Somehow the Coke bottle survived this dilutive free riding

Posted on July 30, 2015 by rtushnet

1962 Doyle Dane Bernbach ad for the VW Beetle:

Headline: 2 shapes known the world over.

Text: Nobody really notices Coke bottles or Volkswagens any more. They’re so well known, they blend in with the scenery…. (The only reason you can’t buy a VW at the North Pole is that the Volkswagen people won’t sell you one. There’s no VW service around the corner.) We hear that it’s possible to buy yourself a Coke at the North Pole, though. Which makes us suspect there’s only one thing that can get through ahead of a Volkswagen. A Coke truck.

from Blogger http://ift.tt/1U8VxpI

Posted in Uncategorized | Tagged , | Leave a comment

Somehow the Coke bottle survived this dilutive free riding

Posted on July 30, 2015 by rtushnet

1962 Doyle Dane Bernbach ad for the VW Beetle:

Headline: 2 shapes known the world over.

Text: Nobody really notices Coke bottles or Volkswagens any more. They’re so well known, they blend in with the scenery…. (The only reason you can’t buy a VW at the North Pole is that the Volkswagen people won’t sell you one. There’s no VW service around the corner.) We hear that it’s possible to buy yourself a Coke at the North Pole, though. Which makes us suspect there’s only one thing that can get through ahead of a Volkswagen. A Coke truck.

http://tushnet.blogspot.com/feeds/posts/default?alt=rss
Posted in dilution, trademark | Leave a comment

4th Circuit denies rehearing in In re GNC

Posted on July 29, 2015 by rtushnet

😦

If this ruling sticks and is actually applied in Lanham Act cases (something of which I am uncertain), then the resulting circuit split would probably justify Supreme Court review, given the Court’s newfound interest in 43(a)(1)(B).

from Blogger http://ift.tt/1SguBHc

Posted in Uncategorized | Tagged , | Leave a comment

4th Circuit denies rehearing in In re GNC

Posted on July 29, 2015 by rtushnet

😦

If this ruling sticks and is actually applied in Lanham Act cases (something of which I am uncertain), then the resulting circuit split would probably justify Supreme Court review, given the Court’s newfound interest in 43(a)(1)(B).

http://tushnet.blogspot.com/feeds/posts/default?alt=rss
Posted in consumer protection, http://schemas.google.com/blogger/2008/kind#post | Leave a comment

ISHTIP at Penn, part 9

Posted on July 24, 2015 by rtushnet
Session 6 | Josh Sarnoff (DePaul University), Moderator
 
In Search of a Trade Mark: Search practices and Bureaucratic
Poetry
Jose Bellido and Hyo Yoon Kang (University of Kent, UK)
Commentator | Amanda Scardamaglia (Swinburne Law School)
 
Enhanced searching: bureaucratic poetry—early manual
searches. TM office was tasked with organizing words and devices for the first
time: a new commodity of commercial information in signs and words and the
ability to find them on the register. 
Needed a system of classification to register marks; classifications
changed over time to reflect commercial change. 
Patent system classified according to subject matter; a different
endeavor.
 
TM clerk was very different from patent counterparts—technical
expertise v. experts in delicate art of distinguishing and classifying signs
and words.  TM agent emerged, esp. after
1883 amendments opening registration for invented words, leading to significant
increase in number of applications. Agents were skilled in navigating and
searching the register.  Profession
attempted to limit access to registration data, as patent agents had before
them; closing of profession was linked to increasing openness of TM
registers.  Index clerks and TM
abstractors: index w/range of general marks; divisional index of devices
arranged according to things like birds, buildings, and beasts; index arranged
alphabetically by prefixes and terminal endings/suffixes—third index was the
most important. 
 
Significant impact on development of TM law—led to
deconstruction of words and assisted w/creating new marks by creating
comparisons.  Deconstruction of words was
evident in TM infringement cases as well, which focused on comparing sequences
of letters in the same way.  Indexes were
strategic—could find out about what competitors were doing b/c they’d register
preemptively. Initially available only to agents but eventually opened to
public, though agents were still powerful actors who specialized in searching
the register.
 
Index cards and punched cards; final phase of computerized
searching and privatization of search services—entrusted to private services,
with a direct and immediate impact on search. 
Computerization affected registrations: TMs were redesigned for
mechanical purposes; transformed the way search happened—algorithms made it
possible to search across subjects & geography quickly. Removed obstacles
to manual search.  Transformed registry
from visual markers of ownership to a metalevel database.
 
Discussion points: evidence of how the processes impacted
the legislation itself?  Registries
internationally were introduced around the same time.  What indexes if any were used at that time?
Did that impact others’ indexes?  Did
others’ indexes affect Britain’s? What were the tradeoffs in moving from
mechanical to digital?  Paper says
openness increased, but was the info the same?
 
Bellido: we wanted to explore bureaucratic property. Were
surprised that first TM clerks in UK were A.E. Housman, Griffin, and other
poets and antiquaries.  Bureaucratic poetry: indexing techniques have
something to say about how TMs were conceived and developed.
 
Kang: TM is more complicated than patent b/c of two
different forms of numbering—application number, then publication/registration.
Can be complicated to retrieve full info. 
Shows how unstable the nature of property is in legal practice.
 
Bellido: the more open the register was, the more experts
could claim to be able to navigate this massive endeavor.  Legal expertise is founded in the management
of retrieval tools that may look more technical/less interesting to legal
scholars, but it’s everyday routine that constitutes the subjectivity of the TM
expert.
 
Kang: relates to issue of legal agency: what does TM law
actually do?
 
Bellido: registration practice can make the TM a
thing/object of law/property even before there is a product in the market.
 
Kang: complicate picture of TM as consumer-driven. 
 
Bellido: registering invented words: impact on the legal
profession—agents could then sell the possibility of providing new words to
companies. We haven’t touched colonial indexing.   
 
You sometimes see trolling behavior around descriptive
words/changing descriptive words around to try to make them registrable.  Or an agent could identify marks that were
not quite as good but were usable until the register relaxed its standards.
 
The Modern Expansion of Trademark Rights, and How One
Forgotten Treaty Made It Possible
Christine Haight Farley (American University Washington)
Commentator | Dan Hunter (Swinburne Law School)
 
Big claim: a forgotten treaty did a lot more than we thought
it did in creating TM rights.  Hunter is
not sure that this treaty made expansion of rights possible.
 
Paper is a detective story. 
Interamerican Convention on Trademark and Commercial Protection (IACTCP)
(1929).  TM comes from one of two or
maybe three/4 foundations: passing off, concerns over confusion, search costs.  Does this convention give us new insights
into the foundations of TM law?  Offers unfair
competition as a distinct foundation. 
Can we tell that the convention is a contributor to the modern day
understanding?  Even if we could, so
what?  The lawyer’s question: what does
that tell us? 
 
Why was the convention ignored?  The architect of both IACTCP and the modern
Lanham Act (1946) was one man, Edward S. Rogers, founder of first specialized
TM firm and lover of unfair competition. 
 
Significance of Inter-American TM Convention (1929)—self-executing,
and yet completely forgotten.  Modest
number of cases in TTAB and courts, startlingly small # of cases.  Yet this is law.  Why forgotten?  Or has it been?  Are Ps all just dumb?  That seems unlikely.  Erie
says there’s no general federal common law. Then there’s the Lanham Act §43(a),
but also and especially 44(h) and (i). 
The Lanham Act is, for all intents and purposes, federal common law, and
the paper suggests that 44(h) and (i) need to be more talked about, b/c §44 is
generally about recognizing TMs from outside the US; in fact Rogers included
them largely to include unfair competition w/in the American system.
 
Questions: is the paper trying to get us to apply the
Convention?  Are you arguing that unfair
competition is foundational to the Lanham Act? Just b/c it’s in the Lanham Act
doesn’t make it foundational.
 
Farley: A treaty still in force about TM—we don’t have many
of those in the US.  Modern parallels
were interesting about how the US makes the law of other countries and then has
a strategy of making US law also through that undemocratic process.  Beyond that, this text is so interesting b/c
of its novelties and timing, as well as the characters involved.  Inordinate influence of a couple of people
has no modern analogue.  We can
inadvertently make a mistake by privileging moments of development of IP; IP
has not always had pride of place in law, society, or commerce.  Especially in TM law: early 20th
c., it was a teeny field. TMs weren’t as valuable as they are; there was no TM
bar, certainly not in Latin America, just a handful of people in US.  These particular people could have outsized
influence.
 
The ground was shifting under their feet b/c the nature of
marketing was changing, markets were changing, global markets were
changing.  Amorphousness of IP and
particularly TM.  Doing this history,
evident how unsettled and indeterminate the foundations of TM are.  The story that we have an ancient idea of
unfair competition, within it a new thing called TM law, isn’t right. These
were simultaneously being developed and playing off one another.  Early development was a mess.  These guys are making up new law in this
treaty.  Provisions don’t appear anywhere
else.  Rights that suited US businesses
at that moment for expansion into Latin America.
 
Then the Lanham Act comes along, and federal common law is
pulled out.  Given the fact of the
treaty, and their overlapping author, and that Rogers argues the first TM
Supreme Court case after Erie, there
was a unique opportunity to write a new chapter in TM as clean, settled,
organized.  And we don’t get that. We get
slivers of clarity, and then this space/haze around the rights. We focus on
§43(a) as a site of expansion and a site for unfair competition, but these
sections in 44 are what the drafters intended.
 
US corporations exercise their rights under the treaty in
Latin America all the time; drafters expected that b/c of US dominance.  Lanham Act makes vague reference to the
treaty (was explicit reference in first draft); Rogers argued that the treaty
was self-executing and the SCt agreed. 
Conclusion: give those rights to go after unfair competition to US
citizens as well.  We didn’t get that.
§43(a) was reaction of patent bar trying to put the brakes on what Rogers was
trying to do in §44.  Rogers deals with
this by taking §43(a), designed as substitute for 44, in the law too. 
 
RT: Another suspect: What is unfair competition that isn’t infringement?  Trade secret misappropriation was a
possibility bruited about in the 1940s; maybe also antitrust violations.  But that kind of understanding seems impossible
to recover now, especially given other laws—no court is going to find that
there’s been a federal trade secret law for 70 years.  Trademark infringement-like activities that
aren’t infringement but are still unfair competition?  US courts have no current understanding of
what that gap might be: collapse b/t protection and registrability, absence of
a passing off category in US law.
 
A: Many law review articles written at the time clearly
stated that many things were under the umbrella of unfair competition but were
nowhere collected; some understanding that it would be collected in Lanham Act:
trade secret, tortious interference w/ business relations, antitrust.  Not so much interested in those things, but
is interested in what the haze might be surrounding the concept.  (What might a clever P’s lawyer argue?)
 
Possible to bring something like a TM case w/o a possibility
of confusion.  Rogers brought a case
where there were nonproximate goods, a different name but phonetically similar,
and no bad faith.  That was meant to be
one of the §44 cases—not really a theory of confusing the public, but
unfettered right to expand business.  Haze
of rights as buffer around TM rights. 
Rogers won, but we only talk about Frank Schecter, who lost; Rogers won
by making subtle moves.
 
Q: compare to avoision in tax law: indeterminancy of whether
someone is engaging in avoidance (ok) and evasion (not ok).  Infinite ingenuity of malefactors to get
around intent of law w/o letter of law.
 
Madison: concepts in the law having agency v. the agency of
individual humans like Rogers. Rhetorical constructs enabled by disciplinary
angles. 
 
Q: role of timing?
 
A: may have been related to the Depression; also to Erie and resulting uncertainty for TM
lawyers.  Treaty was a bit premature for
the Latin American market.  Responding to
a Europe in which the US lacked a big place, anticipating Americas as a market
to dominate. WWII meant that vision didn’t come about as anticipated.  Not that many businesses were demanding these
kinds of protections; just on the cusp.
 
Sarnoff: if the idea is to remember, do you expand rights in
unpleasant ways?  Is this a comedy and
not a mystery—a tale of laughter and forgetting?

from Blogger http://ift.tt/1HOKYTm

Posted in Uncategorized | Tagged , , | Leave a comment

ISHTIP at Penn, part 8

Posted on July 24, 2015 by rtushnet
Methodology: What should histories and theories of IP be
doing? What role should interdisciplinarity play? | Martha Woodmansee (Case
Western Reserve University), Moderator
 
Lionel Bently (Cambridge)
We tolerated the use of the term “IP” to discuss the field,
though we were aware of problems with it—not used in 19th c.; often
used for law, but we wanted to talk about other regimes; we were conscious of
the dangers of fetishization of law or its categories.  Methodological assumptions revealed in ISHTIP’s
website: sometimes we post the best papers
from each workshop as examples of good work: methodologically sound,
productive, insightful.  Also a bibliography
for people in the field. Also themes for conferences show concerns: a set of
methodological and disciplinary assumptions: themes like representation of the intangible;
IP as cultural technology; openness.
 
Work that disrupts evolutionary stories that make the
present seem inevitable and provides ways to think how it would be otherwise;
work that exposes ways of thinking we don’t readily see in our own practices:
e.g., use of visual and other forms of representation of intangible. Historical
work allows you to see things that are difficult to see in present environment.
 
Kathy Bowrey (New South Wales)
Law is an imperialist discipline: creates its own kinds of
truths through relation to power and authority. 
Claims about superiority of private property, freedom of contract,
freedom of expression. Law & humanities have worked to deconstruct some of
those normative elements.  Patent
scholarship has always been more empirical, but history has occurred w/o much
engagement w/legal scholars until recently. New empirics underlying ©
scholarship and to a lesser extent design and TMs.  Political ambition: contest claims to
naturalness of power and authority.
 
Law claims for itself the authority to define/decide what
the law is.  Interdisciplinary work
challenges that authority. Cultural studies, sociology, anthropology of
professions.  What it is we mean by law:
fight ongoing reproduction of this imperialism. Turn to archival work is really
interesting in this light.  Critical
lawyers need to help historians understand complexity of law as subject—we shorthand
it and are reluctant to unpack.
 
Adrian Johns (University of Chicago)
Identifying moments of change can be difficult in the
moment, as Madison says.  So what can we
imagine for succeeding in 25 years? Interdisciplinarity comes with an
association w/virtue, seemingly b/c in the mid 20th century it
developed as an alternative to entrenched and intellectually constraining
disciplines.  Ways of reconstituting a
liberal democratic order in the face of overweening claims by behaviorism/the
very idea of disciplines.  Risk of creating
authoritarian personality through too much immersion in rules of
disciplines.  Cognitive science took off
as a way to be disciplinary but also free by restoring mind to the center.  When interdisciplinarity worked, it worked by
making compromises: constricted what the disciplines were between which you
were inter.  Institutionally embedded in
gender studies/science studies.  Brought
in people from relatively closely aligned fields—anthropology, sociology. The
closer the disciplines are, the more they argued, and that was productive.
 
ISHTIP needed to be interprofessional: scientists,
filmmakers, musicians, composers, lawyers, and others. But that’s completely
impossible.  Playing the long game: there
are whole areas to be understood that had been systematically missed.  One of the most important: the realm of
technologies, practices, corporate endeavor between the legal world and the
everyday creative life. 
 
Madison: How would one define success in this context? No
need to have a single definition. Political ambitions are embedded in Johns’
narrative; intellectual, organizational, professional for individuals.  Academics often consider the work itself
evidence of its own impact.  Networking
is not a great mode of political organizing.
 
Woodmansee: change consciousness; some other organization
will become the activist avant-garde.
 
Madison: it doesn’t have to be that way, rigid distinction
b/t research and activism—crossover is possible rather than hoping for the rest
of the world to listen critically.
 
Woodmansee: ISHTIP was founded to be a scholarly society
which is not activist, unlike CC. Those things were going on at the same
time. 
 
Johns: ISHTIP ought to occupy not the space of a
policymaking body, but venue of critical understanding to change consciousness
in the end, and that’s success enough. 
ISHTIP participants will be working creatively and politically, but the
organization itself is not a failure if it doesn’t do that.
 
Bowrey: having director from humanities and one from law:
our aspiration is to have equality, though nonlawyers are regularly outnumbered
by lawyers. Want to be less Anglo, but higher education is under attack.  Participate/recruit fellow travelers.
 
Jaszi: Lawyers are likely to be with us for the foreseeable
future.  Consider what lawyers interested
but perhaps not skilled in other disciplines could do to become part of this
discussion.  We operate in a very narrow
channel; most of what we do is about the critique of doctrine. For people who
have come up in that tradition, what methodologies are available? One
possibility: learn to do other things—become better empiricists, ethnographers,
etc.  Another: encourage project based
collaboration.  ISHTIP as a space through
which lawyers who know there’s more but are clueless about how to get there
could identify collaborators and work actively on projects across disciplines.  Also: the kind of work that was
characteristic across a wide range of legal disciplines in the first flowering
of Critical Legal Studies: working w/doctrine, the thing we know how to do, but
w/specific emphasis not on finding its coherence as we are taught to do in law
school and not to propose the way in which doctrine can be made more coherent.
But look more attentively for incoherence. 
A great deal to learn from that.
 
Johns: Incoherence of a concept is not a fatal accusation in
his field.
 
Q: Note the difference between expectations in fields: law =
publish law review articles, especially early in career; other fields = publish
in other journals and also books.  How do
we deal w/that?

from Blogger http://ift.tt/1CVoBNg

Posted in Uncategorized | Tagged , | Leave a comment

ISHTIP at Penn, part 9

Posted on July 24, 2015 by rtushnet
Session 6 | Josh Sarnoff (DePaul University), Moderator
 
In Search of a Trade Mark: Search practices and Bureaucratic Poetry
Jose Bellido and Hyo Yoon Kang (University of Kent, UK)
Commentator | Amanda Scardamaglia (Swinburne Law School)
 
Enhanced searching: bureaucratic poetry—early manual searches. TM office was tasked with organizing words and devices for the first time: a new commodity of commercial information in signs and words and the ability to find them on the register.  Needed a system of classification to register marks; classifications changed over time to reflect commercial change.  Patent system classified according to subject matter; a different endeavor.
 
TM clerk was very different from patent counterparts—technical expertise v. experts in delicate art of distinguishing and classifying signs and words.  TM agent emerged, esp. after 1883 amendments opening registration for invented words, leading to significant increase in number of applications. Agents were skilled in navigating and searching the register.  Profession attempted to limit access to registration data, as patent agents had before them; closing of profession was linked to increasing openness of TM registers.  Index clerks and TM abstractors: index w/range of general marks; divisional index of devices arranged according to things like birds, buildings, and beasts; index arranged alphabetically by prefixes and terminal endings/suffixes—third index was the most important. 
 
Significant impact on development of TM law—led to deconstruction of words and assisted w/creating new marks by creating comparisons.  Deconstruction of words was evident in TM infringement cases as well, which focused on comparing sequences of letters in the same way.  Indexes were strategic—could find out about what competitors were doing b/c they’d register preemptively. Initially available only to agents but eventually opened to public, though agents were still powerful actors who specialized in searching the register.
 
Index cards and punched cards; final phase of computerized searching and privatization of search services—entrusted to private services, with a direct and immediate impact on search.  Computerization affected registrations: TMs were redesigned for mechanical purposes; transformed the way search happened—algorithms made it possible to search across subjects & geography quickly. Removed obstacles to manual search.  Transformed registry from visual markers of ownership to a metalevel database.
 
Discussion points: evidence of how the processes impacted the legislation itself?  Registries internationally were introduced around the same time.  What indexes if any were used at that time? Did that impact others’ indexes?  Did others’ indexes affect Britain’s? What were the tradeoffs in moving from mechanical to digital?  Paper says openness increased, but was the info the same?
 
Bellido: we wanted to explore bureaucratic property. Were surprised that first TM clerks in UK were A.E. Housman, Griffin, and other poets and antiquaries.  Bureaucratic poetry: indexing techniques have something to say about how TMs were conceived and developed.
 
Kang: TM is more complicated than patent b/c of two different forms of numbering—application number, then publication/registration. Can be complicated to retrieve full info.  Shows how unstable the nature of property is in legal practice.
 
Bellido: the more open the register was, the more experts could claim to be able to navigate this massive endeavor.  Legal expertise is founded in the management of retrieval tools that may look more technical/less interesting to legal scholars, but it’s everyday routine that constitutes the subjectivity of the TM expert.
 
Kang: relates to issue of legal agency: what does TM law actually do?
 
Bellido: registration practice can make the TM a thing/object of law/property even before there is a product in the market.
 
Kang: complicate picture of TM as consumer-driven. 
 
Bellido: registering invented words: impact on the legal profession—agents could then sell the possibility of providing new words to companies. We haven’t touched colonial indexing.   
 
You sometimes see trolling behavior around descriptive words/changing descriptive words around to try to make them registrable.  Or an agent could identify marks that were not quite as good but were usable until the register relaxed its standards.
 
The Modern Expansion of Trademark Rights, and How One Forgotten Treaty Made It Possible
Christine Haight Farley (American University Washington)
Commentator | Dan Hunter (Swinburne Law School)
 
Big claim: a forgotten treaty did a lot more than we thought it did in creating TM rights.  Hunter is not sure that this treaty made expansion of rights possible.
 
Paper is a detective story.  Interamerican Convention on Trademark and Commercial Protection (IACTCP) (1929).  TM comes from one of two or maybe three/4 foundations: passing off, concerns over confusion, search costs.  Does this convention give us new insights into the foundations of TM law?  Offers unfair competition as a distinct foundation.  Can we tell that the convention is a contributor to the modern day understanding?  Even if we could, so what?  The lawyer’s question: what does that tell us? 
 
Why was the convention ignored?  The architect of both IACTCP and the modern Lanham Act (1946) was one man, Edward S. Rogers, founder of first specialized TM firm and lover of unfair competition. 
 
Significance of Inter-American TM Convention (1929)—self-executing, and yet completely forgotten.  Modest number of cases in TTAB and courts, startlingly small # of cases.  Yet this is law.  Why forgotten?  Or has it been?  Are Ps all just dumb?  That seems unlikely.  Eriesays there’s no general federal common law. Then there’s the Lanham Act §43(a), but also and especially 44(h) and (i).  The Lanham Act is, for all intents and purposes, federal common law, and the paper suggests that 44(h) and (i) need to be more talked about, b/c §44 is generally about recognizing TMs from outside the US; in fact Rogers included them largely to include unfair competition w/in the American system.
 
Questions: is the paper trying to get us to apply the Convention?  Are you arguing that unfair competition is foundational to the Lanham Act? Just b/c it’s in the Lanham Act doesn’t make it foundational.
 
Farley: A treaty still in force about TM—we don’t have many of those in the US.  Modern parallels were interesting about how the US makes the law of other countries and then has a strategy of making US law also through that undemocratic process.  Beyond that, this text is so interesting b/c of its novelties and timing, as well as the characters involved.  Inordinate influence of a couple of people has no modern analogue.  We can inadvertently make a mistake by privileging moments of development of IP; IP has not always had pride of place in law, society, or commerce.  Especially in TM law: early 20thc., it was a teeny field. TMs weren’t as valuable as they are; there was no TM bar, certainly not in Latin America, just a handful of people in US.  These particular people could have outsized influence.
 
The ground was shifting under their feet b/c the nature of marketing was changing, markets were changing, global markets were changing.  Amorphousness of IP and particularly TM.  Doing this history, evident how unsettled and indeterminate the foundations of TM are.  The story that we have an ancient idea of unfair competition, within it a new thing called TM law, isn’t right. These were simultaneously being developed and playing off one another.  Early development was a mess.  These guys are making up new law in this treaty.  Provisions don’t appear anywhere else.  Rights that suited US businesses at that moment for expansion into Latin America.
 
Then the Lanham Act comes along, and federal common law is pulled out.  Given the fact of the treaty, and their overlapping author, and that Rogers argues the first TM Supreme Court case after Erie, there was a unique opportunity to write a new chapter in TM as clean, settled, organized.  And we don’t get that. We get slivers of clarity, and then this space/haze around the rights. We focus on §43(a) as a site of expansion and a site for unfair competition, but these sections in 44 are what the drafters intended.
 
US corporations exercise their rights under the treaty in Latin America all the time; drafters expected that b/c of US dominance.  Lanham Act makes vague reference to the treaty (was explicit reference in first draft); Rogers argued that the treaty was self-executing and the SCt agreed.  Conclusion: give those rights to go after unfair competition to US citizens as well.  We didn’t get that. §43(a) was reaction of patent bar trying to put the brakes on what Rogers was trying to do in §44.  Rogers deals with this by taking §43(a), designed as substitute for 44, in the law too. 
 
RT: Another suspect: What is unfair competition that isn’t infringement?  Trade secret misappropriation was a possibility bruited about in the 1940s; maybe also antitrust violations.  But that kind of understanding seems impossible to recover now, especially given other laws—no court is going to find that there’s been a federal trade secret law for 70 years.  Trademark infringement-like activities that aren’t infringement but are still unfair competition?  US courts have no current understanding of what that gap might be: collapse b/t protection and registrability, absence of a passing off category in US law.
 
A: Many law review articles written at the time clearly stated that many things were under the umbrella of unfair competition but were nowhere collected; some understanding that it would be collected in Lanham Act: trade secret, tortious interference w/ business relations, antitrust.  Not so much interested in those things, but is interested in what the haze might be surrounding the concept.  (What might a clever P’s lawyer argue?)
 
Possible to bring something like a TM case w/o a possibility of confusion.  Rogers brought a case where there were nonproximate goods, a different name but phonetically similar, and no bad faith.  That was meant to be one of the §44 cases—not really a theory of confusing the public, but unfettered right to expand business.  Haze of rights as buffer around TM rights.  Rogers won, but we only talk about Frank Schecter, who lost; Rogers won by making subtle moves.
 
Q: compare to avoision in tax law: indeterminancy of whether someone is engaging in avoidance (ok) and evasion (not ok).  Infinite ingenuity of malefactors to get around intent of law w/o letter of law.
 
Madison: concepts in the law having agency v. the agency of individual humans like Rogers. Rhetorical constructs enabled by disciplinary angles. 
 
Q: role of timing?
 
A: may have been related to the Depression; also to Erie and resulting uncertainty for TM lawyers.  Treaty was a bit premature for the Latin American market.  Responding to a Europe in which the US lacked a big place, anticipating Americas as a market to dominate. WWII meant that vision didn’t come about as anticipated.  Not that many businesses were demanding these kinds of protections; just on the cusp.
 
Sarnoff: if the idea is to remember, do you expand rights in unpleasant ways?  Is this a comedy and not a mystery—a tale of laughter and forgetting?
http://tushnet.blogspot.com/feeds/posts/default?alt=rss
Posted in http://schemas.google.com/blogger/2008/kind#post, trademark | Leave a comment

ISHTIP at Penn, part 8

Posted on July 24, 2015 by rtushnet
Methodology: What should histories and theories of IP be doing? What role should interdisciplinarity play? | Martha Woodmansee (Case Western Reserve University), Moderator
 
Lionel Bently (Cambridge)
We tolerated the use of the term “IP” to discuss the field, though we were aware of problems with it—not used in 19th c.; often used for law, but we wanted to talk about other regimes; we were conscious of the dangers of fetishization of law or its categories.  Methodological assumptions revealed in ISHTIP’s website: sometimes we post the best papers from each workshop as examples of good work: methodologically sound, productive, insightful.  Also a bibliography for people in the field. Also themes for conferences show concerns: a set of methodological and disciplinary assumptions: themes like representation of the intangible; IP as cultural technology; openness.
 
Work that disrupts evolutionary stories that make the present seem inevitable and provides ways to think how it would be otherwise; work that exposes ways of thinking we don’t readily see in our own practices: e.g., use of visual and other forms of representation of intangible. Historical work allows you to see things that are difficult to see in present environment.
 
Kathy Bowrey (New South Wales)
Law is an imperialist discipline: creates its own kinds of truths through relation to power and authority.  Claims about superiority of private property, freedom of contract, freedom of expression. Law & humanities have worked to deconstruct some of those normative elements.  Patent scholarship has always been more empirical, but history has occurred w/o much engagement w/legal scholars until recently. New empirics underlying © scholarship and to a lesser extent design and TMs.  Political ambition: contest claims to naturalness of power and authority.
 
Law claims for itself the authority to define/decide what the law is.  Interdisciplinary work challenges that authority. Cultural studies, sociology, anthropology of professions.  What it is we mean by law: fight ongoing reproduction of this imperialism. Turn to archival work is really interesting in this light.  Critical lawyers need to help historians understand complexity of law as subject—we shorthand it and are reluctant to unpack.
 
Adrian Johns (University of Chicago)
Identifying moments of change can be difficult in the moment, as Madison says.  So what can we imagine for succeeding in 25 years? Interdisciplinarity comes with an association w/virtue, seemingly b/c in the mid 20th century it developed as an alternative to entrenched and intellectually constraining disciplines.  Ways of reconstituting a liberal democratic order in the face of overweening claims by behaviorism/the very idea of disciplines.  Risk of creating authoritarian personality through too much immersion in rules of disciplines.  Cognitive science took off as a way to be disciplinary but also free by restoring mind to the center.  When interdisciplinarity worked, it worked by making compromises: constricted what the disciplines were between which you were inter.  Institutionally embedded in gender studies/science studies.  Brought in people from relatively closely aligned fields—anthropology, sociology. The closer the disciplines are, the more they argued, and that was productive.
 
ISHTIP needed to be interprofessional: scientists, filmmakers, musicians, composers, lawyers, and others. But that’s completely impossible.  Playing the long game: there are whole areas to be understood that had been systematically missed.  One of the most important: the realm of technologies, practices, corporate endeavor between the legal world and the everyday creative life. 
 
Madison: How would one define success in this context? No need to have a single definition. Political ambitions are embedded in Johns’ narrative; intellectual, organizational, professional for individuals.  Academics often consider the work itself evidence of its own impact.  Networking is not a great mode of political organizing.
 
Woodmansee: change consciousness; some other organization will become the activist avant-garde.
 
Madison: it doesn’t have to be that way, rigid distinction b/t research and activism—crossover is possible rather than hoping for the rest of the world to listen critically.
 
Woodmansee: ISHTIP was founded to be a scholarly society which is not activist, unlike CC. Those things were going on at the same time. 
 
Johns: ISHTIP ought to occupy not the space of a policymaking body, but venue of critical understanding to change consciousness in the end, and that’s success enough.  ISHTIP participants will be working creatively and politically, but the organization itself is not a failure if it doesn’t do that.
 
Bowrey: having director from humanities and one from law: our aspiration is to have equality, though nonlawyers are regularly outnumbered by lawyers. Want to be less Anglo, but higher education is under attack.  Participate/recruit fellow travelers.
 
Jaszi: Lawyers are likely to be with us for the foreseeable future.  Consider what lawyers interested but perhaps not skilled in other disciplines could do to become part of this discussion.  We operate in a very narrow channel; most of what we do is about the critique of doctrine. For people who have come up in that tradition, what methodologies are available? One possibility: learn to do other things—become better empiricists, ethnographers, etc.  Another: encourage project based collaboration.  ISHTIP as a space through which lawyers who know there’s more but are clueless about how to get there could identify collaborators and work actively on projects across disciplines.  Also: the kind of work that was characteristic across a wide range of legal disciplines in the first flowering of Critical Legal Studies: working w/doctrine, the thing we know how to do, but w/specific emphasis not on finding its coherence as we are taught to do in law school and not to propose the way in which doctrine can be made more coherent. But look more attentively for incoherence.  A great deal to learn from that.
 
Johns: Incoherence of a concept is not a fatal accusation in his field.
 
Q: Note the difference between expectations in fields: law = publish law review articles, especially early in career; other fields = publish in other journals and also books.  How do we deal w/that?
http://tushnet.blogspot.com/feeds/posts/default?alt=rss
Posted in http://schemas.google.com/blogger/2008/kind#post | Leave a comment

ISHTIP at Penn, Part 7

Posted on July 24, 2015 by rtushnet
Session 5 | Martin Fredriksson (Linköping University,
Sweden), Moderator
 
Open Source Intelligence: Counterinsurgency, State Secrets,
and Small Novels
Joseph Slaughter (Columbia)
Commentator | Catherine Bond (University of New South Wales)
 
Operation of IP in the context of torture, undertaken as
part of the war on terror.  Stories in
which someone’s blood leaks through the lines. 
Justification for torture in logics of IP?   Torture forces person to narrate—victim is
compelled to become an author, and then ownership of their words is attributed
to them in order to be subjected to a penalty imposed by national security
law.  Law: but the fixation, if it exists
at all, exists under the authority of the state—so maybe not an author in ©
law.
 
Documents released as heavily redacted.  Jenny Holzer reproduced the documents in
silkscreen. The Redaction
Paintings are subject to ©, so you can reproduce the redacted images but
not the Holzer images—a perverse use of ©; words generated by torture victim
are in the public domain.  Images
themselves do have some originality added by Holzer.
 
Counterinsurgency manual: released by gov’t as open source,
but gov’t appropriated a number of sources w/o attribution and credit.  Use of narrative w/in the manual itself, and
how narratives can be adopted in counterinsurgency; also issues of academic
appropriation/plagiarism. What’s taken is probably not substantial, so the
issue is not © but plagiarism/control of the narrative.
 
In Australia, a Guantanamo Bay detainee sought to tell his
story after release. Institutional response under nat’l security legislation—in
the US we said that was a matter of national security.  David Hicks: arrested in Afghanistan and held
for 6 years. Sleep deprived, medicated w/o consent, sexually assaulted, and
beaten while conscious and unconscious. In 2007 pled guilty to material support
for terrorism & returned to Australia where he served time in prison before
being released. Subject to control order by federal police that expired in
2008; in 2010 Random House published his autobiography, which Austl. prosecutors
then sought to suppress. Didn’t claim national security, but proceeded in NSW
against him under the Proceeds of Crimes Act to stop him from benefiting from
the profits of the book.  Torture victim
seeks to reclaim the narrative using © as a means to do that/rebuild life by
telling their story. State doesn’t seek to disrupt the edifice of ownership but
use a law designed to stop drug dealers (well, that does seem like disrupting
the edifice of ownership).  Proceedings
proved difficult b/c the plea may not have been lawful. In 2012 the prosecutor
dropped the case claiming “new evidence” which was not disclosed.
 
Cuts, seams, and stitches b/t traditional IP and national
security, both of which claim property rights over some of the same texts.
Conceptual baggace of IP and national security is not peculiar to the US. In
Australia, the documents Holzer used would be protected by Crown copyright, so
Holzer’s redaction paintings wouldn’t be allowed unless limited exceptions
applied for 50 years. Does that matter to the paper’s story of IP?
 
Slaughter: Torture memos—academic sources repurposed into
guidance for how to torture, but then the bibliography of openly available work
was redacted. Novel from Guatemala—incorporated counterinsurgency manual from
US that circulated freely in Central America. 
Manual instructs military that counterinsurgency is all about narrative:
narrative construct of truth, war, etc. 
Military moves all military tactics into other manuals; the
counterinsurgency manual is full of narrative strategies (and also full of
plagiarism). Presumptive classification: gov’t claimed that people who were
tortured therefore knew the sources and methods of CIA operation and could not
discuss their own torture or they’d reveal CIA secrets.
 
When you tell scholars who don’t believe in authorial intent
about an instance of plagiarism, those very scholars go straight to “what were
they thinking?”  Humanistic desires for
narrative at moments of crisis.
 
David Hicks: There are published US diaries that are
published with redactions.  Lawyers are
making a point about what you can’t say even in your own diary.  Jurisdiction of course makes a
difference. 
 
Q: Manuals seem to be uncopyrightable in the US.  But able to be copyrighted int’lly.  Has the US tried to get national treatment outside
the US?  How does lack of © affect their
creation? 
 
A: classified materials are commonly designated “no foreign
gov’ts” even when declassified.  Haven’t
thought about that Q outside the US. Maybe in a pre-internet era there could be
a legal strategy, but no examples now.
 
RT: (1) Common-law ©/fixation issues—if it’s not under the
victim’s authority then there’s still a common-law © that arises.  Cf. Garcia v. Google: story of the dupe/vulnerable
victim, another person connected to the war on terror who’s put at risk by
being fooled into creating a work.  If it’s
still the victim’s narrative—what counts as authority of the author?  (2) Go beyond © to IP? Orphan Black and “we’re
property.” Large sf literature on owning people: contrast to patent discourses
where it is almost taken for granted that you can’t own a person—v. prisoner as
the slave of the state.  The prisoner
creates a point of pressure for the liberal patent/non-ownership of persons story.
 
A: gov’t did claim to own these people—but the defense
distinction was that they couldn’t own these people’s memories and therefore
they could testify about torture/complain about torture. Torture isn’t just
forced confession, but forced confession that must be redescribed some way as a
voluntary act of will, according to the logic of torture. Thus the fixation is
considered by the gov’t to be under the victim’s authority.
 
Q: consider the exclusionary rule as a point of contrast.
 
A: Gov’t can also block introduction of testimony on nat’l
security grounds.
 
Q: is the liberal humanist subject at the core of your
project? If the state is the referent for power plays, who is power exercised
on?  Right to have stories told is not
just state exercising power, but a way to exercise power against the state—to refuse
to tell indigenous knowledge, for example. 
 
A: strategic revival by defense lawyers of liberal
individual who has rights to privacy/narrate when those are clearly not the
circumstances under which they’re being prosecuted.  Your use of “right” may be the liberal
subject sneaking back in; the lawyers all use rights talk b/c there’s almost no
other language to deal with this. 
 
From Intellectual Property to Openness? On the Potentials of
Literature in Printed Books and in Digital Media
Thomas Ernst (University of Duisburg-Essen, Germany)
Commentator | Michael Madison (University of Pittsburgh)
 
German discourses about literary authorship in the digital
world, destabilizing German © law. What is a work? The finished and final
output of an author, distinguished from the author and from the
recipient/reader. Different theories define and weigh the relations between
these three differently.  1800: era of
first implementation of © law in Germany. 2000: digital media changes started
to have sustained effects on literary production, distribution, and reception.
 
1765-1790: age of reprints. 
Since then, protection of IP established. German law focuses on
protection of individual acts of origination. 
Personal mental creations = works. Fichte: the difference b/t author and
reader, and book as a container of ideas. 
 
2000: nonlinearity, interactivity: allow experimentation w/
new forms of production, distribution, and reception. Undermines German ideas,
including the idea of the book as the salable container. Idea of clear gap b/t
author and reader also disappears: the “prosumer.” Changes the relationship to
the market: active participation in designing the products they want.
 
Phenomena include (1) “Twitterature”—short stories that fit
on Twitter.  Hybrid text: the hashtag
includes both the stories and the comments of readers/interactions w/author—new
space of interaction; lose the boundaries of the work.  Literature as communication network.  (2) Crowdfunding.  (3) Fan fiction: largest German archive
distinguishes between fan fiction and “free works”/Freie Arbeiten.  Community: you write the text to be commented
on.  Author-readership.  (4) Social reading.  Reading groups online.  Can pay a little more to get a digital
version with comments by certain other people.
 
2010: Axolotl Roadkill: author was hailed as a wunderkind,
until a plagiarism scandal erupted—unattributed quotations from blogs.  Internet, plagiarism, etc. are terms put in
contrast w/ authorship and originality. But the text is part of a digital remix
culture, not part of an established literary culture. Text tells story of
16-year-old girl’s attempts to give her life meaning through excessive
behavior/drinking/drugs/sex. Cites Kathy Acker, known for her intertextuality;
chapter titles are quotes from popular films etc. Character says: my work and
my theft become authentic as soon as something touches my soul. It doesn’t
matter where I get things from, it’s important where I take them—slightly older
male who inspires the narrator. Metafictional moment: mixed work becomes
authentic if assembled persuasively: declares its status clearly.
 
Some reactions were downright furious.  4th edition, resolved “legal
issues,” book appeared w/ appendix: sources & acknowledgements, listing 20
references to a blog; 22 unmarked quotations of other authors, even private
correspondence. Transforms them into references—from literary work to scholarly
work.  This interferes w/literary
poetics.
 
Madison: The ideas of authorship, work, reader even
historically has had more fluid meanings—Adrian Johns.  Swing of the pendulum rather than something
completely new.  Political framings of
the question can help as well as conceptual.
 
Paper relies heavily on the sense of German identity, and
book culture contributing substantially to that sense.  Very interesting observation worth pursuing
in greater depth: to what extent are Fichte’s concepts, and the debate even
today, the product of conditions in “Germany”—cultural and national identity.

Hypertext was made controversial in © about 20 years ago, so there was a flurry
of anxiety about the meaning for © protection, infringement, joint authorship,
contributory liability.  In general that
anxiety has passed. These Qs still have some problematics but people are no
longer freaking out or wondering what to make of the fundamental structure of ©
given the internet—more normal science these days.
 
Abstract/general question of aesthetics of literature may be
less interesting than pragmatics of these in particular institutional contexts.
The idea of a stable artifact is still meaningful to some authors, communities
of readers, institutions represented in the marketplace/culture. Other places,
stability is contested or abandoned entirely. 
Which are the circumstances in each category?
 
Everything is always changing: McLuhan said the same thing—changes
are not necessarily as discontinuous as they appear to people in the moment.
 
Axolotl Roadkill: (1) extremely rambunctious appropriation
seems problematic; (2) also failure to cite sources, leading to a shift in
genres in later edition; (3) accusation is accusing her of not having taken
responsibility for the work she produced—an inward directed critique.  Consider the quotation she gave in interviews
about her own process, which was it didn’t matter where people got their
process but only mattered where they take it—manipulating external referents to
advance her own project, rather than taking them inside herself. Thus the
critique is that what she’s doing doesn’t advance the understanding of
art.  A true artist is personally and
internally owning the work (that is, this critique is not a condemnation of all
“poaching”).  Traditionally minded, but
not necessarily about property or limited to digitization/processes of
collaboration.
 
Institutional focus might change analysis versus focus on
individual reactions.  Publishers’
reactions: a break w/tradition of literary studies, as well as break w/legal
system’s resolute commitment to individual liberal ideal of author and
reader.  How © system engages w/culture
using institutions as the primary tools of analysis.  (Julie Cohen, among others, has done work of
this sort.)
 
Ernst: Is this new? On the level of media theory/discourse
studies. There’s a way of performing authorship in different discourses/media
situations that can help us analyze what’s going on, e.g. interacting w/
readers on Twitter.
 
Q: Gender theory might help understand the situation of this
German wunderkind.
 
A: she was forced to apologize to other authors.  Male critic first lionized her, then another
male critic targeted her for takedown. 
 
Jaszi: consider authors coming together in organized groups
and attempting to use law to inhibit a wide range of digital possibilities—Authors’
Guild litigations against HathiTrust, Lexis, etc. Self-designated
representatives have things to say that sound a lot like the Leipzig
Declaration criticizing Axolotl Roadkill. 
Might map performance of authorship/collective performance of authorship
and get some interesting results.
 
A: many such examples—“we need a law against this” pops up
every few months.

from Blogger http://ift.tt/1TXdh7x

Posted in Uncategorized | Tagged , , | Leave a comment

ISHTIP at Penn, Part 7

Posted on July 24, 2015 by rtushnet
Session 5 | Martin Fredriksson (Linköping University, Sweden), Moderator
 
Open Source Intelligence: Counterinsurgency, State Secrets, and Small Novels
Joseph Slaughter (Columbia)
Commentator | Catherine Bond (University of New South Wales)
 
Operation of IP in the context of torture, undertaken as part of the war on terror.  Stories in which someone’s blood leaks through the lines.  Justification for torture in logics of IP?   Torture forces person to narrate—victim is compelled to become an author, and then ownership of their words is attributed to them in order to be subjected to a penalty imposed by national security law.  Law: but the fixation, if it exists at all, exists under the authority of the state—so maybe not an author in © law.
 
Documents released as heavily redacted.  Jenny Holzer reproduced the documents in silkscreen. The Redaction Paintings are subject to ©, so you can reproduce the redacted images but not the Holzer images—a perverse use of ©; words generated by torture victim are in the public domain.  Images themselves do have some originality added by Holzer.
 
Counterinsurgency manual: released by gov’t as open source, but gov’t appropriated a number of sources w/o attribution and credit.  Use of narrative w/in the manual itself, and how narratives can be adopted in counterinsurgency; also issues of academic appropriation/plagiarism. What’s taken is probably not substantial, so the issue is not © but plagiarism/control of the narrative.
 
In Australia, a Guantanamo Bay detainee sought to tell his story after release. Institutional response under nat’l security legislation—in the US we said that was a matter of national security.  David Hicks: arrested in Afghanistan and held for 6 years. Sleep deprived, medicated w/o consent, sexually assaulted, and beaten while conscious and unconscious. In 2007 pled guilty to material support for terrorism & returned to Australia where he served time in prison before being released. Subject to control order by federal police that expired in 2008; in 2010 Random House published his autobiography, which Austl. prosecutors then sought to suppress. Didn’t claim national security, but proceeded in NSW against him under the Proceeds of Crimes Act to stop him from benefiting from the profits of the book.  Torture victim seeks to reclaim the narrative using © as a means to do that/rebuild life by telling their story. State doesn’t seek to disrupt the edifice of ownership but use a law designed to stop drug dealers (well, that does seem like disrupting the edifice of ownership).  Proceedings proved difficult b/c the plea may not have been lawful. In 2012 the prosecutor dropped the case claiming “new evidence” which was not disclosed.
 
Cuts, seams, and stitches b/t traditional IP and national security, both of which claim property rights over some of the same texts. Conceptual baggace of IP and national security is not peculiar to the US. In Australia, the documents Holzer used would be protected by Crown copyright, so Holzer’s redaction paintings wouldn’t be allowed unless limited exceptions applied for 50 years. Does that matter to the paper’s story of IP?
 
Slaughter: Torture memos—academic sources repurposed into guidance for how to torture, but then the bibliography of openly available work was redacted. Novel from Guatemala—incorporated counterinsurgency manual from US that circulated freely in Central America.  Manual instructs military that counterinsurgency is all about narrative: narrative construct of truth, war, etc.  Military moves all military tactics into other manuals; the counterinsurgency manual is full of narrative strategies (and also full of plagiarism). Presumptive classification: gov’t claimed that people who were tortured therefore knew the sources and methods of CIA operation and could not discuss their own torture or they’d reveal CIA secrets.
 
When you tell scholars who don’t believe in authorial intent about an instance of plagiarism, those very scholars go straight to “what were they thinking?”  Humanistic desires for narrative at moments of crisis.
 
David Hicks: There are published US diaries that are published with redactions.  Lawyers are making a point about what you can’t say even in your own diary.  Jurisdiction of course makes a difference. 
 
Q: Manuals seem to be uncopyrightable in the US.  But able to be copyrighted int’lly.  Has the US tried to get national treatment outside the US?  How does lack of © affect their creation? 
 
A: classified materials are commonly designated “no foreign gov’ts” even when declassified.  Haven’t thought about that Q outside the US. Maybe in a pre-internet era there could be a legal strategy, but no examples now.
 
RT: (1) Common-law ©/fixation issues—if it’s not under the victim’s authority then there’s still a common-law © that arises.  Cf. Garcia v. Google: story of the dupe/vulnerable victim, another person connected to the war on terror who’s put at risk by being fooled into creating a work.  If it’s still the victim’s narrative—what counts as authority of the author?  (2) Go beyond © to IP? Orphan Black and “we’re property.” Large sf literature on owning people: contrast to patent discourses where it is almost taken for granted that you can’t own a person—v. prisoner as the slave of the state.  The prisoner creates a point of pressure for the liberal patent/non-ownership of persons story.
 
A: gov’t did claim to own these people—but the defense distinction was that they couldn’t own these people’s memories and therefore they could testify about torture/complain about torture. Torture isn’t just forced confession, but forced confession that must be redescribed some way as a voluntary act of will, according to the logic of torture. Thus the fixation is considered by the gov’t to be under the victim’s authority.
 
Q: consider the exclusionary rule as a point of contrast.
 
A: Gov’t can also block introduction of testimony on nat’l security grounds.
 
Q: is the liberal humanist subject at the core of your project? If the state is the referent for power plays, who is power exercised on?  Right to have stories told is not just state exercising power, but a way to exercise power against the state—to refuse to tell indigenous knowledge, for example. 
 
A: strategic revival by defense lawyers of liberal individual who has rights to privacy/narrate when those are clearly not the circumstances under which they’re being prosecuted.  Your use of “right” may be the liberal subject sneaking back in; the lawyers all use rights talk b/c there’s almost no other language to deal with this. 
 
From Intellectual Property to Openness? On the Potentials of Literature in Printed Books and in Digital Media
Thomas Ernst (University of Duisburg-Essen, Germany)
Commentator | Michael Madison (University of Pittsburgh)
 
German discourses about literary authorship in the digital world, destabilizing German © law. What is a work? The finished and final output of an author, distinguished from the author and from the recipient/reader. Different theories define and weigh the relations between these three differently.  1800: era of first implementation of © law in Germany. 2000: digital media changes started to have sustained effects on literary production, distribution, and reception.
 
1765-1790: age of reprints.  Since then, protection of IP established. German law focuses on protection of individual acts of origination.  Personal mental creations = works. Fichte: the difference b/t author and reader, and book as a container of ideas. 
 
2000: nonlinearity, interactivity: allow experimentation w/ new forms of production, distribution, and reception. Undermines German ideas, including the idea of the book as the salable container. Idea of clear gap b/t author and reader also disappears: the “prosumer.” Changes the relationship to the market: active participation in designing the products they want.
 
Phenomena include (1) “Twitterature”—short stories that fit on Twitter.  Hybrid text: the hashtag includes both the stories and the comments of readers/interactions w/author—new space of interaction; lose the boundaries of the work.  Literature as communication network.  (2) Crowdfunding.  (3) Fan fiction: largest German archive distinguishes between fan fiction and “free works”/Freie Arbeiten.  Community: you write the text to be commented on.  Author-readership.  (4) Social reading.  Reading groups online.  Can pay a little more to get a digital version with comments by certain other people.
 
2010: Axolotl Roadkill: author was hailed as a wunderkind, until a plagiarism scandal erupted—unattributed quotations from blogs.  Internet, plagiarism, etc. are terms put in contrast w/ authorship and originality. But the text is part of a digital remix culture, not part of an established literary culture. Text tells story of 16-year-old girl’s attempts to give her life meaning through excessive behavior/drinking/drugs/sex. Cites Kathy Acker, known for her intertextuality; chapter titles are quotes from popular films etc. Character says: my work and my theft become authentic as soon as something touches my soul. It doesn’t matter where I get things from, it’s important where I take them—slightly older male who inspires the narrator. Metafictional moment: mixed work becomes authentic if assembled persuasively: declares its status clearly.
 
Some reactions were downright furious.  4th edition, resolved “legal issues,” book appeared w/ appendix: sources & acknowledgements, listing 20 references to a blog; 22 unmarked quotations of other authors, even private correspondence. Transforms them into references—from literary work to scholarly work.  This interferes w/literary poetics.
 
Madison: The ideas of authorship, work, reader even historically has had more fluid meanings—Adrian Johns.  Swing of the pendulum rather than something completely new.  Political framings of the question can help as well as conceptual.
 
Paper relies heavily on the sense of German identity, and book culture contributing substantially to that sense.  Very interesting observation worth pursuing in greater depth: to what extent are Fichte’s concepts, and the debate even today, the product of conditions in “Germany”—cultural and national identity.
Hypertext was made controversial in © about 20 years ago, so there was a flurry of anxiety about the meaning for © protection, infringement, joint authorship, contributory liability.  In general that anxiety has passed. These Qs still have some problematics but people are no longer freaking out or wondering what to make of the fundamental structure of © given the internet—more normal science these days.
 
Abstract/general question of aesthetics of literature may be less interesting than pragmatics of these in particular institutional contexts. The idea of a stable artifact is still meaningful to some authors, communities of readers, institutions represented in the marketplace/culture. Other places, stability is contested or abandoned entirely.  Which are the circumstances in each category?
 
Everything is always changing: McLuhan said the same thing—changes are not necessarily as discontinuous as they appear to people in the moment.
 
Axolotl Roadkill: (1) extremely rambunctious appropriation seems problematic; (2) also failure to cite sources, leading to a shift in genres in later edition; (3) accusation is accusing her of not having taken responsibility for the work she produced—an inward directed critique.  Consider the quotation she gave in interviews about her own process, which was it didn’t matter where people got their process but only mattered where they take it—manipulating external referents to advance her own project, rather than taking them inside herself. Thus the critique is that what she’s doing doesn’t advance the understanding of art.  A true artist is personally and internally owning the work (that is, this critique is not a condemnation of all “poaching”).  Traditionally minded, but not necessarily about property or limited to digitization/processes of collaboration.
 
Institutional focus might change analysis versus focus on individual reactions.  Publishers’ reactions: a break w/tradition of literary studies, as well as break w/legal system’s resolute commitment to individual liberal ideal of author and reader.  How © system engages w/culture using institutions as the primary tools of analysis.  (Julie Cohen, among others, has done work of this sort.)
 
Ernst: Is this new? On the level of media theory/discourse studies. There’s a way of performing authorship in different discourses/media situations that can help us analyze what’s going on, e.g. interacting w/ readers on Twitter.
 
Q: Gender theory might help understand the situation of this German wunderkind.
 
A: she was forced to apologize to other authors.  Male critic first lionized her, then another male critic targeted her for takedown. 
 
Jaszi: consider authors coming together in organized groups and attempting to use law to inhibit a wide range of digital possibilities—Authors’ Guild litigations against HathiTrust, Lexis, etc. Self-designated representatives have things to say that sound a lot like the Leipzig Declaration criticizing Axolotl Roadkill.  Might map performance of authorship/collective performance of authorship and get some interesting results.
 
A: many such examples—“we need a law against this” pops up every few months.
http://tushnet.blogspot.com/feeds/posts/default?alt=rss
Posted in copyright, http://schemas.google.com/blogger/2008/kind#post | Leave a comment