Cyberscholar Working Group at Columbia
November 14, 2014 at 5PM
Columbia University
Graduate School of Journalism
Pulitzer Hall 607B
New York, NY 10027
The Cyberscholar Working Group is a forum for fellows and affiliates of MIT, Yale Law School Information Society Project, Columbia University, NYU, and the Berkman Center for Internet & Society at Harvard University to discuss their ongoing research. Each session is focused on the peer review and discussion of current projects submitted by a presenter. Meeting alternatively at Harvard, MIT, Yale, NYU, and Columbia, the working group aims to expand the shared knowledge of young scholars by bringing together these preeminent centers of thought on issues confronting the information age. Discussion sessions are designed to facilitate advancements in the individual research of presenters and in turn encourage exposure among the participants to the multi-disciplinary features of the issues addressed by their own work.
This month's topics include:
(1) Personal Jurisdiction and “The Interwebs”
For nearly twenty years, lower courts and scholars have struggled to figure out how personal jurisdiction doctrine should apply in the Internet age. When does virtual conduct make someone amenable to jurisdiction in any particular forum? The classic but largely discredited response by courts has been to give primary consideration to a commercial Web site’s interactivity. That approach distorts the current doctrine and is divorced from coherent jurisdictional principles. Moreover, scholars have not yielded satisfying answers. They typically have argued either that the Internet is thoroughly exceptional and requires its own rules, or that it is largely unexceptional and can be subject to current doctrinal tests.
The difficult relationship between the Internet and modern personal jurisdiction doctrine is a symptom of a much larger problem. We argue that the Supreme Court’s current approach has bifurcated physical and intangible harm. Viewed through that lens, the overarching problem comes into focus because rules that sensibly govern the physical world apply awkwardly—sometimes incoherently—to intangible harm. Accordingly, we propose a return to personal jurisdiction’s first principles, particularly a concern for fairness and predictability. We argue that courts should dispense with the fiction that purely virtual conduct creates any meaningful contact with a particular forum. The narrow approach that we advocate likely will restrict the number of places where a plaintiff can sue for intangible harm, but through three test cases we demonstrate why such a rule will enhance fairness and predictability while also ensuring sufficient access to justice.
Alan M. Trammell is an Associate-in-Law at Columbia Law School. His research interests are primarily in the areas of civil procedure and federal courts, and his scholarship has appeared or is forthcoming in the Virginia Law Review, the Cornell Law Review, and the Vanderbilt Law Review. Before coming to Columbia, he taught civil procedure and a Supreme Court seminar at Brooklyn Law School, where the students chose him as teacher of the year for the 2013-14 academic year.
(2) Black Box Copyright
The apparent simplicity of a copyright infringement claim—was a work copyrighted and was it used without permission?—belies the complexity introduced by new technological mediums. Though copyright law is designed to treat unforeseen and extant technologies similarly, new technologies may introduce a new locus of inquiry, raising questions about valuing substance over form. Should judges look internally at the technological design or instead focus externally on the technological output? Numerous cases from the past forty years demonstrate that this internal-external decision is determinative. Yet, courts continue to diverge on approach and scholarly literature lacks an account of the proper perspective.
This paper analyzes copyright law’s problem of perspective and offers what I call a black box perspective. Focusing on the policy goals that animate the 1976 Copyright Act and the directions in which internal and external perspectives drive innovation, I argue that copyright law is primarily concerned with technological output, not design—that the law cares about what a technology does, not how it does it. This perspective has important implications for existing copyright law, especially as it is applied to new technologies, and for copyright reform. In particular, I propose that exclusive rights should be balanced with general limitations, such as a digital first sale doctrine, that also adopt a black box perspective.
Brad A. Greenberg is an Intellectual Property Fellow at the Kernochan Center for Law, Media and the Arts at Columbia Law School and is a Visiting Fellow with the Information Society Project at Yale Law School. His scholarship addresses emerging questions raised by technological innovation, particularly in relation to information and creative industries; it often draws on his prior experiences as a newspaper reporter.
(3) Trade Mess: Cognitive Science Concepts of Similarity Judgment and Trade Dress
In Comparing Apples to Applejacks: Cognitive Science Concepts of Similarity Judgment and Derivative Works, 60 J. Copyright Soc’y U.S.A. 3 (Spring 2013), I survey copyright’s derivative works doctrine and the fair use test, examining historical issues in both statute and relevant case law. Much of the law in this area, which focuses on whether or not one work has infringed another, uses complex legal tests to determine similarity between the original and infringing work. The article examines these judge-made tests through the lens of cognitive science and psychology’s models about human perception of similarity. Specifically, I compare these tests with cognitive science findings on how people assess similarity to illustrate how judges might be highly susceptible to a number of potential biases in their tests for judging infringement, derivative works, and fair use. Finally, I suggest possible improvements to these frameworks, future applications for cognitive science in copyright law, and ways in which both plaintiffs’ and defendants’ copyright attorneys might use these biases to their advantage.
The cognitive science framework I examine in Applejacks can inform other intellectual property doctrines, and my current work in progress, Trade Mess: Cognitive Science Concepts of Similarity Judgment and Trade Dress, turns to “trade dress,” a legal doctrine in trademark law. Trade dress is a legal term of art used to describe the non-functional “total image” of a product or the appearance of a product itself or its packaging. The Lanham Act provides this protection, giving legal relief to a business that feels another business is creating a likelihood of confusion with the protected good. For example, a restaurant’s name or logo might be protected as a trademark, while the unique design of the restaurant—Hard Rock Café’s music theme and décor, for example—might be protected under trade dress.
In Trade Mess, I argue that the common law tests that determine infringements of trade dress create a subjective and confusing standard. Whereas trademark and trade dress often have the same purpose of protecting both the consumer from confusion and a business from brand theft, trade dress is unique in the wide swath of “non-functional” things it covers. For example, the Coca-Cola or Tiffany’s logo is protected by trademark, but the distinctive green hourglass bottle, or the Tiffany-blue jewelry box is protected by trade dress. Courts have struggled to consistently apply tests for trade dress, in large part because infringement triggers a subjective determination that examines, among other things, the product’s context in the marketplace. The Supreme Court’s decision in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992), attempted to clarify trade dress by defining it as the “total image of the business.” In the case of taco restaurants, the Court reasoned that the image could“include the shape and general appearance of the exterior of the restaurant, the identifying sign, the interior kitchen floor plan, the decor, the menu, the equipment used to serve food, the servers’ uniforms and other features.” Id. at 764, n.1.
Two Pesos’ “total image test” “was widely adopted by lower courts, but in practice it provides little additional guidance as to what is not trade dress orhow to judge the existence of trade dress or infringement beyond subjective determinations. For example, courts have held that unique colors and fragrances are protectable trade dress, leaving questions of infringement on that color or fragrance to the literal eye (or nose) of the beholder. The result is an area of legal protection that is increasingly expansive and inexactly applied, making it difficult for businesses to anticipate possible infringements or to seek consistent protection when infringements occur. Thus, applying theories that explore people’s ability to judge similarity based on attributional features in common versus relational features in common has the potential to create a more consistent standard for determining trade dress protection. In Trade Mess, I will further explore the factual scenarios that have been addressed in trade dress cases following Two Pesos and determine if a more objective test can be created based on the exploration of the asymmetrical effect of framing on judging similarity and generalization.
Kate Klonick is a Resident Fellow at the Information Society Project at Yale Law School. Previously she clerked for the Honorable Richard C. Wesley of the Second Circuit and the Honorable Eric N. Vitaliano of the Eastern District of New York and, before attending Georgetown University Law Center, worked as a journalist. Her scholarship applies cognitive science research on similarity judgment to intellectual property law.