The Eureka Myth: Reputation

Fourth Session: Reputation and Policy Take-Aways
Abraham Drassinower: what does thinking about misalignment tell us how to think about IP?  Move from debunking eureka myth to debunking the myth of progress.  Misalignment of IP with its own justifications, needs of its creators. Whatever IP is, it’s not an instrument of progress.  Realign it with its own progressive purpose?
Because you’re talking about misalignment b/t interview data and progress, you’re not talking about whether progress should be the focus of our attention.  Quantity is the wrong metric.  Social engineer with balances can’t figure it out.  The concept of value, and circulation of value, can’t provide sufficient foundation for the specifically legal concept of IP.  Like Holmes in INS v. AP who tells us that property is a social category.  But will qualitative approach answer the question either? If the problem is indeterminacy, then lived experience may not help answer the question of value.  Then IP remains unjustified as instrument of progress.
One conclusion: strong IP/maximalism is not correlated with progress.  Correction of mistake: gather more data but the justificatory mechanism remains collecting data to achieve progress.  But it seems at least as plausible to ask whether your empirical observation that IP doesn’t align with progress doesn’t mean that IP isn’t an instrument of progress.  Maybe it’s about something else.  Hard to say in the US though. 

More subtly: it’s the meaning of progress, rather than the nature of evidence to be deployed, that requires interrogation. But that seems to require not a recalibration of IP but rather a reassessment of what it means to gather data when you’re trying to justify something.  It’s very hard to get rid of the incentive story by looking at evidence.
Questions: (1) What is progress? (2) Is progress the same for all three cardinal branches of IP?  (3) How can data collection answer normative/legal justification questions? Not saying it doesn’t, just saying it’s not self-evident.
Joe Bauer: Difference between individual and corporate aims: corporation aims at maximizing rewards. But corporation is a legal fiction. IP is directed towards wealth for owners.  Are we as a society acting at our peril if a reduction in those rewards significantly reduces willingness to invest in IP.  (Well, how are the relative returns?)  Also, corporations aren’t one size fits all—financial rewards may play greater or lesser role.  Significant investment/unclear payoff may be different: movies; pharmaceuticals.
Should we fine-tune the rules to differ across types of work, authors, inventors, owners?  Should we give more attribution rights, and if so is the European model appropriate or some American version?  Copyright and patent are exclusive; is the implication of your analysis that compulsory licensing would be better?
Barton Beebe: IP as enabling rather than incentivizing—a key insight.  Creating conditions for play—connection w/Julie Cohen’s work.  How that relates to process over product: good IP facilitates the process and doesn’t allow incentivization imperative to destroy facilitation. Facilitation applies to second-generation artists; importance of derivative works comes out.
Shifting away from process into trademark law: is trademark law the same as attribution and reputation?  Not quite. Open source communities is very anti-IP but get very fussy if you don’t honor attribution rights.  Creators (note it’s a charged term) accept less money if you offer them autonomy and attribution.  Unalienated labor can be had more cheaply; they also want connections with consumers.  Make the market human to them; you can pay them less.
Book reports overreach; people become aggressive and fussy whereas underenforcement prevails in the rest of the book.  Human attribution is dangerous in the corporate context—the whole point of TM these days is not to indicate source but to obscure it—no, this shoe was not made in the Phillippines by an underpaid child, it was made by Nike.  Branding as authenticating source—old strict source theory of TM law has been replaced by anonymous source rule.  Book shows that everyday TM law isn’t about branding or persuasion but defamation/right of integrity.  A name is a creative act (Laura Heymann). 
(1) Star systems/mere mortals.  (2) What about those who don’t rise to the level of pro paid artist or who give up?  Adolescents’ views?  (3) Concept of the romantic author and how it might fit in. Romantic author as solitary voice/artist struggling in face of massification and speaks ex nihilo, creating something out of nothing.  A concept created in response to new material conditions of industrial production—secularization of Protestant tradition per Martha Woodmansee.  Never actually bought this as explaining copyright law.  We use the trope of the author creating ex nihilo to justify IP rights—if the author didn’t create out of a community, then he deserves all this money.  Silbey’s book creates image of people opposed to the market, working for other reasons, in opposition to industrial capitalism, but is that opposition really as opposed as all that? 
Market aspect to reputation: people who get to construct themselves as playwrights/novelists while being supported by spouses—if they’re wealthy that’s cool, if not we judge them horribly.
Mark McKenna: very few people wanted to talk about reputation here.  Hard to figure out what to say.  Merges’ reaction: this book fully justifies a strong attribution right overruling Dastar. But reputation is used in a number of different senses throughout the book by interviewees. Some talk about their reputation as scientists/artists—for being creative/innovative. Others talk about reputation in business world/ability to get deals done. Then there’s reputation as source.  Reductionist move to either talk about TM or right of attribution. But different uses may have little to do either w/TM or ©.  Attribution right would do no work for most of these reputational issues—the things that bothered artists most were some of the things they had the least justified claim to control, and giving control over those things to the artists might well be unconstitutional.
The more you see in TM law, the more you should worry about a free floating right of attribution. What counts as a “work” deserving attribution?  A piece? Whatever the author says? Who gets to say who’s a source?  Experience w/TM law is not promising.  
Why is the impulse to provide an attribution right to an artist and not to the people who stitch the shoes, who are also vital to the creation and might care a lot too.
If you were designing a legal system to deal with all these kinds of reputation, would want to think more about harm. In some cases the harms might have economic consequences but in others they might be purely emotional. Under what circumstances are those harms real? Or are they just idiosyncratic harms to the author?  Might see inverse relationship between most significant dignitary harm and greatest willingness to provide rights; thus his deep suspicion of attribution. Reputation is not one thing.
Nicole Garnett:  Some people respond to incentives and the Q is whether they’re producing what we want.  Decide what the “more” is and then investigate how the incentive works. 
Overreach/leakiness—all about optimal enforcement.  Book seems to give sense that level of enforcement is not optimal, but we never want 100% enforcement of the law. Fact of exclusion rights enables community; owner can tolerate intrusion on lawn because that won’t actually dispossess her.  What’s optimal level of leakiness?  Especially in communities where norms do more work than law.
Loren: Likes Traffix because court is clear that it’s concerned with harassment value of IP right: default rules that don’t allow quick dismissal can harm competitors for lawful behavior.  It’s that harassment value that is the overreach. Twiqbal has helped dismissal for ridiculous copyright claims.  What’s the harassment suit value of an attribution claim? That’s what makes her nervous.
Garnett: rights always raise possibility of harassment suits. Is it particularly bad here?
McKenna: tied to the remedy. If there were statutory damages available there’d be nuisance value to suits.
Loren: harassment value used to be much higher because of possibility of preliminary injunction.
Golden: making inequalities worse through just providing attribution? 
RT: Carol Rose: rights are means of communicating.  If they aren’t clear or are misunderstood, trouble can arise. Or different communities w/different norms intersect and clash.
Silbey: could be very hard to understand what interviewees meant by reputation. It’s a category that didn’t make sense as a whole.  [RT: could see it as a cluster of concepts/prototypes.] Point about blowback of attribution right—agrees with McKenna’s assessment.
Said: underenforcement—we have no duty to police ©.
Silbey: may have given them the category by asking; there are still multiple issues w/ meaning.
Kelly: culture and habits; mixed motivation could be consistent w/law and econ, but here’s one place where assumptions miss the boat by starting w/individual instead of more social view of the person, in context/social setting.
Loren: © and patent as driving different types of innovation than trade secrets, live performance, etc. As long as there’s sufficient respect for the distribution models chosen, it can work. Price discrimination/arbitrage: if it avoids a chosen distribution model then maybe it’s not justified.
Drassinower: legal construct of moral rights limits their scope: not a general defamation protection.  Did interviewees have a defined sense of what a reputation was?
Beebe: we didn’t talk much about the chapter on lawyers.  Lawyers aren’t the talent; they’re a cost center, as one interviewee says.  Was there a class division?
Silbey: trying to be helpful to people who don’t think they need you but they do.
Schwartz: litigators are problem solvers—may be seen differently than transactional lawyers.
Silbey: necessary evil (litigators). In-house tended to be more transactional, but many had moved between roles over time, except for patent specialists who only drafted patents or did audits.  Even young ones generally had varied experience.
Golden: reputation among informed peers/reputation among consuming public might differ.  Lawyers drafting patents have to avoid becoming inventors themselves.  Lawyers can also have involvement w/designing around.
DiCola: one bit in the lawyer chapter that he really liked was a music agent convincing an artist to take the money for a 30-second spot.  That’s a representative story—there was a moment when VW started licensing indie rock and it became ok because VW was cool; shift from “don’t sell out” to “I need the money.” 
Cohen: IP lawyers have a choice: discipline the talent by normalizing output that can be monetized, or they’re mediating between creators and firms, taking into account that firm’s demands can’t just be ignored but that talent has demands as well.  The people whose stories seem happy are those who are mediating.  When we teach IP, are we teaching a hermetically sealed causality story or teaching the need to mediate?  We can do the latter.
Professional responsibility questions: the Model Rules are litigation focused; don’t get at this delicate negotiation at all.  Institution-building as a goal.  Contrast: MERS and professional responsibility—people are going in to foreclose with no evidence, and now it’s a professional responsibility issue at the individual foreclosure level.  But nobody in power is saying that Covington did this incredibly unethical thing by building this powerful institution, MERS, at the behest of the top banks, even when it was absolutely foreseeable from day 1 that it would screw up the real property system.  Lawyers build stuff: they built Spotify; they built Aereo. That’s a kind of mediation too.
Golden: see constant demand by clients for noninfringement/invalidity opinions in patent; some lawyers seem willing to provide those.  You might orally communicate your opinion if it’s unfavorable; they might shop around.  That’s a product that comes from the lawyers, though of course it’s to overcome a problem created by lawyers elsewhere.

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