Freesouls
IPSC 2
Don’t worry, I won’t blog all 99 talks. But this is the first plenary session so I thought I’d note what’s going on.
Chris Cotropia is up next, talking about the early filing doctrine in patent law. He’s saying that filing early amplifies the patent system’s problems. It creates more applications that are more underdeveloped (so hazy boundaries for patentability) and encourages “patent troll” activity - it may be more valuable to litigate than commercialize the right. So there should be a “reduction to practice” requirement. You’d have to have real implementation information in order to file. This would push the filing date later. It would be costly, true. Maybe we should also require more implementation information before renewal too.
Question: What about the value of ideas that never get commercialized? Do we benefit from being able to separate out invention (by tagging it with a patent) and buy it (even if not commercialized)? Good question!
Wendy Gordon is next. She’s working on gifts, and trying to organize the literature there. Thesis: for three kinds of intangible products, “gift” should be the the starting point for analysis. First, “high culture,” second, pure science, three, software programming. She’s including these (inexhaustible, imperfectly handled by markets) things because people inside these fields talk about gift relations all the time - desire to share, taking pleasure in the sharing of others. Second, these fields are areas where “doing the work” is the thing, not making money. Making a contribution by doing something wonderful. In these areas, direct payments can work harm for creativity. It can make a huge difference how rewards come in - if they come in in a way that feels like gift (non-tit-for-tat), artists have sense of community and a creative spark. Indeed, if things are commercially successful, the community may look down on it. The big problem with gift is reciprocity, the pressure to pay back. We need some of that (not to mention the wherewithal to eat). She’s interested in a model of soft reciprocity.
Jeanne Schroeder has written that gift is hierarchy/reciprocity and contract isn’t. But intangibles allow you to give and take simultaneously, because they’re inexhaustible. And through attribution and memory people will know about it. Should we eliminate patent and copyright and makes things compulsory gift? No, eliminating these things doesn’t fit the gift model. Whole point of the perfect gift is that it encourages soft reciprocity and voluntariness and longterm returns, and GPL has accomplished that. So she thinks a gift model is a useful place to start for these intangibles. A good place for a gift economy.
Question: what about the fact that gifts are usually personal? How does term “gift” work for commercial context? Answer: I’m just trying to create a context for creativity, and recognizing people as people; also trying to organize thinking and research agendas. Does this scale? Yes, just do it through recognition. If you’re in a truly commercial realm, then you’ll have gift failure. Question: what work does “gift” for you? What about community and sharing? Doesn’t “gift” assume that you have something in the first place?
Frank Pasquale is now up to talk about reputation regulation - he wants to “think about intermediaries from a broader policy perspective.” He thinks social interests of users aren’t being addressed. What if GoogleBooks starts charging? or Google manually chages ratings, or eliminates sites from its index? Should Google have to disclose what it’s up to? Should eBay be able to favor certain sellers legally? Should Facebook be able to kick members off without due process? Should Google be required to make AdSense data portable? Right now, the debate is between free market abolutism on the one hand and expanding the common law on the other - terms of use, antitrust, business torts. Maybe these things are natural monopolies!
These are very concentrated markets, Frank says. Lots of barriers to entry have been erected. It’s hard to compete. Litigation won’t have a broad enough effect, and the courts are clueless. Wants to apply stuff from the net neutrality movement to intermediaries. Wants to regulate intermediaries to the extent competition is unlikely to develop, and particularly auction platforms and portability for social networks; these things are becoming carriers (as an analogy). We’re all worried about NN, Frank says, because of worries about other layers. He is analogizing all the NN arguments to the intermediary level.
Wants no tiering for GoogleBooSearch, transparency, and a level commercial playing field. If we allow Google to get books together, they shouldn’t be allowed to make special deals.
Google, after all, Frank says, calls itself a neutral conduit. So it should have the same responsibilities. Points out that intermediaries don’t have absolute immunities. He thinks they’ll ask for immunity from lawsuits just like the carriers did.
So - Google shouldn’t be allowed to do any stealth marketing or denying access to copyrighted works once they are indexed. Google’s going to make the same arguments as the carriers are - we need to knock all those down, says Frank. He really wants to treat intermediaries as carriers.
IP Scholars Conference 1
Ninety-nine papers, 150 attendees - information law scholarship is producing lots of numbers. Each presenter has just 15 minutes.
Mark Lemley has announced an academic database of all IP cases - a huge and impressive undertaking: the Stanford Intellectual Property Litigation Database. Enormous and enormously helpful.
Mark McKenna is up first, talking about justifications for trademark claims against non-competitors. Two key ones are “market preemption” and “free riding.” These are arguments that focus on producer interests, and are basically claims about dilution of the brand (impact on ability to operate in the future). People have written about brand extensions and alliances, and there’s lots of empirical marketing work on “forward spillover effects” and “backward feedback effects.” So this isn’t really about “sponsorship,” it’s about a kind of trademark derivative right. So maybe trademark law is IP law after all. Next questions should be about free-riding etc - are these appropriate claims?
Lemley: should law be a norm follower or a norm entrepreneur? Answer: I’m just looking at the empirical literature here. Later: I think we need to think about consumer and producer interests together for these noncompetitor claims. Where producer interests are low, we’d have to show that there’s real consumer harm. Question: what about branding community? how does that play in here? McKenna: I think those interests are real, and trademark law doesn’t deal with them very well.
IP Scholars Conference
I’m at this conference. I’ll do some live-blogging today if it’s possible.