Anyone with interest can preview my remarks for the opening plenary of IPSC here. The actual talk is going to be an abridgement of this (already abridged) summary of the project; in the intellectual speed-dating that IPSC has become, 10 minutes is all we get.
“Who Should Pay for Progress?” to Kick Off IPSC 2014 at Berkeley
Well, this is a very nice surprise. It looks like my current research project, “Who Should Pay for Progress?”, has been selected as the first presentation of the opening plenary session of the 14th Annual Intellectual Property Scholars Conference at UC Berkeley in two weeks. IPSC is the largest annual gathering of the intellectual property law academy, with over 150 scholars from all over the world presenting this year. As in past years, the organizers seem to have reserved the six plenary spots for relatively junior scholars–one of the more generous practices of an unusually generous scholarly community. Obviously I’m extremely grateful to the conference organizers for selecting my project; I’ll do my best not to disappoint.
Remembering Dan Markel
Dan Markel was killed yesterday. Dan was a distinguished young law professor at Florida State University, and founder of PrawfsBlawg, one of the first and most successful group law professor blogs (his blogging colleagues have posted a heart-rending notice of his death). Everyone I know in the very small world of legal academia seemed to know and like Dan. I knew him, and I liked him. But frankly, I didn’t know him as well as I should have.
We were facebook friends; we exchanged likes on posts about our professional milestones and on photos of each other’s children, we sent one another birthday greetings (his always came with a “happy bam bizzle”). I did a stint guest-posting on Prawfs a couple of years ago, and Dan’s warmth and gratitude was palpable–over email. But we worked in different fields–he in criminal law, I in intellectual property–and never found ourselves at the same conferences or workshops. We never worked on the same faculty. So we never really formed the kind of personal relationship so many of my friends and colleagues are now reminiscing over in their grief.
I always figured I’d get the chance to get to know Dan better in person someday–we were both relatively young; he often found himself in New York; we both had long careers ahead of us, or so I thought. Since hearing about his death, I’ve been trying to wrap my head around the notion that this someday isn’t coming, and everything I’m ever going to know about Dan is already in the world, somewhere, fading. I’ve spent the past few hours trying to gather some of these rosebuds, and it breaks my heart.
I never realized how much my own professional life has been lived in Dan’s shadow, as if I’ve always been walking two steps behind him. We were, briefly, contemporaries in law school; he completed his service on the Harvard Law Review just as mine was starting. When I decided I wanted to be a law professor, I took advice from Dan’s blog, not realizing he had founded it less than two years earlier (shortly before he started his academic career). He had two young sons, his “bears,” each only a few months older than my two boys–tonight I can’t think more than a few seconds about this without weeping or trembling. Finally, he spent the past decade trying to build and defend a theory of his field that depended not on detached calculation of cause and effect, cost and consequence, but on a fundamentally moral sense of what we as a democratic community of equals owe to one another, and how we should go about trying to fulfill those obligations. It’s only recently occurred to me that my career is shaping up to be about the same thing.
Because I never really got to know Dan personally, all I’m ever going to have to remember of him is his undeniable warmth and the ideas he left behind in his writing. And his ideas resonate deeply for me, though I suspect he and I came to our intellectual commitments by somewhat different paths. Dan and I were both raised in the Jewish faith. He embraced and lived that faith; I, ultimately, rejected it in favor of a more secular humanism. Whatever the sources of our intellectual commitments, though, we each came to believe strongly in equality, in democratic solidarity, and in the dignity of moral agents. Perhaps most importantly, we each came to believe that these values are something we owe to one another as individuals, but practice together as a community. The difference between us is that Dan actually built a community around himself that reflects these values, and tonight as I listen to that community mourn in disbelief, I’m painfully in awe of the achievement. If I am still trying feebly to interpret the world, Dan in his too-brief life really did change it. I wish I had done more to help him.
Platforms, Interoperability, and Academic Workflow
One of the things I do to feel productive (read: procrastinate) during periods of writer’s block is try to improve my workflow. (Another is blogging, clearly.) This largely entails seeking out and tinkering with various software tools to increase the usefulness and accessibility of the research materials I use to write and teach. An e-library of hundreds (thousands?) of articles and books doesn’t just organize itself, you know. Plus, highlighting and annotating on my tablet is far easier and more flexible than reading on a laptop. And of course, I want to make sure I avoid duplicating or losing my research work no matter what device I’m using or where I’m using it, so I need good cloud storage/backup and synchronization tools too. So on days when the words aren’t flowing smoothly from my mind to the page, I often find myself in a situation something like this:
Workflow Automation, per xkcd
A propos: lately I’ve been tinkering with combinations of software to achieve three distinct goals:
- Organizing my library so old sources and notes are easy to find and new sources are easy to add, wherever I happen to be working on a particular day, without depending on an always-on high-speed Internet connection.
- Linking my library to my tablet for easier reading and annotation of new sources.
- Synchronization and backup storage to propagate any work I do on one device across the entire system and insure it against loss from hardware failures.
And the most satisfactory software solutions I’ve found for these problems are, respectively:
Of course, there’s a problem: two of these solutions will work together tolerably well, but getting all three of them to work together is a tremendous pain. And this appears to be by design. Let me explain.
Peer Review and the Legal Academy
The story making the rounds late last week about a peer-review ring recently busted by academic publisher SAGE was fortuitously timed, as it coincided with the completion of my first referee’s report for a legal academic journal. This led me to some (perhaps unoriginal) reflections on the state of legal scholarship.
A Personal Take on Aereo
Until yesterday, I was an Aereo subscriber. My family lives in a fairly large co-op apartment complex in Upper Manhattan. Our building’s residents have collectively contracted for our own broadband internet service, so we get a cheap, reliable high-speed connection without having to deal directly with a cable company or purchase all their bundled services at retail. For entertainment, we pay for subscription streaming services like Netflix, Amazon, Hulu, and Spotify, supplemented with occasional purchases of content not available to stream. Collectively these subscriptions actually cost us quite a bit less than the basic cable TV package offered by our local monopolist, TimeWarner Cable (soon to be Comcast), and offer more variety, convenience, and reliability.
One thing we don’t get from this array of IP-based streaming services is live broadcast television. So a few months ago I purchased a digital TV antenna to catch the occasional live sporting event, pbs kids show, or network drama. But our apartment is on a low floor, in a hilly area of the city, surrounded by other late Art Deco-era buildings all built of steel and thick poured concrete sheathed in brick and stone. No matter where in our apartment I put the antenna, I couldn’t pick up the over-the-air broadcast TV signals being transmitted from just a few miles away in midtown Manhattan–signals that are reliably received in homes across the street, or a few stories above mine, or in less-densely built areas as much as eighty miles away.
If I were able to pick up such transmissions using the antenna I bought, copyright law would afford me the right to view the broadcasted programs in my home with “a normal circle of a family and … social acquaintances“, and even “time-shift” by recording them for viewing later. But my television set is in a physical space that happens, due to particularities of the physics of the propagation of electromagnetic waves, to differ from the physical spaces all around it in that broadcast TV signals have particular trouble reaching it.
What I needed was to put my antenna slightly outside my apartment and send the received signal inside to my television set. Enter Aereo. As described by the Supreme Court in its opinion (with some simplification on my part):
Aereo’s system is made up of servers, transcoders, and thousands of dime-sized antennas housed in a central warehouse…. [O]ne of Aereo’s servers selects an antenna, which it dedicates to the use of [a] subscriber (and that subscriber alone) for the duration of the [subscriber’s] selected show. A server then tunes the antenna to the over-the-air broadcast carrying the show. The antenna begins to receive the broadcast, and … Aereo’s server begins to stream the … show to the subscriber over the Internet.
Two commentators I admire and respect have written (here and here) that this system can be seen as analogous to a homeowner putting their TV antenna on the roof of their house to get better reception. There’s a bit more to Aereo than that, but truly, that’s all my family wanted: an antenna in a more suitable location than our living room, with a wire connecting it to our TV. We signed up.
Yesterday the Supreme Court decided that city-dwellers like me who use Aereo’s remote antennae are more like cable customers subscribing to a common antenna than like suburban homeowners who put antennae on their roofs, and that Aereo is more like a cable company than a property owner renting us some useful space and equipment. Justice Breyer’s decision for the majority was deeply purposivist, relying on an interpretation that the community-antenna (CATV) provisions of the Copyright Act of 1976 reflected a broad-brush Congressional policy about what types of uses of broadcasted content require a license. Those policies appear to depend less on “technological difference[s]” than on social ones–the different permutations of arrangements between content owners, users, intermediaries, and the physical resources under their control.
The key phrase in the opinion, to my mind, is the one that implies that families like mine “lack any prior relationship to the [copyrighted] works” transmitted over the air by their broadcasters. To be clear, my relationship to the works is based on real estate: I own a home situated a few yards away from where television broadcasts can be pulled from the air, for free, by means of a consumer-grade antenna. This appears not to be the type of relationship that the Supreme Court thinks entitles me to contract with a third party for the use of nearby real estate and equipment to pull those same broadcasts from the air. As a consumer of entertainment content, this conclusion strikes me as a minor inconvenience–the content is not worth that much to me, and I suppose I will simply go without it now. As a law professor though, the conclusion strikes me as…curious.
Most commentators are focused on the implications of the Court’s ruling for cloud-based services, and that is an interesting question. But for me the more interesting question is what Aereo says about the framework of laws and practices by which we allocate responsibility for the creation of new knowledge. In the classic telling, copyright is a tool by which we purport to satisfy a social obligation to creators of new works of authorship. Depending on whom you ask, this obligation is either a collective obligation to establish appropriate incentives for authors, or a moral one in recognition of the authors’ desert or dignity. Aereo certainly didn’t call into question whether such an obligation exists, and I don’t either. My question is how a society allocates among its members the burdens of satisfying that obligation. This is a question that, as it turns out, is occupying a lot of my research and thinking lately.
Through a combination of the principles of electromagnetism played out across the natural and built environment and the historical accidents of technological progress and time-worn statutes, we seem to be in the position of allocating the burdens of supporting authorship at least in part via the real estate market. That seems to me an arbitrary basis by which to allocate these burdens. Indeed, it seems so arbitrary that there must be some quite important reason why the Aereo majority–which took a rather free-wheeling approach to determining statutory purpose–would feel the need to preserve it.
Understanding what those reasons might be is a bigger project than a blog post can contain. I will continue to work on the problem. For now though, I think I’ll watch some TV.
“Dilution at the PTO”–Slides from Presentation to the ABA-IP Section Spring Meeting
Last week I presented the latest findings from my work-in-progress, “Dilution at the Patent and Trademark Office”, at the inaugural Scholarship Symposium at the ABA-IP Section’s Spring Meeting. This includes the first presentation of my findings on famous marks. Slides from the presentation can be found here.
“Dilution at the Patent and Trademark Office” Selected for ABA IP Section Annual Conference Symposium
My current work-in-progress, “Dilution at the Patent and Trademark Office”, has been selected for inclusion in the inaugural Intellectual Property Scholarship Symposium, to be held on the first Day of the ABA IP Section’s 29th Annual Intellectual Property Law Conference. Details about the Conference may be found here.
NSA Withdraws Claims Against Parody Merch
Via Public Citizen, which challenged the NSA in court, it appears the agency has (wisely) withdrawn its trademark-like claims against Zazzle for the sale of parody merchandise mocking the agency. Here’s the key admission by the NSA, from Attachment 1 to the settlement agreement:
Section 3613 does not prohibit the creation or sale of items intended to parody NSA where no … impression of approval, endorsement or authorization is conveyed, nor does it require the prior approval of the Director of the National Security Agency for the creation or sale of such items.
NSA acknowledges that [the challenged] designs were intended as parody and should not have been viewed as conveying the impression that the designs were approved, endorsed, or authorized by NSA. NSA encourages Zazzle to reexamine the content of its users, including the content identified in [NSA’s March, 2011 C&D Letter], in light of this clarification.
H/T Jim Tyre.
