This episode is the IP polycentrism panel from DreyFEST, the celebration of Professor Rochelle Dreyfuss. It was recorded on March 24, 2023.
Margaret Chon (Moderator), Seattle University School of Law
Barton Beebe, New York University School of Law and Engelberg Center on Innovation Law & Policy
Barbara Lauriat, The George Washington University School of Law
Chris Sprigman, New York University School of Law and Engelberg Center on Innovation Law & Policy
Welcome to Engelberg Center Live!, a collection of audio from events held by the Engelberg Center on Innovation Law and Policy at NYU Law.
This episode is the IP Polycentrism panel from DreyFEST, the celebration of Professor Rochelle Dreyfuss. It was recorded on March 24 2023.
Margaret Chon 0:22
We began this day with a with a book launch, which is an homage to Rochelle. And we just want to say also, echoing Linda, sorry, Rochelle, that we kept this a secret from you for so long, and then you didn't know about it. But it was a very well kept secret. And I was so proud of us for doing this, because we wanted to surprise you and just, you know, make you happy. And make you happy, hopefully. Right? And with close to 50 contributors, and you know, 10 different sections of the book. This was a massive endeavor, although also really pardon? Oh, you do? I'm sorry about that, too. Lots to apologize for. It's the Canadian and me. So. But yeah, so but the nice thing about each of these chapters, and I'm here also to thank Luke Adams and Edward Elgar, the publisher for getting this published in time. And Luke and I were having a conversation, that it the chapters are, we're limited to 4000 words, which no, it's kind of a challenge for long winded academics to do the short form, especially if we're trained in Law Review sort of format. But the nice thing about the 4000 word limit is that each of the chapters is very, very tight. And I know that because I edited a lot of them. And they really just get to the point. And they all make each one of them makes really interesting and important points that really relate to Michelle's influence and legacy. So I do hope that even if you don't get a contributor copy that you'll pick one up or ask your library to pick one up, because I think this is a very special volume. And not only because it's for Michelle, it's to honor Michelle. So we're going to end this day with a panel that actually features some of the contributors works. That's how we sort of decided to structure this panel as opposed to the previous panel. And the original name, I believe, for this panel, the original placeholder was IP grab bag. But I thought that wasn't dignified enough. So I decided to rename it IP poly centrism thinking that that was a little bit more sophisticated. But now I really think I want to rename it once again, and call it everything everywhere all at once. And Barton will tell us why that's not a trademark infringement, at least for the time being in a few minutes. And that's because, you know, there's a buzz about this particular movie title for lots of good reasons. I walked out of the movie, very confused myself, but also crying because it was very poignant. And, you know, it tells the title tells us what Rachelle means to us. We we've been hearing this all day long. We all have been so influenced by her. And as Mike Burstein pointed out earlier, she's a polymath, and she's so incredibly impressive that way, she has wide ranging interests. She's incessantly curious about so many different areas of IP, as we've seen from all of the previous panels, that illustrate her immense impact. And she's also a mentor, as so many of us have already stated, that she's given to so many of us IP scholars, and some non IP scholars like Linda, her time, attention, intellectual generosity, and most importantly, her honest feedback, and critiques. So maybe I should rename this panel, everyone, everything everywhere, all at once. So, all of us have shared stories. Everyone who's had a space at this conference of PowerShell has read a draft and improve that draft because of her reading. And so my most recent experience of this was last December, when my sneaky co authors Marquette at Trimble and Tim Holbrook and I were furiously working on a brief that was actually due at the stream Supreme Court on December 26. And Marketo, was in Europe. I was in Thailand. Tim was actually moving from Atlanta to Colorado. So all three of us were on the road and we were just scrambling to bring this amicus brief together for the AVID Tron versus head Tronic. Case, which was just argued before the Supreme Court earlier this week, and I was trying to wheel Rachelle into joining this amicus brief and Nikki brief. And I said what I thought was a strong almost final draft to Rochelle. And then She almost immediately turned it around with comments. And she told us at least two or three major things that needed to be fixed at the last minute, but she was right. She was right. So we definitely followed her advice. And the brief was much, much stronger as a result of her input. And although she's not credited as, as an author of the brief or signatory, she should be credited. So I'm saying it for the record right now. We may think of or at least I think of Rochelle as being already a fully formed, mature, and ultimately, the ultimate season scholar. But I know that she must have been a baby law professor at some point in her career. And so as Professor Samuelson pointed out, who's just a little bit more senior to Rochelle, she did publish an early law review article on copyright. And Jessica Selby also pointed this out. And I believe it's your first published law review article besides your student note, maybe not. But it's it's a very early one. And it's the creative employee in the Copyright Act of 1976, which Jessica mentioned, and it was published in 1987, which is less than 10 years after the 1976 Act took effect, right. So in this article, she goes after the work for hire provision of the 1976 Act, which doesn't explicitly address the creative output of university professors. The statute says nothing about that. And her early piece really shows several hallmarks of her scholarship relator scholarship her bold ideas, because she argued in this very earlier pre tenure piece, that the work for hire provision could be challenged on First Amendment grounds, not only on First Amendment grounds, but also via the copyright clause, as applied to university professors creative works. And it also illustrates her tenacious advocacy on behalf of these ideas, these bold, big, bold, bold ideas, and her sophisticated but light touch with theory. And that's the part that I like to speak to that that Jessica also alluded to, because we because she examines how both author centered as well as economic instrumentalist approaches towards this problem of university professor creative output should allow professors to retain ownership of their works. And the article takes the best of both approaches both the author centric approach as well as the economic approach. So rather than either or perspective, Rochelle really laid out a both and approach to the problem, which is so typical not only of her scholarship, but of the way she approaches, creating institutions and creating communities within intellectual property. And reminding me this, reading this work again, reminded me of just how lucky we all are that Michelle decided to turn her talent and energy away from chemistry, and toward law and eventually academia. I also wanted to have a cup of make a call out or a shout out to the other people who might call my fairy godmother. So Pam Samuelson, who was also very, a little bit more senior to Michelle, who's also been so intellectually generous. And my favorite IP professors, Becky Eisenberg, and Jessica Littman, who were my professors in their first year of teaching intellectual property. And one of the things that they did, which I still do in my intellectual property survey class is I teach ins vs. AP as sort of the baseline from which to think about all of IP. And then Wendy Gordon, who's here still, I think, maybe she left. And of course, Jane Ginsburg, who was on video earlier, but if not for the work, and the influence and the space that all of these wonderful pioneers made for us, especially other women, women of color, and you know, the rest of the IP world. And we wouldn't be in such a wonderful space that we were experiencing right now. So again, everything everywhere all at once. So turning to the panel, I told you about the structure already that we're going to have three eminent panelists. And this is sort of the home court team, I guess, because we have two professors who are here at NYU, and then someone who,
who was a roommate of Rochelle's six months. So these are all sort of her intimate familiars, right? And so we're just going to start with I was going to just refer to him as Barton because everyone knows who he is. But I'll be a little bit more formalist and say introduce him as Professor Barton BB. He's the John M. de Maris professor of intellectual property law and co director of the engelberg center on innovation, law and policy, as well as a co director of the competition innovation and Information Law LLM pro Grab, which is a lot of responsibility. And he's going to talk about his chapter the sensibility of expressive generosity, and the rise and potential fall of Rogers versus Grimaldi and American trademark law. Originally, the panel was going to have Martin simply been from University of Amsterdam, in a colloquy with Barton, because Martin wrote a very parallel chapter, which is titled expressive generosity revisited what EU policymakers can learn from Michel Dreyfus. But Martin was not able to make it. He unfortunately got the flu, right before he was about to board the plane, but he sends his best regards to Michelle. And fortunately for us and for Barton, we've just heard a Supreme Court argument on a very related topic in the Jack Daniels versus VIP products case. And I think that's what Barton is going to be speaking to today. Follow with following Barton is Barbara Lauria, who's a visiting Associate Professor and Frank H marks intellectual property Fellow at George Washington University School of Law. And she's going to talk about her chapter and title, navigating public, private, national and global, International Commercial Arbitration of patent disputes, which could have been on the previous panel. So this is kind of a spillover in a way, but which makes really interesting points about whether or not patent arbitration is a good idea. And last, but certainly not least, bringing up the rear. Christopher John's Brigman are also known as Chris, the Murray and Kathleen, bring Professor of Law and co director of the engelberg center on innovation, law and policy and he's going to speak on the topic of our negative spaces likely to be fragile, building on his work with Cal rusty Allah, the pathbreaking piracy, paradox innovation and intellectual property and fashion design. So beginning with Barton,
Barton Beebe 11:50
okay. Thank you. I'm delighted to be here. And I'm glad that you mentioned that this isn't a way at home home team situation with a few NYU people here because I think I should express the sensibility of NYU people with respect to what's happening today and happening over the past year or two, which can be summarized with the word denial. I'm not exactly sure what we're doing here. I've heard the word retirement. I don't know what that means. I'm not listening. As far as we're concerned, this is great. This is great fun. But I will not try. I will try not to change any of my opinions or assumptions or actions tomorrow, based on what's happened here today. So I hope Rochelle will be my colleague forever, basically. But yeah, I'll talk a little bit about trademark law. Rochelle has been celebrated for many things today. She is among the most influential scholars we have in patent law in international intellectual property, law and trade secret law in innovation, law and policy. But trademark people such as myself know her differently. For us, she is the author of one of the most important essays on trademark law of the 20th century. Expressive generosity, trademarks, his language and the Pepsi generation. Jessica mentioned this title earlier, most important of the 20th century is that a kind exaggeration in the context of this event, it is not. It is one of the most important pieces of trademark commentary of the past century. The essay was published in 1990. But even now, three decades later, trademark scholars recognize in it most of the themes that continue to motivate trademark commentary, Rochelle observes that trademarks, quote, have become products in their own rights, unquote. They are, as Jessica mentioned, quote, The emerging lingua franca unquote of global culture. The essay adopts a mode of analysis that would now perhaps still be more familiar to European scholars regrettably, than Americans. It explains the trademarks engage in different functions, among them what he calls the signaling function, by which he marks by which marks are done to indicate the source of the goods to which they are affixed, and the expressive function by which marks may convey a wide variety of cultural meanings. The essay closely attends to cases in which third parties unauthorized Lee seek to take advantage of what Rochelle calls the surplus value of a well known Mark. That is the capacity of a mark through its expressive function to convey a meaning that code is in excess to or a surplus over its function as a signal about source unquote. Today we are especially aware of the significance of such what she called hybrid usages of trademarks, particularly in the United States, so much of leading American trademark case law currently focuses on precisely such situations, in which third parties engage in critical appropriations of prominent marks to parody the marks or satirize consumer culture more generally. More on that in a moment, and on what happened just this last Wednesday at the Supreme Court. Rochelle is 99 dsa is still so timely it seems so familiar that scholars new to the field could be forgiving, forgiven for failing to realize as I once did, that when the essay first appeared, it was pathbreaking, absolutely pathbreaking at large they had inaugurated much of what we now take for granted in trademark commentary. So a little bit of what I was quoting her Juran I think for a lot of us were like, yeah, check, check, check, check. that's those are the basic truisms of academic commentary on trademark law. What a lot of people nowadays Well, some people nowadays don't realize is that most of them came from expressive generosity, and became conventional wisdom in American trademark commentary ever since. More generally. And most significantly, the essay brought to trademark law a particular style of thinking about trademarks, and the role in contemporary culture, a sensibility that recognize that brand names were more than merely designations of source or advertising devices. More than that they had emerged as preeminent cultural reference points reference points in consumer society, the means by which individuals made sense of the world and discovered and express their values, their aesthetics and their politics, and going to something my colleague Chris mentioned at a forum, a colloquium a couple of days ago, they had become speech and reached a different level of cultural significance. US trademark commentators at the time had of course analyze the conflict between the First Amendment and trademark law, but they tended to do so in the in the style of a straight First Amendment bro type of analysis, in contrast, and expressive generosity, Rochelle invoke linguistics and indirectly the field of cultural studies, which was then as at its height to speak in a new voice. As she rightly observed near the end of her essay, quote, apparently, the graduates of the American educational system are no longer acquainted with the classic literature that in the past form the basis for rhetoric, rhetorical and literary allusion. Betty Crocker has replaced Hestia in the public consciousness unquote. The essay is full of such insights such opossums, whatever you want to call them, it's delightful to read even now, I was talking with a person who knows quite a lot about trademark law telling me earlier, it's remarkable how much that essay is held up, even the the sort of zingers you know, the essay also uses the word semiotic. So here's a little personal thing. And it uses that word more than once and for a new scholar long ago on the job market with a paper calling itself the semiotic analysis of trademark law and giving it as a job talk where the first question to one place was, quote, what of what you've just said, can be proven empirically, unquote, and of question for that scholar. At that moment, the sensibility of the essay and her usage of that strange word was was lifegiving. It was like, you know, okay, maybe I'll be okay. Not at this place, but in general. So many of you have heard that story. I like to tell it. I was thinking about Rochelle is Sal was as I was listening to the oral argument on Wednesday and Jack Daniels VVIP productions. For those of you who don't know the case, the defendant produces a squeaky dog toy in the form of a parody Jack Daniel's bottle on the bottle Jack Daniels becomes bad Spaniels and the Jack Daniels reference to quote old number seven Tennessee whiskey becomes old number two on your Tennessee carpet. Thus, the result at the concordance to the oral argument specifies for references to dog urine, and for references to dog poo or poop in the oral argument in front of the Supreme Court. Probably a record for all arguments at the Supreme Court probably but I don't know I don't follow the court that close so Jack Daniels threatened VIP VIP is sued for declaratory judgment. The district court found infringement, the Ninth Circuit remanded telling the district court to apply the appropriate test. And oh, by the way, rule for VIP that we're not allowed to tell you that the district court then reluctantly and passive aggressively did so and sort of like okay, dad, whatever, and found no, it was really an amazing opinion found no infringement. What was this test the appropriate test that needed to be applied the now notorious Rogers V Grimaldi test after the 1989 Second Circuit case, the test provides the following and a case in which a defendant makes an expressive use of another's trademark, the court should ask first, is the use artistically relevant? And second, is the use explicitly misleading as to the source of the goods? If the use is artistically relevant and is not explicitly misleading than it is not infringing? So says the test is a very defendant friendly test? There are a bunch of people in this room who know about more about the Jack Daniels case in the Rogers test than I do. So I won't say much. And that's not not false modesty. I've been reading their amicus briefs and been talking with them over the past few days and learned a lot. What do trademark nerds do over the third round of drinks, they talk about trademark law. And they can comment and q&a If, if they wish. But one thing I'll address as I near my conclusion is an aspect of the oral argument that was especially troublesome, other than the fact that one of the advocates kept repeatedly interrupting Justice Jackson and only Justice Jackson, which was a little weird, and by little I mean a lot. What was the what was also troubling was the role that survey evidence seems to be playing in the jack Dan Mill's case in the booking.com case in front of the Supreme Court a few years ago, and in trademark law overall, in a 1996 Follow up to her expressive generous to the article, I'm thinking of Ryan stop. Rochelle commented that course deciding trademark cases have quote, shown a willingness to believe in an astonishingly stupid consumer. Unquote. In other words, a consumer easily confused the one beloved of trademark owners trying to prove infringement, the kind of consumer who thinks Yeah, that's a Jack Daniels product comparing Jack Daniels whiskey to excrements. We saw in Jack Daniels one reason why courts seem to be moving in this direction. And that is survey evidence suggesting that consumers are extremely easily confused. survey evidence showing confusion seems increasingly to be operating as a Trump on courts ability to guide trademark law toward better considered outcomes. We saw this three decades ago in the old Michelob oily case. And we saw it again two days ago with the Supreme Court. This is unfortunate because 75% of trademark survey evidence that's my estimate is junk, complete junk, corrupt junk. 15% is good and 10% is actually quite excellent and really helpful to the finder of fact, the survey and Jack Daniels has all the indicia of the first category,
including all the adjectives are used to describe that category. In conclusion, and this follows from Jessica's talk earlier, the oral argument and Jack Daniels could be reasonably well understood as a battle between the sensibility of the of expressive generosity as first expressed in 1990. And that has become conventional wisdom among many trademark observers since on the one side and have bad corrupt empiricism on the other. Sadly, I agree with Jessica that the latter would likely prevail in this case, but give expressive generosity time, it has proven to be one of those articles that keeps coming back. And we'll keep coming back. And for that on behalf of trademark nerds everywhere and the third round of drinks, thank you, Rochelle.
Barbara Lauriat 22:08
Next, all right, I am going to need this. So as was mentioned, I could go on and say much of the same things that have been said by others about the debt that they owe to Rochelle, professionally and in their academic careers. All that is true for me as well. But I also have the both the privilege and really the duty to be crucial for something that was truly extraordinary. And actually, you have to there's going to need this. And in letting me let both return Robert for letting me move in with them for the first five months of the COVID pandemic. During the year you're quite rigid UK locked down. The three of us lived in Russia at the time was the very aptly named Goodhart professor at the University of Cambridge. And the three of us occupied a fortunate very large house for we didn't know it was going to be five months, and went through a very strange and scary period of time, cooking and walking and arguing. And we're cooking and drinking and anyway, and grieving. And I celebrated my first Passover Seder with them. And I celebrated my second Passover Seder with them. Anyway, I could go on and on and on. But it's, it's amazing that now I can actually look back on that time as in with the benefit of hindsight and knowing that everything was going to be okay, it's kind of special time. And I remember when I packed up my stuff and moved out or so I would say how it kind of felt like she was sending your child off to college. It was kind of like she knew I needed to leave. And, you know, that was a good thing, but kind of, we didn't want to and I felt the same way. And so of course, I managed to fulfill all of the possible fears that an academic parent might have in sending their their offspring on to the world and that basically within about nine months, I quit academia to become a full time Pilates instructor at Equinox as you do. And so I left academia and now have obviously returned as the prodigal academic offspring and so appropriately Well, everyone else is saying all these wonderful things about Russell's amazing body of work and praising specific articles, I'm going to nitpick about like one part of one article that I disagree with and try to convince Rochelle why I'm right. Because I know that she will see that know that this is love and also will put me in my place so All right, wow, actually didn't need this. So read, like my chapters, discuss more generally the issues surrounding arbitration didn't have patent disputes and considering law in various nations. And in the past, of course, Rachelle and Suzy have raised very legitimate concerns as many others in this room about arbitration, investor state arbitration of disputes involving intellectual property. So what I would like to do is to try to persuade Rochelle over here to be more worried about International Commercial Arbitration of patent disputes. Not in all cases, but more worried than than most intellectual property scholars are currently. And in doing so, I'm going to refer back to an article that you co authored with North Pope in 2009 that was discussed earlier, dethroning leader incentives to innovate after melamine. Now, in that article, there is a section where various proposals are made five types of licensing agreements that might be done to avoid some of the arguable harms of Lior versus Adkins doctrine. And C was to include an arbitration clause in the license agreement. And one of the there were various pros and cons about this. And of course, this is one of several I said, I was gonna nitpick, right. So one of these points in Section C related to arbitration clause suggestion was that so in dealing with trying to remedy this obvious imbalance between the licensor, the patent owner and the licensee, the article suggests that so long as the parties agree to keep the record of the arbitration, including any evidence presented and any arguments before the tribunal confidential, then even a successful challenge will not invalidate the patent or even provide information to other licensees, potential licensees or possible challengers. So in this sense, well, the agreement could allow for the licensee to challenge aspects of validity, but it really would be truly inter parties in this instance, where other that they would not risk losing the patent, right or alumnus against the world, only in terms of that particular licensee, and in determining the obligations under the license. Now, this is both true and untrue in terms of the actual US patent law, which is interesting to me. So if we look at 35 USC Section 294. On which explicitly allows for the arbitration of patent disputes, in fact, includes a little known notice requirements. I'm not sure how many of you are familiar with 35 USC 294, C and D. So there is this us notice, sorry, D and E rather. So there is this notice requirement, which says that when an award is made by an arbitrator, the patentee has assignee or licensee shall give notice thereof in writing to the director. It goes on and on, I'm going to come back to the part where it says this will contain a copy of the award. So Isn't it supposed to be not enough just to give notice to the director that there was an arbitration dealing with issues of a patent US Patent validity or infringement or ownership, but in fact, it's supposed to include a copy of the full award that came out of that arbitration proceeding. And Section Two nights War II says the award shall be unenforceable until the notice required by subsection D is received by the director. If you were not aware of this provision, Rochelle, or any of the rest of you were not aware of this provision, you are in good company. Because I must admit, I want some sort of tentatively kind of asked Dave Kappos about this and said, you know, former director of the USPTO. You know, how many of these notices do you get? And he hadn't heard of the provision either? And said, probably not very many if I haven't heard of it. So in a sense, when if we go back to what the article said about recommending arbitration that the parties would agree to keep the record secret between them and not provide the information to potential licensees or challengers. They do do that they are often completely confidential and secret, but they're not supposed to do that. So why is this Why is so easily avoided, and why is this actually wrong in terms of the reasoning behind the policy arguments behind 294? So if we go back to the history, so go back to 1983. Many of the proponents of this amendment to the Patent Act were they thought that this notice requirement was absolutely essential to how did the new amendment complied with the leered versus Adkins doctrines. So Harry F man, Beck, Jr, who was one of the big proponents of this, he said that this notice requirement is critical for under paragraph II, the award is unenforceable until the notice is received by the commissioner. The purpose of the notice is to give information to any interested person that an arbitration has occurred and what its results turned out to be. Paragraph D and D were intended to counter any fears that arbitration would facilitate the parties connivance and concealment of their differences or of the arbitrators holding, which is actually what you were kind of recommending they should do. Okay, and in other commentary on this, this, it's explicitly says that this was to deal with to make sure it was in compliance with leer versus Adkins and the overall public policy in favor of the invalidating patents that shouldn't be invalidated. In fact, what are these suggested that this would turn into a central public public record of such awards, which facilitate the monitoring of this new form dispute resolution and aid in analyzing the usefulness and impact of section 294? Suffice it to say that when former directors of the USPTO are unaware of it, we're not achieving those aims? Right. Okay. So
why is it how is it so easily avoided? Well, for one thing, most arbitration awards do not require enforcement as such, recognition may be, but enforcement is often considered a last resort mechanism. So if you don't need to give notice to enforce, of course, that was not what they meant. That was not what they meant they didn't need enforcement in terms of actually having to bring an action to enforce a judgment, that's a word that's already already been recognized, and then enforce it someplace to attach assets, they may you just have to give notice. Right, that was the principle behind us. So again, coming back to this question of, if we apply what I might describe as a dri fustian approach to analyzing law, intellectual property law and policy, meaning we use innovation as a central organizing principle. Is it better that, in fact, they can, as you as you suggested in the article, keep those disputes and the resolution of those disputes secret effectively? Or is it a bad thing, because we are not actually achieving or actualizing, the intent behind the amendment in 294 to allow arbitration by promoting the public nature of the patent system and allowing for notice to be given to not just the USPTO, but the public at large, about potential weaknesses in that patent. I would suggest that, if not, in all cases, we do need to be worried not just about the effective resolution between two individual parties or licensor, the licensee in many cases like this, but we also have to consider the overall impact on the system at large. And that it is probably not the best situation in terms of promoting innovation broadly, to allow a kind of self reinforcing private or secret private ordering of disputes on significant areas of patent policy that do have an effect on third parties and remove the opportunity for scrutiny from academics and policymakers. Alright
Christopher Sprigman 34:25
so I'm forcing me to close this out. And I'm going to do something that no one else has done, which is just tried to thank Rochelle. But I'm going to try to thank her both for the ways in which he's been generous to me, and helped me improve when I was a junior scholar and then helped me improve when I was not so Junior scholar. But I also want to talk a bit about Michelle's role in the field and how in particular, she made an intervention a couple of interventions actually early and up Part of the IP field that helped the field understand itself and help the people in it do better work, including me. In particular, I wrote an essay in the book for Rochelle that talks about how Michelle engaged with the field that some people refer to as the negative space of IP literature, Rachelle sometimes refers to it as intellectual production without intellectual property. It was a field in which a lot of people labored. But which for which Rochelle had a guiding role. By making comments on the field that were both critical and constructive, she changed the direction of it in a way that I think is very good. I'm going to talk about that episode for a few moments and about Michelle's contributions and how they nurtured the field. But before I do that, let me say one thing about what I'll call Michelle's cohort. And here, I'm referring to that group of women in AIP, who added to the field with their scholarship, and with their engagement with new scholars, with making new scholars feel welcome and appreciated, and helping over the years to improve their work. So along with Rochelle, I'm talking about Pam Samuelson, and Wendy Gordon, and Jessica Lippmann, and Becky Eisenberg, and Diane Zimmerman, all of these people made the IP field more interesting and productive. But and I think this is absolutely crucial. They made it more of a community, they set the norms of this field. They made people welcome. But they also taught people how to act. And as a group, they're irreplaceable. The same is true of each of them as individuals, they're not going to be replicated in any real way. So in the in the book for Rochelle, I tell the story of how Rachelle kind of intervened early on in the IP without IP literature. She did this first and a short commentary in 2007 called fragile equilibria. And then an a longer essay published in 2010. And titled does IP need IP accommodating intellectual production outside the intellectual property paradigm, as this typical, Rochelle was generous with the work of scholars who are mostly at the time juniors, working in a field trying to make sense of an interesting innovation puzzle that is looking at areas of the creative economy, in which appreciable levels of innovation seem to go along with less presence of IP, or sometimes very little presence of IP scholars in the field. We're working, then and now to ferret out the factors driving innovation where IP incentives were less available or less salient, or for some reason, sometimes historical accident less important. Michelle was excited about the inquiry, she she took it on its own terms, and she tried to make it better, she posed a couple of hard questions that the field needed to grapple with. She asked first, how far the negative space arguments could go. Could we imagine non IP innovation incentives displacing IP, she wondered also, what the domain of the negative space argument was, were there likely to be other important areas of creativity that could function in the negative space of copyright or other IP rights? And finally, there was the question that animated the title of her 2007 commentary would negative space equilibria and door would they tend to break down over time in favor of more IP focused innovation? Rochelle raised these central questions in the early days of this scholarship. When some in the field were wondering maybe to optimistically, whether IP incentives could displace IP altogether across some or maybe even a lot of the breadth of creativity, current protect currently protected by some form of IP. In fact, as Rachelle noted, in 2007, and again in 2010, almost every field that's been studied in the negative space scholarship reflects some mix of IP and non IP incentives. That was true, she said correctly of the fashion industry as Cal and I cal Roscoe and I had described it in the piracy paradox. That industry in the US enjoys relatively little copyright protection. And yet IP is not absent from the fashion industry, fashion firms police trademarks heavily as we learned, even as their designs are open to copy. And thus, the presence of trademark protection supports innovation in some ways in the absence of copyright protection. trademark law helps channel gains from innovation, even if it does not make them fully and exclusively recoupable. By the innovator, what we get is a delicate balance between IP and non IP incentives, one which preserves possibly a wider freedom to copy than a fully driven IP equilibrium would likely offer but which also provides some protection to firms that invest in innovation over the long haul in the form of reputational returns that are protected by trademark. So the correct response in my view, to Michels first and second questions is to note that her skepticism of the most ambitious low IP account has merit. And that we should redirect the main thrust of the negative space scholarship toward describing how non IP incentives can complement IP or limit the need for it. This is the narrative that emerges, for example, in the field of Open Educational Resources, or OER. We are started in a big way in the early 2000s is a global movement to make inexpensive, openly licensed instructional materials widely available. It's now gone mainstream with some of the most widely used K 12 instructional materials in the US available under one of a variety of open source licenses. And I won't stop there. I mean, Barton started a big movement here at NYU by making an open source trademark textbook for law students will others of us Jeannie and I, Daniel, Francis and I have fallen in his wake. So we are as a growing factor and in professional schools as well. So that said, we are resources have transformed the education publishing market, it would be wrong to say that OER has displaced traditional educational publishing. Both forms of publishing coexist and they compete. OER hasn't displaced copyright and the market for curriculum, but it's disrupted the market in ways that have made it more competitive and more innovative. The market had previously been dominated by a small group of large incumbent publishers, you know who they are. And the entry of low IP players seems to have unlocked some dynamism. We are as a form of private ordering rather than a legal rule of posts from above. And low IP innovation in this framework may serve as a competitive check on firms that engage in IP driven innovation. So a valuable role for low IP innovation to play is not to displace IP, but rather than discipline it. And this brings us to Michelle's third question, which is whether negative space innovation has staying power. Any system that depends on norms, Rochelle said, is vulnerable to their breakdown. And from my perspective, it's just difficult to argue against that statement as a general matter. But it's also difficult to argue that negative space innovate innovation equilibria are inevitably subject to break down. The US fashion industry, which now produces something close to half a trillion dollars a year in revenue here in the States has been innovating in a low IP equilibrium since the fall of the fashion originators guild in the 1940s. That is for the entirety of the modern era of that industry. From time to time, bills are introduced in Congress that would change that and none of them have yet passed, the Supreme Court took a swipe at it and star Athletica, which some predicted would disrupt the equilibrium, I don't think it has had a transformative effect so far. In the essay, I talk about other negative space equilibria, some stable, some not. But Michelle's point stands, stability is an ever present question. And future work should be directed and understanding the factors that make an equilibrium stick or make it fail. And to stop there and return to where I started, which is to thank Michelle for her engagement, her influence and her mentorship, the innovation field and I call it that design idli. The innovation field, as it exists today is in part Michelle's creation. She contributed her own important ideas Barton talked about some others have throughout the day. But just as importantly, she and the others that I mentioned, helped so many scholars in the field make their own contributions better. So speaking as one of the beneficiaries, I'll just say thanks.
Margaret Chon 43:41
Can we have five more minutes. So I wanted also to give a shout out to to Michael, who is kind of the invisible force behind the organization of this conference along with a bunch of other folks including Kathy Strandberg and Jean Fromer and so on. So thank you so much.
I was gonna ask a few questions, because we do have a few more minutes, but I see that Rochelle is raring to go. Oh, sure. Okay, well, I'm looking forward to hearing your comments. But I just as moderator, I'm just take prerogative here and ask very simple questions to each of the three and hopefully get very succinct less than 4000 word answers. So Martin, you know, the expressive generosity piece you're right, it has totally stood the test of time. And what I noticed as one of the CO editors of this volume is that pretty much every single chapter cited to it no matter what the subject matter was of the chapter. So why do you think that is why what why is lasting power? And I think one of the answers to that might be the if value then right aphorism that was coined there. And Barbara, you know, I'm thinking well But what could what teeth could we put into the administrative system to enforce this notice requirements that you've called out and brought to our attention, which is a really important way of thinking about the balance between, you know, the private interests and public interests in in patent law. And Chris, is there such a thing as good versus bad innovation? Because, you know, I've done some work on the fashion industry, it's a very unsustainable sort of business model. It depends on people buying lots of stuff, and then that stuff ending up in landfills. So should we celebrate the negative space of IP fashion without thinking about some of those consequences? So very quickly, starting from Barton.
Barton Beebe 45:40
So I think you've I think you've done a lot to answer the question the value then Right? aphorism was just stated so succinctly and cleanly, in that paper that I think it really registered for a lot of people at this colloquium. I was a few days ago, Mark McKenna was giving a paper we were basically talking about that at one point, with his few student questions were on exactly this issue. And so it was just striking to me. How relevant that that remains. I'll also say, again, the sensibility of the article was new. Again, we it's too easy to take it for granted now, because it's it's really affected so many of us, but I think it's time as I understand I haven't read everything from from then. But it was a different kind of way of talking about trademarks, and law.
Barbara Lauriat 46:30
Well, I think that informing people that exists would be a really good start. Possibly some redrafting so that it actually has teeth. I mean, I think that the the language of enforcement as such, it just doesn't fit in with the kind of norms language and established law in the area of arbitration. And so it just needs to fit in better with that. I mean, there is an argument to that if we can't do that, then reverting back to the original policy of, you know, arbitrability of patent disputes. But I think that's, it's that bad cat is out of the bag anyway.
Christopher Sprigman 47:04
So the question about environmental damage is something that Kalin, I read an article about a couple of years ago, Cardozo had a symposium on the 15 year anniversary of that article, and we wrote specifically about this, and we had a bunch of reasons for thinking, well, this doesn't have to do with negative space, it has to do with like progress generally, which tends to muck up the planet. So you know, certain types of progress, maybe not, but a lot do. But, you know, what Michelle really saw I think early on in this literature was she saw it for what it was trying to do, which wasn't like telling necessarily a story about good or bad but telling us just a descriptive story about like what actually happens, right? Because then we have theory, and what's so beguiling about IP theory is it's so clean, right? A lot of it and like a lot of theories. When you look a little closer to the ground, it's very, very messy, and I just temperamentally am attracted to messiness. I'm always suspicious of anything that's clean or logical. And so this absolutely fit my mind and I thought Rochelle appreciated that.
Margaret Chon 48:04
That brings us to the end of our panel and I want to please thank our panelists.
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