Lydia Pallas Loren / Viability of $30 Casebook (paper)
Traditionally published casebook has a price over $200, truefor a lot of casebooks. What is the law student in that model? The law student is taking on debt, and booksare part, though admittedly a small part. She saw students choosing not to buythe book—using it on reserve, sharing a book with a fellow classmate; they don’thave continuous access to the reading material. Or they’re infringing, via torrent; or they’re physically copying thebook at the copy machine—dean sent a message at her school last year advisingagainst this practice.
Decided with Joe Miller to create Semaphore Press, with asuggested price for ebooks of $30, but students can choose to pay less or topay nothing. In this model, law studentsare reasonable individuals. Are theyfreeloaders? Are they rationalactors? But what she knows they are:people who have access to the reading materials at all times; for an educator,this is the desired result. When yougive them this possibility, what happens? 83% pay something, out of 26 classes using Semaphore Press books; 24professors responded to our request for final class enrollment, allowing themto track payment rates. We do get peoplewho pay 1 cent-$5; 1.7% pay $5-10; 4% pay $10-20; 4.3% pay $20-30; some peoplepay more--$31, 32, 50. Usually thosepeople also send an email. Some peoplepay $1 per hour of class time if you’re not going to use the whole book. A few professors gave their students thatsuggested price. So it seems studentsare making the choice “should I pay or not?” and they overwhelmingly pay thesuggested price once they say “yes.” We do get emails from students who saythey didn’t pay.
What’s going on? Students don’t necessarily realize thatthey have the option to download for free; they have to pay a little bit ofattention. $30 is pre-checked, but theyhave the “or” option. At the bottom,under “charge my credit card,” there’s a cancellation button and a button says “freeride—Iwon’t pay now but want to download anyway.” Are they making a conscious choice? According to surveys, mostly. Seems like a good deal to them: PDF, no DRM. One student was upset—asked why he paid? Refunded his money; her business model isn’tdealing with odd people. Maybe studentswant the model to succeed.
There tend to be mechanisms for policing a norm of paying inother situations—jam bands, etc. There’sreally no way to enforce that norm here. Is there reciprocity in this model? We treat you reasonably so please treat us reasonably.
Why this model over a required price model? Enough people pay that we don’t want the pathof a required price, so we don’t need to battle pirates/deal with DRM thatreduces usability. You don’t know what students will do if you give them theseoptions—readaloud into audio files for listening during a commute. Free downloads are also a possibility—HerbHovenkamp posted a competition casebook on SSRN.
Why not a tip jar? It’s not a charity—it’s about somethingreasonable and providing a means to make payment. Instead of “how do we makestudents pay?” we ask “how do we let students pay?” We have IP Survey, InternetLaw, and Interstate Compact Law. Ifpeople want to make the leap, consider your students and your debt. We pay 50%royalties to the authors. Prestige? Mostschools don’t even count casebooks for tenure. We let you keep your IP rights.
RT: Copyright clearance? (You don’tneed a set-your-own price to be without DRM!)
A: we have a best practices statement with which we askauthors to comply; we have a liberal view of fair use and are confident in ourability to gauge what counts as fair use in any particular text.
Mark Lemley: You could test whether people just go withdefaults or whether they go with fairness. What if you listed three boxeswithout a check mark? If you varied “freeride” to “sorry, I’d love to pay but I can’t,” you’d get a test of theendowment effect of preselected defaults, and maybe about public shaming.
Tyler Ochoa: we’ve taken the position that any image thatappears in a case is fair use and a pretty aggressive position if it’s the workat issue, and our publisher lets us do that.
Peter Yu: works with a course relying on cases, but whathappens when you do need permission fees, say for a book of essays/excerpts.
A: have to make a calculation about what you can afford toallocate to permission fees.
Q: are you rational actors? If you want to offer lower-cost, DRM free textbooks, that doesn’tdictate the pricing model. You couldoffer everything you offer for $50 without the free option, or experiment;could increase your revenue without decreasing adoptions, at least in partbecause of the agency problem! And stillget most of what you want from this enterprise.
A: Not as confident that we could change and get what wewanted. We tested this model, and aresharing our results. As the landscape changes, books getting more expensive andbreaking the $200 barrier, maybe a higher price is justified.
Q: but look at how few people pay nothing.
A: but that option might make people think it’s reasonableto pay in the first place.
Lemley: also maybe different authors can demand differentprices.
Andrew Gilden: music purchasers don’t want to give money tointermediaries, but to performers. Isthere a student analogue there?
A: maybe there’s more of a direct connection. Students can look and see our revenue split.Ryan Calo has noted that putting a picture of eyes over the coffee in the breakroom induces payment; we considered putting a picture of the authors on thepayment page, but our payment rate is already pretty high. (Dan Hunter suggests a picture of JamesGrimmelmann holding a puppy.)
Nicolas Suzor / Collective action models in open accesspublishing
Commons based or collective action modes of publishing—todayfocusing on open access. Journal prices have increased 300% over 25 years; ave.subscription price is around $1400; increased stress on libraries. Problem isworse with monographs. As science journal budgets go up, strapped librariesspend less on monograph, so the ave. run is now 300 copies, $96. Out of reach of most people not atwell-funded research institutions. Difficult for people in socialsciences/humanities, where monographs are important for tenure and promotion.
Bill before Congress: require fed funding agencies tomandate that research from fed funds will be open access, supplemented by anexecutive order. Funding mandates haven’t successfully reduced loads onlibraries, and don’t reach the bulk of humanities research which isn’t fundeddirectly through the grants. There are many small scale open access journals. 75% of them don’t charge article processingfees. But can that scale?
SCOAP3: led by CERN, consortium of over 1000 researchlibraries and funders in high energy physics, trying to flip the field to openaccess. Average fee of $1550 perarticle; one major publisher not included; currently charges $2700 per article.Publishers commit to decrease costs of their bundles accordingly; if that works90% will be open access within a year.
Are physicists special? 90% of physics publications are already in open access repositories forprepublication versions. CERN is alsoreally good at large-scale international collaboration; can another scholarlygroup bring 1000 libraries together to fund a project?
KnowledgeUnlatched—trying to take a similar model in the humanities. Run as anonprofit in the UK, doing a similar thing with monographs. 30 academicpublishers and 400+ university libraries. Attempting to find a sustainablemodel. (So it’s Kickstarter for libraries/monographs?) If enough libraries commit to buying into theproduct, the title is released under an OA license; publisher retains the rightto sell print version and enhanced digital versions. It’s currently subsidized but the hope is tomake it sustainable. Will libraries contribute or free ride? Will it work under international/disciplinarynorms? Only 30 universities in Australia:aren’t enough to fund the production of Australia-specific humanitiesbooks. Not clear what the value addedversions will cost.
Publisher-friendly model: enables existing publishers tofind money and retain place/prestige in the market; reduces a lot of the riskby precommitment. Also means librariesdon’t have to find new norms of evaluating quality in publishers and can relyon established imprint. Could make it easier to publish if publishers bear lessrisk. Hoping to show that commons can bemanaged without tragedy. Rational actorsv. cooperators.
RT: Rational actors can be cooperators—game theory (heshowed a picture of Spock; Spock is hardly an Ayn Randian hero in hiscollaboration with others, logically). Wikipediav. Kickstarter: these aren’t the same models. Kickstarter: prepaying for a product;that’s a known model (it’s how universities hire professors, on promise offuture production!).
A: true; Kickstarter can be used as premarketing/prepayment;can also be used to fund open access products.
Q: Rational actors don’t always choose to free ride. People value things other than money. (And even if they only valued money,cooperating would often produce more of that!) The user is being rewarded for participating. (Here, the participating libraries may beable to gain prestige, among other things.)
A: part of the question is to define what the rewards/valuesare.
Loren: Disaggregating the role of the publisher—the publisherplays many roles, finding people to publish, filtering, doing the editing, thenproviding the actual books. KnowledgeUnlatched seems to be taking the filtering/editing to get good open accesscontent. Some contracts provided thatwhen a book went out of print the copyright would revert to the author; whatdoes it mean now to be out of print? Some authors are willing to offer content open access once a book is outof print, but that incentivizes publishers to never let a book go out of print.
A: same incentive exists for traditional publishers.
Mark Lemley: Software Patents and the Return of FunctionalClaiming
Lots of evidence that software patents aren’t needed for innovation.But nonetheless there are enormous numbers of patents in the softwareworld. Smartphone: 250,000 patents oncethere are apps on it. Many of those patents are bad, but even if 90% were badand weeded out, that’d still be a big thicket.
Some people have said the problem is scope and we need clearboundaries. Patent trolls and companiesthat make stuff suing each other cost us a lot of social productivity. But he thinks that’s not enough: if wedefined clear boundaries we’d find exactly how screwed we were. We’d find hundreds of patents required to usewifi, video on demand, etc. etc. Lots ofpeople pop up to claim these things, not “I own one particular component that’snecessary to wifi” but “I own the thing itself.” And that’s because we letsoftware patentees get away with claiming the problem they claim to have solvedrather than claiming the method they used to do it.
I’ve written patent claims not to the code/machine I builtbut to the function it performs. Worse than that because of the rise ofcapability claiming: a computer programmableto do X, Y, Z, so the mere fact of providing software that could be altered toproduce that result arguably infringes. Thus many people can say with astraight face “I own video on demand” etc.
We wouldn’t do this in any other area of patent law. Imaginea pharma claim not to chemical structure of a cancer drug but “atoms configuredto cure brain cancer”—the idea of solving the problem, not the problem itself.Jackhammer inventor couldn’t claim “means for breaking rocks” and claim allways of breaking rocks. People tried this 100 years once peripheral claims weredeveloped. Wright Brothers actually invented a particular way of making planenot flip over when you tried to bend a wing to turn; run a cable to the rudderthat stabilized the aircraft. Turns out not to be the only way to solveairplane stability; subsequent inventor invented the aileron. Wright Bros. sued and won because theirinvention was directed to the solution. But by the 1940s courts were sick ofthis and started to reject patent claims as indefinite if they just said whatthe problem was and not how to solve it.
Congress compromised in 1952: you can use functional termsif you want to, but you don’t get ownership of the entirety of the function:functional terms is a signal to read the specification and limit you to theactual structure you built and equivalents thereof. But not in software! Software claiming of thekind I’m talking about, means plus function, is functional claiming but courtshaven’t treated it as such. We confused hardware and software by backing intosoftware patenting by claiming we were really allowing patents on machines (thecomputer) even though it’s the software program achieving the function. That’sjust like saying “atoms configured to cure brain cancer”—confuses substrate forthe claims themselves. Softwareinventions require software implementations not just the fact of occuring in acomputer.
Second reason we got here: Fed. Cir. is a formalist court.Well, we want a rule for what counts as a structure; presumption is that if youuse “means for doing X” we presume it’s a means plus function claim and if not,not. Having done that, never allowed thepresumption to be rebutted as a practical matter. Dedicated the decision topatent owners. That’s a bad idea. Lawdoesn’t say the patent owner can have a functional claim if they want one.
His proposal is simple: read the statute and apply the rulesthat apply in every other area to software. If we do that, patents that say “acomputer program to do X” will need a structure. Either you never did build astructure/algorithm to implement it and just thought it was a nice idea, andyou have an invalid, indefinite patent; alternatively and more frequently, yourpatent will be valid and you’ll own what you invented, but that won’t be theproblem you solved, but rather the particular way you solved the problem andthe equivalents thereof. Not limited to exact code; there will be fights aboutequivalents. But those are the fights we’re supposed to have in patent law overscope. That will get rid of the thing clogging the patent system with thisenormous thicket with lots of people claiming “everyone in the industry hasinfringed”—you’re limited to the things you used to solve the problem.
Ochoa: isn’t a large part of the problem that you don’t haveto disclose code?
A: under current law, disclosure didn’t help except to weedout the people who didn’t write anything at all. Phantom patentees are some ofthe problem, but a decent chunk are those who in 1992 came up with a system for providing video over a network and are now claiming any system for providing video over any network. They have a valid, butlimited, patent.
Once we determine it’s means plus function, your patent isinvalid unless you have an algorithm showing how you did it. That doesn’t meansoftware code, and it’s not clear that the actual code would be the most usefuldisclosure. More useful: structured 3-page description of implementation orother kinds of abstraction. There’s a fight in Fed. Cir. about required levelof detail, but “more than zero” is a step in the right direction.
Loren: you’re relying on indefiniteness; what about writtendescription and enablement, constraining the inventor to what they inventedbecause they haven’t enabled everything they later claim.
A: plausible approach, not terribly successful underexisting caselaw, whereas once you understand that you’re inmeans-plus-function land courts have been willing to hold software patentsinvalid or limited. Okay withenablement, but there’s bad early case law. Fed. Cir. early on said that executing code was merely a job for codemonkeys. Fed. Cir. is getting better onenablement; written description is also a possibility, though doesn’t know weneed a separate requirement.
Scott Boone: opportunity for a litigator to win reversedoctrine of equivalents?
A: good luck with that. This is the best tool because itrequires no change in the statute or even overruling the Fed. Cir., just havingthem allow rebutting the presumption. Ifand when this issue goes to the SCt, there’s no binding interpretation requiringthis. A Supreme Court that goes and reads a statute that says “somethingwithout structure is in this category” and confronts a lower court that adopteda formal rule changing that standard is not going to uphold that.
Carlos Andres Rubio Luna / ‘Blackstonian Copyrights’ andother Flawed Claims about the Early History of Copyrights
How often we come to dead ends where it is difficult toallocate value generated in copyright contexts. Default: we say there’s a rightin the copyright owner. Propertizationliterature: was it problematic to treat copyright/IP as forms of “property”rights. Does property language lead us to incorporate without thinking about itideas that favor copyright owners, through embedded connotations? Semioticapproach to law.
People claim that Chancery decisions after the Statute ofAnne impliedly recognized copyright as property or literary property. But: historians are prone to read historyfrom current concepts. The word copyright didn’t exist before the Stationersintroduced it; “literary property” is absent from the Statute of Anne andChancery decisions. Most legal actors back then were aware that “property”claims were basically a hoax; no one fell for them. When we remove ourlinguistic presuppositions and start reading history on its own terms, whathappened in the 18th century was very different from what happenstoday. Some legal actors are usingsimilar language to what was used then: instances of individualized rights. Butthat wasn’t the only form of legal thought then; most discussions revolvedaround considerations of wrongness. Oncewe read the debate as about wrongs, we’ll understand it better.
Mere wordplay? Language develops first, then we develop theories around thelanguage. Common law and Chancerydeveloped without any theory of rights—yes, they protected rights, but they didso through procedural rules and with consideration of wrongs. Blackstone tried to systematize the law. Important to approach historical sources withawareness that they incorporate several different codes. Discussions turned on acts of invasion, not origin, of property. That means they were actually talking aboutwrongs—how can a pirate infringe? What is the wrongful act for which a piratemay be blamed? This is a mode of thought that focuses us on the particularproblem to be addressed, not the “rights” of the owner, which Lord Camden in Donaldson called a “phantom.”
The ideology was broader than ours is now: property is notjust individualistic, private right. 18th c. lawmakers thought inmuch broader terms: what is the person accused doing, and what will our rulesdo for future wrongdoers.
Next step: study “ownership” claims in copyright and patent,but there is a distinction between natural language and the legal lexicon. Do those meanings have effects injudicial/legislative outcomes?
Ochoa: IP rhetoric is relatively recent, but propertyrhetoric is older: Adam Mossoff’s work on this in the 19th c. Statute of Anne is very different, true.
A: If you look at the common law, it’s common to see thejudges incorporate that rhetoric into decisions. Then there’s a collisionbetween the connotative natural language and the law. Yes, the rhetoric was there.
Andrew Gilden: Eldredand Golan arguments also involveusing history to dehistoricize the present moment. So you can see the sameprocess presently, which may illuminate the normative argument here. Is theresomething lost by not seeing the shift from more of a tort based system to moreof a property based system?
A: Once we can think about 18th c.: they gavemore deference to a vision of property that was relational: how do rights inauthors/publishers impact competitors/the public? When we discuss property, the words matter.
RT: Reminds me of Adrian Johns on how piracy preceded theconcept of copyright. (Also more tangentially Mark McKenna’s work on howconcepts of TM infringement changed over time, so that the same words meantdifferent things without judges really noticing that.)
A: Literary piracy debate was more focused on pirates thanon authors—not on authors’ desert or legal protection, but about whether theStatute of Anne was sufficient?
Ochoa: Justice Gould said that if a book goes out of printit should be considered public (Luna clarifies that Gould actually favored common-law protection—the Statuteof Anne never gave remedies, just a criminal penalty—that should tell yousomething about the nature of literary property). But that starts from theproposition that there’s common-law copyright until publication, and if itdoesn’t stay in print it goes into the commons. We’ve lost that concept on bothends—pre publication and public domain.
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