Can intellectual property law regulate behavior? A "modest proposal" for weakening unclean hands

Harvard Law Review

Volumn 113, Issue 6, 2000, Pages 1503-1520

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EID: 23044518590     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1342357     Document Type: Article

References (104)

1. See generally LINDA LOVELACE, ORDEAL (1980) (describing the abuse inflicted on her prior to and during the production of the movie).
2. Cf. Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 854 (5th Cir. 1979) (enforcing the copyright of a pornographic movie conceded to be obscene).
3. "Depictions," for this Note, refer to recordings of actual behavior (snorting cocaine), whereas "simulations" refer to the artifice (snorting baking soda). The proposal in this Note affects only depictions, not simulations.
4. See Emily Marden, The Neem Tree Patent: International Conflict over the Commodification of Life, 22 B.C. INT'L & COMP. L. REV. 279, 279, 280-81 (1999) (discussing the problem of bioprospecting - the unlawful collection of samples of flora or fauna from another country for the purpose of obtaining American patents);
5. George J. Annas, Regs Ignored in Research, NAT'L L.J., Nov. 15, 1999, at A20 (criticizing the "general lack of compliance" with regulations governing human experimentation in research).
6. This Note uses the term "works" to refer to materials for which copyright or patent is sought, and the term "creators" to refer to those who produce "works."
7. This Note does not contend that the federal courts are overburdened by suits to enforce such ill-gotten monopolies. The extent of the problem is currently unknown.
8. Section II.C.2 discusses which laws should be relevant to the compliance condition and how to interpret "immediate production." See infra pp. 1512-13.
9. This Note discusses only copyrights and patents; it does not consider trademarks, which serve somewhat different purposes.
10. Although this Note's proposal applies to both copyrights and patents, it draws many of its examples from the copyright context because the knottier constitutional issues that copyrights involve make them the more difficult to establish.
11. See 17 U.S.C. § 102 (1994). Consequently, plagiarized works may not receive copyright protection. See id.; Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 854 (5th Cir. 1979).
12. U.S. CONST. art. I, § 8, cl. 8.
13. See Mitchell Bros., 604 F.2d at 855. Courts did not always interpret copyright in this way. Various cases over time attempted to "impose a governmentally defined morality through denial of copyright protection." WILLIAM F. PATRY, LATMAN'S THE COPYRIGHT LAW 50 (6th ed. 1986) (citing cases). A work such as The Black Crook, a mid-nineteenth century play featuring women clad in flesh-colored stockings, was held uncopyrightable because it was likely to corrupt good values. See Martinetti v. Maguire, 16 F. Cas. 920, 922-23 (C.C.D. Cal. 1867) (No. 9,173); see also Simonton v. Gordon, 12 F.2d 116, 124 (S.D.N.Y. 1925) (declaring that no copyright can attach to blasphemous, seditious, immoral, or libelous work).
14. One court, for example, refused to "pass upon the truth or falsity, the soundness or unsoundness" of copyrighted works because the "gravity and immensity of the problems, theological, philosophical, economic and scientific, that would confront a court if this view were adopted [were] staggering to contemplate." Belcher v. Tarbox, 486 F.2d 1087, 1088 (9th Cir. 1973).
15. A patent applicant must show that the invention fits into a category of patentable subject matter, see 35 U.S.C. § 101 (1994), that it is disclosed in a manner that enables others to make and use it, see id. § 112, and that it is novel, non-obvious, and useful, see id. §§ 101-103. The concern for usefulness probably first appeared in an opinion by Justice Joseph Story, who described as non-useful those devices designed to "poison people, promote debauchery, or facilitate private assassination." Lowell v. Lewis, 15 F. Cas. 1018, 1019 (C.C.D. Mass. 1817) (No. 8,568).
16. See Meyer v. Buckley Mfg. Co., 15 F. Supp. 640, 641 (N.D. Ill. 1936) (denying a patent on a vending machine that the court concluded was a game of chance).
17. See Rickard v. Du Bon, 103 F. 868, 873 (2d Cir. 1900) (denying a patent on a process designed to make domestic tobacco look like finer imported tobacco).
18. See Nathan Machin, Comment, Prospective Utility: A New Interpretation of the Utility Requirement of Section 101 of the Patent Act, 87 CAL. L. REV. 421, 433 (1999).
19. See Ex parte Murphy, 200 U.S.P.Q. (BNA) 801, 803 (Pat. & Trademark Off. Bd. App. 1977).
20. See Whistler Corp. v. Autotronics Inc., 14 U.S.P.Q.2d (BNA) 1885, 1886 (N.D. Tex. 1988).
21. Here this Note uses "inequitable conduct" to refer to various forms of misconduct on the part of the privilege holder - not just misleading the government.
22. Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 814 (1945). The wrongful acts of the plaintiff must "in some measure affect the equitable relations between the parties in respect of something brought before the court for adjudication." Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245 (1933).
23. Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 863 (5th Cir. 1979).
24. NLRB v. Fickett-Brown Mfg. Co., 140 F.2d 883, 884 (5th Cir. 1944). But see Stone & McCarrick, Inc. v. Dugan Piano Co., 220 F. 837, 843 (5th Cir. 1915) (barring the plaintiff from recovery due to unclean hands where the copyrighted material fraudulently deceived the public).
25. Mitchell Bros., 604 F.2d at 861-62; cf. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 138 (1968) ("We have often indicated the inappropriateness of invoking broad common-law barriers to relief where a private suit serves important public purposes.").
26. See Note, Is the Patent Misuse Doctrine Obsolete?, 110 HARV. L. REV. 1922, 1922 (1997). The misuse doctrine initially developed as a judicially instigated response to subversions of antitrust policies. Although judges have found patent misuse in cases reaching at least as far back as 1917, see Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 519 (1917), only recently have courts allowed defendants to raise a defense of copyright misuse,
27. see G. Gervaise Davis, III, The Rapidly Growing Defense of Copyright Misuse and Efforts to Establish Trademark Misuse, in INTELLECTUAL PROPERTY ANTITRUST 1999, at 639, 644-45 (PLI Intellectual Property Course Handbook Series No. G-566, 1999).
28. ROBERT P. MERGES, PETER S. MENELL, MARK A. LEMLEY & THOMAS M. JORDE, INTELLECTUAL PROPERTY IN THE NEW TECHNOLOGICAL AGE 954 (1997) [hereinafter MERGES]; see also Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 981 (4th Cir. 1990) (holding that overbroad noncompetition clauses attached to copyright licenses precluded standard enforcement of the copyright).
29. Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co., 77 F. 288, 294 (6th Cir. 1896).
30. See Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 494 (1942); Lasercomb Am., 911 F.2d at 979 ("[T]he defense of copyright misuse is available even if the defendants themselves have not been injured by the misuse.").
31. Lasercomb Am., 911 F.2d at 978.
32. See Act of Nov. 19, 1988, Pub. L. No. 100-703, § 201, 102 Stat. 4674, 4676 (1988) (codified at 35 U.S.C. § 271(d)(4)-(5) (1994)); Davis, supra note 25, at 645-46.
33. Kingsdown Med. Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 872 (Fed. Cir. 1988).
34. MERGES, supra note 26, at 507; see also, e.g., Whimsicality, Inc. v. Rubie's Costume Co., 836 F. Supp. 112, 118 (E.D.N.Y. 1993) (describing two elements of this type of inequitable conduct: an intention to mislead and behavior that is objectively likely to mislead). The consequences of such inequitable conduct are severe. See Pro-Mold and Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1575 (Fed. Cir. 1996) ("The established remedy for inequitable conduct is unenforceability of the patent.").
35. Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 864 (5th Cir. 1979). The Fifth Circuit refused to view the obscenity of the plaintiff's movie as part of a "broad public injury rationale" because the logic seemed to yield the possibility of the following "absurd" results: Arguably an infringer could defend on the ground that the work had been transported into the state in the copyright owner's truck that does not meet federal safety and pollution requirements or by an interstate carrier not certificated as required by the Interstate Commerce Act The possibilities are well nigh limitless. Id.
36. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903) (refusing to assess the intrinsic value of a work in enforcing its copyright).
37. Consider the ban on trademarks covering "immoral, deceptive, or scandalous matter," 15 U.S.C. § 1052(3) (1994), which invites judicial supervision.
38. See Belcher v. Tarbox, 486 F.2d 1087, 1088 (9th Cir. 1973). That the defendants often appear undeserving of special dispensations might be one motivating factor in these decisions.
39. See U.S. CONST. art I, § 8, cl. 8.
40. Washingtonian Publ'g Co. v. Pearson, 306 U.S. 30, 36 (1939).
41. See MERGES, supra note 26, at 135.
42. See, e.g., Millar v. Taylor, 98 Eng. Rep. 201, 252 (K.B. 1769) (Mansfield, L.J.) (holding that copyrights are just because "an author should reap the pecuniary profits of his own ingenuity and labor"), overruled by Donaldson v. Beckett, 1 Eng. Rep. 837 (H.L. 1774); Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287, 350-53 (1988);
43. Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. 517, 520-22 (1990).
44. See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (declaring that the "ultimate aim" of copyright law is to "stimulate artistic creativity for the general public good" and noting that earlier Court precedents state that the "'sole interest of the United States . . . lie[s] in the general benefits derived by the public from the labors of authors.'" (quoting Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932))).
45. See U.S. CONST. art. I, § 8, cl. 8; Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 666 (1944).
46. See Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1415 (1989). Although the doctrine is not entirely clear at the periphery, this Note's proposal must only pass muster in the core of the doctrine's most robust formulation.
47. Cf., e.g., City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 772 (1988) (rejecting the greater-power-includes-lesser-power theory). But cf. McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517-18 (Mass. 1892) (Holmes, J.) ("The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract.").
48. See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 123 (1991) (striking down New York's "Son of Sam" law, which required criminals to turn over proceeds from works describing their crimes to a state victims' compensation fund, as insufficiently narrowly tailored to address the compelling interest of restitution to victims of crime).
49. Unlike the New York "Son of Sam" law, which directly "taxed" criminals' creative work if it discussed their crimes in any remote way, this Note's proposal makes no such inquiries into the nature of the content.
50. The Fifth Amendment privilege against compelled self-incrimination does not arise here, as there is no obligation for the individual to seek the copyright privilege.
51. Branzburg v. Hayes, 408 U.S. 665, 682 (1972). Although this proposal makes no specifications about the content of a given work for copyright, it might be argued that it will chill a content-defined set of legitimate expressions - for example, documentaries about criminal activity - because of a fear that the content will be perceived, albeit mistakenly, to involve criminal activity. The appropriate analysis here is to ask whether the statute in question is designed "to serve purposes unrelated to the content of the regulated speech, despite their incidental effects on some speakers but not others." Simon & Schuster, 502 U.S. at 122 n.* (1991). The purpose of this proposal is to address "the undisputed compelling interest in ensuring that criminals do not profit from their crimes." Id. at 119. Copyrights and patents are overlooked as a source of criminal lucre; because these benefits accrue over long periods of time, and because states generally have "provisions for the forfeiture of the proceeds and instrumentalities of crime," id., the proposal here addresses the gap that currently exists in the legal rules. Alternatively, even if this proposal were construed as directly regulating the content of speech, it should survive strict scrutiny: the Court has acknowledged the compelling interest at issue here,
52. see Simon & Schuster, 502 122 n.* (1991) id., the proposal here addresses the gap that currently exists in the legal rules. Alternatively, even if this proposal were construed as directly regulating the content of speech, it should survive strict scrutiny: the Court has acknowledged the compelling interest at issue here,
53. see Simon & Schuster, 502 122 n.* (1991) id., and the proposal is narrowly tailored if the penalty of copyright reduction is viewed as part of an overall scheme of penalizing criminal conduct, rather than the criminal's speech.
54. See Sullivan, supra note 43, at 1460.
55. Linking the privilege with compliance with certain laws is hardly unusual. Recently, for example, the Department of Education conditioned the receipt of federal financial aid to students upon their compliance with the drug laws. See Suspension of Eligibility for Drug-Related Offenses, 64 Fed. Reg. 57,356,57,358 (1999) (to be codified at 34 C.F.R. § 668.40).
56. See, e.g., Belcher v. Tarbox, 486 F.2d 1087, 1090 (9th Cir. 1973) (Wallace, J., concurring and dissenting).
57. See id. (noting that copyright for fraudulent material not only condones fraud, but also places the "power, endorsement and support [of the law] behind fraudulent works").
58. Congress, for example, can establish guidelines governing what creative expression is acceptable in its own hallways, or other hallways if those hallways are funded by public dollars and are not designated public fora. See National Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998) (upholding the use of public decency as a criterion in distributing NEA funding).
59. Graham v. John Deere Co., 383 U.S. 1, 6 (1966).
60. See Berne Convention Implementation Act, Pub. L. No. 100-568, § 7, 102 Stat. 2853, 2857-59 (1988) (amending 17 U.S.C. § 401 by eliminating the notice requirement).
61. 17 U.S.C. § 410(c) (1994).
62. See id. § 411(3). The notion that copyright protection is triggered at creation is a legal fiction because the functional reason for copyright protection is to prevent others from stealing the works later. See MERGES, supra note 26, at 350.
63. See 17 U.S.C. § 412 (1994). The rationale behind this incentive structure is the greater ease and lower cost of proving an infringement case when a work is registered.
64. This structure both solemnizes the moment of registration and provides extra notice regarding the consequences of noncompliance.
65. Professor Merges and his coauthors note that "a copyright holder need only file for registration of copyright and obtain a response before bringing suit. She is entitled to bring suit even if the Copyright Office rejects her registration application." MERGES, supra note 26, at 350 n.12 (citing 17 U.S.C. § 411(3) (1994)). Because this provision undermines the integrity of the registration, this Note's proposal would require that it be adjusted.
66. The language reflects the fact that not all applicants are creators, and attempts to prevent a creator from sanitizing the privilege by assigning it to someone else.
67. However, because of the Berne Convention's requirements, incorporating foreign criminal laws might work only in the patent context. Requiring compliance with certain laws of foreign states could, in the patent contest, end the practice of illegal bioprospecting. See generally Marden, supra note 4. Congress might, however, be more selective when incorporating foreign as opposed to state laws.
68. See, e.g., Act of September 29, 1998, ch. 1000, 1998 Cal. Legis. Serv. 5952 (West) (codified at CAL. CIV. CODE § 1708.8 (West Supp. 2000)); Protection from Personal Intrusion Act, H.R. 2448, 105th Cong. (1997), discussed in Note, Privacy, Technology, and the California "Anti-Paparazzi" Statute, 112 HARV. L. REV. 1367, 1368 (1999). This observation assumes, naturally, that these anti-paparazzi statutes are constitutional.
69. Consider the Mitchell Bros. court's concern that a broad public injury rationale would yield absurd and unacceptable results. See supra note 33.
70. Indeed, Congress might draft a series of comments and illustrations attached to the proposed amendment, similar to those in the Uniform Commercial Code.
71. See generally Cynthia E. Carrasco & Michael K. Dupee, Corporate Criminal Liability, 36 AM. CRIM. L. REV. 445, 447-57 (1999).
72. As with most legal rules, the costs of the agency principles would be reflected in the contracts between employers and their agents. Agents who posed a greater risk of registration problems would be paid less, in which case they might post a bond as a form of surety.
73. The basic idea is that Congress should not permit the unrelated delicts of a creator (for example, a creator's perjury in an unrelated trial) to affect the success of copyright registration. There will be a gray zone, however, because it will be difficult to discern when a delict is immediately involved in the creative process: for example, someone smokes a joint, puts it down and then (an hour later, a day later) writes a poem (about what it is like to be high). One way to resolve this problem, even if partially, is to focus on criminal and creative acts, and on whether those acts are proximately related to the production of the materials. Is the author using illegal drugs while writing the poem? If yes, the poem could lose its registration and face reduced copyright protection. By contrast, if a person murders someone and, a year later, decides to write a book about it, the book would be registrable because the author was not killing anyone while writing. (Courts could otherwise address this unseemly result by assessing greater fines and/or restitution.)
74. State courts, on this proposal, would continue to try state crimes, but Congress would establish appropriate guidelines for state and federal judges to apply the part of the sentence affecting copyright or patent privileges.
75. Of course, a work's entire profits would include more than those generated by the copyright, because even without copyright protection, some gains would be captured due to lead time. That copyright is not essential to capture all costs of production suggests why the copyright privilege is somewhat problematic. See Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 299 (1970).
76. But see Marc Graser & Paul Sweeting, Get Ready for Piracy.com: Cyber-thieves Disrupting Pic Release Patterns, VARIETY, Nov. 1-7, 1999, at 1 (observing diminished lead-time advantages due to pirates with digital camcorders in movie theaters).
77. See supra p. 1512.
78. A qui tam provision would be preferable to private causes of action because the latter would provide an unjustifiable windfall to one party, whereas the public would benefit from the penalties assessed against the copyright holder in a qui tam action. The minimum fines should be set so as to induce a whistleblower to come forward even if she thinks the work is a money-loser. At the same time, whistleblowers should be warned that if they give false testimony, they may be charged with perjury.
79. It is worth noting that limits on prosecutorial discretion bar ill-motivated selective enforcement See generally Wayte v. United States, 470 U.S. 598, 602-03 (1985).
80. That is, once the statute of limitations for the underlying violation had passed, so too would the opportunity to have the privilege invalidated. Such repose, however, might lead creators to delay the production or registration of works to be copyrighted. To deal with a similar problem, Congress has enacted statutory bars designed to discourage delay in applying for a patent. See 35 U.S.C. §§ 102(b)-(d)(1994).
81. See Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, § 102(b), 112 Stat. 2827, 2827 (1998) (codified at 17 U.S.C. § 302 (Supp. IV 1998)) (extending the duration of most copyrights an extra 20 years).
82. In addition to the technological protections of "rights management systems," Developments in the Law - The Law of Cyberspace, 112 HARV. L. REV. 1634, 1652 (1999), creators can rely on other legal regimes, including contract, or state tort doctrines, such as misappropriation.
83. To frame the question this way is to presume a baseline of some (pre-political) right to intellectual property protection even while committing criminal acts. But see infra pp. 1519-20.
84. See Cynthia A. Williams, Corporate Compliance with the Law in the Era of Efficiency, 76 N.C. L. REV. 1265, 1342 (1998) (observing agreement among various scholars on the prohibitory nature of criminal law).
85. Willful violation of various federal regulatory regimes often carries criminal penalties, see, e.g., 16 U.S.C. § 1540(b) (1994) (punishing knowing violations of the Endangered Species Act), so this proposal would not entirely ignore the interests underlying regulatory laws.
86. See, e.g., Frank H. Easterbrook & Daniel R. Fischel, Antitrust Suits by Targets of Tender Offers, 80 MICH. L. REV. 1155, 1168 n.36 (1982) (contending that firms may break laws when it is profitable for them to do so).
87. Corporations face criminal liability for some offenses, such as antitrust violations, but not others, such as export control violations. See Carrasco & Dupee, supra note 66, at 462-63.
88. Potential costs of the proposal include more protracted litigation engendered by creators keen to avoid losing the case because of the higher penalty, the loss of any works not created due to the compliance regime, and diversion of resources to protect unregistered works.
89. If our goal is to reduce criminal activity without expending excessive amounts of social resources on enforcement or encroaching upon other important norms along the way, such an outcome may be preferable to simply applying maximum enforcement measures, which may achieve greater reductions but at greater costs.
90. Dan M. Kahan, Social Meaning and the Economic Analysis of Crime, 27 J. LEGAL STUD. 609, 612 (1998) (advocating rewards for students who turn in gun possessors). This fact is especially significant in contexts such as underage smoking, drug use, and drinking, in which the criminal act is meant to convey and often glamorize an image of defiance. A qui tam provision helps dismantle this glamor and thus disrupts "behavioral norms . . . that are essential to that activity's expressive value." Id. As a result, the incidence of the behavior is likely to decline.
91. See A. MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 75-86 (2d ed. 1989). But see Williams, supra note 78, at 1326-27 (arguing for full compliance with regulatory law).
92. For example, the tax code disallows deductions of fines as business expenses, which increases the penalty a violator faces. See I.R.C. § 162(f) (1994).
93. See, e.g., 18 U.S.C. § 2254(3)(1) (1994) (forfeiture of child pornography); N.Y. C.P.L.R. 1311 (McKinney 1997) (forfeiture of instrumentalities and proceeds of crime). In the absence of the proposed scheme, criminals might be able to profit handsomely many years after the criminal creative activity and the imposition of the fine. This consequence would frustrate the equitable principle that crime should not pay.
94. See, e.g., Bennis v. Michigan, 516 U.S. 442 (1996).
95. See generally SISSELA BOK, MAYHEM: VIOLENCE AS PUBLIC ENTERTAINMENT (1998) (discussing harms wrought by simulated violence in the mass media).
96. To be sure, compliance with laws is neither a necessary nor a sufficient condition for social utility, especially when the laws are unjust or otherwise detrimental. As a result, this Note's proposal is subject to the normative critique that Congress should not link justifiable disobedience of such laws to the rescission of privileges and thereby raise the costs associated with disobedience even higher. This criticism, perhaps most apposite to laws that have fallen into desuetude, would have less force if Congress were to incorporate only those laws that it thought merited full compliance (perhaps most felonies and some misdemeanors).
97. See, e.g., Graser & Sweeting, supra note 70.
98. See Developments in the Law - The Law of Cyberspace, supra note 76, at 1650-56 (discussing these defensive technologies and their benefits and costs).
99. See Developments in the Law - The Law of Cyberspace, 1650-56 id.
100. See, e.g., Graser & Sweeting, supra note 70.
101. If creators stayed in the copyright regime, by contrast, they would enjoy the benefit of laws designed to crack down on copyright violations in cyberspace. See, e.g., Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998).
102. See JOHN LOCKE, THE SECOND TREATISE § 27, in Two TREATISES OF GOVERNMENT (Peter Laslett ed., Cambridge Univ. Press 1970) (1690).
103. See Hughes, supra note 40, at 299-300.
104. See, e.g., Dan Markel, The Justice of Amnesty? Towards a Theory of Retributivism in Recovering States, 49 U. TORONTO L.J. 389, 429 (1999) (explaining why punishment should be understood within larger schemes of political obligation).