IPSC Breakout Session IV

Copyright Enforcement 
Protecting Copyright Integrity – Shyamkrishna Balganesh
& Gideon Parchomovsky
Dominant theory: © is about value. Additional assumption:
w/every exclusive right comes important limitations. Every grant of power is
also clear placing of limits on scope of that power. Classify them as those
internal to the grant, based on its very structure (originality, fixation);
prerequisites for enforcement for right (substantial similarity); defenses or
exceptions (first sale, fair use).  Broad
approach to limitations.
© has a clear enforcement asymmetry b/c rights owners have a
clear mechanism of enforcing rights, but there’s no mechanism for public
rights. Implemented if at all through litigation predicated on actual or
threatened action. If you want the limits independently enforced, you want a
clear sense of scope, there’s no cost-effective mechanism to know the
parameters. §505 is the closest, but not clear how it will be applied—is prevailing
party parity even possible after Kirtsaeng?
This feeds into risk aversion on the side of users, but not of owner-claimants.
Concept: integrity violations.  The way in which common law develops
incrementally is by identifying principles that fit within the present system
and can be justified by present principles. 
Integrity—building on existing system—idea is “fit” and justification,
like a chain novel.  Where a © owner
makes a claim that can’t be fit to current © doctrine or can’t be justified by
current © principles, a P should be able to challenge it.  “Fit” is a doctrinal concept, while
justification is about the underlying principle—a Dworkinian approach.  Doctrine is black letter, while justification
is about development of rules.  © owners
should be able to determine the boundaries, so we don’t want them to be
deterred from bringing claims as such, only from bringing overbroad claims.
Components: Substantive integrity violation.  Procedural: qui tam structure (addressing
fraud on the public, misuse of a state grant). 
There would need to be a formal claim via litigation or otherwise—C&D
would suffice.  Would not fit with existing © doctrine—not merely
that it’s uncharted territory.  Cannot be
justified using copyright principles
as an attempted expansion of doctrine. Courts do a pretty good job of this in
the common law generally.
Paradigmatic situation: Paramount
v. Axanar
: crowdfunded fan film. 
Claim to own Klingon language as a whole was the integrity violation (though
the claim based on derivative works was “on the wall”).  Paradigmatic lack of integrity violation: Kirtsaeng—the distribution right was an
area of ambiguity, which could be justifiable in © principles.
Standing: structure similar to False Claims Act: protection
of public domain.  Remedial teeth:
instead of waiting for declaratory relief, create an incentive for 3d party
enforcement—reverse statutory damages. 
Aggrieved P can get statutory damages w/o proving actual harm.  Statutory minimum for successful claim;
alternative actual damages where P is directly affected.  Equitable relief as well.
Lemley: I understand what overbreadth means in a claim-based
system like patent, and I know what overenforcement looks like in © but I don’t
know what ex ante violation looks like in © where you might assert rights
against a fair use or against a not-fair use.
A: Has to be a formal claim of some sort.  A simple statement w/o enough proof of
overbroad claim: P’s claim would fail.  P
has incentive to wait until the breadth of the statement becomes clear. 
Lemley: then you lose the advantage of solving the in
terrorem effect.
Deterring Copyright Extortion: A Consumer Protection
Approach – Ben Depoorter & Peter S. Menell
Perfect storm: digital age, Napster, increased statutory
damages; RIAA et al. ended up targeting individual users.  Bittorrent used for porn movies; created a
nice little business model, identifying people who’d be embarrassed to be named
in a suit; make a deal w/© owner; get lots of people in one swarm and send lots
of threatening letters; profit.  No cases
are litigated all the way through; seamy side of P’s bar.  Many ISPs comply w/these subpoenas.  The Prenda letter got a lot of a notice—people
like you have been subject to large awards; go through the history in a
somewhat misleading way, mentioning default judgment of $1.5 million dollars
(but that’s a seeder, not a downloader). 
Doing harm to © system.  Only 2
adjudicated cases where someone in this situation gets held to be an infringer.
Motions to quash: improper joinder, undue burden, lack of
personal jurisdiction; 1A right to anonymity. 
Advice for those who shared files: (1) don’t hire Charles Nesson; what
happened to Tenenbaum, who thought he could discharge damage in bankruptcy but
was wrong, was bad. (2) Default judgment risk is serious; the cost of doing
business is about $3000—you’ll pay that much for a lawyer to fight or to settle.
(3) Don’t lie. (4) Might be able to avoid liability on a technicality; Matt Sag’s
article gives good advice to lawyers, but you’re paying either way. (5) Clearly
$150,000 is not what you will pay. You should probably settle, but the number
to put in is not clear.  Sag uses about
$1500; he thinks that’s a good starting offer but not guaranteed.  We’re not looking at this from a socially
optimal perspective, but private cost/benefit analysis.  (6) Get a subscription service.
If you didn’t share files, the unfortunate truth is that the
advice is somewhat similar.  Still a
disruptive experience.  This is the price
of a civil society that uses litigation and doesn’t fee shift by default.
© Office could provide objective advice, though he’s not
confident they’d do it; many of their patrons are committed to statutory
damages.  Try to put what’s almost ½ of
all filings into some kind of small claims/UDRP system—judges would very much
like this off their dockets.  Fed courts
have many costs v. a modest process that is a slap on the wrist—but should also
make it easier for © owners to find out who these people are. 
Hard to solve w/o recalibrating statutory damages.
Taking Intellectual Property into Their Own Hands – Amy Adler
& Jeanne Fromer
Not a new problem, but perhaps growing—high profile
examples.  GucciGhost—artist using Gucci
logo on clothes. They hire him to design part of their line.  Big hits, sold out for $.  Gucci elements w/own take—lots of positive
critical attention. Success at coopting him. 
Gucci claims street cred as “essence of the Gucci brand.”  Playing w/theme of authenticity—using Guccy
on elements.  Contrast: Gucci put a piece
forward w/puffy sleeves w/Gucci logo, which looks a lot like Dapper Dan’s work
(Harlem based tailor who bought actual products and made new clothes out of
them).  Not such a clean-cut story. Not
everything that’s reappropriated is critically acclaimed.
Aquazzura and Ivanka Trump: straight up social shaming in
the media.
Richard Prince’s New Portraits & appropriating
appropriation: new portrait series taken from Instagram.  Portraits “curated” from Instagram, sold for
$90,000; 4 people have sued, while one target, the Suicide Girls, an
alternative porn collective, chose to appropriate the appropriator—they got a
lot of what litigation would have afforded, but they got it overnight on the
cheap.  They sold his work for $90.  Internet loved it; they made money (for
charity).
Drake and James Turrell, an iconic light artist.  Drake loved Turrell’s work and created
Hotline Bling using sets that were copies of Turrell’s installations.  Rap IP diss songs: Tupac Shakur’s Hit ‘Em Up
v. Young Jeezy’s Stay Strapped.  Accusing
people of taking other things, and they reappropriate and rework what was taken
and call the taker out.  Tupac adapts the
beat of Get Money by Junior Mafia and raps Take Money.  Reworks a hook from another song and delivers
it w/same melody and turns it violent. 
Lots of accusations of stealing, copying, beat biting, taking—taking samples
that he knew Tupac was using. 
Working outside the law to (1) get financial compensation,
(2) get attribution, (3) avoid misattribution of who’s the appropriator.  It’s cheaper, but there are no procedural
protections; it’s very easy to call someone out for copying, even in a way the
law might not recognize as a cognizable taking. 
Effects on IP law’s goals?  Do we
get more or better creativity when people create art in response to a taking
instead of filing a lawsuit?  Do we get
better branding (Gucci)/claims of authenticity? 
Does it create more or less risk aversion on the part of appropriators?
Q: Greg Mandel’s empirical work suggests people view IP as
an attribution law. Your project suggests that this is the heartland of what
people believe the law to be—they think they aren’t acting outside the law but enforcing
it.
Lunney: take a broader view on self-help, which has fallen
into disrepute in other areas—landlord-tenant repossession; cars.  [I really like Steve Clowney’s article on
this.] Drug territories and how those are maintained through self-help. Don’t
treat this in isolation.
A: we haven’t decided this is all good.
Sheff: focus on distinguishing TM/©.  Attribution and control are distinct.
Reappropriating something that’s been appropriated, for a brand, means
collaborating in cultural creation of meaning. If you hire the guy that’s
different from appropriating a street artist’s work. Tiger by the tail: can
come back to bite you when alcohol brands, fashion brands are trying to
appropriate youthful energy, and then youthful energy starts riots.  Doesn’t seem as much of a problem in ©.
Laura Heymann: Feedback loop—does it communicate anything to
the community about what the law is? 
Suicide Girls action didn’t deter Richard Prince.  He wasn’t required to disgorge any $.
A: yes, it’s odd to get relief w/o the appropriator having
to pay—you get $, but not from Richard Prince; you get attribution w/o his
involvement. So what are the incentive/deterrent effects w/o some other
reputational harm?
Copyright Irrelevance in Architecture – Kevin E. Collins
Lots of protection overlaps, but architects aren’t using any
of them. Underenforcement (not normative judgment but vs. broad protection that
is available).  Irrelevant in
architecture based on what theory? Incentive to create?  Enabling transactions?  © is irrelevant for custom designs, but not
for stock designs (where it is licensed to many). Almost all non-residential
design is custom, and stock designs dominate residential communities. There are
few licensed architects in stock design world, where most of the designers are “registered
designers” not licensed architects. 
Licensed architects have contempt and embarrassment for registered
architects who design stock houses—“ambulance chasers.”
Suits against transactional partners—employees who leave firms,
or people who fall out w/builders or clients—those are different kinds of
enforcement. Enforcement against transactional strangers is where © is necessary
to go out on the market; enforcement against transactional partners is
different.  © isn’t relevant for
bolstering exclusivity, but for other purposes. 
Relevant to help architects get paid, but not the ordinary “incentive to
create” story.  Almost all suits in
custom design are against partners; almost all suits in stock design are
against strangers.  Sometimes suits in
the custom space are owners of homes who are pissed off at copying of their
houses.
Of 3 custom design nonresidential cases against strangers,
two are industrial designs.  All ©
trolling is in stock design.
Q: different transaction costs exist in each case (strangers
v. transactional partners).
A: True. Custom side ends up w/ a lot of suits against
clients; both sides have about the same # of suits against departing employees.
Lunney: consider legal work—custom legal brief is generally
not copied, tailored to fit facts of your case; you’re paying for professional
judgment.

A: true, demands of clients and sites are different; that
just may affect substantial similarity. Different projects can end up looking
quite similar!

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