WIPIP, part 3

Carys J. Craig, Relying on (User) Rights-Talk: On Copyright Limits
and Rhetorical Risks
Many ways to limit ©; here focusing on defenses/exceptions,
the ideal type of which is fair use. If our goal is to constrain ©, what should
we be calling these things?  Not a
doctrinal Q as such, but a critical theoretical inquiry—a strategic concern in
Canada and internationally.
Semantics isn’t all. 
There is confusion about the ontology of the nature of “limits,” “exceptions,”
“defenses, “user rights”—how we conceptualize user privileges or freedoms has a
direct bearing on how we define lawful uses w/r/t availability; scope; burden
of proof; conditionality; effectiveness, etc. 
Logic of the reasoning: nothing short of “user right” can trump
proprietary rights of the owner. But will that necessarily serve the interests
of the public or those who hope to constrain ©’s excesses?  Double-edged sword.  Natural rights or individual rights based
claims for © inevitably lead to broader © and undermining public interest—ever-increasing
pool of creations; increasingly restrictive interpretations of defenses.
Canada: due limits to authors’ rights come from users’
rights in fair dealing.  Must not be
interpreted restrictively; user rights are not just loopholes. Necessary for
fairness & balance.  Canadian SCt has
reiterated that it’s serious a few times. 
Int’l implications: Israeli courts had to figure out whether
move to fair use was a move to user right; SCt first said simply a defense, not
a user right, but 2 subsequent cases referred to it as “right.”
US: Patterson & Lindberg, 1999, © as a law of user’s
rights based on 1A.  A few lower court
cases arguing that it is a right granted by the Copyright Act, not merely an
affirmative defense.  But bound by SCt to
apply it as a defense.  Outliers; the
affirmative defense version is the accepted one, dissolved into external
individual rights like freedom of speech.
Int’l treatises still use “limits” and “permitted
exceptions,” even in the Marrakesh treaty which is the first to require
exceptions. Still a lot of mobilization around user rights.
What’s wrong with rights? Metaphorical balancing acts.
Commensurate weight with creators as considerations to be traded off; zero sum
approach.  All interests reduced and
traded off with one another.  Turn into
CLS: they’re just a legal fiction. Critique of the critique: critical race
theorists, who say that they can be useful legal fictions & we should wield
them anyway for our own benefit.
Can cause us to overlook social values, public policy
purposes that should be animating discourse about where the limits of © rely.
We might inadvertently reinforce rights rhetoric in the © domain—it’s hard say “use
rights” for users and then say “use utility” when authors make their rights
claims.
RT: Rights talk literature, e.g., Mary Ann Glendon—an interesting
debate on the right over what IP is and whether it’s a right; Julie Cohen:
rights talk in privacy v. ©.  I end up
mostly rejecting “The master’s tools will never end up dismantling the master’s
house” because it’s not very easy to dismantle the master’s house without them.
Buccafusco: maybe differently useful/harmful in different
contexts?  Public, legislature, judicial
systems?
A: Certainly for critical race scholars—dual consciousness,
where we use them with people who talk rights talk, but we should be aware that
we’re donning that mask & understand ourselves that’s just a game. But we
can’t separate out audiences; rights have a way of becoming real, making it
harder to talk about the values that inform them.
Lunney: more historical reasons on why users’ rights are
popular at this point in time?  [Possibly
Jessica Litman’s work on expansion of ©?] 
Certain desperation in responses to ©’s excesses.  Are we trapping ourselves into something that
will turn on us?  [Consider Jack Balkin’s
concept of ideological drift in this regard.]
A: theory of what © is in Canada—what caused that?  Has to do with tech change, networking of
users, state of © reform, and particular political activists like Michael Geist
mobilizing a user community base.  Politics
of when rights emerge as claims, as argued by Duncan Kennedy: group starts to
recognizes itself as a group in a positive and not just negative way and
formulates a rights claim to be neutral and apolitical.
Said: People who aren’t aware of rights won’t enforce—knowing
that one is part of a group is a privilege.
Martin Skladany, Proposals to Reduce the Harm of Excessive Copyright
Protection That Are Immune to Big Copyright’s Influence
One possibility: Creating a tech union not to argue for
better pay but to argue that Google’s policies on privacy should be different—a
political organization aimed at its boss. 
Do we have any incentives to reduce consumption or increase creation
that don’t involve getting stuff via Hollywood? 
Collective funds to get more revenue into the pockets of artists—a hedge
fund for artists.  Sign a contract
saying, if at any point in next 30 years, they’re called on to deliver 30
pieces of art to the fund, they’ll do so; they’ll only be called on to do so if
they become famous. A small way to chip away against the harms © is
creating.  Not all the ideas are
attacking overconsumption/undercreation; other ideas attack orphan works
problem; other ideas attack low pay for artists.
Most of what we overconsume today has neurological component
explaining why we overconsume—TV’s attentional inertia; online use, various
rewards.
Rosenblatt: Challenge the underlying assumption that
consuming and producing are mutually exclusive—there’s more creative output,
and more high quality output, now than there ever has been before.  Nor is your underlying assumption that more
money à
more creation necessarily true, or that more punishment for noncreation would
create more creation. People don’t like to be compelled to create stuff, in the
long run. 
Skladany: on average that’s not what we’re
watching/consuming.  Not worried about
productive consumers; the prototypical scenario is someone who watches TV and does
not create.  That’s not healthy.
Rosenblatt: maybe he needs more inspiration, and not less Hollywood.
Skladany: © isn’t the main reason; we should be funding lots
of arts education.
Said: would it matter if people were watching 10 hours of “news”
a day?
Skladany: what’s the value of 10 hours a day? Would you want
a 5-year-old watching like that?  Let’s
get rid of lots of © and see where the chips fall.
Buccafusco: what you’re saying is that the general
assumption about consumption and creation is backwards—that consumption in ©,
which we normally treat as leisure, which we usually attempt to maximize, is
bad at least over some tipping point. 
And creation, which is labor, which we typically want to minimize, is
good.  You can make these arguments but
you have to say why—the history of © has been going in another direction, which
is to try to convince people to labor to create © works with the reward of ©.  We spend a lot of time trying to figure out
the appropriate amount of consumption of calories; if you eat too much or too
little you die earlier and can’t eat later; there might be some amount of
consumption of entertainment that’s bad, but what is it?
Skladany: Not a liberal but a perfectionist.  I’m not forcing anyone to create, but if you
don’t create in your life, something is missing.  [I think we all actually agree w/him but are
not sure why these solutions would spur these non-creators (if non-creators
they are) to create.] What is overconsumption? 
I’m not going to commit to X amount of hours.  Calories too depend on other factors. 
Pager: Is the 10 hours the problem or is it the opportunity
cost of those 10 hours?
Skladany: the latter: what else is important in life?  Family, friends, helping others.  [Auden supposedly said: “we are put on this
earth to make things,” but also “we are put on this earth to help other people;
I’m not sure what the other people were put here for.”]
Q: a theory of why people consume 10 hours/day: so when you
meet a stranger or a friend you have a shared experience to talk about
together. Can reinforce social ties. There’s a variety of things that shared
consumption can get you socially.  [Like
fan fiction!]
Skladany: if you’re consuming 10 hours/day, you don’t have
time to work—our consumption often occurs at work, but not if you’re a factory
worker.
Glynn S. Lunney, Copyright’s Price Competition Deficiency
There’s very little price competition for © works: iTunes is
$1.29 or .99; good movie/bad movie you pay one price at the theater; video
games are mostly all the same price when they come out. Aftermarket in used
stock exists, but initially we get the same price. Broadcast TV, you get 12
min/commercials for every ½ of content—the price is the same.  Bundling has different consequences.
Competition—as an economist, we look for cross-elasticity of
demand. Many © works don’t have that kind of competition—you won’t see La-La
Land if the price is 5% less than Rogue One; you wanted to see Rogue One.  Some degree of market power, creating
familiar deadweight loss triangle. Optimal price w/works of varying popularity
is to set different prices to maximize profits/rents. That’s what we use as
incentive in © to reimburse author etc. 
Deadweight cost: exactly half of producer surplus where we have linear
demand curve. 
If you can only charge one price for both that maximizes
total income, you’ll set a different price. 
Get less rent for popular and unpopular works; fail to sell as many of
the less popular works than you should—higher deadweight loss for less popular
works, though lower deadweight loss for more popular works.
Introduction of price competition in the eBook market: some ©
owners set a low price on eBooks—especially first volume in trilogy, new
author.
Initial foray: 50 “best” books from 19th and 21st
centuries; found lowest prices for paper/electronic copies of each.  Lowest price for electronic copies of 19th
C.: zero.  Ave. for print: $5.  You could also find higher-priced
ebooks.  21st century: eBook
price averaged $10; paper $9.  That is
curious. 
Costs of © are therefore higher in a digital environment. ©
enables value-based rather than cost-based pricing—that is, market power.  Charging more for convenience.  We don’t need © to ensure continued
distribution of public domain works, shocker! 
Clumping in both markets: paper, median and mode is $9.52; eBooks,
median and mode is 9.99.  Also more
clumping at eBooks—other prices recurred a lot. 
Buccafusco: lock-in to Kindle?  Tricky to make assumptions about that.  Interested in ideas about extent to which
consumers just don’t know value of works. Often producers don’t know
either.  When most people go to the
movies, they don’t know what they’re going to see—they stand there and
pick.  [So weird.]  They might take price as a signal of quality,
and discount movies that are cheaper.  If
they do that, and if producers are also uncertain about consumer price
sensitivity, then it might be easier to signal that all are high value and
discount later on.  Look at circumstances
where consumers do have well-formed preferences at time of purchases to see if
there’s still price competition?  [Diet
Coke and Diet Pepsi?]
A: doesn’t buy lock-in since most of those prices were from
Google Play. If price is signal of quality, what is the role of other
indicators, like ratings? 
Neel Sukhatme: Initial Q: why have uniform pricing?  Apple knows how to make $ (though it’s money
for Apple, not for the record companies). Uniformity may draw people to the
system.  How do the contracts work?
[Apple; the record companies fought hard for minor price discrimination and
only won after Jobs’s passing.]  Formally
model this: if there’s an error in understanding how much a song is worth,
maybe it makes sense to start off the same for everything and deviate over
time.
Said: doing the daily deal was a full-time job—pushing and
shaping the market, not just consumer demand. 
Always interested in when things are dropping out of licenses and
disappear from Netflix.  Suspect that’s
happening in eBooks.
Eric E. Johnson, Intellectual Property and Growth Economics
Robert Cooter: Rapid economic growth quickly overtakes
static inefficiency in redistribution, as long as it is sufficiently rapid.
Innovation is the most important thing! 
Or maybe the future is so advanced as to be unimaginable.  If we take seriously the idea that tinkering
with IP can cause tech to take off at exponential rates—a very large population
of people living happy lives could be spread all over the universe—that’s a
potential good lost, happy lives, with every year of delay; entropy is
advancing irreversibly or we are sacrificing good lives worth living.  [Oh, for Jeremy Sheff’s commentary on this.]
What’s helpful here? Focus on dynamic efficiency is useful
in broadening our perspectives. 
Criticisms: (1) implementability—how do we distinguish b/t fertile
inventions that give rise to more innovations and thus be kept free and
inventions that should be given IP rights? Cooter says “bring in economists!”
but he also says economists have been wrong up to him.  (2) argument proceeds on unfounded
premises.  He says economic growth
compounds like a dollar in a bank. But that’s different from innovation—how does
innovation compound?  A new class of
molecule might lead to 50 new drugs, but after that the innovation slows—they aren’t
each a new class of molecule.  (3) IP
rights can put the brakes on growth for innovations that foster further
innovations; so what you really need is a lot of incentives, but incentives
that don’t provide market power—government rewards. 
Rosenblatt: are you simply condemning hyperbole?  People who make outsized claims are probably
wrong.  We do fair use in © to identify
uses that are productive—what about doing the same in patent?  Maybe the place to tinker is not in
protectability but in scope.
Lunney: economists’ fixation on greater income may not be
consistent w/flourishing, above a certain level of income. More advanced tech
may not be better tech in terms of human satisfaction.

A: he skips past that and says innovation à
growth and growth is what’s good.

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