Category: Culture

Is IP Utilitarian or a Natural Right?

Usually, when we talk about copyright or patents, we focus on the utilitarian aspects of the law.  We generally discuss the merits of specific arguments in a case or the need of the author or inventor to earn a living from her work relative to the social and economic value of that work to the market.  But an ongoing debate among academics, which occasionally seeps into the blogosphere and general reportage, is the question of whether IP law is grounded in natural rights or based exclusively on utility.  Is there a natural right of ownership in the “fruits of labor” that produces a photograph or a photographic invention? Or are copyrights and patents a purely functional bargain between the state and the author or inventor in order to reap the benefits of individual genius?

It would be a mistake to assume that everyone who takes a utilitarian view of IP is an IP critic and that everyone who takes a natural rights view is an IP advocate. I know at least a few colleagues who passionately defend IP but who are skeptical of a natural rights foundation. Among utilitarians, however, there are those who consider the IP bargain a “necessary evil” that should not extend one iota beyond the achievement of the desired outcome (i.e. the delivery of works into the market), and there are utilitarians who espouse a more elastic (and perhaps less cynical) view of these laws. Suffice to say, those who hold the “necessary evil” view are unlikely even to entertain a natural rights perspective of IP and are the ones most insistent upon seeking empirical evidence of IP’s presumed value.

Professor Robert P. Merges of Berkeley Law recently published a paper entitled Against Utilitarian Fundamentalism. It is primarily a work of self-defense in response to a paper written by Professor Mark A. Lemley of Stanford Law entitled Faith-Based Intellectual Property. Lemley had proposed that some advocates of IP law’s status quo are apt to turn a blind eye to empirical data regarding efficacy, clinging instead to “faith” in IP akin to religious zealotry.  This accusation takes direct aim at Merges’s book Justifying IP, in which the author does use the word faith to affirm his belief in the purpose of IP law despite finding no conclusive evidence of its utility that would satisfy, as he says, “an unbiased jury of hardheaded social scientists.”

Of course, one problem with empiricists is that they often don’t admit to their own biases, or to the biases inherent in data (e.g., the overemphasis on standardized testing in American education); and this flaw is central to Merges’s rebuttal—that Lemley is guilty of exactly the same narrow-mindedness of which he accuses his colleague. Beginning with the premise noted above that IP law is a “necessary evil” with the purpose of producing a measurable outcome, Lemley makes a case for an empirical approach to potentially reshaping IP law as minimally as possible to achieve its utilitarian ends. He then accuses Merges (and others) of ignoring empirical evidence as follows:

“Merges refers to his ‘faith’ in IP law, and that is exactly the right word. 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. The adherents of this new religion believe in IP.”

Careful not to accuse all religious people of being irrational, Lemley labels Merges and colleagues as irrational in a religion v. science context. Merges counters thus:

“To compare nonconsequentialist IP theories to irrational, unscientific beliefs is to commit two very large errors. The first is to collapse all ‘opposing’ theories—all those not empiricist/utilitarian—into a single derogatory category. The second and larger error is to raise the empirical/utilitarian theory to the status of the one and only true path, the sole road to enlightenment.”

Lemley’s paper reflects the view that there is no natural rights (pre-political) basis for IP, which means that there is something inherently immoral about departing from utility backed by evidence. He writes…

“If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first.”

Children painting.

To this, Merges cites empirical research into the ethical psychology of even very young children who reveal an understanding that the first “author” of some work or possessor of some object is indeed its “owner.” He quotes one study from 2008, which says, “[C]hildren (6–8 years old) determine ownership of both objects and ideas based on who first establishes possession of the object or idea.”

Photo by nullplus

Can any natural right be “proven” by science?

My own response would be to ask Lemley, or anyone, to provide “evidence” that the free speech, which he identifies as being in conflict with IP, is a natural right itself. Should we conclude that those Framers who initially considered the Bill of Rights to be redundant did not believe in the right of speech? Or is it more accurate to say that the First Amendment is not evidence of this right so much as it is a written affirmation of what we, the descendants of western civilization, innately feel to be a natural right?

Similarly, John Locke’s 17th-century reflections on property are not evidence that modern IP should exist; they are one very smart guy’s articulation of a sensibility felt by many people other than Locke himself.  Coincidentally, Locke’s Two Treatises of Government are also a rebuttal—in that case to Robert Filmer’s over-reliance on the Bible as empirical “evidence” for the divine right of the monarch.

So, is Lemley being fair when he contrasts a “strictly utilitarian” legal principle (which he asserts IP is) with an “obvious” natural rights legal principle like free speech? I’m not sure he is because neither IP nor speech can easily claim anything but a natural right foundation, depending on how far back one is willing to look for written precedent. And one need not go back very far before both IP and speech disappear from the record as protected rights in any modern sense. So, is it not reasonable to consider that the predicate for IP may be just as natural-rights based as free speech, even if we generally prioritize the importance of the latter over the former?

This line of inquiry inspires me to ask a broader question that applies not only to IP law, but to all law:  Is it a science? Yes, law is practical and must rely substantially on relevant data; but unlike one aim of science, which is to discover origins, I would argue that it can be impossible to trace evidence back to the original rationale for a law unless one is willing to admit that the answer may be no more evidentiary than this:  because that’s how we feel about it.

Just because the application of law must stand up to the scrutiny of logic, that does not mean its predicate may not be emotion—or to use Merges’s more accurate word, deontological.* Legal scholarship looks for precedent, which even looks to Scripture in some cases. But there has to be a point at which precedent is unavailable, and the scholar, or legislator for that matter, is striving to intellectualize emotion rather than admit that collective emotion can be a perfectly valid rationale for creating a law.

What authority really dictates that “all men are created equal”? The American Declaration of Independence? Written long before all people in this country were remotely treated as equals? The Bible? Hardly. At this point in history, equality for all persons is an innate core value that is felt by hundreds of millions of people regardless of how diverse their religious, cultural, economic, and social views may be. And it is absolutely possible to feel a moral sense about such things without knowledge of any particular doctrine of record. Conversely, what if one were to assemble empirical data to reveal certain social benefits of inequality? We have citizens who think this way, so why not follow their rationales? To quote Merges …

“There are ways of reasoning that are not based on strictly empirical data. And belief in these forms of rationality does not equate to ‘faith’ in the pejorative sense. People reason in nonstrictly empirical ways about what is right, and what is wrong, and have done so for a very long time.”

Even the most mundane, utilitarian law can reflect some underlying moral principle. A local ordinance passed to install a traffic light at an intersection can begin with a communal agreement that safety, usually of children, overrides whatever inconvenience or cost will be incurred by the addition of the light. Does the community, in this case, search for empirical evidence that supporting the safety of its children achieves a broader utilitarian end in the national interest? Probably not.

The traffic light is clearly utilitarian, but the underlying rationale for installing it is a mutually-felt sense of the right thing to do for its own sake. And, as Merges points out in regard to IP law, it doesn’t actually matter if some people in the town council meeting have a completely different rationale for installing the traffic light, because they can still discuss and debate the best approach to installation with their neighbors.

Referring to what he calls “midlevel principles,” Merges uses two examples in which two IP attorneys, scholars, or legislators can easily debate and discuss all of the salient aspects of applying IP law—statutes, caselaw, etc.—without agreeing on the underlying rationale for IP’s existence in the first place. “People with divergent foundational beliefs can and do engage each other in spirited and productive policy debates. They have, in other words, much to say to each other,” Merges writes in direct response to the following statement by Lemley:

“If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.”

Aside from provoking the above question as to what extent law can fairly be called a science, Lemley’s exclusionary statement seems to assume that the “evidence” that IP “reduces creativity by others” is conclusive. Given that scholars of equal merit passionately debate this very topic, how is Lemley’s view not a leap of faith in its own right?  Like religious scripture or artistic expression, the truth in empirical study is often in the eye of the beholder; and Merges’s point is based on his observation that the evidence to-date is “inconclusive,” which is not the same as rejecting data that points in a clear direction.

With regard to IP law, as with many areas of policy, there is always a danger in going too far in any one ideological direction. Taking an overly-utilitarian view of IP can sap the spirit of the principle by treating the author or inventor as a machine to be tweaked and maximized toward his/her greatest efficiency of output. Likewise, an overemphasis of the natural right principle without empiricism could produce a kind of self-fulfilling maximalist framework—though I don’t know anybody who advocates such an approach.

Meanwhile, in the casual, public debate, people who are not trained in the law transition between the natural right and utilitarian perspective all the time without really noticing. For instance, when fans show support for a musician who doesn’t want a politician using his songs, they’re reflecting a natural rights sensibility, and one that is—ironically enough—not generally supported by copyright’s utility. This suggests that even people who don’t give IP much thought innately feel that the author or inventor is indeed the natural “owner” of a work; and to Merges’s point, this in itself does not preclude reasonable debate on the application of IP law as a matter of utility.

*Deontic – of or relating to duty and obligation as ethical concepts.

CORRECTION:  This post as originally published mistakenly identified Mr. Lemley as a professor at UCLA. His paper was published in the UCLA Law Review.

Image by ivelinradkov

Reality Check – H.R. 1695

Photo by stefanocarocci

H.R. 1695, The Register of Copyrights Selection and Accountability Act, passed in the House of Representatives last week with a vote of 378-48.  As the bill moves to the Senate, many of the usual suspects in anti-copyright circles have vowed to fight its full passage into law. By “fight,” I assume these groups will repeat a bit louder the same fictions they began saying when the bill was introduced.  I have already responded to the assertion that this organization change will adversely politicize the role of Register; but there is also at least a muttering insinuation out there that 1695 is somehow a rebuke of Librarian Hayden herself.  And because politics breeds narratives that often have little to do with the issues or the record, I thought a review of the record as a simple timeline might be helpful.

1897 —  As indicated in at least two posts, the creation of the Copyright Office within the Library of Congress dates back 120 years and was predicated on a function very different from the role of the office in a modern—let alone digital—world.

1970s—Present — Unofficial discussions among policymakers and copyright experts about the proper structure and location of the USCO have been happening for decades.

Summer 2013 — The House Judiciary Committee begins preliminary hearings as part of its comprehensive review of copyright in the United States.

Fall 2014 — The Committee accepts recommendations on restructuring the Copyright Office, and among these are proposals to make the Register a presidential appointee just like the Librarian.

June 4, 2015 — Representatives Judy Chu (D-CA) and Tom Marino (R-PA) present a discussion draft of the CODE Act, which includes a provision to make the Register a presidential appointee.

June 10, 2015 — The LOC announces that Librarian James A. Billington will step down as of January 1, 2016.

February 24, 2016 — President Obama announces his intention to nominate Dr. Carla Hayden as Librarian of Congress. Anti-copyright voices respond almost immediately with ebullient expectations that Hayden might reshape copyright policy.

August 2016 — Anti-copyright organizations declare that the FCC’s “Set-Top” Box proposal has “nothing to do with copyright.” Because this view does not square with Register Pallante’s testimony on the matter, these groups cite this difference of opinion as “more evidence” that Pallante is beholden to corporate rights holders.  Neither Pallante’s remarks on the FCC proposal nor her official testimony on a wide range of issues supports these criticisms.

September 2016 — Dr. Hayden assumes her position as Librarian of Congress. In that same month, Public Knowledge appears to be leveraging the FCC-related momentum when they release a “report” comprising innuendo, anecdote, and opinion to accuse Pallante and the entire USCO of “regulatory capture” by major rights holders.

October 2016 — Register Pallante is effectively fired by Dr. Hayden, sparking much speculation in the blogosphere. Regardless of what really occurred at the LOC, Pallante’s ouster is portrayed by anti-copyright organizations and pundits as Dr. Hayden “cleaning house.”

December 2016 — Dr. Hayden announces plans to use Survey Monkey to crowdsource input regarding the next Register of Copyrights. In all likelihood, this move is not well-received by Congress in light of the fact that the House Judiciary Committee had begun to consider making the Register a presidential appointee at least sixteen months prior to Dr. Hayden’s nomination.

March 23, 2017 — Co-sponsors Rep. Bob Goodlatte (R-VA) and Rep. John Conyers (D-MI) along with 29 bi-partisan cosponsors introduce H.R. 1695.  The bill passes out of committee with a vote of 27-1 then passes the full House 378-48 on April 26, 2017.

Following their standard MO, institutions and individuals opposed to copyright—and who might have been hoping that Dr. Hayden would reshape policy—have tried to portray 1695 as a fast-track, Trumpian power-grab from the new Librarian. This false narrative is further distorted by the optics—namely that Dr. Hayden is the first African American woman to hold the position.

But the record is what it is. There is nothing fast-track about reorganizing an office that opened more than a century ago under radically different circumstances.  And the on-record discussions and plans now manifest as H.R. 1695 predate by more than a year both the nomination of Dr. Hayden and any clear expectation that Donald Trump would become President.

The bill was introduced by a 26-term Representative who was present at Selma, was a founder of the Congressional Black Caucus, and who introduced the legislation to make Martin Luther King, Jr’s birthday a national holiday; so any implications of racism in some kind of Trump v Hayden story are as ideologically absurd as they are chronologically impossible.

Finally, the primary motivation for making the USCO independent of the LOC is that they simply perform two distinct functions.  Any hope on the part of anti-copyright interests that Dr. Hayden–or any Librarian–would dramatically reshape copyright policy solely by virtue of the organization chart, is whimsical at best.  Such an incoherent approach would undermine both the Copyright Office and the Library of Congress.

Yelp Claims Contradictory Rights

Chameleon photos by leisuretime70

Imagine Elizabeth Proctor runs a corner café in a small town and that Abby Williams has held a grudge against Elizabeth ever since the former beat her out for cheerleader captain back in high school.  So, feeling especially vindictive one afternoon, Abby writes a nasty review of Lizzy’s café on Yelp, complete with invented details about bugs and other health violations.  In response, Elizabeth sues Abigail for defamation and wins her case, and the court issues an injunction that includes an order for Yelp to remove the libelous reviews.  But the website refuses to remove the reviews even though they’ve been held to be defamation under the law …

Perhaps it’s folly to contradict the opinions of I don’t know how many attorneys who filed a dozen amicus briefs on behalf of Yelp in a case now heading to the California Supreme Court, but I’m gonna.  Because I believe the concerned parties—and this includes news media publishers whom I consistently support—may be overstating the hazardous implications of the California Appeals Court decision in the case of Hassell v Bird.

In 2013 Ava Bird posted negative reviews about San Francisco attorney Dawn Hassell on Yelp. Hassell believed the reviews to be defamatory rather than honest criticism. She sued Bird and won on a default judgment because Bird failed to appear in her own defense. Whether the reader would agree that Bird’s reviews were defamatory is immaterial at this point for two reasons: 1) the default judgment settles the matter as far as the law is concerned; and 2) in the context of what this case is now about, let us at least agree that online reviews can easily be abused by a bad actor, or a competitor, to defame a person or business.  (On a side note, Hassell’s firm has a lot of positive reviews on Yelp.)

In its judgment, the court issued an injunction, which included an order for Yelp to remove Bird’s reviews.  This is a standard form of relief provided by courts in such cases. When an entity is not a named party in a litigation (i.e. they bear no liability for any harm), but the non-party is indirectly supporting some harm being done, the non-party can be prevented from continuing to support the harmful conduct. (See earlier post about Equustek v. Google.)

A typical example would be a court order that Visa and MasterCard stop processing payments for a named defendant in a case, regardless of the fact that these companies bear no liability for any harm that may have been done to a named plaintiff. If you were harmed by defamatory statements on a web platform, and proved defamation in court, you would naturally want the material removed even if you would not—and could not—hold the platform responsible for the harm you received.

But when it comes to complying with this type of injunctive relief, the owners of web platforms get a little antsy; and this includes the news media platforms, who filed an amicus brief in this case emphasizing the importance of comment sections to the overall vibrancy of journalism in the digital age. Other amici, including the EFF, the ACLU, and several web platforms, all assert that if the injunction ordered by the California Court of Appeals is upheld, this will harm due process, free speech, and the liability shield in Section 230 of the Communications Decency Act (1996) that is accorded to online service providers.

Although it is a habit of many site owners to behave as though the removal of any content is a slippery slope toward censorship, let’s remember that in just this one case, the plaintiff had to prove defamation in court and pray for injunctive relief—and that was in 2013, which is about 730 trillion tweets ago, just for perspective. But the real complication in this story comes when websites assert their interests under both the First Amendment and Section 230, because the two are fundamentally at odds.

First Amendment or Section 230:  Pick One

In simple terms, Section 230 of the CDA protects websites and other service providers from liability stemming from the actions of its users. The underlying premise for this protection is that the platforms and providers are not “publishers” of the content (i.e. they are not the speakers). Section 230 is an important protection and one that indeed enables sites to function without undue risk of litigation. But the amici filing on behalf of Yelp also claim that Yelp and all web platforms have First Amendment rights at stake in Hassell, and the problem is this:  if you’re not the speaker, you can’t claim a First Amendment right of speech because you’re not speaking! (read that as Lewis Black).

Yelp wants it both ways. They want the liability shield afforded by Section 230 on the basis that it is not the speaker but also want to claim First Amendment rights as if it were the speaker. Sometimes, web platforms claim to be protecting the free speech rights of their users, and this can be a valid claim in many instances.  In fact, this concern appears central to the news media sites, who unquestionably have a right to support the free speech inherent in the dialogue between their journalists and the readers who write comments. These parties even point to several intriguing statistics suggesting that reader comments can, in many ways, improve the quality of their own reporting; and this should not be undervalued.

Nevertheless, I would argue that a site like Yelp, which trades substantially in consumer reviews of businesses on a local level, is already a very different forum from the comments section of a news site. More to the point, it is a forum that is uniquely vulnerable to someone acting with malicious intent to defame a specific proprietor. It seems that it would be far easier to demonstrate how a libelous review might meet the standard of “defamation” under the law than it would be to prove that a comment on a news story rises to this level of harm.

Still, if a comment on a news site were to spark events akin to a “Pizzagate,” the party who wrote the comment can be sued; and the site(s) hosting the defamatory content should be ordered to remove it—though I would think they’d want to do so voluntarily for the sake of their own reputations.  What if Bird had said that Hassell was running a child porn ring through her law firm? Would we still be seeing the same response from Yelp and the other petitioners? Because from a purely legal standpoint, she might as well have written something equally outrageous since free speech does not protect defamation, regardless of how extreme or mild the defamation may be. And although it is true that websites often rightly defend the speech of their users, that motive simply does not apply in this case because Bird’s reviews became unprotected speech the moment they were held to be defamatory.

Section 230 is Not a Blank Check

The due process piece of this puzzle gets a little deep into the weeds, and I will admit that there may be procedural complaints at play of which I am unaware; but as a general observation, the crux of Yelp’s due-process argument here appears to be based on the same paradoxical premise that the site can be both a speaker and a non-speaker at the same time. For instance, I offer the following from Yelp’s brief filed in 2016:

“The court reached its conclusion only by pretending that Yelp is nothing more than the ‘administrator’ of its website, ignoring Yelp’s role as a publisher of third-party authored speech and its First Amendment right to control its own website. [Emphasis added]

The court of appeal combined its unwarranted rejection of Yelp’s due process and First Amendment rights, with an unprecedented narrowing of the previously robust protection provided by the Communications Decency Act, 47 U.S.C. § 230 (“Section 230”), to deny Yelp the federal immunity it would have received if Hassell had sued it. The court exalted the form of the action––namely, the fact that Yelp was tactically not named as a party—over the plain language of Section 230 and Congress’ clear intent in enacting it to protect websites from actions that treat them as publishers or distributors of third-party content.” [Emphasis added]

In paragraph one, Yelp is a publisher; and in paragraph two, it is not a publisher. Yelp asserts its First Amendment right to control its own website, which is certainly the case; but the liability shield provided by Section 230 is still predicated on the assumption that said control does not place them in the role of publisher (or speaker). But Yelp seems to be implying that if Hassell had named them in the suit–something she had no reason to do–they would then be defendants accorded a hearing and consequently have been able to argue their Section 230 right to not remove Bird’s reviews.

But nowhere in the statute is there any implication that a website does not have to comply with a court order to remove specific content, whether the site is a party or non-party to a litigation. In fact, the CDA actually began as an enforcement provision—a legislative effort to keep online pornography away from kids. Make of that what you will, but the addition of Section 230 was designed solely to limit the liability of service providers from any harm that may stem from content posted by third-party users. Neither its language nor its intent appears to excuse web companies from complying with generally applicable law; and an injunction directed at a non-party is a generally-applicable, standard form of relief. Website owners have no more right to ignore these orders than the payment processors mentioned above.

While I sympathize with some of the principles being argued by Yelp and the other petitioners–particularly those of the news media sites who are both publishers and hosts of third-party content–I believe the arguments being made are seeking a decision that would be unbalanced. Any party that is held in a court of law to be harmed by some conduct should have access to the same remedies in the digital age as in the pre-digital age. Moreover, the cost of causing harm via the web is virtually zero while the cost of proving harm under the law still requires a substantial investment of time and financial resources.  This alone should allay the fears of site owners that the decision of the appeals court in this case potentially swings the pendulum toward greater censorship online.