Notre Dame Roundtable on Drassinower, Parts 2 & 3

Session II – The Work as Dialogue
An element in the book: The “work” is a Macguffin.  The the thing that holds our attention/draws
the narrative together while not necessarily having meaning in and of itself.
A book about concepts/conceptual framework.  Error to ask too much in doctrinal
solutions/payoffs/nuances of © on the ground. 
Complicated landscape of how works get created, not singular author/text.  Speech as part of community/co-creation.  Drassinower’s story is not set up to process
at the institutional level. 
What is the agency of the audience?  If it really is a dialogic process, then
there is a back and forth.  Book spends
most time on authorial side, less on audience. 
Also, materiality: material presence of the work is part of the
understanding of what’s going on with the work.
Intermediate step of audience is important b/c helps
understand whether second individual is speaking as an author or merely for an
author.  Multiple instances in which
intent is a bad standard for authorship: Prince’s deposition in Cariou;
post-hoc rationalizations. Audience is the way we assess authorship. 
Work for hire: is it in some way a fraud, if the audience
perceives the individual as author? 
Transfers issue: the “Cherry Ripe” case, where the photographer sells
the rights to the first phoot and is held to infringe his own work.
Compelled speech: someone who engaged in unauthorized
filesharing is in some sense speaking exactly as author intended.  Author didn’t intend to speak to those who
didn’t pay.  (Although that’s a weird way
to divide an audience—and author may well have intended to speak to those
people through radio play, etc.)  Is it
important that others know about it for the insult to the author—being treated
as a puppet?  May be the difference b/t
compelled association and compelled speech.
A and B may independently create the same work.  C gets permission from B to speak; has C
caused A to speak as well?  Ties into Qs
of whether attribution matters.  Replicas
of the old masters made in China: how do we think about their production and reception?
Parrot on the cover of the book: When parrots copy they don’t
speak for themselves—social behavior—a form of practice and engagement.  Not copyright-relevant. 
Equality paradigms: equal treatment may result in a denial
of equal opportunities—e.g., failure to accommodate pregnant or nursing
women.  Entitled to certain needs in
order to facilitate opportunities. 
Denial can be a form of denigration or domination.  As compared to antidiscrimination,
antidominance is about subjugation, which compelled speech could be part of.
Deliberate freedoms/capabilities approach: equality
deprivation is assessed not by whether other people have them but what is a
denial of dignity/autonomy.  Drassinower
relies on equal dignity/substantive equality—fuller connection to dominance
would be useful. He says dominance over another’s work is piracy; personal/private
engagement w/ a work is not dominance and fulfills the work’s destiny.  Equal dignity seems to require
nonsubordination, but being enjoined from speaking another’s words is a form of
control—lawful mutual restraint.
Independent creation and the primacy of the public domain
are underneath the explanation of legitimate restraint.  We level up: freedom to, not freedom
from.  If copyright as balance is war,
than equal dignity is peace: the quality you’re striving for as a person.  Necessary consequence is no derivative works
right: that would impose an impermissible hierarchy of authors.
Interference w/work is not so much inequality but unfreedom.
So we’re back to the freedom from/freedom to divide.
© is a world of sequential innovation; must trade off ex
post and ex ante interests.  Some
external justification we’re trying to maximize?  Joint productivity?  Or a rights-based account as here, a
reciprocal relationship between first and second-comers.
Instrumentalism provides a weak normative basis at best for ©;
impoverished account of progress/the thing we’re supposed to be treating as a
maximand. You don’t get an understanding of progress solely through observing
the world; you need to have an idea of what it is.
More broadly, efficiency is a weak normative justification
for anything. 
Justify v. specify: lawyers deal with specification. How do
we tradeoff between Cariou’s rights and Prince’s?  Rights-based theories have little to say
about this.  P. 211: discussion of Pruneyard—need to assess gravity of
impairment of rights to each.  Sprigman
thinks you can’t do that with anything internal to the rights based account;
you need an external referent.  You are not
judging impairment of right but deciding to shape the right, using
utilitarianism.  Like Rawls, which shapes
rights according to the sum of a bunch of utility calculations in the original
position (how well off am I?).
Maybe this cafeteria model is ok: deontic model providing broad
outer constraints; then specifying details of the law with an external
referent, like here a deeper concept of progress, then treat that as a
maximand.  This may be difficult,
contestable, often imprecise, but that’s about where we are.
Gordon: still puzzled about why we want to allow people to
control the way their speech is used in the world.  For example: pro-choice book of interviews
w/women who’s had abortions or given a baby up for adoption; anti-choice author
wants to use these accounts. 
Drassinower: that’s fair use. The interest I try to describe
doesn’t track an author’s desires or wants. 
You can’t publish on condition that your ideas aren’t discussed.
Madison: The Chinese painters in Dafen are using the source
work as a work.  Audiences in hotel rooms
know it’s not an original. What is the nature of their engagement?
Drassinower: Mousetrap and poem both require skill; but the
types are different. Just as translators do something deeply sophisticated, so
do Dafen’s copiers, but that doesn’t make them authors. We can quibble about
whether activity is located in right place in our distinction, but the whole
endeavor depends on us being able to make the distinction.
Rebecca Curtin: translation. Consider Seamus Heaney’s
translation of Beowulf: what he does is absolutely a translation, but also uses
a lot of Irish words, feminized images; his project was to undermine that
nationalist epic of England.  There is
clearly compelled speech there if we assume the monk wouldn’t sign on to this
project. But Heaney is also communicating using this other speech.
Drassinower: one answer is to call him not a
translator.  When to call someone a
translator is the question.  Don’t have
to have an answer in any particular case—just a translator can’t be an author
b/c she is translating into another medium. There are factual qs about whether
a particular instance is transformative. 
He wants to shape how we frame the Q.
Underneath all utilitarianism is a rights-based theory, b/c
you are distinguishing persons (who have utility) from other animals (which can
also have utility/experience)—fundamentally rights theories say that there is a
difference b/t persons and things.
[stepped out for lunch]
1:00 p.m.-­2:30 p.m.  Session III
Speech vs. Value
[came in late from lunch] Is the proprietary right idea as
hostile to the author as the book believes?
           Peter DiCola
Utilitarian maximand is unclear: works, creativity, number
of creative workers/authors. Sympathetic to the idea that utilitarianism and
deontological approaches are in eternal death struggle that no one will win.
Both are different sides of the same whole: instances in which the good is best
described as maximizing value and others in which it is best described as a
deontological commitment.  What if we
picked, including between subjective well-being and preference maximization, a
huge dispute in utilitarianism.  Does
that distinction have anything to do w/the emptiness of the version of
utilitarianism at work in © balancing?
A good (in utilitarian terms) could be a process, not a
commodity.  Can perhaps help understand
why liberty/autonomy are valuable.
Drassinower says: Economists are saying: legal lines like
originality are proxies to find value (or value that should be privatized?)
despite Type I and Type II errors.  Drassinower
finds this aesthetically unsatisfying, which he gets—doesn’t really seem to
explain the doctrines in detail. 
Systemic analysis is required: one user taping one show is
not the issue. It’s a question of how the industries will be organized and the
effects of these behaviors on a large, repeated but unorganized scale.  Is an implicit assumption of the methodology
atomistic, assuming a core dispute between one author and one user?  Is that necessary to the approach?
Quite useful to show how the models ignore the infinite
chain of creators we see in reality—a better explanation of the public domain
than rather arbitrarily picking one author and calling them “first” and another
Economist: Drassinower challenges his life’s work.
Deriv work right and protection for computer programs: not
consistent w/theory/should be excluded from ©: why were these data points
excluded from your “looking at the world” method.  What if the plaintiff didn’t know about the
copying—is there a puppetry problem? 
What about subconscious copying—it seems that’s still making the
plaintiff the puppet, just not on purpose.
Other doctrines that aren’t explained: why have criminal
liability (patent doesn’t)?  Economics
can offer a more sensible reason (less of a problem with fly-by-night patent
infringement), as can political economy (lobbying).
Other doctrines can be explained instrumentally: limited
times.  Realms that neither patent nor
copyright covers, left to the workings of the market—why not?  Patent has no independent creation doctrine
for economically rational reasons—independent invention is common and allowing
all would dissipate the benefits/destroy the incentives, while truly
exact/substitutable independent creation isn’t; Ants and Bugs are not
perfect substitutes.
Length of © didn’t really matter until we got the internet,
which allowed out of print books to have a second life.  Low protectionism got a boost from online
empirics.  Will we get another 20-year
term extension before 2018? Empirical/instrumental approach has opportunities
to influence policy now.
The wrong of copying: he doesn’t see the moral wrong as
compelled speech, but as misrepresentation/misattribution.  He wants lots of copying, but he wants the
credit for being right.
Likes starting w/Feist
to show that an economic perspective can’t explain what © is. 
Community/self-constituting nature of authorship helps
explain the difference between compelling commercial speech (ok) and compelled
political speech (not ok).  But
corporations have all sorts of © ownership—here they’re given full rights,
w/minor differences for WFH.  Does that
have to go under Drassinower’s theory? 
You need to explain 90% of © with a doctrinalist account; if you can’t
explain most of it, then something else is at stake.
Likewise, book may not explain low required level of
originality: does writing the shampoo narrative on the bottle embody the
communication of a speaking being to another? 
Sprigman: tractability of a problem is important, but not
the only thing. The best minds of their generations elaborated Ptolemaic
astronomy, as we’ve wasted the best minds on constitutional law (hey!). 
Drassinower: explicitly metaphorical agenda.  Try to think about different metaphors for ©.
It may be that compelled speech is very different in the First Amendment
context, but the speech trope was helpful in talking about the public domain as
something immanent/inherent in ©.
In terms of transfers: can see it as the granting of a
right, though it’s true he hasn’t provided a theory of how that takes
place.  Contract doesn’t have to mean
transfers of property/commodities; can be licenses.
Thinks he has captured most of © in making his critique—an immanent
critique: Feist attempts to carve out
a specific domain for © from the sphere of value.  It’s very hard to have a non-negotiable
public domain once you start calculating balance—just b/c we’re “winning” more
user rights cases now doesn’t mean that there’s a solid foundation.
It’s true that lay concept of copying isn’t necessarily
compelled speech—but it’s also not “you’re minimizing my welfare!”
Mark McKenna: Old unfair competition cases are rife with
natural law concepts, but also make clear that property is not in the mark as
such, but in the relation. You may be identifying property as a thingification,
focused on the work as such, but the property interest could be defined in a
similar way—not the work.  Is there
anything lost by a sufficiently careful definition of the property interest—an interest
in a use rather than an easement or something like that. 
Drassinower: committed to the idea that authors speak, they
don’t own.  The proprietary language
misdescribes the relation. 
Performances/works of authorship/expression—they aren’t property
concepts.  Yeats: Vehicles of meaning can’t
be owned by someone other than the thinker.
Madison: there’s a slippage in the dialogue about legal
categories of property/things, then the phenomenal character of what actually
happens when author and audience engage in some way. Requires a lot of nuance
to keep track of which level you’re operating at.
Samuelson: author’s perspective: this is mine is not just
about this is my speech, for some authors. 
Self-conception as autonomous person may require concept of ownership.
Sprigman: Peggy Radin would say that property isn’t an
instrumentalist concept. 
Drassinower: I don’t think that the idea that a work is
property is consistent with the idea that an identical copy, in some
circumstances, is not property.  The act
of producing the thing.
McKenna: TM is that way—one mark isn’t property in a
completely different field/use.
Drassinower: speech discourse/property discourse are
different, even as rights discourses. 
McKenna: property isn’t inevitably that: property law has
been warped, though.  The history you’re
working with is the same period I worked with in TM history.  So he doesn’t think a lot rides on the
property distinction if you have a more nuanced sense of what property was that
ws true of the courts that developed the TM concept. 
Drassinower: I can’t reject that easily the idea that
property requires thingification. 
Silbey: First Amendment—there are so many parts of the 1A
consistent w/Drassinower’s theory, especially early 1A doctrine before
distortion by corporate speech/corporate personhood.  Speech as attribute of dignity and
citizenship in public sphere as well
as just political sphere. More to say about how the 1A imagines the public
domain as primary/radically nonfungible. 
As free speech maximalism has (supposedly) taken over the SCt, the
public domain is shrinking!  Creators
believe in right of property/radical nonfungibility of free speech: this is an
inconsistency for them but really profoundly felt.  Low level of originality is an easy place to
resolve the inconsistency, though—creators don’t think the shampoo bottle text
should qualify.
Garnett: it’s totally ok to be a thing person (property is a
thing) instead of a bundle person in property. Maybe you can’t just make up
relational rights and call them property; maybe that doesn’t make sense of what’s
going on.
Madison: there’s progressive pushback even on the thing
side.  It’s possible to use
thingification to achieve certain goals, but intuitively Drassinower doesn’t
feel it.
Balganesh: To Kant, exclusion was critical, so it’s
understandable from a Kantian.

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