WIPIP part one

Works-in-Progress Intellectual Property Colloquium
Boston University School of Law
Opening Plenary [missed beginning due to travel]
Timothy K. Armstrong, Symbols, Systems, and Software as Intellectual
Property: Time for CONTU, Part II?
Functionality is still a problem. Altai seemed to work well
for a while; at least intellectually consistent w/treating software as variety
of literary work. But Oracle v. Google threw that out; said it only applied to infringement,
not to scope of protection for software. 
If there’s different ways to write code, then your particular way is
copyrightable.  Meanwhile, patentability
of software advanced here, though not in many other countries.  Congress might not have considered
patentability in AIA.
CONTU as a process: that was a worthwhile exercise, even if
you don’t like the results. Consider pros and cons of various types of
protections—we should do it again.
Wendy Gordon: maybe we should just punt—any functionality
concerns, court should not give TM/©.
A: Loath to endorse a result that might lead to thick patent
protection for software.
Dogan: if Oracle hadn’t happened, would you need this?
A: there’s still an Alice
question, but yes, Oracle is a big deal.
Lunney: if you argue for CONTU 2, shouldn’t you think that
CONTU 1 did a good job? CONTU specified specific amendments & Congress
followed, but you’re not happy w/specificity of results—any reason to think it would
be better this time?
A: That’s a question of outputs and I’d like to get some
input.
Betsy Rosenblatt: Look at current USPTO/NTIA/Copyright
Office roundtables etc.—may or may not be a black hole; §512 best practices was
totally anodyne. Can we really get a good agreement out of any group these
days?
A: Worth a try.
Rebecca Schoff Curtin, Zombie Cinderella and the Undead Public
Domain
ZOMBIE CINDERELLA for dolls initially refused for Disney’s
Cinderella for dolls—would have implied that Disney had exclusive rights to
Cinderella for dolls.  Overturned on
appeal, but TTAB relied on the idea that it was a weak component b/c others
were using the term in the market; at best highly suggestive. Denies rights
merely b/c commercial appropriation of the character wasn’t complete enough. We
should deny the first entrant into the doll market the right to control the
public domain character. Thus, we should extend aesthetic functionality to
cover elements in the public domain. Cinderella, when used w/dolls, connects
the dolls to the public domain figure, amplifying the possibilities for
play.  So too w/features of the tale that
connect to the tale—for Snow White, hair as dark as ebony and skin as white as
snow.  Non-reputation-related competitive
advantage is conferred by these elements.
Others have suggested aesthetic functionality for characters;
Zombie Cinderella enables us to step back from fraught cases of characters that
actually emerged under modern copyright (e.g., Betty Boop, Dorothy Gale).
Generic or functional for dolls? Rosenblatt has pointed out
that it may be hard to think of a character name as generic for the
character.  The goods are dolls, not
Cinderellas.  [Hm. I think they might be
Cinderellas, just like my son was a Stormtrooper for Halloween.]   Genericity
focuses too much on linguistics and not enough on the cultural work the term is
doing, a problem that could be exacerbated in a trade dress situation.
Wyatt Earp—public figure. 
Similar argument.  However, actual
applications haven’t been good. 
Superman, Batman, and Joker drawings as TMs for dolls; CCPA said that
there was no merit in the argument that the aesthetic features of the drawings
prevented TM function.  9th
Cir.: Betty Boop case; withdrew opinion applying aesthetic functionality. On
remand, the dct turned again to aesthetic functionality, but relied heavily on
finding D’s uses ornamental, not TM, use. 
Protection of feature as TM would thus impose significant
non-reputation-related advantage. That limits the potential for this defense a
lot—would not have helped ZOMBIE CINDERELLA, but why not recognize the
functional portions of each mark?
Lunney: Merry Xmas case for words on Xmas ribbon: words that
are functional; Damn I’m good TTAB decision w/that phrase for a bracelet.  Why focus on non-reputation-related
disadvantage and not other language, like important commercial ingredient in
success.
A: I’m afraid of Pagliero:
Justin Hughes says it’s been rejected.
Lunney: but it’s quoted directly by Breyer in Qualitex.  Brand value v. intrinsic value: ask whether consumers
would be better off if they were subject to competition in the market for
Disney character dolls.
Mark McKenna: be more radical—say it’s not for TM at all. It’s
not genericism, functionality: it’s Dastar—trying
to capture stuff that should be in ©. However badly © does with characters,
that’s copyright problem. Mickey Mouse may be hard, but the rest are all easy.
Q: explore failure to function/use as a mark.

Rosenblatt: aren’t you coming back to genericity? The signal being given is “this
is a Cinderella.”
A: I’m not saying just signalling is aesthetic functionality—Cinderella
Maids Service, Cinderella Eyebrows Spa, Cinderella Soap Co.  There is a lot of overlap w/genericity, but
it’s harder for product design. 
Concurrent Sessions 1
Andres Sawicki, The Law of Creativity?
Replication crisis in social sciences.  Social psychology is the main source of the
creativity literature—Teresa Amabile et al. 
Another red flag: creativity studies usually feature between-subject
study design, replicates at a lower rate than within-subject studies. P values:
doesn’t know the extent to which the literature upon which we’re relying is at
the .05 threshold; next step in project is to check this.  Effect sizes, another topic of investigated:
the larger an effect you see, the more likely it is that it’s replicable.  Studies may be underpowered; there may be
effects but you don’t see it in the subsequent studies.
Model specificity: standard IP (patent and copyright) model
is an artist or inventor facing choices whether to create.  Standard incentive thesis.  Creativity literature: we need a different
model; not sure what it is.  IP
creativity literature has adopted a motivation model or a cultural conditions
model.  Motivation: incentive thesis all
over again.  Should we be measuring the
number of works created over a certain threshold? More people choosing creative
careers? We should be more precise about the marginal benefit we want to
measure for giving IP rights.  Creativity
literature opens up the idea that we don’t just care about the $ going back to the
creator—attribution, control, something in addition to or instead of the cash.
Existing normative theories: incentive, natural rights,
capabilities. Implicit normative theory in the new literature: we should
maximize creativity.  It’s a good, but at the cost of what?  Does the literature itself have a normative
theory other than the maximization of creativity?
Jessica Silbey: When we’re comparing social psychology
literature to legal analysis of creativity through social psychology, there’s
an overarching disciplinary q of what/why those disciplines are asking when
they ask questions.  I appreciate the
replicability issue, but the larger q is whether we’re running experiments for
the same purposes, or what the import is for the discipline in which we’re
working.  Add to this project: theory of
what the law is supposed to accomplish in the first place.  Most of the social psych, sociology, anthro
work has a theory of the discipline that informs the experiment.
A: As legal scholars, what is our goal/responsibility in
drawing on other disciplines?  An
opportunity for interdisciplinary work. 
It’s not just an idea of describing creativity; he sees the idea as
maximizing creativity—or well-being, autonomy, competence, relatedness: we
should have debates about whether those are the normative aims we want to
promote. 
Sean Pager, A Unified Theory of Authors and Incentives
Criticism: current law’s “© directly induces creativity”
model relies on demonstrably false theories about creativity; sometimes
copy-skeptics want courts to call into Q the whole idea of copyright—straw man.   I
think this model oversimplifies and I want to rescue the incentive model from the
cloud it’s under.  Reframe what ©
incentivizes: creative investments, not creative works.  Piggybacking on Jonathan Barnett’s Copyright
Without Creators
.  Investments in
post-creation commercialization.  This
explains a number of features of copyright doctrine.  He’s persuaded by most, but wants to refine
sharp dichotomy b/t creation and commercialization.  The commercialization process is chock-full
of creative acts/talent, that progressively adapt original authorial work into
derivative forms that represent original works of authorship.  Script development.  The industries are motivated by copyright;
that’s authorship that’s happening.  Most
clear in AV industries, but also recording, even publishing.
What about individual authors?  Are they just intrinsically motivated or does
© change the way authors behave?  There
are different types of authors.  Two such
types: the commercially minded creators—mercenary, Samuel Johnson non-blockhead
types.  Plenty of examples.  But what about the intrinsically motivated—does
© change their behavior?  Maybe they’re
creating out of love, but they also need to eat and pay rent, and sometimes
need inputs to create.  © leads people to
invest more resources, creating works of higher social value.  Does the market value social value directly? That’s
a caveat/something he wants to bracket. What about works the market doesn’t
value?  They’re not left entirely out of
the cold because of the derivative rights market.  People who want to direct films serve as
camerapeople on films—commercialization process puts more money in the system
that provides often well-paying jobs to creators while they’re waiting to
succeed; they gain training, skills, experience, personal contacts—so when they
can engage in passion projects they’re able to do so. A particular kind of
cross-subsidy. Also creative clusters subsidize individually motivated
creativity.  Lifetime career arc of
investment also leads to more investment in better creativity—just like pickup
softball players are intrinsically motivated, but pro sports leagues have
higher investments in skill and creativity and thus more entertainment value.
Q: Does anyone disagree w/your basic thesis?  Or are we arguing about what’s necessary to get creativity if that’s
what we want, given insistence by MPAA et al who show up to Congress claiming
that “we won’t get any creativity at all unless you make Google filter its
search results”?  That is, we are
interested whether Johnson was right about blockheads or whether he was at best
joking since that sentence is in his own diaries—and also in what tradeoffs we
are willing to accept in order to get these investments in specific types of
works, which may crowd out or suppress other types of works.  Perhaps we don’t want to bracket the question
of what’s valued by the market versus what we want in the universe of
creation.   Perhaps we’re interested in the gendered and
raced ways in which the standard paths of access are open to certain people—another
way to describe what you’re describing is ‘the old boys network.’
A: I was myself constructing a straw man of objections.
There’s an awful lot written that has oversimplified incentives. If you want to
disagree w/©’s incentives having acknowledged them, he’s cool with that.
Silbey: How important is the anti-copying protection that
exists today to the argument that they need to make money?  That is, money as an incentive versus © as an
incentive. The equation w/needing to earn a living and © as the means to earn a
living is not entirely clear to her.
A: not claiming that no one would engage in commercial
creativity w/o ©.  Marginal
increase.  Counterfactual models/marginality
is addressed in other papers.
Silbey: so anti-copying is the lynchpin?
A: other things too—moral rights, attribution—© has a
mismatch in the US but it does some work in this direction.  Some publish more b/c they have control.
Silbey: Control is different from $.
Sawicki: compare © to other mechanisms by which people earn
money for creativity.  Instead of NEA,
consider uniform basic income for creators.
Jorge L. Contreras & Jacob S. Sherkow, Dividing the Spoils
of CRISPR
CRISP is a way to edit DNA by removing, adding or altering
specific DNA sequences—like word processing for genetic sequences. Many
applications—disease-resistant crops, therapies for genetic disorders, etc.  Discussion of exclusive licenses from
universities—controversial in that they cede control to private companies not
bound by principles of more open practices. 
Surrogate licensing, to avoid obligations—including NIH models. It’s
profitable as a model and it has existed since Bayh-Dole.  Licenses can be made non-exclusive.  Groups will need cross-licenses from each
other—opportunity to take a step back and rethink exclusive licensing.
Q: don’t you need exclusive license to enforce?
A: that’s the concern—they can shut competitors out by
refusing to license; companies have legitimate economic rationale for
foreclosing competition.  Socially
suboptimal.
Aman Gebru, A Model Legal Framework for Intellectual Property
Protection of Traditional Medicinal Knowledge
The Hoodia story: patent granted on extract for weight
loss.  Companies eventually felt they
couldn’t produce a drug that would meet regulatory standards. There was no
provision for communities at first but companies were ultimately willing to
share profits w/them because of public backlash.
Traditional medical knowledge can be a shortcut in the drug
discovery process—one study found that TMK increased the chances of getting a
preliminary hit in plant screening from 6% to 25%. But it’s easily lost b/c of
primarily oral nature.  Encourage
investment in codification?  Gov’t investment
or subsidy; private investment (he thinks most efficient); secrecy
(inefficient); group cooperation (highly limited); first mover advantage
(little potential).

Contreras: hard to bind 100s of thousands of community
members w/o draconian legal regime.

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