ISHTIP at Penn, part 4

Session 2 | Dina Leytes (Griesing Law, LLC), Moderator
Lord Eldon, Lord Byron, and the Public Domain
Gary Dyer (Cleveland State University)
Commentator | Simon Stern (University of Toronto)
Byron’s strategies to deal with Eldon’s doctrine that created a no man’s land b/t criminality and property if works were potentially seditiously libellous or obscene; purported to find in an earlier decision a doctrine that an author could have no remedy if the policy of the law prohibited his work from being property. Injunctions should issue only when the P could clearly establish a legal right.  Eldon’s paradox: exacerbates the effect it’s created to prevent: (1) no property in what’s injurious; (2) destroying ability to profit would discourage authors from creating—but that encourages circulation. Precisely b/c applies to ambiguous circumstances, a publication might not qualify for injunction while simultaneously not being obscene or libellous. A legal ruling that a work was not obscene or libellous should mean that a court of equity should grant a remedy; a ruling that a work wasshould also lead to proceedings against pirate editions. But most works weren’t ever subject to a legal proceeding—simply existed under a shadow.  Pirate editions could persist on the ground that it was too shady for protection but not shady enough to get the author thrown in jail.
Byron adopted some self-censoring measures to enjoy this, but not a lot; he wasn’t dissuaded from engaging in libertine speech, and as a result his works circulated further than they otherwise would have. One strategy: authorized cheaper editions that facilitated sales though didn’t undermine pirates entirely.  Byron became one of the first truly national authors to be widely read as soon as his works were published.  Reduced Byron’s own profits.  If Eldon’s doctrine reflects rational choice theory about discouraging authors’ investment in smaller-profit endeavors, then Eldon was wrong/would have done well to read Kahneman & Tversky on bounded rationality or Silbey on actual motivations of authors.
One way to read the paper is as contribution to literature on the logic of incentives. Instead of altering his text to receive protection, Byron did other things and accepted lower profits. Also casts doubt on the endowment effect here: once an author has made a certain amount from a work, that could serve as anchor/benchmark; here Byron accepted less for nonpecuniary goals. Value of first mover advantage: Byron profited as much as he did b/c simply beating pirates into print was worth a significant amount for those willing to sell low.  Compare Robert Spoo’s discussion of courtesy of trade among 19th c. US publishers, who also recognized value of first mover advantage in ability to achieve leading position in selling a particular title.
Case that provided the motive for Eldon’s doctrine lacked the precedential force Eldon wanted to give it, even if it hadn’t been dictum; could Eldon have achieved the same result using the doctrine of unclean hands?  At least more familiar/plausible doctrinal ground. Resort instead to such an improbable precedent, interpreted in capricious manner, might signal his disdain for the writings in question.  Exercise of legal imagination responding to the authors’ imagination. Contemporaries criticized the poor logic; maybe the poor logic was part of its meaning—more about denying the legitimacy of the author’s position. Maybe he didn’t anticipate the anomalous status of not-property and not-illegal, but that results still makes sense given the shaky foundation of the doctrine.
Paper also highlights the fuzzy contours of the public domain which can be changed both by practice and legal doctrine.  Public domain was much broader than it is today in a variety of ways (nonliteral copying); risk-averse conduct of publishers who insist on permissions for what is fair use. Publishers can shrink or expand the practical public domain.  In Byron’s case, that happened as various actors responded—Byron removed just enough criticism of the gov’t to make pirates unsure; pirates argued that the work was corrupt but hoped that it wouldn’t actually be deemed illegal.  London booksellers likewise studiously avoided common law courts that had the authority to determine that common-law copyright was property forever; repeated the claim only in equity courts where chancellor might be willing to indulge the premise and grant injunctions. Injunction is probabalistic device reflecting chancellor’s assumptions about the law, not the law.  Procedural device: a practice of hypothesis and imagination—determined the regulation of these imaginative works.
Dyer: Comparatively speaking, Byron didn’t modify his writings much from these concerns or worries over being prosecuted.  About the same time this was going on, John Hunt was indicted for publishing another work by Byron—possibility of third libel conviction/going to jail.
Chancellor is using prediction of law and rules of equity—other aspects of equity don’t come into play.  Publisher/author needs expert opinions about how this will play out.  Archives exist to study this: prosecutions for criminal libel involve opinions of AG when manuscripts are submitted to them for evaluation.  Often the answer is “clearly in point of law this is criminal libel but not a fit subject for prosecution.”  Resources; difficult to convince jury to convict; would have to talk too much about the Prince Regent’s personal life. The practicalities of suppressing speech!
Court of chancery wouldn’t enjoin a publication simply for being libelous.  What if you’re the author who owns the ©/the transferee—can you do that?  Eldon’s doctrine pulls the rug out from under that tactic—which people trying to suppress libel they’d disavowed actually did.  Byron tried the same thing with a 1809 defamatory poem where he later became friends with the target.
Christine Haight Farley: If you’re investigating policy impact, Byron is an outlier b/c he is an incredibly successful author, which means his strategies will be different. Different relation w/publisher; different ability to seek counsel before publishing; different strategies on reaching the market. What about the impact on the ordinary author?  Authors we’ve never heard of—what do their letters w/ publishers say?  [what a great question]
Q of doctrine is whether this text is a property or not, and won’t be if immoral/injurious.  Language of opinion is always about the intent of the author. Only barristers consulted in advance seem to read the work as a whole and consider its overall message; they look at meaning, but judge, prosecutor, and everyone else cited seem to be talking about what the author intended, including Eldon.
A: the intent standard here seems to mean an implied author: given what this text does, what would you understand the intent to be?  Ultimately he thinks it goes to the effects, but he needs to look at this in more detail—tied up with the part v. whole evaluation; Eldon is inconsistent on which you evaluate.
Unclean hands: usually A can’t get relief against B because A was bad to B—but in these cases unclean hands means “being bad to the public/public interest.”  Unclean hands doctrine is not used in the latter way during the period he’s studying, and first is used in this way in cases like this!
Other authors: May not be interested in strictly legal IP rights, though do try unofficial enforcement. But should consider which writers to look at—writers do have clear political agendas; needs to think more about who to look at: not sure who’s willing to be somewhat marginalized & know they’ll never have the reach of a Byron, but do want to have some IP rights.
Note that Byron does win here; it’s a story about the failure of law to suppress speech. The dissemination of this speech then changes the public.  Also difficulties in coordinating law with equity.
Jurisdictional Boundaries of Prior Use within Britain: An analysis of the House of Lords’ judgments in Roebuck v Stirling (1774) and Brown v Annandale (1842)
Barbara Henry (University of Hertfordshire)
Commentator | Eva Hemmungs Wirtén (Linköping University, Sweden)
Two cases, 60 years apart. Patents on improvements weren’t available in Roebuck, but were in Brown.  Received patent in Scotland (separate regime from England); litigated against alleged infringers. Ds cited public use in England prior to the date of the Scottish patent.  Patentee’s argument: Couldn’t rely on prior use in England to invalidate Scottish patent—innovation only had to be new in Scotland; court disagreed.  Concepts of center and periphery.
Paper concludes: these weren’t the clearest legal principles, the decision to continue the Roebuck precedent was sensible—considering improvements in transportation and communication made it harder to distinguish England and Scotland.  Single British patent was beginning to emerge; would be enshrined in law w/in 10 years of judgment in Brown.  Continuing significance of the cases?  Addressed key issues concerning courts in 18th c.—patents for improvements, prior use/novelty and jurisdictional boundaries; first inventor v. first importer; impact of Statute of Monopolies on patent; possibly trade secrets and industrial espionage.  Similar issues arise w/ European patents.  Are there materials that would tell the story differently than the court cases?
Henry: modern patent law isn’t her area of expertise, but knowing the past can help explain present concerns.  For countries developing their own systems, how existing systems developed can show some of the pitfalls.
Trade secrets: there’s discussion of “treacherous servants.” Not clear how big a role trade secrets played in this case.
Q: that phrase “treacherous servants” is ubiquitous in 19th century discourse on tech transfer. Any thoughts on that?
A: interestingly, the inventors here aren’t Scottish but English inventors who moved to Scotland. Industries are closely related to Watt and Bolton—probably not as bad as it might have been in © in terms of discrimination against outsiders.
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