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 was
should 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
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
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,
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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