Notice and Notice Failure at BU, panel 3

Pamela Samuelson – Notice Failures Arising from Copyright
Duration Rules
Agrees w/ other expressions of concern about notice failures
in copyright—here she focuses on notice failures related to the long duration
of copyrights.  More information about
work’s © status was available with fixed duration. Life plus models took over
for understandable reasons.  But then you
need lots more complexity, including means for determining the death of obscure
people—only 37 people have registered death dates with the CO.  (These are people who died.)
Extended collective licensing? Fair use is better. What
about tax incentives to devote work to public domain?  Promising idea.  Rights reversion: get more people to
terminate transfers and then, esp. for scholarly authors, dedicate it to public
domain or put it under a CC license. 
Institutional policies for open access, also a good thing. But how do we
get some sort of registry of when authors died so we can then at least try to
calculate their terms?  Not enough
incentive for any one institution, but possibly crowdsourcing. 
Extended collective licensing
Tun-Jen Chiang – Trolls and Orphans
Trolls: appear in patents after an investment has been
made.  Orphans: in ©–use would be valuable
but author can’t be found. Implication: not being able to find © owner is
itself problematic.  Holdup by patent
trolls is problematic because you make fewer investments in useful
technologies, though you can’t tell which specific patent holder will hold you
up.  Orphan: parent is permanently gone,
and gone for no specific reason.  If that’s
the situation, Copyright Office suggests that the solution is for the user to
search, and to create a registry of users that would facilitate search.  That could work if search costs are feasible,
which they probably aren’t.
But there are other solutions to holdup problems.  You could prevent ex post assertion of rights
through a liability rule standard. 
Laches as a solution to the orphan works problem—could work quite well
(if not for the SCt).
Commentators: David Olson: Real presence of a moral rights
approach reflected in life plus system. 
Instead of “keep working” it’s “author should be able to live off work
she did when she was 20,” not a utilitarian view.  As for “orphan works,” Chiang seems to want
to change the name—Loren suggested “hostage.” 
Dangerous works—bastard works?  Troll
For patents, the issue is not just surprise but lack of
deterrence.  Large competitor in the field
is constrained by mutually assured destruction. 
What’s the frequency w/which inventors who obtain patents do holdups?
Michael Meurer: We usually think that people in the industry
are problems when we think about standard setting organizations—Rambus, for
example.  But Chiang’s message is about
the language of orphan v. troll.  Need
more evidence of how language makes a difference, perhaps in the political
arena—arguments being made in policy arenas. 
(Orphans needing to be cared for by someone.)  Can we show how language makes a
difference?  (I wonder if the George
Lakoff/Frank Luntz line of political discourse/punditry can teach us something
about that.)
Both parties need to be involved in search: Chiang’s
message. Calculate where we should expect more and from which party. Similar to
questions of gatekeeper liability/ISPs. Who is in the best position to monitor?
Same Qs about responsibility for monitoring/matching is important in many areas
of the law.  Stolen art also provides another
Chiang criticizes Copyright Office’s putting burden of
search on user—they seem to be looking at this as a holdup/surprise problem,
though.  So somewhat sensitive to holdup
Bargaining: sometimes parties don’t show up to bargaining
directly b/c they’d like to push issue to legislature or executive. Google Book
Search, perhaps.  Sony’s issues with Digital
Audio Tape—© owners managed to push the issue into Congress. In Europe, pushed
into parliament and the result was a tax, both for photocopying and for videos.
Not clear whether this is more democratic or more corrupt.
Peggy Radin: Rhetorical capture—the word cybersquatting was
invented; took an asset that was unknown and allocated it to TM owners as soon
as it was “born.” So that was successful. Doesn’t like the word holdup because
that may just be the normal practice of competition/exploiting a resource that
I own that is valuable. Is it wrong to buy up land that I think will quickly
become valuable because of development? 
Isn’t that just savvy?
Chiang: I agree that labels matter.  Economic theory provides enough content to
what is wrong w/the behavior. Not simply buying up farmland. Buying up
farmland, knowing that someone else will be using it, not knowing that you own
Radin: why is that morally wrong?
A: after the investment has already been made by the third
party, who has assembled a bunch of different components. It doesn’t matter if
it’s morally wrong; it’s economically problematic.
Radin: but some of the things called holdup are just
distributional issues.
Meurer: Chiang’s paper discusses this—the economists who
came up with this are simply looking at contract difficulties where ex ante
complete contracting is difficult/impossible. The holdup notion, at least
before law profs got hands on it, had no moral judgments.
Radin: so let’s use the economist’s notion.  If we can’t get the efficient result because
of holdups, that’s one thing, but if we have other situations it’s another—becoming
confused in the public sphere.
Meurer: Chiang’s paper helps us moves in this direction: we
should be looking at behavior, not status. 
Bracha: usually two problems w/holdups: one of them is
surprise after sunk costs.  Another is
the necessity of a particular resource for a particular project that can’t be
designed around, and then it’s worse if there are many of them (stacking
Chiang: Is it a problem if we have uses which the owner is
not inclined to give permission even if you didn’t have surprise/info problems:
All rights allocations could be known and negotiations wouldn’t go through.  That’s not the problem we’re interested in at
this conference—it’s just an issue of allocation of rights.
Olson: You can always have trouble when you’re trying to
assemble resources—someone can decide to behave strategically.
Chiang: short-term rentals—no incentive to improve the
property even if that would be good for society.  That’s hold-up without surprise—if you
improve the property then your rent will increase.  That’s a different problem from the troll/orphan
problem he’s trying to name.
Olson: we’re talking about rent-seeking and that’s bad
because free market transactions require free exchange; rent-seeking is when
someone figures out how to extract money without giving something of equal value
to the buyer.
Radin: but all markets have rules—you are making assumptions
about what the rules are, and you should just make it explicit.
Olson: having you over a barrel: making you an offer that
you wouldn’t have taken if you’d been given the information beforehand.
Samuelson: Orphan works folks see the edge case as the
late-arriving author, but that’s not the main issue, which is that there are a
lot of culturally and historically valuable resources that are not being made
available, and you either really don’t know who the author is or really can’t
find them. It’s an institutional risk assessment. While there’s risk assessment
on the patent side too, want to put in the record that orphan works is not as
similar as Chiang’s paper suggests. 
There’s a dimension of the long term of © that also plays a role.
Patents will at least expire at some point, much faster than ©, especially
since we can’t easily know death dates.

Wendy Gordon: Cousin to the hold-up problem is lock-in. Many managers are
taught how to create lock-in—how to surprise their suppliers or customers or
other entities with relationships that in fact make it difficult for them to
switch to more efficient/desirable entities. 
Has potential for an independent ground of defense in IP suits, such as
in Oracle v. Google. 
Bone: If something’s an orphan work, then shouldn’t we just
treat it as in the public domain?  Why
spend all this energy?  Won’t impair
incentives to consider it in the public domain—if you don’t want work to be
orphaned, keep using it.
Samuelson: we could, as a policy matter.  There are true orphans but also concerns for
being respectful of ©.

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