complaints in first
half of 2020; issued more than 300 warning letters with 95% compliance rate; has
brought some cases against covid treatments. Even Purell received a warning
letter. Also price gouging cases. Quality King raised prices for Clorox etc several
times and was forced to disgorge profits + penalty; 3M has also been active
against mask resellers (or counterfeiters). Privacy is also a hot topic: CCPA
in California is now effective [or as Eric Goldman might say, it’s in effect].
First class action under this has been filed, against Ring (plaintiffs include
people who were hacked which they found out when someone talked to their
daughter).

Harris: Canada is seeing new rights, Consumer Privacy Protection
Act—against automated decisionmaking, deidentified data; data portability/erasure;
Quebec is also updating his regime.

Arochi: New food labeling law in Mexico, against use of
cartoons on foods with excess fat etc. Black stamps on products that qualify;
also new guidelines on medical marijuana.

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WIPIP SESSION 9.B. — Copyrights

Peter Lee, UC Davis School of Law

Autonomy, Copyright, and the Structure of Creative Production

Theory of the firm would suggest more consolidation within
the firm in creative industries than exists. But creative autonomy is one
reason that people would prefer not to be employees. © also has a role by
allowing credible transfers. Big caveat: © facilitates contractually mediated
vertical disintegration, but it does not guarantee creative autonomy; bargaining
power of artists matters a lot. As digital distribution increases, © will still
play an important role in promoting creative autonomy not by facilitating vertical
disintegration but by facilitating top-down vertical integration, bypassing
traditional intermediaries. But power disparities will continue to matter for creative
autonomy.

Derek Miller: Historically, where does © affect the firm?
How do you show the causal story? Not all works are vertically disintegrated—the
Marvel Universe is horizontally structured, controlled by WFH. Actors are
disintegrated from the Hollywood system they used to live under but have
basically no © power—so how do they fit in?

A: don’t have much historical lens. Some other work suggests
© leads to greater autonomy. Composers may have broadened composition styles in
response to ©/market participation. [In chat, Derek Miller finds those studies
unconvincing; © control by composers was difficult/complex, and they built
other forms of patronage, often by subscription.] Disney is an outlier. Did
acquire Marvel, which started independently. Actors: Justin Hughes has a really
nice piece on actors’ ©able contributions, but they don’t often leverage them to
enhance autonomy. There are other factors to autonomy, including powerful
guilds that can serve that function.

Eric Goldman: consider the entire distribution chain and
what’s going on in terms of vertical/horizontal integration in each element.
YouTubers: distributor/author relationship is entirely different than old
model, and not clear © is the driver.

Jessica Silbey: Consider whether Tasini expansion of author
rights led to more or less dis-integration. Different ideas of how private
ordering works in © may affect the story.

Betsy Rosenblatt: consider, e.g., how over the top TV
services are affecting industry structure. Relationship to social justice? Has
a piece on Nipsy Hustle and ©–creative autonomy piece would fit well into
that, particularly for musicians in the age of the 360 deal.

Lisa Macklem: Consider foreign distribution as well, and
Lemley’s piece on how Disney is creating new scarcity for the first time in a
while.

Giovanni Maria Riccio, University of Salerno (with Federica
Pezza)

Conservation and Restoration of Street Art: Striking the
Line Between Protectable Common Goods and Inadmissible Musealization of Urban
Spaces

Art in public spaces: Not “public art” a la totalitarian
regimes, but works in public spaces that are freely accessible to the public
regardless of the form of expression. Site specific, connected to local
communities, with political or social meaning. Questions: who owns ©? Who owns
the work? (Options: owner of the support, e.g. the building; the commissioning
party; the municipality; the people who “live” the work?) What are options for
conservation, restoration, and preservation? Should consider public space art,
in some circumstances, as a common good, with ownership interests at least in
part in people who live in the area. Focus on the work and its meaning more
than on the subjects and their rights.

Pezza: Civil law legal systems don’t require fixation; UK CDPA
requires works to be “recorded”; US requires fixation. Edge cases: makeup, assemblages
(Oasis cover photo shoot case), carved ice. UK has a closed list of subject
matter; you can’t protect something that isn’t on the list. The assemblage of
objects in Oasis—difficult to ID what the subject matter was.

Unclean hands? European theory: Commission of unlawful act
[like placing art w/o permission] may not result in loss of patrimonial
benefits deriving from exploitation of the work. Failure to grant © would
sanction the author 2x, in addition to the typical penalty for the crime
committed. US may apply unclean hands: Villa v. Pearson Education (N.D. Ill.
2003). But practical differences may be narrow.

Riccio: Consider Convention Concerning Protection of World
Cultural Heritage, UNESCO. Intangible cultural heritage includes artefacts and
cultural spaces associated therewith that communities, groups, and in some
cases individuals recognize as part of their cultural heritage—should not be
excluded from access. Is VARA the only possible solution? Time consuming for
owner, transaction costs are moved on owner though they didn’t commission the work;
often not easy to find author; all choices in authors’ hands. Proposal: before
proceeding with destruction or alteration of work, owner should communicate to
public authority which should have a period of time to decide whether the work
should be protected or not. Silence should be consent. Decisions should be made
by experts, art curators, artists, local residents. Public calls for street art
made by public entities should include information about
conservation/restoration.

Zvi Rosen: reminded him of riparian rights—not at all what you
propose, but might be interesting comparison.

Justin Koo, University of the West Indies, St Augustine

Protecting Works of Mas – Contemplating the Protection of
Carnival Costumes

Are Carnival costumes w/in scope of ©? “King” costumes are
the most elaborate and fanciful. More typical, esp. for women: a swimsuit with
decorations attached; can get more elaborate with feathers and design elements.
Crosses the originality threshold in many cases. But is it the right type of
subject matter for ©? © attaches without registration and endures for much
longer than design rights. Star Athletica: can it be conceived of as
something other than a costume?

Tyler Ochoa: Thinks that these were probably easily
registrable even pre-Star Athletica because of nonfunctionality. [But is
there separability?] But what is the problem we’re trying to solve here—what harm
will happen if we don’t protect these costumes with ©? Not sure he sees a huge
problem.

A: He’s interested in whether it meets the standard, and
also whether it would create a problem with future costumes/a licensing culture.

Rosenblatt: worth asking who © would benefit, which might
not be anyone in Trinidad—the risks you discuss seem greater than benefits. Enforcement
becomes a problem when it contradicts a history/culture. Would also be
interested in what the cultural norms are: are there anti-copying/divergence
expectations? Are most of the producers doing individual hand made works or are
there big commercial producers?

A: it’s all decentralized, independent designers and
creators. Every year there are disputes, but never any litigation.

Rosenblatt: shaming based? Yes.

A: also note that with the Stormtrooper Lucasfilm decision
in the UK, the US approach is not guaranteed.

Derek Miller, Harvard University Faculty of Arts and Science

On Typographical Copyright, with Examples from Modern Drama

Typography includes layout, spacing, font; format is physical
like book, ebook. Typographical variation: headings, italics, small caps, even
the numbering of a page. Experimental scripts have even more variation. Plays that
are expansive in typography often involve author specified layouts, that are
reproducible in other formats. A “spell” by Suzan-Lori Parks; is “elongated and
heightened (rest) … has a sort of architectural feel.” The spell involves headers
with character names and no dialogue, repeated, e.g. Lincoln/Booth/Lincoln/Booth/Lincoln/Booth
with each name on a different line—but if reproduced incorrectly they can give
the wrong impression. Plays often circulate in different editions—reading editions,
acting editions, etc. Very few publishers print in all these formats. By
defining layouts, publisher can affect reception of a play. Modern ereaders can
strip away typography/allow individual readers to configure for their
preferences. What should a typographically conscious playwright do? Can we
reinvent IP norms to support their artistic intentions. Should permit some
typographical fluidity as texts change meaning but also allow authors to specify.
HTML/CSS can be a model—adaptable but typographically conscious. CSS allows reintepretation
of values such as distance b/t elements while retaining the relationships among
different parts. © currently focuses on html only, text of the work. But we can
protect a work as CSS too if it’s describable in an abstract, reproducible form
like CSS.

Eric Goldman: personal passion, emojis, might play into
this. Does PDF solve this by allowing publisher to control display? It does
take things away from the reader. Goes to some of the underlying Qs about who
gets to decide how they consume the content. It’s ePub format that allows users
to customize, so maybe there are some works that shouldn’t ever be in ePub.

Rosenblatt: selection coordination and arrangement is already
©able—maybe no change is needed.

A: has no examples of assertion. But typography can be
entire content of expression—imagine a script that is just five versions of the
Gettysburg address with different emphases each time. [I wonder whether that’s
actually about the typography; I would consider the typography the fixation of
the decisions about which words to emphasize. But maybe my definition of
typography is too constrained!]

Annemarie Bridy, Google & Yale Information Society
Project

Testing the Server Test: Embedded Images and the Changing
Scope of Online Public Display

Troubling developments in case law. Server test was adopted
in 9th Circuit in 2007. The analytic challenge: what the user sees
and what’s going on under the hood are very different things. Internal v.
external perspective: how should the law see it? Server test is internal perspective.

The Leader’s Institute v. Jackson, Texas 2017: departing employee,
messy case; © counterclaim alleging that TLI “framed” Jackson’s company’s whole
website, making it appear that content at Jackson’s site originated with and
belonged to TLI. TLI sought sj in reliance on server test. Court disagreed: on
the facts, Google just provided links, and the user was “essentially navigating
to an infringing website”; court was troubled by the framing being
intentionally misleading, as opposed to being clear that the content didn’t
belong to Google. This is weird b/c the conduct under the hood was the same. On
the law, the court thought that causing someone else’s content to be visible “on”
a website could be public display even when the transmission originates from
somehwere else.

Higher profile: SDNY, Goldman v. Breitbart, involving an
embedded tweet containing a photo copied w/o permission from Snapchat.
Subsequent SDNY cases involve Instagram embeds: Sinlair v. Ziff Davis (now
settled), McGucken v. Newsweek, Boesen v. United Sports Pub’ns. Either followed
Goldman or didn’t reject it (e.g. Ds didn’t even rely on server test in
the first two and in Boesen they won on fair use). Instagram has now said that its
terms don’t provide sublicense for embedding.

Free Speech Sys. v. Menzel: InfoWars (run by FSS) ran a post
about Hungry Planet, featuring nine images from p Menzel’s book. Embedded from
a website that was hosting and diplaying them with Menzel’s authorization. FSS
filed a declaratory judgment action seeking a declaration of noninfringement—in
the 9th Circuit, but the court found both factual and legal problems
w/ FSS’s reliance on the server test. Even if the server test applied, wasn’t
clear InfoWars wasn’t actually hosting the images. Legally, there are cases
from other circuits refusing to apply the test outside the context of search,
and FSS cited no 9th Cir. authority applying it beyond search. Not
good! Similar issues in Europe, with neighboring right for publishers now
putting pressure on ability to link to content on 3d party websites.

Wu: so you want to do only secondary liability? How would
you deal with the Jackson situation?

A: that would be non actionable under ©. There might be
other theories, but not ©.

Wu: and these other scenarios? Normally putting a copy
online with permission doesn’t make it freely copiable.

A: But the Ds here aren’t copying! The Q is about in line
linking, not copying. EU says it’s “communication to the public,” and there are
Qs about what constitutes the intended public. So they ask whether it’s a
different or new public. We used to assume that something on the non paywalled
internet was for the public as a whole. But these cases have a different flavor.
Consumptive uses do feel different.

Sean Pager: Another potential distinction: the link embedded
in a way that the photo pops open immediately, no secondary click required. Not
like an email link that you have to click on to load a photo (though different
email providers do this differently).

A: but that’s the same thing as search.

Pager: but the user does the search and then clicks on the
thumbnail to load the inline image. In Goldman, the user doesn’t direct
anything; something just comes into their Twitter feed.

A: That’s the same as in Aereo. [The user chose who to
follow]

Peter Mezei in chat: In VG Bild-Kunst, the AG focused on “automated”
access, no click required, for embedded content and opined that such uses
needed authorization. Awaiting eagerly ECJ judgment.

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WIPIP SESSION 8.A. — IP Theory (partial)

Ester van Zimmeren, University of Antwerp

Exploring Trust Building Mechanisms for Specialized
Intellectual Property Courts

CJEU patent court hasn’t entered into force, but there are local
and regional bodies. Question: will users trust a new court? Trust in the court
and trust in the judges are both important. Trust implies uncertainty about
future behavior. Trust means accepting vulnerability based on positive
expectations of intentions or behavior of another. Relational and dynamic: A
trusts B to do Y. So we need to know who has to trust to think about building
trust. (Quote: will a business trust its crown jewels when it doesn’t know the
court/the judges?) A leap of faith; distrust is not necessarily bad. Boundary-spanners:
persons who interact on behalf of the organization with the outside world: the
judges? Reputation based on case-law national level—including education, expertise/experience
with patent cases, career path (career judges v. recognition judges,
generalized v. specialized judge, etc.), management of litigation process,
shared values.

Andrew Michaels: Everyone likes to complain about the Fed
Cir, but they are doing their best and he thinks that’s doing ok. Maybe should
invite more judges from other countries to sit in and give new ideas.

A: Japan model: rotate in and out of specialized courts.
District judges can also temporarily sit in on IP high court. Rotations are
usually pretty fast but they can stay longer in the IP courts (rotation is
throughout the system)—interesting balance. JPO also participates—interesting but
are there rule of law issues?

RT: Consider comparison with Facebook Oversight Board (creepily
called the Oversight Board)—because it’s not a governmental organization it has
an extreme relationship to building trust as an adjudicator. Current controversy
over judges talking to journalists.

Glynn Lunney: when Fed Cir was constituted they took the
judges from CCPA and immediately adopted the old precedent as a way of
transitioning.

Margaret Chon: who are the stakeholders? Some of the quotes
suggest that businesses are the ones who need to trust, but if the key were the
public interest, then the question of what the relevant trusting community was
would be different.

Lunney: Why is trust important? Trust or not, you had no
choice but to litigate in front of Fed Cir.

A: because in the EU you do have choices. If you choose
unitary patent, you have to go through the unitary court but you can also use
the traditional European patent systems—and then choose the unitary patent
court, if it ever comes, or choose the traditional parallel litigation
opportunities.

Lunney: will there be a race to the top/race to the bottom?
Compete for patent litigation?

A: that’s a big Q in the debates!

Michael Carroll, American University Washington College of
Law

The Right to Research in US Intellectual Property Law

Context: reframing exceptions and limitations, including subject
matter and scope limits, as user’s rights. Connected to AU’s work on user’s rights
in int’l and comparative law. Focus on basic and applied research in all fields
of inquiry, including humanities—research intended to promote progress of
science and useful arts, commercial and noncommercial.

Right to research is not a single reified legal right, not a
single rightsholder. Drawn from a variety of legal sources—int’l (not in this
paper’s scope), constitutional, statutory, private ordering/open licenses.
Normatively: variety of limiting doctrines loosely cohere into a whole greater
than its parts: user’s rights are enabling provisions and positive goods in IP.
Persuade courts to keep larger whole in view when interpreting and applying
these doctrines; reform doctrines that have been interpreted too narrowly like
experimental use in patent. There are other policy concerns about research such
as privacy, human subjects rules.

Not just a right of researchers, but libraries, archives,
and other intermediaries need to rely on it to collect materials and organize
them as research inputs and distribute them as research outputs. Likewise, open
access is part of the greater whole.

Copyright: incomplete list: ideas/facts/other §102(b) limits when
applicable; fair use (reverse engineering, text and data mining, other forms of
copying); §1201 (too-narrow security research exemption; possible First
Amendment limits).

Patent: incomplete list: subject matter limits (abstract
ideas, products of nature, natural phenomena); other eligibility limits
(enablement, written description as limits on patenting early stage research);
non obviousness and novelty; disclosure function; experimental use; revisit
need for fair use in patent.

Trade secret: incomplete list: subject matter limits—readily
ascertainable/collectively known; scrutinize whether NDAs in widely distributed
research-relevant info are sufficient to maintain secrecy.

Margaret Chon: research for self-fulfillment? Minaj v.
Chapman, which RT suggested in chat was “experimental use comes to ©,” might be
about creative self-fulfillment as well as ultimately commercial. [Lunney
responds, fairly enough, that this characterization might limit © fair use to
the overly limited patent definition.]

A: He definitely doesn’t want a commercial/noncommercial
divide categorically. He wants to tell a users’ rights counterstory focused on increasing
knowledge. [But doesn’t that require you to take a stand on what counts as
knowledge? Is only using big data to create a new historical interpretation
within scope? If you (or the library on your behalf—v important during Covid)
make copies of a set of individual works and you analyze them and create a new
historical interpretation, I assume that counts. So is it fiction/nonfiction
that’s the divide?]

Betsy Rosenblatt: Carys Craig has written about the pitfalls
of calling anything a user’s right—may want to engage with that. This project
seems useful in discussing §1201. Justification for infringement nexus; many
proposed exceptions are also for research. Does my big library of TV shows make
me a researcher?

A: It could—he sees Minaj as definitely within scope b/c it’s
not substitutional copying. That’s the flexibility of fair use: copying for the
purpose of research is fair use, but copying for the purpose of just watching
the stuff and enjoying it is not. Artists and critics, both getting ready to do
something new, are also engaged in research.

Eric Johnson, University of Oklahoma College of Law

An Intellectual Property Fix for Platformer Sales-jacking

Platforms like Amazon and Apple create a marketplace for independent
retailers, but also compete on their own platforms. They cherry pick the best
and copy them, crushing the independent sellers. What to call this? Information
appropriation (Lina Khan) doesn’t seem illuminating. Platform information
appropriation? Sales-jacking, like hijacking. [In comments, Brian Frye suggests
calling it “competition.”]

Antitrust has been suggested as a solution, but this isn’t
anti-competitive; it is anti-innovative. [Isn’t one of the recognized harms of
monopoly that it harms innovation?] It’s worth considering this as an IP
challenge. The harm is to soft innovation—market insights, product ideas, etc.—things
not patentable or ©able. Soft innovation used to be protected by friction, first
mover advantage. Frictionless commerce leads to appropriability, so incentives
decrease. This soft innovation is important for econ growth and worth worrying
about.

Retail data right: prevent market participant side of
platform from using data from market provider side: for some period of time?,
unless paying a royalty? Sounds like an antitrust enforcement issue, but could
be a general retail data right. [using data to do what? Can you recruit other
sellers for Etsy by showing that macrame is selling well?]

Contracting/bargains: we don’t want the platform firm to require
contracting out from all participants, but maybe collective
bargaining/performing rights organization model, PRO model is largely shaped by
antitrust [this sure sounds like reinventing antitrust]

Requirements separating market provider decisionmaking and
participant decisionmaking, which he acknowledges also sounds like antitrust.

RT: [bracketed comments above] I think this is INS v. AP for
Amazon: a quasi property right. Look at the challenges of providing a right
only against platforms by looking at the example of India, where Amazon had a
variety of relations with big sellers (and appears to have violated Indian
rules about vertical separation). The issue of barring only platforms from
doing this copying would reduce to an antitrust issue of ensuring vertical
separation.

A: Agree that antitrust is also about innovation.

Tyler Ochoa: Thinks this is an antitrust problem; why doesn’t
divesting vertically solve the problem? US v. Paramount Pictures: studios were
forced to divest theaters: supplier should not own channels of distribution.

Rosenblatt: Not convinced this is a problem. This is
competing: how does it differ from ordinary competitive behavior that we think is
good for consumers? The reason is the platform has info about sales and pricing
that’s harder for other third parties to find. Isn’t this only a regular trade
dress/design patent issue; otherwise product-jacking means “the market working
the way we want it to”?

A: not necessarily a problem, but risks. No way to
appropriate returns from doing the research for, e.g., going to India and
discovering just the right jam to import.

Lunney (chat): Can streaming music services make their own
content in your regime?

Chon: This is an inequality problem, not (just) an antitrust
problem: wealth accumulates in one direction. That’s not an IP problem as such,
but Jeff Bezos needs no more money. It’s the small business that needs more
structural support.

Lunney: Amazon reaching equilibrium—it is in their interest
to have small sellers to make these discoveries, so they have an incentive to
refrain from swooping in too quickly. Consider that? May not be persuasive.
[Especially given the different incentives within the firm; eating one’s seed
corn is unfortunately standard.]

Rosenblatt: Agree with Chon: we should acknowledge that we
think this is a broken market where small businesses are being crowded out and
frame it not as harm to innovation but harm to development of small businesses.

A: Antitrust today doesn’t care about inequality [though I
take the Khan et al position to be that it should] but it at least purports to
care about innovation. There are good reasons to believe that inequality hurts
overall innovation/growth.

Rosenblatt: It’s also just bad.

Chon: Amazon needs different incentives.

A: historically they bought Zappos and Diapers.com but now
they don’t have to do that b/c everyone starts selling from Amazon in the first
place and can just take over the products w/o having to buy them out.

Carroll: This isn’t problematic until you hit a certain
level of scale—antitrust historically comes in as a circuit breaker—this is the
issue w/ Etsy.

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WIPIP SESSION 7.A. — Trademarks

Jeanne Fromer & Barton Beebe, NYU School of Law

The Future of Trademark Depletion in a Global, Multilingual
Economy: Evidence and Lessons from the European Union

TMs transcend boundaries b/c brands transcend boundaries;
even small businesses are often looking beyond borders to other countries. EU
is good for study b/c it has a system made of 27 countries with 24 language,
15% of global economy, 450 million consumers. Can help us understand how rights
assertion is working in a global, multilingual system.

Spoiler: things are bad. EU TM runs in parallel w/national
system. All or nothing: you need to show entitlement throughout EU; if a term
is generic in one country, then no EU TM is allowed. EUIPO doesn’t engage in
relative grounds review: doesn’t look for confusing similarity; 3d party
oppositions are the only check. When assessing confusing similarity in an
opposition, one pronounced difference is doctrine of translational similarity
(known in US as doctrine of foreign equivalents): mark can be confusingly
similar if it translates; it’s common in the EU for people to speak 2 different
languages.

Registration can occur w/o use; no examination for use; 5
year grace period for use. TM clutter is widespread.

Registration rate is really high, not surprising given lack
of relative examination.

Selection: not more of a pool to choose from in a global market,
but less of one, because if a mark means something bad in one place it won’t
work for a global branding strategy. Irish Mist ran into this in Germany, where
“mist” means manure. Also, mark may be taken in a jurisdiction, which happened
to TJ Maxx in the UK, which then had to switch to TK Maxx/Milky Ways varying by
jurisdiction. And there’s a limited set of words that are very same/similar
across multiple languages b/c of cognates, loan words, onomotopoeia. English is
the dominant language in registrations; it’s the language of business.

Studied EU using a bunch of databases; found incredible
levels of depletion, worse than in the US despite fewer marks being registered
in EU. Most common words are claimed unless they mean something negative, and
when we translated registrations into the 5 major EU languages the level of
depletion got worse. Likewise, for close similarity, the congestion is worse
than in the US. Similar results for pronounceable syllables. Marks are getting
longer over time b/c more is taken.

German: it’s only 40% depleted in common terms, but when you
account for translational similarity it goes up to 80%. Most multilanguage
terms are taken (REPUBLICAN is the one that’s intelligible in all 5 languages
that’s not taken; strong meaning makes it unattractive).

Crowding has increased over time across classes. Oppositions
are going down over time. Very few companies do most of the oppositions.
Compared to 2(d) refusals, just really low. Oppositions that do proceed tend to
succeed b/c there is so much crowding. As opposers increase, chance of success
increases, until inflection point where crowding is so great that confusion
w/any given mark becomes unlikely.

What to do? (1) More enforcement of use requirements to get marks
off the register, whether up front or examination after a grace period. (2) Ex
officio review. EU does a bad job of putting existing registrants on notice;
there are a lot of unrecorded settlements so you can’t tell what’s really going
on. (3) Translational similarity should be revisited. We can train consumers;
consumers would eventually learn to distinguish translations. (4) Fee
structure: should charge more for more valuable words.

Lisa Ramsey: Do EU lawyers care about clutter? In INTA they
don’t seem to.

Barton Beebe: There’s no interest at all in increasing use
requirements/shrinking use to 3 years by major EU lawyers b/c they tend to
represent the big brands. But maybe they don’t realize how bad things have gotten
for SMEs especially.

Fromer: more recognition academically; EU classes are
broader/cover more things than US registrations.

RT: But can you really train consumers?

Fromer: not convinced that the consumers are translating now—need
evidence on that in order to defend the doctrine.

Beebe: consumers could probably be taught about clearly
different languages. Translational similarity may be a special case where
consumers react differently [v. my example of the UNC and University of Wisconsin
cases in the US where the PTO said that consumers had stubbornly continued to
perceive the marks as indicating a single source despite over 100 years, in the
former case, of uncontrolled use].

Irine Calboli: Single market: freedom of goods means that there’s
no way to stop confusingly labeled goods at the border if you’re giving a
European market. So the consideration goes beyond TM law/translational
similarity.

Barton: Spain gave a national registration to Matratzen for
mattresses, even though it’s generic in Germany.

Alex Roberts: Say more about charging more for more valuable
marks. How do we do that/does that discriminate against smaller entities?

Fromer: any changes can’t be prospective only or new
entrants will be harmed. We have to recognize we’re not starting from scratch.
One possibility: whether at initial stage or at renewal, charge more based on
some metrics of value such as being multilingual.

Irene Calboli: Interaction with failure to function?

Beebe: The future of the TM system is crowding. The
registering agency/system overall in EU has given up on the problem of crowding.
So what? They’ve heard the argument: Maybe it’s good to have barriers to entry b/c
TMs are just artificial product differentiation. This argument failed in the
US/law and econ and might fail in the EU too.

Jake Linford, Florida State University College of Law

An Information Theory of Bad Faith Trademark Use

Intent is crucial to many P wins, but many scholars criticize
this as irrelevant to consumers who can’t see the bad faith adoption. Sheff
says: maybe both infringement and dilution are proxies for when we think
sellers are manipulating consumers’ bounded rationality. Intent may be
irrelevant still, he suggests, but Linford says that may not be right. Intent
could help us rightsize info to make sure sellers aren’t overly opportunistic. We
should care about bad faith. Second entrant should have to account for why it
ended up with a mark that is highly similar to an existing mark. Information
theory: noise or interference that makes it harder for info to be received as
intended.

What counts as bad faith? In some circuits, failure to do a
search; becoming closer to P’s packaging over time; intentionally dragging out
litigation. Although good faith doesn’t preclude a confusion finding, it should
probably work for the D like evidence of bad faith works for P to negate the
ratcheting effect. More leeway for good faith behaviors may make the market
more efficient for consumers. Conducting a search/seeking advice of counsel
should be counted in favor.

Mark Lemley: to do this we need a very clear definition that
is significantly narrower than existing definitions. Right now intentional reference
to the TM is often considered bad faith. Also: should ask same Qs of P’s good
faith: was there evidence of confusion or were you suing from fear of competition?

Betsy Rosenblatt: Model jury instructions are terrible, as
are standard proposals. Bad faith is bad, but even lack of bad faith might also
be bad; says nothing about good faith! Why do we want balance? The argument is:
people who are trying to confuse might be better at it, but she doesn’t think
there’s any evidence that’s true.

Carys Craig: Intent may be discounted in the legal
articulation, but bad faith may be driving more of the results than we think,
neglecting actual confusion considerations. Good faith parties may end up
winning anyway for doctrinal reasons.

Roberts: doctrinal narrative that producer is really
powerful. Thus if trying to fool, likely to be successful. Thus even if we’re
punishing bad faith it coincides with this narrative of producers being likely
to succeed at what they do.

A: Henry Smith’s idea of equity as an overarching attempt to
police against opportunism.

RT: was going to talk about Smith’s idea of equity but I think
it might be why your idea struggles against the multifactor test. In Smith’s
idea, bad faith/fraudlike behavior is a precondition to entering into the
equitable realm, not part of a multifactor test. If we had double identity +
unfair competition, and opportunism of some sort was a precondition for
entering the unfair competition realm, then that could work, but Smith thinks
that multifactor tests like the one in TM are evidence of an unproductive
collapse of law and equity that just creates a big muddle.  

Beebe: bad faith seems to overwhelm a multifactor test
cognitively; it’s a bludgeon. Circularity is an issue too, but its presence seems
to blow out any other factors.

Calboli: Bad faith internationally/in the history?

Lisa Ramsey: if the underlying subject matter is itself attractive
(inherently valuable speech), then the TM owner/claimant is the one who’s free
riding.

Brad Biddle, Arizona State University College of Law (with
Jorge Contreras & Vigdis Bronder)

Certification (and) Marks – Understanding Usage and
Practices Among Standards Organizations

Some mismatch in definition of “certification” marks—some organizations
deliberately avoid that term. TM registration much more common than certification
mark registration in this space. Many SSOs don’t apply for TMs at all. Conventional
wisdom doesn’t match real world practice. For reformers: focusing on
certification mark rules won’t matter if most certification happens in TMs.
Lawyer-driven? Feeling of greater freedom under TM rules?

Jessica Kiser, Gonzaga University School of Law

The Reasonably Prudent Consumer of Alcohol

Sees a trend of more refusals in alcohol/wine/beer. Some
dumb ones; even as PTO recites rule that there’s no per se overlap between beer
and wine. A couple of theories: is PTO more likely to find confusion between
beer and wine than between two similar wine marks b/c it thinks wine consumers
are more sophisticated? One possibility: this is a problem here b/c it is a
really crowded space—a beer company might release ten new names a year, even if
they aren’t in use two years later. Alcohol has been found related to cigars
because people consume them together; Harlequin romance has a wine line so now
publishing may be related? Does wine, in fact, go with everything?

Alexandra Roberts, University of New Hampshire Franklin
Pierce School of Law

Mark Talk: Making Secondary Meaning

McCarthy: Trier of fact, like lexicographer of modern slang,
must attempt to find out the meaning to the consuming public. Yet almost all
the evidence they consider is indirect, proxies for understanding.  The assumption is that if the producer puts in
the work, it will happen. These principles have been around since even before
the Lanham Act—length of use, advertising spend. Yet a lot has changed in those
75 years—internet destabilized active producer/passive consumer binary. Can
look in spaces like Reddit to see how consumers are actually using a term: “boy
brow” turns out to refer almost always to Glossier makeup product, while “no-poo”
refers to general practices of not using shampoo/products that people do use
instead and not to the registered mark for a particular non-foaming cleanser. Celine
used mark talk on the internet to show secondary meaning for its robot face
bag.

Is this a one way ratchet? 6th Circuit, in case
about DJ Logic, said that FB fans, likes, followers, celebrity followers could
have substituted for sales evidence (but it wasn’t). Astroturfing is a risk.
Thinking about how to formalize this.

Eric Goldman: relatedly, weaponization is a risk: get people
to talk about a competitor’s mark as generic. Google results may be harder to
game than the direct evidence.

Lisa Ramsey: Might also shed light on failure to function!

Linford: project to identify fame: large corpora and data
analysis? That’s what you’re trying to do too. WIPO often considers internet
results to be sufficient evidence in domain name disputes; maybe that could be
a model.

Lemley: this will be more complicated for genericness b/c a
number of uses are likely to be ambiguous. Knows of existing ML project: build
a context engine to parse the use of terms that are possibly being used as a
mark v. generically.

Calboli: maybe many of these shouldn’t be registered anyway—generating
new rights that might not be worth protecting. Especially with trade dress.

A: maybe should focus more on word marks. [Hmm, I think it
might actually be more useful for trade dress, but that might depend on your
priors about how likely it is that people really recognize various supposed
trade dresses.] But wants to make space for niche uses: can be a well-known
mark among consumers of particular product.

RT: preservation through transformation: if we do this
because it gives us more direct evidence than we could easily acquire before,
secondary meaning will become a different thing than it is now. That is neither
good nor bad in itself. Will also accelerate quantification (isn’t it kind of
wild that 75 years after the Lanham Act we have no idea whether secondary
meaning has to be the dominant or most common meaning because we so rarely have
direct evidence?). Compare to what happened with rise of control arms in
surveys and effect on what percentage is sufficient to infringe—unrecognized by
courts, they increased the standard by looking at confusion net of control;
also what happened in 1-800 v. Lens.com where clickthrough rates substituted
for a survey.

A: Ideally it gets closer to what we have said it is all
along, tied to the goals of TM law.

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WIPIP SESSION 6.A. Competition and Antitrust

BJ Ard, University of Wisconsin Law School

Competition With and Without IP in the Video Game Industry

Negative space; a number of lessons. Character protection is
meaningful: Pac-Man/combination of elements. Patents can cover some
elements/game rules, but most gameplay won’t satisfy novelty. Trademark, right
of publicity. Trade secret is also one way of going after clones when the
clones are produced by former employees. There aren’t so many other ways to
prevent copying; there is only limited protection for games/rules under ©. Thus,
a game called Threes was overshone by 2048 which had the same mechanics but a
little easier, cleaner interface, marketed better: no litigation b/c Three’s
developers could see there was no case. Similarities in golf games came from
life, not copying one. Menus, point bars, selection screens are scenes a faire,
as is “save the princess” trope.

Hard to copy when a game costs millions to make: graphics,
marketing, network effects are hard to copy; feedback loop where the next Call
of Duty will sell well.

Independent developers like Three are vulnerable; Zynga
became notorious for this kind of copying.

Strategies: (1) Themes that aren’t widely
popular—depression, winning by not fighting; horror is a niche. (2) Alternative
funding mechanisms like Kickstarter or tip strategies.

Zvi Rosen: DRM seems to keep this from being a negative
space. Steam, other platforms use DRM extensively including to sell hardware.

Victoria Schwartz: Some video game copying issues do get
resolved before litigation—so there is enforcement that doesn’t show up in
public.

Giuseppe Colangelo, University of
Basilicata & Stanford Law School

Enforcing Copyright
through Antitrust? The Strange Case of News Publishers Against Digital
Platforms

Digital platforms
seem to expand the market at least as much as they substitute for news. But
concern is that Google/Facebook’s bargaining power means they take too much
advertising/lack transparency in advertising.

European way:
Twisting © through article 15 of the SDM: additional layer of © to encourage
cooperation b/t press publishers & online services. From an economic
perspective, critics say there’s no empirical evidence in support of free
riding narrative and no proof of a causal relationship b/t introduction of
neighboring right and increase in revenues for press (German and Spanish
experience). Legal perspective: critics say overbroad (any digital use of
insubstantial parts that don’t meet the originality requirement) and
contentious definitions (“press publication” and “very short extracts”). French
competition authority and Google are fighting about title/headlines: do those
count as extracts?

French antitrust
case: French law required remuneration for reproduction and communication to
public of press publications in digital format. Google said it wouldn’t display
extracts unless publishers set a zero price. French Competition authority said
Google had to negotiate because it has a dominant position in general search.
But both the domestic law and EU Directive create a right to prohibit use of
protected content, but do not establish a right to obtain remunderation or to
require the conclusion of license agreements for use of the protected content.
Even antitrust law cannot transform a wish into a duty. Paris Court of Appel
nonetheless affirmed the order to negotiate in good faith with press publishers,
and Jan. 2021 announced agreement w/French publishers.

Outside the © box:
US: hot news doctrine, fair use, antitrust suit against Google for digital
advertising. UK: ex ante code of conduct + investigation into G proposals to
disable third party cookies. Australia: mandatory bargaining code with binding
final offer arbitration process as backstop. In Europe, hyperlinks aren’t
covered, but in Australia, even hyperlinks are covered. Canada: rumors of rules
to force digital platforms to pay news outlets.

Conclusions: ongoing
debate about role of competition policy. EU © approach has limited
effectiveness; French approach forces negotiation in shadow of competition law.
Regulation as a more coherent way, but potential unintended consequences. Other
ways to support journalism might be better, not through IP/competition policy.

RT: Contradiction
with monitoring/anti-abuse initiatives: what happens if FB concludes that a
publication is an arm of the Russian government? What happens if this turns
into ad fraud? Interested that you mentioned the digital advertising antitrust
suit b/c that claims that ad prices are too high—press might make less money if
it succeeds. Factual questions: If G were broken up, would there be any
argument for the publishers under French competition law?  Does Bing or DuckDuckGo have any of these
agreements? Or are the French publishers now interested in maintaining G’s
monopoly because that’s the only reason agreement is required?

A: Lemley’s recent paper on conflicting goals of regulation
says same things. The regulators are pursuing conflicting goals! Google in
France will accept the deal forced by the French competition authority; this
will create trouble for Facebook. Probably FB’s reaction in Australia is a way
to anticipate reaction in Europe, b/c there’s discussion there about a
mandatory code of conduct in the digital sector, which would be another proof
that the ancillary right itself has no effect. Some Europeans are trying to add
the Australian “solution.”

Nikolas Guggenberger, Yale Information Society Project, Yale
University

Essential Platforms

For transportation, we have regulated modes that are the
only way to reach customers (bridges, railroads). The app store is the new
version of that. Certain digital platforms have become gatekeepers for
commerce, and this strangles innovation. They extract monopoly rents and
destroy competitors. They can behave in that manner b/c network effects shield
them from effective competition.

Learn from the past: essential facilities doctrine, establishing
access rights for competitors.

First, we should revive this doctrine as applied to
platforms, granting downstream competitors access where the market doesn’t have
reasonable alternatives; bar discrimination and self-preferencing; guaranteeing
horizontal interoperability. Second, expand the doctrine and upend the platform
monopolies entirely by ensuring horizontal interoperability—competing platforms
can reach customers on Amazon, competing app stores can reach customers on
Apple or Google Play, competing social media can reach customers on FB. Like
the telephone network works today, where AT&T customers can reach T-Mobile
customers. Analogy to optimal design of IP rights: we create monopolies to
incentivize innovation, but those exclusive rights are limited in time and
scope. This allows follow-on innovation which is existential for economic
progress.

RT: still have questions for abuse; isn’t this
pro-counterfeiting, especially when many market participants are overseas and
not otherwise subject to regulation—we want the sites to screen those out. You
want bridges with guards.

A: Wouldn’t require platforms to sell whatever they’re
offered. Business justifications for denying dealing would still exist. Safety
concerns or other legal violations would be relevant. But you can’t
discriminate to safeguard monopoly profits/position.

RT: But does essential facilities doctrine really teach us
anything about how to resolve conflicts about who should get to sell?

A: would not be that interested in federal rules of platform
procedure, but the decision Amazon makes should be reviewed judicially. Whether
it allowed due process wouldn’t necessarily help. [One of things Amazon gets
criticized for is giving its partners more deference in defining/policing
unauthorized uses, so I don’t think we can completely separate “anticompetitive
behavior” from “kicking people off for bad content”—indeed that’s the issue
with the recent 9th Circuit case saying 230 doesn’t apply to
allegations of anticompetitive conduct. And the massive House report complains
that Amazon fails to police against counterfeits, and immediately thereafter complains
that Amazon kicks too many small sellers off for selling unauthorized
products.  It’s possible that both are
true, but solving both problems is harder than solving one of them.  It may well be that the sorting costs are
worth it, but I think more needs to be said about how that would work.]

BJ Ard: How do you make it more concrete? Delisting apps due
to conflict between Apple and Epic is easy. But FB interoperability sounds
hard. [Do you really want it interoperating with Parler?]

A: various possibilities do exist for transferable
information, e.g. services building on existence of bank account without
coordination w/bank.

One of the challenges is that a small company might not be
able to do anything with the raw data—this is why they need access to Amazon’s
tools.

[In chat I asked about whether we want FB to interoperate
w/Parler; his answer was yes, but FB can apply its own content moderation
standards exactly as they apply to content originating with FB.]

Liza Vertinsky, Emory University School of Law

Artificial Intelligence, Patents and Competition

Thesis: ML along with control over large data sets will end
up increasing concentration of and control over innovation processes in ways
our current regulatory system is not equipped to deal with. (Sorry, not good
with patents.) To those who have, more will be granted—the predictions will get
better with more data, increasing the advantage of business.

Joy Xiang, Peking University, School of Transnational Law

IP Licensing, Antitrust Law, and Access to Essential Technologies

What are essential technologies? Pharma tech (Doha
Declaration), cleantech, digital platform technologies. Global South is a net
importer of such tech and this allegedly contributes to exploitation. Available
mechanisms in antitrust and IP: abuse of dominant position (refusal to license,
essential facilities doctrine, excessive/abusive pricing); IP misuse doctrine;
int’l or regional exhaustion/parallel imports.

Refusal to license: US makes actionable under exceptional
circumstances; usually no obligation to license from IP owner. EU is similar.
China says there’s no obligation to license, with valid justifications.
Essential facilities: US hasn’t recognized IP as essential facilities, but EU
and China are open to using the doctrine and to considering IP as essential
facility. South can learn from EU/China on abuse of dominant position.

Christine Haight Farley: this requires a very well
functioning administrative state to provide access.

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WIPIP: PLENARY SESSION 3 — Why American WIP’ers Should Care About International Law

Jerome H. Reichman, Duke Law School, Duke University

Until 1994, there weren’t many options when a nation didn’t
comply with IP treaties: complaints and retaliation against that country’s nationals.
Then came TRIPS. Arbitration, including damages, became available; winner can
also collect damages via tariffs. Hasn’t functioned recently because minimum #
of judges lacking due to Trump but Biden should fix that. New change:
compulsory patent license for export to meet the needs of a country that needs
the product (vaccine) but can’t make it. Threat of compulsory license for
export can often be enough. Regional pooling as a possibility using TRIPS
flexibility.

Jane Ginsburg, Columbia Law School, Columbia University

One can’t separate out questions of local import from
questions with international dimensions: was true before internet, even more
true now.

There’s a caricature of US v. French approaches to ©. But
going back to the sources, it’s much more complicated in motivations for ©–a
lot of utilitarian motivation in France and a lot of natural rights/ “you
create it, it’s yours” sentiment in America. That played out in case law as
well.

Common wisdom was that printing privileges were about
publishers and incentives, not creativity. But Roman (Vatican) privileges were
more granted to authors than printers, and motivations expressed in requesting
and granting them were a mixture of incentive arguments, effort
arguments/anti-free riding arguments, and sentiments like “creativity should be
rewarded.”

US termination system and EU contract regulations both try
to deal with authors’ vulnerability/failure to anticipate future forms of
exploiting work.

Rochelle Dreyfuss, New York University School of Law

Current regime started developing when nations were
convinced that interconnection would lead to wealth and peace, but Global South
has not become more wealthy; strong IP has contributed to inequality; we do not
have peace; Brexit and US rejection of TPP/implosion of WTO dispute resolution,
which actually began under Obama. Why move into a field that’s unraveling?
Pandemic has highlighted unique opportunities in this field. Current regime encourages
countries to engage in parallel play—rights in one’s own country—but it’s a
very territorial system. Covid shows territoriality makes little sense. Need
cooperative play/research/development; also should not ratchet up protection
but should focus on access and equity. IT/interoperability; cybersecurity;
other issues also require international treatment.

Scholarship wise, international comparisons provide
important insights, and can be very useful in teaching students as well. Also:
IP owners tend to take one win and try to export it, so you see what is going
to come next.

Jorge Contreras, S. J. Quinney College of Law, University of
Utah

Students often treat the results of court cases as the only
possible way the doctrine could have developed, and outside-US cases show that’s
not true. Lots of patent examples, from working requirements to different competition
law interface. Knowing the alternatives helps you argue more broadly both for
policy and for individual case outcomes.

Scholarship wise, you can become “the” expert even on a
small area—your views are important outside the US because you are often the only
US lawyer who comes to Shanghai, Bogota, etc., which magnifies your views and
enables you to disseminate your ideas. Outside US conferences: submissions can
be harder because their requirements are often more rigorous for methodology,
quality of abstract, etc. but it is worth it. Teaching LLMs is also a way to
reach out to foreign lawyers. LLMs can be high ranking officials in their own
countries; they have careers. International IP blogs like IPKat and SpicyIP are
read around the world: read it, write for it. There’s an appetite abroad for
those interested in sharing their knowledge; surprising how few US academics do
it.

Moderator: Irene Calboli, Texas A&M University School of
Law

Love and hate for US requires navigating some sensitive
issues. Open access is one way of reaching people we would otherwise never
reach.

Reichman: important to address problems w/US approaches.

Discussion of use of foreign precedents, much more common in
other countries than in US. Contreras suggests it’s legislators and agencies
that are the real laggards.

Ginsburg: Especially good for US students to learn that (1)
we aren’t completely on our own; we do have rules (even if US often doesn’t
care to follow them) and (2) there are often other ways of doing things.

Contreras: our students need to know that their practices
will have international issues; among other things, with eBay the US is a huge
outlier in patent remedies, which is why all these cases are going to be
brought in Germany!

Ginsburg: clients who have websites have to think about
non-US law.

Reichman: Harmonization got a bad name because it was ever upwards;
we have to think about compromise to protect the public interest.

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WIPIP SESSION 5.A. — Copyrights

Ned Snow, University of South Carolina School of Law

The Tension Between Science and Creativity in the Copyright
Clause

Fabrications: clearly creative, but contrary to the meaning
of “science.” Deceitful expression might provide knowledge about deception. CSAM/revenge
porn: no benefit to the public (evidence of crime is not purpose of creation). If
private originality suggests granting protection but public knowledge doesn’t,
which should prevail?

Jake Linford: Defining falsity is the challenge: is LoTR
false?

Sean Flynn: relevance of “arts”?

Snow: that’s for patents; though colonial statutes clearly
cover the liberal arts, the use of “useful” distinguishes the Constitution from
other formulations. Tam & Brunetti create issues for “discrimination” among
types of content, but if Congress wanted to come in and distinguish expression
that necessitated a violent crime that could work.

Stefania Fusco, University of Notre Dame Law School

The Enduring Value of the International Copyright
Harmonization: A Response to Professor Asay

Asay sees Europe as redistributing/attacking mostly US tech
cos. CDSM is super-Berne, driving regulatory lock-in. Argument: given the
pushback CDSM has received in Europe, this might be an opportunity to harmonize
down. Compare to Trump rollback of environmental rules.

Are overall US interests harmed? It’s rent distribution to ©
owners, including US © owners. However, the new link tax could be subject to
national treatment and Art. 17 is. Of course US companies could move to the EU
to take advantage. Royalties may offset US losses, hedging US against risk of
competition in EU market. [Not sure who the competition is going to be from—some
previously unknown source of tech innovation?] The US has benefited a lot from
harmonization of IP; reversing the process would cause the US to lose
credibility internationally [that ship may have sailed]. Not clear ISPs need
help from © to stay innovative. But serious concerns over freedom of speech
from Art. 17: those are the best argument for the need to harmonize down.

Glynn Lunney: should be honest about net loss to US b/c of
ISP dominance. Also note we’ve had more patent harmonization, to compare.

Sean Flynn, American University Washington College of Law

The Right to Research in Copyright: A Global Comparison of
Statutory Limitations and Exceptions

How open are © exceptions around uses of whole works for facilitating
research? We distinguish limitations and exceptions: defining use as not w/in
scope v. exceptions to scope; focus is latter. Most expansive: open exceptions,
as well as specific research exceptions that have the reproduction and
dissemination right in them, like Germany; next tier: countries that only offer
reproduction exceptions, not sharing, but for broad research purposes. Other:
authorize institution and not person or right version; limit types of works
(Hungary only allows books to be copied in full by hand or w/typewriter). Red:
no exceptions for whole works at all; just a quotation right, and text/data mining
is essentially prohibited. Created a map of the world, which doesn’t break down
on common law/civil law lines. Essentially everyone has a research exemption,
suggesting it’s part of the basic fabric of ©. Oceania: most open region
(though N Am, dominated by Canada/US, also); Europe: most diverse; Latin
America: most restrictive.

Akshat Agrawal: Paywalls affect how these exceptions work in
practice.

A: The research was looking only at the statutes, and not
even at interpretation—just took the words literally, so it’s possible that
interpretations are less liberal (when a statute authorized use they presumed
that meant all uses). See some noncommercial use restrictions—Asian countries
have been moving in that direction, maybe based in autonomy justifications.
There are patterns but nothing complete.

Lunney: are these recent v. historical?

A: Many of the most open countries have laws that are old.
Not all! The new laws are all over the map in breadth. France has a new and
tiny exception; Germany has a new and bigger one; the US has fair use. Many
Asian exceptions are newer—Thailand recently said that anything that complies
with the three-step test is lawful. Singapore is changing every five or six
years. It’s hard to have one story about time, whether that’s newer is better
or that colonial powers determined path evolution. Speculation: more amendments
in the last 30 years = more open, but hasn’t checked that against data. Another
project: the more open regimes are, the more published research a country produces,
even controlling for other variables.

Peter Mezei: Note that Hungary just announced new
amendments, including for libraries to reproduce/disseminate w/in closed
environments like universities.

Akshat Agrawal, judicial law clerk, Delhi High Court

Access to Culture Dialogues: Remodelling Copyright for
“Substantive” Equality in Cultural Discourse

Dominant narratives/coercion to participate in them.
Individuals should be able to use culture to foster self-determination, which
requires exposure to diversity/variety. Media conglomoration leads to
undemocratic bubbles. In India, this means skew towards urban, upper-class, upper-caste
depictions: Bollywood focuses on the elite, foreign locations, English
language. A Dalit character whose name in English means “garbage.” 65% of
directors in Bollywood are upper caste. Indian Performing Rights Society has a
database: 73% of the society are upper class, upper caste.

© incentivizes difference, but not necessarily diversity. It
incentivizes distribution, favoring aesthetic judgments of those who have the
distributive edge. Recommendation: disintermediation so that dissemination isn’t
dominated by urban profit-seekers. More chances for people whose motivations
for creation are not economic.

Victoria Schwartz: How to disintermediate? Not obvious to
her that © is driving these things.

A: Ban transfers of ©. Termination of transfer in the US is
unusual and doesn’t work well; should just ban transfers. This would prevent
vertical integration, decrease incentive to lobby for restrictive rules.

Lunney: how would that work for films/computer software?

A: would make that harder, but that’s ok; only big budget
films really need that.

Zvi Rosen, Southern Illinois University School of Law

Examining Copyright

There’s been substantive examination through US history,
though the meaning has varied. 20th ©, it was more about copyrightability;
19th c./pre 1909 was mostly about subject matter. C Office started
making rules before rulemaking. PGS works were rejected at a much higher rate
than other works.

The first examination? Conn., 1784, incomplete entry for
pamphlet/sermon: he believes it was a refusal.

1989-1904: lots of rejections for blank books, blank forms.
Stopped recording rejections in 1905, presumably distracted with drafting new
law. 1930s: courts reject Office authority to reject applications except on
statutory grounds. 1946: reorganized, began producing more internal reports
including of examinations. 10-12% required additional correspondence, 2%
rejected. But visual arts were the problem—rejected 10% of the time, everything
else 2% or less. Technical drawings were rejected at very high, patent like rates.
In 1960, ©Office found that notice problems accounted for 34% (mostly text); no
©able matter, 27%; manuscript/outline, 17%; blank forms, 5%. Average 557
rejections/month. Bi data 1978-1985. Number requiring correspondence hasn’t
gone down, which helps account for backlog. Percentage that registers varies:
between 90-98% with an outlier when they shifted to electronic application.

2000-2015: Most rejections are VA (visual art); there are noticeable
numbers of text (including computer programs) rejections but the numbers of text
applications are so large it’s not as significant.

Originality, common shapes, logos are big reasons for
rejections. We should consider reserving examination for PGS works, where it
would be required; other works would require only an affidavit that the
category was unproblematic.

Eric Goldman: are you seeing changes in registrants? are we
seeing gaming/trolling on the side of registrants?

A: do see substantial rise in per capita registrations of
graphical works.

Q: since many of these were category based were they fast?

A: yes, about two weeks.

RT: When asking if registration is necessary you can’t just
look at rejection rates. Liebowitz problem: the defendants can’t tell what is actually
at issue if he’s obscuring the matter sued over, and registration provides at
least some assistance.

A: Is Liebowitz a problem of registration system or
litigation system? He’s a symptom of a problem that it’s hard for a small owner
to get relief.

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IP writing competition for law students

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WIPIP, SESSION 2.B. — Copyrights

Cathay Smith, University of Montana Blewett School of Law

Weaponizing Copyright

Pure suppression: Dr. Drew’s minimization of Covid;
YouTubers compiled these clips and he sent takedown notices. Lawyer asserted ©
over text messages to ex partner when they were published on a blog by the ex
partner to substantiate that she experienced abuse. Netflix v. negative tweets
of those who shared the trailer of its controversial film Cuties (but only
negative tweets). Religious © assertion to control doctrine. Suppressing
criticism, but not necessarily suppressing content. Finally, punitive
assertions: Hustler v. Moral Majority; Campos Santos v. Pewdiepie where a game
studio asserted © against Pewdiepie b/c of his racist comments in livestreams
of another game. Sony v Cohen: Sony says an artist who’s trying to terminate
transfers can’t use album artwork in advertising his work. And another
potential candidate: moral rights/no econ interest: Pepe the Frog v. Alt-Right,
Greenblatt v. McCloskey (the St. Louis gun couple who used photo of them);
musicians v. Trump, Success Kid’s mom v. Steve King; Anish Kapoor v. NRA (for
using Chicago’s Bean). To preserve privacy? Much scholarship on this—Hill v.
Public Advocate (engagement photos used in anti-gay political ad); revenge
porn; Monge v. Maya/secret wedding photos.

Copyright is asserted for personal interests, not market
exclusivity/economic interests in the work. “Weaponizing” can be good or bad—a
weapon can be in the hand of an aggressor or in the hands of
powerless/traditionally defenseless. But there are also abusive uses of © that
seem weaponized for economic purposes: anticompetive uses, abusive overclaims.
Those are excluded from her definition because they’re ultimately financially
driven and have money/market objectives.

Why ©? It’s better than other causes of action which are
limited by 1A and §230.

Blurry lines/overlapping objectives—erase information/bury
facts, suppress speech/criticism, punish/retaliate, protect
dignity/reputation/against tarnishment, preserve privacy—but the lines are
blurred and overlapping. Greenblatt says it’s not about the money when he
asserts rights against the gun toting couple, but is this about dignity, or
retaliation when they’re smugly handing out greeting cards with them pointing
guns, or punishing speech, or money, or all of these things? Hard to find a
line within © that will allow her to distinguish revenge porn victims from
Harvey Weinstein for purposes of identifying abusive claims.

Lemley: maybe this is more about how © has infiltrated our
lives so that we all exist in a field of uses and infringements—society couldn’t
exist if we stopped all that but it means there’s an ability to invoke the rule
“you’re all violating the law all the time” in order to achieve non © goals.
One way to deal with that is at the back end—weeding out bad uses—but maybe
this is more about the overall problem that too many things are ©able and too
many things are infringing.

Guy Rub: reminds him of Wendy Gordon’s anti dissemination
motives from the 1980s—sounds like manybe all of these would be washed away by
fair use.

Andrew Gilden: Note that trespass law is weaponized all the
time—who has the ability to get the cops to come harass their neighbors? What’s
the comparative power dynamic in ©? Is it more egalitarian?

Yvette Liebesman: the McCloskeys are suing Redbubble, the
photographer, and others for trespass, violation of publicity rights—for the
same images that they used to become famous. They are trying to get awarded the
©.

Jake Linford: is there a way to structure this to allow
punching up but not punching down? Compare attractiveness of Simon Tam’s claim
v. that of the Washington football team. May be difficult to do.

Annemarie Bridy: Google sees a ton of DMCA abuse.
Intermediaries can sometimes step in where legislatures are paralyzed, though
laws against nonconsensual porn are now coming in. Now when we get a DMCA
complaint, we don’t take them down for © reasons but for violation of the
policy against nonconsensual images. A way to keep © more in its lane.

Xiyin Tang, UCLA School of Law

The Privatization of Copyright’s Public Law

Subtle but profound shift: shifting public-facing principles
to require/defer to private agreements. The old strategy: extending © by
statute: in the 90s, term extension, foreign works, anticircumvention, adding subject
matter. The new: contract around the statutory limits. Or get the statute to change—the
revision of music license ratesetting by wiping out public interest/access
considerations to be replaced by “willing buyer/willing seller.” Contracting
out of first sale by framing functional sales as licenses.

Although misuse isn’t new, the fact that it hasn’t much revived
in response to these changes shows something about deference to private markets.
Contracted to more antitrust-like situations. But misuse is important when,
say, © owners create tuggable blanket licenses that allow them to remove any
uses to which they object—super-moral rights. And while Art. 17 requires a
complaint/redress mechanism for material that is used lawfully in criticism,
review, pastiche, it doesn’t say anything about penalties for wrongful blocking.
They could just send multiple takedowns.

Lemley: what do we do about Content ID? The cops playing
music to prevent records of their behavior being shared are doing a bad thing.
Neither side should be able to demand perfection or the platform will have to
pay statutory damages.

Tang: statutory damages could be a sliding scale—an AI that
messed up could mean a few hundred in statutory damages. There is a deterrent
effect.

Andrew Gilden, Willamette University College of Law

Capacity and Copyright

AI and © discussion hasn’t discussed mental capacity at all.
Creative spark is required, but there is no additional threshold of capacity.
Example: Ron Swanson’s
will
, which he wrote when he was 8: it would not likely be probated, but is
almost certainly ©able. Children can’t execute a will, but they can create. But
note that both © and trusts/estates are supposed to structure rights for heirs.
If the dominant theory of © is that authors are rational actors, that’s difficult
to reconcile with not having a capacity requirement.

Capacity requirement protects individuals from exploitation;
the concerns are also present w/authors but not in expected ways. Authors who
lack ability to contract can be highly vulnerable to family members—example of
Britney Spears who can produce highly valued IP but is not allowed to control
any of it. If she were unable to author works during incapacity, perhaps there’d
be more incentives to work to restore her capacity. Parents’ decisions to
commodify children might be questionable.

However, capacity doctrines are discriminatory in application.
Burden people w/disabilities; insane delusion doctrine is applied to invalidate
people w/marginalized beliefs (such as a donation to the National Women’s Party
rejected for neurotic degree of feminism).

Also, perhaps capacity is in tension with ©–the cultural association
b/t creativity and madness is a long one.

What would a capacity requirement look like? Author should
have a general awareness of context in which they are creating; ability to
deliberate about creative process; voluntarily participates in fixation; be able
to connect these elements in a coherent plan. Perhaps an age limit, though not
sure what that would be.

Victoria Schwartz: © is about acquiring rights rather than
giving them away. Assignments/WFH agreements seem better candidates for
capacity requirements/analogies to wills.

Gilden: Agrees that giving rights away is an issue, but also
interested in why we give people © in the first place if they lack capacity.

Zvi Rosen: Coverture and ©. (I couldn’t find a book by that
name but this
looks interesting
.) Where would the © go with a capacity requirement: would
it dissolve? Or go to someone else?

Rebecca Curtin: note that the capacity to marry is lower threshold.

Gilden: what’s closer to the core of autonomy/human choice?
Interesting question.

Sean O’Connor, George Mason University, Antonin Scalia Law
School

Copyright, Science, and Federalism

Part of “Means of Innovation” project—trying to expand our
interpretation of the IP clause by showing how French philosophes were thinking
about it. Uncovering meanings of words before late 1800s that have very
different meanings today. Takes seriously that you look at writings, authors,
science v. discoveries, inventors, useful arts in the Clause. Art is the way we
do something in the world; science is the way we step back as an observer and
systematize. Title confusion: is this just a historical paper?

Covid brought new attention to ©’s role in science, not just
artistic expression. Premise: of standard IP justifications, no one has won
out. We have no real sense of © because of shift from protecting substantive
scientific expression to protecting artistic content.

Deep purpose of ©: to get things out of manuscript and get
them into circulation, even before the printing press. Publishing as a concept
goes back to Greco-Roman times: to make public statements. Censorship was
secondary; the idea was to control all fields through guilds, and printing was
thus a guild occupation. But the Enlightenment sought public availability v.
private hoarding of knowledge, especially among guilds. Desire: codify
knowledge in text and plates and put out there for all to access and learn
from. Statute of Anne flows from that background. Important that Statute of
Anne provides for library deposit. Notably, music was confirmed as statutory
subject matter on its basis as a science not an art: Bach v. Longman, 1777;
judge expressly compares mathematical and scientific notation to musical notation
and says former is ©able so latter is too. That’s why there’s no performance
right. Musical notation is a mode of analysis.

IP clause: in that reading, creative or fine arts appear
intentionally left out. Probably because that was all that was needed for
national economy/defense. An argument in favor of saying that the Constitution
only provided limited powers. Framers aren’t against © for fine arts, but they
were leaving it to the states. Unprotected subject matter like pre 72 sound
recordings were in fact protected under state law.

Confirmed by 1790 Copyright Act limited to maps, books, and
charts. Argues that we allowed new subject matter for sheet music—added again
in science mode—and engravings, because engraved plates are key for scientific
publications such as encyclopedias and Grey’s Anatomy, as well as official
documents like stock and currency. Thus, in early 1800s, expansion of © is
still for knowledge, not pure creativity.

It’s at the end of the 1800s that art and science start to
shift, and art shifts to meaning fine/decorative/creative arts, not just
artifice/manipulation of environment for functional purpose, while science gets
narrowed from generalizable knowledge to more tech-focus. We’re losing our mooring.
Nothing changed in the Constitution but the subject matter expanded without
coherence.

So what? If we’re not going to roll back subject matter, and
he’s not advocating that, then what do we do about the expansion exceeding
Congress’s constitutional authority? Maybe we just give up on the IP clause as
a constraint. Or do we try to revise it? That’s probably infeasible. We just don’t
have a coherent account, and until we do we will be in a muddle. Even more
practically, if the protection is for creative works, then utilitarian justification
only probably does not work. Attribution/integrity would have to be brought in.

Tyler Ochoa: Malla Pollack’s article on meaning of progress
as dissemination is relevant/consistent. But on federalism: the Federalist
Papers say that states can’t do this effectively, and he’s seen nothing making
that distinction b/t creative arts and scientific knowledge—might just drag
creative arts incidentally along with it. 1802 protection for prints is only a
few years after the first © Act, but nothing in the Act says it’s limited to
scientific purposes even if that’s the core motivation.

Derek Miller: The Stationers/publishers are the other piece:
the authorial right arises out of opposition to the publishers, and your
account seems to leave them out. The Bach case is about what’s a “writing.”

A: read the case again—he reads it as being a scientific
writing.

Zvi Rosen: Ruth Shaw Leonard wrote a great dissertation in
the 1930s where she went through every registered Mass. ©, worth looking at.

A: Agrees that by the end of the 1800s it’s all fine arts,
but that’s the problem.

Rosen: to what extent is that about constitutional
interpretation?

A: Commentator at the time notes the shift in use of the
term: useful arts have become “technology,” and so they just ignore the word “useful”
and say the clause protects “arts and sciences.”

Peter Karol: Q about role of religion. So many engravings
were religious.

A: theology would be the related science. Even if I’m right,
there’s so much stuff that seems to be conveying wisdom/systematic knowledge of
environment. If you’re conveying substantive knowledge about the religion, then
it’s part of “science.” So the fundamental difficulty is: when does it cross
the line from knowledge to entertainment?

Tang: what did the Framers think the relationship b/t © and
patent was? What work was © doing that patent wasn’t already doing in this framing?

A: patents were still evolving at the time especially in
terms of what disclosure was required. Instructive that they don’t use those terms,
patent and ©, because they didn’t necessarily want to adopt the European
versions. But the paradigmatic way of scientific dissemination at the time was
treatises—think of Euclid etc.

Christine Farley: Invention of photography as changing how
we think of fine art: as representational and therefore a way to disseminate
knowledge.

A: you keep getting these dual use media where you can do
both; even the Greek plays were about teaching morality. The original system
keeps breaking down—the Enlightenment dream is about identifying knowledge, but
much creative expression conveys important info.

Graham Reynolds, Peter A. Allard School of Law, University
of British Columbia

Copyright as (Progressive) Property

Critique of IP as property: protects the power of the
already rich & powerful, especially people who are white/male/from the global
North. So could replacing the property concept make © more equitable?

Frequent references to © as property in courts,
legislatures, constitutions around the world complicate this effort. Building
on literature by exploring progressive property theory as a response: PPT
recognizes that common conception of property as protection of individual
control over specific resources is legally influential and intuitively
powerful. But inevitable impact of one person’s property on others make it
inadequate. Have to look at underlying human values and social relations. That
can help © theory, and it can also help PPT—which may need more attention to acquisition
of rights and redistribution, both of which © theory has explored. We can also
look into the back catalog of property theory more generally to find more
useful building blocks.

Lemley: Understands the desire to make the best of a bad
situation, but fears it’s still a rigged game. Adoption of property rhetoric
has not led us either in IP or in property law to progressive policies; the
instinctual/easy sell of “absolute despotic dominion” is powerful. What to do
about that? Maybe not talk so much about extending PPT from real property but more
about how we differentiate types of property.

Rub: the problem isn’t property per se, but what people
think property means! Let’s assume we can change people’s minds: does it solve
the problem that both “good” and “bad” people use © to further their interests?

A: might help in certain ways around how we define reproduction;
fair dealing/fair use; but not a total reconceptualization.

Tang: Note that © owners move away from property when it
helps them: characterizing sales as licenses, which doesn’t work in real property;
characterizing works as their “children” where it would no longer be acceptable
to say you own your actual children.

Carys Craig: Canadian SCt case accepting notion of © as
property was a throwaway sentence without debate; we do have to deal with it
strategically but may not need to be resigned to it. It’s not property that’s
the problem but rhetoric and imagination.

Bita Amani: Unjust enrichment as another relevant concept—uses
and abuses.

RT: Another variant of the worry expressed by some of the
comments: At least some defenders of expansive exclusive rights are presenting ©
as already progressive: CO educational materials trying to get students to
think of themselves as creators and therefore to refrain from what we call
copying, or infringement (compare to the quote from a progressive economist as
reported by John Maynard Keynes: “[w]hen he was asked if he favored private
property, Montgomery replied, ‘I do—so strongly that I want everyone in Texas
to have some.”’); claims that © is a way for members of marginalized groups to
build wealth without starting with other social capital.

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WIPIP, PLENARY SESSION 1 — Race, Gender, and IP

Dan Burk, University of California, Irvine School of Law

Racial Bias in Algorithmic IP

Unpacking bias: divergent meanings: statistical bias (sampling),
design (wrong type of model, model created for one purpose used for another), the
fact that “raw data” is an oxymoron, social bias (inappropriate social outcome—different
than the bias that designers often talk about, so they may talk past each other
even if there’s overlap). This can make some responses beside the point:
transparency, auditing, “human in the loop”—those are mostly attempts at better
technical accuracy. That’s a red herring. Example from criminal justice: parole
determinations. Zip code is a major factor in these, and that’s correlated with
poverty and race. It’s a really good predictor, but that’s the wrong question:
why do we put up with that connection/digital redlining? An AI patent examiner
that rejects/narrow claims based on race of inventor, that’s not inaccurate to
past practice. It’s wrong in the sense of being immoral and [supposedly]
socially unacceptable.

Machine bias may be the wrong question. Let’s deal with the
bias in the system; it doesn’t matter whether it comes from a human or from an
AI trained on the past practices of humans. But there are differences in
practice: Illusion of objectivity; humans put too much faith in numbers, Donna
Haraway’s “God trick” in which the human is no longer visible in the picture. E.g.
overweighting of numerical evaluations. Algorithmic performativity: they enact
what they assume and create their own social facts. The yearly ranking of law
schools by USNWR. Wendy Chun suggests: we should use these systems as
diagnostics. We don’t think a weather forecast is diagnostic or that it can be
used to create better weather; we can use AIs to find out what our biases are.

Ann Bartow, University of New Hampshire Franklin Pierce
School of Law

Ruth Bader Ginsburg’s Copyright Jurisprudence (with Ryan Vacca)

Strong copyright and liberal politics. As a DC Circuit judge
and SCt Justice, she authored sixteen opinions in © cases, ten majority, four
concurrences, two dissent, and joined 11 others, ten majority, five of which
were unanimous, and one concurrance. Mostly owner-favorable and Goliath over
David, which may seem surprising. Five opinions favor authors: Tasini, Eldred,
Golan, Reid (WFH), and arguably Muchnick, the followup to Tasini. Many were in
favor of owners: Petrella, Nat’l Cable TV Ass’n v. Copyright Royalty Tribunal,
Atari v. Oman (2x). Concurred in Grokster & Star Athletica; fiery dissent
in Kirtsaeng. But did favor accused infringers sometimes: Fourth Estate v.
Wall-Street.com & OddzOn v. Oman as well as concurring in Quality King. She
joined Campbell, Fogerty v. Fantasy, Feltner, and several others.

Unpersuasive explanations: widely known love of opera and
art (other Justices have those too); Jane Ginsburg’s uncontested expertise (Ginsburg
fille isn’t particularly highly cited by Ginsburg J. and Breyer cited her against
a Ginsburg opinion).

Better: Incrementalism—if judges reach unnecessary issues,
this creates instability/undue stress on judiciary. Evident in gender equality
work and critique of reproductive rights litigation based on lack of incrementalism.
Intergovernmental deference: evolution/interpretation of law shouldn’t be
diatribe against Congress, President, admin agencies, or states, but as dialogue.
Courts have instiuttional capacity constraints and must do this to be effective.
Lily Ledbetter Fair Pay Act after loss at Scotus; Petrella opinion recounts
back and forth with Congress and courts. Atari v. Oman: Sent it back to Office
twice and told them to look at Feist.

Eldred and institutional capacity: worried about whether the
courts were the right institutions to decide duration. How does Breyer know his
economic analysis is right? [Framed as “where is his economics degree from? And
Lemley in chat says “Oxford.”]

Some divergence in © jurisprudence: seemed to favor
alternative remedies in ©–In Tasini, suggested court shouldn’t issue
injunction preventing inclusion of the disputed articles, but instead compulsory
licenses/consent decrees. She was much more skeptical of alternative remedies,
like a lesser military school for women instead of VMI, for gender
discrimination.

Ryan Vacca: responding to chat point that citing Jane Ginsburg
isn’t a great proxy for being influenced by her, and they acknowledge this.

Dalindyebo Shabalala, University of Dayton School of Law

Solomon Linda, Traditional Knowledge Pirate? Mbube, “The
Lion Sleeps Tonight” and Traditional Knowledge

Challenging the originality of Linda’s work as potential cultural
threat. The story: popularized in the 1950s including by Pete Seeger from a pop
music record in South Africa. That song, story goes, was composed by Solomon
Linda, who died penniless while millions were made. 2000 article resurrected
the story of misappropriation and injustice; led to a suit against Disney.
Settlement elided the basic question of who really created it. He argues it
should be tested in court because it’s a key issue in TK: What happens when a
traditional piece of music gets translated, derived from, built on, recorded,
and moved into the © system? The classic TK story is an outsider coming in and
taking it into the © system. Story of Linda is, he suggests, a much more
traditional trajectory: an insider who traverses the boundary of the community
to the outside and acts as the translator, then lays claim themself to the TK.
Musicologically the origin story is more complicated, and the question of what
rights insiders should get is much more complicated than misappropriation by
record companies.

Linda was an originator of a style. Urban music/dance, built
on tradition of rural Zulu style. He took a wedding song sung by village girls.
Developed in a sharing/building/borrowing culture. How should that affect what
we think the world owes Linda? Community rules may continue to bind insiders
when they try to exploit works outside those communities. We should not think
of this as a new problem. © has always been bound up with nationalism. The
problem to be solved was misappropriation across borders. The problem for
traditional communities is very much the same. Should think about solutions for
insiders who flee.

Bita Amani, Queen’s University Faculty of Law

Law, Race, and Alchemy: Exclusion(s), Existential Crises,
and the Transformative Possibilities of Intellectual Properties

Operationalizing privilege through law presented as formally
equal. Curricula/cultural materials are an important part of naturalizing
privilege. “Exclusivity” of rights: IPRs are part of broader colonial legal
regimes, so why would we expect anything other than disparate impact in rights
acquisition and enforcement? Authorship in fact v. authorship in law is gendered/raced;
work v. play distinction means some of us are disenfranchised from labor/means
of production while others become owners.

Carys Craig, Osgoode Hall Law School, York University (with
Anupriya Dhonchak)

A Feminist Theory of Moral Rights: Creative Agency and
Voices from the Margin

Not surprising that feminism would have something to say
about a right conceived of as intensely personal. Dichotomies: public/personal;
economic/moral; rational/emotional; masculine/feminized; valued/devalued: so
moral rights are the feminized Other. Personhood rationales have therefore
tried to masculinize/propertize the justifications. The image of the artist is
that of the solitary male genius, individualized author. Hegel, proponent of
moral rights, held that women were not capable of art. Kant likewise thought
that knowledge unfitted women for their places. Not clear why a feminist would start
from Kant and Hegel! Moral rights rhetoric is also filled with references to
paternity; patriarchal metaphors of birth without women, right to control
offspring. We need a better ontology of authorship.

A feminist relational theory of authorship locates
creativity in cultural situations and social relationsh; creative capacity is
enabled by relational web. Relational autonomy, capacity to make meaning is the
foundation of authorial rights. Authorship as dialogue/relationships of
communication. Every text is multivocal; for feminists, this invites
exploration and activating of the unvoiced, exiled world of women (Mary O’Connor).

Could say that integrity right ensures dialogue is a real
one, but we think that clings to the romantic idea of there being a single
meaning bestowed on work by author, and dialogism refutes that at the core. Risk
of weaponizing moral rights against those who critique the dominant culture. Integrity
right misundersands relationship b/t author, text and public in way that casts
disruptive dialogic engagement as moral and legal wrong; not consistent
w/feminist politics of confrontation, resistance, and social reform. Example: Fearless
Girl attacked as violation of moral rights of bull sculpture’s sculptor.

But: attribution right deserves attention through feminist
lens. Tracing who is speaking, from where, on behalf of whom can be about
feminism and authorship. De-Kanting acknowledgement: Kant thinks that the harm
is compelled speech, but feminist theory is that the harm is the silencing, the
refusal to acknowledge that someone has spoken. The power to make knowledge
claims v. the people who have been erased from/made invisible in our narratives.
Attribution is a call against erasure.

Caveat: it doesn’t follow that © is the right space to
achieve political goal of amplifying marginal voices given the bluntness of
legal tools and power needed to wield them. Empowering communities of practice
is the goal. Moral rights don’t occupy a moral high ground; they’re based on
the same patterns of exclusion and control as ©, but can benefit from feminist
reeimagining.

Moderator: J. Glynn Lunney, Texas A&M University School
of Law

Lemley: AI does expose some fundamental contradictions in
what we think of as inequality: a broader problem of how we measure equality
and how we want to balance procedure and substance. Making that explicit can be
useful.

For Bartow: Don’t shy away from the harm she did in throwing
out Sony in her Grokster concurrence, Petrella and its authorization of a wave
of © lawsuits forever, etc. There are interesting agency/courts/etc. metrics to
all of these, it is still worth noting that she ends up on the side of the ©
owner and he doesn’t think that’s a coincidence.

Burk: all human tech may be prosthetic: cars are feet
prosthetics; AIs may be cognitive prosthetics, but bring all human baggage.
Amplifying and disclosing may be the useful parts—using them as diagnostics to
figure out where we’ve been screwing up. But they are our messes to solve.

Bartow: yes, and that’s painful about this project.

Betsy Rosenblatt: For Shabalala: Norms are good at governing
in communities, but they are really bad at governing outside of communities.
Natural takeaway might not be that everyone owns TK but that no one does, but
that may be imposing a norm on the group from outside. Maybe that’s exactly
where we need laws (when it moves outside the community) but then whose rules
should we adopt as the law?

Shabalala: This is the key part of the project. The premise
has to be cultural sovereignty: the only communities with a strong claim have
to build on a preexisting political sovereignty, b/c the right to regulate
citizens’ lives is built on sovereignty. Rosenblatt says that’s a very American
way of looking at sovereignty, but Shabalala responds that African nations have
wholeheartedly adopted it, although there are sub-sovereign, sub-metropolitan
communities that are clearly left out of this formulation, and that is a real
problem. Reaching outside the community is required to regulate exploitation,
but TK may not be the answer.

Amani: Note that in the US the definition of an Indian comes
from the federal government; the problem is complementarity of structural
inequality that is imposed.

RT: for Craig: Is this a right/interest of the author or a
right/interest of the audience? Consider anonymity; women writing as men; whites
writing as natives.

Craig: it’s about
relationships, with text as vehicle for dialogic engagement. Ideally we’d know
who is speaking, but wouldn’t insist upon removing anonymity. Risk of silencing
voices with removal of anonymity matters. [RT: we valorize some kinds of
contestation, but there are situations where the speaker treats the audience as
marks to be exploited
—good to think about those situations when conceptualizing
moral rights.]

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