Reading list: measuring sponsorship materiality

Posted on August 11, 2015 by rtushnet
Reading list: Matthew B. Kugler, Measuring
Sponsorship Materiality.  Abstract:
 
The problem of sponsorship
confusion is one of the most vexing in trademark law. Mark owners often claim
that the use of their marks in movies or on merchandise will lead consumers to
believe that their companies have approved these other products. They claim
that they therefore must be able to control these uses, lest consumers be
misled. Many scholars believe that mark owners have been too ambitious in these
claims, chilling valuable speech and unnecessarily preventing competition. In
an effort to rein in overzealous trademark owners, several scholars have
proposed adding a materiality requirement to the sponsorship confusion
analysis. They want to require mark owners to show not only that consumers
assume a particular product is sponsored by the mark holder, but also that this
assumption materially affects consumer behavior. This paper presents an empirical
survey that uses a variety of sponsorship materiality measures to determine how
such a materiality requirement would affect the shape of trademark law in the
merchandising context. The data show that requiring materiality would alter the
treatment of several classes of products, but would not have nearly as broad an
effect as many would have expected. The implications of these findings for
other proposed limiting doctrines are discussed.

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Reading list: measuring sponsorship materiality

Posted on August 11, 2015 by rtushnet
Reading list: Matthew B. Kugler, Measuring Sponsorship Materiality.  Abstract:
 
The problem of sponsorship confusion is one of the most vexing in trademark law. Mark owners often claim that the use of their marks in movies or on merchandise will lead consumers to believe that their companies have approved these other products. They claim that they therefore must be able to control these uses, lest consumers be misled. Many scholars believe that mark owners have been too ambitious in these claims, chilling valuable speech and unnecessarily preventing competition. In an effort to rein in overzealous trademark owners, several scholars have proposed adding a materiality requirement to the sponsorship confusion analysis. They want to require mark owners to show not only that consumers assume a particular product is sponsored by the mark holder, but also that this assumption materially affects consumer behavior. This paper presents an empirical survey that uses a variety of sponsorship materiality measures to determine how such a materiality requirement would affect the shape of trademark law in the merchandising context. The data show that requiring materiality would alter the treatment of several classes of products, but would not have nearly as broad an effect as many would have expected. The implications of these findings for other proposed limiting doctrines are discussed.
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overclaiming study results to apply to unstudied product can be false/misleading

Posted on August 10, 2015 by rtushnet
In re Riddell Concussion Reduction Litig., No. 13–7585, 2015
WL 4640425 (D.N.J. Aug. 3, 2015)
 
The plaintiffs sued Riddell for marketing football helmets
based on allegedly false or misleading claims that the helmets were equipped
with unique concussion reduction technology, and that the helmets could reduce
concussions by as much as 31%. Plaintiffs alleged that they paid a $50 price
premium for Riddell’s helmets even though those helmets offer no greater
protection against concussions than other helmets.
 
The court previously granted a motion to dismiss; here it
sustained in part the amended complaint, based on statements that Riddell made
about helments that weren’t included in the study on which it based its
claims.  Starting in 2002, the University
of Pittsburgh Medical Center (UPMC) compared concussion rates among high school
athletes who wore the Riddell Revolution helmet with those who wore
“traditional helmets.” The study, published in a peer-reviewed neurology
journal, found that the Revolution helmet reduced concussions by 31% as
compared to traditional helmets.  Plaintiffs offered numerous reasons why the
UPMC was fundamentally flawed and unreliable, including conflicts of interest: Riddell
provided a grant to pay the salaries of the two primary authors of the study,
while a third author was a Riddell employee. Moreover, plaintiffs alleged that
the traditional helmets were not new, but refurbished; that the participants
were not randomly assigned helmets; that the authors disregarded 15% of the
collected data without sufficient explanation and manipulated other data to
reach a pre-determined conclusion; and that initial data failed to show a
statistically significant difference between the helmets. Plaintiffs found
corroboration in the criticisms of several peer reviewers. UPMC allegedly
instructed Riddell “that this data should not be use[d] as a marketing ploy or
marketing tactic from a scientific paper that was not for those purposes” and
that Riddell shouldn’t use the study to say that the Revolution helmet provides
better protection, but Riddell ignored this admonition. UPMC allegedly said
that Riddell should refer to a 2.3% reduction in absolute risk, as opposed to a
31% reduction in relative risk.  Further,
plaintiffs alleged that other studies showed, and the majority of independent
experts agreed, that Riddell’s claims were false or misleading.
 
Plaintiffs also discussed an FTC investigation, which
concluded that Riddell lacked substantiation for its claims, because the UPMC
study didn’t prove a 31% reduction in concussion risk, and didn’t test youth
helmets.  The FTC emphasized that the
helmets weren’t randomly distributed, and that the average age of the kids who
got concussions was different in the test and control groups.  The FTC ultimately declined to recommend
enforcement action because Riddell had abandoned its 31% reduction claim and a
Virginia Tech study appeared to show that “Revolution varsity helmets perform
much better than Riddell’s ‘traditional’ VSR–4 helmet in reducing concussion
risks attributable to linear acceleration, one of the primary forces to which
helmets are subject.”
 
Some of Riddell’s adds explicitly referred to a 31%
reduction in concussions, such as “Research shows a 31% reductions in
concussions in players wearing Riddell Revolution Helmets.” Riddell allegedly
made the same 31% reduction claims when advertising other helmets in the
Revolution “family.”
 
The court noted that another opinion refusing to dismiss
similar claims against Riddell is now vacated because of the terrible, terrible
opinion in In re GNC.  Midwestern Midget Football Club Inc. v.
Riddell, Inc., Civ. 15–00244, 2015 WL 3797107 (S.D.W. Va. June 18, 2015) (West
Virginia Consumer Credit and Protection Act). 
But, the court noted, In re GNC
purports to be about the Lanham Act (even though it was evaluating state
consumer protection law), and thus the court didn’t consider it binding in this
state consumer protection case.
 
Although there was some variation in the marketing
statements plaintiffs identified, they fell into three categories: (1) 31%
reduction in concussions; (2) claims about “concussion reduction technology;”
and 3) statements about youth helmets.  Plaintiffs sufficiently identified the
statements at issue, and adequately pled causation, reliance, and injury.  Alleging the exact or approximate price they
paid, plus the existence of a $50 price premium, sufficed; plaintiffs didn’t
need to plead the exact price of every helmet they could have purchased but did
not.
 
But were the claims plausibly false or misleading?  No, for the 31% reduction claims.  Plaintiffs didn’t allege that Riddell mischaracterized
the UPMC study’s findings, but rather challenged the quality of the study
itself.  “[I]dentifying flaws in a
scientific study does not necessarily make marketing statements based on such a
study false or misleading…. [P]ublication of the study’s results in a
respected, peer-reviewed journal provides some evidence that the study is in
fact reliable.”  Plaintiffs didn’t
identify any scientific study that showed the 31% reduction claim to be false
or misleading with respect to Riddell helmets specifically. The same was true
of some of the “concussion reduction technology” claims: plaintiffs didn’t
plead that different Riddell helmets contained different design features than
those in the helmet tested in the UPMC study.
 
However, more general references to “concussion reduction
technology” that protected young players better than other helmets were
plausibly false and misleading, because of plainiffs’ allegations that there
were no material differences between Riddell helmets and other football helmets
available to consumers.  A University of
Wisconsin study, which concluded that no brand of football helmet was
comparatively better at reducing the incidence of concussions, lent
plausibility to these allegations. “[T]he phrase ‘concussion reduction technology’
necessarily implies the ability to reduce concussions.”
 
Moreover, claims made for youth helmets that weren’t the
UPMC-tested Revolution helmet were also plausibly misleading or deceptive,
since the UPMC study didn’t include any youth helmets.
 
Finally, the court dismissed any omission-based claims.  Plaintiffs alleged that Riddell knew its
helmets couldn’t reduce concussions.  But
they didn’t identify a discrete omission that Riddell failed to disclose, and
most of the ads included a reference to the article discussing the UPMC study,
so “it is questionable whether the supposed flaws in the UPMC study were
actually concealed.”
 
In the end, various New Jersey, Florida, Arizona, Illinois, and
California claims survived.

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overclaiming study results to apply to unstudied product can be false/misleading

Posted on August 10, 2015 by rtushnet
In re Riddell Concussion Reduction Litig., No. 13–7585, 2015 WL 4640425 (D.N.J. Aug. 3, 2015)
 
The plaintiffs sued Riddell for marketing football helmets based on allegedly false or misleading claims that the helmets were equipped with unique concussion reduction technology, and that the helmets could reduce concussions by as much as 31%. Plaintiffs alleged that they paid a $50 price premium for Riddell’s helmets even though those helmets offer no greater protection against concussions than other helmets.
 
The court previously granted a motion to dismiss; here it sustained in part the amended complaint, based on statements that Riddell made about helments that weren’t included in the study on which it based its claims.  Starting in 2002, the University of Pittsburgh Medical Center (UPMC) compared concussion rates among high school athletes who wore the Riddell Revolution helmet with those who wore “traditional helmets.” The study, published in a peer-reviewed neurology journal, found that the Revolution helmet reduced concussions by 31% as compared to traditional helmets.  Plaintiffs offered numerous reasons why the UPMC was fundamentally flawed and unreliable, including conflicts of interest: Riddell provided a grant to pay the salaries of the two primary authors of the study, while a third author was a Riddell employee. Moreover, plaintiffs alleged that the traditional helmets were not new, but refurbished; that the participants were not randomly assigned helmets; that the authors disregarded 15% of the collected data without sufficient explanation and manipulated other data to reach a pre-determined conclusion; and that initial data failed to show a statistically significant difference between the helmets. Plaintiffs found corroboration in the criticisms of several peer reviewers. UPMC allegedly instructed Riddell “that this data should not be use[d] as a marketing ploy or marketing tactic from a scientific paper that was not for those purposes” and that Riddell shouldn’t use the study to say that the Revolution helmet provides better protection, but Riddell ignored this admonition. UPMC allegedly said that Riddell should refer to a 2.3% reduction in absolute risk, as opposed to a 31% reduction in relative risk.  Further, plaintiffs alleged that other studies showed, and the majority of independent experts agreed, that Riddell’s claims were false or misleading.
 
Plaintiffs also discussed an FTC investigation, which concluded that Riddell lacked substantiation for its claims, because the UPMC study didn’t prove a 31% reduction in concussion risk, and didn’t test youth helmets.  The FTC emphasized that the helmets weren’t randomly distributed, and that the average age of the kids who got concussions was different in the test and control groups.  The FTC ultimately declined to recommend enforcement action because Riddell had abandoned its 31% reduction claim and a Virginia Tech study appeared to show that “Revolution varsity helmets perform much better than Riddell’s ‘traditional’ VSR–4 helmet in reducing concussion risks attributable to linear acceleration, one of the primary forces to which helmets are subject.”
 
Some of Riddell’s adds explicitly referred to a 31% reduction in concussions, such as “Research shows a 31% reductions in concussions in players wearing Riddell Revolution Helmets.” Riddell allegedly made the same 31% reduction claims when advertising other helmets in the Revolution “family.”
 
The court noted that another opinion refusing to dismiss similar claims against Riddell is now vacated because of the terrible, terrible opinion in In re GNC.  Midwestern Midget Football Club Inc. v. Riddell, Inc., Civ. 15–00244, 2015 WL 3797107 (S.D.W. Va. June 18, 2015) (West Virginia Consumer Credit and Protection Act).  But, the court noted, In re GNCpurports to be about the Lanham Act (even though it was evaluating state consumer protection law), and thus the court didn’t consider it binding in this state consumer protection case.
 
Although there was some variation in the marketing statements plaintiffs identified, they fell into three categories: (1) 31% reduction in concussions; (2) claims about “concussion reduction technology;” and 3) statements about youth helmets.  Plaintiffs sufficiently identified the statements at issue, and adequately pled causation, reliance, and injury.  Alleging the exact or approximate price they paid, plus the existence of a $50 price premium, sufficed; plaintiffs didn’t need to plead the exact price of every helmet they could have purchased but did not.
 
But were the claims plausibly false or misleading?  No, for the 31% reduction claims.  Plaintiffs didn’t allege that Riddell mischaracterized the UPMC study’s findings, but rather challenged the quality of the study itself.  “[I]dentifying flaws in a scientific study does not necessarily make marketing statements based on such a study false or misleading…. [P]ublication of the study’s results in a respected, peer-reviewed journal provides some evidence that the study is in fact reliable.”  Plaintiffs didn’t identify any scientific study that showed the 31% reduction claim to be false or misleading with respect to Riddell helmets specifically. The same was true of some of the “concussion reduction technology” claims: plaintiffs didn’t plead that different Riddell helmets contained different design features than those in the helmet tested in the UPMC study.
 
However, more general references to “concussion reduction technology” that protected young players better than other helmets were plausibly false and misleading, because of plainiffs’ allegations that there were no material differences between Riddell helmets and other football helmets available to consumers.  A University of Wisconsin study, which concluded that no brand of football helmet was comparatively better at reducing the incidence of concussions, lent plausibility to these allegations. “[T]he phrase ‘concussion reduction technology’ necessarily implies the ability to reduce concussions.”
 
Moreover, claims made for youth helmets that weren’t the UPMC-tested Revolution helmet were also plausibly misleading or deceptive, since the UPMC study didn’t include any youth helmets.
 
Finally, the court dismissed any omission-based claims.  Plaintiffs alleged that Riddell knew its helmets couldn’t reduce concussions.  But they didn’t identify a discrete omission that Riddell failed to disclose, and most of the ads included a reference to the article discussing the UPMC study, so “it is questionable whether the supposed flaws in the UPMC study were actually concealed.”
 
In the end, various New Jersey, Florida, Arizona, Illinois, and California claims survived.
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7th Amendment provides jury right for TM profits as proxy for damages

Posted on August 10, 2015 by rtushnet
Black & Decker Corp. v. Positec USA Inc., — F.Supp.3d
—-, 2015 WL 4656749, No. 11–cv–5426 (N.D. Ill. Aug. 5, 2015
 
The parties compete to sell power tools.  B&D alleged that Positec infringed their
patents and trademarks in the yellow-and-black color combination appearing on B&D
products and packaging. The court denied Positec’s motion to strike B&D’s
jury demand as to its trademark-related claims for Positec’s profits.
 
There’s a right to jury trial where the Seventh Amendment or
a statute requires.  The court found that
the language of §1117, which provides that a court “shall assess such profits
and damages or cause the same to be assessed under its direction,” “at least
suggests the possibility of a jury determination in the first instance, even if
a court may adjust the jury award as it ‘shall find to be just.’”
 
But other cases indicate that there’s no jury right.  Dairy Queen, Inc. v. Wood, 369 U.S. 469
(1962), held that the trademark plaintiffs had a Seventh Amendment jury right
as to their demand for an accounting of the defendant’s profits, reasoning that
the complaint’s request for an accounting was “wholly legal in its nature.” Because
of the doctrine of constitutional avoidance, the use of constitutional grounds
suggested that the Court believed that the statute didn’t create a jury trial
right, and lower courts have followed that suggestion.
 
History wasn’t much guide either, because “[t]he history of
trademark actions and remedies lies in the murky overlap of law and equity.” The
court turned to precedent and functional considerations.  An accounting is a “typical” kind of
equitable relief; in the trademark context, it may be awarded to serve the
goals of preventing unjust enrichment, furthering deterrence, and providing
compensation.  As for compensation,
profit awards may function as a proxy for damages because of the difficulty of
proving those damages.
 
Courts have split over whether there’s a Seventh Amendment
jury right in these circumstances.  One
line of cases interprets Dairy Queen
to find a right to jury trial regardless of the theory behind the plaintiff’s
claim for profits.  A second evaluates
the theory of profits and finds a jury trial right where profits are a proxy
for damages, but not where profits are designed to prevent unjust enrichment. A
third line of cases characterizes disgorgement as equitable, distinguishing Dairy Queen on the ground that it also involved
contract damages.
 
The weight of authority supported the first or second view
over the third. To the extent that the law was ambiguous, courts resolve doubts
in favor of finding a jury right.
 
Here, B&D had at least some evidence that would support
an award of profits as a proxy for damages: evidence that the parties sold
their products in the same retail stores to the same customers, and its survey,
which showed respondents a photograph of the products side-by-side in a store.
The survey asked respondents if they believed that the products were produced
by the same company, and 47% of respondents said yes.  (If this is an accurate description of the
survey, it sounds leading in the extreme.) 
If believed, surveys can support a finding of actual confusion, which
then supports a theory of profits as a proxy for damages.

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7th Amendment provides jury right for TM profits as proxy for damages

Posted on August 10, 2015 by rtushnet
Black & Decker Corp. v. Positec USA Inc., — F.Supp.3d —-, 2015 WL 4656749, No. 11–cv–5426 (N.D. Ill. Aug. 5, 2015
 
The parties compete to sell power tools.  B&D alleged that Positec infringed their patents and trademarks in the yellow-and-black color combination appearing on B&D products and packaging. The court denied Positec’s motion to strike B&D’s jury demand as to its trademark-related claims for Positec’s profits.
 
There’s a right to jury trial where the Seventh Amendment or a statute requires.  The court found that the language of §1117, which provides that a court “shall assess such profits and damages or cause the same to be assessed under its direction,” “at least suggests the possibility of a jury determination in the first instance, even if a court may adjust the jury award as it ‘shall find to be just.’”
 
But other cases indicate that there’s no jury right.  Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), held that the trademark plaintiffs had a Seventh Amendment jury right as to their demand for an accounting of the defendant’s profits, reasoning that the complaint’s request for an accounting was “wholly legal in its nature.” Because of the doctrine of constitutional avoidance, the use of constitutional grounds suggested that the Court believed that the statute didn’t create a jury trial right, and lower courts have followed that suggestion.
 
History wasn’t much guide either, because “[t]he history of trademark actions and remedies lies in the murky overlap of law and equity.” The court turned to precedent and functional considerations.  An accounting is a “typical” kind of equitable relief; in the trademark context, it may be awarded to serve the goals of preventing unjust enrichment, furthering deterrence, and providing compensation.  As for compensation, profit awards may function as a proxy for damages because of the difficulty of proving those damages.
 
Courts have split over whether there’s a Seventh Amendment jury right in these circumstances.  One line of cases interprets Dairy Queento find a right to jury trial regardless of the theory behind the plaintiff’s claim for profits.  A second evaluates the theory of profits and finds a jury trial right where profits are a proxy for damages, but not where profits are designed to prevent unjust enrichment. A third line of cases characterizes disgorgement as equitable, distinguishing Dairy Queen on the ground that it also involved contract damages.
 
The weight of authority supported the first or second view over the third. To the extent that the law was ambiguous, courts resolve doubts in favor of finding a jury right.
 
Here, B&D had at least some evidence that would support an award of profits as a proxy for damages: evidence that the parties sold their products in the same retail stores to the same customers, and its survey, which showed respondents a photograph of the products side-by-side in a store. The survey asked respondents if they believed that the products were produced by the same company, and 47% of respondents said yes.  (If this is an accurate description of the survey, it sounds leading in the extreme.)  If believed, surveys can support a finding of actual confusion, which then supports a theory of profits as a proxy for damages.
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IPSC: closing comments

Posted on August 7, 2015 by rtushnet
Closing Plenary Session
 
Joshua Sarnoff, DePaul University College of Law: Size
affects nature of presentation, time, allotted, depth of development, audience
participation.  Makes a personal promise
to read papers in sessions he plans to go to—thinks that this will improve the
quality of the interactions.  [I do this
every year, but not all the papers are available.  I think that people should commit to reading
at least some number of the papers at panels they go to, because that improves
the discussion a lot.]  More
encouragement of collaboration.
 
Money: funding scholarship, especially empirical scholarship
is an issue, as is detaching main universities from viewing law school as a
cash cow. 
 
Pamela Samuelson, University of California, Berkeley, School
of Law

How to enrich your scholarship through IPSC. 
Consider teaching with a nonlawyer expert if there’s a topic that you
might want to write on with them. 
Working with people with different expertise from you is a good idea; we
are too often discouraged from co-authorship and that becomes a habit even
post-tenure. You can learn new methods, enrich your own intellectual life. IPSC
can serve as a network for finding the right people.
 
Consider your larger audience: figure out who reads what and
write for the right audience.  She
routinely writes for the Communications of the ACM, with 100,000 members around
the world.  Important because it helps
computing professionals community to become much more active in IP debates—they
write letters, speeches, testify to Congress—activating a group is important
too. If you want to create a group that doesn’t yet exist, create it—she created
a nonprofit last year, Authors Alliance. 
But you can’t find out whether you can make a difference in solving
problems unless you give it a try. 
 
Lisa Larrimore Ouellette, Stanford Law School
 
Collegiality/welcoming is a big benefit of coming here.
 
Brett Frischmann, Benjamin N. Cardozo School of Law
 
Collective research agenda: what are the substantive areas
of IP scholarship that are most promising/untapped.  Are we going for too much low-hanging
fruit/branches that are picked clean? Would have to be pluralist agenda.  Methodological approach depends on our
objective.  Though we should be pluralist
in our audiences, we should have priorities in who we want to communicate w/:
public, policymakers, lawyers.  There are
consistent market and other pressures that can drive us in an undesirable
direction if we’re not conscious about it. 
 
Have we emphasized quantity over quality? Driven towards
more publications/year, but sometimes less is more.  Slow thinking.  Counterargument: Twitter etc. are forms of
commentary that are more useful than traditional law reviews.  But let’s think about the appropriate answers
as a community!
 
We too often reinvent the wheel without credit to prior
authors. Not just a failure of citation, but failure to engage with the earlier
work.  Reading lists, canons, boot
camps?  Limitations of every approach.  But at least reflect the value of core
training in the literature—we could do this better consciously and
collectively. 
 
Could add a day at IPSC dedicated to mentorship for VAPs and
junior profs by senior profs. We have prepublication peer review at conferences
like this, and postpublication peer review at blogs, Jotwell, etc. This is a
service to the community, but we could do it in a more coherent way. We could
use other peer review systems. 
Engagement w/other disciplines = valuable feedback.
 
Burk: didn’t want paper published on open internet.  Could we do a restricted site?  Would get more papers.  [Dropbox is a good option for this.]
 
Carroll: push harder on presenters to have clear thesis
statement—richer conversation about thesis, audience, question tried to answer
w/thesis.
 
Barrett: what about peer review/picking papers for IPSC?
 
Samuelson: Tried it; was incredibly unpopular. Important
norm: people who are very junior feel like they’ll lose out. If they can’t
present, they can’t justify coming to the conference.  Too winner take all. 
 
Barrett: unblinded does that, but blinding helps
fellows/junior people.
 
Lemley: Disagrees, b/c there’s no such thing as blind peer
review in a community of 200 people. 
Peer reviewed journals are very political; they are not timely—3 ½ year
waits.  Not sure they’re necessary in a
community that has peer review at places like IPSC.  But veto power over paper is less important.
 
Samuelson: I learned that there were some papers I wanted to
write that I wasn’t yet ready to write. If I’d tried to do an
abstract/presentation for them, I might have learned I wasn’t ready yet.  Good idea for junior/midlevel scholars: keep
a list of things you’d like to write and do things that build but go sideways
from that, so you can come back.  Issues
I’m interested in circle around, and my thinking matures over time. 
 
Q: have someone present the paper for you.
 
Frischmann: Tried it. 
60% liked, 40% hated it.  [Why not
have it be opt-in?  Guarantee someone
reacts to your paper.]
 
Buccafusco: likes experimentation.
 
Q: suggest people you’d like to present with?  Opt-in discussion-only version—zero summary
of the paper and the expectation is that the presenter will have a draft and
the commenters will have read it.  [I
like it.]
 
Kathy Strandberg: Emphasizing the idea that you should read
the papers for the track you pick.  More
time for people who submit a paper. [Yes!]
 
Ramsey: Not a lot of papers, good to see what people are
working on.  But also good to have
indepth commentary—have both kinds of conferences. But many people need to
speak to get funding. Maybe commenting would be enough for people who need
funding.
 
Q: Streaming and other ways to have commentary would
accommodate people who can’t attend for one reason or another.

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IPSC: closing comments

Posted on August 7, 2015 by rtushnet
Closing Plenary Session
 
Joshua Sarnoff, DePaul University College of Law: Size affects nature of presentation, time, allotted, depth of development, audience participation.  Makes a personal promise to read papers in sessions he plans to go to—thinks that this will improve the quality of the interactions.  [I do this every year, but not all the papers are available.  I think that people should commit to reading at least some number of the papers at panels they go to, because that improves the discussion a lot.]  More encouragement of collaboration.
 
Money: funding scholarship, especially empirical scholarship is an issue, as is detaching main universities from viewing law school as a cash cow. 
 
Pamela Samuelson, University of California, Berkeley, School of Law
How to enrich your scholarship through IPSC.  Consider teaching with a nonlawyer expert if there’s a topic that you might want to write on with them.  Working with people with different expertise from you is a good idea; we are too often discouraged from co-authorship and that becomes a habit even post-tenure. You can learn new methods, enrich your own intellectual life. IPSC can serve as a network for finding the right people.
 
Consider your larger audience: figure out who reads what and write for the right audience.  She routinely writes for the Communications of the ACM, with 100,000 members around the world.  Important because it helps computing professionals community to become much more active in IP debates—they write letters, speeches, testify to Congress—activating a group is important too. If you want to create a group that doesn’t yet exist, create it—she created a nonprofit last year, Authors Alliance.  But you can’t find out whether you can make a difference in solving problems unless you give it a try. 
 
Lisa Larrimore Ouellette, Stanford Law School
 
Collegiality/welcoming is a big benefit of coming here.
 
Brett Frischmann, Benjamin N. Cardozo School of Law
 
Collective research agenda: what are the substantive areas of IP scholarship that are most promising/untapped.  Are we going for too much low-hanging fruit/branches that are picked clean? Would have to be pluralist agenda.  Methodological approach depends on our objective.  Though we should be pluralist in our audiences, we should have priorities in who we want to communicate w/: public, policymakers, lawyers.  There are consistent market and other pressures that can drive us in an undesirable direction if we’re not conscious about it. 
 
Have we emphasized quantity over quality? Driven towards more publications/year, but sometimes less is more.  Slow thinking.  Counterargument: Twitter etc. are forms of commentary that are more useful than traditional law reviews.  But let’s think about the appropriate answers as a community!
 
We too often reinvent the wheel without credit to prior authors. Not just a failure of citation, but failure to engage with the earlier work.  Reading lists, canons, boot camps?  Limitations of every approach.  But at least reflect the value of core training in the literature—we could do this better consciously and collectively. 
 
Could add a day at IPSC dedicated to mentorship for VAPs and junior profs by senior profs. We have prepublication peer review at conferences like this, and postpublication peer review at blogs, Jotwell, etc. This is a service to the community, but we could do it in a more coherent way. We could use other peer review systems.  Engagement w/other disciplines = valuable feedback.
 
Burk: didn’t want paper published on open internet.  Could we do a restricted site?  Would get more papers.  [Dropbox is a good option for this.]
 
Carroll: push harder on presenters to have clear thesis statement—richer conversation about thesis, audience, question tried to answer w/thesis.
 
Barrett: what about peer review/picking papers for IPSC?
 
Samuelson: Tried it; was incredibly unpopular. Important norm: people who are very junior feel like they’ll lose out. If they can’t present, they can’t justify coming to the conference.  Too winner take all. 
 
Barrett: unblinded does that, but blinding helps fellows/junior people.
 
Lemley: Disagrees, b/c there’s no such thing as blind peer review in a community of 200 people.  Peer reviewed journals are very political; they are not timely—3 ½ year waits.  Not sure they’re necessary in a community that has peer review at places like IPSC.  But veto power over paper is less important.
 
Samuelson: I learned that there were some papers I wanted to write that I wasn’t yet ready to write. If I’d tried to do an abstract/presentation for them, I might have learned I wasn’t ready yet.  Good idea for junior/midlevel scholars: keep a list of things you’d like to write and do things that build but go sideways from that, so you can come back.  Issues I’m interested in circle around, and my thinking matures over time. 
 
Q: have someone present the paper for you.
 
Frischmann: Tried it.  60% liked, 40% hated it.  [Why not have it be opt-in?  Guarantee someone reacts to your paper.]
 
Buccafusco: likes experimentation.
 
Q: suggest people you’d like to present with?  Opt-in discussion-only version—zero summary of the paper and the expectation is that the presenter will have a draft and the commenters will have read it.  [I like it.]
 
Kathy Strandberg: Emphasizing the idea that you should read the papers for the track you pick.  More time for people who submit a paper. [Yes!]
 
Ramsey: Not a lot of papers, good to see what people are working on.  But also good to have indepth commentary—have both kinds of conferences. But many people need to speak to get funding. Maybe commenting would be enough for people who need funding.
 
Q: Streaming and other ways to have commentary would accommodate people who can’t attend for one reason or another.
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IPSC, Copyright Theory III

Posted on August 7, 2015 by rtushnet
Copyright Theory III
 
Abraham Bell, Bar Ilan University
The Dual-Grant Theory of Fair Use
 
Granted rights are limited in order to avoid unnecessarily
exceeding the requirements for incentivizing. Fair use is a broad reservation
of privileges for the public during the term of protection.  Maximizing incentives with broad rights, but
also broad privileges—alternative would be fewer rights or more limited times.
 
Protected uses have widespread, nonpecuniary follow-on
benefits. Privilege focuses on non-“use” utility, meaning indirect benefit—not the
person using the © expression who receives utility but other parties beyond
this user. The idea is not that there are transaction cost problems, though
there might be such problems, but that there’s no reason to include this in the
grant of rights in the first place. Fair use is an allocational tool.
 
Proposed two-step test: (1) is this a presumptively fair
use? (2) would recognizing this category of use as fair for this work eliminate
incentives to create this work?  Less fact
intensive inquiry.  Parodies v. satires—cases
are almost entirely wrong.  A work
satirized in order to create political commentary, such as Cat NOT in the Hat,
that’s a perfect fair use. 
Transformativeness isn’t the issue.
 
Factors one and three deal with presumptively fair use:
nature and purpose; can you accomplish your goal with the amount of the portion
used/a good faith test.  Preserving
incentives: factors two and four.
 
Lunney: Preserving incentives or preserving creation?
 
A: We want to cut back on incentives. 
 
Q: how general do you want the second inquiry to be?  If Texaco does this, will it drive the
publishers out of business?  Or if
everyone does what Texaco is doing?  SCt
favors the latter approach and I think you must too.
 
A: we are asking this type of use, but for this work, not for all works.  [But that work has already been
created.]  This catgory of works?
 
Christopher Buccafusco, IIT Chicago-Kent College of Law/Benjamin
N. Cardozo School of Law
A Theory of Copyright Authorship 
 
Relationship between a person we call an author and an
entity we call a work/writing.   What is
the scope of Congress’s power? What aspects of works can qualify for copyright
protection?  Related questions.
 
Statutory works of authorship are a smaller set than “writings
of authors” under the Constitution.  What
do authors do?  Express ideas?  What’s the idea in a piece of classical music
or photo? What’s the idea in a taxonomy or computer program?  This approach is a massive failure, see Mannion. 
Application of §102(b) has been incoherent; idea of unconstrained choice
has not been helpful.
 
Authorship entails the intentional production of mental
effects in an audience; a writing is any medium capable of producing mental
effects. Copyright can attach to any fixed object that expresses this.
 
Semantic intentions: what does the work mean?  Is it a satire?  Categorical intention: the thing the author
has written is a poem and not a laundry list—the kind of thing she has created.
We need not care about semantic intentions for categorical issue of
protectability.  Did the author intend to
create some aspects of the thing to create mental effects in an audience?  If yes, those aspects are “authorship” and
can be copyrighted if appropriate.
 
Caretesian duality: paintings, novels, pohotos, music, all
create mental effects, produce thoughts, feelings, emotions.  Copyright: mind/brain. Patent = rest of the
world. This language is preferable to expressing ideas, b/c not all works
express ideas/have semantic content. Idea/expression is too rationalist.
 
Manner or form: © attaches to the manner or form by which
the author produces mental effects, not to the effect itself. Authors select,
arrange, and combine formal elements like line, color, notes, words. The manner
or form constitutes authorship. 
Protectable if original, creative, and fixed; §102(b) drops out/is
unnecessary.  Don’t have to figure out
what a taxonomy is or what a dance is.
 
“Writings” is significantly broader than has been
appreciated: gardens, cuisine, yoga, tactile medium—creating experiences for
others that authors expect to have influence on others.  (Paths through the world/order of walking
through a museum, as long as fixed in written path?)  Potential aspects of authorship.  But this does not mean that these things are
or have to be protected in the current © system—still potentially outside the
statutory works of authorship.  But
things could change.  If 3D printed food
becomes a problem and threatens to drive chefs out of business, we could figure
out a way to deal with that, but not if we decide they aren’t authorship. 
 
Also helps us understand what aspects of a given work are
protectable. Only certain aspects count. 
Everything else must be filtered out. 
If it doesn’t create mental effects in audience, it’s not authorship.
Find aspects of the work intended to create mental effects in the audience;
those constitute authorship, not manner or form choices choices made for
purposes of convenience, interoperability, etc. This obviates need to resort to
102(b). Photos: Which of photographer’s choices are minimally creative.  Same with taxonomies: is there some aspect of
the manner or form in which these things were arranged that the author intended
us to experience something about
them? Software: also limits.
 
Dan Burk: you have to deal with operating systems, and
personal diaries locked in a drawer.
 
A: add on: if they were perceived.  If MS-DOS was intended to produce some
effect, then ok. 
 
Lemley: doesn’t find that satisfactory. The point of the
code is not to induce a mental state in anyone. 
You can only get © for software under your view is high level gestalt,
not low level code.
 
A: might not protect anything in code.  Not a programmer. 
 
RT: Your standard reminds me of Chicago: “I guess you could say we broke up because of artistic
differences. He saw himself as alive. And I saw him dead.” Or maybe Se7en. Lots of acts are intended to
create effects in an audience, like racially motivated killings.  Seems to be a reframing of the speech/conduct
distinction in First Amendment law—there, it tends not to solve the problem it
is offered to solve.  For example,
Duchamp’s toilet: fixed, and intended to create mental effects, but
copyrightable? 
 
A: may not make differences in easy cases where it’s clearly
authorship. [I don’t believe there is consensus in this room of © scholars about
whether it is an easy case that
Duchamp is an author.]  Duchamp got a
thing and presented it in such away, unambiguously to create mental effects—clears
the © hurdle; we then have to ask harder questions about originality and
creativity. My inquiry isolates other stuff that was getting in the way.
 
Dan Burk, University of California, Irvine, School of Law
Copyright and the Cybernetic Circuit
 
Legacy assumptions of ©: romantic author, original genius,
classical narrative.  A classical
narrative has: plot, chronology, setting, sequential events, causality,
characters, point of view.  The paradigm
case for © is text.  But we find it in AV
works as well.
 
Then you get to computer games and other types of digital
media. Ted Friedman wrote an influential piece: no real characters/protagonists
in SimCity and Civilization—you end up identifying with cognitive maps.  Whole new type of work.  Has narrative but not in the way we used to
think about it. Cybernetic circuit: player, system, and content: something
emerges in storytelling from that interaction. 
 
Reader-response theory: reinterpretation/reimagination.  Hands-on: you’re creating new storylines,
characters, outcomes as you go along. 
Reader is now co-creator with developer of content but also with the
technical system in something like Donna Haraway’s cyborg.
 
Friedman had huge effect on analysis of new media:
hypertext, DVDs—once skip/fast forward is in viewer’s hands, DVD becomes
cybernetic circuit that’s not the director’s cut/what the director intended.
 
Can help us think about a number of cases: Duke Nukem in
3D/MicroStar v. Formgen: video game architecture—library of images; game
engine; map files that were instructions to game engine of when and where to
place items from the library.  Developer
encouraged users to develop extra levels of the game—new MAP files.  Someone copied a bunch and sold them on a
disc, and developer didn’t like that. MAP files don’t on their face have any
content that belongs to the game developer, and weren’t written by game
developer.  Kozinski said they were
derivative works—which takes a lot of hoop-jumping. They’re somehow sequels to
the game—new stories about Duke Nukem. But that’s a weird characterization;
there’s no content there, just code that specifies where the content goes.
Potential narratives.  Games don’t play
themselves—they only become stories in the context of a technical system and a
player generating an output.  More
sensible way to think about it than Kozinski used.
 
ClearPlay—easier to think about with this approach.  Useful work in narratology that helps us
think about digital works in ways we haven’t before.
 
Is this reductionist in breaking down works too far?  Unstable texts: dynamically generated
content.  Multiple versions, drafts continually
stored in computer’s memory—where does © attach?
 
RT: Vanity of vanities, all is vanity: Not a distinctly
digital problem.  Kozinksi’s dissent in
Garcia asks what about the dailies of nondigital film—when is that chunk of
film a work? DVD skip v. a book that falls open to the most-reread passage. Is
this just an effect of RAM copies that © even cares about this? How should we
think differently in ClearPlay?
 
A: True, it’s been true all along but less salient. 
 
Buccafusco: it’s all about authorship.  Who is the author in video games?  (Is there a game in this class?)  Rethink what people are doing that might
constitute protectable authorship.
 
A: Players are contesting this question now, though
contracts purport to give developer complete control.  Not the romantic author but the collaborative
genius.
 
Lunney: why is authorship the right source of insight here?
If it’s a matter of who gets the spoils from the entertainment, should it just
be allocation of rights?
 
A: Authorship isn’t the only place to push down on this.
 
Kwall: is authenticity applicable here?  Economic rights v. moral rights.
 
A: rereading Walter Benjamin because of that.  It’s a political decision.  Authenticity has a particular connection to
the romantic author he’s not sure works here. May need a radically different
notion of authenticity—maybe we can’t say “This is Blizzard’s game,” or maybe
it goes by the wayside in some cases.
 
Mike Carroll: How important is narrative to the question: if
we treat reader as perfomer or performer as athlete?  Dancers perform choreography; players carry
out sports play; Twitch asks what makes them different. Sport contest is a kind
of story, but doesn’t fit as neatly into your explanation of narrative.
 
A: What Friedman is saying is that there are other
nontraditional kinds of narrative, and the way we have baked in narrative into
copyright may be wrong; revisiting sports performances might be one consequence
of rethinking.
 
Thomas Byron, Boston University
A la recherche du sens perdu: Deconstructing the Creativity
Standard in Copyright
 
Rutgers researchers wrote a program to take in images and
algorithm measures originality/novelty historically, can determine what’s
creative. Used 62,000 pieces of art from Renaissance to modern times.  Mondrian and Da Vinci were identified as
creative, others not so much. This could be really helpful for ©.
 
Feist set a very
minimal standard, but didn’t give you any way to calibrate creativity—a yardstick
without any inches on it.  No notion of
the positive: what is creative? 
 
Idea/expression: The higher you go with an idea, the more
alternatives there are. Some courts seem to view idea/expression as coextensive
with creativity, like the ADA v. Delta
Dental: if you can find alternatives for doing something, it’s
creative.  Other courts play up authorial
choice between the alternatives—a fairly common approach. Other courts are
probabalistic: there are less probable and more probable choices and we favor
the less probable ones. But that’s a minor tweak.
 
Alito’s opinion in Southco
v. Cambridge: parts number taxonomy was uncopyrightable. Photos by contrast
have complex and indeterminate ideas. 
Should distinguish creativity from idea/expression.  Author’s engagement w/cultural landscape
around them that creates creativity, not isolated imagination of a bunch of
alternatives. 
 
Proust’s novel In
Search of Lost Time—there are no alternatives for his first sentence.  “For the longest time I went to bed early.”  He made a wildly creative choice (throws off
your sense of time), but having chosen to say this he had almost no choice in
how it would be done.  But choice is not
the right methodology for choosing creativity. It’s not realistic as to how
creativity works: a creative work is not assessed as having chosen one of many
alternatives. Creativity = unpredictable.
 
Bergson: Nobel Prize for literature in 1920s.  We think of things as being repeatable,
reversible in a lot of ways. We like to break things down into chunks, rather
than the whole movement or process. 
Cinematographic method.  Faults
humans for reducing events to things and states.  The possible only becomes possible when it
becomes real: a nub of the alternative approach to creativity.  The choice idea presupposes a lot of
possibles that never come into being, but they don’t exist and maybe never
will.  Think about creativity as movement,
processes—the work is never done.  The
process that led to that particular artifact matters.
 
Burk: distinguish creativity from obviousness/nonobviousness:
what part of creativity is relevant for ©?

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IPSC, Copyright Theory III

Posted on August 7, 2015 by rtushnet
Copyright Theory III
 
Abraham Bell, Bar Ilan University
The Dual-Grant Theory of Fair Use
 
Granted rights are limited in order to avoid unnecessarily exceeding the requirements for incentivizing. Fair use is a broad reservation of privileges for the public during the term of protection.  Maximizing incentives with broad rights, but also broad privileges—alternative would be fewer rights or more limited times.
 
Protected uses have widespread, nonpecuniary follow-on benefits. Privilege focuses on non-“use” utility, meaning indirect benefit—not the person using the © expression who receives utility but other parties beyond this user. The idea is not that there are transaction cost problems, though there might be such problems, but that there’s no reason to include this in the grant of rights in the first place. Fair use is an allocational tool.
 
Proposed two-step test: (1) is this a presumptively fair use? (2) would recognizing this category of use as fair for this work eliminate incentives to create this work?  Less fact intensive inquiry.  Parodies v. satires—cases are almost entirely wrong.  A work satirized in order to create political commentary, such as Cat NOT in the Hat, that’s a perfect fair use.  Transformativeness isn’t the issue.
 
Factors one and three deal with presumptively fair use: nature and purpose; can you accomplish your goal with the amount of the portion used/a good faith test.  Preserving incentives: factors two and four.
 
Lunney: Preserving incentives or preserving creation?
 
A: We want to cut back on incentives. 
 
Q: how general do you want the second inquiry to be?  If Texaco does this, will it drive the publishers out of business?  Or if everyone does what Texaco is doing?  SCt favors the latter approach and I think you must too.
 
A: we are asking this type of use, but for this work, not for all works.  [But that work has already been created.]  This catgory of works?
 
Christopher Buccafusco, IIT Chicago-Kent College of Law/Benjamin N. Cardozo School of Law
A Theory of Copyright Authorship 
 
Relationship between a person we call an author and an entity we call a work/writing.   What is the scope of Congress’s power? What aspects of works can qualify for copyright protection?  Related questions.
 
Statutory works of authorship are a smaller set than “writings of authors” under the Constitution.  What do authors do?  Express ideas?  What’s the idea in a piece of classical music or photo? What’s the idea in a taxonomy or computer program?  This approach is a massive failure, see Mannion.  Application of §102(b) has been incoherent; idea of unconstrained choice has not been helpful.
 
Authorship entails the intentional production of mental effects in an audience; a writing is any medium capable of producing mental effects. Copyright can attach to any fixed object that expresses this.
 
Semantic intentions: what does the work mean?  Is it a satire?  Categorical intention: the thing the author has written is a poem and not a laundry list—the kind of thing she has created. We need not care about semantic intentions for categorical issue of protectability.  Did the author intend to create some aspects of the thing to create mental effects in an audience?  If yes, those aspects are “authorship” and can be copyrighted if appropriate.
 
Caretesian duality: paintings, novels, pohotos, music, all create mental effects, produce thoughts, feelings, emotions.  Copyright: mind/brain. Patent = rest of the world. This language is preferable to expressing ideas, b/c not all works express ideas/have semantic content. Idea/expression is too rationalist.
 
Manner or form: © attaches to the manner or form by which the author produces mental effects, not to the effect itself. Authors select, arrange, and combine formal elements like line, color, notes, words. The manner or form constitutes authorship.  Protectable if original, creative, and fixed; §102(b) drops out/is unnecessary.  Don’t have to figure out what a taxonomy is or what a dance is.
 
“Writings” is significantly broader than has been appreciated: gardens, cuisine, yoga, tactile medium—creating experiences for others that authors expect to have influence on others.  (Paths through the world/order of walking through a museum, as long as fixed in written path?)  Potential aspects of authorship.  But this does not mean that these things are or have to be protected in the current © system—still potentially outside the statutory works of authorship.  But things could change.  If 3D printed food becomes a problem and threatens to drive chefs out of business, we could figure out a way to deal with that, but not if we decide they aren’t authorship. 
 
Also helps us understand what aspects of a given work are protectable. Only certain aspects count.  Everything else must be filtered out.  If it doesn’t create mental effects in audience, it’s not authorship. Find aspects of the work intended to create mental effects in the audience; those constitute authorship, not manner or form choices choices made for purposes of convenience, interoperability, etc. This obviates need to resort to 102(b). Photos: Which of photographer’s choices are minimally creative.  Same with taxonomies: is there some aspect of the manner or form in which these things were arranged that the author intended us to experience something about them? Software: also limits.
 
Dan Burk: you have to deal with operating systems, and personal diaries locked in a drawer.
 
A: add on: if they were perceived.  If MS-DOS was intended to produce some effect, then ok. 
 
Lemley: doesn’t find that satisfactory. The point of the code is not to induce a mental state in anyone.  You can only get © for software under your view is high level gestalt, not low level code.
 
A: might not protect anything in code.  Not a programmer. 
 
RT: Your standard reminds me of Chicago: “I guess you could say we broke up because of artistic differences. He saw himself as alive. And I saw him dead.” Or maybe Se7en. Lots of acts are intended to create effects in an audience, like racially motivated killings.  Seems to be a reframing of the speech/conduct distinction in First Amendment law—there, it tends not to solve the problem it is offered to solve.  For example, Duchamp’s toilet: fixed, and intended to create mental effects, but copyrightable? 
 
A: may not make differences in easy cases where it’s clearly authorship. [I don’t believe there is consensus in this room of © scholars about whether it is an easy case that Duchamp is an author.]  Duchamp got a thing and presented it in such away, unambiguously to create mental effects—clears the © hurdle; we then have to ask harder questions about originality and creativity. My inquiry isolates other stuff that was getting in the way.
 
Dan Burk, University of California, Irvine, School of Law
Copyright and the Cybernetic Circuit
 
Legacy assumptions of ©: romantic author, original genius, classical narrative.  A classical narrative has: plot, chronology, setting, sequential events, causality, characters, point of view.  The paradigm case for © is text.  But we find it in AV works as well.
 
Then you get to computer games and other types of digital media. Ted Friedman wrote an influential piece: no real characters/protagonists in SimCity and Civilization—you end up identifying with cognitive maps.  Whole new type of work.  Has narrative but not in the way we used to think about it. Cybernetic circuit: player, system, and content: something emerges in storytelling from that interaction. 
 
Reader-response theory: reinterpretation/reimagination.  Hands-on: you’re creating new storylines, characters, outcomes as you go along.  Reader is now co-creator with developer of content but also with the technical system in something like Donna Haraway’s cyborg.
 
Friedman had huge effect on analysis of new media: hypertext, DVDs—once skip/fast forward is in viewer’s hands, DVD becomes cybernetic circuit that’s not the director’s cut/what the director intended.
 
Can help us think about a number of cases: Duke Nukem in 3D/MicroStar v. Formgen: video game architecture—library of images; game engine; map files that were instructions to game engine of when and where to place items from the library.  Developer encouraged users to develop extra levels of the game—new MAP files.  Someone copied a bunch and sold them on a disc, and developer didn’t like that. MAP files don’t on their face have any content that belongs to the game developer, and weren’t written by game developer.  Kozinski said they were derivative works—which takes a lot of hoop-jumping. They’re somehow sequels to the game—new stories about Duke Nukem. But that’s a weird characterization; there’s no content there, just code that specifies where the content goes. Potential narratives.  Games don’t play themselves—they only become stories in the context of a technical system and a player generating an output.  More sensible way to think about it than Kozinski used.
 
ClearPlay—easier to think about with this approach.  Useful work in narratology that helps us think about digital works in ways we haven’t before.
 
Is this reductionist in breaking down works too far?  Unstable texts: dynamically generated content.  Multiple versions, drafts continually stored in computer’s memory—where does © attach?
 
RT: Vanity of vanities, all is vanity: Not a distinctly digital problem.  Kozinksi’s dissent in Garcia asks what about the dailies of nondigital film—when is that chunk of film a work? DVD skip v. a book that falls open to the most-reread passage. Is this just an effect of RAM copies that © even cares about this? How should we think differently in ClearPlay?
 
A: True, it’s been true all along but less salient. 
 
Buccafusco: it’s all about authorship.  Who is the author in video games?  (Is there a game in this class?)  Rethink what people are doing that might constitute protectable authorship.
 
A: Players are contesting this question now, though contracts purport to give developer complete control.  Not the romantic author but the collaborative genius.
 
Lunney: why is authorship the right source of insight here? If it’s a matter of who gets the spoils from the entertainment, should it just be allocation of rights?
 
A: Authorship isn’t the only place to push down on this.
 
Kwall: is authenticity applicable here?  Economic rights v. moral rights.
 
A: rereading Walter Benjamin because of that.  It’s a political decision.  Authenticity has a particular connection to the romantic author he’s not sure works here. May need a radically different notion of authenticity—maybe we can’t say “This is Blizzard’s game,” or maybe it goes by the wayside in some cases.
 
Mike Carroll: How important is narrative to the question: if we treat reader as perfomer or performer as athlete?  Dancers perform choreography; players carry out sports play; Twitch asks what makes them different. Sport contest is a kind of story, but doesn’t fit as neatly into your explanation of narrative.
 
A: What Friedman is saying is that there are other nontraditional kinds of narrative, and the way we have baked in narrative into copyright may be wrong; revisiting sports performances might be one consequence of rethinking.
 
Thomas Byron, Boston University
A la recherche du sens perdu: Deconstructing the Creativity Standard in Copyright
 
Rutgers researchers wrote a program to take in images and algorithm measures originality/novelty historically, can determine what’s creative. Used 62,000 pieces of art from Renaissance to modern times.  Mondrian and Da Vinci were identified as creative, others not so much. This could be really helpful for ©.
 
Feist set a very minimal standard, but didn’t give you any way to calibrate creativity—a yardstick without any inches on it.  No notion of the positive: what is creative? 
 
Idea/expression: The higher you go with an idea, the more alternatives there are. Some courts seem to view idea/expression as coextensive with creativity, like the ADA v. Delta Dental: if you can find alternatives for doing something, it’s creative.  Other courts play up authorial choice between the alternatives—a fairly common approach. Other courts are probabalistic: there are less probable and more probable choices and we favor the less probable ones. But that’s a minor tweak.
 
Alito’s opinion in Southco v. Cambridge: parts number taxonomy was uncopyrightable. Photos by contrast have complex and indeterminate ideas.  Should distinguish creativity from idea/expression.  Author’s engagement w/cultural landscape around them that creates creativity, not isolated imagination of a bunch of alternatives. 
 
Proust’s novel In Search of Lost Time—there are no alternatives for his first sentence.  “For the longest time I went to bed early.”  He made a wildly creative choice (throws off your sense of time), but having chosen to say this he had almost no choice in how it would be done.  But choice is not the right methodology for choosing creativity. It’s not realistic as to how creativity works: a creative work is not assessed as having chosen one of many alternatives. Creativity = unpredictable.
 
Bergson: Nobel Prize for literature in 1920s.  We think of things as being repeatable, reversible in a lot of ways. We like to break things down into chunks, rather than the whole movement or process.  Cinematographic method.  Faults humans for reducing events to things and states.  The possible only becomes possible when it becomes real: a nub of the alternative approach to creativity.  The choice idea presupposes a lot of possibles that never come into being, but they don’t exist and maybe never will.  Think about creativity as movement, processes—the work is never done.  The process that led to that particular artifact matters.
 
Burk: distinguish creativity from obviousness/nonobviousness: what part of creativity is relevant for ©?
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