My Borderlands 3 DLC Idea: Claptrap Files for a 1201 Triennial Review Exception Hearing

I. Story Of a Lonely Robot

In the Borderlands series, a megacorporation (“Hyperion”) made a product-line of 3-ft tall, one-wheeled robots: the CL4P-TP Steward Bot. In the very first moments of the first game, the player is introduced to one such unit, who introduces himself as “Claptrap.” This robot became the face of the game (the way Teemo became the face of League of Legends, despite over 100 other characters to choose from), and “Clappy” has been a major feature of Borderlands 2 and 3 (often as comic relief). In one DLC add-on for Borderlands 1, Hyperion reprogrammed Clappy to lead a revolution (“The Robolution”) to kill enemies of Hyperion, but the effort backfired and Clappy also fought against Hyperion. The incident led Hyperion to discontinue the product line and destroy all existing models—however, Clappy survived the extinction event. A decade later, as the sole survivor of his species, Clappy undertakes the task of building a companion; he asks the player to find and salvage parts from CL4P-TP units found in the course of the game’s adventures. There’s just one obvious, glaring question:

Is Clappy violating section 1201 of the DMCA with this quest?

17 USC 1201 generally prohibits getting around the technological measures on a device to use it in some way outside of the intended user experience. It’s actually a lot more intricate than that; there are a lot of exceptions to the prohibition, and there is a cycle of reviews (to be held every three years, the fancy word for which is “triennial”) built into the statute.

 

II. Analysis of 1201 (a)(1)(A) Violation

Is Clappy “circumventing a technological measure”? It is reasonable to presume so, given the context of the story. We know that Clappy was built as a Hyperion robot, and accordingly has information and ability to bypass Hyperion technological measures. In a DLC episode for Borderlands 1, Clappy wages an open, violent revolution against the Hyperion corporation, which could be reasonably interpreted to indicate that Clappy is no longer an employee of Hyperion. Furthermore, in Borderlands 2, a software upgrade for Clappy is illegally obtained and installed in Clappy. Clappy’s situation is therefore like that of a former employee who has the knowledge to circumvent technological measures but no longer has the authority to do so.

Is Clappy accessing a work that would be protected by copyright law? Computer software is generally subject to copyright (though some exceptions apply).  If Hyperion were able to get a copyright registration on the CL4P-TP software, they would likely have a strong case against Clappy for violating section 1201 of the DMCA.  Clappy’s best defense would likely be to argue that the software at issue is not subject to copyright, because that would stop the case before it even got started. However, that argument seems unlikely to work because the software is almost certainly subject to copyright.

Nothing else in the statute is relevant to Claptrap’s case. His project is not subject to (g) encryption research exception or (d) library/non-profit/education research. Clappy is arguably a government entity (if the Crimson Raiders are a government entity), but he is not acting pursuant to an investigation, so (e) is not relevant. A CL4P-TP is not an analog device, so that also makes paragraph (k) irrelevant. Paragraph (i) is not relevant because (i)(B) requires the absence of a conspicuous disclosure of the gathering of personal information—it is reasonable to assume that Hyperion has made very conspicuous disclosure about the wanton invasion of privacy that the CL4P-TP unit perpetrates. Paragraph (j) exception for security testing does not apply. There might be a dedicated robot to prevent minors from accessing material on the internet (the Borderlands 2 Captain Scarlett DLC did feature a robot obsessed with censorship and copyright enforcement, but that robot was distinctly not of the CL4P-TP product line). The only other paragraph that might be relevant is (f), which allows for reverse engineering to allow for interoperability. The game does not provide enough details to be certain as to the nature and extent of Clappy’s circumventing of the CL4P-TP parts the player brings back to him, but I think it’s safe to presume it goes beyond the exemptions allowed in part (f) of the statute.

 

 

III. Hyperion Abandonment: Claptrap’s Issue

Another argument for Clappy’s defense is that Hyperion abandoned their claim to any rights in the CL4P-TP unit after the ill-fated Robolution and subsequent discontinuation of the product. This would be an interesting case for a few reasons. First, copyright abandonment is a largely untested area of law. Whispers of abandonment (or “orphan works“) almost always involve a defunct company or a confusing acquisition of a company in which it is unclear who holds the claim to the copyrighted material.

The abandonment argument highlights some of the meaningful differences between copyright and trademark protections. There was a trademark case in which a broadcast network had stopped the production of an entertainment program, but continued to claim rights in that trademark. Crucially, trademark does not have a fixed time limit (copyright does) and trademark is explicitly connected to an actual use in commerce (copyright does not require a use in commerce). This is why abandonment in copyright is a very different situation from abandonment of a trademark. The fact that Hyperion stopped making or selling CL4P-TP units would likely affect the trademark, but not the copyright related to the product.

Perhaps the ultimate test for copyright abandonment is whether a company takes action against an alleged infringer. In some non-legal sense, the copyright is “abandoned” when no one fights against the infringement of the work. But in more accurate legal terms, a copyright is abandoned when no one is in a position to fight against the infringement of the work. Discontinuing the CL4P-TP Steward Bot product, scrapping existing stock, and ceasing service on existing products might be taken as strong evidence of trademark abandonment—but not of copyright abandonment.

Because robots of this sort are still new, it’s not entirely clear how patent law might apply. Indeed, it’s currently unclear just how patent law is meant to fit with software, so the layers of technology involved in a CL4P-TP unit are something well beyond the contemplation of the current configurations of US intellectual property law.

Fun fact I learned while doing research for this post: Robot Patent does not have to do with what we currently think of as either patents or robots.

 

IV. Clappy, the Exceptional CL4P-TP?

Could Clappy seek an exception during a triennial review, as provided in (a)(1)(c)?

Given the five factors listed in (a)(1)(C), (i)-(v), Clappy has a reasonable chance of having his case approved as an exception. It’s unclear how he would fare as to (i), but he wins on (ii) as a matter of preservation; (iii) doesn’t particularly apply unless someone wants to do research on CL4P-TP units; (iv) is an interesting point that ties back to the abandonment question, but to the extent the Hyperion is not interested in making more CL4P-TP units, there is no market impact (and only making 1 copy for non-commercial use is a negligible market impact anyway). Finally, the discretionary factor, (v), is up to the Librarian of Congress to determine whether Clappy’s project is an appropriate exception to this section of the DMCA. The circumstance of being the sole survivor of a species seeking companionship is a likely cause for such an exception.

 

V. Final Thought: Is the Player Violating 1201 by Helping Clappy?

The player doesn’t provide specific means of violating 1201 (a)(1). The primary concern for the player is that 1201 (a)(2) and 1201 (b)(1) both prohibit devices whose purpose in the circumvention of technological measures which protect copyrighted material. But the player doesn’t provide such a device; the player just gets the CL4P-TP parts themselves. This is effectively like dumpster diving for old cell phones or laptops. That, by itself, isn’t a violation of 1201— which makes sense because there are uses for those objects that don’t involve the data stored on those objects. That said, there might be a contributory infringement claim under a different statute, as (c)(2) explicitly clarifies that 1201 leaves infringement claims open to the possibility of contributory infringement.

 

 

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What Slay the Spire can Teach About Digital Media Access Decisions

When I heard that iTunes was scheduled for destruction, I was baffled and alarmed. I have since learned that the service is being split and re-branded, in a sort of platform-mitosis. But I had several conversations in which my interlocutors were not persuaded of the merits of media ownership over streaming media. Having collected my thoughts, and faced with Google’s Stadia announcement as well as even the phantasmal threat of an iTunes closure, I hope to make a case here that media ownership reduces wildly unpredictable and uncontrollable elements of media consumption.

Slaying The Spire, With Just a Little Luck (Or a Lot of It)

Slay the Spire is a rare case in which combining a lot of ideas into a game doesn’t make the game feel chaotic and confusing. The game consists of progressing through the levels of an eponymous spire, each level consists of some encounter or event—very, very often, a combat event. Combat in this game is a resource-management card game: using a limited pool of “energy,” cards are played that either deal damage or prevent damage from being taken. Each card costs a different amount of energy, so strategic choices have to be made to optimize offense and defense. At the end of a combat, the player is presented with three choices for a new card to add to the deck. The same deck is carried through the spire, so each completed combat presents an opportunity for new cards for future encounters.

Slay the Spire gets its replay value from the unpredictable factors that permeate the game. There is randomness within the combat encounter, as a player’s options are defined by the cards that are drawn from the deck on any given turn. Then there is further randomization in the events themselves (what enemies you fight, if any, on any particular level of the Spire). Slay the Spire adds randomness in the building of the player’s deck: there are no guarantees that you will even have the option to add a certain card to your deck in a particular run of 50 levels in a Spire. (I once spent an entire run through a Spire trying to assemble a deck centered around one specific card that would greatly amplify my defensive capabilities—I never even saw that card, and inexplicably still got to the final level.) And I haven’t even discussed the role of Relics in the game, which can provide small bonuses or fundamentally alter game mechanics. All of these unpredictable, randomly-generated chances and choices give the game replay value and make it interesting, fun, and challenging. Putting choices out of a player’s control can be an element of a great game, but it’s not a part of a great day.

 

Unpredictable Elements

There are a lot of components involved in the everyday digital tasks that fill (and sometimes sustain) our lives. The device has to work properly, it has to connect to a network, the network has to function, and we also rely on the server that hosts the data we want. Anything from dropping a cell phone to a power outage to an unplugged cable somewhere in a distant city can cause the entire process to fail. It is really amazing and awe-inspiring that the entire system works as well as it does. Of course, sometimes, something goes wrong.

For purposes of today’s discussion, I think it’s helpful to divide the possible problems into two categories: those in the user’s control, and those outside of the user’s control. So, whether I charge my cell phone, whether I spill water on my computer, whether I use a program correctly—those are, practically speaking, in the domain of the user. However, the city’s electrical power grid is not something a user can single-handedly maintain or repair. Similarly, the user cannot control conditions at a distant server farm, or control the telecommunications network that links the user to those servers.

This, it seems, is where I diverge from so much of my demographic cohort. I don’t want my access to media to rely on these two additional components (telecommunications and data-holding servers). Maybe I would feel differently if I had better experiences, but I have repeatedly been unable to play games or watch movies because at least one of these components has failed. I have encountered this setback for over a decade- in some cases, I have experienced it daily, over the course of months. In contrast, when I think back to those halcyon days in which I owned my media, the only obstacle was a scratched DVD or a VHS tape that was just too-well-loved (we all have a childhood story of the tape that we watched so many times that the playback became warped and distorted).

Conclusion

The unpredictable nature of the available choices in Slay the Spire keeps an otherwise repetitive game novel and engaging. By forcing the player to consider various probabilities and possibilities, the game creates challenge and the kind of frustration that invites a player to learn, try again, and do better next time. I cannot understand the kind of person who willingly invites this kind of challenge and frustration into the process of trying to listen to music or watch a movie. Conversely, if a player had control over any of these random elements in Slay the Spire, the game would be easier. For both Slay the Spire and media access, generally, the same rule applies: the more control one has over the variables, the less challenging the experience.

There are other issues implicated in this debate that I didn’t touch on: the data privacy questions that come with streaming and DRM protections, the reasonable efforts of artists and publishers to protect their copyrights and profit from their works, the legal status of digital goods, etc. Those issues deserve consideration (which is why I have written about them before and will do so again), but I wanted to keep my focus narrow for the sake of clarity. My perspective on this question can be distilled to one personal point: I do not feel that there is evidence to support the claim that US telecommunications networks are more reliable than I am. I simply trust myself more than I trust those corporations, their services, and their infrastructure. Likewise, I trust myself more than I trust the media companies that provide the platforms and media. This is true on a day-to-day basis (for telecom), and it is true for long-term planning (media providers make no promises that they will last longer than my interest in the media they provide).

I can trust electricity providers—they have proven themselves. Power outages certainly do occur, but their frequency, cause, and duration are within acceptable parameters.* Maybe it comes down to what inconveniences, unknowns, and probabilities we are willing to accept. I can live in a world where my electricity is out for maybe 30 minutes per year. I’m not excited to choose a world in which I can access my own leisure at the leisure of so many other people.

 

 

 

 

*The fact that power failures necessarily cause network failures would be a meaningful riposte if my point were strictly confined to unadjusted uptime comparisons.

How Pirates Change Games (It’s Usually Not An Improvement)

Sea Of Thieves: It’s Not Called “Sea of Cool Guys” – Mike Krahulik

Sea Of Thieves is a game where people who want to be pirates can be pirates. Some players really, really  get into the role. Every online game community has experienced some trolling and griefing; there are always players who invent their own game, though it’s always the same game, in which the objective is to make other players unhappy. The developers of Sea of Thieves specifically designed space for that kind of player—unlike other games which seek to curtail negative behavior and ban players who ruin a good time for others. In a game about pirates, wanton aggression has a place.

 

When You’re a Professional Pirate…

It took me a while to understand how copyright infringement (and counterfeiting) came to be called by the same term that was previously reserved for attacking a ship, killing the crew, and stealing their stuff. The two crimes don’t really look similar: copying a digital file rarely involves a cutlass or a flintlock pistol, taking barrels of rum or chests of gold, and typically doesn’t involve boats at all (except when moving a lot of counterfeit goods internationally, I guess).

I think the term makes more sense from the perspective of the owners of the rights. Pirates of the 15th-19th centuries were hard to find, hard to predict, and hard to pursue. Sometimes their attacks wouldn’t be noticed for months, as it was hard to get good cell phone reception in the mid-Atlantic in the 1600’s. So, when music, movies, books, and games started getting copied and distributed, and rights owners struggled to identify who was doing it, where they were, or what they might do next, as they completely disrupted the industry’s ability to sell and distribute their wares, I imagine pirates came to mind.

 

Countermeasures

Media industries reacted to piracy differently, as best fit the particular medium. The music industry moved away from physical goods and into the digital marketplace. The iTunes Music Store was, in many ways, like the P2P networks that had threatened the industry, except that Apple was the only one seeding and they charged for each song.

The video game industry took a different approach. After a short-lived effort to encrypt physical copies, the industry moved to a digital distribution system. This was easy enough, and platforms like Steam and the Play Station Store were already moving the industry in this direction. The next move, however, was for the internet to start shaping the way games were played: online gaming became increasingly popular, and developers and publishers realized that it was easier to keep track digital copies if devices had to connect to the company’s servers. It was a natural fit: the games already involved internet connection, so it wasn’t much more work to have the serves check to see if players had authentic copies of the games. Because the game required player to be always online, this method became known as Always-On DRM. When it worked well, it was something that honest players would never notice or think about. But it didn’t always work so well.

Rebellion

The new system worked well for some games. Other games… well, suffered. Sometimes, the online connection requirement was obviously completely artificial and frustrated players because the setup made no sense. This exacerbated problems in cases of poor execution: when a server couldn’t connect, it was even more frustrating when the server wasn’t necessary for the game experience. Even today, not everyone has a consistent, stable, high-speed internet connection (especially in the US). Many players just wanted a simple, single-player experience, and Always-On DRM interfered with that. The method created an environment that only allowed players to play when the company was able to facilitate it; if the server was down, or the connection was slow, the game was unplayable. This upset people who paid for a leisure product and then found out they could not use it at their leisure. By increasing friction and fuelling resentment against the game industry, some game companies suffered as they tried to implement Always-On DRM. The artificial inclusion of Always-On DRM to the reboot of the incredibly popular and successful video game SimCity is credited with its failure (notably, the execution of the Always-On DRM was sub-par, as the server was frequently down or buggy).

 

Pirate By Design

Sea of Thieves found success as a game by embracing a certain attitude that the rest of the industry had been fighting for decades. The developers made a space for people who want to undermine the work of others. So far, it’s been an interesting experiment that I can only predict will culminate in the coagulation of that particular kind of trolling, griefing player. I see it as a kind of prison in which the inmates believe they are at a theme park. Maybe the game will eventually give us some kind of data about trolls who revel in ruining the joy of others. Maybe it will teach us something about pirates.

There is already a lesson about piracy for video games. In the early 90s, piracy was built into the business model of some companies. They called it “shareware,” and the idea was that people would copy and distribute a portion of a game. The developer hoped that this would serve as a sort of advertising, and people who enjoyed the shareware portion of the game would then purchase the full game. In 1993-4, idSoftware proved that this model was feasible with one of the most popular games of the 90s: Doom was distributed widely as a shareware product and the company made enough profit for the head programmer and the lead level designer to each purchase a high-end sports car. This year, idSoftware released Rage 2; unsurprisingly, the new parent company, ZeniMax, did not opt for a shareware distribution model. The video game industry has changed over the last 30 years. It takes a special combination of product, customer, and ecosystem for it to be a smart choice to give away a third of your product for free—but it’s not an impossible dream.

Today, piracy remains a problem for the video game industry, but new legal challenges (some with more legitimate basis than others) have proven more urgent: legislation of loot boxes, esports contracts, prosumer sponsorship deals and disclosures, copyright infringement within the game, and copyright infringement for streaming and video uploads.

Maybe that’s the best reason to keep the term “piracy” for copyright infringement that involves copying the entire work and distributing for consumption as a counterfeit or inauthentic product: there are so many ways copyright can be involved in a video game in the current digital ecosystem, have different terms for the different infringements is nice.

EU Directive On Copyright in the Digital Single Market: Three Not-So-Scary Possibilities

When evaluating the EU Directive on Copyright in the Digital Single Market, there are three general categories of outcomes: Little/no impact, Moderate-but-endurable Impact, Apocalyptic/Catastrophic. It turns out that there are pros and cons to each.

NOTE: Here I consider the DCDSM in the context of arts and entertainment, with a particular focus on user-generated content production. I note at the outset that I suspect there is a very different analysis for the impact of this directive on news media and news dissemination.

 

1. Little-To-No Impact

EU Implications

As a directive, this passing of the DCDSM does not accomplish much. The directive is only an edict that member states must pass their own laws that accomplish the general purposes of the directive. The first question the DCDSM poses, then, is how different nations will approach this directive.  Some nations might do very little, passing only milquetoast legislation and then neglecting to enforce it. Other nations may openly and pointedly refuse to comply with the directive, daring the EU to take punitive measures  against the non-compliant nation. Each country will have to decide how to balance the force of the directive (which is, itself, of debatable strength) with the risks of losing access to some major technology platforms.

Each nation is surely aware that there is a question of whether companies would rather cease operations in countries whose requirements are too onerous. Twitter or YouTube may find that the cost of meeting a nation’s copyright requirements outweighs the benefits to the company of continued operations in that nation. There is a bold example of this behavior in recent memory: When China demanded too much from Google with regard to censorship, access to user’s email and other data, Google simply decided to discontinue operations with the largest consumer base in the world. If Germany asked Twitter to pay for each link that users disseminate through their service, Twitter might prefer to avoid that tax by no longer offering Twitter to Germany.

 

US Implications

Another of the looming questions that this directive poses is whether there will be implications for non-EU jurisdictions. When the EU passed a law that increased user data protections, many companies restructured their data privacy systems across all regions. Some companies might consider a similar approach when faced with the DCDSM—it is sometimes easier to structure a business model to meet the highest requirements placed on the business. Many companies have struggled to navigate copyright claims (and data privacy, consumer protection, and advertising laws) in the wild frontier of user-generated content and digital media. They may see new, stringent laws as an opportunity to approach these problems with new tactics—though companies will have to consider whether their tactics will obliterate their business.

2. Moderate-But-Endurable Impact

In some ways, this is the worst for users and the best for large stakeholders.  This outcome keeps YouTube and Twitter afloat, imposes inconvenience and malcontent on users, but the obstacles are just minor enough to navigate. Maybe YouTube and Twitter charge a small subscription fee to cover their increased costs (not unlike Netflix or Hulu). Maybe the large, familiar platforms lose some of their functionality, but not so much functionality that the platform feels entirely transformed. Under this scenario, most of the things that most users do still mostly work, and therefore the overall satisfaction of the user base is only slightly lessened.

 

 

3. Apocalyptic, Catastrophic Annihilation of Social Media As We Know It

Histrionic

People who have the most to lose in the worst-case scenarios are beyond deeply concerned. The reaction of content creators on YouTube seems to be that this is among the worst things to ever happen for their business model. These people consistently cite existing problems with YouTube’s ContentID system and the copyright strike system as the basis for their concern (and moderating content on a social media platform is no easy task), and predict that this law will exacerbate those existing problems. Their reasoning is that YouTube has already demonstrated the challenges involved in trying to regulate copyright claims on YouTube: algorithms get things factually wrong, there is no presumption of de minimis use, journalism and parody uses are rarely recognized, etc.

The Way Forward

The worst case scenario that content creators fear is the death of the major platforms: YouTube, Twitter, Facebook (and subsidiaries like Instagram), will all lose economic viability or become so difficult to use in meaningful ways that users will abandon them, and the internet itself will die as a direct result. I see plenty of alternatives to the death of the internet (that’s something I expect the telecommunications industry to achieve before anyone else), even granting a severe impact to the operations and function of major (and minor) platforms.

A key fact about the internet is that users will always find ways to navigate the new space. The internet is a battleground for a particular kind of warfare: a fight in which new strategies are always being discovered. New platforms rise to replace old ones (no matter what the reason for the death of the last one was).  New methods and systems are born out of the effort to get around whatever obstruction frustrated the users.

Users will find ways to continue their current behavior, working around the impositions of the new laws. Not allowed to Tweet a link? Users will develop a new system for pointing people to information (humans have been creating systems for this purpose for millennia). Not allowed to stream a video game with a song it? Sing over it. Users are creative: successful content creation in the new environment makes creativity an imperative. The large copyright holders may one day (if not this time around) live to regret promulgating too draconian of an edict of creativity.

 

3A. The Backfire Scenario, Or, The Poetic Justice of Getting What You Ask For

“Success is a menace. It fools smart people into thinking they can’t lose.” – Bill Gates, as depicted in Pirates of Silicon Valley

One likely response to the DCDSM is that users will create more of their own content. If using existing content becomes prohibitively difficult, more users will create what they cannot afford. This will have a detrimental effect on the stakeholders who expect to gain the most from the new laws: the rights holders of existing popular works. These stakeholders have felt for decades that the internet was undermining their profits by allowing people to access movies and music without paying for it. As users create original content instead of incorporating these existing works, the works of the larger establishments will enjoy less dissemination and recognition by the public. The audience for these works will shrink as fewer people are exposed to their works. Large corporate stakeholders will need to invest more in advertising campaigns to acquaint the public with their products; they will try to replace what content creators were doing (for free and more effectively) for them.

For most of the 20th century, large corporate rights holders had every reason to think that they were indispensable—that they were the only way that people could access arts and entertainment. The Napster case demonstrated that the internet had the power to undermine their channels of distribution. User-generated content is the current argument that the content itself can also be produced outside of the control of these large stakeholders. If the DCDSM sparks an apocalypse of the current generation of UGC platforms, the phoenix that rises from those ashes is surely the end of the 20th century entertainment business model. In this scenario, users truly leave the large rights holders behind.

 

Conclusion: Probably Not Really That Bad For Art and Entertainment

Everyone will have to wait and see what form the Directive takes as it influences national laws. I think this is the kind of law that the internet is ready to work around. If it has devastating effects on existing platforms and services, I am quite sure that new platforms will emerge that promote entirely original content, unshackled from existing copyrighted content. The emergence of new solutions is the story of the internet.

Dancing Carefully Through An Analysis in Intellectual Property Law

Epic Games Dances Into Players’ Wallets

The hit game of 2018 (released by Epic Games in 2017) Fortnite is getting multiple lawsuits from different performers regarding the use of dance moves available for use within the game. The game allows players to command their avatars to dance, and players may select from a range of available “dance emote” options – available for individual purchase by players (generating over billion dollars for Epic). The plaintiffs allege that some of these options are depictions of the dance moves of celebrities and entertainers.

This case hits most of the usual notes of hard cases in intellectual property: where is the line between homage and plagiarism? How much use of a thing violates fair use? What can be protected by intellectual property law? This case is also an example of how easy it is to think incorrectly about an issue in intellectual property. If we focus too much on understanding why Epic might use the dances of famous people, we can fool ourselves into thinking this is a trademark case. When we approach this case by first assessing what subject matter is at issue, we recognize this as a copyright case. The fact that a dance can be understood, culturally, as a kind of signature is what can lead us into an incorrect analysis of this case as one of trademark and not copyright.

 

It Might Be Your Signature Move, But You Don’t Sign Checks With It And You Don’t Get a Trademark Registration For It

Movements or motions can act as a kind of signature for people—especially those in the public view who want to be remembered. Carol Burnett ended her show with a tug on her ear.  Johnny Carson imitated a golf swing after delivering punch lines in his nightly monologue—Conan O’Brien made a joke of trying to incorporate overly elaborate “signature gestures” into his show during his debut monologue. YouTube performer PewDiePie has made a point to regularly associate himself with a “BroFist” gesture. Politicians often have an associated hand gesture—like Bill Clinton’s half-fist-with-thumb-on-top. A person’s idiosyncrasies make it easy to identify, imitate, and remember them—and imitating a celebrity’s signature movement can invoke an audience’s positive attitudes towards that celebrity. Invoking the goodwill associated with a person for the benefit of someone else sounds strikingly similar to a case of trademark infringement.

So, can dance moves be protected by trademark? If we think of dance as a signature, then it sounds like a kind of source indicator– people associate the dance with an entertainer. But it’s not really used to indicate the origin of a good or service:  NBC doesn’t use Turk’s dance to inform viewers that they’re watching the show Scrubs. And this is why the trademark analysis is the wrong way to think about this case: although the reasoning in the infringement looks like the reasoning involved in trademark infringement (to take advantage of the fame of a celebrity), the subject matter (a dance) is not normally in the domain of trademark law.

It might not be impossible to get a trademark registration for a dance, but it would be difficult. Maybe a dance submitted to the trademark office as part of widely-run marketing campaign could meet a trademark standard. Or a product or service is actually provided with – or because of—the dance might qualify for a trademark registration. I’m not sure if either would earn a trademark registration (it would depend lots of other facts in the trademark application), but it would take a very high level of creativity and ingenuity to secure a trademark registration for a dance.

 

So It’s a Copyright Question?

When we start with the question of subject matter (and not by wondering why someone might copy a dance), we recognize that a question about the depiction of a dance is most likely a question under copyright law. Copyright law recognizes dance as a medium of artistic expression. It makes sense that, if plays and scripts can be protected by copyright, (and copyright protects musical compositions and performances), then copyright can protect the work of dancers and choreographers in ballets, musicals, etc.

Copyright attorney Shanti Sadtler Conway explained, “The U.S. Copyright Office views individual steps the same way it would individual colors or words.” This is interesting for a few reasons, one of which is that colors and words are better defined and understood than the concept of “an individual dance step.” In this case, there are certainly at least several “steps” depicted in each of Fortnite’s dance emotes- the dances appear to last at least 10 seconds. Is that a paragraph’s worth of content, when converted from choreography to prose? A paragraph can be enough to be punishable infringement.

 

The Seminal Question of the Internet: “Is it FAIR USE?”

The two misconceptions I see most often about fair use are 1) “it’s fair use if I don’t make money off it,” and 2) “it’s fair use if I only use a little bit.” Those two things are often among the things that a judge might consider when evaluating whether a use is protected under 17 USC 107, but using even a small percentage of a work might still infringe a copyright.  So, Epic might try to claim fair use, but I’m skeptical about how the court might receive that argument. It might work, but a for-profit, non-transformative, non-parody use of a work does not point to fair use – and, indeed, it likely concedes the point that Epic used someone else’s work.

 

Is This Appropriation of Personal Likeness?

It’s worth reflecting on how easy it was to think of this case as a trademark issue. The reason the case looked like a trademark question was that the alleged infringement appears linked to the fame and celebrity of certain individuals. There is another area of law that can address this kind of claim: right of publicity. These state laws touch on ideas in both copyright and trademark law, and apply them specifically to the depiction or representation of a person.

In 1988, Ginger Rogers lost her case against a filmmaker who made a movie referencing her in the title (though the film was not about her, some general elements evoked her career as the Hollywood dance partner of Fred Astaire). She brought claims under trademark law as well as claims regarding her right of publicity. Sadly for her, the court held that “minimally relevant use of a celebrity’s name in the title of an artistic work” was not a violation of Rogers’ rights. Although it wasn’t a Supreme Court decision, the case became the landmark for the use of celebrity references in artistic works that are not about that celebrity. (Maybe this loss is why Rogers did not even bother suing Madonna for the mention of Ginger Rogers’ name in the 1990 song “Vogue.”)

Legal questions of the use of personal likeness in video games are getting more attention in recent years, especially for athletes in sports games. (This, in turn, has caused questions of the copyrights of the tattoos of those athletes.)  It’s not clear whether a depiction of a dance associated with a performer infringes a right of publicity. If the court can accept the legal concept of a “signature dance move”, then the claim seems to meet the test given in the Rogers case. It would be very interesting to see if this litigation expands the claims that can be brought under right of publicity laws.

 

Conclusion: Trademark, Copyright, and Right of Publicity Have Similarities, but They’re Still Legally Distinct

Thinking about the use of someone else’s fame makes it easy to think of a trademark issue, but in this case, a fundamental analysis precludes trademark and points to copyright. However, remembering the role of fame leads to thinking about possible claims under right of publicity laws.  In legal analysis, it’s important to address the most fundamental questions before speculating on motive or intent.

Trademark law has a lot of purposes and roles. One function of trademark law is to protect the goodwill, fame, and celebrity that a person or company worked to build up, and prevent other people from taking advantage of that work without permission. However, not every case of using someone else’s fame is a trademark case.

 

 

Endnote- Patents

Can dance moves be protected by patent? This is a non-starter. 35 USC 101 outlines eligibility for patentable subject matter as “new and useful process, machine, manufacture, or composition of matter.” Obviously, choreography isn’t considered an invention or discovery that fits those categories.  Debates about patentability are fierce and complicated, especially as humanity explores new territory in medicine  and computer science.  I wonder whether dance will be considered for patent when it is programmed into a hologram’s performance (the choreography itself will likely be exempt from any patent) or when it is created by an AI system that is patented (I think this will be a more complex argument over whether this is a process for creating choreography).

 

Holiday Special: A Lengthy Response to Prof. Samir Chopra’s Essay on Intellectual Property

Last month, an essay from Professor Samir Chopra came to my attention. This essay posits that “the term ‘intellectual property’ is nonsensical and pernicious.” The essay is partly at the intersection of philosophy of language and intellectual property law, so I took an interest. I felt that this essay needed a careful and thorough response.  To carefully and thoroughly respond to the essay, I have included it in its entirety here, with my own analysis and commentary presented in underlined text to differentiate it from the words of Professor Samir Chopra. I found the original essay here: https://aeon.co/essays/the-idea-of-intellectual-property-is-nonsensical-and-pernicious?u

 

 

The grand term ‘intellectual property’ covers a lot of ground: the software that runs our lives, the movies we watch, the songs we listen to. But also the credit-scoring algorithms that determine the contours of our futures, the chemical structure and manufacturing processes for life-saving pharmaceutical drugs, even the golden arches of McDonald’s and terms such as ‘Google’. All are supposedly ‘intellectual property’. We are urged, whether by stern warnings on the packaging of our Blu-ray discs or by sonorous pronouncements from media company CEOs, to cease and desist from making unwanted, illegal or improper uses of such ‘property’, not to be ‘pirates’, to show the proper respect for the rights of those who own these things. But what kind of property is this? And why do we refer to such a menagerie with one inclusive term?

“Property” covers a lot of ground: from my pen to my computer to my clothing to a claim on land. In law and in other areas, English speakers refer to many different menageries with a single inclusive term. Here the author sets out a foundational point for his pathos and, to some extent, his logos: that the term “intellectual property” covers too much disparate content to be legitimized in language. Accordingly, I will set out my foundational skepticism of this assertion: Our language abounds with examples of categories of different discrete things. My argument against this assertion will largely be a disagreement over: 1) the point at which a category becomes too overly broad to be a useful descriptor in a language, and 2) whether “intellectual property” exceeds that point of being overly broad.

 

The phrase ‘intellectual property’ was first used in a legal decision in 1845 and acquired formal heft in 1967 with the establishment of the World Intellectual Property Organization (WIPO), a specialised agency of the United Nations that represents and protects the commercial interests of holders of copyrights, patents, trademarks and trade secrets. The ubiquitous use of ‘intellectual property’ began in the digital era of production, reproduction and distribution of cultural and technical artifacts. As a new political economy appeared, so did a new commercial and legal rhetoric. ‘Intellectual property’, a central term in that new discourse, is a culturally damaging and easily weaponised notion. Its use should be resisted.

I am deeply skeptical of the claim that “intellectual property” is “culturally damaging” or “easily weaponised.” I think this history lesson fails to understand ask or answer a crucial question: Why did the term “intellectual property” become ubiquitous in the digital era of production, reproduction, and distribution of cultural and technical artifacts? Foundational concepts of authorship, ownership, publisher, distributor, inventor, etc. were not new in this era—so one must ask what brought about this change. I posit that the answer has much to do with the drastic increase in the population for whom intellectual property laws became relevant in this new era. Intellectual property became a ubiquitous term because the laws became relevant to more people and to more circumstances.

 

There are four areas of US federal law linked under the rubric of ‘intellectual property’ that we ought to keep separate in our minds. In an essay published in The Politics of Law (2010), Keith Aoki defines each as follows. Copyright protects ‘original works such as books, music, sculpture, movies and aspects of computer programs’ that are ‘embodied or fixed in a tangible medium’. This protection does not require a work to be entirely novel and extends only to its ‘original aspects’, to ‘a particular expression … not the underlying ideas’, and not to ‘independently created or similar works’. Under the umbrella of copyright law are original, concrete expressions, not ideas – the same story and script idea can generate many distinct movies, for instance. Then there are patents, which cover ‘new and useful inventions, manufactures, compositions of matter and processes reduced to practice by inventors’ with ‘rigorous requirements of subject matter, novelty, utility and non-obviousness’. Patents protect realised inventions and ideas in gestation – eg, here is a new method for collecting rainwater, and this is a machine that does just that. Trademarks (and the related ‘trade dresses’) meanwhile protect consumers from ‘mistake, confusion and deception’ about the sources of commercial goods: the ‘G’ in Gucci, Apple’s apple, a distinctive packaging. Finally, there are trade secrets, or secret information that confers economic benefits on its holder and is subject to the holder’s reasonable efforts to maintain its secrecy.

Fair enough—this is functional overview of the four main areas of intellectual property for the purposes of this essay.

 

Each regime has a public-policy justification: copyright law incentivises the production of creative works, which populate the public domain of culture. Patent law lets inventors and users benefit from the original ideas disclosed in a patent filing, and aims to make research and development economically feasible by producing investment in new technologies and products. Trademark law protects customers by informing them that their preferred vendor – and not some counterfeiter making inferior goods – is the source of the goods they’re buying. Copyright- and patent-holders extract monopoly rent from protected subject matter, or its concrete expression, for a limited period. Such limited exclusivity is meant to encourage the further production of original expressions and inventions by providing raw materials for other creators and inventors to build on.

Here I detect that the author is either playing a rhetorical trick or has missed an opportunity to reconcile the disparate members of this category. Although the author presents each category as having a different, unrelated public-policy justification, this paragraph could be re-written (with only an increase in factual accuracy) to present these areas as sharing a fundamental public-policy justification: economic incentive (or assurance) for undertaking a creative endeavor. The differences are matters of the kind of creative effort that one undertakes (artistic, scientific, entrepreneurial, or some combination of these).

The areas of intellectual property often connect with one another: a patent leads to the creation of a business, which then needs trademarks, whose advertising is subject to copyright, and the company may protect future innovations by trade secret. Artists create brands. Companies sign deals for their trademarks to be presented in copyrighted media. To suggest that this areas of intellectual property are distant bodies floating in separate galaxies is, at best, a misrepresentation of the media landscape of the digital era.

Most importantly, these areas of intellectual property bear tremendous resemblance to one another, even when they are not identical. Although the statutes for their official registration differ, they share common concepts as their foundation: originality, legitimate ownership (not stolen), functionality (for the thing that it is), public interest/safety, and other broad factors that match our cultural sense of justice and fairness regarding one’s labors. Their differences are important legal distinctions of statute. Their similarities are the same philosophical relations between abstract work and justice in the context of society.

 

 

In the United States, media and technology have been shaped by these laws, and indeed many artists and creators owe their livelihoods to such protections. But recently, in response to the new ways in which the digital era facilitates the creation and distribution of scientific and artistic products, the foundations of these protections have been questioned. Those calling for reform, such as the law professors Lawrence Lessig and James Boyle, free software advocates such as Richard Stallman, and law and economics scholars such as William Landes and Judge Richard Posner, ask: is ‘intellectual property’ the same kind of property as ‘tangible property’, and are legal protections for the latter appropriate for the former? And to that query, we can add: is ‘intellectual property’ an appropriate general term for the widely disparate areas of law it encompasses?

It’s generous to assert that media and technology have been shaped by IP law. Napster destroyed the record industry and reshaped music distribution while flagrantly flying in the face of laws that ultimately defeated the errant operation. Even in the same paragraph that references Lessig, the author gives no recognition to the other categories of laws presented by Lessig in his seminal work on the subject of copyright in the digital era: Code. The author further ignores Lessig’s famous argument against Judge Easterbrook’s position that combining areas of law is folly; Lessig argued that there may be some merit in considering areas of law that occur at the intersections of related, connected areas of other laws. (See: What The Law of the Horse: What Cyberlaw Might Teach.)

 

The answer to all these questions is no. And answering the latter question will help to answer the former.

To some extent, the law has already found this to be the case: many of the laws governing real or “tangible” property do not apply to intellectual property, and vice-versa. The law recognizes differences between different types of property and adjudicates accordingly. Unless the author propounds that intellectual property deserves no kind of legal protection, I’m not sure his argument can get off the ground. He will later establish that the law indeed distinguishes between tangible property and intellectual property, but I argue that he will not demonstrate any nullification of intellectual property or its need for legal recognition.

 

Stallman is a computer hacker extraordinaire and the fieriest exponent of the free-software movement, which holds that computer users and programmers should be free to copy, share and distribute software source code. He has argued that the term ‘intellectual property’ be discarded in favour of the precise and directed use of ‘copyright’, ‘patents’, ‘trademarks’ or ‘trade secrets’ instead – and he’s right. This is not merely semantic quibbling. The language in which a political and cultural debate is conducted very often determines its outcome.

Stallman also thinks that the use of the term “creator” of various works is too lofty of a term. I am all for semantic quibbling—that’s a huge part of why I write any of my blog posts, and none more so than this one—but there needs to be compelling cause to favor one side in a semantic battle. I will contend throughout this essay that the author presents no convincing argument to establish that proposed linguistic change will produce the desired results.

 

Stallman notes that copyright, patent, trademark and trade secret law were motivated by widely differing considerations. Their intended purposes, the objects covered and the permissible constraints all vary. In fact, knowledge of one body of law rarely carries over to another. (A common confusion is to imagine that an object protected by one area of law is actually protected by another: ‘McDonald’s’ is protected by trademark law, not copyright law, as many consumers seem to think.)

I have already addressed the common ground for the described categories of IP. I have also broadly outlined my argument that merely having different categories within a category does not make the use of the term for the larger category illegitimate. Furthermore, the example given holds no weight because even accepting the proposed linguistic change does nothing to promote the desired outcome; Consumers will not become educated in the difference between subcategories because the larger category is dismissed from the lexicon. Consumers may regularly confuse McDonald’s with Burger King, yet we do not blame this on the use of the term “fast food.” Consumers also confuse scientific principles and geographic locations, yet we do not ascribe a lack of expertise in these areas of academic or practical knowledge to the use of some overly broad term of category. The author implies a jump (or else this is truly a non-sequitur) between the use of the term “intellectual property” and consumer confusion over details of copyright and trademark law. However, the connection is never causally established, therefore there is no reason to believe that the tragic situation will be improved by refusing to use the term “intellectual property.” Additionally, the author does not explicate the harms caused by such consumer confusion; perhaps the author feels that such confusion will hinder effective pro se litigation against a corporation. (If this confusion causes problems for a pro se litigant, it is unlikely that the litigant’s challenges end there.) Finally, consumer confusion in other areas is not blamed on the use of broad categories, which gives further reason to doubt the connection between broad categories and confusion in the case of intellectual property.

 

Such diversity renders most ‘general statements … using “intellectual property”… false,’ Stallman writes. Consider the common claim that intellectual property promotes innovation: this is actually true only of patent law. Novels are copyrighted even if they are formulaic, and copyright only incentivises the production of new works as public goods while allowing creators to make a living. These limited rights do not address innovations, which is also true of trademark and trade secret law. Crucially, ‘intellectual property’ is only partially concerned with rewarding creativity (that motivation is found in copyright law alone). Much more than creativity is ‘needed to make a patentable invention’, Stallman explains, while trademark and trade secret law are orthogonal to creativity or its encouragement.

Stallman is generally wrong on this point. Indeed, he may have worded this point to be precisely wrong: General statements about a very general category are more likely to be taken as correct because they embrace a broad and loose understanding of the relevant concepts. It is the very general statements about very specific points of a law that are more likely to be false. The claim posited by the author regarding intellectual property and innovation requires a specific understanding of innovation that does not match a broad understanding of creating a new thing. In saying that only patents incentivize innovation, the author rejects the possibility of artistic works as innovative, as well as the goods and services that might be intertwined with a trademark or trade secret.

(While we’re playing word games: it is fun that the author gave “novels” as an example of copyright, when novelty is a requirement for patents but not, by that word, a requirement for copyright… though copyright does require originality—the difference is a difficult hair to split, but not an impossible one.)

 

 

A general term is useful only if it subsumes related concepts in such a way that semantic value is added. If our comprehension is not increased by our chosen generalised term, then we shouldn’t use it. A common claim such as ‘they stole my intellectual property’ is singularly uninformative, since the general term ‘intellectual property’ obscures more than it illuminates. If copyright infringement is alleged, we try to identify the copyrightable concrete expression, the nature of the infringement and so on. If patent infringement is alleged, we check another set of conditions (does the ‘new’ invention replicate the design of the older one?), and so on for trademarks (does the offending symbol substantially and misleadingly resemble the protected trademark?) and trade secrets (did the enterprise attempt to keep supposedly protected information secret?) The use of the general term ‘intellectual property’ tells us precisely nothing.

I consider the last sentence either woefully poorly considered or purely bad faith. To claim that the “use of the term ‘intellectual property’ tells us precisely nothing,” is to claim a manifest falsehood. The author already defined “intellectual property” in his third paragraph as consisting of four categories of law. This paragraph further abides by those parameters. This essay and this paragraph rests on the presumption that “intellectual property” outlines a set of laws and concepts. Therefore, the term delineates those things encompassed within that category from those things outside of that category. Therefore, the term “intellectual property” tells us something: it tells us that one of four categories of law is implicated. Regardless of intent, it is difficult to read this as anything other than a sophist’s rhetorical trick to either be polemic or deceitful. Sloppy use of language in an essay attempting to govern language for better clarity and transparency is an abysmal and shameful failure.

I think I can get on board with the initial claim here: members of a category should be appropriate members of that category. A term that captures conflicting members of a group is not, we may presume, a helpful term. However, this interesting claim is not properly linked to what follows. The claim “they stole my intellectual property” is more informative than “they stole my property.” If the author finds the claim “they stole my property” uninformative, it is only because there are more questions that one may ask: to wit, “what property, specifically, did they steal from you?” (And probably also “who stole it?,” “Did they hurt you?,” and “wait- who?”) However, the fact that more questions can be asked to narrow down the details within a category does not make the category useless, or even destructive. If I ask a friend what they might like to eat, and they tell me “some fruit,” I don’t object to this response because there are more questions to ask—and I certainly don’t assert that “fruit” as a category is destructive or unhelpful because it  contains many candidates within in. That I might narrow this category down to “an apple,” and then to “that apple,” is no reason to object to the category, and such an objection would obliterate the entire role and function of all categories.

The author’s objection here is deeply troubled: the use of the term “intellectual property” tells us a great deal. It tells us that the person was not robbed of money, bodily organs, real estate, or their television. Not only is it as good as the claim “they stole my property,” I further argue that whatever concerns about the possibility for further granularity are not resolved by the use of a subcategory within the broader category. If our victim instead tells us “they infringed my copyright,” there are still questions to ask: is there a fair use claim? Was there access by the alleged infringer? Was it a joint work or work for hire? Is the copyright valid? Is there a registration? Merely narrowing the claim to a more specific subcategory does not eliminate the need for more information to adjudicate or evaluate the claim.

On reflection, there might be another way to understand the author’s objection. Suppose a physician is approached by a person who claims “they stabbed my body!” There are a lot of follow-up questions the physician will ask, and probably first and foremost is: “where did they stab you?” If the physician does not as this, it is because it is entirely obvious from even a cursory glance at the victim. Similarly, if the claim “they stole my intellectual property” is not sufficiently informative, it is because the first cursory glance at the case will reveal the nature of the intellectual property in question.

Even granting all of the claims made in this paragraph, the ultimate harm demonstrated by the use of the term “intellectual property” is that an interlocutor might have to request more information, although the author already notes that even after determining the category of intellectual property, more questions must be asked. I find this far from compelling, and concluding this point with a claim that contradicts the preceding argument does much to convince me that there is no serious merit to this point.

 

 

Furthermore, the extreme generality encouraged by ‘intellectual property’ obscures the specific areas of contention created by the varying legal regimes. Those debating copyright law wonder whether the copying of academic papers should be allowed; patent law is irrelevant here. Those debating patent law wonder whether pharmaceutical companies should have to issue compulsory licences for life-saving drugs to poor countries; copyright law is irrelevant here. ‘Fair use’ is contested in copyright litigation; there is no such notion in patent law. ‘Non-obviousness’ is contested in patent law; there is no such notion in copyright law. Clubbing these diversities under the term ‘intellectual property’ has induced a terrible intellectual error: facile and misleading overgeneralisation.

Once again, the author runs into the problem of entirely rejecting all notions of categories. There are many different areas of “law”; the problems of tort law do not always overlap with challenges in tax law or estate law, which may be different from a point of contention within civil procedure or the rules of evidence for a criminal proceeding. The mere fact that different things reside in a category does not require them to have perfect identity with one another. Though I have embraced the vaguely described axiom that a category must not be too broad or else it becomes useless, the author again fails to persuade me that “intellectual property” is such an overly broad category. There are many acceptable categories in which points of difference and distinction can be found between group members. There are cases within each of the four subcategories of intellectual property which will hinge on points of law that do not overlap (e.g., some copyright litigation will turn on a fair use claim, while others will turn on a claim over the amount in controversy or the time at which a work was registered—in each case, the particulars of the other areas of copyright law will be irrelevant).

I further argue a controversial and esoteric point, not to win on its merits but to further underscore the fundamental philosophical principles underlying intellectual property. The author claims that there is no such notion as “non-obvoiusness” in copyright law. By a strict reading of the statutes, this is correct. An AI that only searches for word matches would agree. However, copyright law has an established rule that some general elements of artistic creation are so well-known, so accepted, and so obvious that it would be unfair to allow them to fall into copyright (see: Scènes à faire). Would 99% of judges or attorneys call this “non-obviousness, but for copyright”? Um… no. No. But-  is this philosophical concept the same kind of effort to reach out to general concepts of justice and fairness regarding one’s work, balanced against a public good? A philosopher could uphold that argument in good faith. This relates to my earlier point that the fundamental philosophical underpinnings of intellectual property, though manifest differently, are the same core concepts across the distinct areas of intellectual property.

Again, I must address the asserted or implied harms. Those debating the intricacies of these laws are aware of the relevant distinctions and limitations. Those who debate fine points of particle physics know which other principles of physics and chemistry might apply- yet we are content to keep such categories as physics, particle physics, chemistry, and science. The author may imply that the use of the term “intellectual property” damages the ability of non-experts to engage in such complex debates. However, this argument would require the assertion that the non-experts are already at a level of understanding that allows them to engage with the relevant statutes and case law, but that these would-be participants of the discourse are only stymied by their confusion over the relationship between copyright and patent law… despite their expert understanding of compulsory licenses or of fair use analysis. I find this an incredibly unlikely scenario, even as a hypothetical.

 

 

Indiscriminate use of ‘intellectual property’ has unsurprisingly bred absurdity. Anything associated with a ‘creator’ – be it artistic or scientific – is often grouped under ‘intellectual property’, which doesn’t make much sense. And the widespread embrace of ‘intellectual property’ has led to historical amnesia. According to Stallman, many Americans have held that ‘the framers of the US Constitution had a principled, procompetitive attitude to intellectual property’. But Article 1, Section 8, Clause 8 of the US Constitution authorises only copyright and patent law. It does not mention trademark law or trade secret law.

This paragraph is non-responsive to itself. The second half does not respond to the first half. I’ll allow a charitable reading of the first two sentences, and take the meaning to be that “anything” that is associated with a creator as constituting “intellectual property” is probably too far; the sandwich the creator ate for lunch would be associated with the creator, would count as “anything,” and I agree that it would be absurd to group that sandwich under “intellectual property.” If this reading seems pedantic, it is because the first two sentences do not provide more careful direction.  The last three sentences of this paragraph are not clearly related to one another. The implication that seems most likely to string these thoughts together is something like, “copyright and patent law are neither principled nor precompetitive, and only trademark and trade secret laws are principled and precompetitive.” That leap is so unsubstantiated and incredulous that it is difficult to engage with—and I had to create it using my best guesses as a reader. Perhaps this paragraph is only included for those who have already accepted the unspoken axioms that underpin the author’s reasoning. At any rate, I find it lacking much more than the suggestion of making an argument.

 

 

Why then does ‘intellectual property’ remain in use? Because it has polemical and rhetorical value. Its deployment, especially by a putative owner, is a powerful inducement to change one’s position in a policy argument. It is one thing to accuse someone of copyright infringement, and another to accuse of them of the theft of property. The former sounds like a legally resolvable technicality; the latter sounds like an unambiguously sinful act.

This seems to be the lynchpin of the entire argument (particularly if the arguments about category are as insufficient as I have found them to be). This paragraph captures the single link that the author presents between the term “intellectual property” and the harmful effects he will illustrate later in the essay. For the amount of work this paragraph has to do, it is tragically wan. The power of the term “intellectual property” is asserted here without substantiation or elaboration, in a manner that suggests that this should be uncontroversial and easily accepted. If the author believes that he is writing something novel and important, he should recognize that the fact that others have not already accepted his position means that he has some uphill climbing to do. This recognition should give rise to a careful and thorough articulation of the foundational points of his argument, in particular the claim that “intellectual property” is a powerful incantation in its own right that grants power to those who utter it. Ultimately, this entire essay will largely succeed or fail based on whether the reader accepts the claim made here: that the use of the term “intellectual property” holds some kind of incredible force that is not found in the terms describing the four named pillars of intellectual property. If the term does not have this kind of special power, the essay fails a cohesive argument, because the use of the term loses all connection to the negative claims about intellectual property made in the latter half of the essay.

This seems like an empirical claim: the population feels a certain way about these words. Even accepting the extreme version of this claim, it’s not clear what the author’s argument is, or whether disusing a term will help. For one thing, “legally resolvable technicality” could describe a very wide range of behaviors, depending on what is meant by “resolvable.” For another thing, this argument seems to rest on a sort of public relations, or brand image, campaign for legal terminology—and that could come into conflict with the realities of law. Based on this paragraph, it’s entirely unclear how the author would feel about describing simple theft of physical property as “the unforeseen relocation of goods and chattel.” I’m not entirely sure what benefit the re-branding brings. The author asserts that the current term “intellectual property” gives power to the “putative owner.” It may be that the author would like to undermine the cultural and social power of the owner of intellectual property to discuss the infringement of their rights. It may be that the author presumes to further a political or social good in this way. If that is the case, the framework of this argument has shifted from philosophy of language to ethics or social/political philosophy. That can be an entirely valid approach, but a good philosopher should not conflate these areas or be unclear about the area to which an argument belongs. Attempting to use philosophy of language to further an ethical or political end can leave the arguments about language sloppy and forced, as they are done only in the service of a desired goal.

This argument also presents a shift in the approach to the problem. Previously, the author addressed categories in a more objective manner, seeking to establish the linguistic and semantic value of a term. Now, the author appeals to populist beliefs and opinions about language (which go unsubstantiated). Perhaps the author is trying to address multiple approaches to language, so as to persuade a wider range of readers. The thoughts of other possibilities are less charitable.

Regarding populist use, this argument fails when confronted by the widespread flagrant disregard for “intellectual property” claims. Using Napster as an example again, there was a tremendous effort by the RIAA and other rights holders to even convince the public that intellectual property and copyrights deserved to be taken seriously, and respected as legally significant. The utterance of the term “intellectual property” has repeatedly failed to command infringers other rights violators to cease their activities.

Ultimately, the author does not support the claim that the term “intellectual property” is objectively and factually empowered in some way. Even making such a claim requires accepting certain axioms about the possible power of language, so this argument may be a non-starter for many readers who do not share such views concerning language.

 

Property is a legally constructed, historically contingent, social fact. It is founded on economic and social imperatives to distribute and manage material resources – and, thus, wealth and power. As the preface to a legal textbook puts it, legal systems of property ‘confer benefits and impose burdens’ on owners and nonowners respectively. Law defines property. It circumscribes the conditions under which legal subjects may acquire, and properly use and dispose of their property and that of others. It makes concrete the ‘natural right’ of holding property. Different sets of rules create systems with varying allocations of power for owners and others. Some grants of property rights lock in, preserve and reinforce existing relations of race, class or gender, stratifying society and creating new, entrenched, propertied classes. Law makes property part of our socially constructed reality, reconfigurable if social needs change.

There is a lot of interesting and controversial content here, but no part of this seems to conflict, on its face, with the use of “intellectual property” as a category.

 

 

Property is made not by the act of mixing labour with fallow land, as John Locke had it in 1689, but by the scaffolding provided by the surrounding legal system. Possession and labour – the much-revered foundations of Anglo-American property law – are insufficient to secure property. Land was acquired from Native nations by treaty; the labour of slaves was stolen; women worked, and still do, for free at home, rearing children, cleaning and cooking; adverse possession law shows a tension between possession and use; in family settings, personal arrangements override formal titles.

Rather than argue over whether this is a misreading of Locke, I will at least insert my own argument that the author’s rejection of Locke is to miss half of the point. The scaffolding of the legal system rests of the philosophical concept of the mixing of one’s labour (a philosophical notion more easily embraced when expanded beyond an agrarian frame of reference). The author’s point about the injustices concerning property and labor are well taken—and the moral outrage one feels regarding these wrongs only underscores the intuitive relationship between possession, labor, and legal title. There is a deep sense, somewhere near our core intuitions about justice and fairness, that possession, labor, and title should relate in a sensible, coherent way—and they should do so according to an arithmetic that we call fairness, or justice, or rightness.

 

 

Legal systems of property are pragmatic and outcome-oriented. They bring about desired social ends through a historically contingent, evolving blend of rights and duties for owners. There is no ‘natural’ or ‘objective’ basis for property; we deem something property because better social outcomes are realised by doing so. If another, better social outcome presents itself, whatever the debate among contending social and political alliances that gave rise to such a notion, we revise our concept of property. The long history of private property usurped for public benefit – in times of war, say, or when building railroads – and the restrictions on the kinds of objects that can be bought and sold, offers adequate testimony for this claim. (The US Constitution’s Takings Clause requires that when such property is taken, rights-holders are adequately compensated.)

 

It’s very controversial whether there is a natural basis for property: some may argue that humans have some kind of innate sense of fairness, and the application of this sense of fairness to the world inherently results in some basic notion of property and rudimentary rules about it. Others think that humans have no innate sense of fairness. Others assert that although humans have an innate sense of fairness, its application to the world to not inherently produce a notion of property. I don’t feel a need to contend for or against any view on the subject here, but it should be noted that philosophers, cognitive scientists, and psychologists and sociologists debate this point hotly enough that it should not be blindly accepted.

The author presents a view that notions of property have changed over the history of the US. A counter-viewpoint might be that claims about property have changed to suit the wealthy and powerful. The author claims that “we revise our concept of property.” Others might argue that “the powerful revise our concept of property on our behalf for their benefit.” Regardless, I am not sure that the author offers the kind of evidence that supports the claim made here. The claim seems to be that notions of property change over time, based on social circumstance. However, the examples given are that the government sometimes overrides the understood notion of property (in the case of building railroads) or the government changes the categorizations of goods (presumably for tariff purposes, though the author is not specific).  Neither of these are different approaches to the concept of property: the former is a recognized violation of property (which is why it is so contentious and why there is often compensation involved), and the second is just a kind of taxation (which for many is also a debated violation of property rights, but mere shifts in the details of a tax code do not constitute a new approach to the concept of property).

 

The US Patent Act of 1870  and Copyright Act of 1976 treat patents and copyrights as kinds of property, therefore suggesting that intellectual property rights should be akin to tangible property rights: that is, ‘perpetual and exclusive’. But legal protections offered to intellectual property assets are utilitarian grants – they are neither perpetual nor exclusive. (Tangible property is said to be perpetual because it is yours till you dispose of it.) Their terms are limited and amenable to nonexclusive use. Patent law offers exceptions for experimental use, and prior-use rights for business methods; copyright law for fair use; trademark law for nominative use; trade secrets for reverse engineering and independent discovery.

The author shows that neither patent nor copyright statutes contend that the protections for tangible property are or ought to be identical to those of intellectual property. The author observes that different categories of property are subject to different rights. This is not sufficient basis to conclude that only one category of property is property. Perhaps the author hopes to build to this conclusion using previous groundwork on the subject of property. However, this fails because the previous groundwork does not establish that the rights associated with tangible property are necessary and sufficient indications of the legal category of “property.” Moreover, the author draws attention to the non-exclusive flexibility offered by intellectual property (which forms the basis for the public domain that the author will laud in the last portion of this essay), but does not include the basis for such flexibility. By failing to state the different potentialities of tangible and intellectual property, the author leaves open the interpretation that these different types of property have different rights for some reason unrelated to their very natures. Consideration of the possibility of non-exclusive rights over tangible property reveals the difference in substance between these types of property; arguments for the differences in rights follow from the realization of the differences in substance (and the possible and impossible actions that can be done with such substances). The author allows the implication that the difference in rights comes from some other source, and therefore allows all manner of possible meaning to be found in this difference. Resting this difference in rights on the substance of the type of property narrows the understanding of the difference in rights to something functional and purposeful, not arbitrary.

 

Intellectual property rights are granted reluctantly: here is your limited property right with exceptions for nonexclusiveness, so that your knowledge can flow back into the public domain, there to be built upon by others. Intellectual property assets are interlinked and interdependent. Granting exclusivity rights increases transaction costs in those domains. Whatever kind of property ‘intellectual property’ is, then, it is not like ‘tangible property’, a fact recognised in these differential legal regimes.

Here the author asserts that because legal protections are different for intellectual property than they are for real property, the law is implicitly recognizing that these two kinds of property are different from one another. The law also recognizes a difference between premeditated murder and murder not premeditated. The law recognizes a difference between land and movable goods. The author has established that intellectual property is not identical to tangible property. The author has not established that tangible property is the only kind of property, nor has the author established that intellectual property is not a kind of property that merely is different from tangible property. The author has established a crucial first step in demonstrating that intellectual property is not property, but he has not proven the case.

 

 

When Locke spoke of creating property by mixing our labour with the land, he had fallow land in mind. This is precisely not the nature of artistic and scientific creation, where the creator ‘mixes’ his ideas with those of others to create a new work. Think of the relationship between rock ’n’ roll and the blues, between Shakespeare’s Romeo and Juliet, and Baz Luhrmann’s, between older scientific theories and the newer ones that build on them. Knowledge and creative works are nonrivalrous, nondepletable goods subject to network effects. To control them like ‘tangible property’ is to reduce their social utility. The domain of the various bodies of law that make up ‘intellectual property’ is a very different kind of property, perhaps so different that it shouldn’t be understood as such.

 

I think I would have preferred this as the opening paragraph (or near it). It is evocative and exciting, getting to the meaningful tension between two approaches to property. However, the substance of the paragraph falls flat: the examples given are all cases in which science and art existed within a framework of intellectual property and growth and progress persisted. Shakespeare did not prevent a remake of Ovid’s timeless tale. Musical genres cross- pollinated and evolved.

 

Legal protections appropriate for tangible objects – as the drafters of the US Constitution were well aware – are a disaster in the realm of culture, which relies on a richly populated, open-for-borrowing-and-reuse public domain. It is here, where our culture is born and grows and is reproduced, that the term ‘intellectual property’ holds sway and does considerable mischief.

Here the author argues that granting legal protections for intellectual property undermines culture – in particular, that such legal protections undermine a vibrant public domain of ideas, which is apparently the crucible of culture, in the estimation of the author. This argument may turn on a specific understanding of what culture is – though from the perspective of most cultural anthropologists, culture is an almost unavoidable aspect of continuous human society. These ill-defined key concepts aside, it is clear that culture has grown and thrived under conditions in which intellectual property is upheld by the rule of law. Either the author believes that no nation with intellectual property has culture, or that the current state of the culture of a nation with intellectual property protections is a “disaster” as a direct result of the use of that term. The author provides no evidence for either claim, and in fact does not go so far as to announce which claim he means to put forward.

The author will go on to describe the harms caused by the expansion of intellectual property rights to extents that he argues are harmful (an observation shared by many). However, the argument here is that the mere existence of intellectual property rights of any sort are a disaster for culture. It is an easy thing to accept that rights, taken too far, lead to disaster; it is difficult to accept that the existence of the concept of a kind of right is a disaster (unless the proposed right is abhorrent in its nature, which has not been suggested in this case).

 

 

‘Property’ is a legal term with overwhelming emotive, expressive and rhetorical impact. It is regarded as the foundation of a culture and as the foundation of an economic system. It pervades our moral sense, our normative order. It has ideological weight and propaganda value. To use the term ‘intellectual property’ is to partake of property’s expressive impact in an economic and political order constructed by property’s legal rights. It is to suggest that if property is at play, then it can be stolen, and therefore must be protected with the same zeal that the homeowner guards her home against invaders and thieves.

The efforts of one’s artistic or scientific efforts can be stolen, and I argue that providing for legal protections against such theft is a good thing for a society to do. I see no evidence or argument offered to the contrary, nor do I think the author would intend to posit that either governments and laws ought not protect their populace from theft, or that one’s inventions and artworks cannot be stolen.

The author again asserts that the term “property” and “intellectual property” has some impressive power that borders on the mystical, while offering no evidence and in the face of evidence to the contrary (disrespect for property rights are manifest in vandalism and theft across the nation, despite these protective wards of nomenclature). The author also seems to be building the argument that whatever power the term “property” has, those who merely do creative or innovative work have no right to access that power. The support for this claim seems to grow from earlier observations about the distinction between tangible property and intellectual property, and the different legal rights associated with each. However, in the full consummation of this argument, the author embraces the implication that whatever one might do to deserve a right in tangible property, no such thing can be done to earn a right in intellectual property. Perhaps the author wholly rejects a dessert-oriented approach towards rights, but he does not posit any particular framework by which one does come to deserve property rights of any sort. In the course of his attack on intellectual property, I am not sure he has preserved any meaningful, functional notion of tangible property.

 

 

Glib talk of ‘intellectual property rights’, then, concedes polemical ground to the monopoly rent-extractor by granting a certain perceived virtue to those who hold licences and rights. The rest of us are merely greedy and grasping grubbers for someone else’s property. But in so conceiving the domain of ‘intellectual property rights’, the notions of borrowing, reuse, reworking, remixing and constructive enhancement – all of which are needed for culture and science and art to grow – are lost in the semantic mire created by ‘property’. Things that are owned in the exclusionary way that the indiscriminate use of ‘intellectual property’ suggests cannot sustain art and science and culture.

The author continues his colorful demonstration of his view of the power of the term “property” to determine moral views. It seems that he believes that those who hold property are of high moral status, while those who access the property (even through established cultural and legal channels) of others are of low moral status. It would support his argument greatly if there were evidence that others shared this view.

Only two paragraphs prior, the author demonstrated that art and science can, has, and does flourish in a society that uses the term “intellectual property.” Here, the author claims that such growth and progress is “lost in the semantic mire.” If I have to choose between the claim the author supports with evidence, and the claim the other does not support with evidence, I suppose I ought to give weight to the former (all other things being equal).

It is worth noting that the author has said little for the benefits of intellectual property rights. Here, the author identifies the beneficiary of these rights as “the monopoly rent-extractor.” I’m unsure how a monopoly squares with the non-exclusive constraints described by the author only 5 and 6 paragraphs earlier, but it seems that the author may not think highly of the beneficiary of these rights. That intellectual property rights have been abused and have been used to abuse others is something I feel no need to debate—but that seems entirely outside the scope of the subject of this essay.  The author holds forth on behalf of the public domain and general social good (always a valid viewpoint to consider, to be sure), but little thought is spared for the person or persons who put so much work and effort into a creation or invention or other work subject to these protections. The author would do well to remember that all law is an effort to balance multiple competing interests. Although the author does recognize the value of intellectual property rights near the end of the essay, that recognition quickly becomes a claim about the harmful expansion of intellectual property rights, rather than the claim about the existence of such rights.

 

 

Disaster has followed. Copyrights, intended to be temporally limited, have grown nearly without limit. Congress drastically increased copyright terms in 1976, and again in 1998. The latter piece of legislation was the infamous Sonny Bono Copyright Term Extension Act, passed thanks in no small measure to the Disney Corporation lobbying to retain exclusive hold over its ‘property’, Mickey Mouse, and not to allow it to pass into the public domain. Elsewhere, users of ‘intellectual property’ suggest that protections be passed on to a so-called heir: so that the notion of inheritance has been carried over from real estate and now, ‘copyright trusts’ battle for the intellectual property rights of the long-dead original holder, placing onerous restrictions on those who would seek to make derivative works based on material that should long ago have passed into the public domain. But if that rights-holder is not present, then the original motivation for that legal protection – the encouragement of the further production of artistic works by the artist – is clearly not met.

It is a preposterous claim that copyright term lengths have extended as a result of the use of the term “intellectual property.” There is simply no justification or evidence for that claim, and it is, on its face, intuitively absurd to the point of non-sequitur. The paragraph defeats its own argument: the author admits that the trusts that seek to prolong copyright interests in a manner similar to real estate interests are known as “copyright trusts.” The disuse of “intellectual property” in favor of “copyright” would ostensibly do nothing to affect the nomenclature of “copyright trusts,” therefore doing absolutely nothing to impact the state of affairs lamented by the author. The author makes arguments here that may be of some merit in their own right (many other authors have argued similar points about the length of copyright and the problems associated therewith), but the relationship between the use of the term “intellectual property” and the extension of copyright seems to be the claim that “people take the term ‘intellectual property’ more seriously than they take the terms ‘copyright’ and ‘patent’ and ‘trademark’ individually.” This claim is then stretched into the claim that intellectual property rights are wrongly expanded entirely because of the use of the term itself.

 

Intellectual property rights and tangible property rights were also explicitly connected in an amicus brief filed by law and economics scholars in the 2006 case eBay Inc vs MercExchange LLC in which it was argued that the patent of the online auction company MercExchange deserved the same protection as real estate because patent-infringement was analogous to trespass and land-encroachment. Such rhetoric encourages corporate research-and-development labs to stake out patent claims everywhere, and then to defend them aggressively. Those following in their footsteps end up spending more time applying for licences than standing on the shoulders of giants. Private property’s associated notion of exclusivity allows the owners of data-analysis algorithms (such as those that determine credit scores) to ask for, and receive, trade-secret protection, which influences our financial fates – but there is no question of examining them; they are ‘property’ and we cannot have access to them.

Ah, the heady days of pre-2015 legal cases about the series of tubes that we call the interwebz. I note that the author cites the amicus brief for the case. Maybe that’s because the Court did not include this in its holding—and  maybe that’s because the case was about procedural law surrounding injunctions, and not patent law per se (it’s about the extent to which patent infringement does or does not dictate issuing an injunction). This evidence, then, amounts to “some people had an idea about relating patents and real estate, but the court ignored it.” That said, the author has put an emphasis on the relationship between the term “intellectual property” and cultural perspectives, so the amicus brief is not irrelevant just because it was not adopted by the Court. Never the less, the author fails to address the value of creating analogies between the abstract and the concrete to further understanding, or the value of creating analogies between established points of law to guide judgment in newer areas of law. An alternative analogy might be persuasive and helpful in furthering the author’s argument.

The point about trade secret protection and algorithms to determine credit scores is misguided. The author has already noted historical instances of government interference in property interests in favor of a common public good or interest. There is nothing incompatible about treating these algorithms as property and then, in the same breath, contending that a public interest demands the interference with that property. The author recognizes a strong legal and cultural tradition in the US regarding property rights as deeply important—but the author has also recognized that neither property nor (in his estimation, at least) the concept of property is immutable or sacrosanct. By conceding that cultural and legal notions of property can adjust over time, these examples loose whatever teeth they might have had: The author has already conceded that recognition of a property right does not create an absolute claim that cannot be countered or curtailed.

 

 

The resulting legal and economic landscape finds power concentrated in corporations with indefinitely extensible copyright terms, gigantic patent portfolios and politically influential trade secrets – each of which can trigger an endless series of litigious disputes in courts, and induce a chilling effect in the work of artists and innovators, and in the daily affairs of citizens. The indiscriminate use of ‘intellectual property’ has produced counterproductive legislation and policy bolstered by confused and misleading rhetoric directed at our cultural public domain, whose growth is discouraged by a new ‘enclosure movement’ that views culture as a domain of ownership and is keen to accommodate the rights of property owners. In this bargain, we, the users and future producers of culture, are compromised.

I recognize that this article isn’t big on citation, and I don’t consider that a mark against an essay in and of itself. However, it would be nice to have a more specific idea of what the author refers to when speaking of counterproductive legislation, and other ills. In particular, I am skeptical of the connection between the use of the term “intellectual property” and these negative effects. As I have noted elsewhere, the author makes many claims regarding the current state and application of copyright and patent law and policy, but the connection of these problems to the use of a specific term is thin at best.

 

 

What about the common objection that without ‘intellectual property’ the proverbial starving artist would be at the mercy of giant corporations, who have existing market share and first-mover advantage? It is important to disaggregate the necessity and desirability of the protections of the various legal regimes of copyright, patents, trademarks and trade secrets from that of the language of ‘intellectual property’. Current copyright, patent, trade-secret and trademark law do not need to be completely rejected. Their aims are rather more modest: the reconfiguration of legal rules and protections in an economy and culture in which the nature of creative goods and how they are made, used, shared, modified and distributed has changed. Such advocacy is not against, for instance, copyright protections. Indeed, in the domain of free and open-source software, it is copyright law – through the use of artfully configured software licences that do not restrain users in the way that traditional proprietary software licences do – that protects developers and users. And neither do copyright reformers argue that plagiarists be somehow rewarded; they do not advocate that anyone should be able to take a copyrighted work, put their name on it, and sell it.

I am glad to see the author give consideration to the beneficiary of intellectual property rights and protections. However, the connection between the use of the term and the effects on the artist and inventor remain entirely underdeveloped. It is good that the author clarifies his position that he does not seek the elimination of intellectual property protections entirely—only an adjustment of their extent—but the disconnection between the use of a term and the effects of the policies continues to glare at the careful reader.

 

 

 

But copyright law does need amendment, to restrict terms of protection beyond reasonable limits, and to reconfigure ‘fair use’ appropriately to a domain in which artifacts such as books, music and film can be stored, distributed, edited, shared or modified in previously unimaginable ways, when a large number of copies can be made free of cost once an initial expensive original is complete, and so on. Similar considerations apply, for instance, in the domain of software development where computer scientists and software developers have long argued that the grant of patents for software algorithms unproductively inhibits research and development. Indeed, the presence of alternative economic models such as those of the free and open-source software movement suggest that, in the new digital economy, property rights based on tangible goods are likely to have only limited success, and indeed might inhibit innovation and production.

As a conclusion restates and condenses the material presented in the essay, I have nothing to add here that I did not address previously.

 

This public domain is ours to draw upon for future use. The granting of temporary leases to various landlords to extract monopoly rent should be recognised for what it is: a limited privilege for our benefit. The use of ‘intellectual property’ is a rhetorical move by one partner in this conversation, the one owning the supposed ‘property right’. There is no need for us to play along, to confuse one kind of property with another or, for that matter, to even consider the latter kind of object any kind of property at all. Doing so will not dismantle the elaborate structures of rules we have built in order to incentivise artistic and scientific work. Rather, it will make it possible for that work to continue.

 

Overall, this essay suffers from two central problems: 1) the criticisms of the category of “intellectual property” are not presented in a sufficiently careful way to salvage other, analgous, useful examples of categories, and 2) the author fails to satisfactorily connect the use of the term “intellectual property” with the myriad policy and legal problems that he enumerates. These are problems have been noted by others, and it might even be a tempting solution to just change the linguistic approach. It’s not an idea I’ve seen presented before. However, the lack of clear connection leaves me entirely unconvinced that the same problems would not persist under a different linguistic regime.

 

The author’s thesis seems best stated as follows: “The use of the term ‘intellectual property’ carries cultural and legal connotations that influence policy makers to favor rights holders over the competing interests of the public interest in cases of public domain; as a result, rights holders unjustly benefit at the expense of the languishing public domain.” This essay would be stronger if it abandoned the effort to bend a linguistic analysis of categories to suit the end of a social/political benefit. The effort in philosophy of language doesn’t work and it isn’t necessary. The essay should instead focus on three pillars: 1) Demonstrate and establish the power and force of the term “intellectual property” in careful contrast to other terms (“copyright,” “patent,” “trademark” etc.) 2) Demonstrate that the harmful expansions of intellectual property rights would not have occurred but for the use of the term “intellectual property.” 3) Demonstrate that pervasive use of other terms would curtail the expansion of intellectual property rights and result in a harmonious balance between public interests and individual claims.

 

 When people start taking about “digital property” in contrast to “real property,” we will know we have entered the truly scary domain—because I already know which one will be considered more important and more valuable.

In Which I Use Multiple Materials To Write About Separating Separability

Crafting and Separability

Crafting became the must-have feature in a video game after Minecraft’s astounding success. Since this game mechanic became the bandwagon that no studio could NOT jump on, games varied the complexity, the modularity, and the reversibility of the crafting. (They also varied the intuitiveness of the system, but that’s a different complaint.)

In some games, players can get either raw materials or modular pieces back by deconstructing items that they have crafted: Diablo 3 (random chances for raw materials when salvaging items), Fallout 4 (gives modular pieces rather than raw materials), Elder Scrolls Online, Fortnite (weapons, but not buildings), Destiny 2 (arguably, this deconstruction is functionally more like selling it), Borderlands: Pre-Sequel (the grinder will turn a trio of items into an item of equal or greater value, with random chances for quality).

In other games, players do not have the opportunity to recover resources after crafting an item (though frustrated players have created game mods to allow deconstruction): Minecraft, Darkmoon (the Sword of Talon cannot be unmade), Skyrim, Warframe, Don’t Starve, Stardew Valley, Dragon Age: Inquisition (in Single Player you can remove addons; you can deconstruct in multiplayer), Dead Rising, Terraria.

For video games, the decision to allow players to salvage or reuse item parts is about game balance. When crafting an item includes a random chance of an additional benefit, game designers are aware of the possibility for players to deconstruct and reconstruct until they get the additional benefit they want. When the crafted item does not bring new benefits, game designers still have to evaluate the way that players will obtain resources.

There is another concern about balance when courts examine the possibility to conceptually deconstruct an object into the raw materials of function and aesthetic. Courts must be careful to afford the correct category of intellectual property protection based on the nature of the subject matter seeking legal protection. Unfortunately, determining function vs aesthetic is controversial at best, and it can sometimes feel more like a game with an RNG element added to item deconstruction.

 

Star Athletica v. Varsity Brands

In 2017, the Supreme Court ruled on a dispute between two companies that make cheerleading outfits. The court did not rule about whether a copyright infringement actually happened in this case. Instead, the court sent the case back to a lower court to decide that—but the court sent the case back along with a new rule about copyright protections. The new rule is that if a part of something can be “perceived” as art that would qualify for copyright protection, then the whole thing can be protected by copyright:

“an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.”

“Useful articles” are generally not protectable by copyright (they should instead usually be subject to patents, which work very differently from copyright protection).

Before this ruling, many lower courts had created (often similar) tests to evaluate the aesthetic elements of a larger object or article. One effect of this ruling is that it forges, out of the raw materials of many separability tests, one single separability test for all US courts.

 

Is Star Athletica compatible with 17 USC 9?

In the 1980s, computer hardware manufacturers were concerned about getting the right kind of protection for computer chips for the new micro processors that were becoming popular. More specifically, they were concerned about protecting a very specific piece of the chip production process: the photomask (aka mask work). The mask work is the 3-D blueprint and stencil for the manufacture of a silicon microchip.

The concern was that patents would either not apply or not give adequate protection (as far as I was able to find in research, this fear was never put to the test in courts, and I remain unpersuaded that the mask works would not qualify for either a design or a utility patent). However, the functional nature of the photomask device (as a key part of a manufacturing process) precluded it from copyright and trademark protection. The computer industry successfully lobbied congress, and a new section was added to chapter 17 of the United States Code. Despite the fact that the title of chapter 17 is simply “Copyrights,” section 9 is distinctly unlike the copyright protections described in other sections: it protects a specific, functional category of objects (mask works), offers a different length of protection, and prescribes different statutory damages for infringement.

Generally speaking, the law tries to avoid redundancy and overlap. Does Star Athletica decision create some kind of redundancy or overlap with 17 USC 9? Star Athletica allows for functional articles to be subject to copyright if there is an aesthetic element found in the functional article. The court does not carefully explain whether an aesthetic element must be, in itself, not functional (nor is the term “functional” defined). There is no overlap if Mask Works lack an aesthetic element—despite the fact that they look like art in themselves, there is probably no element of the Mask Work which is not functional, which may preclude the possibility of an aesthetic element. Inasmuch the Star Athletica decision should be read as not creating redundancy or overlap with existing statutes, this decision must be interpreted as a ruling that there are no aesthetic elements that are separable from the mask work that would be subject to copyright protection.

Separating Hard Cases of Inseparability: Ribbon Racks

Measuring Star Athletica against 17 USC 9 is important because of the difficult cases in Intellectual Property where functionality and aesthetics are not clearly distinct. Function and aesthetic are often broad cues for which type of protection a thing may be subject to receive (or prohibit from receiving). A seminal example is “ribbon rack” bicycle racks: the ubiquitous bicycle racks that take the form of an undulating metal ribbon were the subject of a copyright lawsuit (as well as trademark). The SDNY court ruled that:

“While the RIBBON Rack may be worthy of admiration for its aesthetic qualities alone, it remains nonetheless the product of industrial design. Form and function are inextricably intertwined in the rack, its ultimate design being as much the result of utilitarian pressures as aesthetic choices. . . . Thus there remains no artistic element of the RIBBON Rack that can be identified as separate and ‘capable of existing independently, of, the utilitarian aspects of the article.’”

The dissent in the case felt that this thinking entirely destroyed any hope of conceptual separability. This disagreement draws out the challenging questions: whether, when, and how aesthetic elements can be distinguished or delineated or extracted from a functional article.

 

Star Athletica In the Context of the Intellectual Property Landscape

Design Patents cover the non-functional ornamental elements of an invention. The Star Athletica case might expand copyright closer to design patent territory. Most cases will be able to still separate the two, mostly on the basis of subject-matter and/or whether the subject was issued a copyright registration or a design patent. Nevertheless, I predict that either (1) there will be a case to settle an argument between the USPTO and the Library of Congress as to who ought to have jurisdiction over a specific subject-matter, or (2) a case will have to decide on something that could conceivably be claimed by either, and a court will need to effectively adjust either Star Athletica or a patent statute in order to make a coherent ruling.

The Star Athletica decision demonstrates that intellectual property is both unified and divided by questions over functionality and aesthetic: IP is unified by these questions because no other area of law is so focused on this philosophical point; IP is divided by the answer to this question because different categories of IP will apply based on the functional or aesthetic nature of the object or article under question. At the same time that more academics and attorneys are pushing for less use of the term “intellectual property,” cases like Star Athletica and Converse v ITC push patents, trademarks, and copyright analysis closer together, focusing on two common questions: What is functional and what is aesthetic? How do we separate them when both are present?

 

Inseparable Bundle of Distinct Intellectual Properties

There is an ongoing push to separate the pieces of Intellectual Property Law (copyright, trademark, patent, and trade secret). Some attorneys and academics want people to stop using the term “intellectual property” entirely, citing confusion for both the public and the courts.

One of the core arguments is that “intellectual property” can be broken into more fine, discrete elements (copyright, patent, trademark, and trade secret). However, each of these categories can be broken into subcategories, areas, and elements. One author recently wrote that a discussion on fair use has nothing to do with patent law. However, a discussion on fair use of academic papers also has nothing to do with ephemeral recordings, royalties for mechanical licenses, or protection for mask works (which are explicitly not subject to copyright but are still included in chapter 17 of the USC). The mere fact that a broad category can be understood as made up of smaller categories is not sufficient reason to entirely reject the notion of the broader category… But this issue should be fully addressed separately, in a different blog post.

Conclusion

In a game with crafting, the designers have established a method for deconstruction or they have decided not to include such a method. A player can either have the expectation of deconstructing an item, or the player knows that item crafting will permanently destroy the materials used (except in Elder Scrolls Online, when some items just don’t show up for deconstruction and no one knows why except that it’s a Bethesda game). In cases of intellectual property, the courts may or may not find that an object or article can be conceptually separated into functional and aesthetic elements. However, when the court does find that such separability is possible, Star Athletica will guide the court’s evaluation of the separated elements.