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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IPSC: Copyright again

Posted on August 7, 2015 by rtushnet
Copyright History
Shyam Balganesh University of Pennsylvania Law School The
Questionable Origins of the Copyright Infringement Analysis
 
Jerome Frank’s infamous/canonical © infringement test from Arnstein v. Porter, influential across
the country. Step 1: actual copying, dissection allowed, expert testimony
allowed, question of fact. Step 2: improper appropriation: was the taking
enough to be wrongful?  Lay observer is
the standard, subjective/intuitive; also a question of fact for the jury.  A new account based on Frank’s papers. By
1946, Frank had a developed judicial philosophy.  Had disdain for the jury in general; so why
trust the jury here?
 
District court’s opinion seems to rub Frank the wrong way—complains
about heavy workload and says he won’t analyze Arnstein’s remaining
arguments.  The Second Circuit was at the
time the most prominent court in the country—a lot of New Deal academics while
the SCt lacked strong personalities.  The
Arnstein panel was Frank; Learned Hand (who’d crafted the © infringement test
up to then); and Charles Clark.  Clark is
a civ pro legend.  Principal architect of
FRCP, especially Rule 56 (summary judgment). 
 
Frank has a unique/outlying legal philosophy in Legal
Realism.  Core ideas: (1) legal
indeterminancy, rules don’t ever constrain; (2) hunches are more important than
rules—judgments are rationalizations; (3) fact-skepticism: rights and rules are
myths and everything depends on facts, but fact-finding can be manipulated, so
there’s no point in talking about rules/rights; facts are subjective guesses because
the process is flawed; lower courts are deluded and manipulative, finding facts
to fit their chosen outcomes; hated summary judgment.  Compare to other Legal Realists who are
rule-skeptics, not fact-skeptics. 
 
Arnstein comes
from a New Deal feud: Frank and Clark disagreed about everything; personal and
professional distaste.  Of 200 appeals
they were on the same panel, in 58 one wrote a dissent.  Felix
Frankfurter told Frank to be nicer to Clark. 
 
Practice: one week after oral argument, judges would not
meet and could only exchange written memos. 
Frank’s initial memo: listened to both compositions and thought there
was a marked resemblance, and so did his secretary, “who improvises music.”  Don’t jeer this fellow out of court simply
because he appears a little touched.  Newton was also odd.  No reference to summary judgment or copyright
law.  Worried that Judge Caffey had not done
his job.
 
Clark’s first memo: went and spent time with Professor
Luther Noss, a Yale musician: really good musician = no doubt there’s nothing
to this.  Dismayed at attack on summary
judgment.
 
Frank was deeply offended by Clark’s “enlightened” view of
procedure and SJ. He appears to have scribbled notes on the infringement
standard, almost anticipating Clark’s response—what would eventually become the
std.
 
Clark accuses Frank of sidestepping the “musical analysis”
altogether—but Frank never returns to the musical issue itself. Never
articulate their disagreement on that.
 
Frank accuses Clark of secretly calling in an expert
witness, an irregularity that shouldn’t make its way into the opinion.
 
Hand finally weighs in. Troubled by the case.  Initially assigned it to himself, but then
agreed with Frank and gave it to him. 
His ear detected some resemblance, but has no doubt that jury would not
find infringement. Our country loves litigation, so let this go forward and let
the black arts be practiced.
 
Two of them never give up on Arnstein in later exchanges. 
Frank basically admits he was testing a musical hunch, not prejudging
the case.  Hunches weren’t bad things
unless rationalized ex post. 
 
Frank hid behind Hand’s copyright expertise; badly put
together research memo.  Clark: the cases
you cite show how hard you must grub for not even a faint suggestion of what
you have done.  Five days later, Frank
was willing to sign off on Heim,
where they granted SJ on lack of substantial similarity. 
 
Put in place his philosophy of deep fact skepticism: trial
courts would fudge the facts. Needed a mechanism that would take the entire
logic of infringement away from the judge. 
Some decisions could not be rationalized and reasoned, and one of them
is music.  Treating copying as a question
of fact separate from improper appropriation: Only way to keep an expert report
on improper appropriation out, and test the hunch.  He knew no expert would let this get past
summary judgment.  Arnstein was in the image of Frank’s fact skepticism and we still
live with it despite the death of the distrust of district judges.
 
Copyright & Other IP [the ‘sorry, we are not even trying
any more’ panel]
Christina Mulligan Brooklyn Law School
Killing Copyright
 
Digital world makes reproduction right, previously central
to copyright but not implicated by every act of experiencing the work, work
differently. Makes selling a digital work difficult w/out a license, unless we
get rid of RAM copy doctrine—even then, backing up or switching devices creates
issues forcing us into licensure. 
 
General critiques of boilerplate contracts; increased
transaction costs of idiosyncratic licenses. 
Need a workable legal system default rule allowing people to buy a
digital work and use it in a reasonable way. 
Consumer expectations should generally line up with law: a good in
itself and encourages respect for law.
 
Would eliminate reproduction right and create distribution,
performance, and display rights.  Would
be private and public performance/display. 
Revised 109(a): owner of a particular lawfully distributed copy can sell
or otherwise transfer the possession of a copy and also the right to privately
perform and privately display the copyright work.  Downloader of unauthorized copy would
infringe by privately performing, though not by mere reproduction.  Could sell Kindle book and not be liable if
you never read the book again.
 
Would doing this retroactively be a taking? It’s a
rejiggering of the rights—regulatory, giving rights and getting rights, could
be more valuable.  There are also
problems with Berne, which requires a reproduction right, so you’d have to say
this was the same result—but really there are Berne problems.  The wheels are coming off the bus of ©’s
conceptual framework. Even though this proposal isn’t likely to be enacted, we
should recognize that moments of value extraction are important and not
reproductions.
 
Q: Originally © only had a right to vend, not
reproduction.  Could use history to help.
 
Pam Samuelson: Also true of Berne for a long time.  National Academies 1999 digital dilemma
report—computer scientists said repro. rt shouldn’t be focus.
 
Q: Does this destroy the ability to price discriminate?  Or do you still have the ability to lease
software.  If so, wouldn’t that put more
pressure to lease music/movies.
 
A: intentionally designed to be allowed to flex
minimally/maximally.  License for a
company’s workers is different from one digital work.
 
Matt Sag: maybe you want to say © is already killed.
 
RT: When I buy a Kindle book am I an owner of a copy?  Why would you need to delete/not read the
Kindle book again under this language?
 
A: could have rules not allowing certain transactions to be
characterized as “licenses.” Neutral as to that.  Some back and forth around the proposed
language; she wants to have a rule where if you transfer one of the many copies you (as owner of legitimate copy) are
allowed to make, then you lose your right of private display/performance of the
other copies, but can transfer that right along with the copy you transfer.  Language as drafted doesn’t currently say
that, but it could.
 
Aaron Perzanowski Case Western Reserve University
“Buy Now” and Other Lies
 
When we buy a Kindle book we get something different from a
hardcover, but most consumers don’t understand that distinction in a
particularly sophisticated way.  1984 story: Amazon remotely deletes book
from 1000s of people’s devices. You wake up no longer owning a copy—a bit
ironic.

Why does this matter?  Apple and Amazon
use phrases like “buy now” and “Own it in HD!” 
That may be deceptive: statement that consumers interpret in a way that
isn’t true and that changes consumers’ behavior. 
 
Broader concern: shift in our relationship to the idea of
ownership.  (Cf. the cars that
automatically turn themselves off if you miss a lease payment.)  We need to have a conversation about what
ownership means, rather than having a subtle and slow redefinition of what
ownership means.
 
Surveying in attempt to find out how consumers understand
this language. 1000 person panel. Looking for people in market for digital
goods; presented with fake product page offering eBook using “buy now,” with
tiny print link to terms of use.  Another
group sees a physical product with “buy now,” and third variation is eBook that
says something else.  Struggled with what
that should be—needed to be more precise than ToS.  Ended up with “license now.”
 
Then we ask what they think they can do with the thing they
just bought.  Lend it to friend, sell it,
leave it to someone in a will, use on a device of your choice.  All things consumers might associate with the
idea of ownership.  Then ask about
materiality: how much they care about ability to lend, sale, transfer by
will. 
 
Buccafusco: how are you recruiting subjects?
 
A: qualtrix panel; demographics we care about—nationally representative
in age, gender, income. Screened based on questions on purchase/intent to
purchase these kinds of goods.  Average
Amazon shopper.  Telling them it’s a
survey about media.
 
Q: License now—will people see this as legalistic/not like
it?
 
A: that’s the response they should have! They don’t know
what it means and that very realization is important.
 
Q: what about “access now”? 
Also, people can lend things by handing over a Kindle or by sending a
digital copy.  You may want to get at
that difference by having different versions of the question.
 
A: “access” is an interesting option, but we wanted some
indication that you are paying for what you obtain.  Apple has made some changes on its app
buttons.  Apple used to say “free,” then “free+”
for in-app purchases. Then maybe someone at the FTC had a conversation: it
moved to “get.”  “Get” and “access”
suggest no payment at this point.
 
Q: is order of questions randomized?
 
A: Believes so.
 
Q: are there questions checking
comprehension/attention?  50% were not
paying attention in his bad experience w/them.
 
A: They are including check questions and we are not paying
for people who flunk; they are also excluding people who fill in the questions
in less than 1/3 of the average time.
 
Q: Amazon experience has been such a big part of people’s
experiences for so long—is that an issue?
 
A: you want this to replicate real world experiences as much
as possible, so that’s not necessarily bad. 
But enough people have heard the 1984
story that they could be influenced. We don’t just want an Amazon survey.
 
Sag: ownership is elastic—you may own a concert ticket, but “no
reentry” is a common feature. Our expectations may depend on context.  Are you looking for the physical/digital
dislocation?  Do you think everyone’s
beliefs will be different in 10 years.
 
A: I expect a shift over time, but not clear which way it
will go or how long people will remain confused/deceived, which could lead us
to different kinds of interventions.
 
RT: Mortgages: lien theory/title theory states; in title
theory states the mortgagor is not the legal owner of her own house, but there’s
been a modern convergence of treatment in the states—turns out that practical
realities of ownership may override legal distinctions in terms of how courts
will consider equitable treatment. Title theory states have used trust theories
to reach these outcomes.  Concept of
property being held in trust as useful? 
Similar to consumer protection rationale but also has a property basis.
 
Edward Lee IIT Chicago-Kent College of Law
Music Fair Use
 
Fair use originated in text/literary works.  Blurred Lines verdict rekindled his interest
in why we don’t see fair use in music cases that often.  Blurred Lines: Transposed to be in A major
but actually G major—argument for transformative use?
 
Why so rare?  Defendants
prevail on other issues?  Forgo fair use
because it’s not part of music industry practice?  It’s a losing argument?  He doesn’t think there’s precedent that bars
it (see also Campbell).
 
Found just 4 fair use defenses: 3 parodies: Campbell, Bourne
v. 20th Cent. Fox, Fisher v. Dees, and one non-parody, Bridgeport v.
UMG (6th Cir. 2009) (no fair use of George Clinton’s Atomic Dog).  Will be looking for more—all musical work
cases under the 1976 Act.  Trying to
figure out their characteristics; also trying to identify cases in which fair
use is raised but fails.
 
Q: when defense is no copying, fair use would be
inconsistent.  No access is now harder to
argue, which may encourage more fair use defenses.
 
Kristelia Garcia: Music folks think that there’s no such
thing as fair use, only lack of substantial similarity which does the work of
fair use.
 
A: but isn’t that fascinating?  §107 doesn’t exclude musical works.  Maybe it’s hard to have fair use in
architectural works. What’s the explanation? 
Fair use doesn’t do the same work as substantial similarity.
 
Q: Agrees w/Garcia about what the music industry does in
demand letters. Very effective to end discussion of fair use.  [But that would’ve been true of many fields
for a while—other types of parodies etc. 
Why has this industry proved so resistant to change?]
 
Buccafusco: The option of adding authorship
credit/negotiating to that result in music makes it easier to reach agreement
than in cases like Prince v. Cariou.  Selection effects/outliers in
litigation.  Hard to say anything
meaningful about outliers. 
 
Samuelson: Dancing Baby case—user generated content cases
involve fair use of music.  Fair use does
quite a bit of work.  MP3.com made a fair
use defense on behalf of its users, as did RIAA v. Diamond Multimedia.  If you’re going to say those cases don’t
count, then you have to narrow your discussion—even Napster involved fair use
claims.  Zomba karaoke case should be in
there.
 
A: I think those cases make this pattern more
surprising.  The industry just doesn’t
believe in fair use.  [See also their comments
in the PTO/NTIA Green Paper discussion, saying just that.]
 
Roberta Kwall: early section on even anecdotal evidence of
music industry norms would help/provide counterpoint to data.
 
Rosenblatt: (1) may have more difficulty assessing
transformativeness when you have no idea what the first work means; (2)
situations in which fair use is likely to come up are just less likely to be
lawsuits b/c in many musical cultures quotations and recontextualization of
musical/harmonic elements is celebrated and accepted; (3) changing genre using
the cover right simply isn’t actionable, but we might get fair use out of
custom arrangements.
 
District court cases: Abilene Music, Inc. v. Sony Music
Entertainment, Inc., 320 F.Supp.2d 84 (SDNY 2003) (It’s a Wonderful World); Henley
v. DeVore, 733 F.Supp.2d 1144 (C.D. Cal. 2010) (All She Wants To Do Is
Dance).  Pre-1978: Berlin v. E.C. Pub’g,
329 F.2d 541 (2d Cir. 1964); Elsmere Music, Inc. v. National Broad. Co., 482 F.
Supp. 741 (S.D.N.Y.).

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Ad of the day: does Louboutin have a claim?

Posted on August 7, 2015 by rtushnet

Association? Dilution? Would any of the dilution exceptions apply?

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IPSC, Copyright Theory II

Posted on August 7, 2015 by rtushnet
Copyright Theory II 
 
Brad Greenberg Columbia Law School
Bizarro Copyright
 
Does having lots of different antennas in one place v. all
over the place make a difference to whether there is public performance?
Central question of Aereo: looks like
cable, must be cable.  Aereo follows a long line of cases about
new tech asking whether judges should look inside the machine or just look at
the inputs and outputs.  The case is thus
fairly ordinary.  Why it matters:
constanct conflicts over behavioral perspective (majority) or technological/structural
perspective (dissent).  Who should decide
how © touches new tech: the answer is determined by behavioral v. structural
perspective.  Statutory signals theory
applied in Aereo and Google Book
Search.
 
Napster and Grokster: different tech, same
result.  Goes back at least to White-Smith Music; also occurred in video
game cases. Majority position in White-Smith
is structural: absent machine, piano roll is unintelligible.  Dissent takes behavioral perspective: no
reason to decouple roll from machine; makes a sound that sounds like the song.
 
Structural perspective: narrower rights and narrower
limits.  Behavioral: broader rights and
broader limitations, like fair use.
 
Who should decide? Congress has increasingly punted on
tailoring © to new tech. Presumptively, courts and CO articulate limitations.
Two key features of 1976 signal congressional deference: tech neutrality and
standards over rules.  Tech neutral: §101,
102, 106 exclusive rights.  Tech specific:
§108, 111, 115-119, 122.  The choice of
provisions is important signal for how © should be applied by future courts—behavioral
or structural.
 
Google Books: outcome would be different if it were a full
digital library, not just snippets, and so it should be. Fair use is tech
neutral and flexible. Behavioral is the right perspective because §106 rights
are tech-neutral.  Even if the cable
analogy is wrong, it’s likely that it doesn’t matter b/c the court had to find
some way to shoehorn its decision into §106.
 
Counterargument: Congress has tinkered plenty w/satellite
tech, compulsory license, etc. That’s true, and when you ask about §119 etc.
you probably do need a structural inquiry/ask about Congress’ particular
mindset, but for now everything else falls under §106 by default.
 
Christina Mulligan: If Aereo is rightly decided, is the RAM
copy doctrine wrong?
 
A: It should be wrong, but it’s probably not b/c Congress
did tinker w/§117 in response.  First
sale is a similar issue. 
 
Jake Linford: One way to read Aereo is just Breyer as Cong. intent
and Scalia as text—isn’t this the same dumb point that isn’t really about ©?
 
A: would make the same argument regardless.  Second Circuit was much more about behavior
v. structure.
 
Q: Ambiguity in question of who should decide.  What has Congress done? Who ought to be
deciding various parts of the © system?
 
A: taking an imperfect world—judges regularly look to
statute for answers.  Judges often choose
a perspective w/o explaining why or even saying that they are. Maybe Congress
isn’t the best source of innovation policy, but it’s what we’ve got.
 
Peter DiCola: White-Smith
isn’t as clean as that either. The president had weighed in publicly; there
were already negotiations in Congress.  I’ve
interpreted that case as being about the Court pushing the parties to bargain;
composers weren’t coming to the table and were being punished for bad behavior
in licensing only one company.  1976:
§106(4) and 106(6) are tech-specific and Congress did decide to do it that
way.  They’re broad in rights and narrow
in most exceptions—which signal is Congress giving? It will always be mixed.
 
A: see those as tethered to tech mindset of Congress—intent to
be tech neutral to the extent that something can be publicly performed (?)
regardless of whether tech was known in 1976.
 
Sag: number of aerials didn’t matter in Aereo. What mattered
was interposition of lots of copies (even though that wasn’t before the Court).
 
A: Aereo is a tough example b/c so many people don’t like
it, but that still shows his point.
 
RT: Behavior: is that right? 
B/c I think you mean audience reception. Connects Aereo to Tasini, a connection made by the Court itself.
Connected to what you mean by tech neutrality. Both parties claimed the mantle
of tech neutrality.  Neutrality means
different things to different people, as in equal protection.
 
Kevin Hickey, University of California, Berkeley, School of
Law, Center for Law & Technology
Paternalism in Copyright
 
Aims: explore tension between incentive model of © and its
paternalistic provisions; envision legal structure of © if we took
paternalistic impulse seriously—a thought experiment, not a normative
endorsement.
 
What do we mean by paternalism? State limits choices of
individuals to protect them from consequences of their own decisions. Nothing
inherently wrong with intervention.
 
Soft paternalism tends to fail for the very reasons that
motivated the regulation in the first instance. 
(RT: And the existence of entities motivated to make it fail, pace Lauren Willis!)
 
Potential behavioral market failures: creation stage
(intrinsic motivation; judgment under uncertainty—© as distant, uncertain,
indirect incentive, but contrary to that are lottery effects).  Also assignment stage: bounded
willpower/short-sightedness; social preferences for “fair” allocations v. the
endowment effect.
 
Paternalism in ©: termination rights; elimination of formalities;
limitations on alienability (writing requirement); moral rights. Due to lack of
bargaining power, short-sightedness, poverty, uncertain valuation.
 
Tension between incentive model with its rational actors and
paternalistic provisions; rational actors respond to 20 additional years of
protection after life +50, but paternalistic provision supposes an author
incapable of protecting her own interest, making bad deals—if those bad deals
are made, then the prospect of future rewards wasn’t driving creation in the
first place.
 
Normative and policy implications: current hybrid model
risks costs of moral rights like system without the benefits. Social costs of
expansive, default © through eliminating formalities.  Fails in curing perceived unfairness and
actually securing a piece of the profits for the author. Existing author
protections are weak and ineffective for the vast majority of authors (whose
rights aren’t that valuable 35 years later). 
Writing requirement might help a bit, but it just means they sign away
rights for a pittance instead of orally granting them for a pittance. 
 
Taken seriously, we’d either eliminate paternalistic
provisions and reintroduce formalities, or do more in the way of author
protection such as EU-style voidable terms, mandated fair compensation;
incentives would focus on present-time, direct, certain outcomes.
 
Betsy Rosenblatt: how much is paternalism v. market
uncertainty/accounting for an unknown future? 
Formalities are value-neutral; others are harder to chalk up to that.
 
A: often given as justification for termination, but
publishers are also subject to uncertainty; transferring risk to publishers may
make sense given publishers’ portfolio. 
Regardless whether it’s short sighted or difficulty in valuing, it’s
paternalistic in operation. 
 
RT: What if it doesn’t matter what the law is? Abraham
Drassinower & Jessica Silbey: if all you’re about is incentives, then there’s
really just one entity, TM/©/patent/IP. 
Also Laura J. Murray, S. Tina Piper, & Kirsty Robertson, Putting
Intellectual Property in Its Place: Rights Discourses, Creative Labor, and the
Everyday: Rather than listening to experts, “people actually choose to understand the law through
information and opinion gathered from friends, strangers, coworkers, and the
media.” If you gave up on people understanding the law, at least at the point
of creation, then you could essentially ignore the creation stage in terms of
making authors better off.  You’d be led
to focus on the assignment or commercialization stage.
 
A: thinks the law matters. 
(But I think you can’t have that as the assumption for this project.)  Would also be led to think about access to
lawyers as well.  (Again, that’d be after
creation, which has implications for which provisions would work to help
authors.)
 
Sag: Add in compulsory remuneration.  How is this different to distributional
concerns in ©?
 
Q: difference b/t irrational and uninformed.  (Hmm, not sure that’s true. Chicago school
people would disagree b/c the choice to become informed is itself a cost that
people choose to bear or not bear.)  In
formalities, formalities limit my freedom. 
Creators wouldn’t understand that they needed to give notice. There’s a
nonpaternalistic explanation in terms of market structure.  (?  But
notice requirements are useful in forcing information so that markets can more
easily form.)
 
A: There is evidence that termination rights exist to
protect the impecunious/irresponsible author. 
These are fairly weak default rules; if we are serious we’d want
something stronger.   Push back on
formalities elimination as nonpaternalistic. Depends on whether your baseline
is © as natural right or statutory right. 
Elimination does depend on conception of authors as careless.
 
Q: Keep an eye on the context of the time: eliminating
formalities was also about joining Berne. 
(Which pushes the issue back to a different entity: why were formalities
eliminated from Berne? Answer may well be that it wasn’t paternalistic but
based on authors’ rights view, a kind of romanticism—but consider that
elevating authors as more important than other kinds of people and thus giving
them special rights is just the flip side of paternalism, as the sexism
inherent in the term indicates—putting on a pedestal = putting in a cage in
many ways.)
 
VARA allows for waiver, but not transfer.  That may hurt authors.
 
Margot Kaminski & Guy Rub, Ohio State University College
of Law
Zoom-in Zoom-out of Copyright
 
Outcome of cases/scope of copyright protection is determined
by court’s point of reference. If you evaluate a small unit (God’s finger touching
Adam’s in the Sistine Chapel), you give strong copyright protection/shrink the
public domain.  You get lots of different
IP rights/transaction costs.  If you zoom
way out (the whole ceiling) you frustrate other interests by weakening ©, and
maybe unfairly punish people who create complex works.
 
Natural tendency of © in US is that © owners argue for
zooming in as much as possible for statutory damages/fair use, but only up to
the point of invalidity.  Statutory
framework: the word “work” is not defined. After formalities were limited,
authors can do whatever they want at the point of claiming infringement, and
registration is a huge mess for these purposes.
 
Our work is about zooming as a framing decision that judges
or regulators or legislators make. It’s not about defining a work.  Judicial framing move takes place across
doctrines.  Initial findings: courts
often set level of zooming without noticing the issue; if noticed, do it
without principled reasoning; if do reason, adopt different tests across and even
within doctrines.
 
Example: statutory damages. 
Factors: independent economic value; can each TV episode be consumed
separately; was each episode produced separately; registration as an additional
factor. W/two albums, 2d Cir. rejected independent economic value test because
(1) statutory text says one compilation is one statutory damages award; (2) ©
owner decided to bundle the songs together. 
Under Arista Records, SDNY 2010, court says that if, before
infringement, the copyright owner offers an unbundled product, zooming in is
appropriate.  (Of course even before
iTunes there was sample licensing for individual songs, so there was “unbundling”
of a sort even w/in songs since the 1990s at least.)

Registration to the rescue? Author expressing intent through registration
system; cost of registration at least helps. 
But it doesn’t work because it has its own zoom problem. 9th
Cir. found that registration of database of stock photos registers every photo;
SDNY has found to the contrary. Having the DB registration reach individual works
w/o having to list indiv. works eliminates the utility of registration and don’t
have transaction costs identifying each work as a work. 
 
New Copyright Office compendium: (1) registration policy
sometimes conflicts w/statutory damages approach—allows author to register one
CD as unit of registration, which reaches each individual song. That’s the
opposite of the result in the courts. (2) registration policy is calibrated
against statutory damages!  CO sets
policy as a result of what CO thinks result would be in statutory damages
case.  CO assumes that unpublished works
should be registered as individual works, not compilation, b/c it wants to
preserve statutory damages.
 
There are multiple inconsistent tests where they exist.  Four factor fair use test also has zooming
problems: factor three amount (factor four also has a zooming problem).  Photocopying cases show this: Williams &
Wilkins looked at all the magazines; Texaco looked at each article and was the
only one that engaged in reasoning; Princeton Univ. Press looked at each
article; Cambridge Univ. Press v. Patton zoomed out & thought the issue was
raised too late.
 
Zooming and substantial similarity: total concept and feel
of rugs in 2d Cir.; Calabresi wants zoom in to make sure that public domain
works are discounted.
 
Zooming and authorship: Garcia v. Google.  Majority says: this is one work.  If so, she’s not a joint author.  Kozinski fights the zooming and looks at 5
seconds as relevant reference point. 
Maybe she can be the author of that. 
(I think it’s worse than that—it’s not the 5 seconds but the performance
in that 5 seconds.) 
 
Also finds zooming in other areas: Notice; revision of
collective work; separability with PGS works; etc.
 
Questions: other areas of IP law where this happens?  Scope of project—descriptive v.
presecriptive?  Judges versus regulators
v. legislatures?
 
Q: some of these questions are more about sets than zooming
in and out.
 
Andrew Gilden: is this an evidentiary q—how to courts prove
their conclusions?  But if it’s more a
conceptual issue, then looking at briefs in the cases might help.
 
Ramsey: songs in an album are easier to count than
characters in a book—there might be a bunch of ways to count in a book.  [I’d also note, as above, that chunks of a
song can be counted in particular contexts, such as ringtones and sampling.]
 
Sag: some approaches have no limiting principle—turtles all
the way down. Those approaches are probably wrong.
 
A: we can probably agree that Garcia’s position won’t work.
 
Q: market effect in fair use, definition of nascent markets—it
also occurs.  Choosing which it is pervades
© generally.
 
Q: if you take the 2d Cir. approach, I have serious issues
with newspapers/photo collections. You just couldn’t register at an acceptable
cost.  But newspapers will license
individual articles.
 
Niva Elkin-Koren, Haifa Center for Law & Technology,
& Orit Fischman-Afori, The Haim Striks School of Law, College of Management
Academic Studies
Rulifying Fair Use 
 
Presented by Fischman-Afori. 
The trigger was the Cambridge Univ. Press case, a rule against fair use
rulification.  Fair use is a standard;
can courts develop the standard into more concrete guidelines? 

Their position: rules/standards is a spectrum, not a dichotomy. Fair use was
not meant to foreclose evolution into more concrete guidelines. Rulification
can serve copyright goals. Courts should do more rulifying and the 11th
Cir. is wrong. Ancillary rules to assist the court—does fair use prohibit any
such ancillary rules or is it a mandatory rule against rulification?  Designed as a permissive standard.  Lower courts have allowed some rulification,
with Cambridge Univ. Press being the big (and bad) exception.
 
Advantages: avoid uncertainty creating a chilling effect;
allows both flexibility and certainty.  You
can have your cake and eat it too because rules/standards are a spectrum.  Transparency: avoid manipulation of the fair
use four-factor analysis. Rulification may force judges to fully disclose
underlying analysis.
 
Q: Appellate court in Cambridge Univ. Press was concerned w/
10% being pulled of thin air; we have more rulification than you suggest.  Timeshifting = fair use is also a rule.  Transformativeness is also quickly becoming a
rule of its own—Neil Netanel’s work.
 
Q: SCt doesn’t say every parody is fair use.  DCt went much further than any previous
court.  Safe harbor = not the same as a
rule.
 
A: our paper does address difference b/t common law style
rulification and safe harbors. We should check what the rules are. There are
75% safe harbors, etc. 
 
Sag: doesn’t think categories are the same as rules—reverse engineering,
genuine parodies, digitizing library to make a search index—but maybe we’re
just debating terminology.  Clear
categories do provide guidance.  10% rule
also, but that’s subject to gaming, so there’s a huge difference.  If we could rulify fair use we wouldn’t need
fair use.

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IPSC: Copyright again

Posted on August 7, 2015 by rtushnet
Copyright History
Shyam Balganesh University of Pennsylvania Law School The Questionable Origins of the Copyright Infringement Analysis
 
Jerome Frank’s infamous/canonical © infringement test from Arnstein v. Porter, influential across the country. Step 1: actual copying, dissection allowed, expert testimony allowed, question of fact. Step 2: improper appropriation: was the taking enough to be wrongful?  Lay observer is the standard, subjective/intuitive; also a question of fact for the jury.  A new account based on Frank’s papers. By 1946, Frank had a developed judicial philosophy.  Had disdain for the jury in general; so why trust the jury here?
 
District court’s opinion seems to rub Frank the wrong way—complains about heavy workload and says he won’t analyze Arnstein’s remaining arguments.  The Second Circuit was at the time the most prominent court in the country—a lot of New Deal academics while the SCt lacked strong personalities.  The Arnstein panel was Frank; Learned Hand (who’d crafted the © infringement test up to then); and Charles Clark.  Clark is a civ pro legend.  Principal architect of FRCP, especially Rule 56 (summary judgment). 
 
Frank has a unique/outlying legal philosophy in Legal Realism.  Core ideas: (1) legal indeterminancy, rules don’t ever constrain; (2) hunches are more important than rules—judgments are rationalizations; (3) fact-skepticism: rights and rules are myths and everything depends on facts, but fact-finding can be manipulated, so there’s no point in talking about rules/rights; facts are subjective guesses because the process is flawed; lower courts are deluded and manipulative, finding facts to fit their chosen outcomes; hated summary judgment.  Compare to other Legal Realists who are rule-skeptics, not fact-skeptics. 
 
Arnstein comes from a New Deal feud: Frank and Clark disagreed about everything; personal and professional distaste.  Of 200 appeals they were on the same panel, in 58 one wrote a dissent.  Felix Frankfurter told Frank to be nicer to Clark. 
 
Practice: one week after oral argument, judges would not meet and could only exchange written memos.  Frank’s initial memo: listened to both compositions and thought there was a marked resemblance, and so did his secretary, “who improvises music.”  Don’t jeer this fellow out of court simply because he appears a little touched.  Newton was also odd.  No reference to summary judgment or copyright law.  Worried that Judge Caffey had not done his job.
 
Clark’s first memo: went and spent time with Professor Luther Noss, a Yale musician: really good musician = no doubt there’s nothing to this.  Dismayed at attack on summary judgment.
 
Frank was deeply offended by Clark’s “enlightened” view of procedure and SJ. He appears to have scribbled notes on the infringement standard, almost anticipating Clark’s response—what would eventually become the std.
 
Clark accuses Frank of sidestepping the “musical analysis” altogether—but Frank never returns to the musical issue itself. Never articulate their disagreement on that.
 
Frank accuses Clark of secretly calling in an expert witness, an irregularity that shouldn’t make its way into the opinion.
 
Hand finally weighs in. Troubled by the case.  Initially assigned it to himself, but then agreed with Frank and gave it to him.  His ear detected some resemblance, but has no doubt that jury would not find infringement. Our country loves litigation, so let this go forward and let the black arts be practiced.
 
Two of them never give up on Arnstein in later exchanges.  Frank basically admits he was testing a musical hunch, not prejudging the case.  Hunches weren’t bad things unless rationalized ex post. 
 
Frank hid behind Hand’s copyright expertise; badly put together research memo.  Clark: the cases you cite show how hard you must grub for not even a faint suggestion of what you have done.  Five days later, Frank was willing to sign off on Heim, where they granted SJ on lack of substantial similarity. 
 
Put in place his philosophy of deep fact skepticism: trial courts would fudge the facts. Needed a mechanism that would take the entire logic of infringement away from the judge.  Some decisions could not be rationalized and reasoned, and one of them is music.  Treating copying as a question of fact separate from improper appropriation: Only way to keep an expert report on improper appropriation out, and test the hunch.  He knew no expert would let this get past summary judgment.  Arnstein was in the image of Frank’s fact skepticism and we still live with it despite the death of the distrust of district judges.
 
Copyright & Other IP [the ‘sorry, we are not even trying any more’ panel]
Christina Mulligan Brooklyn Law School
Killing Copyright
 
Digital world makes reproduction right, previously central to copyright but not implicated by every act of experiencing the work, work differently. Makes selling a digital work difficult w/out a license, unless we get rid of RAM copy doctrine—even then, backing up or switching devices creates issues forcing us into licensure. 
 
General critiques of boilerplate contracts; increased transaction costs of idiosyncratic licenses.  Need a workable legal system default rule allowing people to buy a digital work and use it in a reasonable way.  Consumer expectations should generally line up with law: a good in itself and encourages respect for law.
 
Would eliminate reproduction right and create distribution, performance, and display rights.  Would be private and public performance/display.  Revised 109(a): owner of a particular lawfully distributed copy can sell or otherwise transfer the possession of a copy and also the right to privately perform and privately display the copyright work.  Downloader of unauthorized copy would infringe by privately performing, though not by mere reproduction.  Could sell Kindle book and not be liable if you never read the book again.
 
Would doing this retroactively be a taking? It’s a rejiggering of the rights—regulatory, giving rights and getting rights, could be more valuable.  There are also problems with Berne, which requires a reproduction right, so you’d have to say this was the same result—but really there are Berne problems.  The wheels are coming off the bus of ©’s conceptual framework. Even though this proposal isn’t likely to be enacted, we should recognize that moments of value extraction are important and not reproductions.
 
Q: Originally © only had a right to vend, not reproduction.  Could use history to help.
 
Pam Samuelson: Also true of Berne for a long time.  National Academies 1999 digital dilemma report—computer scientists said repro. rt shouldn’t be focus.
 
Q: Does this destroy the ability to price discriminate?  Or do you still have the ability to lease software.  If so, wouldn’t that put more pressure to lease music/movies.
 
A: intentionally designed to be allowed to flex minimally/maximally.  License for a company’s workers is different from one digital work.
 
Matt Sag: maybe you want to say © is already killed.
 
RT: When I buy a Kindle book am I an owner of a copy?  Why would you need to delete/not read the Kindle book again under this language?
 
A: could have rules not allowing certain transactions to be characterized as “licenses.” Neutral as to that.  Some back and forth around the proposed language; she wants to have a rule where if you transfer one of the many copies you (as owner of legitimate copy) are allowed to make, then you lose your right of private display/performance of the other copies, but can transfer that right along with the copy you transfer.  Language as drafted doesn’t currently say that, but it could.
 
Aaron Perzanowski Case Western Reserve University
“Buy Now” and Other Lies
 
When we buy a Kindle book we get something different from a hardcover, but most consumers don’t understand that distinction in a particularly sophisticated way.  1984 story: Amazon remotely deletes book from 1000s of people’s devices. You wake up no longer owning a copy—a bit ironic.
Why does this matter?  Apple and Amazon use phrases like “buy now” and “Own it in HD!”  That may be deceptive: statement that consumers interpret in a way that isn’t true and that changes consumers’ behavior. 
 
Broader concern: shift in our relationship to the idea of ownership.  (Cf. the cars that automatically turn themselves off if you miss a lease payment.)  We need to have a conversation about what ownership means, rather than having a subtle and slow redefinition of what ownership means.
 
Surveying in attempt to find out how consumers understand this language. 1000 person panel. Looking for people in market for digital goods; presented with fake product page offering eBook using “buy now,” with tiny print link to terms of use.  Another group sees a physical product with “buy now,” and third variation is eBook that says something else.  Struggled with what that should be—needed to be more precise than ToS.  Ended up with “license now.”
 
Then we ask what they think they can do with the thing they just bought.  Lend it to friend, sell it, leave it to someone in a will, use on a device of your choice.  All things consumers might associate with the idea of ownership.  Then ask about materiality: how much they care about ability to lend, sale, transfer by will. 
 
Buccafusco: how are you recruiting subjects?
 
A: qualtrix panel; demographics we care about—nationally representative in age, gender, income. Screened based on questions on purchase/intent to purchase these kinds of goods.  Average Amazon shopper.  Telling them it’s a survey about media.
 
Q: License now—will people see this as legalistic/not like it?
 
A: that’s the response they should have! They don’t know what it means and that very realization is important.
 
Q: what about “access now”?  Also, people can lend things by handing over a Kindle or by sending a digital copy.  You may want to get at that difference by having different versions of the question.
 
A: “access” is an interesting option, but we wanted some indication that you are paying for what you obtain.  Apple has made some changes on its app buttons.  Apple used to say “free,” then “free+” for in-app purchases. Then maybe someone at the FTC had a conversation: it moved to “get.”  “Get” and “access” suggest no payment at this point.
 
Q: is order of questions randomized?
 
A: Believes so.
 
Q: are there questions checking comprehension/attention?  50% were not paying attention in his bad experience w/them.
 
A: They are including check questions and we are not paying for people who flunk; they are also excluding people who fill in the questions in less than 1/3 of the average time.
 
Q: Amazon experience has been such a big part of people’s experiences for so long—is that an issue?
 
A: you want this to replicate real world experiences as much as possible, so that’s not necessarily bad.  But enough people have heard the 1984story that they could be influenced. We don’t just want an Amazon survey.
 
Sag: ownership is elastic—you may own a concert ticket, but “no reentry” is a common feature. Our expectations may depend on context.  Are you looking for the physical/digital dislocation?  Do you think everyone’s beliefs will be different in 10 years.
 
A: I expect a shift over time, but not clear which way it will go or how long people will remain confused/deceived, which could lead us to different kinds of interventions.
 
RT: Mortgages: lien theory/title theory states; in title theory states the mortgagor is not the legal owner of her own house, but there’s been a modern convergence of treatment in the states—turns out that practical realities of ownership may override legal distinctions in terms of how courts will consider equitable treatment. Title theory states have used trust theories to reach these outcomes.  Concept of property being held in trust as useful?  Similar to consumer protection rationale but also has a property basis.
 
Edward Lee IIT Chicago-Kent College of Law
Music Fair Use
 
Fair use originated in text/literary works.  Blurred Lines verdict rekindled his interest in why we don’t see fair use in music cases that often.  Blurred Lines: Transposed to be in A major but actually G major—argument for transformative use?
 
Why so rare?  Defendants prevail on other issues?  Forgo fair use because it’s not part of music industry practice?  It’s a losing argument?  He doesn’t think there’s precedent that bars it (see also Campbell).
 
Found just 4 fair use defenses: 3 parodies: Campbell, Bourne v. 20th Cent. Fox, Fisher v. Dees, and one non-parody, Bridgeport v. UMG (6th Cir. 2009) (no fair use of George Clinton’s Atomic Dog).  Will be looking for more—all musical work cases under the 1976 Act.  Trying to figure out their characteristics; also trying to identify cases in which fair use is raised but fails.
 
Q: when defense is no copying, fair use would be inconsistent.  No access is now harder to argue, which may encourage more fair use defenses.
 
Kristelia Garcia: Music folks think that there’s no such thing as fair use, only lack of substantial similarity which does the work of fair use.
 
A: but isn’t that fascinating?  §107 doesn’t exclude musical works.  Maybe it’s hard to have fair use in architectural works. What’s the explanation?  Fair use doesn’t do the same work as substantial similarity.
 
Q: Agrees w/Garcia about what the music industry does in demand letters. Very effective to end discussion of fair use.  [But that would’ve been true of many fields for a while—other types of parodies etc.  Why has this industry proved so resistant to change?]
 
Buccafusco: The option of adding authorship credit/negotiating to that result in music makes it easier to reach agreement than in cases like Prince v. Cariou.  Selection effects/outliers in litigation.  Hard to say anything meaningful about outliers. 
 
Samuelson: Dancing Baby case—user generated content cases involve fair use of music.  Fair use does quite a bit of work.  MP3.com made a fair use defense on behalf of its users, as did RIAA v. Diamond Multimedia.  If you’re going to say those cases don’t count, then you have to narrow your discussion—even Napster involved fair use claims.  Zomba karaoke case should be in there.
 
A: I think those cases make this pattern more surprising.  The industry just doesn’t believe in fair use.  [See also their comments in the PTO/NTIA Green Paper discussion, saying just that.]
 
Roberta Kwall: early section on even anecdotal evidence of music industry norms would help/provide counterpoint to data.
 
Rosenblatt: (1) may have more difficulty assessing transformativeness when you have no idea what the first work means; (2) situations in which fair use is likely to come up are just less likely to be lawsuits b/c in many musical cultures quotations and recontextualization of musical/harmonic elements is celebrated and accepted; (3) changing genre using the cover right simply isn’t actionable, but we might get fair use out of custom arrangements.
 
District court cases: Abilene Music, Inc. v. Sony Music Entertainment, Inc., 320 F.Supp.2d 84 (SDNY 2003) (It’s a Wonderful World); Henley v. DeVore, 733 F.Supp.2d 1144 (C.D. Cal. 2010) (All She Wants To Do Is Dance).  Pre-1978: Berlin v. E.C. Pub’g, 329 F.2d 541 (2d Cir. 1964); Elsmere Music, Inc. v. National Broad. Co., 482 F. Supp. 741 (S.D.N.Y.).
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Ad of the day: does Louboutin have a claim?

Posted on August 7, 2015 by rtushnet

Association? Dilution? Would any of the dilution exceptions apply?

Via SocImages.

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