A Celebration of the Work of Wendy Gordon

Workshop Schedule
Intellectual Property
Harms
 by Jessica Silbey, Northeastern University School of Law
From book focusing on
the idea of progress in IP law, with more interviews w/people in creative
industries. Is it just more IP?  What IP
is today has shifted dramatically from past concepts.  Uses of IP in various ways, including using
the patent act to remove inventors from a patent when a relationship has failed
when that provision of the Patent Act contemplated adding them.  IP is grounded in fundamental interests/values:
equality, privacy and its evolution, distributive justice, harm.  The book considers equality and privacy in
the case law and looks at concepts of justice/harm.  Many harms are not about individual injuries
but about systemic dysfunctions, though usually conceived of as individual
(pirates, trolls, greedy companies). 
Cases about volition and intentional inducement: individual motivations
and bad actors. But what we might hear as individual harms/abuses are in fact
descriptions of failing, dysfunctional institutions: poisoned barrels, not bad
apples.  Hard to see in our everyday
life. Imbalanced, corrupted by incumbency bias, plagued by breakdown of
civility norms—not foregone licensing fees, zero-sum contests. The critiques
are about bias, imbalance, structural disadvantage. A moral critique of how IP
should function.  Precarity: late stage
capitalism produces insecurity and vulnerability around the uneven distribution
of cultural and economic resources; insecurity about future.  Feelings of belonging are about
identity/difference rather than about a shared fate, and that’s what she’s
hearing in the interviews: this isn’t a story just about IP but about late
stage capitalism and the naïve promise of technolibertarianism.
Interviewees:
patentees are cynical about it; the system enables and even incentivize forms
of nonphysical assault.  It’s about men
spraying testerosterone.  Interviewees predict
who will win based on characteristics of the parties: Ps identify the “weak
links” in a change—who can survive “squeezing”—the language of coercion.  Many use “feudal” or “rapacious.” And this
infects the quality of the work they do. 
A system where the rewards aren’t proportionate to who’s doing the work
and how: e.g., an archive gets a collection of photos for free and then insists
on large fees—ineffective competition and market restriction. We should talk
about the values embedded in IP and how they’re being achieved: a shared fate is
a good way to think about what progress ought to mean for IP.
Commentary by Mike Meurer, Boston
University School of Law
Silbey’s previous book challenged IP as
incentive story. Public debate now includes lots of sociopolitical issues such
as diversity and nationalism, esposing debates about progress that are no
longer centered around economics/incentives. The Patent/© clause of the Constitution
isn’t helpful in figuring out what to do b/c there’s not enough from the
Founders to interpret. Graham v. John Deere & Feist talk to us about the
rationales—utilitarian even if not entirely incentive based—but Silbey is
really interested in propertarian concepts of IP, not incentive/economic
accounts; lots of economists are not propertarians.
Many interviewees feel screwed by the
system, but there are other examples of successful collaboration/openness—The
Knockoff Economy
.  There is sharing at
conferences, e.g. open source/AI (except Apple).  Informal “research exception” for genetics
researchers who just ignore existing patents. 
Precarity is a problem in low tech and high tech—not limited to
knowledge economy or US. Decline in labor’s share of value/productivity
divergence. The solution probably isn’t changes in IP; employment and labor law
would be an area for intervention; policies that speed diffusion of new tech,
perhaps by essential facilities doctrine.
Bob Bone: how do you distinguish between
the harm and the cause of the harm?
Silbey: answers have to be
interpreted.  Filmmaker complains that
she can’t get access to photos and the $ demanded doesn’t even go to the
photographer!  Have to attach meaning to
that narrative, and have to justify explaining that as a result of systems and
not individuals.
Q: IP is not autonomous, but the project
may be too big if it’s about malaise/social breakdown. [Although if nothing
will help authors without bigger changes outside of IP, that seems like a fact
worth knowing.]
Copyright
Jumps the Shark: The Music Modernization Act
 
by Lydia Loren, Lewis & Clark Law School
Gordon has written about © as tort; the MMA can’t be justified on tort
theories. It’s a complex licensing deal worked out by industry insiders to fix
(in several senses) aspects of music licensing. 
Added 24,072 words to the Copyright Act, which was 33,759 words in total
in 1976.  The Musical Work Modernization
Act is the bulk, largely in §115, which is now 18,324 (up from 2742
words).  Mechanical copies of musical
works and “covered activities” for purposes of a blanket license.  Blanket/compulsory licenses reduce
transaction costs.  Streaming previously
didn’t create a mechanical copy; now it is considered to do so for certain
circumstances—created a transaction cost and then solved it (though the problem
started in ratesetting proceedings).  An
interactive stream is a digital phonorecord delivery, so a mechanical license
is needed, so a blanket license comes to the rescue.
Harm v. benefit: harm matters to most
people on a moral level; prohibitions against doing harm are deeply embedded
whereas not paying for a benefit is iffier. 
To have any moral bite, harm must mean something other than a benefit
not achieved.  What is the harm the MWMA
seeks to remedy? The right to be paid for mechanical copies created in the
course of streaming.  But it was a public
performance before, and still is, and musical work owners got paid for that—they
just wanted to be paid more, and now they’ll get paid for the public performance
and for the mechanical copy.
Another possible harm: unequal treatment
of different creators.  Sound recording ©
owners were getting more money!  This is
subjective distress: harm comes from someone you see as similarly situated
getting treated better.  So what would
keeping authors at the core of © look like? 
Title II of the MMA is the Classics Protection and Access Act, dealing
with pre-72 sound recordings.  Now they
have federal rights, though not federal ©. 
Rights not to the performing artists, but to whoever owned the
reproduction right in the sound recordings under state law, and that’s the
record labels. Fails Gordon’s standard for expanding © by granting rights to
non-authors who disseminate works: it should be in aid of authorial creativity.
Another violation of authorial preeminence:
MMWA covers royalties collected for “unmatched works.” Collected, but not owed
to an artist. After 3 years, if uncollected, the statute says they should be
given to matched © owners—allocated to the owners of the most popular works,
furthering inequality in the music industry. 
Statute says “equitably” distributed to known © owners (which
most people assume mean distributed by market share); can’t do anything
creative like providing health care to session musicians or fund arts in
schools.  Only if there’s a side deal
will money flow to the artists.
Equality and fairness: for musical
works, interactive streaming is now a mechanical copy, license set under
willing buyer/seller standard; noninteractive: not a mechanical copy, no
license needed. For sound recordings, we don’t know about interactive streaming
and there’s a statutory license for noninteractive streaming. So in fact there’s
no equity in any of this treatment. And when you add in nondigital transmission
it gets worse! For musical works there’s PROs subject to antitrust supervision
because they have a public performance rights, but sound recording © owners get
nothing.  Each type of treatment is
different.
There is also not equity as between pre
and post 72 sound recordings.  One place
where it’s equal: digital payments to performing artists for non interactive
streaming royalties: the statute prevents diversion to the labels.  For post 72 artists, for noninteractive
streaming, there are no requirements whereas the pre 72 artists get direect
payments.  (Note that many of these pre
72 artists are dead; the money will go to the heirs or the labels.)  Pre 72 artists have no termination rights, and
post 72 artists may.
Commentary by Greg Vetter, The University
of Houston Law Center
Theme:
mischaracterization of creators’ interests by disseminators in their advocacy.
Why is this area so reliant on Congressional writing of licensing schemes?  Is it about which industries focus on
creators more than disseminators?  E.g.,
theater/performing arts is creator focused and software is disseminator
focused.  Why is music (and broadcasting)
so overly dependent on congressional codification versus movies, books, news,
etc. [I’d add in market concentration among disseminators—without that, there’s
less legislative pull]. Software has its own private licensing systems (FOSS).
More generally, why is it so industry-specific compared to patents, which is a
much more unitary system?  Patent people
use © as an example of why we don’t want industry specific patents given all
the rent-seeking.
Even with the inequity,
is getting licenses for orphan works a net win for transaction costs? [Compared
to what? If there’s a no-right situation, then there’s no holdup either way.]  The issue is possible state law protection—standardization
from that could have benefits.
Loren: true, the
standardization from state rights was a benefit.
Litman: a couple of
bombs hidden in the text: one of the reasons to say the pre-72 works weren’t “©”
was to deny a termination right, and also another was that many state laws didn’t
require written transfer of © interests, so lots of record labels don’t have to
demonstrate that they actually own the rights—that’s cheating. With MWMA, the
major labels all have direct deals with the streaming services—so the statutory
license is really covering independent/self-publishers, but the result is that
the organization gets to collect and keep the royalties, even though pretty
much
all the royalties are from
other people’s music. No academic had any input into this bill at all, as far as
she can tell. 
Hughes: paper should
make more clear that digital photorecord delivery was already messed up. Now
that Spotify etc. permit tethered downloads, there really is a copy, so it’s
less messed up than it was. Given that we were already in that mess, when you
couldn’t identify the owner, you filed a Notice of Intent w/the Office, and Spotify
& Pandora & Amazon & Google filed 25 million of those. They don’t
have to pay until the © owner comes forward. 
Isn’t this a little better, because at least some of the money will go
to the artists? If the database is good, the unidentified works will shrink.
Loren: there’s
definitely some things that are better, but we should see how the whole thing
works. Has her doubts about whether the unmatched works will shrink a lot.
Chris Sprigman: NOI
issue was a response to the inability to match sound recordings to underlying
compositions, an inability that has been going on for a century.  Blanket license: you can think of the payment
to popular © work owners as a penalty default; independent labels presently
provide very bad data to streaming services. Majors do a better job. Maybe this
is a stick to get independents to provide better data; if it doesn’t work,
their money will get given to someone else, and maybe that’s not an outrage.  Data need to be shared not hoarded.  [He disclosed: he represents Spotify.]  International standard recording codes and
international standard musical works codes are really badly matched.  Congress is resolving a public goods problem
with a penalty default. Not the most kind hearted response, but one with a purpose.
Hughes: Spotify did
propose sending the orphan $ to the arts/musicians; it got shot down.
Traditional Knowledge
in the Image of Private Law 
by Ruth Okediji, Harvard Law School
AKA Locke, the Bible,
and Wendy: Lessons from Marrakesh: Gordon’s A Property Right in Self-Expression
has been one of Okediji’s guiding stars in thinking about int’l ©.  There’s a lack of clarity in Locke’s
treatment of the right to exclude.  The
sphere of liberty excludes other claim rights, but doesn’t resolve conflicts
between spheres of liberty. Liberty is a right of everyone; it doesn’t permit hierarchy.
The public domain has
a heavy burden: tool of choice for policy arguments about the appropriate
limits of IP: distributive justice; misalignments b/t economic incentives to
create and distributional results; access to knowledge for downstream
innovators.  Global context: effects of the
incentive argument and public domain argument on human development needs of the
global South.  Human progress/flourishing
as motivation force behind IP protection, but limitations & exceptions don’t
go to the needs of the Global South. Treating the public domain as property can
also do damage; our doctrinal tools are too limited to counter the influence of
property rights as one of the principal tools.
Implications for
traditional knowledge, where law is silent but there is a conflict. Public
domain advocates, and incentive advocates, often treat access to TK as a good
thing. But takes intellectual capital from vulnerable communities: our theories
essentialize the nature of creativity; reorients society around commodifying
practices.  Nondiscrimination as a
principle in the public domain is a fallacy like colorblindness in antidiscrimination
law.  The notion of the public domain as
a place for more & more goods to consume is impoverished—we need to
challenge the notion of what it means to flourish in human society.
For Locke, liberty is
mandatory—it has a social, relational benefit and not just an individual
one.  Stewardship is the concept for
thinking about individuals who are operating rationally and autonomously but in
a community. 
Tacking
Locke/Gordon/the Bible seriously would require a fundamental change in
limitations and exceptions.  We think of
L&Es as things we’re forced to do; reluctant to recognize constraints on
property rights. Dominant treatment is that L&Es are discretionary; property
rights are supposed to be certain and so it’s ok if L&Es are
uncertain.  Voluntary codes encourage
payment.  Inconsistent w/Lockean idea
that speaking, remixing, creative play shouldn’t be left to the discretion of
the state or institutions that facilitate access to public goods.  Like telling kids they don’t have to learn to
read if they don’t want to. Our L&Es emphasize civil/political liberties
and not community [hey, I
wrote something about that
].  They
are discriminatory (treatment of hip hop in music) and emphasize the economic/material
and not the social. Human rights are less prominent than they ought to be.
Uncompensated L&Es
in the Berne framework are centered around liberties. Some reinforce subject
matter boundaries, such as news of the day. But states can decide whether to
give © to official texts and works of applied art. Need to address different
kinds of users, larger scale of use (including by gov’ts), and cost of bulk
access to works. Need to deal w/formal and informal customs & practices
that don’t have the certainty that we demand of “legal” rules.
Marrakesh Treaty: not
perfect, but it works.  Mandatory
exception; freedom to cross national boundaries, not just institutions but
person to person; recognition of “the least of these”; incentives to structure
institutions that enable human flourishing. Right to property corresponds to
obligations arising from property.

Commentary by Harold Feld, Public Knowledge: Lobbyists can’t usually just hand bags
of money to politicians; they need to create narratives to justify their
interests. MPAA almost killed Marrakesh Treaty at the last minute; there’d been
a deal to exclude visual works and they wouldn’t oppose, but MPAA reneged on
the deal at the last minute, demanding language to protect © owners from the
blind: they didn’t like the narrative that there are rights and public interest
considerations sufficient to displace what MPAA believed was fundamental right
of ownership.  A compelling and simple
story to the contrary—fundamental values can trump this right, as in real
property—is terrifying to them. What changed things: the Pope and Stevie
Wonder.  The Pope sent an official papal
embassy & told them “thou shalt not put a stumbling block before the blind,”
and Stevie Wonder told the delegates that they should do this.

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