IPSC session 2

Session 2: IP History
and Theory,
Stephanie Bair, IP
Artists and innovators
are not equally distributed. Rich people are more likely to acquire IP rights than
poor people; whites than minorities in the US; males than females.  Theoretical lens: income inequality. Children
from high-income families are 10x more likely to apply for a patent than
children from low income families, even controlling for educational
achievement. Only 18% of inventors were women. Brauneis/Oliar on ©.  Income inequality has similar race/gender
aspects, and both IP and income inequality contribute to concentration of
wealth in the hands of a few. Some people think income inequality is good b/c it
encourages risk-taking.  Is the same true
of IP inequality?  No, it doesn’t hold
water b/c IP is already structured as an optional incentive system. If you want
financial and status benefits, you can create something; what’s not required to
serve this incentive function is relativity or inequality in the system itself—having
more IP than others is not what’s driving the system.
IP isn’t a perfect
proxy for innovation, so there could be IP-related reasons for disproportionate
participation in the formal IP system. Financial, cultural, value-based reasons.
Or they could be disproportionately innovating in areas of IP that aren’t
protectable, like social innovation. They could be denied IP rights at higher rates
due to explicit/implicit bias, and there’s some empirical evidence of this in patent.
Stereotypical male conception of innovation. 
There is also a true innovation gap—people from certain groups are
innovating at suboptimal levels.
Role of exposure to
other inventors/innovators—exposure to such a mentor increases likelihood that
person from underrepresented group becomes an inventor.
Psychology literature:
Circumstances of poverty bias decisionmaking away from types of thought
processes that lead to creative breakthroughs. 
Effects of past chronic stress on explorative v. exploitative thinking—when
people experience the world as harsh and unfair, people stick to what they know
rather than exploring new options. Problematic from creativity perspective.
Also, dichotomy b/t habit based and goal based decisionmaking. Chronic sleep
deprivation, linked to poverty and racial subordination, contributes to habit
based decisionmaking, which also hinders creativity. Even if IP system is fair
and open, hard to respond to its incentives.
[Woolf’s A Room of
Her Own.  Time and leisure and space,
mental and otherwise, are in short supply when people are overburdened with
care work/survival work.]
Jeremy Sheff: Effects
of poverty on lived experience of individual poor people: if I don’t make a
living, I won’t eat and my kids won’t eat. 
Don’t need psychology to explain the absence of the capital/time
required for innovation.
A: this is additional
to the explanations like that one. 
Chetty study specifically found financial barriers to entry weren’t as
important as one might have hypothesized in that if those barriers were absent
but there wasn’t a mentor, it didn’t matter as much.  [People from poorer backgrounds who can make
high incomes often feel pressure to do so to support others/justify the
sacrifices made to get them there; perhaps a mentor can direct that in the
direction of innovation.]
Sean Pager: note that
new innovation/creation from underrepresented groups may fill gaps that need
filling, rather than more of the same.  Role
of incubators set up by interest groups etc.?
Copyright, Andrew
Gilden, Copyright’s Market Gibberish
Cases like Nunez and
Bond v. Blum reject privacy as something w/in scope of market analysis. Other
cases where Ps resist sale for any reason, like Salinger, reason that though Ps
don’t want to sell these rights now, they might in the future, so there’s
market harm; or they’ve sold similar photos/rights in the past and so have
market-based rights now. Cases about political opponents: P isn’t allowed to
say there’s market for headshots used by opponent, but Don Henley is allowed to
presume a market for political licensing of his songs. Weirdly large body of
caselaw about religious disputes: Lerma/Scientology.  Worldwide Church of God: P able to stop
splinter group from using founder’s highly racist views—no financial interest in
the work or interest in selling it, but court hypothesizes there’s still
economic value to defeat fair use.
Does not want to require
actual/foreseeable harm to P’s market interests. Not possible to rigorously
separate market and emotional reasons. There are distributive problems w/
economic only view—advantages those with track record of success in the market,
like Salinger. [Though that doesn’t have to be the case if you use traditional,
reasonable or likely to be developed as a standard.] Slicing apart economics
and emotions have a disproportionate impact on women, minorities, and the poor,
whose injuries are less likely to be valued highly (or at all) in monetary
terms.  “Coddling artistic vanity” is a
gendered concept w/no place in the © system. Author’s right to change “his”
mind and eventually sell a sex tape; courts use “his” and not “her” in this
framing.  Courts should instead openly
and explicitly discuss the interests that they are actually weighing.  Basis in the statutory text: effect on the
potential market for, or value of, the copyrighted work, stated in the
disjunctive.  Video Pipeline: © isn’t
just about monetary compensation.  We
have developed a good taxonomy of defendants who should be allowed to copy and
not a good taxonomy of plaintiffs who should be able to assert nonmonetary
Likely pushback:
expand © in problematic ways.  He thinks
it will help reign in abuses and censorship. We can distinguish between privacy
and autonomy and online business reviews or efforts to suppress political
opponents.  In cases where courts do
openly discuss privacy/religious interests, they do so to deny claims, so
expansion of © comes from opacity.  If
courts can be open and explicit about noneconomic interests, so can parties,
which means that remedies can be tailored to those interests.
Annemarie Bridy: Longstand
policy choice not to have moral rights in ©. 
Your argument seems to be that courts are backdooring this through
market harm, so let’s just embrace it. Normatively I would be inclined to hold
the line and criticize the cases. © is looking for public benefits and that
generally happens through markets/dissemination, so we should keep that.
A: don’t take a
strong stance on what the balance should be, saying that the cases are wrongly
framed as market interests v free speech rather than surfacing the conflict.
[Shouldn’t the criticism then be that the cases making up fake market interests
shouldn’t do that?] He doesn’t think there should be a cause of action for
mutilation/distortion, but actual copying cases should consider the motivation behind
the invocation of ©. There’s no way to distinguish economic/emotional
Bridy: but isn’t that
what the fair use factors are for, testing for the right motivation in
asserting a 106 claim?  If you aren’t
experiencing harm under 107, you shouldn’t win.
A: but you can’t
actually police that because of the market language that non-market Ps are able
to use.  We can’t draw those lines.
Q: Why not tell these
Ps that they should bring privacy claims if they have privacy interests, not ©
A: then we have to
ask why they don’t—it’s b/c of weaknesses in those cases. [But why does that
mean it should matter to the fair use analysis?]  Selective access to privacy protection
through © is the worst of all worlds.
[Yeah, I have the
likely pushback. Allowing “value” to mean “nonmonetary value” creates what I
call the “Centerfold” problem: I may feel bad that you made a critical, fair
use, and the work may now feel contaminated to me, but I don’t believe that the
law should weigh that against fair use.]
Dustin Marlan, Unmasking
the Right of Publicity
Protecting the
internal dimensions of the person is generally considered the role of privacy,
not publicity rights. Jerome Frank’s conception was very influential.  Now a hydra-like right, merchandising,
endorsement, and “impressment.” Similar to intrusion upon seclusion, false
light, etc. in terms of privacy categorization, but what caused this
bifurcation between economic interests and personhood/privacy interests? What
is the persona—“mask”—for publicity rights? Might be based on Franks’ own
conception of a self split into the private true self and the public false self
which is constructed and commodified.  Haelan was the first recognition legally
of the persona as an assignable, alienable right independent of the right of privacy.  Frank had been psychoanalyzed and recommended
it to his colleagues; wrote about psychological concepts of the law in which
judges were father-substitutes making the pretense that law was clear and
precise.  He was a fact-skeptic, believing
that uncertainty in judicial process resulted not just from uncertainty in law
but uncertainty in judge’s perception of facts—law varies w/judge’s
Consider other
concepts of the self that better integrate privacy and publicity: Julie Cohen’s
postliberal approach to the problem of selfhood is relevant to both:
subjectivity emerges gradually, shaped but not determined by surroundings,
situated within relationships, practices and beliefs. Celebrity as a mask that
eats into the face (hey, I wrote a thing about that)—may
be impossible to distinguish them in the way the law now presumes.
Shyam Balganesh:
wonders whether other stuff in Frank’s life was more important than his earlier
book—Frank himself was very clear about his academic persona versus his
judicial persona.
Copyright, Christopher
Yoo, Are Ideas Independent from Expression: Implications of Linguistics and Cognitive
Science for Copyright
Sapir-Whorf: language
structures our worlds, determines our actions, constrains our thoughts. Steven
Pinker believes that we think in mentalese: we have a concept of blue that is independent
of the word for blue.  Even though Korean
treats blue and green the same, Pinker thinks there’s something innate, as does
Noam Chomsky who posits a universal grammar and that language/acquisition can
be studied out of context.  “Colorless
green ideas sleep furiously” is grammatically correct even though it is
meaningless—there’s an inherent structure. 
Another version of language is agglutinative, with verb at end and
particles changing the meaning, like Finnish, Hungarian, Korean, Japanese—another
major form that just happens to manifest in different parts of the world b/c
there are a limited number of ways to structure language.  Now: renaissance of interest in Sapir-Whorf—studies
of directional languages/thinking.  Huge
controversy about which way causality runs. 
Inuits have multiple words for snow, but the number is in dispute and they need them. 
Implications for ©: Paramount
v. Axanar—unauthorized Star Trek prequel; Paramount asserts © in Klingon as a
language.  Natural languages aren’t
copyrightable, but what about constructed languages that originated from a
creative work but are now spoken by people? Axanar case says it’s a jury
question. Sapir says language is an agreement b/t people to communicate on
certain terms. Doesn’t have to be formal agreement, but genericide is an
example: by practice we use thermos to mean a thing.  Tolkien’s estate asserts © in Elvish but
doesn’t assert rights in noncommercial uses. 
See also Esperanto, Loglan, Na’avi, Dothraki.  Loglan is a constructed language to test the
Sapir-Whorf hypothesis, to see if they thought differently when using it;
creator asserted © to stop others from using, which seems self-contradictory.
Wikipedia and
Aboriginal languages: Tasmanian palawa kani is an attempt to synthesize
fragments of 12 extinct indiginous languages and promote its use. Wants to set
rules on who can use it, claiming under UN Declaration of Human Rights of
Indigenous Peoples, not copyright. Raises how shared language can define a
community. Wikipedia rejected request for removal.
Oracle v. Google: can’t
© overall computer language, but a specific computer program can be. Where is
API in that scheme?  Fed. Cir. reversed
two jury verdicts saying it was ok. This is about levels of
generality/taxonomies.  Reminiscent of
Nichols v. Universal Pictures; EU came out the other way.
Other implications:
right to speak a particular language; importance of gendered speech.
Pam Samuelson: how
would you rule on computer languages developed in order to become “lingua” of
that community versus things that are more artistic such as Klingon? What tool
do you use? She thinks of language as system with structure & component
A: the way statute is
drafted excludes all that. We have a generality problem. He would draw the line
at functionality. Similar to transformative use—now w/database cases it’s about
making creative works more useful rather than more/differently creative.  Tolkien’s Elvish: Kind of like laches—once you
let it loose in the world, other people should be able to use.
Justin Hughes:
Malaysian/Ba’ahasa was a pidgin/trading language for coastal peoples, built
into a language—this seems like a functional purpose.
Betsy Rosenblatt: you
talk about genericide; we don’t protect systems b/c we think they’re
functional. To the extent that it’s a communication tool, it’s functional even
if it is expressive in the origin. So wouldn’t draw a line b/t Klingon and Java
b/c they are both building blocks.
A: Coders say code is
beautiful but most of them don’t do that in their daily work.  Klingon was designed by linguists.

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