In terms of the USCG cases, your summary does make it sound like the plaintiffs may have been shooting each other in the foot a bit in their effort to prove joinder. The fact that various members can be simultaneously receiving and providing copies to the same other parties all at once...I see your/USCG's logic about how each recipient is also acting in concert to infringe. And whichever way the damages thing goes, it does sound like torrent cases can be exceptionally complicated if important issues of fact could hypothetically revolve around exactly when particular seeders turned off Azureus for the day or stopped seeding.
The McClatchey language is very interesting, I'll have to look at those cases in-depth. The court and I appear to disagree about what the statutory language means in these kinds of situations, and each of us thinks the other is rewriting the statute. (Ha, how unusual.) But I don't know if there's any basis in J&S liability (or anything else) to make one the more sound answer.
One curious result of the court's reasoning is that it would incentivize further infringement once the first act has been committed. The initial torrent seeder would want as many infringing downloads as possible, to minimize his own share of the single statutory award, as would each downloader, encouraging him to seed further. That seems like a very strange result, one that I doubt the court considered at the time.
Though, I'm also noting that, in McClatchey, the court was specifically limiting the first level infringer, AP, to one statutory damage award. On a first skim, I don't see language about whether a case against both AP and its downstream infringers would be limited to one statutory award as a whole. I haven't thought through the next step yet, but there could be a worthwhile distinction based on the particular motion that McClatchey was granting, I'm not sure.
In any case, thanks for the follow-up. I'm definitely still very skeptical, but it's an interesting issue.
Thanks for going into this point about damages more. Based on just the comment in the post, and honestly even on your previous comment that was immediately linked to, the idea seemed to come out of nowhere. Even with the explanation, though, I've gotta say I'm still skeptical.
Damages would be shared for "all infringements...for which any two or more infringers are liable jointly or severally." If there was an infringement for which all the infringers were jointly and severally liable, I could see it. But if each collection of infringements is actually attributable to a different set of two or more infringers, I don't read the statutory damages provision as limiting the plaintiff to one total statutory damages amount.
In other words, in a hypothetical case where A+B infringed jointly and severally, and so did C+D, and so did E+F, it might be possible to read the statutory language such that each of these was committed by at least two infringers, and therefore falls within a single award of statutory damages. This would be to read the statute as giving plaintiff an award for "all infringements committed by multiple infringers," regardless of whether the infringements are related, the infringers are the same, etc.
But I believe the proper reading would be that this language only consolidates infringements committed by the same set of "any" multiple infringers. A plaintiff in that case would be entitled to three awards of statutory damages, if he managed to do it all in one case somehow. (Note: I'm not saying that this breakdown of separate pairs describes the downloading example, I'm just using it to examine the statutory language.)
Downloading torrents differs, in that there's going to be overlap between varying sets of multiple infringers. But even with overlap, I wouldn't expect a chain of seeders/peers/leechers to all be considered jointly and severally liable for any particular infringement(s) involved. And based on what the result should be in the example without any overlap, I think defendants would have to point to at least one infringement jointly and severally shared by everyone in order to argue that all defendants split just one statutory damages amount. Rather, if the plaintiff elects for statutory damages, it seems like he would get an in-between number of statutory damages, based on how many sets of joint and several infringers there are.
By the way, in your earlier comment, you mentioned an example of a chain of friends making copies of copies being a settled issue---I haven't seen that line of cases before, but if you have examples on hand I'd love to take a look. It sounds like language in those cases might affect what I'm saying, so it's possible that some of this comment won't hold up against the precedent you're talking about. Not having seen the precedent yet, the above is my understanding based just on the statutory language and caselaw that I have seen.
Oh, and unrelatedly, I'll agree with the comments implying that Mike's "fair use" line in the original post was just a random, empty jab at the plaintiffs without making a real point. The work relies on fair use, and he's suing over people sharing copies of the movie...I don't see the irony. It's not like he's trying to overcome a fair use defense, or otherwise suing defendants whose infringement was somehow analogous to his own conduct.
I see your point, but I will argue that it actually matters quite a bit. If we are discussing this from an economic standpoint -- in terms of trying to optimize the economics results (i.e., create the greatest marginal benefit, which is supposedly what copyright is about), then the scarcity/abundance question becomes central to it. So understanding the actual reason for property is kind of key.
I think this ends up being a bit circular. You start off by saying "if" we're discussing it from an economic standpoint, but I actually don't think I am. I believe you're coming at it from an economic point of view because your definition of property is rooted in economics. If that's the definition of property that you use, then yeah, it makes sense to figure out what's property with an economic analysis.
But if we're debating whether your definition is the proper one, I think there's a first step---the justification for why the economic perspective is appropriate---that's missing. As is, the argument seems to conclude that allocation and scarcity are key by also beginning with that belief as an unspoken premise, which leads to the stated premise that we should approach the definition economically. As someone who doesn't already subscribe to these premises, what is the argument/reasoning for why the term "property" should include only scarce goods?
I must admit, I'm also a bit more generally confused about the connection you're emphasizing between defining property and maximizing benefit. The original post was largely just about how the argument is framed, but didn't actually talk about whether calling IP property itself has immediate legal/economic effect.
Leaving aside for a moment the point that people react more protectively to things that are called "property," is there an economic benefit lost simply by classifying IP as "property?" Or in reverse, what economic benefit would be gained by avoiding the label? Or are you just saying that you believe it is economically beneficial to afford less protection, and due to framing effects it is therefore economically unwise to label IP as property? They're clearly very different points, but I'm having trouble teasing apart which parts of your comments are aiming at which line of thinking.
To be honest, I don't necessarily see why the implicit reasoning for the original concept of property matters for defining what property actually is. The concept of property can change over time, and I don't see a reason why the concept should be locked in at its origins. In that same vein, the fact that property was conceptualized as a way to protect scarce resources doesn't logically mean that property ONLY includes scarce resources.
I get that an expression can be costlessly reproduced in a manner that a physical good can't, and is not scarce in the way that a physical good is. I get that IP is different from physical property. But those differences don't strike at the core of property-ness as I see it. At the very least, I think it would go too far to state that a copyright is quite simply not property, and this point is so obvious that it is misleading to call it property. (Which has certainly happened in the comments, if not the original post.)
In the end, I think you're coming at the question backwards, excluding IP from being property because they don't fit an old concept, which seems to ignore how property is perceived today. And I realize that you probably think similarly of me, that I'm putting undue emphasis on people's instincts rather than on the historical basis. But given your original post's point that people are being erroneously led to thinking of IP as property, I think it's unwise to ignore people's instincts in favor of history. They're not likely to ignore their instincts because those instincts disagree with history.
And there IS an element of instinct involved, it's not just blindly following the term "property." Baker's humorous attempt to demonstrate his point by framing the TSA issue as being about "property" doesn't work, because it is trying to force a label rather than resonating with some part of people's instincts. With copyrights and patents, there's a "thing" that people can conceptualize, if a non-scarce one, that makes the "property" label seem acceptable.
This whole thing reminds me of arguments about prescriptive grammar. I can be a bit prescriptivist at times, getting angry that "literally" is being used incorrectly virtually everywhere, for example. But at some point, the popular meaning of a word can change enough that the prescriptivist's historical meaning doesn't really matter any more. Yes, he started off correct that "aggravate" doesn't mean "annoy," but maintaining that argument today just wouldn't work.
That, give or take, is why I don't find the historical perspective particularly convincing. It seems to be talking about the "proper" definition of property, rather than addressing what property actually means to today's society.
"Now, by the working by which this monopoly has been granted, it was done so to provide you incentive to create new books - not as a way to live off a single book forever."
Not disagreeing with most of your post, Michael, but I feel like this bit slightly mischaracterizes the purpose of the copyright, at least the way I'm reading the sentence. It sounds like you're saying the copyright in Book A was granted as an incentive to encourage the writer to generate a new Book B, rather than just protecting and collecting from Book A forever. But really, the copyright in Book A was granted in order to incentive Book A in the first place.
Yes, Book B should be incentivized also, as all creative works should be, etc. And yes, the copyright should be (constitutionally must be) finite. But I didn't want the point to be missed that Book A is protected because otherwise Book A itself would never have been written. I feel like that point is ignored by comments like #6 by Anonymous Coward; if taken seriously, comments like those would basically end a bunch of content industries. Not just current outdated models, but the whole industries.
The original post claims that IP stuff has little that makes it property, but doesn't go any further in fleshing that point out. I have no problem with thinking of a copyright or patent as property, so I'm really not sure where you're coming from. So, what defines property? What features are key to property that something like a copyright doesn't have? Obviously, scarcity/physicality is different between the two, but I don't think those are crucial to my understanding of why physical property rights should be protected, so I'd like to hear more.
And on the point of being "government-granted," isn't there a level on which that's equally true of physical property. It's illegal to steal my car, which means the government has put into its laws (both civil and criminal) that I'm protected against you doing that. If government didn't enshrine my rights in that car, you could take it with no retribution. Perhaps governments have given more or different protections for IP, but the basic fact that they're "government-granted" comes off to me a bit like a red herring.
Btw, Hulser---the difference you're mentioning between the ideas (or expressions, really) represented by the words and the paper itself can actually be turned around on you. That same difference is what undercuts others' arguments that buying the book should mean you have unfettered rights to copy, share, etc. (Like comments #6 & 8 here by Anonymous Coward, or to a lesser degree #7 by btrussell.) As your post implies, buying the book is different from buying the ideas/expressions/words. I don't know that you (meaning generally the people who are agreeing with Mike's post, not you in particular) can have it both ways.
Assuming Gibson's trademark didn't cover the market for Paper Jamz's stuff, I think there'd still be potential claims for dilution by blurring or tarnishment, right?
Or even for just a claim under 43(a), wouldn't the separateness of the markets only speak towards one of the "likelihood of confusion" factors (proximity of the markets), rather than shutting down the lawsuit entirely?
Well, trademark does also have "fair use"-style doctrines so it's not a silly notion to raise. In the trademark context, it's true that you can use a company's mark in a description; so Gibson couldn't sue Paper Jamz FOR referencing Gibson in describing of what their paper guitars are modeled after. So trademark's version of fair use can protect stuff like "Inspired by Tylenol's Trademark" or "Designed to be Compatible with the iPhone." But that aspect of trademark fair use only protects for the mention of other company's mark, not for actual use of the mark.
I'm not having immediate luck finding Paper Jamz' promotional materials, but one page seems to have it second-hand: "Paper Jamz Guitar - Series 2 Style 1 is styled after the famous Gibson Les Paul." Reasonable minds can interpret it differently, but to me, that's not actually a disclaimer by Paper Jamz that the guitars aren't endorsed by Gibson. If the paper guitars were licensed, they might still refer to being "styled after" the Gibson model that'd been licensed. A disclaimer isn't a 100% exoneration anyway, but in this case I don't think there is one in the first place.
On the comparison with toy cars...I can't run a heavy duty search at the moment, but I feel like I can half-remember learning about a toy car case, actually. Does anyone remember something more specific, a case where toy cars imitated famous models without licenses? If someone's got a case like that, it would speak to the issue of separate markets that Steven brought up.
I tend to agree with Danny. A product is being put out that looks very much like Gibson's, but without them doing quality control, etc. Beyond that, though, I definitely treat unjust enrichment as a type of harm; if Paper Jamz makes more money because they have Gibson's look, they're cashing in on another company's recognition and goodwill.
And I'm a little confused by the suggestion that Gibson is "double-dipping," to be honest. If DC licenses the Superman symbol for t-shirts or coloring books or whatever else, they're getting the licensing fees and also indirect benefits from those customers now wanting to read the books and buy the DVDs, etc. It hadn't occurred to me that this might be controversial or regrettable, it just seems natural to me. In the original post you implied you understood where Gibson is coming, so I don't mean to suggest that you're villifying them for this---but it does seem to bother you a bit, I guess I'm just not sure what about it makes you uneasy.
On the ebay issue, I could imagine it going either way---like the post says, there are definitely details missing that could swing it. If Gibson followed the model from the Tiffany case, pointing out particular infringing goods that ebay wouldn't take down, they might have a case. But yeah, a blanket statement saying "there are infringing goods, please take them down" really wouldn't seem to justify that part of the suit. Until we know more it's really hard to weigh in on likelihoods, or to know if Gibson is being silly by naming ebay as a defendant.
Plus, there's the distinction that Tiffany was dealing with straight-up counterfeits, whereas even if Gibson is right, Paper Jamz is selling a different-kind-of-infringing good. I could see that as a complication for Gibson, because just like the Tiffany case held that ebay didn't have to hunt for infringements, I don't know to what degree the courts would require ebay to make judgment calls about which goods likely infringe and which don't, especially if there's a reasonable argument for it not infringing.
Anyway, interesting case.
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