Today's episode is the framing discussion that served as an introduction to the Fake Symposium. It features Engelberg Center Faculty Co-Directors Jeanne Fromer and Christopher Sprigman, as well as Executive Director Michael Weinberg. It was recorded on September 22, 2022.
Michael Weinberg 0:00
Welcome to engelberg center live a collection of audio from events held by the engelberg center on innovation Law and Policy at NYU Law. Today's episode is the framing discussion in the fake symposium. It was recorded on September 22 2022.
All right, thank you, everyone, and welcome back. This is the session today that we are using to further frame what we are doing. I think this is a topic that was exciting to us, but was one that we weren't exactly sure, the best way to approach and the best way to think about the various panels that we wanted to pull together obviously, as Steve, his keynote did a great job of highlighting the nature of of truth and falsity. And real and fake is both incredibly specific and incredibly broad. And so what we want to do for the next couple of minutes, is talk a little bit about how we have been thinking about these questions in preparation for all the panels that we will have, and the sessions we'll have for the rest of today and for tomorrow, and give you a little bit of a preview of how each one of those sessions is going to take a different piece of this. In the interest of not kind of jumping the gun too far, these are going to be set up previews, we're not going to go deep into it, we're gonna give you a little bit of something to think about, and maybe something to think about and consider during our lunch break, which will happen after this session. So we're gonna start with Jeanne Fromer, who is going to kick off our first initial framing of how we're thinking about these questions. And what drove us to have such an event is the fake symposia.
Jeanne Fromer 1:54
Thank you. So I'm going to just start out with a few preliminary thoughts that are actually kind of abstract, but hopefully it abstract in a way that maps onto a number of the topics that we're going to be exploring over the next few days. And so the first thing I'll say is that I think fake. The word fake means nothing without a countervailing notion of real or genuine or true. Also query whether these three different terms that feel related are actually the same as each other. And so while fake news would likely suggest disinformation, or hoaxes, published as news as Siva was, quite interestingly disgusting just now, others like Donald Trump have weaponized the term to refer to generally credible news that they would like others to disregard. And it's important to reflect in each of the categories of fake that we're going to explore. I think the news videos, inventions, handbags, people, whether there's a notion of genuine or real or true in that category, there might not be right at all. And we may have to think through whether there should be and if there is what precisely it is. And also to think is fake the opposite of genuine or real or true, I think about this a lot in the context of the word. Similarly, in the context of the word fact, you know, what is the opposite of a fact which feels a little bit similar? And the opposite of fact, could be fiction. It could be opinion, it could be a falsehood or a lie. It could be another fact. And the way that David's question earlier was getting at about presenting different stories to a jury and emphasis in different places. Okay, so also, I'd say following up on all this, it's important to be attentive to what precisely fake modifies for example, calling a person fake is not suggesting that they're not human, but that they're acting contrary to their genuine emotions or views. Calling an object to fake handbag is not implying that it's not an actual handbag you can use, but that the handbag or its maker, or the seller, is being deceptive as to the true source of the bag. So fake can mean very different things. And we have to be attentive to what exactly we think is fake about the thing it's modifying. The third thing I'll say is that one of the important questions for fakes writ large is whether fakes cause harm. And what that harm is, is it that people are deceived into thinking something is what it is not. So Perhaps, but even the harm of deception plays out differently for different fake things. Contrast the counterfeit drug that kills a person who takes it with faked information and a patent or trademark application that allows the applicant to secure undeserved rights. With someone carrying a fake handbag, and perhaps confusing third parties that is genuine, a restaurant owner receiving death threats after a false story a spread that the restaurant is the meeting place for pedophilia ring, the harms feel quite different, depending on the context. Another thing to keep in mind, and maybe you know, more broadly, you know, perhaps there's a harm from fakes that's worth exploring, is that the notion of truth is solid. And I think this connects to what Stephen was just discussing, perhaps also making it harder for the public to sort out what's true and what is not true. And the last thing I'll just say that I think might apply across the board over the next couple of days, is how much intent matters. Does something have to be deliberately fake to be harmful to people have to be convinced that a fake is genuine in some way for it to be harmful? Or does a fake have sufficient or have to have sufficient negative effects in some way regardless of intends to be harmful? So I've said a lot of abstract things. And that's enough abstraction for the moment I'll I'll turn things over to Chris, I know who is gonna get us much more concrete.
Christopher Sprigman 6:39
Well, we're gonna get as concrete about one particular piece of this, but this is just a piece we're going to talk about fake news, we're going to talk about fake art. We're going to talk about fake IP. We're talking about fake social movements and social media. I'm going to talk a little bit about this place, which is which is a factory it doesn't really look like a factory. It's a factory that makes a lot of spends a little bit of time making furniture and spends a ton of time making stories. So this factory is located on Charles Eames Sarasa, outside the small town of bursts felled in Switzerland. And this is the main building of Vitra, which is a family owned company that makes modern furniture for homes and offices. Vito was founded in 1957. Importantly, as a European licensee of furniture from the Herman Miller collection for the European market, the American market. These are primarily designs by Charles and Ray Eames and also George Nelson. Those designs remain at the core of Beatrice business today. vitro is selling chairs, tables and lamps designed for the most part by US based designers the Ames is Nelson in the 50s and 60s. Some but not all of these designs were originally protected in the US by design patents those have long ago expired. Many of the designs are widely knocked off, especially in the US. So here's a replica for example of an Eames lounge chair which you can find online and many varieties. Now in Europe, the story is a little bit different vitro is an aggressive IP litigator in Europe, bringing copyright lawsuits against European sellers of furniture like the Eames lounge chair, but features primary strategy although they spend a lot on lawyers, and they spend a lot of time in court. They even cooperate with European authorities to have people arrested for importing chairs like these features primary strategy isn't really legal, it is rather cultural. What Vitra really makes isn't furniture, but stories about furniture, stories about the origin of the furniture they sell, about the lives, the relationships, the personalities of the furniture designers they promote. And above all vitro makes stories about what makes a chair or a table or a lamp real, what makes a chair or a table or a lamp authentic. or fake. Vitra is perhaps the world's most active, at least in the furniture market, purveyor of stories about authenticity. So if you visit the feature factory, and the nearby vitro Museum, you'll see vitro is authenticity strategy close up. So here's a slide of a story they tell about Charles and Ray Eames and the the relationship of Charles and Ray Eames to vitro. vitro strategy writ large is to take furniture designs, which, for centuries, from the perspective of consumers have mostly been presented largely as anonymous works of craft. But those chairs you sit in on who makes them you have no idea nor do you wish to know. The Vitra does. Try to transform this by relentlessly building a narrative of authorship to turn these anonymous works of craft into authored works. To effectively have art. The feature factory and the store and the design museum are all full of stories about the lives of Charles and Ray Eames, George Nelson and the other designers feature markets and V tres eager to associate itself with the designers to cast itself as the keepers of the authorial legacy. This strategy raises a lot of questions. One is precisely what makes an Eames lounge chair authentic or real. The knockoff Eames lounge chair that I showed you, follows Eames, original design actually precisely. is authenticity in furniture a matter of fidelity to design?
If so, that chair is real? Or is authenticity in furniture a matter of authorial pedigree? authorial pedigree, is what Vitra is aiming to establish as the prerequisite for authenticity for these furniture designs. Vitra has an interest in that understanding of what makes a design authentic. That's pretty obvious, but what's consumers interest in that frame? On the one hand, protecting furniture designs from craft, promoting them from craft to art, could harm consumers by restraining knockoffs. The broadening in Europe of copyright protection for furniture designs might lead to that end, it aids in part the efforts of Vitra and others to promote furniture designers works of authorship, but it does actually restrict competition attempts in the US to enforce trade dress protections, and some of these designs might trade on the same strategy turning these mid 20th century designs from anonymous craft into authored art. Is there some value of this type of authenticity to consumers? There's certainly value to be true, as I said, but what do consumers get out of it? This model of pushing the furniture market towards something like what luxury goods companies do creating appeal through rarity? And is that rarity itself authentic? That leads me to this series of pictures. These are images of fanciful for colored Birkin bags, created by artists Mason Rothschild, who I and Mark McKenna, Rebecca TouchNet and our colleagues at Lex Lumina represent and litigation brought by Romans. Rothschild titled these images meta Burke or mez is alleging that the name will confuse consumers about the source of the product. But what is the product? Or mez says these images and the NF T's that Rothschild created and associated with them are quote, digital knockoff handbags. Unquote. Rothschild says their art. He also says that metal Birkins work kind of experiment. He wanted to see whether he could replicate in the metaverse the appeal of the Birkin back. Which meant of course, understanding where that appeal comes from. Is it in the physical object? Where does the appeal of the Birkin reside in its image? What exactly gives a Birkin its value? What is the seat of a Birkins? Authenticity? Well, today in tomorrow, we're going to be talking about these broader questions of what authenticity is what is real, what is fake. And what separates those terms. We'll have panels that look at the question of real versus fake in the context of social media movements, consumer goods, arts, intellectual property, and news in all of these areas, I think we'll see that the boundary between real and fake is elusive. And shifting those areas, I think we'll see that the law helps to draw and redraw that boundary. I'm hoping at the end of the conference that we'll have heard some provocative and valuable ideas on whether these boundaries make sense by some criteria, whatever that might be, and whose interests they serve. And ultimately, whether the enterprise of separating the real from the fake is worth the incredible effort we put into it. Okay, that's enough. Thank you so much.
Michael Weinberg 14:05
I do think that question of whether or not these distinctions or these labels makes sense, because there really is one that we're gonna we're gonna run into over and over again, right, many of these panels and I get the the honor of describing some of the panels to you, that we're going to have today and tomorrow, but many of them have a kind of two step analysis, right. The first step is, what are we really saying in this context, when we say this is fake, or this is real, or something in between? And then the secondary question is, sort of so what right do we do these distinctions make sense? Are these distinctions that are worth maintaining? And further, are these distinctions that are worth maintaining in the law? Right, it's one thing to have an opinion about whether or not something is real or fake. It's another thing it's another thing to back that up with the power of Law to continue to maintain that distinction. So those are the kinds of questions that I hope you'll keep in mind as we work through today. And tomorrow. So there's that I get, I get to do a little bit of a preview of the panels that are coming up, very much just sort of touch on what to expect and what to think about to hopefully give you something to think about during this lunch period. And then we'll come back. So the first panel after the break, we'll be focused on fake social media movements, and advocacy. And that's obviously a huge topic, right? Who is who online what is real online? What is fake online, is, is a topic of, in some ways, infinite depth, in some ways, no depth at all, but certainly broad, broad scope. And so one of the things that we're going to try and really do during that discussion, she's put it in the context of advocacy around policymaking. And to understand when there appears to be a mass social worker, in favor of policymaking or decision making, yes, basically, how do we understand what, how real? How to weigh it? And then for policymakers who are trying to take that information in? How should they think about it? Right, especially as they're they're thinking about potentially building, you know, automated tools that help them digest millions of comments that an agency receives? What does it even mean to digest those comments? What is the purpose? What is their goal? Or what are they trying to achieve by synthesizing that information that is coming in. So that's a thing that we're going to talk about in the fake social media movements panel, we're going to follow that panel with the fake goods and problem of authenticity panel. This is a panel that that Chris will be running and will we be tied to the presentation that he gets, and expanding on these ideas? You know, what does it mean to be authentic? Who gets to decide what authentic is? And again? Should we care? And should we allow the law to punish someone who deviates from that opinion? The final event, the final panel, today, we'll be focused on fake art, which, in some ways is the slipperiest of all of all categories here, right? What is art? What is real art? What does it mean, when an artist who created something can recreate it or create it again? And then decide what it means to have all of these different versions? What does it mean, when great works of art, are recreated and recreated in completely different cultural contexts, and then become the fodder for a whole new stream of creation? That's so far away from the context that created the original piece? Is there a point where that becomes real or fake, and fake in a way that we should be concerned about, or that is maybe terribly interesting, and that we should be excited about? That's what we'll talk about in the last panel today about fake art. And then tomorrow, we have a couple more panels. The first panel is focused on fake IP right here we are at a law school, fake intellectual property. What What could be more straightforward, right? We have classes, we have doctrinal classes, all of these types of intellectual property law. You know, you're you're infringing, you're not infringing. And it's a simple decision. It's all done. And so this will be a panel that really investigates
something that jeanne was touching on a little bit too, right. Like, what are we trying to say when we say these things? These things are real or fake? And if they're fake, are they are they fake in the sense that they're non existent? Are they fake in the sense that they're trying to pass themselves off to something else? Are they fake in the sense that they're actually trying to scream from the hilltops? We are not the original, but we have a relationship to the original? And how do all the types of intellectual property law on protection intersect with those? And that's really a place where the question of what should the law be enforcing as opposed to a social expectation and a social norm? And how should all these pieces fit together? The next panel will be focused on on fake news, in some ways, the classic fake that is in the news all the time. And as Sivas presentation touched on, even when you're thinking about fake news, right thinking about the flavors of fake news is this news that was intentionally manufactured to deceive Trump. Is this information that comes out of a community that is in its way acting in good faith, but it's just completely detached itself? From what the rest of society believes is a shared reality? As the question, you know, we would have question at the end of his presentation about how do you think about actionable items and defamation? And in a world where like, what is news? And what is reputation? And how do those pieces even even fit together? And what are the harms? In a very complex news environment in potentially a very complex truth environment? If we're willing to accept that that's the case. How do we think about harms? And how do we think about the role of fake news as simple as simply a smokescreen? Right, that is thrown up to say, I don't want to engage with this with this question. I don't want to engage with this truth. I don't want to engage with this fact. And so that is something that we'll spend some time exploring a number of different angles. And then the final piece tomorrow will be a very, I'm very, very excited about all of this, but especially where Genie is going to have a conversation with some of the people from from Michigan, which is an artists collective that are some of the leading artistic engagement engagers, I think, with these questions of like, what does it mean to be real? What does it mean to be fake as especially as a brand? And what does it mean to build off of a brand and can take a brand somewhere else? And very intentionally take it somewhere else that that the brand's creator, the rights holders, didn't do in many cases are very, not excited about learning in some cases, or embracing. But what does that what does that roll on? What does that mean? And how does it connect with, again, our societal expectations and our expectations about who should be able to use the law to stop things or promote things and to declare things to be?
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