Works in Progress in IP, part 1


Session 1: Copyright Theory, Parlor C

Chris Buccafusco & David Fagundes, The Moral Foundations of Copyright (Fagundes presenting)

Copyright is deeply moral; best explained by moral foundations theory; these are descriptive claims. Normative claims: how we talk about copyright/how we make laws

Nature of copyright’s moral domain—contested propositions from moral psychology.  (1) intuitive primacy.  Reason and emotion aren’t separate processes, and intuition is primary. (2) Moral foundations theory: moral foundations that make up decisionmaking, Jonathan Heidt: harm/care; justice/fairness; purity/degradation; loyalty/betrayal; authority/subversion; liberty/oppression. Our instinctive reactions depend on our taste settings/dials here.  It’s more than just harm and fairness.  This is especially true past elite Western societies—different cultures/social strata.

Similarly, we have a cramped language for why we have copyright—a subset of harm (traditional utilitarian cost/benefit analysis), just flavor of moral rights in US.  But what about sources that aren’t the traditional legal sources—testimony/people expressing their moral intuitions about copying/copyright legislation.  Found something similar: utilitarian framework does terrible job of explaining moral intuitions.

Harm/care: captures the straight story—harm to authors, harm to the public, harm to the “little guy.”  Part of the harm/care narrative is obvious; also, artists/authors rarely talk about money, but talk about intrinsic dignitary harm they experience when they cede control through unauthorized use, or reputational harm due to misattribution.  Care narratives: orphan works, stewardship of archives. 

Justice/fairness: “Thou shalt not steal.”  Reaching for a clear rule to object to conduct, because clear rule following is part of the justice framework. Likewise “don’t reap where you haven’t sown.” Something unfair about investment in something when someone else gets it for free.

Purity/degradation: see a lot of courts, owners offended by prurient uses of works. (Sculptor who sued over orgy scene in Devil’s Advocate.)  Concern over degradation of archived works. Rhetorical devices: “infectious” anti-DRM tech; slothful infringers; “sacredness” of custom tattoos.

Loyalty/betrayal—patriotism—Jack Valenti’s infamous Boston Strangler testimony was all about the Japanese threat.  Danger of “rogue foreign sites.”

Authority/subversion: analogy of works as author’s children; orphan works.  Threats to order are bad—content industries invoke this all the time.  Piracy is appealing to people with other orientations.

Liberty/oppression: information wants to be free; admissions of futility of control; slavery metaphors.  Slavery metaphors show up on both sides.

So what?  Not trying to object to normative aims of copyright.  Two themes: how we talk about copyright. If we understand moral architecture better, we can craft more convincing copyright narratives. Appealing to heterogenous group: what Jack Valenti was good at.  Could also target a message.  Also relevant to how we legislate—to the extent that law doesn’t reflect actual moral experience, creates enforcement/legitimacy problems. Also, copyright is about incentives, but if we don’t understand how people react to certain conduct, difficult to craft a system responsive to that.  Chekov: “Man will become better when you show him what he is like.”

Q: does this mean that Congress and courts should be doing this type of reasoning?

A: descriptive claim about how people think about unauthorized copying and proposed legislation.  Law shouldn’t reflexively track moral intuitions, but can help us understand how best to achieve normative goals.

Mark McKenna: how do you ID what strikes people as stealing and what doesn’t?  What kinds of things people react to as stealing v. legit borrowing matters.

A: Moral facts: a prior Q.  Want to leave it aside and ask what happens when a particular heuristic is triggered. Certain subcultures widely perceive something as universally bad (e.g., talking back to father).  Still broad categories are possible.

Q: can you disentangle instrumental arguments from true moral arguments?  Jack Valenti was an instrumentalist.

A: agenda will differ depending on audience, but it still matters how the arguments are made.  Valenti’s choices are interesting because he thinks that if he triggers certain issues, audience will find the claims more persuasive.  This approach allows better communication.

Q: fair use uses language of fairness, but elements are utilitarian.

A: we should look at the statute’s language!

Jeanne Fromer, NYU, An Information Theory of Copyright Law

Dominant American theory is utilitarian.  Less settled are the sorts of works copyright law seeks to encourage.  Information theory: branch of applied math that suggests optimal ways to transmit info.  Proposes: what makes expressive works valuable is that they make a contribution in at least 1 of 2 ways: communicate knowledge of some sort; or convey information enjoyable in and of itself. For (1), there ends up being a lot of noise in the expression, and copyright is encouraging redundancy—encouraging it to appear in multiple forms to transcend the noise.  (2) is valuable in and of itself; we can pick it over for meaning/value; different audiences locate different meanings in this type of expression. These diverse and evolving meanings are just as valuable for society as the original. So © ought to be encouraging interpretation and repurposing—encouraging a noisy conversation.  Allows underlying expression itself to be used redundantly in different meanings and contexts.

Information theory imagines simple framework: speaker with message, and communications channel to recipient, who must decode message.  Need to figure out efficient encoding and accurate decoding.  Information theory assumes a lot of noise on the channel.

Semantic info theory: noise comes b/c people have different codebooks for decoding messages. Have to figure out how to get them on the same page.  Use redundancy to detect/correct errors.

Overarching purpose of ©: promoting progress of science—seems to be about systematic knowledge, can include cultural knowledge.  We don’t see many laundry lists of knowledge. See things that are much less efficiently coded.  We like having a marketplace of ideas, and don’t allow someone to monopolize them.  We have some hedonic interest in seeing expressive works.

Jabberwocky: seems nonsense, but people have been picking it apart since it was written. Copyright law is trying to encourage a conversation about expression.

Idea/expression, merger, scenes a faire: certain building blocks are off limits to ownership so they can be communicated redundantly. Also, when expression is valuable in itself, we might also want to allow it to be used redundantly.  Originality/independent creation—if you come to something on your own, you can use it, because that independent creation shows it’s valuable. Introduces valuable redundancy, as opposed to allowing wholesale copying (which would be the most redundancy possible). “Modicum of creativity” standard—standard alphabetical order is most efficient way of communicating the phone book, so that can’t be protected.

Q: suggests we shouldn’t have an idea/expression split.  Haven’t heard anything that says we should treat them differently for redundancy.

A: two tracks for knowledge v. expression.  May need recategorization of some expression we protect and some we don’t.

Irene Calboli: define knowledge.  Indep. creation usually involves something added on, which may be valuable.

A: different people absorb knowledge in different ways, so variation is good.

Zahr Said: Jabberwocky seems like fair use—commentary and criticism. What would trouble the theory more: spinoff play?  Translations of Jabberwocky into German & French. Q re: role of error: seems like you’re doubling down on a particular view of what works do when they communicate—that the author has a message and can transmit it in a way that doesn’t have errors if properly transmitted. But that’s a particular view of reception. 

A: Factual knowledge has a very clear answer there, but that answer may not be as interesting as with more expressive works.

RT: Redundancy can be contributed either by different versions or by lots of copies keeping stuff safe.  Information theory doesn’t seem to provide any of your answers here.  This is the part of the paper where I really got lost:

[The scope of the derivative works right] can be addressed through the lens of information theory, by asking who will do the best job of transmitting and disseminating the existing work’s message—be it the underlying knowledge or valuable expression in and of itself—in these follow-on works. Vesting these exclusive rights solely in the existing work’s author can be helpful on the ground that the creator arguably knows better than anyone else (non-noisily) the message that he or she communicated—probably noisily—in the original work.

This isn’t an information theory answer. Fromer even says earlier in the paper that highly expressive works like the paintings of Van Gogh don’t have a reducible “message” other than the artwork itself. I say: the creator doesn’t know better than anyone else how to transmit the valuable information in her work! We have an empirical dispute. Can this question be answered within information theory? I don’t see that it can. Likewise, the incentives argument isn’t an argument from information theory, and it’s incentives that Fromer uses to draw the line between control and no control (which Fromer says would otherwise encourage dissemination, per information theory).

A: it is a variation on thinking about incentives, but it’s helpful to asked whether we think there are contexts where the author is well placed to make good choices about who is communicating, because then that person has something within them that they can communicate to the people they authorize to make derivative works.  If that’s not true, then the case for the derivative works right is weaker.  Maybe we would have more nuance.

Betsy Rosenblatt: irony: would seem to call with situations with least ambiguity to be given most control rights—facts, where there’s no room for interpretation.  Then we’d give less exclusivity to people for whom interpretation would be important.  That seems problematic.

A: but facts wouldn’t get protection in the first place. (But why not, per information theory?)  Maybe we will have people with great knowledge bases, historians, and we do want them writing about it again and again. But she’d still not protect facts.

Eldar Haber, Faculty of Law, Tel-Aviv University (Ph.D. candidate)

Copyrighted Crimes: The Copyrightability of Illegal Works

Imagine people commit murder while another films it.  One murderer’s book describes the murder; another’s describes flowers; the filmographer sells the film. They all make money from the crime, and copyright aids the filmographer.  Argues that copyright should not protect the filmographer. 

Older cases—illegal works aren’t copyrightable; newer precedent is that moral objections are no barrier.  But the law isn’t currently clear, and it should be clarified.  Illegality + harm should preclude legal remedies for the (putative) copyright owner.

Glynn Lunney: consider the WTO proceeding against China for not granting copyright to works that didn’t pass its censorship—how does this differ?

Also hard to figure out how much notoriety adds to the value of the work.

On the First Amendment argument: can we think of this as refusal to give benefit rather than a speech restriction?

Q: what about the money the news media makes from covering events exploitatively?

Q: is there an interest in getting literature about crime?

A: there are incentives to produce works even in the absence of copyright.

Lemley: copyright infringement is a crime.  What crimes are sufficiently severe for this sanction?

A: we have to draw a line, probably felonies and not misdemeanors.

Fagundes: crimes vary and so do works. What about a book that’s only partly about the crime?

Q: would have a standard of “substantially and directly connected to the crime.”

Jerry Liu, University of New Hampshire School of Law

Copyright Complements and Piracy-Induced Deadweight Loss

Recorded music as complementary to performance—theory suggests that P2P sharing will increase demands for concerts and other related goods.  Negative cross-price elasticity of demand.  Three degrees of complementarity: (1) first degree, products used together.  iPod, iTunes, online music and internet services. (2) second degree, consumers usually purchase together but don’t consume together—recorded music, live performance, merchandising. (3) overlapping consumers—wide distribution of music is useful for other purposes, such as ad-supported music, sponsorship/endorsement.

Videogame/console—hardware is relatively cheap, games are expensive; the model is opposite for iPod, where the hardware is relatively expensive and the music is relatively cheap (sold at cost).  Why the difference?  High piracy—underprice music to compete with privacy, overpricing hardware to recoup investment—increased deadweight loss.

What about second-degree complements? In the pre-digital era, concerts were routinely underpriced.  Face value was low, and scalpers cleaned up. Why didn’t artists capture the profit? Wanted hardcore fans to come to concerts so that word of mouth increased demand for records.  Digital age: ticket price increased 131%, 3x faster than general inflation.  A few old acts accounted for a big chunk of that.  As piracy lowers income from record sales, musicians become increasingly dependent on live performance.  Madonna’s agent: people used to tour to promote albums, now people put out albums to promote tours.  David Bowie said in 2002 that only touring would be left in 10 years; copyright would be irrelevant (gives whole new meaning to Bowie Bonds).  Also explains rise of 360 deals with performers. Does the increase in performance make up for loss in recorded music market?  No. Top tours are older acts (ave. 24 years experience), while top albums are from younger artists (ave. 7 years experience).  Systematically favors established artists.

Digital copyright levy?  Spotify as private alternative?

Q: logic works only if there’s no competition that enables supercompetive pricing – works for Xbox and PlayStation, but there’s more competition for iPods.

A: true. My model assumes little competition in hardware market.

Kristellia Garcia: do you include streaming revenues?

A: yes, use IFPI figures.

Lunney: use constant dollars for purposes of comparison.  How does Spotify solve this?  Levy is not market based but provides means to compensate for filesharing.

A: not arguing that Spotify does solve the problem! It’s just a different tool.

Q: can still be shrinking the deadweight loss as you move it from one type to another.

A: true!  If majority of consumers have high valuation but low frequency in music consumption, or are very risk averse, or discount future value at high rate, then the deadweight loss in these other markets is potentially bigger in other markets than in music. It depends.

Q: what about artists outside the major labels?  Thriving small music industry doesn’t have much relationship with this industry, except that Spotify screws them.

A: interested in those.
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