Andrew Gilden, Talking
Pleasure in IP
Courts and advocates
are skeptical of value of pleasure; when they want to honor it, they reframe it
as something else, like social justice. Joy of producing/consuming can be
important motivation for activities, though, so exploring how courts deal with
it in IP is important.
Expected to find a
lot of talking around the topic of pleasure, but surprised to find a lot of hostility
to, especially, defendants’ enjoyment of their own conduct.
Graham v. Prince: “Prince
testified his purpose was simply to ‘make art’ and ‘have fun’”—rejecting fair
use, repeatedly emphasized in opinion.
Axanar/Star Trek
case, defendants repeatedly talked about their fandom and how they wanted to
celebrate their love of Star Trek.
Harry Potter
Lexicon: “Perhaps b/c [D] is such a Harry Potter enthusiast, the Lexicon often
lacks restraint in using Rowling’s original expression”
Salinger v. Colting:
“60 Years’ plain purpose is… to satisfy Holden’s fans’ passion”:—trying to make
fans think differently is ok, but enjoyment is not.
D urges SAT readers
to satisfy their cravings
By contrast,
opposition to or detachment from the work helps: gritty retellings, where D “found
the world depicted in much popular culture baffling and alienating”; Carious: “Prince
doesn’t have any real interest in what another artist’s original intent is”; Elf
not on the Shelf sought to knock the Elf “off its perch.”
Plaintiffs who lose
are also described as fun-loving: loving Tolkien, loving Tiger King enough to
tattoo it, etc.
End product:
incentive to make up BS stories of why you’re creating and what your
relationship w/the work was: SAT claimed to be “critical,” Disney porn claims
to emphasize the transition of teenagers to childhood to manhood; VIP claims it’s
about reflecting on the role of dogs in our lives.
Scholarship says
that pleasure and joy aren’t accounted for in economic theories of IP, or
buried in welfare analysis, but he’s seeing more than that: hostility to joy. If
you admit to having fun (or are suspected of having fun) that weakens your
case. Intellectualize your motives, tap into your childhood trauma, find a critique,
focus on the pain. Rewards disingenuousness or overintellectualization.
Concerning that the winning human experience is dissent, critique, opposition
instead of joy. Gets the market failure explanation for protecting parody and
dissent, but the flipside is that joy and pleasure become commodities owned by
IP proprietors. E.g., members of frats and sororities “get so excited when they
pledge” and “want stuff” related to their new organization, or DC Comics v.
Towle, where “by Towle’s own admission, most of his customers were fans who ‘usually
know the entire history of the Batmobile.’” Intellectual pleasure is
commoditized or perhaps morally suspect (if unauthorized). Pay for your
pleasure or shut up about it.
Betsy Rosenblatt:
pleasure has been considered morally suspect a lot; combating that is a great
goal b/c there’s a justification in IP theory for why pleasure is a reasonable
constitutional goal. Giving pleasure can found patentability; use that! “Nobody
but a blockhead ever wrote except for money.” Argument for change to factor 4,
that growing a market/market benefits should matter.
Irene Calboli: Irina
Manta’s hedonic TM paper might be a useful contrast. Define pleasure for us—parody
can be pleasurable and is a big defense. Moralistic? Guns ‘R Us is ok, but
sexual expression is riskier. We protect some hedonism in TMs as status symbols
in letting people show off (pleasure in domination is more protected than fun
in equality?).
A: pleasure is a
positive subjective experience in response to a stimulus. Quite broad. Agree
that parody is fun, but it’s not really the profile it gets in the case law. A
parody is critical, oppositional, political. Wind Done Gone: Alice Randall was
a big fan, but also had a lot to say, and only part 2 of that mattered.
Andrew Ventimiglia:
signs of pleasure/aesthetic questions: are they reflected in opinions of judges
themselves? Religious freedom cases—judges seem to take joy in being amateur
theologians; do you see judges evidencing joy in aesthetic evaluations w/o
admitting they do so. See in © around religious texts, channeled texts (angelic
authorship)—judges are clearly having a good time b/c of the nature of the
dispute.
A: yes, Axanar tells
a lot of Star Trek jokes while it imposes liability on fans.
Sonia Katyal: what
are the functions of pleasure? Body of law around aesthetics of pleasure—©,
camp, [adult dancing]. Then there’s commodification of pleasure. Then there’s
the way that criminal law connects w/pleasure—what does the law do with the experience
of pleasure? S&M cases are fascinating in thinking about consent and
criminality.
Q: natural law tradition;
basic value of play. Play would seem to be fundamental, and should trump
derived rights.
Zahr Said: Sunder’s
From Goods to a Good Life—does seem like there are two levels of pleasure: the
fan’s level, pleasure in production, consumption, experience of community; the
other at the judge’s level, and could engage with affect theory—judicial opinions
systematically devalue not only women’s enjoyment, pleasure, and creativity,
but there’s also a real disdain for affect and anything that feels
pleasure-forward. Many of these judges come from English/social science
background and learned that critique was the right, masculine way of
approaching the world; being soft and affect-based was wrong.
Consider also jury
instructions: how do we talk to juries about this?
Terry (Taorui) Guan,
Collaborative Protection of IP: the Case of China
Proposed by central
gov’t, 2021, experimenting now. Objective to enhance IP protection; pressure
from US. Involves both gov’t and non-gov’t entities, including social
organizations and educational institutions. Idea: collaborative model offers
more effective IP protection, especially in countries like China where the
capabilities of courts and right holders are relatively limited.
Conventional approach
is court-centric, with relatively limited customs support, as in US.
Administrative remedies: injunction; civil compensation; some criminal
penalties. ITC will stop infringing goods at border. In Chnia, courts have
limited resources, knowledge, and capability, as do rights holders. High
procedural costs in time and money, insufficient remedies. So: facilitating collaboration
to share information and resources, using law and policy as the framework for
repeated collaboration, with gov’t entites playing a leading role: providing
guidance and instruction to private actors, social organizations, and
educational institutions.
Courts/admin
entities provide remedies to rights holder and information sharing between
courts and agencies to apply standards; courts also provide guidance through
issuing typical and guiding cases; agencies provide direct instructions to nongovernmental
entities. Individuals can join volunteer programs for IP holders and technical
experts like retired patent examiners can offer consulting to courts and
agencies. Operators—ecommerce platforms, wholesale markets, trade exhibitions—can
offer information, consulting to rights holders and introduce preventative
measures and private enforcement measures like scrutinizing products before
exhibit and removing infringing products promptly. Agencies can scrutinize
material to discover infringing products before put into use in public funded
construction projects.
Social organizations:
IP protection centers funded by gov’t can provide info to rights holders;
notaries/appraisal institutions; industry associations can serve members and establish
IP litigation funds for impecunious members.
Educational
institutions can provide courses/training to staff, provide info center in
libraries.
This model can be
more effective. Instead of a court-centric model, a pluralistic system can be
better at protecting intangible property by increasing accessibility,
diversity, and timeliness of remedies.
Challenges: interest
divergence: ecommerce platforms may not want to alienate merchants;
institutional costs.
For an incentive-based
regime, this gives us more levers to affect incentives by different kinds of
enforcement, adapt to geographic areas/innovator communities/commercialization
scenarios. China now has IP centers in industrial zones to enhance innovation
clusters. Adds complexity; adds cost for regulated entities.
Jeanne Fromer: say
more about specialized courts in China, as a way to provide more robust
enforcement. Fromer & Amy Adler wrote about
online shaming as enforcement—ambivalent, because it provides some benefits—cheaper,
quicker than traditional legal system, but lacks legal protections against
baseless claims or internalization of the costs of extending IP too far. Talk
more about costs of moving outside courts.
A: China is trying
hard to provide better judicial enforcement; collaborative protection is an
add-on. Only specialized courts in a few places. Judges in other areas may not
be as professional. Improving judiciary might not be sufficient.
Marketa Trimble: A
critic of the Chinese system might argue that this looks like making gov’t
influence or instruction more legally binding. An IP owner might not want to
enforce—does this mean that the gov’t can exert pressure on the business to
enforce even when it doesn’t want to do so?
A: the majority of
measures don’t compel enforcement, but administrative agencies may automatically
enforce rights if they receive reports.
Jeremy Sheff: any concerns
about compliance w/TRIPS and other international agreements in terms of role of
administrative agencies?
A: TRIPS requires
minimum standards, and China complied long ago. US complains: laws on books are
ok, but enforcement sucks. China now is trying hard to raise enforcement
levels.
Q: “collaborative”—is
it a public private partnership? In the US and Europe there is a strong collaborative
tradition in private systems—patent pools, cross-licensing, geographical
indications. Confidential terms, but educational institutions and collaboration
exist. What you’re adding is top down control. The role of the state is what’s
unique. Here we’d have a separation of powers problem. We have collaboration;
it’s the gov’t driven collaboration that seems distinctive. [We have a bunch of
that too—cf. jawboning; PTO and NTIA try to get people together to make deals.]
A: agreed.
[RT: Guiding cases
is really fascinating concept. How big a role do they play: do IP protection centers
instruct people who consult them on the guiding cases? Relationship to rules v.
standards? Rules may offer more comfort and confidence to nonlawyers. But rules
have well-known costs as well—consider how the balance differs when a court is
deciding between a rule and a standard and when a nonjudicial institution is deciding.
Even if the nonlegal institutions focus on rules, should the courts still be
using standards when a judicial dispute develops?]
Jyh-An Lee,
Non-Market Approach to IP
North/South debates
over things like one size fits all, access to medicine, commercial piracy. New
type of disagreement relevant to US-China trade. Market economy v. nonmarket economy
approach to IP: China’s trading partners, esp. US, argue that China’s state-led
IP practices and practices have distorted the market and harmed China’s trading
partners. Principal beneficiaries are Chinese companies moving up value chain
at expense of trading partners.
But what is this
nonmarket approach? Examples: policies facilitating illegitimate access to
foreign companies’ IP. Forced tech transfer, mandatory joint ventures, trade
secret divulgation in exchange for admin approval—non-IP policies lead to access
to IP. USTR has objected for years.
Another example: policies
prioritizing creation, acquisition and enforcement of IP by Chinese companies.
Antisuit injunctions: China’s different approach to standard-essential patents,
imposing injunctions globally, on all parallel cases. US was first to grant
anti-suit injunctions, but now China is with a different scope. Foreign right
holders are concerned that anti-suit injunctions favor domestic companies over
foreign patent holders. High level political/judicial authorities have cited
these as example of court “serving” the “overall work” of the CCP and the
Chinese state.
State-backed
acquisition of equity and tech: systematic
investment in and acquisition of US companies by Chinese companies,
including by having Chinese banks provide financing.
Subsidies for patent
and TM filing, including subsidizing TM filings in US.
Social credit
system: expanding to IP. Could use them for schools, bank loans, and also as
punishment for willful patent infringement.
US has no idea how
to respond; this is no longer the decade old “this is a country of piracy!”
narrative. Treaty w/China; resort to WTO (US forced China to abolish discriminatory
licensing rules, but tariffs were struck down; pending dispute about anti suit
injunctions initiated by EU). Ally with trading partners; domestic legislation
w/r/t, e.g., TM applications. Effect so far is very limited.
Special 301 report:
not a theoretically robust critique so it’s easy for China to fight back. IP
itself is a government intervention. China is doing something different from
the past: following international IP rules, buying American IP, just as US
companies have done in the past. If you criticized Chinese patent filing and TM
registration, Chinese response was: you fund universities for innovation and
then they file for patents; what’s the difference? [See also: 1201 and 1202!]
Claim is that IP is
just part of the nonmarket economy. State capitalism: hybrid economy. Strong
national government for commercial success. Maybe TRIPS provisions on subsidies
can help navigate these tensions.
Q: in the US, we
treat IP liability as strict/not a moral question; China views it as immoral,
w/effect on social credit. Is there a bigger philosophical divide on what IP is
for?
A: still trying to
figure out own viewpoint. Social credit system is problematic, but in terms of
IP itself he’s not sure. A private credit score might also reflect adjudicated
liability for infringement. Internationally, the strategy creates costs on
trading partners: unfair. Domestically, you can see rent-seeking behavior,
e.g., subsidies for patent & TM filings that exceed cost of filing. $300 (approx.)
to file in China, but you can get $800 for that.
Trimble: is there a
public reaction?
A: favorable: gov’t
is promoting these things as good for citizens, self-determination, national pride.
Most criticism of social credit comes from overseas.
Rosenblatt: what
would happen if the US took these approaches? Thinks it would fail horribly,
but why?
A: also a puzzle.
Professors said market economies were always more efficient, but nowadays there
seems to be a debate.
RT: Zero interest
rates may have more to do with the US results over the past decade than our
innovation policy; likewise, if Chinese banks are forced to lend, then that may
be the key policy. It would be useful to know what happens if this can’t go on
forever.
Jeremy Sheff, A Heap
of IP: Vagueness in the Delineation of IP Rights
Connecting philosophical
literature on vagueness to literature on claiming on IP. Vagueness is a
pervasive concern across IP mainly for reasons of notice. Patent law’s central
concept of claiming is about avoiding vagueness; doctrines of equivalence,
indefiniteness. ©’s claiming rules: especially subject to critique on notice
grounds. TM: registration as providing notice, but also the problem of
unregistered trade dress.
Sources of
vagueness: IP rights are categorical and composite. The property in IP is
invariably a category of possible things. Also, the category is composite:
membership is evaluated extensionally by reference to elements of the thing,
even where the category was initially defined centrally (patent) or by exemplar
(protectable features of © work).
Vagueness in at
least two ways: (1) what’s within the category and what is outside—what is the
boundary? (2) how does this determination depend on the elements used to define
the category?
(1) is a qualitative vagueness familiar to
lawyers: vagueness that arises from natural language, e.g., no vehicles in the park.
We are skeptical about rules framed in language are capable of predicting their
application across all things. Structurally similar vagueness arises with non-word
symbols like images, see Tushnet.
(2) Category membership evaluated by the
reference to elements is also vague in a quantitative way: soritical vagueness:
the Sorites Paradox—how many grains can you take away before there’s no heap?
Cf. The Ship of Theseus. Quantitative vagueness: at some point, elements present
or absent lead to something being within or without a category.
These two forms of
vagueness can interact. It’s possible that elements are themselves vague, as in
the question of what a patent claim or limitation covers. Are some elements
necessary and/or sufficient to establish category membership? Is the
necessity/sufficiency of any one element dependent on the presence/absence of
any other element? Examples: dueling “wine by style” store cases—if there’s
blond wood but no backlighting, is there a trade dress problem; if there’s
backlighting but black walls, same question.
Philosophical
responses: (1) epistemic humility, there’s a sharp boundary, but it’s unknowable.
(2) Non-bivalence—there’s a range of cases
neither satisfying or failing the predicate—a tertium quid. But lawyers can’t
rely on either to decide cases.
Responses to
qualitative and quantitative vagueness differ. Qualitative: precisify: change
natural language (healthy level of X) to quantifiable technical meaning (Y PPM
of X).
Another possibility:
look at practices of the community and see what they do.
IP law allocates
authority to particular interpretive communities, and different forms of IP privilege
different interpretive communities: Patent, PHOSITA; copyright,
public/audience; TM, consumers.
PHOSITA:
all-elements rule seems to avoid quantitative vagueness, but qualitative is
still a problem.
Copyright (juries)—get
to decide w/essentially unlimited discretion on substantial similarity.
TM: actual consumers
and surveys as key evidence, perhaps w/judicial supervision of evidentiary
quality.
Normative
implication: vagueness will always be with us, so pay attention to who gets to
resolve it. Allocation of interpretive authority reveals the values, by IDing
the privileged communities, of an IP regime. Patent: a system for producers and
experts. ©: a democratic system, common-sense morality (jury). TM: solicitude
for consumer susceptible to expert psychological manipulation by marketers.
Lingering puzzle:
interpreters from outside the privileged interpretive community: we give the
final authority to people outside that community. Judge is in charge of claim
construction; bleeding of expert testimony on copying into substantial similarity;
judges and survey experts constructing imagined consumer in TM.
Fromer: in patent, there’s
often not good language to describe new things, which contributes to the
problem. In ©, there’s often resistance by artists to discuss what their work
is; they feel the work should speak for itself—the pathway of the law helps
find a way out but underscores vagueness. In TM, registration
and the two lenses of TM law—registration often stops mattering when you
get to court. McKenna and I wrote a bit about this in Claiming
Design. In Taco Cabana, court lets P get away with defining the trade dress
in the way that most helps it win—not the actual colors used, but “a vibrant
color scheme.” If consumers are to be sovereign, courts have to remember this
through every step of the game, and giving the consumer space means giving
consumer control over defining what the mark is.
A: note that © doesn’t
really care about the artist. [I would argue that this is true until you get to
the jury, where the artist comes to the fore—both Kat von D and Andrew Lloyd
Webber won cases that are good examples of this. The artist is part of what the
public, in the form of the jury, evaluates.]
Laura Heymann:
vagueness in the rule v. vagueness in application of rule. Jury gets told what
it can and can’t consider/do, which also affects whether they think their task
is vague.
A: yes, you can get
a judgment vacated if the instructions are bad, but you can’t get it vacated by
arguing they didn’t follow the instructions.
Boyden: there’s not
really an interpretive community for what counts as substantial similarity.
A: we could give the
question to expert artists in the field; giving it to the person on the street
indicates who we think the communities are. [Heymann says: but see VARA, work
of recognized stature]
from Blogger http://tushnet.blogspot.com/2024/02/wipip-session-6-ip-theory.html
Rebecca Tushnet 