Intellectual Property and Changing Social Justice Needs

Episode Notes

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Meg Steenburgh: This episode is sponsored by NBI. Taught by experienced practitioners, NBI provides practical skill-based CLE courses attorneys have trusted more than 35 years. Discover what NBI has to offer at nbi-sems.com.

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Intro: Welcome to the official ABA Law Student podcast where we talk about issues that affect law students and recent grads from finals and graduation to the bar exam and finding a job. This show is your trusted resource for the next big step. You’re listening to the Legal Talk Network.

Meg Steenburgh: Hello and welcome to another edition of the ABA Law Student podcast. I’m Meg Steenburgh of 2L at Syracuse University College of Law JDI Program. Today, we are honored to have with us Professor Jessica Silbey. A professor of law at Boston University School of Law. Professor Silbey teaches and writes in the areas of intellectual property, constitutional law and law, and the humanities. In 2018, she was a Guggenheim fellow and completed a book supported by that fellowship called ‘Against Progress: Intellectual Property and Fundamental Values in the Internet Age’. In this book, Professor Silbey considers intellectual property debates in law and culture as a Bellwether of changing social justice needs in the 21st century. Professor Silbey’s latest book is called ‘The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property’. She challenges the traditional notion that intellectual property merely creates financial incentives to spur innovation.

In addition to her research on intellectual property and constitutional law, Professor Silbey writes and speaks about the use of film is a legal tool and the representations of law and popular 01:53 culture. She is the co-editor of several books on these topics.  Professor Silbey is an affiliate fellow at Yale’s Information Society project and was a faculty associate at the Berkman Klein Center for internet and society at Harvard University. She previously chaired the Association of American Law Schools national section on intellectual property and served on its presidential conference film committee for eight years. Before joining Boston University School of Law, Professor Silbey was a faculty member at Northeastern University School of Law. Prior to that, she practiced law in the disputes Department of a Boston firm focusing on intellectual property bankruptcy and reproductive rights. Professor Silbey graduated with a JD from the University of Michigan Law School and holds a PhD in comparative literature from there as well, which helps her in studies of literature and film and that intersection with the force of law. Professor Silbey, thank you so much for joining us today.

Jessica Silbey: I’m so glad to be here to talk with.

Meg Steenburgh: 02:51, we’re going to focus our conversation on intellectual property as well as media film social media. And I want to begin today with further defining your area of expertise or one of many but, what does it mean when we read and hear intellectual property and changing social justice needs? What does it mean when it’s in the same sentence?

Jessica Silbey: So, intellectual property was practiced and studied in the past 20, 30, 40 years. It’s about collecting intangible assets that can be traded and monetized whether it’s a copyright or patent or trademark. So, intellectual property is understood in terms of its economic value and intellectual property law as about creating markets for those intangible goods. But more and more today, and in fact, it’s not a new story. It’s an old story, but it’s coming back. The old stories coming back. The intellectual property debates and assertions of intellectual property are not only or at all about market competition or market usurpation or even investment back guarantees, but about fundamental values like a quality, distributive justice, privacy. Things that feel may be more at stake today in the digital age. Maybe more precarious, more upfront.

So, we’re seeing intellectual property disputes and conversations around these constitutional values, I would say. Instead of about, maybe the more doctrinal or expected arguments about market competition or recuperating investments from work on intangibles 04:40.

Meg Steenburgh: Is there one area of intellectual property law more than another that sees this? For instance, copyrights over patents? Or–

Jessica Silbey: So, copyright is the one that I think is more easily, more commonly seen. So when musicians don’t like, people using their music in a campaign rally for a politician they don’t like for example

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Like, that’s a reputational issue. That’s a ego issue. That’s often, you know, political values issue. It’s not often a copyright issue. Like, if they had been paid for it, they still wouldn’t have liked them to have used that. And we see those kind of debates quite a bit. So, copyright is often in the news on that front, but it happens in patents to, but it’s just that I think patents feel more complicated and we don’t talk about it as much but if you take like gene patents for the breast cancer gene, BRCA gene, BRCA1, BRCA2. That issue was in the news all the time and that was about access to medicine. It was about owning your own information, you know, your own genetic information. And that is a privacy and a bodily autonomy question as well as –. So, it happens with most — both of them. Because there are more copyright owners that are visible, I think we see that more in the new, but it happens for all of them.

Meg Steenburgh: When you speak of equality, then, are you speaking it from an individual’s perspective and an individual’s right to that information? Or is it corporate to corporate, individual to individual? Or how is that equality?

Jessica Silbey: So, when I was talking about the patent in BRCA gene, it wasn’t as much equality, it’s about privacy. Sort of owning your own body and we think about bodily integrity in privacy dimensions, but if you ask about equality, equality is a hard concept to pin down. But in constitutional terms, we often think about equality in terms of similarly situated people treated the same as a matter of dignity, sort of an anti-discrimination principle. And we also think about equality in terms of anti-subordination, not creating unjust hierarchies, and we see arguments around intellectual property on both of those fronts. I am an author just like you, I should be treated the same, even though you’re a famous author and I’m a nobody. That would be one form of equality argument or an anti-subordination argument in IP might be where some authors were left out of the copyright system for a while. So, we give them something new and better now to make up for that. That would be an anti-subordination like an affirmative action form of equality. So, you see both of those arguments circulating in IP regimes.

Meg Steenburgh: So, under the constitution and the constitution enshrines protections for creators and innovators. And the goal of IP law is to incent the progress of science and the useful arts as stated. Your latest book, ‘The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property’, it goes straight to the source as you say the artists and innovators themselves. What do they say about IP law today?

Jessica Silbey: Right. So I wrote that book and publish it in 2015 as an attempt to decenter the incentive story and intellectual property. So, we have been saying this for a long time since probably 1940, 1950, that the property right that you get with copyrights and patents and to some extent trademarks incentivizes the producer to make it and to disseminate it that somehow, if you’re an author, you’re thinking about that copyright. And that’s why I’m spending all this time because the copyright is going to be able to make me some money and make help me live on that. When you talk to Everyday Creators and Innovators, whether they’re scientists or engineers or authors, poets or musicians, the property interest is very far away from their forebrain.

They’re not incentivized by that 08:50, whatever. However, shape that 08:51 and how strong that 08:52 is. They care a lot about earning a living. They want to be able to do their job and do their work. Many of them don’t make enough money, but things that they focus on are, do I have enough space to make my art? Do I have enough time? Or the people who I’m working around respectful of the work I’m doing? Do they understand? They think about partnerships, they think about time and space, they think about longevity and sustainability and the IP, the asset. Most of them don’t even understand it. So, no, it doesn’t incentivize them in the way that we talked about in law.

Meg Steenburgh: How do we compare as the nation versus others around the world?

Jessica Silbey: Well, the United States has – I think U.S. law overemphasizes an economic analysis of all forms of legal doctrine. So whether you’re studying torts or contracts or IP, we do this cost-benefit analysis, a lot, as a way of talking about, is it efficient?

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Is it accountable? Is it putting the burden? The least cost of 10:06? Like, we ask all these questions all the time as thinking about policy. Others nations don’t think those terms a lot. That is a – I mean, some of them do. I mean, it’s not a unique to the United States, but we, you know, I hesitate. We fetishize certain market principles as a value neutral way to analyze whether a law is good or bad or doing what it should. And the fact is that, that market assessment is not value neutral, first of all. And it doesn’t reflect how everyday normal people go about their lives most of the time. And it arose in the mid-twentieth century in United States in response to concerns over supercharged value debates. I mean, polarization in the 20s and 30s, which is like polarization today. So, it was an attempt to deescalate that polarization. But what it has done — I think the — it has made the United States in some ways, an outlier in the way we do legal analysis by counting beans on either side costs-benefits. Cost-benefits.

One of the things that I’m writing with this new book against progress is how that cost-benefit analysis is not serving intellectual property, creators and innovators in the way that I think we want it to in order to promote science and the useful arts.

Meg Steenburgh: Is there something in particular that you will propose that would better assist from the IP context?

Jessica Silbey: As a scholar, I am more of descriptive and analytical and I don’t believe my strengths lie in policy proposals, but when I listen to what everyday creators and innovators care about and I see how some of the legal analyses are going at the Court of Appeals and the Supreme Court. I think the kind of things that we would like to see in the future that will sustain creativity and innovation across a wide and inclusive array of people. We want to see more funding for journalism. For example, that’s not market-based. That is not compact. You know, we might want to start thinking about where we want to put our tax dollars or raise more money for, for example, to distribute opportunities more widely and more diversely. So, I think funding for the arts and sciences probably is going to again, that’s not market-driven. But that is where we — it’s like we fund public education. We fund building bridges. We fund – maybe we want to think about funding these things more to, the way other countries do. So, I think that that is one possibility.

I also think on a very more technical 12:59 scale. We’re going to see people arguing about whether intellectual property scope of protection is too broad and covers too much and is not letting enough creators and innovators do what they do. So for example, if you’re making a quick video to honor something that’s happening in your company or your school and you start pulling pictures from the internet or you start — and you just making a quick video. This is the way we talk today, whether it’s 30-second videos, or whether it’s sending a talking paper to a friend or whatever. But if you can’t do that because all of the copyrighted content online that you’re using is copyright protected and you’re going to get a takedown notice the way we speak and communicate today is going to be hampered. And I think more and more creators today that are re-makers, who reuse stuff sort of Bricolage are going to start getting frustrated that their primary way of communicating is getting held up by takedown notices, or this content is no longer available or a cease-and-desist letter, for example. And so, I think we might see political pushback on those kind of uses that are maybe non-commercial or de minimis, or a new forms of communication that we use other people’s where previously, they might have been unauthorized. But today, probably should be fair.

Meg Steenburgh: So, it’s interesting because — I was going to ask you about how the internet has changed IP law and it seems as though it changed in terms of broadening it. And now it needs to be narrowed again.

Jessica Silbey: I think that the generations that are coming of age today, the teams and the 20s who have only lived with the internet. They have different expectations for the kind of “freedoms” that the internet has provided, but the IP laws have not adjusted to those expectations.

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And so, if they’re the next leaders, you know, we’re going to — I think we might see some pushback. I mean, today, copyright lasts for life of the author plus 70 years. And for most people that is just a ridiculously long time and it’s completely wasteful. When copyright started in 1790, it only lasted for 14 years and it only covered maps, charts and books. Like, maps, navigational charts and books of science like studying geography, studying politics and stuff like that. Today, it covers almost everything and it’s last for three generations beyond the author’s death. I mean, it’s out of proportion system for the way we communicate and create today.

Meg Steenburgh: So in that, that leads to another question in terms of Congress passed the Copyright Alternative in Small-Claims Enforcement Act in December of 2020, the CASE Act. And essentially it establishes Copyright Small Claims Court. Is there an incredible need because of this issue that you’re speaking of?

Jessica Silbey: So, the Small Claims Court that the CASE Act structures, I think in theory, makes a lot of sense. We have lots of small disputes over copyrighted works that might not merit bringing a federal lawsuit. And so, going to Small Claims Court to fight it out, sounds like a form of alternative dispute resolution that brings it to the level of the people who are complaining, but the monetary limit in the CASE Act, I believe is $30,000. Like, that’s not a small amount of money. You know, most Small Claim Courts 16:48, Massachusetts. I think it’s $5,000. And it’s still sort of scary being hauled in Small Claims Court over something like that. So, I guess I just don’t think the Small Claims Court at the Copyright office is small claims first of all. So, I don’t think it’s doing what it was doing. And also, there are other notice problems, due process problems with the way it’s been structured that makes me feel like it is going to be and abused by certain entities and it’s going to hurt. Or it’s going to risk hurting and threaten just everyday users, you know?

So, the more you can track things online. So if I forwarded you a photo for example, of me for your website, and the photo had been taken by a photographer who was doing head shots and that photographer embedded metadata in the photo. So that all of a sudden me sending it to you and you posting on the website created a copyright lawsuit like unintentionally without like, you can be brought into the copyright off. I mean, that’s a copyright infringement is from $750 to up to a $150,000 statutory. It’s scary. And so, I think it’s just so easy to commit copyright infringement unintentionally, that, that Small Claims Court doesn’t make me feel better about the problems.

Meg Steenburgh: So, maybe we’ll take your picture off the Internet.

Jessica Silbey: Yeah, right. Right.

Meg Steenburgh: When it comes to biotechnology, how does this work? Recently, I saw an article about Gila and the story of Henrietta Lacks and replicating her cancer cells in perpetuity. No permission. No compensation others, profited for science and innovation. It became the first immortal human cell line. And so, the family is now taking the biotech company to court for that recognition and compensation. How does that work? When do the biotech companies have that right versus the individual and how should it have been done?

Jessica Silbey: That’s a great book by the way, ‘The Immortal Life of Henrietta Lacks’.

Meg Steenburgh: It is.

Jessica Silbey: It’s a wonderful book and it’s a — in a genre of books now. I just want to call out. There’s a another book coming out by George Contreras who teaches at the University of Utah called ‘The Genome Defense’, and it’s published by Workman Press, I think, and it’s about the Myriad case. The Myriad Genetics case about the breast cancer gene and Myriad Genetics. And so, that’s another book in the same vein. And these are stories about the harvesting of human cells that create really useful inventions, useful for the rest of the world. I mean, we’re glad to be able to identify the breast cancer, the gene on which the mutation might exist in the cell line from Henrietta Lacks has been incredibly useful as a research tool, and a save lives. So, you know, we don’t want scientists to stop doing that and we don’t want companies to stop investing in that science. But what’s happening is that,–

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–well, it has happened for a long time and the abuse of patients because of a lack of informed consent is a terrifying and terrible injury to people. You know, you put trust in doctors at your most vulnerable time to take care of you and to not exploit you. And then when you learn that, you know, your discarded tissue was used without your consent to make all of this money for a company or a hospital that you might otherwise support, but we’re never consulted about, it feels like a personal injury. It feels disrespectful and it is disrespectful, which is why we have very strong, informed consent laws. We are supposed to do — the medical profession and fiduciaries like lawyers, accountants. I mean, they’re all sorts of professions that have informed consent or fiduciary obligations to their clients and patients. We are supposed to be accountable to them because of the power dynamic and medical professionals are supposed to get informed consent for all sorts of procedures as well as uses of those tissues or whatever.

Now, we don’t pay very much attention. We sign things all the time. You go in for a procedure, it’s often electronic like, click in to click to agree. And so, the arguments were having today is not that doctors or lawyers or business entities are not asking for your permission. The question is whether is knowing consent. Now, I don’t know the exact details. I read that book a while ago, and I can’t remember the exact details, but I do believe there was a lack of informed consent in that case. I think that Ms. Lacks was not told about what was going to happen. Or it was a time when discarded tissue was not considered property at all, and it’s still not actually. I mean, I have to say waste is not considered property of people in all sorts of interesting ways.

So, there is probably a legal dispute about whether what was used after it was discarded was actually hers anymore. But that doesn’t get rid of the or it doesn’t obviate the issue of respect and accountability that I think we sometimes lose sight of in the exuberance of science and art, for example. So, let me just — a much smaller example. We talked about in academics and in research universities about attribution and giving credit, giving proper credit to avoid accusations of plagiarism for example. Those professional norms about attribution and credit are all about respect and acknowledging contributors that you are building on the shoulder of giants, always that you are always engaging in that.

The taking of biological material of people to use in a way that builds new scientific discoveries, build big businesses. Feels a little bit like that in just – but a much more acute way. She should get credit. She should get accolades. Her family should be recognized and it also comes on the heels of the terribly racist system that abused and exploited African-Americans for scientific experiment in the first place. So there’s a combination of just exploitation generally, lack of respect and the racism that was involved in that lack of respect. All of that together just makes it a terribly. I’m very sympathetic to the Lacks family. Even if I think legally at some level, it’s probably a losing case.

Meg Steenburgh: We are speaking with Professor Jessica Silbey, professor of law at Boston University School of Law. We’ll be right back.

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And we are back now with Professor Jessica Silbey, professor of law at Boston University School of Law. You study and teach so many fascinating areas in law and I do want to touch upon another area of expertise for you. And that is film as a legal tool. The body cams surveillance video, medical Imaging.

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We see its influence all the time now, most notably even George Floyd’s case. How his film changed the law?

Jessica Silbey: Film is a form of evidence. Dates back to its beginnings in the early 1900 actually, but when film was first used in courts of law, or considered as evidence, it was highly discredited because the film medium itself was considered fantastic and entertainment and fantasmic. So if you can even imagine in the early days in the 1910s, 1920s, when film was offered as evidence of something that happened, people said it was default not admissible because it was fake, you know? It was just fiction, you know? And it was meant to be entertaining.

Fast forward to 2021 and film speaks for itself. Any video camera of a protest, any photo of somebody doing something all of a sudden, it’s like the truth. It speaks the truth without any other perspective or bias. And of course, that’s not true either. We know that film and photos have perspective, have angles, have lighting can be manipulated. They can just be misleading out of context. I mean, just like anything else. It is subject to contestation, but we’ve gone from zero to full speed ahead without any moderation. And so, the way film works today is we are sort of in the mix. We admit film all the time into court. We use it to initiate court complaints. We have gotcha, we have fake videos, and we are now in the process of trying to figure out, how do we discipline it? Like, how do we discipline the medium to make it do what we needed to do in a system that is supposed to be adjudicating towards the truth? And that’s hard. It requires interdisciplinary thinking that I think season lawyers today of course can do, but they weren’t trained with visual media.

Meg Steenburgh: And that brings in the social media component of it as well, in terms of posting on that. And how do you hold the social media companies part of this and the responsibility when you balance Section 230 of the Communications Decency Act with First Amendment rights? And what does that conversation look like?

Jessica Silbey: Well, that’s a big conversation. So, I’ll just step back and say that the proliferation of social media as the primary source of information for most people means that the individualized curation of information feeds has created a lack of common discourse and common factual groundings that I think has contributed to political polarization. The kind of disagreements we’re having today feel so irrational. I mean, if you just think about vaccines or masks. I mean, they’re sort of hard to wrap — at least for me, wrap your head around. And I think it’s because each person’s rational sphere is so isolating because social media enables that. So, the algorithms that produce ones information feed are disabling talking across difference. And that worries me.

So, one question would be, how do we fix that? How do we go back to talking having a public sphere that we share reading a common newspaper or meeting up with people who disagree with us, but we can otherwise find similarities? Like, where are those spaces? They are not social media because social media just aggregates. Do we regulate social media so that it forces people in the same room? That is a challenging thing. People don’t like regulation. Regulation of speech makes us nervous because of the First Amendment, especially if the government is doing it. Do we think the market should do it? Like, is all of a sudden, you know, there’s going to be market forces that suggests, no, no, we’re going to have an altruistic algorithmic social media platform. Like, that’s hard to imagine, too. So I think we’re in pretty much a bind. I think we’re going to have to figure this out in a messy way and Section 230 of the Communications Decency Act enabled the internet to flourish without liability for torts, like defamation, et cetera, which would have been the thing that we are most worried about.

But it also enabled intermediaries to curate, if they wanted to. Like, there’s a Good Samaritan provision in the CDA that enables content curation if the company would like, to and immunizes them as publishers should they engage that.

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Very few social companies exercise that, right? Because they’re worried about alienating their users and being accused of censoring. But the CDA would enable that if they wanted to. And so, I think there’s a question as to whether or not more platforms should engage that provision. I think that’s one. I think another way to think about this as institutionally when more and more employees at big platforms via Google or Facebook or whatever, when more and more people users and employees push those big companies to do better. Whatever that should mean, those companies will listen. At least they will move. And so, I think employee mobility or mobilization and user mobilization matters. So, I think employees don’t have a lot of leverage anymore. I think that might be changing after COVID and it’s possible that’s changing. I think we need to see employees and users organized to ask and force their employers to do better by these values. We see that sometimes at Facebook for example. We might see it elsewhere, but that’s a possibility, too, other than legal regulation.

Meg Steenburgh: As you look ahead, where do you see this area of the law going? So if you’ve got you know, your law students, lawyers, where do you see the space going? And how can we all prepare to be there?

Jessica Silbey: Just for my own experience with my own students, I see my students being activated around climate change. Very active, like, no matter whether their IP lawyers or they’re going to be employment lawyers, whatever the – young people today, recognize that we are at a critical space for the planet. And so, I think any change about internet stuff, how much energy the internet uses? How our devices recyclable? For example, what kind of regulation is going to enable infrastructure and internet for all? At the same time as making that climate sustainable for example. Those are things — I think we have to really care about using all this energy to do all the things we’re doing when the planet is burning. So I see climate change issues covering everything. That’s one thing.

The other thing I am seeing is students thinking about being lawyers in a more holistic way. So, plenty of students want to go work at big firms and do these exciting big cases. You get great training at big law firms, great lawyers mentoring you, et cetera, and that’s a great beginning and it could be a great life. But I also see a lot of law students thinking about working for nonprofits or smaller law firms, restarting their own law firms or thinking about law firms that cross weird disciplinary boundaries. Like, you’re IP lawyer and a constitutional lawyer, for example. Or you’re an environmental lawyer and an IP lawyer. Like, just thinking about new ways of melding fields, and building their own firms, and I think that’s really exciting, and I would encourage law students to not be afraid of going out on their own and imagining being a lawyer in a new way.

Meg Steenburgh: Fascinating. Thank you so much for this discussion.  Professor Jessica Silbey, professor of law at Boston University School of Law. Thank you for joining us. 

Jessica Silbey: Thank you.

Meg Steenburgh: And thank you for listening. I hope you enjoyed this episode of the Law Student podcast. I’d like to invite you to subscribe to the ABA Law Student podcast on Apple Podcast. You can also reach us on Facebook at ABA for Law Students and on Twitter, at ABALSD. That’s it for now. I’m Meg Steenburgh. Thank you for listening.

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