A Celebration of the Work of Wendy Gordon, part 3

Death in Copyright:
Remarks on Duration 
by Abraham DrassinowerUniversity of Toronto Faculty of Law
What would a rights
based account of duration look like?  Really
about death, not duration. Patents have a fixed term; trademark registrations
also persist for a specific amount of time before renewal is required.  © is life plus 70 (US) and 50 (Canada)—the number
isn’t the same for all works.  Something other
than number alone goes into the determination, which is death of the author.  What is it about © that summons mortality so
deeply into its substance?  History is
one answer, but not of as much interest to him. 
Does the concept of mortality fit © in a distinctive way?
His proposal: The idea
of independent creation contains the idea that the author is a mortal being; the
theory of originality is already a theory of duration. Works as messages:
communications from the living.  Not an
owned object but an expressive act. Duration affirms the specificity of the
length b/t author and work as copyright subject matter. B/c author and work are
inseparable, the death of the author must signal the death of the right.

Commentary by Paul Gugliuzza, Boston University School of Law
Original 14 year term
seems to have come from the first patent statute, which itself was double the
usual apprentice term.  There’s no reason
to think any of this was socially optimal for incentives [or otherwise].  And it’s gotten longer and longer b/c of ©
owners’ political power.  Drassinower isn’t
looking for social optimality, which is a pretty impossible Q in the abstract
anyway.  But US law isn’t animated solely
by moral rights; suggest engaging other analytical modes, especially given the
provocative nature of the claim that © should be cut back a lot compared to
where it is.  Utilitarian arguments for
extending some © beyond death, if not for life + many decades.  Older authors might need incentives;
predictability of ensuring some duration beyond perhaps a few days. 
Talha Syed: we can
resist various moves, including that independent creation requires
inseparability of author from work.  We
could also say that conceptual integrity in the system isn’t important: we can
have independent creation and an unrelated term.
Drassinower: takes
independent creation to be fundamental to what we think © is and is for.  That’s why he wants to use it to look at other
parts of the system. 
Litman: earlier US
terms did look at whether the author lived past a certain time for renewal
term/ownership.
Experimental psych confirms Gordon’s
insights about intuitive power of “reap where you haven’t sown” trope. Even
little kids have intuitions about ownership of ideas.  Important pattern in IP law: creation or
extension of common law protection due to restitutionary impulse/ “felt necessities.”
Restitutionary impulse starts young: children apply ownership principles to some
ideas, though not to common words. Kids by age 5-6 don’t like copying as much
as they like original drawings, and they especially don’t like falsely claiming
credit.
Felt necessity: economic hopes of a less
confident, service oriented economy have switched to knowledge goods.  Demsetzian version of property rights: over
time, property rights develop in response to growing (relative) value of
intangible assets and cost-justified ease of defining boundaries. There’s a
political, economic story of limitations and exceptions, whose creation can
also be told in Demsetzian terms; IP rights create victims who can lobby too. 
What’s happened over decades with
restitutionary impulse?  Federal dilution
law; progression from common law to statutory right of publicity and almost
inevitable call for federal uniformity; federal trade secrets law. 
Haelan as a moment of creation: they
tried to create an exclusive right to a player’s image through contract, which
couldn’t be done just by waiving the player’s privacy rights as to the chewing
gum company.  It has to be done with a
new right.  The alienability was at the
heart of the new right. 
Restitution is a substitute for the
market; sometimes comes from failed market transactions. Property is instead
about creating markets: standardized bundles of rights that are easy to transfer.  Restitution is reactive and property is
generative: corrective justice seeks to restore a status quo, while new
property rights deviate from the status quo. Market transactions can be based
on a bundle of rights more easily than on a bundle of duties.
Commentary by Bob Bone, University of Texas
at Austin School of Law
Gordon is a value
pluralist, and this helps with her affinity for the common law, where judges
grapple with various values.  Principles
may incubate in common law, though they can also come from statutes. Public
choice makes it messy. Hard to say anything general about creation of IP
rights.  Maybe original idea is some kind
of moral insight, but they eventually get driven closer to property rights over
the long run.
Intuitions about ownership
are socially contingent in large part.  [Everybody eats, but different cultures find
different foods appealing/disgusting.] 
Plagiarism: Merges slides pretty smoothly between copying and failure to
give credit, but kids seem more interested in the latter: the opportunity to
give authors credit for their work, which would lead to an attribution right
rather than a restitutionary claim.  Deeper
Q: why follow moral intuitions? Some of them are bad!  How do we determine the lower level, more
specific principles entailed by moral intuitions?  One way might be to look at the common law to
see how some principles check others. 
But common law is affected by other factors too; we can look elsewhere.
Q: sometimes children
are mean and manipulative; they may make ownership claims as a matter of
self-interest, but that doesn’t tell us what we should be doing.
Dreyfuss: EU trade
secrets directive: is it property and will it therefore be controlled by human
rights law? That’s a big difference b/t relational rights and property.
Q: fannish community
opinions on ©: attribution and fairness are the norms; social contract idea—authors
should allow fans to engage
in certain types of noncommercial creative work. Moral rights concepts.
[A couple of thoughts, overlapping with the
others: Glynn Lunney’s piece for this conference is all about responding to the
restitutionary impulse. The YA book The Girl Who Owned a City represents a good
example of one of the problems: the book doesn’t mean to do so (it’s supposed
to tout Objectivism) but it demonstrates the impulse to claim ownership of that
which is not new, but which was news to you and thus feels like “yours.”  Relatedly (since the book is about kids who
have to recreate society after all the grownups die), maybe what kids think is a
starting point in need of a justification since we are in fact supposed
to be socializing them.  Indeed,
kids do a lot of copying that isn’t even noticed as copying: trace the letters
to learn how to write; instruction where we have students watch then do, which
is to say copy, then teach, which is to say have others copy you; perhaps this
can often be distinguished as processes v. outputs, but copying letters is
copying outputs, not just tasks. We could say that in those situations copying
is clearly valorized, but we then have to figure out why the valorization doesn’t
carry over.]
Common
Law Conceptualism in Intellectual Property
 
by Shyam BalganeshUniversity of Pennsylvania Law School
Gordon as
conceptualist who attempts to organize analysis/reasoning around discreta
analytical devices that serve a simplifying role w/in relevant context. Takes
legal doctrine and reasoning seriously as a mode.  Different categories of conceptualism:
formalists (e.g. Joseph Beale) who thought that legal concepts had their own
immanent normative logic which gave definite answers to cases. Realist
conceptualism (Frances Bohlen, Wesley Hohfeld): legal doctrines as grounding
for decision making but not “closed”: legal concepts could be deployed towards
social ends, but they meant something. Neoconceptualist—Gordon is somewhere
between a realist and a neoconceptualist. Not wedded to a singular
methodology.  She adopts the Hohfeldian
set for copyright, but is willing to read normative criteria into their
working, and is skeptical of normative essentialism (unlike traditional
neoconceptualists).  Suggests move from
copyright to copy-privilege: move from P to D. Privilege is subsidiary: it
needs protection by a “right” of some kind that allows the exercise of the
privilege. W/o a right, there is no no-right/duty to not interfere w/the privilege.  Privileges of ownership, similarly, aren’t
protected in the absence of a right to exclude.
Implicit moves: the
owner’s entitlement also becomes a privilege, not just a right. Right to
exclude is replaced by exclusivity as a continuum.  Questions the property/copyright analogy,
boundaries, thingness. Evaluative turn: focus on entitlement structure leads to
an evaluation of the utility of property analogies. It reveals copyright’s
conflation of harms and benefits and the move from property to unjust enrichment.
Legal structure of ©
is not contingent—see Drassinower—there are some basic principles that make ©  mean something. These legal concepts allow ©
to accommodate a plurality of normative considerations. This may be messy in
practice, but it is true. Our search for purity should not lead us to oversimplify.
Challenge of copyright
conceptualism: ©’s unique challenge is its legislative origins.  It is not a creature of common law.  Conceptualism is not the same thing as
textualism: looking for analytical logic underlying the text.  An idea acquires meaning through usage within
a context or domain, not through fiat. Thomas is wrong in Star Athletica to
leave behind all normative logic underlying the text of the statute and to say
that we begin & end with the raw text of the statute.
Commentary by Talha Syed, Berkeley Law
Conceptualism begins
as the search for necessary and sufficient conditions for the use of a
word/term—the hunt for essences. 50s/60s: turn to essences/family resemblances.  Third version: capture ordinary uses for good
enough work (HLA Hart). The problem, in any form, is the attempt to fix
meaning; there is always, inevitably, an unargued for smuggling-in of a
normative conclusion. This is what gave conceptualism a bad name.  Hohfeld says rights are definitionally relational:
there are no rights on a desert island. He’s building an idea.  Entitlements implicate different interests in
different contexts: a use privilege and a right to exclude are different.  The unbundling just follows from analyzing
the issue before you. The tools are normatively neutral: focal points for
positive/normative analysis, and immensely useful nonetheless. If you’re
thinking about law, you’re thinking about social relations and there’s always
burden/benefit, entitlement/disentitlement, and the interests vary by context
and purpose and it would be odd to bundle them together and act as if answering
one question answers them all.  This is a
Copernican revolution, and Gordon brings it to ©. Nonrivalry is a constitutive
feature of IP versus intangibles. This is the driver of Gordon’s harmless free
riding: prima facie, using a nonrival resource doesn’t harm others w/r/t
nonpecuniary harms. That’s a conceptual move.
Copyright
Practitioners and Copyright Scholars 
by Jessica Litman,
University
of Michigan Law School
Gordon was one of 9 women
teaching any IP course at any accredited law school when she began teaching.
Then as now the spectrum of views on IP was wide. © lawyers saw each other as a
priestly elite, and debated essential but hypothetical questions under the new
1976 Act, like “if you build a sandcastle below the high tide, is it fixed?”
Then as now, the © bar was essentially a plaintiff’s bar. Genuinely shocked and
dismayed when courts or Congress disagree w/their ideas of how to do
things.  There were insiders and
outsiders, real lawyers and those who research/practice but don’t count.  Litman worked on Gordon’s foundational
Columbia LR article on fair use as market failure as a law student! [Happy
coincidence exclamation point mine.] 
Fundamentally theoretical work, not “practical,” but nonetheless of
great relevance and potential utility to practicing lawyers.
Today, the
relationship b/t academics and practitioners is more fraught; tech has brought
more money at stake and new tech has also made hypotheticals more realistic.
Entry of new players w/significant financial and political clout, which caused
old lawmaking patterns to not work so well any more. Previously, if certain
groups agreed w/each other, Congress would enact it; upstart groups could be
maneuvered around or bought off.  That
stopped working when the new entrants came to the table w/more economic and
political resources than the quote unquote core copyright industries. Many
legacy intermediaries have come to think of © lawyers who represent platforms
and other new intermediaries as not real © lawyers at all—a disqualification
for membership in the real © lawyers club. They began to think of some ©
scholars similarly.  More recently, even
a presumption that academics who teach/write about © must not be real unless we
show allegiance to “real” © values. Oracle funded a study to show that Google
bribed academics to write; many members of the bar believed that story b/c it
matched their priors.  Next: Vicious
attacks w/ immediate goal of getting ALI to abandon its © restatement project,
claiming they were loony, extremist and corrupt enemies of creativity, which
would trash the credibility of the ALI overall. 
Popular press, legal publications, social media: nasty and baseless
(need to read some scholarship of the people attacked) [my brush with this
leads me to agree about the assumptions being made].
© rhetoric has been
overheated (Boston Strangler = VCR; HathiTrust as Plessy v. Ferguson) but seemed
like an escalation to Litman.  Maybe it’s
just the age of Trump and that’s how we do now. 
But underneath unsubstantiated nastiness, there was genuine frustration,
mistrust, and sense of betrayal unless a scholar proved herself loyal to ©
expansion.  A symptom of long simmering
grievance.  Too simple to blame the rift
on the fact we don’t agree; most lawyers get that other lawyers hold opposing
views, and she didn’t see this problem 40 years ago.  The way legal scholars think about © versus
how practicing lawyers and lobbyists think have diverged enough that we’re not
speaking the same language. 
One important
milestone of divergence: 1984, when Reagan Admin and State Dep’t were keen to
join Berne; asked Irwin Karp to get together w/Authors League of America,
Authors Guild predecessor, to write a report indicating that only minor,
uncontroversial changes would be necessary to adhere to Berne. Claimed that American
law already amply protected moral rights through contract, state statutes,
unfair competition/TM law.  This argument
was a lie.  The best anyone could say at
the time was that it was just barely colorable, but no one actually believed
it.  © professors were divided about
whether accession was a good or bad idea. 
Request for their comments put joiners into awkward position—it seemed
like the only feasible path to accession, but lying about the law is not in the
job description.  We see law differently!
We are subject to wishful thinking, but we’re also trying to discover the law
rather than to make it up. Some comments enthusiastically supported Berne
adherence but disagreed with the report’s description; some kept heads down;
some submitted carefully drafted comments that avoided discussion of the touchy
parts.  The gambit left an unpleasant taste.
Inflection point 2:
runup to the DMCA.  1993 discussions: ©
owners were reluctant to involve Congress in changing © at all, b/c only last
year AHRA had been enacted and Congress had insisted on allowing consumers to make
noncommercial copies of recorded music. Wasn’t unimaginable that it would do
the same for digital files. Yet © owners spoke candidly about difficulties of
current system, especially sound recording industry. Hilary Rosen (RIAA) insisted
that w/o public performance right there was no means to assert control over
unauthorized performances online b/c transmissions were performances. Bruce
Lehman asked “can’t you treat that as distribution of copies,” and industry
reps replied they’d thought of that, but first sale was a problem. If
authorized transmissions are distributions of photorecords, then the authorized
recipients could redistribute them.  So
they needed a public performance right. Lehman and his staff pursued a
different tack—they wrote a report claiming that © law already covered almost everything
the © owners wanted.  This time law
professors didn’t wait to be asked, and spoke up to contest the distorted view
of current legal doctrine. It didn’t matter much; academic opposition barely
affected the law’s enactment, but in the ensuing 3 years, supporters of the
Lehman approach managed to persuade each other to develop message discipline. That
message discipline has been on display in subsequent efforts to persuade USTR,
Congress, White House to get on board—“rogue websites,” value gap, etc.  It’s an effective strategy, and it’s hard to
say it’s immoral from a policy perspective, but it’s not what academics do or
like.  It’s an important and respected
lawyerly tool but not a scholarly one: message discipline is inimical to us,
whose norms look for the new and different. 
That means that professors could mess the message up if anyone listens
to us, which has produced a bunch of “stay in your lane” instructions and avoid
advocacy, amicus briefs, etc.
Does it really matter?
Instead of one priestly tent, we have two tents populated by different priestly
tribes?  Yes, it’s worth addressing.  Professors have been sidelined in law reform
arena and limited in our influence on regulation, compared to patent for
example.  That has costs, as in the MMA
which was written to be unreadable. Even if we did read it and had stuff to
say, no one listened, so why put yourself through that? The law we got includes
naked wealth transfers from composers and independents to big three labels, and
it’s much worse for our not being meaningfully involved.  Sure, some have hooked up with new
intermediaries, but many of us have things to say to the “core copyright industries.”  Gordon’s work is not about tech issues, but
about fundamental justifications.

Commentary by Justin
Hughes, Loyola
Law School, Los Angeles
Disagree on moral
rights. He believes that the © lawyers opining then believed they were lying—but
they weren’t public international law scholars. 
(It turns out that complying with Berne on moral rights, like complying
w/ int’l law more generally, is a lot easier than you might think based on what
Berne seems to say.)  Marrakesh: didn’t
recognize the earlier account of the treaty negotiation process. A lot of the
treaty’s prose is his, as chief negotiator. 
It is true that very early on, the deal was to take the MPAA out. He did
that deal. The Holy See didn’t play a pivotal role, but it addressed the EU,
not the Latin Americans.  In fairness to
PK, he was repeating hearsay b/c PK didn’t participate; Gigi Sohn was very
politically savvy and knew PK could help best by staying out, as could Google.
The acrimony b/t © and “anti-©” [my quote marks] people was so strong that disinterest
was better than participation. 
The game is a rough
one at this point.  Ask yourself what you
expect of yourself and what you expect of others. The rules are different for
social media than for amicus briefs.  Some
people [I am one of them; Hughes is not] signed on to an MPAA ad against the
ROP law proposed in NY; if you signed on to that, you are political fair
game.  We need to spend more time
thinking about the rules of engagement for ourselves, including conflicts/appearance
of conflicts, which law professors often discount.  The Oracle study: there was a lot wrong with
it, but we need to spend more time as a community talking about disclosure and
what constitutes conflicts of interest. 
Arti Rai and I have had to disclose everything to serve in government,
which is the cost of service [unless you belong to this Administration], and
not everyone in this room would be willing to do that. 
We don’t spend enough
time talking to people outside our tent. 
It’s scholarly malpractice to write about something where people are
alive and you don’t talk to them, e.g. how the PTO works, but we’ve separated
ourselves so much that we are treated as outsiders. Spend more time talking to
practitioners and interview them, as Silbey does.  The only way you’re justified writing only on
the paper record is if everyone involved is dead. [This strikes me as an
interesting thing to say right after we’ve just heard so much about
conceptualism; I don’t actually have to interview Tam or his lawyers to write
about the implications of
Tam, so I take Hughes to be making a narrower complaint about
when people write about the political economy of decisions, particularly
legislative decisions.]
Yen: For some of us,
this seems like our parents’ fight—CSUSA has been perfectly welcoming to
academics. Don’t poison what can be done going forward.
Litman: the current
barrage of abuse is less than a year old, so it’s not old news. [I would also
point to the rhetoric at the 512 roundtables, which is less bad than the
incidents Litman describes but not exactly welcoming.]
Feld: He’s done
telecom and other fields, but IP is clearly much more poisonous than his comparatives.

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