WIPIP session 6: IP Theory

Session 6 IP Theory 3
BJ Ard, More Property-Like than Property: The Asymmetry of
Remedies in Tangible and Intellectual Property
Real property remedies are less “property-like” than IP
remedies.  Property v. liability rules.
Real property often much more forgiving of unwitting trespasser than IP
is.  Putting a permanent structure
accidentally on a neighbor’s land.  If
you’re unwitting, court is more likely to enforce a liability rule: require you
to compensate your neighbor for lost land: involuntary sale.  In ©, by contrast, subjective innocence is
unlikely to entitle you to the innocent infringer defense.  In patent, you could do a good faith search
and still miss; though you might be spared punitive damages, an injunction can
still likely issue.  Adverse possession:
intentional trespass may become nonactionable. 
It seems backwards that “property” rules would
be more prevalent in IP.  Proponents of
right to exclude: added security provides incentives to invest; remedies force
would-be takers to negotiate in the market; property rules can even secure
personality rights by protecting non-economic value invested in certain forms
of property. Nonetheless, tangible property law recognizes strong
justifications to depart.  Curious b/c
infringements in IP are often more socially efficient than the equivalent
taking in real property, because creativity is often iterative and builds upon
previous work.  In addition, nonrivalry
means that there’s no deprivation of use value as there is in real property
trespass.  Boundaries of IP are
communicated relatively poorly relative to boundaries of tangible property, so
unwitting infringers are more likely and harder to deter because they don’t
know.  Incumbent on property rule proponents
to justify.
Pro-propertization rhetoric is missing context—many
argue that IP should be enforced by injunctive remedies/property rule
regularly.  Against the history of real
property remedies, it’s weird to derive rules for IP based on abstract theories
of property.
Questioning IP’s current strategy of dealing
with these excesses. Congress occasionally acknowledges the problem, but its
go-to fix is piecemeal solutions—excused specific kinds of literal copying;
DMCA safe harbors.  Liability rules in
the form of compulsory/statutory licenses where transaction costs of property
rule seem unworkable. Startups, consumers, others who lack political voice can’t
get the exceptions they need.
Sheff: How does eBay
play into all this, if the quintessential property rule is injunction and eBay is decimating injunctions?
A: if courts apply it consistently, it goes a substantial
way to remedying this disparity (except for statutory damages). Patent comes
close to liability, but whether that works in practice comes down to
technicalities of calculation, which can sometimes be supercompensatory.
Calboli: Caps on infringement damages exist across
jurisdictions.  These are countries with
strong property rhetoric/traditions. Is the problem the property theory or the
structure of remedies?
A: You see in some jurisdictions a better sense of proportionality
in the remedies, missing in American context. 
If property is a right to exclude, that’s tightly linked to injunctive
A: Similar to Fagundes and Michael
—the wisdom of limits built into real property; good to build them
into IP.  Goold: the problem is that fair
use doesn’t have enough flexibility to deal with all the issues you might want in
a liability regime.  Not much familiarity
with TM (which might mean the paper should specify about ©/patent versus TM).
Q: Laches, estoppel as relating to adverse possession—which usually
requires open & notorious use.  Also,
there’s a reason for stronger remedies in patent b/c patent is temporally
limited as real property is not.
A: Could more equitable discretion in remedies help
this?  Petrella is one thing he worries about—no laches in ©. 
Tonya Evans, Reclaiming Copyright in the Age of Celebrity
Loan-Outs & Other Gratuitous Transfers
Intersection of property succession laws and ©, specifically
testamentary freedom v. right of statutory heir to terminate author’s transfers
during lifetime, specifically to an author-controlled, author-benefiting
vehicle.  Thesis: such transfers should
be treated equally; the latter should also not be subject to termination by
statutory heirs.  Apparently unintended
disparity between non-probate assets and probate assets, and the solution is to
except non-probate assets from termination rights inherited by heirs.  (So, to disinherit your heirs from your
literary estate, you have to hang on to your copyrights until death.)
Termination may be effected notwithstanding any agreement to
the contrary.  Loretta Lynn, Tom Petty,
Village People, Bruce Springsteen have successfully terminated, having survived
long enough. But what happens when an author passes away before the window
opens?  A small subset of heirs can
terminate.  Ray Charles: created a
private foundation funded solely by his royalties, designated sole heir in his
will.  His 12 kids got irrevocable trusts
after they waived any further right to his estate.  After he died, 7 children promptly served
notices of termination.
Current law includes gratuitous transfers made by the author
to a wholly controlled loan-out company, self-settled trust, private foundation
or similar will substitute.  Sometimes
they create future works as WFH for the trust/foundation, but will still want
to transfer existing works/rights to royalties. 
Useful for tax, estate planning, privacy—probated wills are public.  Unintended consequence: not honoring testator’s
well-planned intent.
Testamentary freedom: how do we identify what things might
be accepted, given the problem of the industry creating wiggle room against
Congress’ intent.  Solution: certain
gratuitous author transfers in the same way that wills are treated, exemption
from termination of transfers. A lot of artists transfer assets into their own
music publishing company; a critical means of asset protection along with
loan-out companies—financial/tax benefits to setting up that way.
RT: Really interesting project of evident practical
significance.  The industry evasion
concern is what jumps out at me: how should a gratuitous transfer be defined?  Can a proper definition do the necessary
A: “author controlled, author-benefiting”—focused on that,
with concrete examples, is a good start.
Q: Entertainment label could work with that.  Are we more worried about transfers close to
the initial license period?
Ard: you’re concerned with the economic consequences of
interference w/Ray Charles’ intent. Is there an expressive component?  Marvin Gaye might have wanted a specific
approach to claims about copyright infringement that would be frustrated by the
A: Yes, that’s a primary concern.  The problem occurs b/c of financial/tax
issues, but as a property professor I’m concerned with parity for the treatment
of non-probate and probate assets.
Q: is there anything
courts can do if Congress won’t act?
A: will try to give some guidance to courts: w/Ray Charles
Foundation case, the court found that the Foundation had standing to fight
termination, but much remains to be decided. Heirs that agreed to do something
= doesn’t matter given the statutory language. 
[Maybe that should mean or be amended to mean notwithstanding any
agreement to the contrary before the author’s death.]
Betsy Rosenblatt, Belonging as Intellectual Creation: What
are we creating when we engage in creative endeavors?  First, stuff, the thing law has been most
concerned with—works, marks, inventions. 
But other things—communities—aren’t well served by incentives for
creation of stuff. But “progress” could embrace harder to quantify things like
human flourishing.  Money isn’t
everything for everyone.  One possible
creation of intellectual endeavor is a sense of belonging, and this can factor
into IP law and policy as we go forward. 
Belonging: personally and contextually mediated emotion felt
when people feel connected w/group, values in harmony w/group, etc. Basic human
need & value.  Vital component of
mental health.  One of the few universals
across cultures.  Strongly tied to
whether people find their lives to be meaningful.  IQ, motivation, physical health, life
expectancy can all be affected.  Ability to
participate in creative decisionmaking + reward, which reward is rarely
remunerative—being recognized/acknowledged as member of community, or
experiencing status, success, sense of accomplishment.  Synergy between reward and trust;
gatekeepers/barriers to entry can promote belonging w/in and inhibit w/out.
Creative communities are well-suited to developing senses of
belonging: unite people; opportunities for sense of belonging; opportunities
for status/recognition; if there are shared norms/trust that promotes belonging
even more.  Belonging is one of the
things that creative communities create. 
Amateur and professional.  Professional
artists often value sense of belonging from creating in ways stronger or
synergistic w/professional goals.  Lady
Gaga & her fans both get a sense of belonging from sharing the creation.
Law can promote or undermine belonging.  You can make it harder for people to be
recognized for their work.  I think WFH
may be a terrible idea for belonging; but maybe that’s not so if people even
within corporate communities can develop a sense of belonging based on other
factors.  Formal law can break
down/disrupt communities’ common norms/governance systems.  When we privilege creation by firms instead
of innovation by innovation in WFH, §1201, TM overreach, lack of experimental
use exception in patent—those things likely undermine belonging by discouraging
creative endeavor by individuals; firms may or may not choose to promote belonging
within themselves.
Adds an axis to our understanding of why we may want certain
IP rules. When we regulate away communities, we may be doing harm.  Need law to regulate among groups, but maybe
not so much w/in groups.
Q: Individual creation focus is quixotic—how does individual
creation turn into group creation?
A: The kind of belonging I’m talking about is situating
oneself w/in a creative community. Corporations can’t experience belonging, but
people can.  There is group creation, but
our law doesn’t account well for that.
RT: what if belonging is so strong people make it up no
matter what?  Slavery, prisons.  Then the reason for protecting belonging
would be more dignity-based than utilitarian.
A: we shouldn’t be trying to undermine it b/c it has benefit
in itself—it’s something that people need/seek out—don’t need to incentivize
it, just need not to harm it.
Q: Privacy literature has a lot about belonging.  Is belonging dependent on exclusion?
A: I think it doesn’t require exclusion, but empiricial
literature is internally contradictory.
Q: what if oppression brings people together as “pirates”
Jeremy Sheff, Progress for Future Persons
Normative commitments/debates that underlie our choices
about creativity policy: philosophical underpinnings.  Future persons: people who may exist in the future
but don’t right now. When we decide on certain policies, we have to decide
whether and how to account for those future people.  But for earlier authors, would we have
Shakespeare?  Would we have Romeo & Juliet?  He probably would have written something else—but
it’s not clear it makes our world better or worse—a problem of counterfactual
valuation. How should we think about these futures when we account for the
lives they will live/who they will be? 
What’s the moral implication of the non-identity problem—that if your
parents hadn’t gotten together, you wouldn’t be here and it’s not clear that we
wrong anyone by failing to bring them into existence, or by bringing into
existence someone whose life is worse than the life of another person we could
have brought into existence instead.
Economic response: count future lives, but discount them
according to some function; but that means welfare of future generations
asymptotically approaches zero very quickly. That seems morally troubling:
spend $1 now to save a billion lives later. 
Response in environmental law discussions: but it deals w/rights and
norms.  It’s not clear it makes sense
unless we’re talking about whether human life will be at all possible, v.
choosing among different types of suffering to invest in preventing.  Theory may be no help; we are indulging our
own normative commitments, and that’s ok. It may be inescapable; but then it’s
important to design social institutions to bring together disagreements and decide.
The future has no vote/can’t bargain with us, so we need a moral commitment to
an other-regarding view of the future.

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