IPSC session 4

Session 4: Old and
New Theories of IP

Shyam Balganesh, The Common Law of Copyright
Censorial copyright
claims: motivated by non economic, dignitary concerns, and the author/creator’s
principal objective is expurgatory—to prevent the work from circulating
publicly. These claims have existed from the origins of Anglo-American
copyright. We treat them as illegitimate b/c of incentives myopia. This exists
w/in the moral rights paradigm, the right of withdrawal/repentance right. In
one jurisdiction, author has to purchase copies at lowest available price.
During 1965 © revision study, they considered withdrawal right & said it
was absurd, though they were aware it existed. 
Pope v. Curl, 1741,
private letters published. Real theorizing in 1818, Gee v. Pritchard: analogous
to revenge porn, correspondence b/t husband & wife about illegitimate child.  © grants injunctive relief even though this
isn’t about encouragement of learning: legit interest and injunction
granted.  Similar in Prince Albert v.
Strange, 1849, sketches by Prince & Queen somehow acquired, again
injunction granted. Folsom v. Marsh discusses Gee & why letters should be
protected.  Woolsey v. Judd, NY 1855,
discusses interests beyond just works of literary merit that ought to be
protected. Clear recognition of necessary balancing: public interest; what if the
party to whom letter is directed needs to publish to vindicate himself;
etc.  Salinger v. Random House: an
account that builds on the early cases, very much a censorial claim. Michaels
v. Internet Ent. Gp., 1998, attempt to put it into terms of statute that is
facially neutral in terms of its theory. 
Doe v. Elam III, 2018, revenge porn case with $6 million award: © may be
an imperfect fit, but it has always played this role.
Not claiming that
these claims ought to flourish and blossom or extend into new domains. Recognizing
them as a distinct category allows us to grapple w/the underlying concerns that
accompany this category, the First Amendment primary among them. [It is not
clear to me that many people have missed this point under current doctrine, but
ok.]  Harm produced through expression:
can be copyright harm, or other harm, e.g., defamation.  W/in copyright harm, there are also
distinctions: appropriative harm (market or even non-market terms per
Drassinower); in situ reputational harm (integrity rights: the harm is to the
work, not to the individual in any other distinct way); and disseminative harm
(harm from public circulation of the work)—the harm is really 106(3) distribution.  The author’s inability to exercise the right
to exclude is seen as an infraction of the author’s autonomy.  The idea of right to exclude starts having
resonance w/in the censorial claims—overtone of Hegelian personality interests,
which has been misapplied in many other © situations. The conduit through which
Hegel conceives of authors rights comes through property.
There’s also an
authorship interest here. The connection b/t the creator and expressive work is
critical to these claims. Author’s personality/dignity. [But see Monge—what is
going on there? It is just as censorial/privacy-based.]  Distinct between 106A moral rights: the harm
isn’t in the work as such but through it—the dissemination of the work
is what generates the harm, not the existence of the work.  [How does that work with the attribution
Recognizing these as
distinct analytically allows us to better police them from a 1A perspective. We
might validly draw from other censorial claims: defamation, false light—no strict
liability; actual proof of harm needs to be shown for recovery, no presumptive
damages/punitive damages.  [How is this
different from saying © isn’t for these kinds of claims.] Could do this
directly or through expanded fair use—nature of the work could accommodate
Joe Miller:
Reconceptualize Harper & Row through this lens. Congress’s modification of
the law post-Salinger about unpublished works arguably makes your approach harder
[I would say less persuasive].
A: yes: conflated
right of first publication and right of withdrawal. [Further discussion makes clear
that he doesn’t think there’s been conflation by Congress but rather what he
calls a partial recognition that the moral interest for unpublished works is
distinct from the moral interest for withdrawal, but I think he believed that
the availability of injunctive relief was sort of a withdrawal right, with
which I disagree.] Distribution & publication were replacement categories
from old acts.  Q is whether the same
interest carries over to published work, and he doesn’t think that
distinguishing published from unpublished makes sense.
Andrew Gilden:
Scientology case where guy tried to withdraw work in order to screw with
Scientology.  There’s an effort to
acknowledge the economics of withdrawal, but differently.
Q: constitutional
basis for the incentive theory, but not for this. Older English cases may be
interesting for common law history but that’s not necessarily what Art. I sec.
8 cl. 8 allows.
Uri Hacohen (and
Peter Menell), Unjust Endorsement: Tiger Woods endorsed Stanford Financial,
revealed as Ponzi scheme.  Advertiser’s
challenge is to overcome consumer skepticism. Distraction/stealth to overcome
resistance; also endorsers and other mechanisms.  Early endorsements were mostly in print.
Changes: scale;
people famous for being famous. Fake follower, reviews, likes, news.  Strategies have expanded online: distraction,
stealth, repetition, exploiting connections/children etc.  This is troubling, but regulation is
limited.  Norms remain of limited effect
and endorsers don’t seem constrained by norms; rather they’re competing for
income.  Other relevant considerations
include social surveillance, public health from overconsumption.
Deception is
easy.  Endorsement disclosures are
somewhat regulation. But there should be a private right of action/class action
remedy. Whistleblower immunity/rewards per SEC. 
Endorser liability should be seriously considered.  Disgorgement/punitives as remedies. Higher
standards for disclosures—for doctors, medical product manufacturers have to
disclose any payments or other transfers of value to physicians or teaching hospital.
Patients can see that, b/c doctors now fear to take drug money. If they take
money and don’t disclose, they risk public sanctions. Should have the same
disclosures for other endorsement relationships, available to consumers and IRS
and social media; FB and Instagram could use technological tools to ensure this
information surfaces.  Morality and
social industry norms need to change in this direction.  Anti-tobacco public service ads as a model:
funded from tobacco tax.
Jeremy Sheff: There’s
fair amount of evidence about ineffectiveness/counterproductivity of disclosure;
evidence of compliance will be misread as evidence of credibility, as in health
supplements market where consumers interpret the “not endorsed by the FDA”
statement as meaning “the FDA has checked this and allowed us to say this.”
[Also a licensing effect on disclosers.]
A: we are advocating
a registry. Consumers who want to look can. This is about cognitive limitations
around consumers; don’t say there’s no justification for trying to educate
consumers [fortunately that’s not what Sheff said]. We want to help consumers
understand that Captain Crunch isn’t their friend—kids have cognitive
limitations. [And the evidence is that those limitations are hard to overcome
with disclosure; it might be that a ban on cartoon endorsers for kids is the
best solution.] Tobacco campaigns have studied this issue extensively.  W/social media, we have to be especially
concerned w/how our brains are being influenced, and the FTC is overwhelmed
Irina Manta: if
endorsers say something they know is incorrect, more people would be fine with
liability, as opposed to having duty to investigate on the part of the endorser.
A: Sure, duty to
investigate. Whether Stanford’s endorser knew or not, he got $8 million and a
lot of people invested in a Ponzi scheme. That money should go back into the
pot for victims; he was unjustly enriched. 
More punitive when they knew or should have known. But esp. for bankruptcy
we should look at moral responsibility and have him disgorge.  [I like it. 
Much more likely to have an effect on behavior than disclosure; it operates
on the incentives of the endorsers directly.]
Manta: there might
be a temporal element—if it was 10 years ago he endorsed, different.  Will be difficult to assess when they knew.
A: changing the
cultural environment.  If Beyonce takes
$50 million from Pepsi, she needs to accept her part in what Pepsi is doing. 
Irina Manta,
Explaining Criminal Sanctions in Intellectual Property Law
Common & civil
law are the usual/historical actors in IP; criminal sanctions have tended to
involve force, only more recently expanding to lots of nonforcebased harms. One
justification has been analogy to theft. 
Generally no danger to safety of owners, other harms of theft.  If not theft, what is IP infringement?
Perhaps vandalism—reduction rather than elimination of value; owner can sell/license;
in rare cases (Banksy) can increase value. Another analogy: trespass.  Criminal sanctions for IP are generally
higher than for vandalism offenses with the same value reduction. IP owners
should accept the limitations on the property analogy, which are that not all
property crimes cause the same kinds of harms and justify the same kinds of sanctions.
Why is there no
patent crime?  Litigation is very expensive,
and patent registrations are by far the hardest/most expensive to obtain and
confer greatest power to exclude. But: registrations are often invalidated;
patents are complex; willfulness is an issue. 
Purposeful patent infringement represents a very low percentage of
overall patent infringement; recent tech has had a much larger effect on ©/TM
infringement than on patents. Goods that are patented and pirated are often
already sold with counterfeit TM as well, so there’s no need there.  Thus the costs of criminal sanctions in
patents would be greater than in TM/© and the benefits lower. 
Daniel Hemel: SEC is
a good analogy—securities fraud is like counterfeiting.  FDCA violations: related to what you’re
saying about pharma—there’s separate criminal sanctions for that.
Q: given the differences
in actors, you might say more about criminalization against corporations v.
against individuals. For patents, you might talk more about the actual costs,
what a trial would look like [if there weren’t a plea], gov’t expertise v.
relevant private parties.
Peter Menell, The
Use and Misuse of Intellectual Property Kinship: IP isn’t a monolithic term—we spend
a lot of time dealing w/channeling doctrines; it’s a key role for cts even
though it’s often not spelled out in the doctrine itself.  Examples where it is: Idea/expression; useful
article; functionality.
Mistake introduced
by Sony v. Universal.  We ought to keep
in mind that patent and copyright are pretty different regimes, merely linked
sequentially in constitutional text. Design patent is much closer to © and
shouldn’t cover functional elements—this is a big mistake that needs to be
Functional analysis
of IP kinship: utility patent is an only child. 
There may be some cousins (API copyright; design patent) but the point
is that this is a family with a single child. 
Don’t want other children treated the same—utility patent supremacy
principle.  But some of the other issues,
like tax, sure, it’s a family with lots of kids—w/r/t treating the asset of IP
similarly, sure.  Likewise bankruptcy.
Interpretive issues:
courts often fall back on historic kinship when it doesn’t work very well.  Sony: does patent’s blanket immunity for any
dual use tech make sense for ©?  He doesn’t
think so—there are too many differences b/t what they seek to promote (tech v.
art), whether complements provide systemic threats to the system, etc. 
Kirtsaeng: int’l
exhaustion.  Wiley wanted to say it had
the right to import under §602. 
Kirtsaeng: first sale means it’s lawfully made under this title (in
accordance w/the © Act).  Ginsburg’s
dissent is compelling, even if you agree with the Court’s normative
result.  Patent version of that case a
few years later: Roberts appeals to similarity of patents and ©, but doesn’t
attend to footnote about the differences b/t them and throws caution to the
eBay: draws on © law, even though prior © cases always gave injunctions; prior
SCt cases like Tasini had just talked
about how you could deny them.  Then
people applied it to TM law.  We should
have been more contextual.  [I think this
is about anti-patent exceptionalism in the SCt, not about kinship—note that
this is the first time he’s mentioned TM since the first slide with a bunch of
other things that also aren’t mentioned. The remedies language in the statutes
are similar b/c that’s what federal remedies language tends to look like—see also
Winter, which TM and © courts have
also looked at but which is about environmental law.]
We use metaphors as
shortcuts b/c IP is hard and a lot of the statutes are terse and court-elaborated.  Our SCt doesn’t have consistent ways of
interpreting anything, so historic kinship can organize votes; Congress doesn’t
get around to fixing things.  This is
slopply, lazy, distorted, and path dependent.
We could learn a lot
from comparing and contrasting. Utility patent spends a lot of time on claim
construction. Should be more careful w/design patent. Let’s learn. Bratz
litigation: persuaded DCt to hold essentially a Markman hearing on ©.
Joe Miller: SCt
briefing: does it shed light on the degree to which the adversary process
invites thoughts in kinship terms or not?
A: this is how I get
research projects—look at the lawyers’ choice of argument. Sony made this
argument routine. SCt doesn’t want to learn this rich complexity. We should demand
more of our highest court. [But that’s not about eBay, is it, where the transfer to TM is in the lower courts?]
[My Qs] It’s also
about ROP—he talks about Saderup in the paper. 
[And I definitely think that Saderup is a terrible idea.  But it can’t be about a historic kinship
insofar as the connection b/t © and ROP was invented in Zacchini.]
Kristelia Garcia:
given the differences b/t music, books, etc. would you go so far as to say
there should be book copyright, music copyright, etc.?
A: we’re the scholars:
that’s our job where appropriate.

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