New APPS: Art, Politics, Philosophy, Science

More on AI and Copyright

Another case percolating through the system, this one about Westlaw headnotes.  The judge basically ruled against a series of motions for summary judgment, which means that the case is going to a jury.  Discussion here (link via Copyhype)

AI Is not a (Copyright) Author (at least not today)

By Gordon Hull

This one has been percolating a while… Steven Thaler’s AI created a picture (below the fold), and Thaler has been using it to push for the copyrightability of AI-generated material.  That endeavor has been getting nowhere, and a DC District Court just ruled on the question of “whether a work generated autonomously by a computer falls under the protection of copyright law upon its creation,” in the same way as a work generated by a person.  Copyright attaches to human work very generously – this blog post is copyrighted automatically when I write it, and so are doodles you make on napkins.  You get lots of extra protections and litigation benefits if you register, but registration is not a requirement for copyright in itself.  Per 17 U.S.C. Sec. 102, copyright subsists in “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”  Given this, it’s not hard to see why someone would want to know whether AI could be an “author” in the relevant sense.

The Court ruled that “United States copyright law protects only works of human creation.”  This is not a surprise.  The central argument is that “Copyright is designed to adapt with the times. Underlying that adaptability, however, has been a consistent understanding that human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media.”  Indeed, “human authorship is a bedrock requirement of copyright.”  The Court both cites historical precedent and grounds it in the purpose of Copyright, which is constitutionally to incentivize the creation of new works:

Copyright Office gets this right...

in refusing to grant copyright registration to an AI creation.  I suspect this one to be litigated for a while, since the person who has been trying to get protection for the picture has declared limiting copyright to human authors as something that would be unconstitutional (I also think it would be pretty entertaining to watch somebody try to float that argument in front of the current Supreme Court).  A good article on why this sort of thing is going to be a problem, and an interesting way of parsing law's traditional 'mental state' requirement, is here.

Patently Harmful

My further thoughts on the background through which we should interpret Covid patent waivers, at Real Life.

The Necropolitics of Intellectual Property

By Gordon Hull

Update (4/30).  Essential piece by Amy Kapczynski (who is one of my sources below).  Also see this Twitter thread by Dennis Crouch of PatentlyO, characterizing the issue as one of technology transfer more generally than patents specifically.  Trade secrets are an important issue - like patents, they allow companies to control access to innovation.  Companies also will use a strategy of combining patents and trade secrets in order to maximize their revenue (so if they think something can't be patented, they might claim it as a trade secret).  The theory behind trade secrets is based more in contracts than property, which means that they are arguably even worse if you're worried about neoliberalism, since they are an even further privatization of law and policy.

Update (4/29).  Here's more on IP and other barriers to vaccine distribution in India (and elsewhere):

• The Modi government is incompetent at every level, and India's base capacity was lower than it estimated.
• Most of the world wants IP waivers.  The U.S. and Europe and a few other countries do not. 
• This WaPo piece argues that waivers are bad but licensing (preferably voluntary, but with compulsory as a stick) is good.  Note that licensing is not what Bill Gates is talking about, as far as I can tell, which is buying vaccines and donating.

In my Biopolitics of Intellectual Property, I argue that IP policy has shifted from what I call a “public biopolitics” model to a neoliberal version.  In its briefest form: the public version treats IP as a necessary but limited monopoly to promote public goods, and the neoliberal version focuses on private wealth gain through proprietization (I summarize the argument here).

Something that I don’t particularly talk about in the book, but that one knows from Foucault, is that biopolitics comes with its inverse, necropolitics: if biopolitics is about promoting life and health for the “population,” it is also about who is allowed to die.  As Foucault puts it, “the ancient right to take life or let live was replaced by a power to foster life or disallow it to the point of death [au vieux droit de faire mourir ou de laisser vivre s'est substitué un pouvoir de faire vivre ou de rejeter dans la mort]” (History of Sexuality I, 138).  Governmental power goes from the right to kill to the power to cause people to live; death becomes something into which one is literally “thrown back.”  The leading examples of necropolitics are political, as for example Foucault’s discussion of state racism (of which Nazism is the apotheosis) in Society must be Defended.  Achille Mbembe’s “Necropolitics” article spends time on how post-colonial African states have dismantled populations, which are “disaggregated into rebels, child soldiers, victims or refugees, or civilians incapacitated by mutilation or simply massacred on the model of ancient sacrifices” (34).  Building on these, Ege Selin Islekel’s brilliant treatment of the disappeared in Turkey notes that in necropolitical spaces, “the entire content and the fact of living, constituted by the ethical, political, and epistemological conditions of life, are subsumed under death.”

However, as Ute Tellman has recently demonstrated, the political treatment of biopolitics needs to take seriously how it is co-configured with the economy.  On Tellman’s account, the notion of economic scarcity first appears in Malthus (it was missing in Smith!) as a way to police the behavior of the poor (and “savages” in the colonies) by training them to think in terms of futurity.  For Malthus, the poor have to be trained not to eat and procreate their way into oblivion by forcing them to think in terms of economic rationality.  This brings us to the neoliberal justification of IP, which is partly underpinned by the Schumpeterian thesis that innovation is to be pursued at all costs, because the gains of future innovation (“dynamic efficiency”) are more important than whatever short-term distribution problems (“static inefficiencies”) they entail.  Thus, more or less, is Harold Demsetz’s reply to Kenneth Arrow. 

It also subtends the argument being given for why IP rights around Covid vaccines shouldn’t be licensed to the poor in India (side note: Malthus served as professor at the East India Company College).  Developing countries have proposed a waiver of related IP rights to ensure the rapid production of generic Covid vaccines, and Pharma has responded with an army of lobbyists to explain that no, IP can’t possibly be the problem with Covid vaccine distribution, and it would be much better for philanthropies to purchase lots of drugs and then distribute them.  Other unrelated IP industries have followed with their own lobbyists.  Whatever other difficulties exist in getting vaccinations to people in developing countries, it seems hard to deny that insisting on IP rights and thereby limiting production of the drugs isn’t one of them.  Allowing generics – especially in India and Brazil – increases capacity.

Who Owns the Law? SCOTUS Speaks

Recall that before Covid (so about 300 years ago), there was an interesting copyright case percolating through the federal courts.  The question concerned the Official Georgia Code Annotated (OGCA), which contains the text of the Georgia Code as well as various annotations.  There were two potentially conflicting principles at work.  On the one hand, the law is public domain.  On the other hand, annotations and supplemental materials by third parties are often copyrightable.  Georgia managed to produce a hybrid system: the legislature established a code commission, which outsourced most of the annotations work to Matthew Bender Corp, which was granted an exclusive license to sell it.  At the same time, the legislature every year officially adopted the GCA, and it was the authoritative source for the Georgia Code in everything from legislative proceedings to cases to public reference.  It was even published with the state seal attached.

The 11^th Circuit ruled that OGCA was not copyrightable because, even if it wasn’t quite the same thing as the statutory text, it nonetheless is “an exercise of sovereign power” (3) and “sufficiently law-like so as to be properly regarded as a sovereign work” (4).  Today, in an opinion by Justice Roberts, the Supreme Court agreed, though for somewhat different reasons.  The SCOTUS opinion basically argues that the relevant question is whether the “author” of something is a judge or legislator; answers that the OGCA is reasonably the work of a legislator, and thus uncopyrightable.

The Biopolitics of Intellectual Property

I'm very pleased to announce that my new book, The Biopolitics of Intellectual Property, is now out in print/electronically on Cambridge UP.    Here's a blurb:

"Intellectual property is power, but what kind of power is it, and what does it do?  Building on the work of Michel Foucault, this study examines different ways of understanding power in copyright, trademark and patent policy: as law, as promotion of public welfare, and as promotion of neoliberal privatization.  It argues that intellectual property policy is moving toward neoliberalism, even as that move is broadly contested in everything from resistance movements to Supreme Court decisions.  The struggle to conceptualize IP matters, because different regimes of power imagine different kinds of subjects, from the rights-bearing citizen to the economic agent of neoliberalism.  As a central part of the regulation of contemporary economies, IP is central to all aspects of our lives.  It matters for the works we create, the brands we identify and the medicines we consume. The kind of subjects it imagines are the kinds of subjects we become"

 

The CUP page for the book has not just the text as a whole but the chapters (the main ones are a theoretical discussion, and one each on copyright, trademark and patent), and each of the chapters has an abstract.  For now, here's a little text from the introductory chapter that should give a better idea of what I'm up to.  As you'll see, I want to say something about IP, of course, but also about how I think biopolitics works (in both what I call its earlier, "public," form, and current neoliberalism) and about the fundamental but neglected importance of including law and legal institutions in our genealogical work:

"The core of my argument is that the kind of power expressed in IP is subtly changing. Initial evidence for this claim is that new doctrinal developments have been difficult to incorporate into traditional models of IP. For example, retroactive  copyright extension is hard to square with a theory that says copyright is about incentives to create new works. Presumably, Walt Disney will be unmotivated by any changes in IP today. Trademark dilution, which allows action against expression that damages a brand’s image in consumers’ minds, is difficult to square with the standard theory that says that trademark is about avoiding consumer confusion. And the patentability of living organisms and (until recently) isolated genetic fragments is difficult to reconcile with the traditional view that products of nature should not receive patent protections. In cases such as these, I will argue, it is necessary to recognize that IP is performing a different and new social function, one that requires a rethinking of the kind of power expressed by IP laws and regulations.

"I take my theoretical starting point from the work of Michel Foucault, for whom modern power has operated in two basic forms. The first, associated with the social contract tradition, conceptualizes a rights-bearing, juridicial subject, for whom law operates as a system of constraint and coercion. That which law does not prohibit is allowed, and the most important questions revolve around the limits to law’s ability to prohibit. The second, associated with the modern, administrative state, Foucault calls “biopower” or “biopolitics,” and it is concerned with productively managing and even optimizing populations through such measures as public health and education programs. Biopower is thus fundamentally generative. Closely aligned with the rise of capitalism, biopower has emerged as central to the operation of the modern state, which tends to emphasize regulatory agencies and administrative law, even if it also retains a framework of judicial rights.

On the Authorship of Law II: The Social Life of Building Codes

By Gordon Hull

As I noted last time, the Supreme Court has decided to take up a case about copyright in state codes.  Specifically, Georgia contracts with Lexis to produce an annotated version of its code, which is the state then blesses with the title “Official Georgia Code Annotated” and claims copyright in.  The question is whether the annotations are part of the code; if they are, they are public domain because the law is public domain.  The 11^th Circuit said that they are, because the legislature officially adopts them, courts refer to them, etc.  If it walks like a duck…

One of the decisions cited in the 11^th Circuit opinion cites along the way establishes that model building codes, once incorporated into statute, lose whatever copyright protection they had.  In Veeck v. Southern Building Code Congress International (293 F.3d 791 (5th Cir. 2002)), SBCCI was “a non-profit organization consisting of approximately 14,500 members from government bodies, the construction industry, business and trade associations, students, and colleges and universities.”  SBCCI’s purpose was to develop model building codes for municipal governments to adopt, which the small north Texas towns of Anna and Savoy did.  Veeck ran a web site about northern Texas, and wanted to put the building codes online.  When he had some difficulty getting them from Anna and Savoy, he paid SBCCI $72 for the codes, and then posted that online, correctly labeling them as the building codes of Anna and Savoy.  The question, then, was whether in being enacted as part of the municipal law of Anna and Savoy, the codes lost the copyright protection they enjoyed as products of SBCCI.  The 5^th Circuit, relying on the premises that “law” is not copyrightable, the copyright idea/expression dichotomy, and extant caselaw, ruled that the codes were no longer copyrightable.

If the Georgia case attempted to think through what the conceptual underpinnings of the thesis that law is not copyrightable, SBCCI offers a chance to think about what that means in practice, and how it interacts with the more commercial IP system.  Indeed, one of SBCCI’s arguments in favor of protection was quite precisely the commercial incentives justification for copyright.  I want to approach all this somewhat elliptically.  Quite some time ago, I used Deleuze’s critique of Platonism (in Difference and Repetition and Logic of Sense) to suggest that the original/copy distinction in copyright functions like the eidos/copy distinction in Platonism.  For Deleuze this distinction isn’t about metaphysics so much as police work: it’s about knowing how to distinguish legitimate copies from illegitimate simulacra.  Deleuze writes:

On the Authorship of Law: Copyright, Foucault, and Hobbes

There is an interesting copyright case before the Supreme Court this term, Georgia v. Public Resource.org. It is settled law that official edicts of the government – statutory texts, judicial opinions, agency rules – are not copyrightable. More about that in a moment. In this case, Georgia entered into a contract with Lexis to produce an annotated version of its code. The state gets editorial control, and Lexis gets exclusive publication rights. The product is the “Official Georgia Code Annotated” and is generally cited as the authoritative statement of Georgia law. Public Resource made copies of the OGCA publicly available for free, including the annotations. The state claims copyright over the annotations and sued to enjoin Public Resource.  The question before the court is thus whether the annotations to state law are copyrightable, even given that the statutory text is not.

The case follows an appeal from a substantial Eleventh Circuit opinion, finding that the OGCA was not copyrightable because, even if it wasn’t quite the same thing as the statutory text, it nonetheless is “an exercise of sovereign power” (3) and “sufficiently law-like so as to be properly regarded as a sovereign work” (4). There’s a lot to say, and much depends on the peculiar arrangement Georgia has with Lexis.  For example, the OGCA both costs money and is taken to be authoritative over the unannotated version of the text made available for free; it is both the results of a heavily regulated legislative process and is routinely cited by Courts as authoritative in interpreting the law. What I want to focus on here, however, is the 11^th Circuit’s discussion of authorship.

The Biopolitics of Intellectual Property

I'm very pleased to be able to say that my new book, The Biopolitics of Intellectual Property, now has a publisher's webpage on Cambridge UP!

It's currently in production, and should be coming out this winter.  Here's the blurb from the site:

"As a central part of the regulation of contemporary economies, intellectual property (IP) is central to all aspects of our lives. It matters for the works we create, the brands we identify and the medicines we consume. But if IP is power, what kind of power is it, and what does it do? Building on the work of Michel Foucault, Gordon Hull examines different ways of understanding power in copyright, trademark and patent policy: as law, as promotion of public welfare, and as promotion of neoliberal privatization. He argues that intellectual property policy is moving toward neoliberalism, even as that move is broadly contested in everything from resistance movements to Supreme Court decisions. This work should be read by anyone interested in understanding why the struggle to conceptualize IP matters."

A Mysterious Scandal

By Gordon Hull

The Supreme Court just granted cert in an important trademark case, in re Brunetti.  The case concerns whether Eric Brunetti can get federal trademark registration for his FUCT line of clothing.  Although Brunetti can of course market the clothing in any case, and can claim common law trademark rights, federal registration confers a number of benefits, especially if the owner ends up litigating the mark.  A little background.

Section 2 of the Lanham Act specifies a few things that are not eligible for registration, such as official insignia of governmental entities and the identifying name, signature or portrait of a living person without their consent.  The statute also prohibits registration of a mark which:

Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute (15 USC 1052(a)).

In denying registration to scandalous or disparaging material, the Lanham Act seems to be generally biopolitical in that it is concerned with optimizing the population: independently of its viability in commerce, putting governmental imprimatur on a scandalous or disparaging mark is viewed as bad for the polity.  In the case of disparaging marks, the idea is that the use of the mark would be damaging to those targeted by the mark in question.  The First Amendment means that the government cannot stop such use, but it is also not required to reward the use with the benefits of trademark registration, and so the policy explicitly values a vision of civil discourse over commercial benefit.

Various marks were denied registration under the disparagement clause, including both those that repeat slurs assumed to disparage others (the NFL’s Washington “Redskins”) and those where members of targeted groups intend to reappropriate the terms, as in “Dykes on Bikes.”  In Matal v. Tam (2017), the Supreme Court ruled on First Amendment grounds that the government did not have the right to refuse registration to disparaging marks.  The case pitted Simon Tam, an Asian-American who wanted to register the name of his band – the “Slants” – in order to reclaim a racial slur, against the PTO, which argued that the term disparaged Asian-Americans, many of whom would find it offensive.  After the decision, Tam got his band name and the Redskins got their registration back.

Citing the Tam decision, the Federal Circuit ruled at the end of 2017 in Brunetti that the ban on scandalous marks also violated the First Amendment.

Are Patents Property? Depends on what you mean…

By Gordon Hull

The Supreme Court issued a landmark patent ruling yesterday in Oil States v. Greene.  The most recent major revision to the Patent statute specifies that the validity of patents – in terms of whether they meet conditions of patentability (utility, non-obviousness and novelty - the opinion does not directly specify whether questions about patentable subject matters are included here, but it cites §101, so I think that’s probably covered too)  – can be challenged and resolved through an administrative inter partes review.  This review process has a number of procedural requirements, but at the end of the day the decision reached can result in a patent revocation and is conducted entirely within the administrative apparatus of the PTO.  The question posed is therefore whether the government can revoke a patent without going through the courts.  The answer delivered in a 7-2 opinion by Justice Thomas, is yes.  I haven’t digested the opinion fully, and there was another, somewhat related case yesterday that I haven’t even started on.  That said, Oil States is a very interesting decision, including the dissent authored by Justice Gorsuch.  Here’s some initial reflections on it (I did some context-setting earlier: see here).  I’ll first talk about the opinion, and then end with a thought about the underlying policy problem, for which inter partes review is basically a band-aid solution.

The basic argument of the opinion is that patents aren’t private property so much as they are a public franchise, and as such aren’t the sort of thing the Constitution is talking about when it says property claims have to run through the judicial branch.  As Thomas argues, “the decision to grant a patent is a matter involving public rights—specifically, the grant of a public franchise” (op. slip, 7, his emphasis).  As 19c case law establishes, a patent “take[s] from the public rights of immense value, and bestow[s] them upon the patentee” (op slip, 8), by granting a right of exclusion (traditionally the core of property).  It does so to incentivize invention.  It then follows logically that the decision to remove a patent is also a matter of public franchise.  Thomas cites a 1966 ruling that administrative review covers the “issuance of patents whose effects are to remove existent knowledge from the public domain” (8-9).  In other words, if the patent doesn’t cover something novel, it takes knowledge that was available to the public and privatizes it.

The ruling strikes me as exemplifying what I call “public biopolitics,” which is basically the pre-neoliberal version that Foucault identifies (especially in Security, Territory, Population and Birth of Biopolitics) with classic liberalism.  They don’t quote Mill, but the opinion is the sort of thing that the Mill of the Principles of Political Economy could get on board with. For example, Mill justifies the departure from laissez faire on the grounds that inventions are of tremendous public value, but require nurturing by the state. Similar instances of justified state intervention include public funding of things like universities (p. 968).  He also explains what happens in terms of a publicly-granted patent license: “this is not making the commodity dear for [the inventor’s] benefit, but merely postponing a part of the increased cheapness which the public owe to the inventor, in order to compensate and reward him for the service” (p. 928). Thus, even in the case of patents, Mill conceives of the production of knowledge as the production of something that benefits the public generally, and which the application of laissez-faire will not supply. The point is not to internalize externalities for the sake of the inventor.  This sense of knowledge as a public good is specific to modern liberalism.  As Foucault puts is, “activity that may go beyond this pure and simple subsistence will in fact be produced, distributed, divided up, and put in circulation in such a way that the state really can draw its strength from it” (STP 326).

Intellectual Property, Creative Commons and Neoliberal Biopower

By Gordon Hull

In “Intellectual Property’s Leviathan,” Amy Kapczynski argues that both advocates of strong IP protection, and critics from the creative-commons (CC) side tend to view the state in the same way: “both those who defend robust private IP law and their most prominent critics … typically describe the state in its first instance as inertial, heavy, bureaucratic, ill-informed, and perilously corruptible and corrupt” (131-2).  On the pro-IP side, neoliberal economic doctrine (she cites Hayek) view the state’s role as establishing markets and getting out of the way.  The state otherwise lacks the information to decide winners and losers efficiently, and in any case, it would tend to be corrupted by political or other sectarian interests (ignore for the moment the corruptibility of markets).  On the creative commons side, which Kapczynski identifies with Yochai Benkler and Lawrence Lessig, there is a tendency to adopt exactly the same view of the state: “the commons, they suggest, is a concept that seeks not only to liberate us from predatory and dysfunctional markets, but also from predatory and dysfunctional states” (137).  As she points out, IP does present a number of obvious instances of regulatory capture, so the fear is not an irrational one.  The irony behind this distancing, however, is that both views also require the state to be a functioning entity capable of creating and executing reasonably coherent policy.  For the pro-IP camp, the state has to be able to administer a property regime (and a complex regulatory bureaucracy); for the commons camp, the state has to be able to do things like fund basic research through agencies like the NIH.

Kapczynski’s point is an important one, and I have only a couple of things to add.  First, she notes that the commons theorists tend to treat infrastructural projects and commons-based private ordering systems in the same camp.  As she notes, this is a strange move:

Is Intellectual Property actually Property?

By Gordon Hull

This sounds like a trick question, but it’s not.  It’s also currently before the Supreme Court, about which more in a moment.  First, however, let me summarize the case for why IP isn’t really “property” in the ordinary sense, even if we use the word.  In a paper from a little more than ten years ago, Michael Carrier proposed that although we claim that IP is a “property,” and treat IP as property in some respects, we do not actually treat it as we do other forms of property.  In the first step, we have come to treat IP as property “not only in the essentially unlimited scope and duration of its initial rights but also in the ubiquitous assertions that IP is absolute property” (12).  This is evident, Carrier suggests, in a number of ways.  In copyright, for example, term length, scope, and subject matter are all increasing.  In patents, enforcement is increasing (especially with the creation of the Federal Circuit, which stopped a lot of forum shopping, although the Eastern District of Texas until very recently functioned as a favored forum of so-called “patent trolls”), and patent rights are more and more viewed not just as innovations, but as investments.  The result should be familiar to anyone familiar with discussions of neoliberal financialization:

Intellectual Property Theory Wars (Part 2): IP as social power

By Gordon Hull

Last time, I introduced the exchange between Mark Lemley and Robert Merges on IP theory, and made the initial case that Lemley is essentially arguing for the theoretical primacy of neoliberal biopower in intellectual property.  Merges, as will hopefully become evident below, is more interested in grounding IP in juridical notions of rights-bearing subjects.  Lemley finds such grounding not just wrong but incoherent and irrational, on the grounds that it is a refusal to use empirical evidence.  What I want to do here is dig out some of the textual evidence to support my argument, specifically by looking at some of the work Lemley puts in the “faith-based” camp.  That is, the way Lemley critiques other efforts at IP theory seems to me to exemplify the hold that Chicago has on IP scholarship.  I want to look at his treatment of three such competing views: he finds them completely unintelligible when they use a non-utilitarian form of reason (Merges), he ignores it when they argue from an economic perspective that rejects the basic assumptions of the Chicago school’s development of IP (Amy Kapczynski), and he contorts them into an unpersuasive utilitarian frame when they challenge wealth aggregation as the appropriate standard for evaluation (Madhavi Sunder).  Let’s look at these in reverse order.

Intellectual Property Theory Wars (Part 1)

By Gordon Hull

A couple of years ago, Mark Lemley, one of the most influential and prolific of intellectual property scholars, published his “Faith-Based Intellectual Property,” a manifesto against what he characterizes as non-utilitarian or non-empirical theories of intellectual property.  In other words, “participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all” (1336).  He adds, “I call this retreat from evidence faith-based IP, both because adherents are taking the validity of the IP system on faith, and because the rationale for doing so is a form of religious belief” (1337).  He treats Robert Merges’ Justifying Intellectual Property (2012) as the paradigmatic example of this phenomenon, though he cites others.  A couple of months ago, Merges’ response, “Against Utilitarian Fundamentalism” appeared, arguing that it was the militant utilitarian position – which as Merges reads it assumes that “to abandon the solid world of empirical foundations is to automatically commit to a stubbornly irrational set of foundations” – that “commits precisely the error that [it] attributes to others” which “takes an extreme position, cutting off conversation and debate” (n5)

The point I want to make here (in this post and a follow-up) – and I should say that I absolutely agree with Lemley both that IP protections are too strong now, and that there is a good-sized body of evidence that supports this proposition – is that Lemley’s argument presupposes that IP is a form of biopower (or perhaps biopolitical governmentality) insofar as it sets policy, the aim of which is to optimize the welfare of the bios by pushing the “conduct of the conduct” of individuals within it toward higher levels of creative productivity (if you are uncomfortable calling that “biopower,” then it’s fine to stick with “governmentality” here – the point is the contrast with other kinds of thought).  I would also argue, though again not a lot hangs on the distinction here, that Lemley’s framework is almost entirely dependent on law and economics, as it developed out of the University of Chicago from the 1960’s onward.  In this, he is accepting what one might call a neoliberal understanding of intellectual property (on the move to law and economics, see especially William Davies).

Another week, another unanimous SCOTUS IP Decision – this time, disparaging Trademarks

The Supreme Court ruled unanimously today (well, an opinion and a concurrence) that a provision in the Lanham Act banning “disparaging” trademarks violated the First Amendment. In the case in question, an Asian-American musician named Simon Tam had attempted to register his band’s name, “The Slants,” in a clear effort to reclaim the slur.  The PTO had refused the registration, on the grounds that it was a disparaging term. The Federal Circuit ruled in favor of Tam (my thoughts on that decision are here).  Writing for the Supreme Court, Justice Alito declined to resolve whether the case required strict or intermediate scrutiny, on the grounds that the disparagement clause failed the weaker, intermediate scrutiny standard.  Alito found two asserted government interests: one was protecting against speech that offends, and he dismissed that argument on the grounds that the “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’” (citing a 1929 dissent by Justice Holmes).  The second interest was in the protection of the orderly flow of commerce.  Here, he pointed out that the statute was in no way narrowly-drawn, as intermediate scrutiny would require.  In the first of a series of reductios, he argued that:

“The clause reaches any trademark that disparages any person, group, or institution [emphasis original; he is quoting statutory text]. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.”

Exhausting Patents

In another chapter of its ongoing battle with the Federal Circuit (and the second in a week), the Supreme Court (SCOTUS, I will refer to the Federal Circuit as the CAFC) ruled last Tuesday in Impression Products v. Lexmark International that the sale of a patented product “exhausts” the patent-holder’s claim to derive patent revenue from that particular article.  First, a brief background.  Printer toner is like razor blades: companies charge extravagant prices for the toner without which their printers will not operate, while selling the printer itself fairly cheaply.  Such a strategy creates secondary markets in toner, either in third party cartridges that are designed to be compatible with the printer, or in strategies for refilling used cartridges.  Naturally, printer companies hate this, and so engage in all sorts of strategies to stop it.  They warn consumers that using non-proprietary cartridges will cause poor print quality and void their warranty.  They design their devices to try to detect off-brand toner, and refuse to operate if one is installed. These strategies tend to fail in court.  In 2004, the 6^th Circuit ruled that efforts to circumvent the cartridge-detection system did not violate the DMCA (= copyright law).

In last Tuesday’s case, Lexmark had sued a manufacturer of aftermarket ink cartridges, which had been taking used cartridges from either overseas markets or from consumers who had emptied them, refilling them, and then selling them.  Lexmark argued that its exclusive rights should extend to the resold cartridges.  The SCOTUS threw cold water on that argument, citing settled common law on property: when you sell something, you don’t get to derive revenue from subsequent sales.  If Lexmark wanted to try to extend its patent rights, the company could contractually forbid users to give their spent cartridges to companies like Impression, for example, but that would be a matter of contract law, not property.  But patents are a species of property, and patent rights are “exhausted” – i.e., end – when the patented product is sold.

Biopower, Juridical Power, and Patent Trolls

Patent law seems like an easy place to talk about biopower.  After all, it has been possible to patent life forms for some time now, and large numbers of patents are issued for products that directly affect life, as in the case of pharmaceuticals and other medical innovations.  Biopolitical implications of patent law are thus easy enough to adumbrate, even if one wants to construe “life” in narrow, biological terms.   There is, however, another angle that needs to be considered, which is the institutional structure of patent law.  If one effect of the emergence of biopolitics is the rise of the regulatory state and the decline of judicial power, we see in the case of patent law an ongoing struggle between institutions representative of those forms of power.  Two Supreme Court decisions in the past week illustrate this conflict; this post will deal with the first (TC Heartland) and I will have something to say about the second in a follow-up post.

Federal Circuit on Disparaging Trademarks: “The Slants”

by Gordon Hull

An important trademark and First Amendment case was decided in the Federal Circuit yesterday. In it, the Court ruled in favor of Simon Tam, who named his band “The Slants.” When he attempted to register the band name as a trademark, the Patent and Trademark Office (PTO) rejected the mark as “disparaging,” arguing that the First Amendment does not allow government to disfavor speech that it disapproves of the message it contains. Per the Court:

“The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional. Because the government has offered no legitimate interests justifying § 2(a), we conclude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regulation of the commercial aspects of speech.”

The Court thus rules that the PTO needs to allow the mark to be registered (for a quick blogpost, see here). A lot of people think this case has ramifications for whether the Washington "Redskins" should be allowed to keep their trademark registrations (they were canceled by the 4^th Circuit; the Washington Post has a long list of rejected marks here). The conflict between the circuits raises the odds of Supreme Court review.  I wrote about the Redskins case when it came out, and a lot of what I said there applies here. In that post, I expressed some support for the PTO, because I wonder if the case shouldn’t be framed as viewpoint discrimination so much as whether one has a constitutionally protected right to a government subsidy for speech that it does not endorse.  But it's not a comfortable road to travel, as I based my argument on abortion cases, Rust v Sullivan in particular, that I wish were decided the other way.

Permissions Culture: Copyright and complete subsumption

Publishing in general, and for the visual arts in particular, has moved to what’s called a “permission culture,” which basically means that nobody will publish your work unless you get explicit permission from the rights owner.  This is often an arduous process, since art often includes many copyrighted images or other materials.  A documentary film producer, for example, has to worry if an interview subject has the TV on in the background.  Permissions culture means that the producer has to either remove whatever is on the TV, or secure permission to use it.  It also means that scholars may not be able to publish articles that include images of the work they are discussing, either because the images are unavailable, or unaffordable.

On the surface of things, this seems odd: shouldn’t a lot of this fall under “fair use?’ The copyright statute, after all, cites education as an example.  An important paper in 2007 explained why fair use doesn’t matter in this context.  Basically, fair use is an affirmative defense against an infringement claim: you sue me for infringement, I claim fair use, and that’s the argument that litigation resolves.  Fair use guidelines are deliberately vague and left to a case-by-case judicial determination, and so it’s not always obvious what gets counted as fair use.  Litigation is very, very expensive, and publishers are risk averse.  They don’t want to pay for litigation, and if they lose, they lose not only all that money, but the work they were trying to publish gets enjoined.  So publishers won’t publish without prior permission (fair use thus systematically favors rich claimants and defendants).  In addition to the problems all of this directly creates, it indirectly creates a ratcheting effect, because one place courts look to see if use is fair, is industry practices.  So the more publishers seek permission for everything, the narrower fair use becomes.

Taylor Swift's Platonism

By Gordon Hull

Over on Cyborgology, my colleague Robin James has a post up about Taylor Swift’s promotion of her new album.  James focuses on two moments in that promotion: on the one hand, Swift has removed her music from the free streaming part of Spotify, on the grounds that it insufficiently compensates her (and others’) labor in producing it.  On the other hand, she released a video, “Blank,” that watches more like an interactive video game.  On James’ argument, both of these strategies amount to an effort on Swift’s part to control and otherwise dictate the terms of her affective labor.  On the surface of it, that’s laudable enough, and certainly the Internet can readily be seen as an enormously complex vehicle for extracting surplus value from its users by getting them to work for free.  As Terry Hart tirelessly points out on Copyhype, Silicon Valley makes a lot of money off of other people’s work, and shockingly little of that money finds its way back to the content industries: Silicon Valley obscures (and does not compensate) the enormous amount of affective labor on which it depends.

Health Informatics, Negative Spaces, and Corporate Privacy

by Gordon Hull

Judge Richard Posner’s well-known application of law and economics to privacy yields results that appear, well, ideological.  First, he considers what individuals do with informational privacy. What is an interest in privacy of information, he asks?  Well, it’s an interest in enforcing an information asymmetry in markets.  Information asymmetry is presumptively bad because it causes distortion in the price mechanism; the price mechanism is in turn the reason that markets can claim to be both epistemically and normatively justified.  They are epistemically justified because market price signals the social value of something much better than any sort of centralized planning process would do, and it does so without introducing all the inefficiencies of an enormous state apparatus.  The price mechanism is normatively justified because it presents no special intrusion into the lives of individuals: we are all free to do what we want and signal (with our willingness to pay) what is important to us.  In the case of privacy, for example, if I present myself or some good I am selling to you, “privacy” basically means that I’m trying to withhold relevant information about that good from you.  If I apply for a job and hide a criminal record, then I’m trying to get you to overvalue me as a potential employee by keeping you ignorant of my past.  Accordingly, the law should not protect such refusals to disclose, and in some cases ought to compel disclosure.  Thus the first part of Posner’s article.

Once More: 'Intellectual Property' Breeds Confusion; Drop it

By: Samir Chopra

Rarely, if ever, does the term 'intellectual property' add clarity to any debate of substance--very often, this is because it includes the term 'property' and thus offers an invitation to some dubious theorizing. This post by Alex Rosenberg at Daily Nous is a good example of this claim:

Locke famously offered an account of the justification of private property, one that Nozick brought to our attention in Anarchy, State and Utopia. The account worked like this: morally permissible private property begins with original acquisition, and that happens when you mix your labor with nature, and leave as good and as much for others. Alas, this “Lockean” proviso is impossible to satisfy. Or at least it is in every original acquisition other than the case of intellectual property. Here one mixes one mental labor with nature—empirical facts about reality, including social reality. Since there are an infinite number of good ideas, the creator of intellectual property leaves as much and as good for others, and therefore has an unqualified right to what he has created.

Brian Leiter’s ownership of the PGR satisfies the most stringent test of private property I know. It’s his creation and he excluded no one else from mixing his or her labor with nature to produce a substitute for or for that matter a complement to his creation.

In light of this fact, the effort to separate him from his intellectual property owing to disapproval of his emails and posts seems rather preposterous.

It has often been proposed--most notably by Richard Stallman, free software's most fiery proponent-that the term 'intellectual property' be junked in favor of more precise usage. That is, when you are tempted to use the term 'intellectual property' use 'copyright,' 'patents,' 'trademarks,' or 'trade secrets' instead. Doing this would enable immediate grappling with the precise nature of the issue at hand--in each named domain there are separable legal and policy issues at play.

RFID Tags and Commodification

by Gordon Hull

In a recent post, and by way of an important paper by Katherine Hayles, I suggested that “insofar as RFID chips negotiate the boundary between informatics and objects, and transitions between those, they should be studied as sites for the primitive accumulation of capital.  That is, they are places where objects can become subsumed into capitalist market structures, while being dispossessed (following David Harvey's terminology) of whatever value they might have had before.”  In the comments, Ed Kazarian suggested that the analysis also needs to think about the role of circulation and the ways that the wide diffusion of RFID tags facilitate the smooth circulation of commodities with the sorts of supply chain management techniques that characterize “just in time” capitalism. Here, I want to try to further that analysis a step or two, in part by complicating the sense in which I was using subsumption.

Aereo, Cable TV, and the Privatization of the Public Sphere

In the most anticipated Copyright decision this term, the Supreme Court today ruled, 6-3 (opinion by Breyer, dissent Scalia) that Aereo’s service for watching broadcast TV online violates the Copyright Act.  Briefly:  Aero operates a large number of tiny antennas.  Subscribers pick a program they want to watch, and get exclusive access to an antenna.  That antenna then receives the broadcast in question, sets it up on a private folder for that user in the cloud, and then streams it to him/her over the Internet.  The broadcast networks sued, claiming that Aereo’s actions constituted an infringing public performance of their content.

There is and will be endless discussion about this case, because it may very well have enormous implications for cloud computing (the opinion tries very hard to limit itself: it includes an entire section about why it doesn’t apply to cloud computing, and the argument hinges on an analogy to cable TV and specific statutory language adopted in 1976 to deal with cable TV).  But there’s something else more interesting, I think, under the radar.  I sort of saw it in the opinion, but it came into sharp focus in Scalia’s dissent, so I’ll start there.

Washington Redskins Lose off the Field

In case you hadn’t heard, it’s been a big week in intellectual property.  The biggest news item in the non-legal press was the Patent and Trademark Office’s decision to cancel several of the NFL’s Washington Redskins trademarks because they were “disparaging.”  This review and cancellation is required by statute, and the decision is generating a fair amount of First Amendment discussion, much of it incautious.  On the Diane Rehm show today, for example, Bruce Fein went completely off the rails:

Copy this Sheep!

A few days ago, the Federal Court of Appeals issued a decision denying patentability to Dolly the Sheep.  Dolly, as one will recall, was the first successful mammalian clone from an adult somatic cell.  Essentially, researchers at the Roslin Institute in Edinburgh took an unfertilized donor egg, replaced the nucleus with one taken from a different animal, induced the clone egg to divide, and implanted it into a surrogate.  Dolly thus came into the world with nuclear DNA identical to that of the sheep from which the donor nucleus was taken, although you could also plausibly say she had three “mothers:” the egg donor, the nuclear donor, and the surrogate.

A patent for a "family traits inheritance calculator"?

Maybe we should reconsider such patents says my (Ghent) colleague Sigrid Sterckx in The Telegraph (UK):

The company never pursued the concepts discussed in the patent beyond our Family Traits Inheritance Calculator, nor do we have any plans to do so." But ethicists nonetheless attacked the proposed use of the technology, as well as the decision by the US Patent and Trademark Office to approve it.

Writing in the Genetics in Medicine journal four scientists led by Dr Sigrid Sterckx of the Bioethics Institute in Ghent, Belgium, said: "It is clear that selecting children in ways such as those patented by 23andMe is hugely ethically controversial."

"I'm a professor." "Oh, you mean you're a content provider to the knowledge industry."

We know that when we publish with commercial presses (and we should include most university presses here, IMO) we are content providers in the knowledge industry. Let's follow the trail with a simple example. 

1) Routledge prices their Philosophy of Race collection at $1185. 
2) Routledge is part of Taylor & Francis. 
3) Taylor & Francis is owned by Informa, "one of the world’s leading knowledge providers. We create and deliver highly specialised information through publishing, events, training, market intelligence and expertise, providing valuable knowledge to individuals, businesses and organisations around the world." BTW, should you wish to invest in Informa, here's their current stock price.

All that by way of saying I really need to read this book.