Tuesday, October 06, 2015

New right of publicity website

A great new resource has arrived!  Jennifer Rothman of Loyola-LA has created Rothman’s Roadmap to the Right of Publicity: a 50-state interactive survey of right of publicity laws, plus breaking news.  Check it out!

Monday, October 05, 2015

DMCA doesn't block reverse engineering of vehicle diagnosis software but TM might

Ford Motor Co. v. Autel US Inc., No.14-13760 (E.D. Mich. Sept. 30, 3015)
Apart from cars and trucks, Ford sells automotive repair products. Among them is Ford’s Integrated Diagnostic System (IDS system) which diagnoses potential problems with Ford vehicles and guides their service and repair. The hardware components of the IDS system include a 16-pin diagnostic link which sends information from the vehicle to the on-board computer system.  The software component  receives information from the hardware and produces diagnoses and recommends repairs based on the information it receives.
The IDS software contains various data compilations. Ford alleged that some of the compilations within the IDS software were trade secrets.  One compilation was the “FFData file,” allegedly a trade secret protected through encryption and obfuscation technology (the latter being designed to defeat reverse engineering by making the code obscure to any unauthorized attempted reverse engineer).  Autel allegedly created a program to circumvent Ford’s security measures and access the FFData file without authorization, then inserted the FFData file into a vehicle diagnosis and repair product that competes with Ford’s IDS System.
Ford also alleged trademark infringement, because a screenshot of the Autel DS708’s electronic menu screen shows the Ford Oval alongside the logos of Chrysler and General Motors on the “USA” menu option.
Copyright: In the Sixth Circuit, pleading copyright infringement requires greater particularity than usual because of the potential for harassment suits.  Ford’s copyright registration for a data compilation, CALID_VIDQID_REC, presumptively established its originality. But Ford didn’t adequately plead copying of protectable elements—the copyright in a factual compilation is thin.  Ford alleged that “detailed technical analysis of data files stored on Autel’s DS708 device shows that the FFData file is duplicated on Autel’s DS708 device.”  This didn’t necessarily mean that the selection, coordination, and arrangement of the data, which was all that Ford could protect, were copied on Autel’s device.  General allegations of infringement that don’t identify specific infringing materials are insufficient to state a claim under Rule 12(b)(6), and the plaintiff needs to describe the manner in which the defendant’s work infringes.
Ford’s § 1201 claim was also inadequately pled.  Ford apparently alleged violations of §§ 1201(a)(1) and 1201(a)(2): circumvention of access controls and trafficking in access control circumvention devices. 

The court first, mistakenly, accepted Autel’s argument that Ford failed to allege that it owned a valid copyright at the time of the alleged circumvention, because Ford’s registration of its compilation was post-circumvention.  Registration, of course, is not a condition of validity, though Ford apparently didn’t offer any argument on this point.  Lexmark said that §1201 requires a plaintiff “to show that the ‘technological measure’ at issue “controls access to a work protected under this title,” which means the claimed work has to be original enough to protect (but not registered).
Second, Autel argued that Ford failed to allege that Autel’s circumvention was for an improper purpose.  The Sixth Circuit has stated that “the DMCA's anti-circumvention provision was designed to support the efforts of copyright owners to protect their works from piracy behind digital walls such as encryption codes or password protections by banning the use, manufacture, or sale  of technologies that circumvent digital copyright controls,” and adopted Judge Merritt’s concurrence in Lexmark finding that
The legislative history of the DMCA makes clear that the anti- circumvention provision is not intended to function as a comprehensive ban on all circumvention technologies; rather, its purpose is to prevent those technologies from being used as a tool for copyright infringement and to provide remedies for copyright holders against individuals and entities who facilitate the widespread unauthorized reproduction of copyrighted works by making such technologies available to the public.
That means plaintiffs must plead and prove “a purpose to pirate on the part of defendants.”  This the complaint did not allege.  Thus the court didn’t reach Autel’s third argument, which was that its circumvention was permissible reverse engineering.
The trademark infringement claims, however, survived (they didn’t need particularity, though the abusive litigation concern seems just as large with trademark as with copyright).  Ford argued that Autel’s use of its logos and listing of the program “Ford V2.10” under the Ford Oval in Autel’s DS708 device. Autel argued that source confusion was unlikely because it was only using the Ford Oval, along with the GM Logo and the Chrysler Logo, so that the DS708’s users could choose the correct diagnostic program that will be compatible with their respective vehicle manufacturer.  The court found the allegations sufficient: Autel’s use of Ford’s allegedly world-famous logo was “on its menu screen,” and it used the actual logo with distinctive shape, color and lettering.  Plus, post-sale confusion is actionable in the Sixth Circuit.  Nor could fair use be evaluated on a motion to dismiss.  (The court mashed up descriptive and nominative fair use, quoting the descriptive fair use test but apparently understanding that the use was, according to Autel, referential/nominative, citing Volkswagen AG v. Dorling Kindersley Pub., Inc., 614 F. Supp. 2d 793, 800 (E.D. Mich. 2009) (“the Court finds that the VW EMBLEM is used only to describe the actual vehicle. Accordingly, the claim is barred by the fair use defense as a matter of law.”).)
Ford’s state law trademark claim survived, as did its claim under the Michigan Uniform Trade Secrets Act.  I would have assumed that reverse engineering was a lawful means of acquiring the relevant information even if Ford tried to block the reverse engineering.  Thus, though Ford didn’t need to plead with particularity what about its program was a trade secret, I don’t understand how it pled an improper method of acquisition.  Ford’s state law unjust enrichment claim was, however, based solely on Autel’s alleged misappropriation of Ford’s trade secrets and thus was preempted by the state trade secrets statute.

Friday, October 02, 2015

Notre Dame Roundtable on Drassinower, Part 4

Session IV Subject Matter and Limitations
           Rebecca Tushnet
Drassinower defines trademark as the right to completely control the meaning of a mark as applied to a good or service: radically unidirectional, like a one-way traffic sign, and a trademark is not and should not be that!  Government (one-way sign) versus corporate (they’d like you to think that).  Book says: TM is not an invitation requesting a response/dialogue.  But I think that’s another slippage between the work and the copy, in Mark Rose’s terms.  In a sense, you’re not invited to modify a particular copy of a book even if you’re invited to engage in a dialogue.  To the extent that the invitation is a commercial one in the TM sense, that’s ok.
We’re allowed to talk about a Mickey Mouse operation, or a Cadillac health plan.  Genericide occurs when people talk back.  Urban white Englishpeople using Burberry; African-Americans adopting Timberlakes.  This overstatement is natural because he is trying to find a way to distinguish © from TM, and without a strong conception of influence on purchasing decisions—aka materiality—TM doesn’t have the kind of core that can be identified and distinguished from ©, since it is indeed about communication between producers and consumers.
When doubt arises as to whether it’s an indicator of source, Drassinower says, TM fails—but can still be valid and also part of a conversation.
Relatedly, Drassinower says: A trademark addresses others as consumers rather than speakers.  But self-understanding of marketers is now as TMs as branding strategy—intent is absolutely to address them as speakers, to penetrate their consciousness, to interact w/them on Twitter.
First Amendment concept: consumers and speakers are the same people. Once we give corporate speakers protection, it becomes harder and harder to distinguish speaking from selling things—a particular kind of conduct.  This is something that needs to be addressed in 1A doctrine more generally.
           Mark McKenna
By definition TM is an invitation to respond; whether it is/functions as a TM depends entirely on how consumers respond.
Striking resemblance b/t using a © work as a work (his concept of infringement) and the concept of use of a mark as a mark. TM rights aren’t in gross; they are relational, rights to use in a particular setting. Copying as such is not infringement unless it has a certain kind of effect. Once you define a TM that way it’s easy to work out what infringement must be.  © too, to Drassinower, isn’t a right in gross.  So there’s less need to resist property than you think.
Lessons from TM: there’s always been a TM use requirement; the problem is you immediately descend into addit’l Qs. From whose perspective do you evaluate whether there is a TM use? Is it based on consumer perception, or inherent in the nature of the use. That relates to what kind of evidence you’d want. Au-tomotive Gold: keychains made from car symbols aren’t being used as TM, D says, we’re using it ornamentally—court can’t wrap its head around that idea. No conversation in the case about how you would know it’s a TM use.
Drassinower makes a similar move: to infringe is to use a work in a particular way. How will a judge know whether a use has been a use as a work?  Evidence of consumers or not?  TM use ground to a halt b/c courts couldn’t figure out how to apply it—just collapsed into likely confusion.  If it’s perceived from viewers’ perspective, are you just asking whether there’s substantial similarity? Is there a difference between non-use and non-infringement?
TM law also expanded during the same time and its growth at least coincided with if wasn’t caused by massive rhetoric shift to consumer protection—interesting question about what kinds of rhetoric bound rights and which enable their expansion. Could we say something similar about certain instrumentalist language in ©?
           Pam Samuelson
Charmed by the book too; thinks it accounts for maybe 55% of © as we know it.  Good identification of types of copying that aren’t copying that © law should be worried about.  But reproduction may not ever really harm an author. What harms authors is public dissemination, distribution, communication. That suggests that your regime only requires one exclusive right: dissemination to the public.  Maybe that also means that © only ought to attach on publication.
One benefit: wouldn’t need as many exceptions. 
Moral rights: accept a moral right of attribution but not integrity under this view?  Also related to transfers—authors may be unhappy with fate after transfers.  Nadine Gordimer: swore off licensing after one work was mangled in movie version.  Of course, under Drassinower’s modality, she has no right to say anything b/c no derivative works right. Does she have a right to a disclaimer?  She doesn’t think the reproduction right is totally overlapping w/ deriv works right, though Nimmer does—still need to answer the Q about the scope of the right that gets to be infringed; what should be done w/nonliteral infringements?
Final issue: secondary liability is probably the biggest deal in © right now, and she’s not sure what happens to it in Drassinower’s theory.
Disagrees w/his interpretation of Baker v. Selden: even if you could find expression in forms Selden published, someone using that to keep accounting books would not be an infringer; we agree on that, and Mrs. Selden was trying to make everyone using the accounting forms pay.  Not w/in the scope of ©. Where we disagree: Baker was speaking Selden’s forms. He had a book in competition w/Selden.  The compelled speech issue doesn’t work here.  The SCt didn’t just let off all the users of the forms, but also let Baker off—the second person gets to utter the speech as a necessary instance of using the system.
McKenna: in TM, you often have the difficulty that consumers understand things differently—which group of consumers wins? Functionality has an answer to that—if it’s doing something other than indicating source, that wins. You’ll have the same Q here with people doing various things to the work.
Drassinower: didn’t mean to say that you can’t speak about the TM.  Not completely controlled—only controlled as indicator of source.  That is the subject matter of the right, and so loss of control of that meaning is loss of the TM.  The harm at issue is paradigmatically confusion—the right to control the meaning is to have oneself as the source (of course successful infringement leaves that meaning intact!).  The reason I need it is to characterize © as having something to do with dialogue, juxtaposed with something communicative but not dialogic.  Consumer may or may not be a speaker, but passively receives.  The activity of consumer is distinct from response of another author.
McKenna: the specificity of TM is inviting a particular kind of response b/c of the nature of the communication—purchase related.
RT: If you want something that’s communicative and unidirectional, how about the law itself? Traffic laws, the police officer—they are communicating but not inviting dialogue. 
Drassinower: it would be clearer if I granted that the audience/consumer is not passive. The exchange of information b/t purchaser and seller is in the context of sale.
Silbey: difference b/t © and TM is also evidenced by the durational rules of each.
DiCola: Katy Perry Left Shark example: it’s the audience that made the meaning; some kind of dialogue is happening between producers and consumers.  Language of value might be helpful too: the audience made the meaning. 
Drassinower: interesting question about role of substantial similarity: audience issues. 
Silbey: not much seems to be left of derivative work or even substantial similarity after the book’s theory.
Samuelson: which leads us to the point that the book doesn’t leave us with much idea of what the boundary would be.
Debate b/t Samuelson and Drassinower over what Baker stands for.  Samuelson: Baker was using the forms to communicate; he wasn’t a user of the forms. He was using the forms to communicate his own competing book/explanation of the system.
Drassinower: use as part of system is devoid of liability—but according to my theory they could be infringed by use of the forms to explain the system in another publication.  And he interprets Baker to say that by its own terms.  Samuelson says he’s fastening on a single phrase and not looking at the cases that follow it and the overall context of the case.
DiCola: language of the case has some equivocal moments, but the fact that Baker published a book undermines the distinction you’re trying to draw, because he still won.  Baker v. Selden is about competition—it’s making a decision about market structure for accounting books. 
RT: Then couldn’t you see Baker as a secondary liability case, if it’s about competition to provide these forms as well as the system/its explanation?  Which goes to Mark McKenna’s concerns about what counts as © use under Drassinower’s system.
Gordon: even if Baker doesn’t align with its historical explanation, Congress enshrined the distinction in its building/use distinction in §113—building a described thing isn’t infringement.  Leg. history: a drawing of a car = no right over the actual car.  Baker stands for limitations on copyrightability and limitations on scope of rights, enshrined in statute.
Heymann: consider the protests by musicians who don’t like use of their music in political campaigns: they consider it compelled speech, but they don’t own the ©.  This harm sounds more like defamation.  Is compelled speech necessarily tied to ©?  The same harm happens in other ways through works.
Sprigman: design patent—typefaces—aren’t these speech too, subject to the same compelled speech objections as paintings?  If art is speech, isn’t industrial design speech?
Drassinower: use as tools v. use as works: Google Books—use as tools distinction is in Baker and it can help answer Google and other products. So use of the toaster as a toaster would be ok.
Sprigman: A speech focused © law without adopting the 1A’s definition of speech?
Drassinower: Yep (and sensibly so, I think).
Samuelson: can’t conceive of a use in which Baker’s use of the Selden forms would be infringing. Your reading is about dicta.  Otherwise Baker would be an infringer.
Also, the distinction between patent and copyright isn’t as sharp as we’d all like. One can engineer a document; both inventors and authors think and behave in highly similar ways. The question of what’s protectable in a computer program must be addressed even if you take it out of ©. Notion of authorial creativity and technological creativity doesn’t exhaust the realms of creativity—authorship and invention as the two metaphors have trapped us/distracted us.
Balganesh steps in to defend Drassinower’s view of Baker, given that the SCt called the book of forms a “work” closer to the method than works usually are, making the opinion contradictory.
Gordon: but that’s true of any method—an implementation will be more like a method than like a novel.
Samuelson:  The Ct thought that useful arts were usually made of metal or stone; this one was actually embodied in a writing, and it’s that the Court referenced when it said that the useful art, even embodied in a book, was treated like the useful art made of metal.  [Then Gordon & Samuelson discuss the role of merger in Baker—Samuelson blames the Nimmer treatise for calling Baker the origin of merger and then taking that as license to ignore the method of operation etc. exclusions in the statute.]
Madison: In 1A the availability of alternatives is sometimes used to justify a particular speech restriction—similar to how merger is analyzed in ©. 
Sprigman: Typeface: why not cover it? You’re proposing a deep structure that unifies things within the subject matter of ©.
Drassinower: Doesn’t think fonts are act of authorship.
Sprigman: maybe you’re saying you want a hurdle before you allow the © switch to be turned on.
Drassinower: my system has to say there are phenomena that flip the © switch; there’s no domain distinction between mark, work, invention without one.
Sprigman: my domain distinction would be need for incentive: we’re not living in a font-free hellscape.
McKenna: you’re having the conversation about fonts b/c it seems to you that they might fit the contours of what’s proposed (you’re not having the conversation about mousetraps), and that suggests you’re agreeing that’s the right question.
Drassinower: agrees.
Rebecca Curtin: if we used this language to talk to the public, would that be less chilling of uses that we think are fair?
Drassinower: hopes that’s right—part of what he was trying to do.  If this were the grammar, instead of value, it would undo the suspicion of copying.

Notre Dame Roundtable on Drassinower, Parts 2 & 3

Session II – The Work as Dialogue
           Mike Madison
An element in the book: The “work” is a Macguffin.  The the thing that holds our attention/draws the narrative together while not necessarily having meaning in and of itself.
A book about concepts/conceptual framework.  Error to ask too much in doctrinal solutions/payoffs/nuances of © on the ground.  Complicated landscape of how works get created, not singular author/text.  Speech as part of community/co-creation.  Drassinower’s story is not set up to process at the institutional level. 
What is the agency of the audience?  If it really is a dialogic process, then there is a back and forth.  Book spends most time on authorial side, less on audience.  Also, materiality: material presence of the work is part of the understanding of what’s going on with the work.
           Laura Heymann
Intermediate step of audience is important b/c helps understand whether second individual is speaking as an author or merely for an author.  Multiple instances in which intent is a bad standard for authorship: Prince’s deposition in Cariou; post-hoc rationalizations. Audience is the way we assess authorship. 
Work for hire: is it in some way a fraud, if the audience perceives the individual as author?  Transfers issue: the “Cherry Ripe” case, where the photographer sells the rights to the first phoot and is held to infringe his own work.
Compelled speech: someone who engaged in unauthorized filesharing is in some sense speaking exactly as author intended.  Author didn’t intend to speak to those who didn’t pay.  (Although that’s a weird way to divide an audience—and author may well have intended to speak to those people through radio play, etc.)  Is it important that others know about it for the insult to the author—being treated as a puppet?  May be the difference b/t compelled association and compelled speech.
A and B may independently create the same work.  C gets permission from B to speak; has C caused A to speak as well?  Ties into Qs of whether attribution matters.  Replicas of the old masters made in China: how do we think about their production and reception?
           Jessica Silbey
Parrot on the cover of the book: When parrots copy they don’t speak for themselves—social behavior—a form of practice and engagement.  Not copyright-relevant. 
Equality paradigms: equal treatment may result in a denial of equal opportunities—e.g., failure to accommodate pregnant or nursing women.  Entitled to certain needs in order to facilitate opportunities.  Denial can be a form of denigration or domination.  As compared to antidiscrimination, antidominance is about subjugation, which compelled speech could be part of.
Deliberate freedoms/capabilities approach: equality deprivation is assessed not by whether other people have them but what is a denial of dignity/autonomy.  Drassinower relies on equal dignity/substantive equality—fuller connection to dominance would be useful. He says dominance over another’s work is piracy; personal/private engagement w/ a work is not dominance and fulfills the work’s destiny.  Equal dignity seems to require nonsubordination, but being enjoined from speaking another’s words is a form of control—lawful mutual restraint.
Independent creation and the primacy of the public domain are underneath the explanation of legitimate restraint.  We level up: freedom to, not freedom from.  If copyright as balance is war, than equal dignity is peace: the quality you’re striving for as a person.  Necessary consequence is no derivative works right: that would impose an impermissible hierarchy of authors.
Interference w/work is not so much inequality but unfreedom. So we’re back to the freedom from/freedom to divide.
           Chris Sprigman
© is a world of sequential innovation; must trade off ex post and ex ante interests.  Some external justification we’re trying to maximize?  Joint productivity?  Or a rights-based account as here, a reciprocal relationship between first and second-comers.
Instrumentalism provides a weak normative basis at best for ©; impoverished account of progress/the thing we’re supposed to be treating as a maximand. You don’t get an understanding of progress solely through observing the world; you need to have an idea of what it is.
More broadly, efficiency is a weak normative justification for anything. 
Justify v. specify: lawyers deal with specification. How do we tradeoff between Cariou’s rights and Prince’s?  Rights-based theories have little to say about this.  P. 211: discussion of Pruneyard—need to assess gravity of impairment of rights to each.  Sprigman thinks you can’t do that with anything internal to the rights based account; you need an external referent.  You are not judging impairment of right but deciding to shape the right, using utilitarianism.  Like Rawls, which shapes rights according to the sum of a bunch of utility calculations in the original position (how well off am I?).
Maybe this cafeteria model is ok: deontic model providing broad outer constraints; then specifying details of the law with an external referent, like here a deeper concept of progress, then treat that as a maximand.  This may be difficult, contestable, often imprecise, but that’s about where we are.
Gordon: still puzzled about why we want to allow people to control the way their speech is used in the world.  For example: pro-choice book of interviews w/women who’s had abortions or given a baby up for adoption; anti-choice author wants to use these accounts. 
Drassinower: that’s fair use. The interest I try to describe doesn’t track an author’s desires or wants.  You can’t publish on condition that your ideas aren’t discussed.
Madison: The Chinese painters in Dafen are using the source work as a work.  Audiences in hotel rooms know it’s not an original. What is the nature of their engagement?
Drassinower: Mousetrap and poem both require skill; but the types are different. Just as translators do something deeply sophisticated, so do Dafen’s copiers, but that doesn’t make them authors. We can quibble about whether activity is located in right place in our distinction, but the whole endeavor depends on us being able to make the distinction.
Rebecca Curtin: translation. Consider Seamus Heaney’s translation of Beowulf: what he does is absolutely a translation, but also uses a lot of Irish words, feminized images; his project was to undermine that nationalist epic of England.  There is clearly compelled speech there if we assume the monk wouldn’t sign on to this project. But Heaney is also communicating using this other speech.
Drassinower: one answer is to call him not a translator.  When to call someone a translator is the question.  Don’t have to have an answer in any particular case—just a translator can’t be an author b/c she is translating into another medium. There are factual qs about whether a particular instance is transformative.  He wants to shape how we frame the Q.
Underneath all utilitarianism is a rights-based theory, b/c you are distinguishing persons (who have utility) from other animals (which can also have utility/experience)—fundamentally rights theories say that there is a difference b/t persons and things.
[stepped out for lunch]
1:00 p.m.-­2:30 p.m.  Session III Speech vs. Value
           Rebecca Curtin
[came in late from lunch] Is the proprietary right idea as hostile to the author as the book believes?
           Peter DiCola
Utilitarian maximand is unclear: works, creativity, number of creative workers/authors. Sympathetic to the idea that utilitarianism and deontological approaches are in eternal death struggle that no one will win. Both are different sides of the same whole: instances in which the good is best described as maximizing value and others in which it is best described as a deontological commitment.  What if we picked, including between subjective well-being and preference maximization, a huge dispute in utilitarianism.  Does that distinction have anything to do w/the emptiness of the version of utilitarianism at work in © balancing?
A good (in utilitarian terms) could be a process, not a commodity.  Can perhaps help understand why liberty/autonomy are valuable.
Drassinower says: Economists are saying: legal lines like originality are proxies to find value (or value that should be privatized?) despite Type I and Type II errors.  Drassinower finds this aesthetically unsatisfying, which he gets—doesn’t really seem to explain the doctrines in detail. 
Systemic analysis is required: one user taping one show is not the issue. It’s a question of how the industries will be organized and the effects of these behaviors on a large, repeated but unorganized scale.  Is an implicit assumption of the methodology atomistic, assuming a core dispute between one author and one user?  Is that necessary to the approach?
Quite useful to show how the models ignore the infinite chain of creators we see in reality—a better explanation of the public domain than rather arbitrarily picking one author and calling them “first” and another “second-comer.”
           Glynn Lunney
Economist: Drassinower challenges his life’s work.
Deriv work right and protection for computer programs: not consistent w/theory/should be excluded from ©: why were these data points excluded from your “looking at the world” method.  What if the plaintiff didn’t know about the copying—is there a puppetry problem?  What about subconscious copying—it seems that’s still making the plaintiff the puppet, just not on purpose.
Other doctrines that aren’t explained: why have criminal liability (patent doesn’t)?  Economics can offer a more sensible reason (less of a problem with fly-by-night patent infringement), as can political economy (lobbying).
Other doctrines can be explained instrumentally: limited times.  Realms that neither patent nor copyright covers, left to the workings of the market—why not?  Patent has no independent creation doctrine for economically rational reasons—independent invention is common and allowing all would dissipate the benefits/destroy the incentives, while truly exact/substitutable independent creation isn’t; Ants and Bugs are not perfect substitutes.
Length of © didn’t really matter until we got the internet, which allowed out of print books to have a second life.  Low protectionism got a boost from online empirics.  Will we get another 20-year term extension before 2018? Empirical/instrumental approach has opportunities to influence policy now.
The wrong of copying: he doesn’t see the moral wrong as compelled speech, but as misrepresentation/misattribution.  He wants lots of copying, but he wants the credit for being right.
           Amy Kapczynski
Likes starting w/Feist to show that an economic perspective can’t explain what © is. 
Community/self-constituting nature of authorship helps explain the difference between compelling commercial speech (ok) and compelled political speech (not ok).  But corporations have all sorts of © ownership—here they’re given full rights, w/minor differences for WFH.  Does that have to go under Drassinower’s theory?  You need to explain 90% of © with a doctrinalist account; if you can’t explain most of it, then something else is at stake.
Likewise, book may not explain low required level of originality: does writing the shampoo narrative on the bottle embody the communication of a speaking being to another? 
Sprigman: tractability of a problem is important, but not the only thing. The best minds of their generations elaborated Ptolemaic astronomy, as we’ve wasted the best minds on constitutional law (hey!). 
Drassinower: explicitly metaphorical agenda.  Try to think about different metaphors for ©. It may be that compelled speech is very different in the First Amendment context, but the speech trope was helpful in talking about the public domain as something immanent/inherent in ©.
In terms of transfers: can see it as the granting of a right, though it’s true he hasn’t provided a theory of how that takes place.  Contract doesn’t have to mean transfers of property/commodities; can be licenses.
Thinks he has captured most of © in making his critique—an immanent critique: Feist attempts to carve out a specific domain for © from the sphere of value.  It’s very hard to have a non-negotiable public domain once you start calculating balance—just b/c we’re “winning” more user rights cases now doesn’t mean that there’s a solid foundation.
It’s true that lay concept of copying isn’t necessarily compelled speech—but it’s also not “you’re minimizing my welfare!”
Mark McKenna: Old unfair competition cases are rife with natural law concepts, but also make clear that property is not in the mark as such, but in the relation. You may be identifying property as a thingification, focused on the work as such, but the property interest could be defined in a similar way—not the work.  Is there anything lost by a sufficiently careful definition of the property interest—an interest in a use rather than an easement or something like that. 
Drassinower: committed to the idea that authors speak, they don’t own.  The proprietary language misdescribes the relation.  Performances/works of authorship/expression—they aren’t property concepts.  Yeats: Vehicles of meaning can’t be owned by someone other than the thinker.
Madison: there’s a slippage in the dialogue about legal categories of property/things, then the phenomenal character of what actually happens when author and audience engage in some way. Requires a lot of nuance to keep track of which level you’re operating at.
Samuelson: author’s perspective: this is mine is not just about this is my speech, for some authors.  Self-conception as autonomous person may require concept of ownership.
Sprigman: Peggy Radin would say that property isn’t an instrumentalist concept. 
Drassinower: I don’t think that the idea that a work is property is consistent with the idea that an identical copy, in some circumstances, is not property.  The act of producing the thing.
McKenna: TM is that way—one mark isn’t property in a completely different field/use.
Drassinower: speech discourse/property discourse are different, even as rights discourses. 
McKenna: property isn’t inevitably that: property law has been warped, though.  The history you’re working with is the same period I worked with in TM history.  So he doesn’t think a lot rides on the property distinction if you have a more nuanced sense of what property was that ws true of the courts that developed the TM concept. 
Drassinower: I can’t reject that easily the idea that property requires thingification. 
Silbey: First Amendment—there are so many parts of the 1A consistent w/Drassinower’s theory, especially early 1A doctrine before distortion by corporate speech/corporate personhood.  Speech as attribute of dignity and citizenship in public sphere as well as just political sphere. More to say about how the 1A imagines the public domain as primary/radically nonfungible.  As free speech maximalism has (supposedly) taken over the SCt, the public domain is shrinking!  Creators believe in right of property/radical nonfungibility of free speech: this is an inconsistency for them but really profoundly felt.  Low level of originality is an easy place to resolve the inconsistency, though—creators don’t think the shampoo bottle text should qualify.
Garnett: it’s totally ok to be a thing person (property is a thing) instead of a bundle person in property. Maybe you can’t just make up relational rights and call them property; maybe that doesn’t make sense of what’s going on.
Madison: there’s progressive pushback even on the thing side.  It’s possible to use thingification to achieve certain goals, but intuitively Drassinower doesn’t feel it.
Balganesh: To Kant, exclusion was critical, so it’s understandable from a Kantian.

Notre Dame Roundtable on Drassinower, part 1

Notre Dame Roundtable, What’s Wrong with Copying? (Abraham Drassinower’s book)
Sponsored by the Program on Law and Market Behavior
8:40 a.m.-­10:15 a.m. Session I Methodology and Implications
           Mark Rose
Historical approach: rights to manuscript or to the “copy,” an intangible thing.  Drassinower reinterprets Lord Mansfield’s approach as distinguishing between the manuscript and the copy, which makes him in some sense a supporter of infinite common-law copyright.  But there remains an ambiguity in the old term “copy”—used to refer to a right rather than a thing, but also to a thing—this ambiguity persists into the 20th century.  But Drassinower is telling a philosophical story, not a historical one; he doesn’t need to understand things the way that historical figures did.
           Shyam Balganesh
Elegant and compelling.  Focus here on clusters of issues: Formalism v. realism.  Identify essential characteristics of a topic, then develop coherent approach.  Drassinower attempts this for copyright law/originality.  Foundational/middle-level principles.  How then do you determine the essential characteristics of copyright?  Compare to (claimed) empiricism of American approaches—knowledge is only ever discernible through sense experiences, rather than rationalism’s reasoned principles which claim they’re the only way of making sense of the world, though incapable of being empirically tested.  There is a spectrum between empiricism and faith, and Drassinower shows how you can do that.  (Compare Lemley on faith-basedIP.)
Internal challenges to his construction of rationality: (1) Institutional origin. Most efforts at internal intelligibility have been judicial/common law.  Common law isn’t “made” but “exists.” Maybe a legal fiction, but courts conceive of themselves as finding what immanently existed. Not clearly so with copyright.  Does the constraint of intelligibility carry over when the insitutional creator may not have intended the intelligibility Drassinower searches for?  (2) Static v. dynamic account of rationality: Drassinower seems to take rationality as existing cross-time. Within common law, some scholars suggest radical semantic evolution has occurred: concepts originally constructed the theory, but consequentialism takes over and the underlying semantics morph. Moral ideal comes through as cost-benefit analysis. Why not ©?  Originality may have begun with equal dignity of authorship, but why not evolution to a value-based conception?  (3) Compatibility: if we have © to promote authorship, institutional design features might value authorship too or might have instrumentalism in the granular features.
           Wendy Gordon
Rule of law that says no liability unless there’s a connection to the deep purposes of this law—result: unpredictability inconsistent w/ needs of notice that make law fair. It’s a consequential claim, but if you were behind the veil of ignorance, you should figure out if you want perfect fit/expensive system or normal legal budget/some lack of fit.  Most people would choose the latter.
Still: loves the book! The speakers we most want to distort the message of are those in power—speak in their own language. If © is about the ability to freeze one’s own language, no reason to accept it—right of integrity is an immoral right from the perspective of American iconoclasm. If we took seriously the notion the law should support preservation of speech in unchanged form, trademark would also be implicated, but Drassinower says that’s not expression.  Difficulty seeing shift to plaintiff’s expressive integrity as a value.
Can use Drassinower-like analysis in a way that doesn’t rest on desirability of freezing the speech.  Pay attention to whether defendant copied/performed plaintiff’s expression—it’s not a question of physical copying, but of duplication of speech for same purposes. Proximate cause/negligence analogy: P must show that the harm is foreseeable; proximate cause serves the function of relieving D from liability resulting from harm unrelated to the reason for the rule.  Example of a musical composition reused as wallpaper because of the visual beauty of the way the notes are placed on the paper.  Drassinower would say: no liability; Gordon would say: is protection worth it in light of uncertainty and other practical issues?
           Steve Yelderman
What he thought of as limitations and exceptions in Drassinower’s formulation look like internal limits, or not even limits at all—natural consequence of what copyright is. Not just a theory of fair use, but a theory of ©. 
A personhood right specific to the author against publication of previously unpublished work: the core notion of wrongfulness.  Even if the information is already out there, the violation of autonomy still seems to apply in cases of non-use like Google indexing that Drassinower would exclude as purely mechanical. 
How does the limited term match up with the idea of a personhood right? Why should copyright in unpublished works ever end, if this is not just a privacy interest.  Drassinower argues that published/unpublished works shouldn’t be distinguished in terms of whether further publication is offensive to the author’s interest. 
Glynn Lunney: Book talks about equality of speakers. Not always clear whether that means equality of opportunity or outcome. Less gifted may wish to copy from more gifted (I wrote a bit about this in Copy This Essay).  Why not fixation as the key doctrine? 
Abraham Drassinower: Self-understanding as empirical: what is it that ©/authorship does?  Then its logic unfolds.  Central claim: copyright represents a value of originality—there’s a great deal of black-letter law on that point.  Just finding it there, not coming up with it.  There’s no way to get a theory of © from a theory that © works have value—you need to distinguish them from other things that have value, like patent.  Distinction between tangible and intangible doesn’t get you there.  Facts aren’t tangible, and they aren’t subject to © either.
Nicole Garnett (I think; I’m not physically present): something to the desire not to associate with someone else who republishes your words, even if they were published—authors get very upset; feels like forced association. 
Gordon: the label “this is not authorized” may make a difference—your problem might be taken care of—this disclaimer possibility makes the compelled speech argument less apposite.
Q: no, I’d still be irked, but maybe it would take away some of her anger.
Chris Sprigman: Empiricism usually requires a hypothesis, which is informed by theory.  It’s not the opposite of theory.  Book says © is drowning in empiricism, but there are really only puddles. We actually have a flood of crap empiricism.  People have ideas, Chicago 1.0 ideas, which aren’t empirical but are basic rational choice economics, and they don’t think it is important to see if that makes sense in the real world—truncated empiricism. That’s what Lemley seems to be reacting to more than anything else in his faith-based paper.  Drassinower is also reacting to that, and rightly so.
Mike Madison: Larry Lessig wrote about compelled speech about 15 years ago; never got worked out.  Patent students tend to be gobsmacked by abstraction and ambiguity of © and TM.  One of the things he tells them is that patent abstracts from actual human experience pretty quickly to design a legal system around inventive practice and scientific communities: invention is artificially created legal object. © and TM have closer proximity to actual day to day experience of knowledge, and that’s ambiguous and evolving; layering law as closely as we try to do over it with TM and © is difficult and explains some limits of method of abstracting stories from observed doctrinal outcomes; avoids some of the messy questions/evidence.
Drassinower: Trying to understand a practice to make it more coherent—given how messy the law is, the fact of being able to tell a story that is recognizable as reaching the fundamentals is itself amazing.  Don’t have to account for every piece of mess; but also don’t want to reduce history to theory. 
RT: compelled speech discussion—authors here sound just like commercial speakers protesting against mandatory disclosures.  Possible lesson: Can have reasons for allowing compelled speech related to the overall system of speech (informational content with commercial speech or second speaker’s expressive interests with ©) or reasons related to the overall system of government (health and safety for commercial speech, antitrust perhaps for ©/compulsory licensing). 
Balganesh: Rationalism is not inconsistent with saying “I’m just trying to make sense of the world.”  That doesn’t make you an empiricist.  You aren’t looking for falsifiable experiments; any piece of evidence wouldn’t show you are mistaken.
Drassinower: the world could show I was mistaken. 
Balganesh: You’re not willing to abandon the idea that infringement is about compelled speech.
Drassinower: making sense of something that exists.
Balganesh: interpretive lens, not going to change b/c of outlying (in your view) examples/instances.
Drassinower: methodological assumption is that © does have a distinctive story to be told.
Balganesh: that’s what makes you a committed rationalist.
Silbey: there’s a difference b/t how empiricism proves things and what different disciplines count as proof—history, literature, economics—be clear about one v. another.  Drassinower says this is a disciplinary investigation within a philosophical/legal tradition.  Empiricism is a harder question.  Reproducibility?
Drassinower: the world I investigate has principles that can be found—not all in my head.  Resist concept of “rationalist” b/c doesn’t believe I’m imposing principles from my head.
Sprigman: the stakes are to distinguish this from the bad empiricism we’re drowning in.  Where is the idea that authorship is originality from?
Pam Samuelson: what is essential about ©: How about transfers?  Transfers of © happen all the time, but Drassinower’s book doesn’t really address that, though transfers matter quite a bit to authors.  Part of the reason why questions have arisen about whether you’re rationalist or empiricist, b/c empiricist would notice that transfers are part of the system.
Drassinower: nothing I say is inconsistent w/ transfers—just a mechanism authors may use.  Selling their speech.  There should be limits on transfers.
Samuelson: requiring signed writings speaks to the dignity of authorship, but other aspects are more difficult to account for if compelled speech is the only issue.
Drassinower: focused on what it is we transfer when we transfer ©. Someone else could focus on market relations, but that’s not a difference b/t rationalism and empiricism.

competition no longer required for Lanham Act "commercial advertising or promotion"

Healthnow New York Inc. v. Catholic Health System, Inc., 2015 WL 5673123, No. 14–CV–986S (W.D.N.Y. Sept. 25, 2015)
Healthnow, aka Blue Cross and Blue Shield of Western New York (BCBS), sued Catholic Health for violations of the Lanham Act and NY’s GBL, as well as for defamation.  Ads in church bulletins said:
[BCBS] has recently introduced a new Medicare Advantage product, Senior Blue HMO Select that replaces its existing Senior Blue HMP–POS 650 plan. This product specifically excludes all Catholic Health facilities including all hospitals, labs, diagnostic imaging, rehabilitation centers, home care, and all other sites-services. [BCBS] may not have adequately communicated this exclusion to its members. Please note that several other Medicare Advantage plans are available that include access to Catholic Health.
Catholic Health also ran an ad in the Buffalo News during BCBS’s open enrollment period, which stated in large type “[BCBS] Senior Blue HMO Select customers will no longer have access to Catholic Health facilities.” Smaller text included: “While emergency services will still be covered, this new plan completely eliminates your ability to choose Catholic Health facilities for services like surgical procedures, home care, rehabilitation, and other non-emergent care needs. Receiving such services at a Catholic Health facility will not be covered under this plan.”
BCBS alleged that these statements were false and misled consumers into believing that BCBS didn’t provide coverage for other facilities not within the Catholic Health System network but, by virtue of their name (“Mount Saint Mary’s Hospital” or “Brothers of Mercy”), may be perceived to be a “Catholic” health facility. Letters from Catholic Health’s CEO to current employees and Catholic Health System retirees were to similar effect, as was an op-ed he published during the open enrollment period.
Catholic Health argued that its statements weren’t commercial advertising or promotion under the Gordon & Breach test.  The Second Circuit never adopted the prong requiring competition between the parties, and Lexmark means it never will.  Catholic Health also argued that its statements were not made “for the purpose of influencing consumers to buy defendant’s goods or services,” another element of Gordon & Breach. However, the challenged statements allegedly directly affected BCBS’s sales and reputation, which was cognizable under §43(a).  (That doesn’t really address the question of whether Catholic Health’s speech was noncommercial or commercial—noncommercial speech can cause harm to business goodwill.)  Further citations: Educational Impact, Inc. v. Danielson No. 14–937(FLW)(LHG), 2015 WL 381332, *13 (D.N.J. Jan. 28, 2015) (recognizing that Lexmark repudiated the ‘direct-competitor test’ enunciated in Gordon & Breach ); Tobinick v. Novella, No. 9:14–cv–80781, 2015 WL 1191267, *5 n. 10 (S.D. Fla. Mar.16, 2015) (same).
As for falsity and misleadingness, BCBS alleged that the statements were false because Senior Blue HMO Select provides coverage for emergency care treatment, as well as treatment by primary care physicians, at all Catholic Health facilities.  In an article on which Catholic Health relied, a BCBS spokesperson is quoted as saying that that Senior Blue HMO Select would cover medical care at all major medical facilities in Western New York with one exception: “Buffalo General, Roswell, ECMC, and Gates Vascular Institute, among others, but it does not include the Catholic Health System. So they are specifically excluded? On that option only. We have 6 other options that offer a full network.”  Catholic Health also relied on plan materials distributed by BCBS.  None of these were incorporated into the complaint, so the court converted the motion to dismiss into a motion for summary judgment and invited further briefing.  The court cautioned: “even if the short statements in the BCBS publicity materials are found to inaccurately reflect the true scope of Senior Blue HMO Select, it is unclear how BCBS can press a viable claim for false or misleading advertising against Catholic Health for using the same language BCBS used in its own materials. Instead, pursuing false advertising or deceptive act claims based on statements repeated from BCBS’s own promotional materials, particularly materials directed at medical providers such as Catholic Health, is arguably frivolous.”
As for defamation, the claim was actually for product disparagement, because the challenged statements were about the scope of BCBS services, not about whether BCBS was “anti-Catholic” as BCBS tried to argue.  BCBS was therefore required to plead and prove special damages, setting forth “an itemized account of her losses; round figures or a general allegation of a dollar amount as special damages will not suffice.” This it did not do.

Thursday, October 01, 2015

Don't send misappropriation to do copyright's job

Alaskasland.com, LLC v. Cross, No. S­15270 (Alaska Sept. 25, 2015)
A realtor group listed property adjacent to a neighboring subdivision, Susitna Shores, using three photos taken from the subdivision’s marketing materials, including one showing the subdivision’s stylized entrance sign.  The listing also contained a property appraisal stating that (1) based on plat­related information, existing legal access to the property might compromise the neighboring subdivision’s gated community perimeter fencing, and (2) based on statements made to the appraiser by employees of the local electric association, the neighboring subdivision’s electric service might be subject to legal issues. The subdivision’s developer sued for misappropriation of the photos, trade name infringement, and defamation. The superior court granted summary judgment to the realtors, and the state supreme court affirmed.
Of Susitna Shores’ 37 lots, 15 had been sold by the time the superior court granted summary judgment in July 2013; the most recent sale was in May 2011.  In 2009, a couple, the Goodes, inherited property bounded on three sides by the subdivision and on the fourth by the Susitna River.  Alaskasland had unsuccessfully offered the previous owner $45,000 for it in 2007.  An appraiser appraised it at $150,000 and noted that “[t]he electric service in the [Susitna Shores]  subdivision may be subject to legal issues due to the lack of [Matanuska Electric Association] participation in construction of the infrastructure.”  In addition, he wrote, “the [Goode property] has an undeniable access right that crosses the access to [the Susitna Shores] subdivision boat ramp — and that access could be developed and probably left open, thereby defeating the gated subdivision.”
In August 2011, the Goodes listed their property for sale with realtor Kevin Cross for $146,000.  The Goodes didn’t provide any photos, so Cross’s assistant used photos from the internet, specifically from Alaskasland’s website.  The appraisal was appended to the property listing on a realtor-only website.  When Alaskasland discovered that the Alaskasland photos were being used this way, it promptly notified the multiple listing service of the improper use, and contacted Cross about buying the Goode property.  Alaskasland’s GM offered to buy the Goode property for $95,000, which offer the Goodes promptly rejected.  The Goodes cancelled their listing in mid-December 2011; the appraisal remained on the MLS site until May 2013.  Shortly after Alaskasland sued, its GM reached an agreement with the Goodes to purchase their property for $155,000.
Misappropriation claims based on copying the photos were preempted by the Copyright Act. The photos were within the subject matter of copyright, and there was no extra element distinguishing the misappropriation claim from a copying claim.  Alaskasland argued that there was an unauthorized use of its goodwill and reputation, but that’s just a passing off claim (see below).  It also argued that creating the sign in the picture took $40,000 and that defendants engaged in free riding on its extensive advertising and marketing efforts.  “But the misappropriation of ‘sweat equity’ expended in the creation and advertisement of a copyrightable work is ‘precisely the type of misconduct the copyright laws are designed to guard against.’”
The superior court rejected passing off/trademark infringement claims because “Susitna Shores” was geographically descriptive, and Alaskasland’s failure to sell at least half its lots — and none in the prior two years — “evidenced that its marketing efforts had failed to produce a secondary meaning in the minds of the public.”  The state supreme court wasn’t even sure Alaska recognized the common law tort of passing off, but that didn’t matter because Alaskasland couldn’t show damages.  The only relevant sale here was Alaskasland’s own purchase of the property.  There was no evidence anyone was deceived, and Alaskasland certainly knew that what it was buying wasn’t part of its subdivision.  Even if dozens of people viewed the Goode listing online, there was no injury shown from those viewings, nor any indication that anyone who saw the photos expressed interest in the Goode property or lost interest in Susitna Shores as a result. 
One of Alaskasland’s expert reports on damages assumed lost licensing fees and lost advertising value, preempted theories.  A reasonable royalty measure of damages was also inappropriate for passing off, as opposed to patent or trade secret; the concrete sign that was allegedly appropriated was visible to anyone who went by, and the calculation of a royalty didn’t itself show that an injury had occurred.  Another expert claimed that the photos and similar keywords diluted Susitna Shores’ online marketing efforts—maybe this was a viable theory, the court said (ugh), but there was no genuine issue of fact on this record that it had been harmed thereby.
Anyway, the standard remedy for infringement is an injunction, and the injunction claim here was moot.
Finally, the statements in the appraisal were non-defamatory opinions.  Alaskasland argued that the statement about possible legal issues with electricity was defamatory because the local government had actually accepted Susitna Shores’ electric service, so it could not therefore be subject to “legal issues.”  Likewise, the claim that the Goode access right could be developed and left open, defeating the gated part of “gated subdivision,” was allegedly defamatory because “no matter how the Goode Property was developed, Susitna Shores could always maintain the security of its gated community and road.”
However, the type of language used indicated that the appraiser’s conclusions were opinions.  The electricity statement was made in the context of interviews with the local government’s “staff,” but made clear that the appraiser only spoke to a few people and didn’t find out all the possibly available information, e.g., “[t]he exact nature of the difficulty, if any, was not disclosed by the staff member interviewed.”  The phrase “may be subject to legal issues” connoted the appraiser’s uncertainty.  Likewise, the gated security statement used the cautionary and speculative terms “could be” and “probably.”
Context also confirmed that the statements were opinions: by statutory definition, an appraisal is an opinion.  Furthermore, the appraisal was intended to establish the value of the Goode property, and not intended to be read by prospective purchasers of Susitna Shores’ lots. (Which also suggests that there’s less need for reliance on statements about that property.)
Likewise, reference to possible future events signaled unverifiable future opinion, not currently verifiable fact.  And, considering the broader social circumstances, classification as opinion was appropriate, because appraisers serve an important social function by clarifying the value of real estate; they should therefore be free to express complete and candid opinions.  There are other safeguards against negligent or incompetent appraisers, “and we decline here to invent a sweeping rule making real estate agents vicariously liable for the alleged misdeeds of appraisers upon whose appraisals these agents rely for their livelihoods.”
Finally, the opinions here didn’t imply the existence of undisclosed defamatory facts supporting them.  Instead, the appraiser revealed the underlying facts on which his opinion relied.