I am pleased to post Show #48, my interview with Alan Morrison, Senior Lecturer, Stanford Law School, on public interest litigation. Alan is one of the foremost public interest litigators of the last 40 years, having handled a multitude of cases for Public Citizen. When one has the opportunity to talk to someone whose litigation experience is second to none, one takes it. This show is a slight diversion from the typical Hearsay Culture topics, but given the continuous need for public interest work in the IP and tech fields, an appropriate topic for discussion. I hope that you enjoy the interview!
I reproduce below my notes from a number of presentations. Alas, I’ve been pulled in several directions the last few days so I produce these notes on an “as-is” basis; I hope that you find them useful.
A young boy who misses his dad awaits, so I must sign off from IPSC here. I’ve been impressed with the quality and breadth of the in-progress work that I’ve seen here, and as always am inspired by my colleagues. They are also an exceptionally nice bunch of people with whom to spend a few days, and I’m lucky to have such colleagues. Thanks to DePaul for hosting the event (I really need to spend more time in Chicago), and I look forward to next year’s conference at Stanford!
Elizabeth Townsend Gard, Tulane — focus on difficulty of determining copyright duration for older works. Vera Brittain — what is the status of this UK author’s work? The duration regime is insane and very difficult to ascertain, esp. with foreign works. When you get into the details of copyright, you find that duration is quite long.
Assaf Jacob, Herzliya Radzyner ScHool of Law — Reconsidering Work Made for Hire Doctrine — when deciding c ownership issues that are based on work made for hire and defining employee and scope of employment, the USSC has hewn too close to tort law and away from copyright. Why did USSC adopt agency test? unformity, certainty, predictability. Shape in light of an economic paradigm. Incentives and access. During c term: physical accessibility, ease of locating and contacting, transaction costs; post c protection: term of protection, ease of access. Reason that the status of the work cannot change is because of interest of third parties.
Mark Schultz, SIU: Can Live Performance Save Rock and Roll? If there are rising costs of the production of rock music, why is there live music? Relying on live music for revenue and survival is possible, but trouble is that musicians will be in a footrace with rising costs of live performance. Tech plus c = opt out of the footrace.
Miriam Britton, Boalt — Many Patents on Information — facts, abstract ideas are expanding — early law did not allow info to be patentable b/c not machine, etc. even in 20th century, they served as info gatekeepers. abstract ideas, natural phenomena, laws of nature not patentable in 1850s — mental steps, printed matter, business methods — why exclude info? major reason is that they are fundamental building blocks for creation of new knowledge, need for application not apparent, can’t be propertized, no need for incentives — State Street Bank case allowed for expansion of patentability to business methods. Why focus on invention’s end result? Court may revisit patentable subject matter. CAFC may develop alternatives: Patent law not designed to acomodate inforamtional inventions, resurrecting and definig “technical arts” test.
Mary Wong, Franklin Pierce — Re-examining basic concepts: do we want to protect user-generated content (UGC)? Can some form of UGC move beyond fair use and become user rights? Does international law need to be changed? Does “recast, transform, adapt” = originality = transformative? Does preparing a derivative work require copying (incorporation) of the underlying work? Does infringing work need to be fixed? Concl: fair use excuses infringement of the reproduction/derivative work right, an excused, transformative derivative work is original but c only if also fixed, excused, non-trans derivativ work is not c because it is not original, regardless of whether its fixed. Gowers Review: US fair use broader than UK fair dealing. UK and Canada do not have broad derivate works rights. US law may find some UGC non-infringing. Fair use is carrying too heavy a burden in US, so look to authorship. When UGC contributes to goals of c, should be protected.
Ned Snow, U. Ark. — “Copy-speech” — Strict liability for unprotected speech violates First Amendment because it chills some legit speech, and “copy-speech” (i.e., public domain, fair use and permission) is impacted. Chilling effect of strict liability has spillover effect.
I am pleased to post Show #47, my interview with Ben Klemens of the Brookings Institution, discussing his book “Math You Can’t Use”. Ben focuses on the reality and impact of the ability to patent mathematical equations and processes, and his book posits a world in which math is inaccessible without licensing a patent. Is it a world in which we live or an imaginary world of IP horrors? I hope that you enjoy the interview!
Here’s notes for the first two presentations on a second parallel session, IP and Structures of Sharing:
Brett Frischmann, Loyola-Chicago/Mike Madison, Pitt — Framework for Semi-commons — understand how recources are generated and shared — arg: information owners will generate commons when its in their interest — also, focus on the cultural/intellectual environment, and the institutional arrangements — wire services for newsmedia would come into scope of the analysis — synthesizing medical record data — IP itself is a form of constructed commons or semi-commons — patent or copyright pools could circumvent the IP system outright. Something like IP or theory of firm but not dealing with a formal firm.
James Grimmelmann, New York Law School — Online Communities as Semicommons — commons theory and layering — free-riding, disruptive behavior, etc can discrupt commons, the result can be collapse. Does common access to Wikipedia make it work or fail? What does commons mean? Non-rivalry of info is theoretical basis. Wasteful use can be prevented in groups under certain conditions — common ownership can avoid tragedy of commons. In online resources and communities, they have aspects that are rival (tragic) and non-rival (comedic). Offine semicommons: what aspects of resources are rival, non-rival and commons, and their strategic behavior. Layering: physical infrastructure (rival/private), but no necessity that it be held this way at all levels. Semi-commons: shows why usenet stalled, but email grows. News group owned by community, but no link to resources to support it — spammers could overrun usenet. Email puts responsibility on people who benefit from email, so it can handle more use. No one-size-fits-all solution — size and diversity of community impacts it. Community w/ strong social ties can handle issues. Many ways to fail, but many ways to succeed. What does control of system software mean for commons? How does law regulate what agreements can be made by members of community?
While there’s a break in the IPSC action, here’s a newer picture of young Noah, now six months old.
I know, its off-topic and perhaps self-indulgant (but at least one person asked for more pictures, and it wasn’t my mother); however, this can explain any previous lags in posts!
OK, after some network access issues (my ever-diligent spyware blockers meant well), I’m here. My initial notes are sparse as I was ascertaining how to get on the network, so they do not do full justice to the presentation. Now I’m on and will march forward!
Also, for those unfamiliar, this is a works-in-progress event. That means that the papers presented are literally in-progress, incomplete works. So my notes should be considered and weighed in that vein.
Below are my notes from a first parallel session, defenses:
[Note: c = copyright]
Steven Hetcher, Vanderbilt — orphan works — different areas require different solutions — look at Google — fair use for snippets — not hurting market and transformative, but lose b/c copying whole book — issue is welfare maximizing.
David Olson, BC — proposal for how to interpret fair use and compelling story from practice; Shloss story and how she ran into problems with the Estate of James Joyce (JJ); fair use doesn’t work very well and Shloss story is example; copyright misuse is a powerful tool; nothing is stopping JJ from making threats as there were no penalties; one solution is atty fees under sec 505; expand and protect speech interests; shift dynamic of conversation by making enforcement dangerous and shifts dynamic so that egregious holders get dinged; should c misuse be an aff defense; integrity versus privacy interests — where is the line drawn? mandatory licensing?
Gary Myers, U. of Miss. — Towards a Unified Thoery of C Misuse — almost no concensus on what it is — carry out compeitition policy and allow for enforcement of ind’l rights — not necessarily a windfall — finding of misuse is not a death penalty for the c; should not be concerned if c misuse is invoked consistant with c policy; certain fundamental rights: pricing, exclusion and allocation (offering of certain bundles of rights) support less c misuse, but issues of extension of terms (i.e., the lack of an ending of c term), prevention of the use of ideas, facts, un-c material, reverse engineering by c holders, and first sale (it should not be barred, but as law says that once a copy is sold, its earned its reward and the right expires as to that work), so when c holders try to prevent resale, its a violation of the first sale doctrine.
I am pleased to post Show #46, my interview with Adjunct Prof. Larry Downes of U.C. Berkeley School of Information (and CIS Non-Resident Fellow) on business innovation. The genesis of this show was Larry’s blog post regarding parallels between the industrial and Internet revolutions. We discussed this post as well as the larger questions of whether the industrial revolution is indeed the proper comparator to our current changes. Larry is a great guest and scholar, so I hope that you enjoy the show!
Also, I’ll return to live-blogging next week at the Intellectual Property Scholars Conference, an amazing and extremely valuable conference for IP folks to present their works-in-progress and get feedback from their colleagues. I have been consistently impressed at how supportive the IP prof community is of new profs, and am grateful for their anticipated feedback on my current (very early) work-in-progress, “Incentivizing Government: The People’s Trade Secrets”. Of course, I welcome any comments from anyone who wants to take the time; you can email me at firstname.lastname@example.org.
Live-blogging will also allow me to pay closer attention and maybe offer some comments of my own. Unfortunately, since there are parallel sessions going for most of the conference, I will be unable to cover every presentation. I also intend to follow-up with some people about being guests on the show. So it will be a busy few days!
I’ll cross post the live-blog on my blog on the CIS website. Hope you find it useful!
I am pleased to post Show #45, my interview with Todd Davies, Associate Director and Lecturer, Symbolic Systems Program, Stanford, on behavioral economics in technology. Behavioral economics is a relatively new area in economic theory, and although one would think it would play a formal role in IP, it is even newer to that field. IP theory is driven largely by issues of human motivation (i.e., what do we need to do to incentivize innovation, what is a real incentive and what do we think is an incentive), so its a bit odd that we don’t discuss it more formally in IP spheres.
With Todd, we have the opportunity to discuss behavioral econ with someone who has been in the field for a number of years and who has studied with some of its luminaries, including the late Amos Tversky. I’m thrilled to have had Todd on the show, and intend to follow-up in this area both on the show and in my scholarship. But for now, please enjoy my interview with Todd!
Jaime allowed Hearsay Culture into new ground, biotechnology, particularly genetic engineering. Jaime’s work in this area is quite groundbreaking, as it analyzes the regulatory possibilities for engineering as well as dispells some misperceptions about its capabilities. This was one of those areas where I knew comparatively little about the topic, so I particularly enjoyed learning more about this challenging area during the interview. I hope that you enjoy it.
Were I more vain, or interested in ad revenue, I would never be able to say the following: I want more feedback. I’d like to know how I’m doing, to quote former NYC Mayor Ed Koch. Particularly, I’d like to know (a) if you’re listening, (b) what am I doing well, and (c) what do I need to improve. Also, if you have any guest recommendations, please let me know. I’ll be scheduling the Fall next month.
Finally, a scheduling note: I plan to post the previous week’s show within the week following its airing on KZSU. This depends on the time that I have (yes, I’m webmaster and coder as well), and as I’m now in full unpacking and teaching prep mode, such time is scarce. But that’s the goal.
Thanks much for reading and listening. I’m doing this show because I enjoy it and (I think) its educational and useful. On the latter point I’d like some feedback, as per the above, if you have the time and inclination. Email me at email@example.com if you’d like to be discreet, or you can simply leave a comment here.
Fred is well-known in the IP world for litigating the Grokster case, but has handled many cases all along the IP and tech spectrum. In this discussion, we covered a lot of ground, from working for a non-profit as a public interest litigator (the league-leader EFF) to where we’re headed in IP. We also discussed Fred’s IP Innovation seminar that he will be teaching at Stanford Law School in the Fall . . . and which I would sit in on were I still at Stanford on a regular basis.
I hope that you enjoy the conversation with Fred!