Selective Exploitation, Kristelia García

Justifications for deference to rightsholders in enforcement
context are less persuasive than justifications for deference to rightsholders
in exploitation decisions. These aren’t infringers—outside of ©’s standard
infringement/remedies scope. Conduct at issue: shifting content from Peacock to
Hulu, pulling shows from streaming services once they’re cancelled, making them
impossible to access. Denying a platform access to a work that a platform has
decided is not worth continuing. Batgirl pulled for tax reasons. Disappearance
clusters around mergers and quarterly reporting where they want writeoffs;
independent of consumer demand. Subsidizes content removal in a bad way. Accounting-driven
disappearances.

Reputational concerns also lead content to disappear—race-changing
makeup in 30 rock; Dr. Seuss edited to remove what are now understood as racist
caricatures.

Consequences: for access; for competition/raising cost of
competition; for creators—lose residuals when removed from popular platforms
like Netflix.

Conventional tools aren’t helpful: fair use; antitrust—pacing
and breadth problems; statutory licenses siloed by medium & tech and don’t
speak to suppression or streaming; misuse is closest but that’s a defense targeting
license term rather than refusals to license.

Proposed interventions: nonuse reversion rights; reducing
write-off incentives/introducing a public access credit; broader conception of
consumer harm; open-access analog—currently FCC or FTC lack jurisdiction over
streaming but we could impose some preservation mandate.

Trademarks as Gatekeepers in Open Culture, Aman Gebru

Open platforms invite community investment but retain a less
visible, restrictive layer of control—descriptively, use TM on the back end.
Welcome your investment until the platform is mature, then strategy of being
more restrictive. Case studies.

Reliance-based information asymmetry: encourage people to
contribute resources for free, then take ownership of the value thus created.
Case study: WordPress: widely used nonprofit open-source content management
system. Automattic v. WP Engine: competitors in for profit services built on
WordPress—TM claims made against competitor; blocked access to wordpress.org.
Divided community—some say that for-profit entities should have to donate/help
out; others say that a single person shouldn’t control open access resources.

Dungeons & Dragons: open game license in 2000; updated
in 2023 with an even more permissive and irrevocable public © license. Independent
publishers invested resources developing compatible products, but leaked
documents indicated Wizards of the Coast intended to substantially limit those
permissions and demand royalties for projects making over $750,000.

SSRN: acquired by for-profit Elsevier in 2016. Widespread
concerns about restrictive commercial practices, but concerning & unclear
changes to permissions.

Musk v. OpenAI—unjust enrichment b/c OpenAI was founded in
2015 as a nonprofit research lab. No ruling on the merits, but does demonstrate
reliance concerns for investment early on that is then exploited.

Reasonableness of reliance: public is not unreasonable to
expect continued access to a platform. Cultivation of openness goes beyond
terms & conditions, even if they preserve the power to restrict.

Q for Gebru: in past, this happened with cable
retransmission of broadcast—a new business model for profiting from what was
freely distributed. What’s the history?

[RT for Gebru: distinguish impersonation? AO3, which is
nonprofit & open source, deals with commercial exploitation that puts user
privacy and security at risk, e.g. if users input their passwords through an
unofficial app; confusion is a real risk for some unauthorized uses. Maybe the
answer is that most use of AO3 is to post stories and that’s the core promise
of the platform, but more details would help.]

Know-How, Dan Traficonte

Know-how is a legal concept used to mean many different
things. Methods and techniques: The trade secret equivalent of a method/process
patent. Trade secrets are a subset of confidential information; general
knowledge, skill, and experience overlap with confidential information but not
trade secret. Know-how cross-cuts all three: trade secrets, confidential info,
and skill/experience.

Matters to doctrine that trade secret has to be described
with reasonable particularity. Uncodifiable know-how can’t be a trade secret;
hard-to-codify know-how might be a trade secret if codifiable during
litigation; hard to figure out how to do that or identify how much codification
is enough.

Employee Privacy and (Un)Reasonable Secrecy Efforts, Deepa
Varadarajan

Apple allegedly spies on workers’ personal devices while NY
limited access to personal social media accounts. Problem: trade secret law
doesn’t pay attention to employee privacy, which is problematic given the field’s
concerns with (1) commercial morality and (2) employee ability to move. Reasonable
efforts to maintain secrecy should not require privacy invasion, but are often
used to justify invasions. No court has held RSE unsatisfied due to excessive
secrecy.

Unclean hands might be a viable doctrinal alternative.

Strategic Openness in Innovation: When Firms Reveal to Block
or Build, Bernhard Ganglmair (with Alexander Kann)

Invention disclosures: in-house journals like IBM’s;
commercial outlets like Research Disclosure and IP.com; new platforms like TDCommons
(Google, 2015) and proofbox.co. These disclosures are seen and cited in patents.
Longer disclosures carry more enabling information and are cited more often.
Placement: distance to a firm’s tech core—how central are these disclosures?

Results: mapped length & distance from firm’s core of
disclosures. Firms w/longer disclosures place disclosures closer to their own
core. Not necessarily industry-specific. Pattern holds even after excluding IBM
and other manipulations, over time. Enormous firm heterogeneity.

from Blogger https://tushnet.blogspot.com/2026/08/ipsc-opening-plenary-session-ip.html