IPSC Panel 9 – Crosscutting IP

Derek E. Bambauer, Everything You Want: The Paradox of
Tailored IP Regimes

Customized IP has benefits (avoids lowest common denominator
[or highest] problem), but also costs: manipulation to shift from one regime to
another; colleciton of information by decisionmakers.

Standard debate assumes semi omniscience of designer
neutrally concerned with social welfare. What if rules are largely written by
the regulated parties? Bespoke systems are often underutilized by their own
designers and outmoded. The paradox of getting your way and finding it
Examples: Vessel Hull Design Protection Act. Industry pushed very hard against
cheap copying, and yet as of 2019 there were only 538 registrations in 20 years
versus hundreds of thousands of utility patents. Was more heavily used 1999-2003.
It seems that boat designers/manufacturers used C&Ds under this regime, but
there were 1100 utility patents on boat hulls and 20 design patents since 2013,
which was the last boat hull registration. Sharp shift to regular regime. Fed.
Cir. found in one key case that boat hulls didn’t infringe if the decks were
different. Registration is fast—takes a month—versus patent, but term of
protection is only 10 years.

Computer chips: Semiconductor mask works, 1984. Through 2012,
only about 1000 registered. Technical reason: as chips have grown in size and
specialization, reverse engineering is more expensive than designing them from

Audio Home recording Act: Excluded general purpose
computers, so whoops. Diamond Rio case: excluded MP3 players. Customers didn’t
like paying more for DAT; CDs won.

It’s hard to write and get passed exactly what you want—industry
insiders may compete. Also, as a tailored regime begins to flow closer to a
generalized regime, it falls down the gravity well of the general field and is
overtaken. Maybe small changes are easier to pass.

Industries design for current needs and not for what it may
evolve to because innovation is difficult to predict (like the future),
especially if generated by upstart or edge firms or driven by wider tech
changes. Even if we assumed incumbents have better info, their own internal
pressures exist to align legal rules w/existing business models. Give and take
of legislative process may be better when it harnesses information from more
stakeholders than those who are generating the IP. Tailored regimes may also be
tightly coupled and fragile—subject to disruption/irrelevance from one unfavorable
judicial ruling, like boat hulls.

Generalized regimes are more adaptable, adjustable by more
institutional stakeholders (judges, admin agencies, the bar). Overton window:
you get your specialized regime; it’s difficult to revisit that after something
changes because the legislature thinks it’s done. Copyright Term Extension Act:
blatant rent extraction generates or increases opposition. When Big 3 automakers
requested their own tailored design regime to exclude repair parts, Congress didn’t
want that.

Bespoke regimes may divert innovation—music industry was
successful in delaying and killing off DAT, but that allowed the rise of the
CD, and MP3s, and then Napster and P2P.

IP industries have historically been terrible at
prognostication, as w/the VCR. Maybe we should be less worried about attempts
at incumbent protection/rent extraction via IP.

Even if my thesis is right, it will still be an irresistable
lure/strong optimism bias, which will cause incumbents to concentrate on
legislative activity instead of innovation under the standard IP system.

Jake Linford: are there overlaps with patents and boat hulls
suggesting two bites at apple.

Bruce Boyden: another reason is that crafting a bespoke
system takes years, making narrow legislation more likely to be out of date.

Mark McKenna: Another explanation was maybe these bespoke regimes
weren’t addressing actual problems; overrepresentation of people w/specific litigation

Betsy Rosenblatt: If they solve problems, general systems
might be much better at solving specific problems and not advantaging opportunists—a
narrow protection might be harder to manipulate.

RT: Before coming to a conclusion about comparative
advantage, consider what creates trolls in more general system: different kinds
of exploitability of larger systems. Consider compulsory licensing as a midway
point here as well. Also, the history of DMCA was that 512 was the price (which
the © industries thought was small) for 1201; 1201 turned out not to be worth
it, which supports your argument, but also indicates that matters can be more complex
if there is horsetrading across regimes. 

Mala Chatterjee, Understanding Intellectual Property:
Expression, Function, and Individuation

© and patent differ in breadth and type of rights (copying
requirement v. independent invention). Treated as distinct and scholars warn
against overlapping rights. But what are the subject matters and how are they
to be distinguished?

Argues that defining difference b/t creative works and
inventions is the way in which they are individuated. Creative works are
author-individuated while inventive works are structure-individuated. Two acts
of authorship can’t result in the same creative work, only structurally identical
works, while two acts of inventorship can result in the same invention.

An author who has made something has said something. Sets
aside what counts as expressive work, but the defining feature of the category
is speech. Expression is the kind of thing for which where it comes from makes
a difference to what it is. Author’s work is uniquely hers even if others might
also be connected to it and might make things that look alike. Pierre Menard;
appropriation art where the point is that it is structurally identical to
something else—Warhol’s Brillo Boxes and Pettibone’s Brillo Boxes, and this
matters to their aesthetic properties.

Inventions are importantly different from creative works in
being tools: instrumentally valuable for some specified end. This isn’t to say
that it doesn’t matter at all who invents: it could be historically relevant
that both Liebnitz and Newton invented calculus, but that doesn’t make calculus

Vindicates core features of the structure—originality as ©
requirement—must come from author, not must be novel. Independent creation is
likewise justified. For patent, this makes sense of utility, novelty, and lack
of independent creation defense. Ownership is of linguistic description of
structural properties of invention.

For ©, standards of proof are wrong if they allow inference
of copying from structural similarity alone; theory also refutes rejections of
transformativeness where clear meaning to audiences is different even w/o
structural change. Also relevant to some patent doctrines (sorry).

Jeremy Sheff: Paul Goldstein has told this story several
times—quotes a colleague saying if Shakespeare had died as a child, we would never
have had Hamlet, but if Newton had died as a child, we would still have
calculus. He sees this as something about teleology of patent and ©: what they
are and what ends they’re for. Do you care about ends?

A: don’t know what it means for design of legal systems unless
paired with theory about aims of legal systems.

Linford: is this reputational? Richard Prince is understood
to have a different meaning/authorship of his works because of his reputation.
That might have implications for what counts as authorship in cases like
Garcia. Is this bringing in concepts from TM/ROP about branding? Could a patent
turn on the personality of the creator?

A: recognizing that creative works are more tied to authors
generally than invention is. Need to look for authorial intent, but part of
what tells us is whether that results in successful communication is context
surrounding the actor. But not saying that authorial intent wholly constrains
the work.

Mark McKenna: sounds like Abraham Drassinower’s theory—he says
he’s explicating a view inherent in © as a system not a metaphysical view that
there are things that are inventions out there in nature. Are you making an
argument that these are not just legal constructs but things that are true
about the world?

A: aligned with Drassinower but one important difference is
that she is starting not just with legal system but with works and practices
surrounding them and arguing that they are plausibly real things in the world.

Betsy Rosenblatt: pace Amy Adler, doesn’t your approach kill
all of © if it’s about individuated expression? © is at odds with that at least
for the sorts of works that are personally expressive. We don’t care about authenticity
of an air conditioner manual, but it’s still in ©. Also urge you to include
recipient/dialogical creation of meaning, which helps you—an invention is
structurally the same to every recipient and expression isn’t.

A: not quite all of ©, though it does suggest limits. 

Dilip Sharma, Arbitrability of Intellectual Property

Indian cases have long pendencies, making arbitration more
attractive. WIPO offers mediation and arbitration services. Number is rising,
and expected to rise in India. Court: Booz Allen v. Hamilton—only disputes
involving rights in personam are arbitrable and IP isn’t. Delhi High Court also
held that © infringement can only be dealt with by courts because the statutory
remedies are all there is. But Eros v. Telemax allowed arbitration: law said
that every © suit or civil proceeding should be instituted in a district court;
but interpreting that to bar arbitration would be too broad where the IP
dispute arises out of a commercial contract. Another case: patent disputes
about infringement were not about in personam rights and were arbitrable.

Other nations: much more pro arbitration. Countries may
require registration of arbitral award before it’s enforceable. India needs
legislative support.

RT: Does India recognize UDRP results? It’s mandatory for registrants
to agree. Possible model?

A: to the extent required by international rules, yes, but
not much support.

Ana Alba: consider enforceability of international arbitrations—that
is also required in some cases.

Mauritz Kop, Quantum Technology: Waiving or Pledging IP?

General principles of quantum mechanics: physics of very
small + engineering. Superposition, entanglement, tunneling: defies laws of
physics on the macro level. Applications: computing, communication, sensing, simulation,
basic research, and AI. Not yet many use cases beyond cybersecurity, finance,
and defense; consequences remain mostly unknown. Dual military/civilian uses
are possible necessitating export controls and shared tech transfer policies.
Foresees heavy regulation and chilled innovation given the very high risks. Key
principle: equal access to benefits. Similar motivation to open COVID pledge,
but key quantum tech is now controlled by a handful of multinationals, universities,
and gov’ts. Could we temporarily override rights in quantum tech to repair
market power problems?

Should build on adjacent fields like CRISPR, nanotech, which
also require huge initial investment. Looking for mechanisms beyond social solidarity.
Right now waiving IP would have no effect without sharing knowhow, since
patents don’t disclose that right now; there is no skilled workforce available;
clean rooms are very expensive. Pledging IP looks promising given the current
limited number of stakeholders. Lack of consensus about whether a special
regime is needed.

Sheff: questions about resource limits being more important
than IP

Rosenblatt: given those resource requirements, maybe history
of nuclear regulation is more important than history of AI regulation

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