Notre Dame Roundtable on Drassinower, part 1

Notre Dame Roundtable, What’s Wrong with Copying? (Abraham
Drassinower’s book)
Sponsored by the Program on Law and Market Behavior
8:40 a.m.-­10:15 a.m. Session I
Methodology and Implications
           Mark Rose
Historical approach: rights to manuscript or to the “copy,”
an intangible thing.  Drassinower
reinterprets Lord Mansfield’s approach as distinguishing between the manuscript
and the copy, which makes him in some sense a supporter of infinite common-law
copyright.  But there remains an
ambiguity in the old term “copy”—used to refer to a right rather than a thing,
but also to a thing—this ambiguity persists into the 20th century.  But Drassinower is telling a philosophical
story, not a historical one; he doesn’t need to understand things the way that
historical figures did.
Elegant and compelling. 
Focus here on clusters of issues: Formalism v. realism.  Identify essential characteristics of a
topic, then develop coherent approach. 
Drassinower attempts this for copyright law/originality.  Foundational/middle-level principles.  How then do you determine the essential
characteristics of copyright?  Compare to
(claimed) empiricism of American approaches—knowledge is only ever discernible
through sense experiences, rather than rationalism’s reasoned principles which
claim they’re the only way of making sense of the world, though incapable of
being empirically tested.  There is a
spectrum between empiricism and faith, and Drassinower shows how you can do
that.  (Compare Lemley on faith-basedIP.)
Internal challenges to his construction of rationality: (1)
Institutional origin. Most efforts at internal intelligibility have been judicial/common
law.  Common law isn’t “made” but “exists.”
Maybe a legal fiction, but courts conceive of themselves as finding what
immanently existed. Not clearly so with copyright.  Does the constraint of intelligibility carry
over when the insitutional creator may not have intended the intelligibility
Drassinower searches for?  (2) Static v.
dynamic account of rationality: Drassinower seems to take rationality as
existing cross-time. Within common law, some scholars suggest radical semantic
evolution has occurred: concepts originally constructed the theory, but
consequentialism takes over and the underlying semantics morph. Moral ideal
comes through as cost-benefit analysis. Why not ©?  Originality may have begun with equal dignity
of authorship, but why not evolution to a value-based conception?  (3) Compatibility: if we have © to promote
authorship, institutional design features might value authorship too or might
have instrumentalism in the granular features.
Rule of law that says no liability unless there’s a
connection to the deep purposes of this law—result: unpredictability
inconsistent w/ needs of notice that make law fair. It’s a consequential claim,
but if you were behind the veil of ignorance, you should figure out if you want
perfect fit/expensive system or normal legal budget/some lack of fit.  Most people would choose the latter.
Still: loves the book! The speakers we most want to distort
the message of are those in power—speak in their own language. If © is about
the ability to freeze one’s own language, no reason to accept it—right of
integrity is an immoral right from
the perspective of American iconoclasm. If we took seriously the notion the law
should support preservation of speech in unchanged form, trademark would also
be implicated, but Drassinower says that’s not expression.  Difficulty seeing shift to plaintiff’s
expressive integrity as a value.
Can use Drassinower-like analysis in a way that doesn’t rest
on desirability of freezing the speech. 
Pay attention to whether defendant copied/performed plaintiff’s
expression—it’s not a question of physical copying, but of duplication of
speech for same purposes. Proximate cause/negligence analogy: P must show that
the harm is foreseeable; proximate cause serves the function of relieving D
from liability resulting from harm unrelated to the reason for the rule.  Example of a musical composition reused as
wallpaper because of the visual beauty of the way the notes are placed on the
paper.  Drassinower would say: no
liability; Gordon would say: is protection worth it in light of uncertainty and
other practical issues?
What he thought of as limitations and exceptions in
Drassinower’s formulation look like internal limits, or not even limits at all—natural
consequence of what copyright is. Not
just a theory of fair use, but a theory of ©. 
A personhood right specific to the author against
publication of previously unpublished work: the core notion of
wrongfulness.  Even if the information is
already out there, the violation of autonomy still seems to apply in cases of
non-use like Google indexing that Drassinower would exclude as purely
How does the limited term match up with the idea of a
personhood right? Why should copyright in unpublished works ever end, if this
is not just a privacy interest. 
Drassinower argues that published/unpublished works shouldn’t be
distinguished in terms of whether further publication is offensive to the
author’s interest. 
Glynn Lunney: Book talks about equality of speakers. Not always
clear whether that means equality of opportunity or outcome. Less gifted may
wish to copy from more gifted (I wrote a bit about this in Copy This Essay).  Why not fixation
as the key doctrine? 
Abraham Drassinower: Self-understanding as empirical: what
is it that ©/authorship does?  Then its
logic unfolds.  Central claim: copyright
represents a value of originality—there’s a great deal of black-letter law on
that point.  Just finding it there, not
coming up with it.  There’s no way to get
a theory of © from a theory that © works have value—you need to distinguish
them from other things that have value, like patent.  Distinction between tangible and intangible
doesn’t get you there.  Facts aren’t
tangible, and they aren’t subject to © either.
Amy Kapyczinski (I think; I’m not physically present):
something to the desire not to associate with someone else who republishes your
words, even if they were published—authors get very upset; feels like forced
Gordon: the label “this is not authorized” may make a
difference—your problem might be taken care of—this disclaimer possibility
makes the compelled speech argument less apposite.
Q: no, I’d still be irked, but maybe it would take away some
of her anger.
Chris Sprigman: Empiricism usually requires a hypothesis,
which is informed by theory.  It’s not the
opposite of theory.  Book says © is
drowning in empiricism, but there are really only puddles. We actually have a
flood of crap empiricism.  People have
ideas, Chicago 1.0 ideas, which aren’t empirical but are basic rational choice
economics, and they don’t think it is important to see if that makes sense in
the real world—truncated empiricism. That’s what Lemley seems to be reacting to
more than anything else in his faith-based paper.  Drassinower is also reacting to that, and
rightly so.
Mike Madison: Larry Lessig wrote about compelled speech
about 15 years ago; never got worked out. 
Patent students tend to be gobsmacked by abstraction and ambiguity of ©
and TM.  One of the things he tells them
is that patent abstracts from actual human experience pretty quickly to design
a legal system around inventive practice and scientific communities: invention
is artificially created legal object. © and TM have closer proximity to actual
day to day experience of knowledge, and that’s ambiguous and evolving; layering
law as closely as we try to do over it with TM and © is difficult and explains
some limits of method of abstracting stories from observed doctrinal outcomes;
avoids some of the messy questions/evidence.
Drassinower: Trying to understand a practice to make it more
coherent—given how messy the law is, the fact of being able to tell a story
that is recognizable as reaching the fundamentals is itself amazing.  Don’t have to account for every piece of
mess; but also don’t want to reduce history to theory. 
RT: compelled speech discussion—authors here sound just like
commercial speakers protesting against mandatory disclosures.  Possible lesson: Can have reasons for
allowing compelled speech related to the overall system of speech
(informational content with commercial speech or second speaker’s expressive
interests with ©) or reasons related to the overall system of government
(health and safety for commercial speech, antitrust perhaps for ©/compulsory
Balganesh: Rationalism is not inconsistent with saying “I’m
just trying to make sense of the world.” 
That doesn’t make you an empiricist. 
You aren’t looking for falsifiable experiments; any piece of evidence
wouldn’t show you are mistaken.
Drassinower: the world could show I was mistaken. 
Balganesh: You’re not willing to abandon the idea that
infringement is about compelled speech.
Drassinower: making sense of something that exists.
Balganesh: interpretive lens, not going to change b/c of
outlying (in your view) examples/instances.
Drassinower: methodological assumption is that © does have a
distinctive story to be told.
Balganesh: that’s what makes you a committed rationalist.
Silbey: there’s a difference b/t how empiricism proves
things and what different disciplines count as proof—history, literature,
economics—be clear about one v. another. 
Drassinower says this is a disciplinary investigation within a
philosophical/legal tradition. 
Empiricism is a harder question. 
Drassinower: the world I investigate has principles that can
be found—not all in my head.  Resist
concept of “rationalist” b/c doesn’t believe I’m imposing principles from my
Sprigman: the stakes are to distinguish this from the bad
empiricism we’re drowning in.  Where is
the idea that authorship is originality from?
Pam Samuelson: what is essential about ©: How about
transfers?  Transfers of © happen all the
time, but Drassinower’s book doesn’t really address that, though transfers
matter quite a bit to authors.  Part of
the reason why questions have arisen about whether you’re rationalist or
empiricist, b/c empiricist would notice that transfers are part of the system.
Drassinower: nothing I say is inconsistent w/ transfers—just
a mechanism authors may use.  Selling
their speech.  There should be limits on
Samuelson: requiring signed writings speaks to the dignity
of authorship, but other aspects are more difficult to account for if compelled
speech is the only issue.
Drassinower: focused on what it is we transfer when we
transfer ©. Someone else could focus on market relations, but that’s not a
difference b/t rationalism and empiricism.

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