Category: Intellectual Property

Social Justice Symposia

I just wanted to quickly recommend two outstanding recent law review symposia:

U.C. Davis Symposium on Intellectual Property and Social Justice. I’ve seen Bartow, Cohen, and Fisher present on their article topics, and highly recommend those pieces. I look forward to reading many of the rest.

St. Louis University Health Law Symposium, “From Risk to Ruin: Shifting the Cost of Health Care to Consumers.” A very timely topic. As Tim Jost states in the introduction to his piece, “Of all developed countries, the United States is the one country where obtaining basic health care is most likely to result in financial ruin.”

Three Views of Education as an Associative Good

The Posner-Becker blog had a good discussion of education rankings 2 months ago. I was particularly struck by Posner’s observations on the self-fulfilling prophecy aspect of rankings:

The effect of college ranking on the education industry is unclear, but my guess is that it is negative. . . .Given the high costs of actually evaluating colleges, employers and even the admissions committees of professional and graduate schools are likely to give weight to a school’s rank, and this will give applicants an incentive to apply to the highest-ranking school that they have a chance of being admitted to (if they can afford it). The result will be to increase the school’s rank, because SAT scores and other measures of the quality of admitted students are an important factor in a college’s ranking. That increase in turn will attract still better applicants, which may result in a further boost in the school’s rank. The result may be that a school will attract a quality of student, and attain a rank, that is disproportionate to the quality of its teaching program.

Henry Hansmann wrote an interesting piece on this phenomenon, calling education an “associative good,” since, “when choosing which producer to patronize, a consumer is interested not just in the quality and price of the firm’s products, but also in the personal characteristics of the firm’s other customers” (emphasis added). Hansmann concludes by wondering if “the increasing technological sophistication of our society, which is fueling the trend toward stratification among the elite educational institutions, will someday produce technologies that make it less important for elite higher education to be a residential experience, and hence remove much of the associative character of higher education.” Franklin Snyder offers evidence that blogging is one such technology.

But don’t underestimate dominant interests’ passion for rankings, cautions McKenzie Wark (whose bookpage for the source I’m quoting interestingly fails to mention it was published by Harvard University Press). He claims that “Education is organized as a prestige market, in which a few scarce qualifications provide entree to the highest paid work, and everything else arranges itself in a pyramid of prestige and price below. Scarcity infects the subject with desire for education as a thing that confers a magic ability to gain a ‘salary’ with which to acquire still more things.” In other words, the rankings are the purest form of artificial scarcity. . . . a precious commodity in an era when the diminishing scarcity of resources that meet basic needs limits their contribution to economic growth. Wark worries that education will “split[] into a minimal system meant to teach servility to the poorest workers and a competitive system offering the brighter workers a way up the slippery slope to security and consumption.”

I’ll expressly disclaim endorsement of any of these three theories. I just find it interesting how the staid and sober observations of a Posner can resonate with Wark’s radical theory, once we interpose the “associative goods” concept.

Is MySpace Exploiting You?

MySpaceGreaseMonkey.jpgThe Web 2.0 backlash has begun. From the right, Andrew Keen voices a cultural conservatism uneasy with the new egalitarianism of networked media, claiming that the “media and culture industries’ [purpose] . . . is to discover, nurture, and reward elite talent.” He laments the “Napsterization” of old gatekeepers and their replacement by new context providers like FaceBook, MySpace, Google, and ochlocratic intermediaries. I see where he’s coming from, though I think Keen is way too quick to conflate media conglomerates and nonprofits as guarantors of quality.

On the left, Trebor Scholz worries that these new intermediaries recapitulate old patterns of exploitation. The labor of millions on their MySpace page results, most often, in nothing paid to them, and vast sums going to Rupert Murdoch. Scholz questions whether Web 2.0 really brings the decentralization its proponents hope for:

The most central sites of the World Wide Web create massive surplus value and small startups are frequently bought out by the Walmarts of the Internet (NewsCorp, Yahoo, Google) the very moment that they attract sufficient numbers of page views. People spend most time on the sites of these giants and not in the “mom and pop stores.” Almost 12 percent of all time spent by Americans online is spend on MySpace.

Scholz admits that “The picture of net publics being used is . . . complicated by the fact that participants undeniably get a lot out of their participation. There is the pleasure of creation and mere social enjoyment. . . . They share their life experiences and archive their memories. They are getting jobs, find dates and arguably contribute to the greater good.” Nevertheless, he’s raising some interesting questions about the very nature of labor and “just enrichment” in the digital age.

So are social media megasites exploitative?

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Unnaturally Made Killers

After a week of media coverage of the Virginia Tech tragedy, we can compare how different outlets have shaped our view of events there. Megan McCardle notes:

I haven’t found a single editorial addressing one factor we know creates these mass murders: reporting on the mass murders. In the next few weeks and months, even over the next few years, expect to see copycat killings inspired by Cho’s actions. The more saturated the media coverage, the more such events we are likely to get.

Of course, it’s impossible to fully assess causation here, an issue that has vexed media reformers for decades. But Thomas de Zengotita has weighed in on how deeply mediated this killer’s self-conception was, and how the whole event quickly became polarized between different “scripts,” or ways of making sense of a terrible reality. Many criticize the media for airing so much of the shooter’s “media kit,” for complicity in fulfilling (if posthumously) a disturbed soul’s demand for the world’s attention.

Some respond that competitive pressures made the decision by NBC to share the materials inevitable. The Canadian Broadcasting Company decided not to air the Cho videos….but they are under less ratings pressure than American broadcasters, and at the time it aired the tapes, NBC was losing share to ABC.

Is there a role for law to deter an arms race of sensationalism? Fred Yen has mentioned a possible copyright issue here, but it’s hard to imagine the shooter’s family being capable of putting such a suit at the top of its concerns….especially immediately in the aftermath of the murders.

Could a ban on broadcast of such materials work? Perhaps, but I imagine would-be celebrity killers would simply upload their rants into the BitTorrent and YouTube ether. Blogs would quickly jump on disseminating it, eager for the fame & links that it could bring.

So despite my occasional dirigisme, I can’t see a role for law here. The public’s insatiable appetite for sensationalism, and predictably ensuing frenzies for renown, appear to be a durable aspect of a decentralized and link-driven web. Technology + Competition > Values.

Self-Defeating Savings Strategies

cost balloon.jpgYesterday I did a CLE presentation for lawyers in pharmaceutical firms, focusing on the interaction between the new Medicare Part D and companies’ patient assistance programs (PAPs). The PAPs try to provide very-low-cost drugs to low-income individuals who fall through the cracks of existing insurance programs. Astonishingly, a complex web of Medicare “fraud and abuse” law could actually lead to criminal (and civil) sanctions for such programs if they offer financial assistance designed to get someone through the “donut hole” gap in coverage; as the Office of the Inspector General (OIG) of the U.S. Dep’t of Health and Human Services put it, “Pharmaceutical manufacturer PAPs that subsidize Part D cost-sharing amounts present heightened risks under the anti-kickback statute.”

After extraordinary controversy, the Centers for Medicare and Medicaid Services backed down a bit, claiming merely to insist that PAPs exist outside Part D coverage. This helped a bit, but when one reads the advisory opinions the OIG issues, they are not exactly perfect safe harbors. They contain pretty contradictory language, only purport to assess risk probabilistically, and raise the possibility that conduct that does not present a high risk of liability under the Anti-Kickback statute may well implicate other state and federal laws. (Ahh, the joys of guidance documents in admin law.)

According to the agency, it wants to put pharma under fraud & abuse scrutiny in because they might “increase the number of beneficiaries using the manufacturer’s product who reach the catastrophic benefit in any given coverage year,” steering people away from cheaper drugs. But one has to wonder if this particular obsession with cost-saving is really all that helpful to the program. Consider the following research on “meat-ax” rationing in the New Hampshire Medicaid program:

Jerry Avorn and his colleague at Harvard, Steve Soumerai, were responsible for showing that, when New Hampshire put a cap on the monthly number of prescriptions that welfare recipients would get for free, the result was an increase in nursing home admissions that probably cost the state government as much as it saved on drug costs.

In other words: one part of the bureaucracy may avoid paying for $200 of diuretics, but other parts may well end up having to cover a hospital admission due to congestive heart failure that runs to tens of thousands of dollars. Squeeze one part of the medical cost balloon, and it may just start bulging in some other area.

This is one reason why I’m happy Jason Furman’s recent report on cost-consciousness in health care reform does acknowledge this “big picture,” and proposes little to no cost-sharing for especially helpful interventions, especially preventive care. The OIG might want to focus less on new applications of fraud and abuse laws to Part D, and more on the type of economic analysis that allows us to see the true costs of denying drugs to the elderly.

Photo Credit: PingNews/Flickr.

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Student Legal Services at NC State and RIAA File-Swapping

According to an editorial at TechnicianOnline, the website for the NC State student paper, Student Legal Service at NC State is representing students in actions by the RIAA over file swapping. It is the first I’ve heard of a university providing free legal services to students against the recording industry in these suits, although I can’t claim to have followed these cases systematically. In the end, this representation will probably not change the outcome of these cases dramatically, but it may discourage plaintiffs from overreaching against legally unsophisticated defendants.

Postrel (and Fergie) on Egalitarian Glamour

glamor.jpgI’ve always had a love-hate relationship with Virginia Postrel’s work–so perceptive an aesthetic theorist, yet so complacent about commercial culture! But those studying IP have to come to terms with it, if only because she wrestles with a topic central to our endeavor: what is the value of those cultural products protected by copyright and trademark law? In The Substance of Style, Postrel argued that we routinely and vastly underestimate the contribution of design and beauty to our well-being. From an upcoming book proposal on Glamour, it looks like she’s about to expand and refine that argument.

Focusing on a variety of glam entities, Postrel distills three common components which “are not aesthetic elements but imaginative qualities: grace, mystery, and transcendence.” She reverentially recites a litany of products and personages that ooze glamor: Oprah, art deco, and Pre-Raphaelites all get props. To her credit, she recognizes glamour can be used for evil as well as good–she notes how Leni Riefenstahl glamorized a horrific Nazi program. But that’s just a bump on the road for a treatment that clearly wants to elevate our appreciation of glamour:

[D]espite its dangers, we would be foolish simply to reject glamour. It is too powerful to be denied, and its power can inspire good as well as evil. Although glamour has been a tool for tyrants, it has also provided an imaginative refuge for the ostracized and oppressed. . . . True sophistication lies not in rejecting or eschewing glamour—a largely futile approach—but in understanding how it works.

Note the slipperiness of the terms of evaluation here; where once “good, evil, and danger” were our guideposts, by the end of the paragraph “sophistication” becomes the summum bonum. Her discussion also reminds me of the Nussbaum-Kahan exchange in Bandes’s The Passions of Law, where Nussbaum argues for purging public life of emotions like disgust, while Kahan argues for a progressive appropriation of the concept. I think Kahan got the better of that exchange, but I’m a bit skeptical of glamor…even in the wake of books like Dream, Stephen Duncombe’s argument for tapping into “America’s collective unconscious through spectacle.”

There’s always a democratic edge to Postrel’s work, a gnawing need to establish that a new age of design, aesthetics, and glamour is a tool of self-realization for the masses. She admits that “Glamour can erode our appreciation of quotidian pleasures, and our sympathy with human limitations, exacerbating our dissatisfaction with life as it actually exists. And glamour can exclude outsiders as surely as it can dignify them.” But she always finds some way of de-emphasizing these trends, noting, for instance, that “The 1930s made glamour a truly mass phenomenon, one no longer dependent on geography or class.” (Yep, the KMart blue light special offers up glam items just as frequently as Agnes B.) For Postrel, the answer is not to beat or ignore the glamorous, but to join them: “glamour can . . . provide an essential imaginative leap toward personal achievement or social and economic progress.”

Though I should probably wait for the whole book before I pass judgment, I have to say now that I’m not buying the masstige angle. Glamour is inevitably exclusionary, the classic example of a positional good: by her own terms, the glamorous have to transcend somebody, and that’s usually the rest of us. Rather serendipitously, hip-hop diva Fergie provides a great example of this process in her video “Glamorous.”

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Million Dollar Kitty

cat.jpgGrand Central Publishing recently paid a $1.25 million advance for the story of Dewey the Library Cat. Apparently the book

will tell the story of how the kitten was found in the late-night book drop of the public library in Spencer, Iowa, a town in the northwest part of the state, and adopted by Ms. Myron and the other librarians. Slowly, over the course of his 19-year life, Dewey became a town mascot who lifted the spirits of residents hit hard by the 1980s farming crisis.

Dewey’s story will “need to sell at least 250,000 copies in hardcover to cover the cost of the advance.” Which leads me to wonder–what exactly are they paying for here? The co-authors will be “Vicki Myron, the head librarian in Spencer, Iowa; and Bret Witter, a former editorial director at Health Communications, the publisher of the “Chicken Soup for the Soul” books.” Certainly Ms. Myron has the inside scoop on taking care of Dewey, and Witter’s helped churn out buckets of spirit-lifting pablum. But is the advance really about something more, like the “life story” rights?

I’ve always found life story rights a bit puzzling. If a docudrama is basically a retelling of something that has happened, anyone can “use” those facts. But a brief glance at a bit of a sample “life story” agreement reveals some reasons why someone may want to buy “life rights.” Here is some of the language:

(a) Upon exercise of the option, Purchaser shall own the exclusive right throughout the world, in perpetuity, to produce, distribute, exhibit, license and otherwise exploit, in any and all media (now known or hereafter devised), motion pictures, television productions and other audiovisual works of all kinds (the “Works”), including without limitation sequels and remakes, based on or portraying your life story or depicting you, as well as exclusive ancillary rights . . . to use your name, likeness and other identifying characteristics in connection with the Works.

(b) You agree that in producing the Works, Purchaser shall have the right to add to, delete from, modify and fictionalize your life story and you waive all claims arising therefrom, except in the event of intentional defamation of you.

So the real advantage for the purchaser of the “life story” rights is fending off potential defamation or right of publicity lawsuits. One query–does purchase of the life rights of some notable figure also give the purchaser the same right to sue others that the seller agreed not to enforce against the purchaser? Then I could see these agreements being quite potent…for an aggressive purchaser may threaten virtually any rival storyteller in the marketplace of ideas with some kind of right of publicity or defamation suit.

Photo Credit: Flickr/Huxleyesque. No, that’s not Dewey…no way I’m risking a copyright suit with that feline corporate juggernaut.

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Agriculture and the Pharmaceutical Industry

In this policy brief, the Oakland Institute argues that “The enormous public resources invested in agriculture have benefited [pharmaceutical] companies by promoting the sale of [genetically engineered] seeds over and above their actual value and by allowing them to multiply their research efforts at minimal cost through collaborations with public institutions.” It’s an argument that I’ve seen before, although this is perhaps the most reader-friendly version that I’ve seen.

What I find interesting is the framing of subsidies as occuring through the (semi-)public works of “public-private partnerships and the patenting of university generated knowledge,” because it seems analogous to earlier public-works agricultural subsidies: that is, big water projects. What I also find interesting (and maybe it’s because of my relative newness to this field, and my focus more on the agricultural/environmental side of things) is its emphasis on the companies as part of the pharmaceutical industry, rather than on companies as part of Big Agriculture (which is more of what I see in the agricultural literature). I think this further highlights the importance of promoting dialogue between agricultural reform advocates (who often focus more on direct subsidies) and biotech patent reform advocates, as well as a reassessment of earlier public works projects and their unintended detrimental effects.

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More thoughts about Turnitin

Thanks to all who have posted interesting comments about Turnitin. I particularly appreciate the thought behind the comments arguing that Turnitin has no fair use defense, but I haven’t changed my mind. Let me explain why I still think it’s fair use in the limited space this forum permits.

At the outset, I’ll concede factors 2 and 3 for the plaintiffs, although in at least some cases the nature of the copyrighted work may be sufficiently factual (i.e. academic research paper) that 3 isn’t the slam dunk that some have suggested. That having been said, remember that factors 2 and 3 alone are not enough to swing fair use for a plaintiff, as we learned in the Sony case, where factors 1 and 4 insulated widespread wholesale copying of fictional works.

It’s true that Turnitin is engaged in a commercial endeavor, but that alone doesn’t swing a fair use analysis either. In Campbell v. Acuff-Rose, the Supreme Court understood that people create parodies for commercial purposes, but still reversed the lower court’s pro-plaintiff decision. In doing so, the Court astutely observed that commercial use is a factor that weighs against fair use, but that a great deal depends on whether the defendant’s use substitutes for the plaintiff’s. Although the Turnitin’s use is commercial, its purpose in doing so is to produce critical information about the scholarly bona fides of the plaintiff and others, and not to create copies that displace the plaintiff’s work in the marketplace.

Now let’s consider the markets that the defendant’s use might affect. First, it may diminish the plaintiff’s ability to sell papers to people who want to plagiarize. Second, the defendant may diminish the plaintiff’s ability to sell his paper to outfits like Turnitin for purposes of trying to catch plagiarists.

As for the first market, Turnitin’s use does not substitute for the plaintiff’s work. Yes, Turnitin’s use affects that market, but that is because Turnitin produces information that exposes the plaintiff and the plaintiff’s customer as dishonest academics. That’s criticism and comment, and it does not count as affecting the marketplace for the copyrighted work. Campbell stands for the proposition that if people don’t want the plaintiff’s product because of something they learned from the defendant’s alleged infringement, that is not an effect on the market for the copyrighted work. To quote the Court, this is the “distinction between potentially remediable displacement and unremediable disparagement.”

As for the sale of the plaintiff’s work for detection of plagiarism, the effect on the marketplace is small at best. If the plaintiff wants to exploit a market for sale of manuscripts to people who want to plagiarize, the plaintiff will not sell into any market for catching plagiarists. Additionally, the plaintiff cannot claim that he writes specifically for the detection of plagiarism because there’s no demand for a work written for that purpose. A work is valuable for detecting cheaters only if it’s already a published work that someone might find and use, or if it has been sold to plagiarists. There is no meaningful independent demand for works used to catch plagiarists. Thus, its elimination would have no effect on the production of copyrighted works. Accordingly, the effect on this market, even if considered an effect on the market for purposes of copyright, is too small to swing factor 4 to the plaintiff.

Accordingly, I conclude that the defendant’s case in factors 1 and 4 is strong enough to overcome the plaintiff’s strength in 2 and 3.