Rebecca Tushnet

Scarcity of Attention in a World without IP

Jake Linford

We impose artificial scarcity so authors can pick up sunk
costs. But costs of creation have fallen; perhaps © should be narrowed as a
result.  Wrinkle: attention scarcity.
Cheaper dissemination = information gluts. 
Imposes costs on consumers.  The
scarce resource today is attention.  People
compete for attention by riffing on cultural artifacts.  Some of the competition is zero sum.  Internet time has shifted 2008-2013, from
chat and news sites to social media and video. 

Trademark is a way of dealing w/scarce attention, but © is different.  Music played in restaurants: it draws in
consumers.  Attracting attention w/©
expression so they can charge you.  [Is
attracting customers for food the same thing as attracting attention?]

If we had less copyright protection [compared to what?],
then what?  Perhaps: Less entry; less
glut.  Narrower protectionàlower
expression costs, lower costs of creating around, lower barriers to entry from
building off of existing ©.  Retain
protectionàmore
costs of inventing around.  Less
creative/distinct entry. Things that are more similar.  Abramowicz/Yoo have talked about this as rent
dissipation/product differentiation: more resources dissipated racing to
capture first mover advantage.

Fishman’s work: ©  may
impose useful restraint on entry.  [I have written a response to Fishman here.] Constraints on type of creativity: sonnet constrains output more than
free verse, which can make work more creative/better by several metrics.  George Lucas wanted to do a Flash Gordon
remake; he couldn’t get permission so he gave us Star Wars—wouldn’t have been
the same cultural phenomenon.  [Because
reboots of existing franchises, like Batman, never become cultural
phenomena!]  Reducing © protection is
therefore premature.

Mark Lemley: If you think we’re creating too much derivative
stuff, ok, but challenges premise that attention scarcity causes that.
Attention scarcity = difficulty sorting is the theory, but people have worried about
disintermediation for a long time, and crowdsourcing is at least as good and maybe better than
expert selection in allowing us to find good/bad. If 20 people make a
derivative Star Wars movie, but the crowd is good at finding the right one.

Linford: if the crowd tells us the first Star Wars movie is
good, 20 people rush to follow, and Lucas has to rush out his sequel.  There is also intermediation via FB, Google,
and Spotify, and maybe they’re not sorting in our interests. [But that is not
the same thing at all as causing an overload problem.] We’re not getting the
full picture. [We never were.]

Q: why allow the public domain then?  Pride and Prejudice and Zombies.

Linford: that’s a strong form of the argument—doing something
with a work that I don’t like is wrong b/c I have a strong connection to the
argument. Different question about length v. breadth while in place. People
share that intuition, but the evidence isn’t strong enough.

Betsy Rosenblatt: we live in a world with trends.  The solution is that people tire of sameness.
Doesn’t seem to be a need to do anything other than let the trend run out.

Linford: The more you narrow ©, the more similar the horror
movies are.

Rosenblatt: Why is that bad?

Linford: negative quality. 
Bigger rush to move sequels through the process. What we really want is
new takes on the trend, and © provides some discipline to make things at the
margin more different than they would be. 
[This is not what the literary scholars think.  See David
Roh’s book.  More production around a
type by people trying to work with what audiences liked about the original is how you get the kind of variation
that creates whole new genres and subgenres. 
Consider Twilight and its progeny; you may not like them, but there’s no
question that Twilight, a sexualized but not explicit supernatural romance, was
part of a causal chain creating a billion-dollar “New Adult” genre.]

Q: reputation?

Linford: reputation matters in part b/c of incentive to
produce the next installment.  [This
account works ok for movies if you ignore that people care about who the
actors/directors are, but terribly for singers. 
Very few albums are “sequels,” even Adele’s.]

Q: it’s an empirical Q whether variety makes people better
off, or whether things that are more different from each other are actually
better b/c of that.  It’s complicated.
You need to support that at the level of a particular genre or market.

Linford: genres might matter, but we do a lot of thinking
about theoretical work/modeling w/o empirics. 

Q: but the models don’t predict that variety makes people
better off. You need an empirical analysis of the genre/market.

Linford: disagree w/©. 

[I think the argument conflates lack of scarcity and
diversity except when it equivocates about them.  We also
impose artificial scarcity to incentivize dissemination.  The idea is that we get “more” copyrighted
works overall.  There are two kinds of “more,”
creating the classic incentives/access tension. 
But you have to define your “more”—is it lots of Batman
merchandise/Frozen merchandise, which © incentivizes and lack of ©
incentivizes, or is it lots of comic books? 
To the extent that ©’s idea/expression distinction allows close cousins,
it also allows you to manage your attention very easily: I tune out ads for
horror movies; I don’t tune in to Fox News.]

What’s In vs. What’s Out: How IP’s Boundary Rules Shape
Innovation

Mark McKenna & Christopher Sprigman

McKenna: Every IP rule defines itself in some way through
negative relation to patent. TM doesn’t allow utilitarian functionality. © is
the same. Design patent focuses nominally on ornamentality, defined as inverse
of functionality; concern was of people avoiding rigor of utility patent
standard by getting design patent instead. Doctrine is noticeably weaker in
exclusion than TM and ©, but in all cases the matter isn’t excluded b/c it
doesn’t meet ordinary standards for protection in ©, TM, etc. but rather b/c
this matter is for utility patent: to avoid undermining utility patent
supremacy.

This only works if other systems have a reasonably clear and
stable sense of what kinds of things belong to utility patent.  IP sense of patent’s domain is mostly
reductive and intuitive; undertheorization of utility patent’s boundaries is
one reason courts have struggled so much to channel. Utility patent law itself
has been quite inconsistent on its domain. This is more than a doctrinal
problem. If you believe that IP exists to create incentives, you can’t be
ambivalent about this point.  IP rights
as substitutes for each other: create incentives that create types of
production. You also still need an explanation for the subject matter of our
different rules even if you don’t care about incentives.

Sprigman: Utility patent focuses on technological
innovation, but what does that mean? Historical sense of meaning of Useful
Arts, working from machines, chemical compositions, etc.  Most important to this is nonobviousness.  Patent law has been inconsistent: look at utility
patent for mixed cut gemstone which enables appreciation of desirable
characteristics of a diamond in ways that prior cuts don’t allow. Is that
functionality? Design patent for gemstone cut was also granted; court says that’s
just pretty, not functional.  Patent on
method for assessing character: what kind of utility is this?  Not technological.  Utility patent is thus inconsistent about its
own grounding.

McKenna: Conundrum: widespread belief in utility = tech
innovation, but in practice inconsistently enforced, yet every other are of IP
acts as if tech innovation is where they should defer to utility patent. But in
many cases TM courts struggle to understand with what it means to be functional—and
then there’s aesthetic functionality, which has always been controversial b/c
some people consider it an oxymoron.  Even
though the SCt endorses the idea, it applies different rules—competitive need
rather than Inwood/Traffix rules. 
Undertheorization of functionality thus means courts don’t even
recognize that they’re using functionality in a particular way. Features can be
useful as marketing tools, to make things look better, etc.; tech utility is a
normative choice, which doesn’t make it wrong but does make it worth talking
about.

Star Athletica
panel agreed that the design should be evaluated by asking what the functions were
and then seeing if they were separable. 
For majority, function was to cover the body. For dissent, the purpose
of the design was inescapably to identify the wearer as a cheerleader, making
chevrons etc. inseparable.  Case turns on
court’s understanding of what should be kept out of © as functional.

Sprigman: how to fix? One approach: if patent is open to
aesthetic utility, then exclude much more from other fields.  Or we could explicitly limit utility patent
to tech innovation and be rigorous about it w/in patent too.

Q: Ted Sichelman: a lot of this goes back to historical
differentiation of guilds, dividing tech and fine arts. Based on institutional
concerns, modes of production; do changes in these things justify rethinking
the boundaries?

Sprigman: the kind of education of people who enter into the
patent system is very different; part of difficulty w/design patents is that
the PTO doesn’t attract people w/aesthetic education to understand trends and
prior art.

McKenna: Perhaps the features of the patent system are
suited to the kinds of innovation it generally covered.  If that’s the case, then we might want to avoid
growing the system.

Q: what’s the right answer?

McKenna: collective effort is required. The paper tries to
show that IP has a problem as a system and that it needs to be addressed.  Makes it easier for people to use one right
to protect that which other rights want to leave free for general use—overprotection.
Most areas of IP haven’t internalized the systemic costs, not accounted for
overlapping rights, thus haven’t calibrated right.

Sprigman: if pill efficacy depends in part on color b/c of
placebo effect: is utility patent going to treat that as patentable? Might be
within patent subject matter but not patentable because obvious.  If so, TM will kick it out. Is that
good?  If utility patent doesn’t accept
pill color, then will TM accept it? Or will TM start thinking about competitive
need for pill color?  If you think
placebos respond to incentives, we might want to exclude it from TM.

Q: If all regimes have delineations, why do we need to
worry?

McKenna: Not everything will fit somewhere; we also need to
be concerned b/c TM etc. make claims about what utility patent is/does and if
those are wrong we have issues.

Patent Clutter

Janet Freilich

We don’t know much about what’s in patent claims. They’re
supposed to point out and distinctly claim the invention.  Many empirical studies about patent
litigation, few about claims. Textual analysis of 25,000 patents. Are claims
really only about the invention?  Test:
does claim language appear in the specification?  Result: about 25% of claim language appears
rarely or never in the specification.

Invention in claims must be discussed in the specification;
if not discussed, unlikely to be new/used in a new way/combined in a new
way/etc.  “Non-inventive language.”  E.g., list of pharmaceuticals that are known
to be delivery devices—not really what the invention is about.  Average of 9.4% of claim words are nowhere in
the specification.  About 90% of
noninventive language is in dependent claims. Highest in chemistry and pharma
(27%), computer lowest (21%). Patents w/more noninventive language roughly
correlates w/fewer forward citations and lower renewal rates.

Limitations: probably underestimates noninventive language
b/c a claim term can be mentioned many times in specification and not be about
the invention. Can’t account for drawings.

Why?  Signaling:
patents are marketing documents.  Decoy
function: if you claim 100 different things, competitor doesn’t know which you’ll
choose. To avoid rejection during prosecution. Insurance against future
commercial uncertainty or litigation—to make it more likely that your claim
covers the commercial embodiment.

Implications: may not satisfy §112.  Clarity. Have to be one sentence long;
sometimes noninventive elements make a claim 4 pages long. Words by definition
aren’t defined in specification, and if they’re vague that increases the
challenge. But exemplars can increase clarity of general terms.  Prosecution: examiners struggle
w/noninventive language; can be part of strategy to run down examiner; creates
difficulty of search by generating false positives; creates impresssion of
patent thicket, but if term is part of noninventive language, patents may not
be relevant.

Claims are doing more than just describing an
invention.  Is there a heart of the
invention?  What does the ideal claim
look like? What is its purpose? May not be possible for claims to be only about
the invention.

Jeanne Fromer: amended claims are written by lawyers, not
inventors.  Hard to make comparisons.

Freilich: synonyms are discouraged; prosecuting attys are
careful about trying to satisfy written description/enablement.  Great idea to look at amended claims. About
half of patents add noninventive language during prosecution, apparently in
response to examiner rejections. 25% take out noninventive language during
prosecution, and the remainder stay the same.

What We Buy When We “Buy Now”

Aaron Perzanowski & Chris Hoofnagle

What does it mean to own or buy something in the digital
economy?  Amazon’s remote deletion of
copies of 1984 was a particularly
notable incident, but happens quite often. 
Empirical testing of different consumer options.

Takeaway: consumers are confused about what rights they
acquire.  We asked: can you lend this
book to a friend, resell it, give it away, leave it to someone in your will,
keep it as long as you want?  Most people
believed of digital goods that they could own, keep, have it on any device; 1/3
think they can leave ebooks in will, give them away; ½ think they can lend
them.  Resale and copy were the only ones
where about 15% thought they could do it. 
“License now” instead of “buy now” created many fewer responses that they
“owned” the book but the other operations like lend, give in will, etc.
remained very similar.  Short notice
about rights for ebooks did a bit better in terms of reducing beliefs in right
to lend, gift, resell (though many percentages were still above the #s that
often indicate deception in reasonable consumers).  Women and people over 65 tended to be more correct
than younger white men, who tended to have a sense of entitlement over what
they could do with their “purchases.”  [Which
is a reminder that entitlement has good and bad aspects.]  On average, people who saw “license now” and “buy
now” got less than ½ of questions about rights correct; short notice increased
correct answers by one, whereas “buy now” for hard copy were mostly right,
though not all thought they had the rights they did.  Preferences in terms of rights were the same
for ebooks and hard copy; 54% were willing to pay more for at least one of
three control rights, often $1-3 for products ranging from $6-12.  Lack of rights makes them more likely to
download illegally and to stream.

Justin Hughes: did you adequately separate digital file from
device in Q about lending/gift?

A: we tried to make it clear that you were asked about
lending a digital file, not a device, but that is definitely a concern.

Eric Goldman: Another story to be told from your data: it’s
really hard to inform consumers. Many still aren’t getting the message w/the
short notice.

A: They had one exposure to the short notice—I would think
that repeated exposure might increase results. [Probably not, which he then
notes as a potential for ignoring the standard notice.]  We aren’t pro designers/ UIX designers—a professional
might well do a much better job. What this tells me is that this is a promising
avenue for improving consumer understanding. 
[Richard Craswell has done excellent work on the CBA aspects of this—how
much we should invest to inform those consumers who can be informed, even if we
can’t fix everything.]

Q: re change over time.

A: there’s a level of dissatisfaction w/inability to get
kinds of rights they expect. The only thing growing as quickly as streaming is
vinyl records: people are willing to pay for permanence, but the sellers don’t
want to sell.  [And of course there’s the
classic xkcd making this point, not to
mention Calibre and its easily
available plugins for your ebook backup needs.]