All About That Base Rate

Christopher Buccafusco & Rebecca Tushnet, Of Bass Notes and Base Rates: Avoiding Mistaken Inferences About Copying, __ Hous. L. Rev. __ (forthcoming, 2023).

Some years ago I attended a presentation by a musicologist who specialized in giving testimony in copyright litigation. Here’s how he tried to grab the audience: First, he would play a clip from a well-known track by a popular musician or band. Then he would play a selection from an earlier, lesser-known track by an obscure musician or band that sounded similar to the first clip, all while giving the audience a wide-eyed stare. The impression this created was intentional and unmistakable. Clearly the well-known artist had copied from the lesser-known one!

The audience, mostly laypeople, certainly bought it, based on the gasps that accompanied the presenter’s schtick. I did not, and left frustrated that the musicologist-turned-expert-witness had tricked the audience into thinking that he had exposed several instances of egregious copyright infringement. I knew something was wrong but had difficulty putting my finger on just what was the problem with the presenter’s move.

Thanks to Christopher Buccafusco and Rebecca Tushnet’s sparkling essay, Of Bass Notes and Base Rates: Avoiding Mistaken Inferences About Copying, I finally have a clear picture of the error that afflicted that presentation and so much copyright litigation. As the authors explain, the application of copyright’s substantial similarity problem suffers from base rate neglect, which causes courts and litigants to significantly overstate the likelihood that a defendant copied from a plaintiff. Continue reading "All About That Base Rate"

Blockchains as Technosocial Systems

James Grimmelmann & A. Jason Windawi, Blockchains as Infrastructure and Semicommons, __ Wm. & Mary L. Rev. __ (forthcoming 2023), available at SSRN.

In popular culture, blockchains (to the extent they are understood at all) are associated with cryptocurrency, and following the crypto crash of 2022, increasingly dismissed as part of a classic asset bubble. But legal scholars are more sanguine. They tout the potential of blockchain, or, more prosaically, “distributed ledgers,” to transform private law, from contracts to securities to property. Blockchains are hoaxes or panaceas depending on which source you consult.

James Grimmelmann and A. Jason Windawi’s sparkling essay, Blockchains as Infrastructure and Semicommons, charts a path between these two extremes. It does so by calling attention not to what blockchains can do for law, but rather by focusing on the novel question of what legal theory can tell us about how blockchains work. The essay leverages two influential notions from property—infrastructure and the semicommons—to deliver insights about blockchains as well as an object lesson in the value of looking at distributed ledgers through the lens of legal theory. Continue reading "Blockchains as Technosocial Systems"

What We Think About When We Think About Ownership

Aaron Perzanowski, Consumer Perceptions of the Right to Repair, 96 Ind. L.J. 361 (2021).

Property scholars have long noted a gulf between the way laypeople think about ownership and how property law actually works.1 This gulf has widened in the digital age, as our beliefs about what we own and what ownership means have not kept pace with our complicated relationships with digital goods. Consider, for example, the furor that arose a decade ago when it emerged that Apple insisted that iTunes users did not own purchased music files outright but had only a lifetime license to use them.

In a sparkling essay, Aaron Perzanowski explores the distance between the perception and reality of ownership in the context of the emergent right to repair. Traditionally, we expected to be freely able to repair physical items we own, whether a book with a torn cover or a car with a leaking fuel line. But how does this expectation translate in the digital setting? The question, Professor Perzanowski shows, is an important and complicated one. Continue reading "What We Think About When We Think About Ownership"

Profiting Off Infringement

Kristelia Garcia, Monetizing Infringement, 54 U.C. Davis L. Rev. 265 (2020).

It’s hard to imagine people tolerating intentional violations of their physical autonomy, never mind seeking to monetize such behaviors. But as Kristelia García argues in her new essay, Monetizing Infringement, many copyright owners find this strategy appealing.

According to copyright’s standard narrative, infringement reduces the returns to creative effort and, thus, undermines authors’ incentives to produce new works. Here, however, García “destabilizes long-held but problematic assumptions about the interplay between copyright law’s purported goals and its treatment of infringement by challenging the received wisdom that rightsholders are necessarily anti-infringement.” (P. 270.)

Building on work by Tim Wu, Dave Fagundes, and Rebecca Tushnet, among others, García catalogues three distinct forms of monetizing copyright infringement across a variety of creative domains: (1) profitable infringement, in which infringement results in income for the rightsholder; (2) remedial infringement, in which infringement mitigates a worse outcome for the rightsholder; and (3) promotional infringement, in which infringement amounts to valuable and cost-efficient promotion for the rightsholder’s content. Continue reading "Profiting Off Infringement"

Discriminatory Impacts of Facially Neutral Copyright Laws

Robert Brauneis, Copyright, Music, and Race: The Case of Mirror Cover Recordings, available at SSRN.

Several scholars have shown that while copyright law may appear facially race-neutral, in its application many of its provisions perpetuate systemic discrimination, particularly against African American creators. K.J. Greene, Funmi Arewa, and Candace Hines have each argued that seemingly harmless features of copyright law can interact with industry practices to operate to the disadvantage of African American authors. The pre-1978 copyright statutes, for example, required authors to navigate a series of formalities in order to vest their exclusive rights. Greene has shown that these provisions tended to deprive copyrights disproportionately to African American authors, who were less likely to have access to legal information and advice necessary to navigate the requisite technicalities.

Bob Brauneis’ article, Copyright, Music, and Race: The Case of Mirror Cover Recordings, builds on this work by providing a detailed case study of one particular instance in which apparently race-neutral copyright law combined with entertainment law norms to discriminate against African American creators: the so-called “mirror” cover recording, a practice where white performers would create nearly identical versions of sound recordings by African-American artists. Brauneis’ work consciously styles itself as an effort at historical recovery, which is valuable because it revivifies a time in the history of the music industry that has been largely forgotten. Continue reading "Discriminatory Impacts of Facially Neutral Copyright Laws"

A Classical Perspective on Information Ownership

Jeremy N. Sheff, Jefferson’s Taper (Feb. 11, 2019), available at SSRN.

It’s not news that normatively fraught debates in legal academia tend to become polarized and then stuck. Scholarship often tends to cohere around preexisting camps, causing debate to focus on which camp (and who within each camp) is right and to ignore the possibility that the available framings may have missed something important. In light of this, one of the most valuable and refreshing moves an article can make is to throw a bomb into the long-accepted binary of a given academic debate by suggesting an entirely new way of thinking about an issue. This is precisely what Jeremy Sheff does to the debate over foundational concepts of information ownership in his fascinating and provocative draft, Jefferson’s Taper.

Here’s the backstory: Some scholars favor a limited vision of information owners’ rights and tend to embrace what has become known as the utilitarian theory1 of copyright and patent. According to this view, property in creative expression or inventions is not rooted in any notion of “right” other than the state’s positive law. Rather, the state grants monopolies in information only because (and to the extent that) doing so is necessary to incentivize the creation of things that would earn no profits for their owners absent law’s imposition of exclusive rights. Other scholars prefer a more expansive vision of owners’ rights; these scholars tend to advocate an alternative view of copyright and patent rooted in the writings of John Locke. This approach locates a pre-political right to ideas in the labor expended in creating them and rejects the notion that copyright and patent are nothing more than state-created monopolies designed to calibrate the optimal level of creative and inventive production. Continue reading "A Classical Perspective on Information Ownership"

What’s in a Name?

Nestor Davidson and David Fagundes, Law and Neighborhood Names, 72 Vand. L. Rev. __ (forthcoming, 2019), available at SSRN.

What’s in a name? According to Nestor Davidson and David Fagundes, in Law and Neighborhood Names, a lot. As the authors recognize, the conflicts over neighborhood names that seem to be popping up in city after city may, at first glance, seem “trivial,” “cosmetic,” or (I might add) downright silly. Perhaps for these reasons, government regulation of neighborhood naming has largely been passive, reactive, or weak. But neighborhood names are emblems for the communities, values, and conflicts that they demarcate.

Law and Neighborhood Names provides a new perspective on this complex phenomenon. The authors also provide a pragmatically effective set of tools for addressing the injustices that so regularly flow from gentrification.

To be sure, gentrification is just one of the contemporary issues, though a key one, on which this article sheds new light. The authors also provide fresh insights on important debates about ownership, governance, identity, and space – informing conversations within the fields of property law, local government law, and toponomy (the sociology of place naming). Continue reading "What’s in a Name?"

Giving and Including for Happiness

Money can’t buy happiness, so the saying goes. But, does giving away property bring happiness? That is the proposition considered by Professor Dave Fagundes, in his new article Why Less Property is More: Inclusion, Dispossession, & Subjective Well-Being.

Professor Fagundes urges new thinking on the classic conception of property, moving away from possession and exclusion, long the centers of the construct, toward their more obscured counterparts, dispossession and inclusion. Starting with the notion that property historically has been justified for its utilitarian ends, he suggests that if we are not better off when we amass property and exclude, then a different conception of the rights inhering in property might better achieve these ends. Continue reading "Giving and Including for Happiness"

Creative Vigilantism

Amy Adler & Jeanne C. Fromer, Taking Intellectual Property into Their Own Hands, 107 Cal. L. Rev. __ (forthcoming 2019), available at SSRN.

It’s no longer news that a major proportion of property regulation happens outside the bounds of the law thanks to social norms and their extralegal enforcement. Yet legal scholars continue to find new and fascinating ways to advance this insight. The latest installment in the conversation about the norm-based regulation of intangible property is Amy Adler and Jeanne Fromer’s Taking Intellectual Property into Their Own Hands.

This sparkling article1 adds a novel perspective to the dialogue that has been developing for more than a decade about the extralegal regulation of creative production. Most of this work considers how a given group regulates their distinctive works via norms, without recourse to copyright or trademark law. This move has been made with respect to recipes developed by French chefs, roller derby skaters’ nicknames, clowns’ face makeup, tattoo artists’ ink designs, and many others. Continue reading "Creative Vigilantism"

Courtesy Without Copyright

It is now a familiar point that positive law accounts for only part of the systems that regulate human behavior. Robert Ellickson’s cornerstone treatise, Order Without Law, showed how closely-knit groups construct norm-based rule structures that govern behavior more efficiently than state-created law. In the past decade or so, scholars have investigated a number of areas in which individuals engaged in creative production similarly opt for norm-based systems in lieu of copyright or trademark law.

Professor Robert Spoo’s recent article, Courtesy Paratexts: Informal Publishing Norms and the Copyright Vacuum in Nineteenth-Century America, represents a fascinating and important contribution to this growing literature. Spoo’s article harkens back to the mid- and late 1800s, a time when foreign authors received no copyright protection in the United States. In the absence of formal legal protection for foreign authors’ works, domestic publishers created a series of agreements with each other that the first house to print copies of a foreign author’s novel would be able to do so without competition—even in the absence of enforceable copyright law. These informal agreements were expressed and furthered to a large extent by courtesy paratexts: Brief written passages in the front matter of a book in which the book’s author would affirm that the publisher was acting within the courtesy of the trade to print their work, and exhorting readers to buy only authorized editions to assure the author and publisher alike their fair remuneration. Continue reading "Courtesy Without Copyright"

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