IPSC: Closing Plenary

Stephanie Plamondon Bair, Brigham Young University J. Reuben
Clark Law School
Innovation’s Paradox
Innovation begets innovation in a virtuous cycle … at least
sometimes. Not all innovations are productive, which is fine; it’s trial and
error. But some innovations may inhibit our potential for future innovation:
how?  Neuropsychology: certain
innovations may change the way we think in ways that make it more difficult to
think creatively.  Attention span and
filtering out unwanted information: focus on a task and selective filtering are
both important to innovation, and heavy digital media use seems to interfere
with our ability to do that.  Processing
information differs too: our brain processes digital information differently
from hard copy. People are more focused on concrete details than to think abstractly
for digital relative to analog, and abstraction is a necessary component of
creative thinking.  Screen time may
impact empathic accuracy, which is also important to creativity.  Creative tools: photoshop etc. Are they
unmitigated wins for creativity? Downsides: default settings on programs may
channel creativity in particular directions—users of one music editing software
program are very likely to produce 120 bpm tempo songs b/c that’s the default
while users of another are very likely to produce 140 bpm tempo songs b/c that’s
the default.  Also concerns about whether
people can produce crap: “just b/c tech 
has made it easier to create and express yourself does not mean you’re
any good at it”: Hegarty on Advertising. 
2012 analysis of creativity scores show declining scores
since 1990 while intelligence scores have gone up. Over last 20 years, “children
have become less emotionally expressive, less energetic, less talkative and
verbally expressive, less humorous, less imaginative, less unconventional, less
lively and passionate, less perceptive, less apt to connect seemingly
irrelevant things, less synthesizing, and less likely to see things from a
different angle”: Kyung Hee Kim, The Creativity Crisis. Not causation argument,
but correlates w/rise of tech. [And with massive explosion of
inequality/precarity?]
Tech/innovation: we tend to think about them as passive
tools that we can use or not as we see fit. But innovation can be acting on us,
in ways that might impact our ability to continue to innovate.  Not new idea to philosophy literature.  Even if you’re practically minded, it’s an
idea worth grappling w/ b/c of potential for negative effects on innovation
going forward.  Also connected to
literature on quality of innovation.  IP rights
may incentivize low-value innovations more than high-value innovations; this
dynamic she identifies here may be another social cost to grapple w/.
Has focused on costs and not benefits, which are undoubtedly
present. Also it’s not necessarily the existence of these innovations, but the
way they’re used/overused/misused.  California
required all textbooks to be available digitally; Florida followed suit; state
educational budgets have been devoted to getting tablets into public schools. We
should have a conversation about the downside of these policy decisions.  Mo. Sen. Josh Hawley’s bill targeting social
media companies; he wants to require them to get rid of features that might
lead to overuse of their products like infinite scroll, autoplay.  It’s an intriguing idea in this context.
RT: inequality/precarity; also want to know how much of this
research relates to WEIRD
subjects
versus others.
A: bound by what the existing research says; we might want
different policies for developing countries. Just wants to be clear that she is
vigorously extrapolating.
McKenna: you’re talking about two different kinds of
studies. One tests microeffects of particular technologies. One looks at macro
effects on children over extended periods, and causation is hard. Our education
system has shifted to testing drill & kill over time and it’s no surprise
kids are less creative in response.
A: meta-analysis on creativity shores up the results, but
most literature she’s relying on is testing for particular technologies.
Charles Duan: look at historical examples: people said
similar things about television, the printing press, etc.  [I’m very sympathetic to this criticism and I
very much want it to be true but on the other hand people have predicted
climate apocalypse for hundreds of years and this time they seem to be right
(and also we have a lot more empirical information than we used to about both
of these topics).]
Q: There is some work on autistic people in the patent
system. 
Q: innovations you point at are general purpose or platform
technologies, or both.  There are
literatures about how these technologies diffuse and affect development of
downstream tech.
Rosenblatt: how do you view the relationship b/t progress
and path dependence? 
A: interesting things in philosophical literature on tech as
monolith that moves without our direction.
Justin Hughes, Loyola Marymount University Loyola Law School
The Law of Digital Avatars (or Replicas)
His definition: digital manifestation of person.  Convincingly lifelike representations of
people are currently 2D but will be 3D soon. 
They’ll make banking and travel more tolerable; they may provide
companionship to elderly, infirm, or lonely. 
May also convincingly replicate people we know.  Pandora’s Box: the person represented may never
have said or done the things we will see. 
Stunning range of potentially relevant legal doctrines, from ROP to
fraud.
Kim Kardashian and Barack Obama have been convincingly
replicated; could be used to deter voting among African-Americans by telling
them voting hours have changed, etc. 
Deepfake porn, though need not be porn (e.g., fake crime). The question
of whether some sort of lower bound of authenticity is required to care is
key.  E.g., 2018 NY proposal started by
covering realistic depiction and then that was amended to remove a realism
requirement.  Grandparent/military
romance scams will proliferate.  Hologram
actors will replace human actors. Xinhua news agency launched a digital news
anchor, which will say whatever you want it to say.  DeepNude: worked on a single picture of a woman
(it only worked on women) to show “her” nude because it was trained on images
of naked women.  Single pictures will
soon be enough for a lot of things.
Is there a possible common approach that would be sensible,
helpful, and constitutional? It is generally thought that false
designation/defamation won’t work on deepfake porn because that mostly has
disclaimers.  Revenge porn laws used
against digital replica porn?  Depends on
the wording of the statute. Connecticut law clearly requires actual photo,
film, or other recorded image; Penn. law says visual depiction defined as
representation by film, including but not limited to photo, video, film or
computer image.
Digital replica porn proposal in California—predicts that
something like this will pass soon—carefully includes digitization. Creates
liability for intentional creation w/knowledge of lack of consent; victim has
to prove some harm. Despite those limits, seems to cover deepfakes of celebrities,
digital replica revenge porn, and unconsented enhanced sex scenes in feature
films where actor didn’t agree to what was shown on film.
NY proposal on digital replicas isn’t focused on revenge but
on employment: provides a right to control digital replicas if they show person
performing activity for which s/he is known in the form of a fictional
character: the idea is to permit unconsented depiction of digital avatar of
Hugh Grant being arrested but not unconsented depiction of digital avatar of
Hugh Grant playing Wizard of Oz.
Federal proposal from Sen. Ben Sasse: define deepfakes &
create offense of distributing it with intent to facilitate criminal or
tortious conduct. Tries to address 1A issues including US v. Alvarez by carving
out anything protected by 1A; may have to rethink Alvarez to address the
dystopic future.
Rothman: (1) you talked about 1A but not about copyright
conflicts. (2) Should you really think of all these issues as amenable to
common solution?
A: grappling with (2). Simplest global issue: a ban on
unauthorized digital replicas, period. 
That’s not a viewpoint restriction, probably a content based restriction
(though he says you could conceive of it as a time place and manner restriction,
which sounds wrong to me).  But Sasse’s
approach seems close to a globalized solution. 
[That seems wrong, at least w/r/t revenge porn—the Sasse proposal is
targeted at fraud, but the revenge porn issue is that there isn’t particularly
a cause of action for many instances of revenge porn unless we add a new law.]
Mike Carroll: disclaimer requirement?
A: convincing deep fakes with disclaimers may still fool
people; disclaimers often fail. TM law doesn’t favor disclaimers [but First Amendment
law does].
Said: actual v. constructive knowledge in Sasse proposal—wondering
what the thinking is.
A: probably not much thinking as yet. 
Betsy Rosenblatt, UC Davis School of Law
IP and the Question of Who Creates
What’s the difference b/t an inventor and a technician (e.g.
calculators in Hidden Figures)? What’s the difference b/t an inventor and a
mechanic?  Is a scrapbooker an
artist?  Who is a filmmaker?  What biases could affect our answers to these
questions?  Law is a particularly
powerful voice in this discourse b/c it speaks w/the power of the state.
IP systems create a discourse of value, assigning it to particular
creations by giving their creators exclusive access to markets. Promotes (only)
creation of things w/predictable market value, covered by IP. Lots of other
things get made, but IP only promotes some (negative space literature). Influences
what kinds of things get made—Kate Darling and Sprigman/Raustiala on adult
entertainment; Fumi Arewa on Nollywood. Low-IP spaces seem to feature fast
turnover and live performances. Higher protection results in more investment in
polished products.
But that’s all about the what. She’s interested in the who. Critical
theory/critical race theory: the IP system isn’t neutral in application and
effects, structural benefits to wealthy/powerful.  Everyone is a maker of sorts but some of that
making is special, recognized by law/society as meaningful. Foucault described
the author-function as a discursive mechanism by which we grant respect/authority
to some people and not others. Distinct from authorship in © law—under ©
everyone’s an author—but not all authors benefit from © discourse.  We can extend author-function to
inventor-function, brand-function (legitimizes brand owners over consumers even
though both contribute to meaning).  Foucault
envisioned recognition of dialogic relation as erasing the author-function, but
that’s not our world.  IP law picks some
practical winners & losers as well as winners & losers in discourse by
elevating certain voices.  Reflects &
reinforces hierarchies of race, class, and gender. She’s not the first to
observe this.  Wants to add that IP law
may also concentrate cultural respect in certain hands.
Norms work well w/in communities and not very well in
regulating interactions b/t communities. 
In these situations we need to be especially mindful of opportunity for
exploitation of less powerful by more powerful who disrupt norms that are
working. Not just where norms govern subcultures (street artists need
protection against developers, as with 5Pointz/VARA claim), but also where
things like norms of agent submission protect the film industry from random
people who send stuff in and then sue.  That
last norm exists because of law. Lots of specific doctrines favor those who
control the means of production.  Product
patents being more powerful than process patents: but who comes up with new
uses for existing things? Those who have to make do what they have.  The access/similarity test favors the famous.
Fair use—see Andrew Gilden—favors the famous. Ownership/authorship standards
giving mastermind the ownership do similar things, as does WFH.  Effort of users redounds to the benefit of TM
owners. 
What’s new here? The way this feeds our discourse about who
is doing things of value. We end up revering visionaries who may not be the people
who should be revered. Edison and Musk hired a lot of innovative workers whose
names we will never know. The garage inventor is more likely to be a white man
because being a garage inventor requires having a garage and we live in a world
with redlining/massive wealth extraction from African-Americans. Those who live
in a world of precarity are considered amateurs and considered bad.
But doesn’t IP allow those with humble beginnings to rise
and thrive?  In many ways IP makes it
harder for those voices to rise, making it harder to get out of the amateur
box. At the beginning, when you don’t have many resources, IP stands in your
way.
What is to be done? Has some, including small doctrinal
fixes, some of which might fall into the category of more rights: attribution,
termination. There may also be places where less makes sense. But also wants to
change discourse about who matters as a creator.
Maggie Chon: good to hear about justice, power,
representation.
RT: The concept of respect explains why your proposal isn’t to
decide all disputes in favor of the less powerful person before the court. But what
if it’s really all about labor law and tax law? [Lemley adds antitrust law, but
I’m not sure we’d need antitrust as badly if FB and Alphabet and Amazon didn’t
have so many billions sloshing around to be used to crush competition where
necessary.]  FB could buy out innovative
competitors b/c the tax rate is too low. 
What if you only change the superstructure by changing the structure?
A: Catherine Fisk’s work on labor is really instructive.
Labor law has a role to play here. But we should also be thinking about
innovation law specifically.
Zahr Said: distinguish discursive harm from legal harm.  Some people will distinguish the two.  What about remedies?  Even if on the merits a court finds for a
party, the better-resourced P gets so much more out of the process (or the D gets
to deduct a bunch of expenses).
A: Costs of acquiring/enforcing rights is a huge piece of
this.  Defenders say that marginal value
of money means a small recovery for a small P is fine, but she’s not convinced.

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