The New Copyright Opportunist

" The New Copyright Opportunist ," 67 Journal of the Copyright Society of the U.S.A. 1 (2020)

"The New Copyright Opportunist," 67 *Journal of the Copyright Society of the U.S.A.* 1 (2020)

Jeanne C. Fromer, The New Copyright Opportunist, 67 J. Copyright Soc'y U.S.A. 1 (2020)

This evening, I will speak about the new copyright opportunist. After defining copyright opportunism, I will review three recent litigation case studies that meet this definition of opportunism. I will then explore how courts might handle opportunistic lawsuits, particularly when the plaintiff is seeking to establish a new licensing market enabled by technological advances. I propose that opportunistic lawsuits can be resolved only at the intersection of copyright doctrine and policy, as informed by relevant economic and technological realities. Before I define what I mean by a "copyright opportunist," I will first discuss the "copyright troll," as a way to contrast the two concepts. In recent years, the term "troll" has been invoked frequently in the context of intellectual property. The term first emerged in patent law, where it was used pejoratively to indicate entities "focused on the enforcement, rather than the active development or commercialization [,] of their pat-unknown Seq: 3 21-AUG-20 13:34 The New Copyright Opportunist 3 creating and distributing the opportunist's works. To the opportunist, the courthouse can be a means to secure a favorable judicial ruling and thereby create a robust creative and licensing market for the opportunist's works. This is not understood to be the troll's aim, even though a troll is a form of copyright opportunist. Not surprisingly, the term "opportunist" comes up in discussions of trolls. 8 But because the opportunist might be using litigation to promote copyright's goals, not all opportunists are trolls. Copyright opportunists have existed as long as there has been copyright law. Some of the most notable copyright cases involve opportunists. For instance, Ira Arnstein, the perennially unsuccessful songwriter and litigant against Cole Porter and others, was an opportunist for seeking to use litigation to create a more favorable market for his songs. 9 I suspect opportunism is taking on larger significance in copyright litigation given ever-greater rates of technological advancement. In this Lecture, I would like to explore how copyright law should address opportunism writ large. Is the copyright opportunist asserting rights in copyrighted works in litigation in ways disproportionate to their intrinsic licensing value? Or is the opportunist merely using copyright litigation to create the licensing market the rightsholder ought to have? To derive a framework to answer these questions, I will explore three recent sets of cases, one involving basketball players' tattoos depicted in a realistic videogame, another involving lawsuits against celebrities by paparazzi photographers for posting their photos of them on social media, and a third involving claims of infringement in popular songs by copyright owners of much more obscure songs. All three of these case studies involve a plaintiff with a copyright claim that is in uncharted territory, because advances in technology have enabled new uses, reach, or markets for potentially copyrightable works. That is, there was no sizeable market for the ostensible copyright holder, but now due to technological advances, there might be if the copyright claim is successful. These cases do not involve slam-dunk claims against an infringer, but their claims are also not ridiculous. Unlike the spate of troll cases, which tended to be brought against unsophisticated and numerous defendants, the defendants in these cases are limited in number, as sophisticated as they come, and have deep pockets. By exploring these cases, I propose that the framework for analyzing copyright opportunism can be found at the intersection of copyright doctrine and policy, as informed by relevant economic and technological realities. Let us first consider whether rendered versions of basketball players' tattoos appearing in a videogame infringes any copyright in the tattoos. In the recent case of Solid Oak Sketches, LLC v. 2K Games, Inc., the licensee of five tattoo designs inked on three different NBA players -Eric Bledsoe, LeBron James, and Kenyon Martin -sued the developer and publisher of the NBA 2K series of basketball simulation videogames for depicting animated versions of these players that included the licensed tattoos. Recently, the district court granted the defendants' motion for summary judgment on the grounds of de minimis use, fair use, and authorized use. 10 This case isn't the only recent one on this issue: In the Northern District of Ohio, where the Cleveland Cavaliers are based, a tattoo artist who inked once or current Cavaliers LeBron James, Danny Green, and Tristan Thompson, has a similar, ongoing suit for infringement against the same defendants. 11 When it comes to the extent of copyright protection for tattoos that have been reproduced in videogames that realistically depict people with those tattoos, copyright is in uncharted legal territory. Although there have been a number of lawsuits claiming copyright infringement of tattoos, like one by Mike Tyson's tattoo artist against the producers of "The Hangover: Part II" for reproducing Tyson's facial tattoo on Ed Helms's character, 12 they have all settled or been dismissed. 13 There have thus been no substantive rulings on copyright protection for tattoos. The legal questions abound, some more serious than others: Are tattoos original? Are they fixed in a tangible medium of expression, on skin? Does the artist or the person tattooed own rights in the tattoo? 14 And then there unknown Seq: 5 21-AUG-20 13:34 The New Copyright Opportunist are the substantial questions of infringement liability: Does a tattoo artist grant an implied license for the inked party to display the artist's tattoo publicly? Does an implied license extend to third parties' use? Does any such license cover reproductions of the tattoo for realistic renditions of the inked party? Are there "free speech" concerns in denying realistic depictions of people, including their tattoos, in creative works? Are such uses fair? 15 Steeped in this dizzying series of until-recently unanswered doctrinal questions, a court might try to sort through them clinically, one by one. Indeed, these questions should be answered. Yet the questions can best be answered by situating these lawsuits within the opportunism that drove them. The tattoo artist and licensee plaintiffs here are quintessential opportunists. They hold plausibly legitimate copyrights in these tattoos, which currently have relatively low licensing value. Historically, there has been a limited market for tattoo artists' works. The market has principally been to design custom tattoos for clients, to ink clients, and to create flash (mass-market) designs to market to tattoo shops. 16 This is not to say that this market does not offer lucrative rewards: More than 20% of Americans have at least one tattoo. 17 But even so, the market did not typically expand beyond sources of tattoos to be inked on people, which has kept the licensing value for tattoos relatively low. Additionally, tattoo artists have generally preferred to work outside copyright's legal system, as a study by 15 For an exploration of these questions, see the sources cited supra note 14. An-R other intriguing possibility is that photographs or digital depictions of tattoos are allowable under 17 U.S.C. § 113(c), which states that: In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports. In this case, the useful article would be the human body housing the tattoo. I am grateful to Rebecca Tushnet for suggesting this possibility. 16 Rightsholders in some of these tattoos are therefore using copyright litigation to try to increase these tattoos' licensing value. They want a piece of the defendants' sizeable profits. The NBA 2K videogames are the top-selling sports game in the industry and are considered to be worth over nine figures annually. 20 If the courts rule in the tattoists' favor, that ought to provide them a more substantial licensing market going forward. Why does it matter that the plaintiffs are opportunists? The plaintiffs' opportunistic lawsuits are about whether a new copyright market enabled by technological advance will exist. Although the courts' decisions in these tattoo videogame cases are and will continue to be somewhat finetuned to the cases' specific facts, they will also likely indicate whether a general licensing market for tattoos depicted in videogames will exist. As such, the adjudicating courts will be acting quasi-legislatively to broaden copyright's reach, or not, as they think best. When a court is acting in a quasi-legislative capacity like this, it behooves the court to ascertain the economic and technological facts surrounding the legal controversy. 21 Why? In these situations, the court will be creating an economic windfall not just for one party or the other depending on its ruling, but for the marketplace writ large. Because the legal questions are new and because a market beyond the scope of the case is at stake, a ruling court should go beyond a clinical analysis and extension of doctrine. A more comprehensive analysis would seek to understand the marketplace, the consumers, and the relevant technological facts to apply doctrine in accordance with copyright policy. To be more concrete in the context of the tattoo videogame cases, the defendants sought to introduce expert marketplace and technological evi- The New Copyright Opportunist 7 dence to help facilitate the courts' decisions. For example, there is an important legal question whether the tattoos are a de minimis use in the videogame. Quantitatively, it is harder with a videogame than with, say, a movie to estimate how frequently a tattoo appears because users can have distinct experiences each time they play, especially by choosing different players. Qualitatively, it is unknown how important a rendering of the players' tattoos is to consumers in their gaming purchase or experience. To get at both questions, the defendants sought to introduce evidence about how an average NBA 2K game is played and thus how frequently a protected tattoo would appear, 22 and consumers' reasons for purchasing an NBA 2K game. 23 Indeed, the Southern District of New York ruled this evidence admissible and relied on it in part to hold that the renderings of the players' tattoos in the video games was de minimis use. 24 Also, the courts ought to grapple with how a rendered tattoo appearing in a videogame's realistic depiction of a person carrying the tattoo is distinct as an infringement matter than a photograph of the person carrying the tattoo. One might conclude that the tattooed person can legitimately display the tattoo publicly and others can photograph it, in reliance on principles of human autonomy, implied license, or free speech. One might further analogize the situation to Congress's allowance of photographs of a copyrighted building embodying an architectural work if the building is located in or ordinarily visible from a public place. 25 Whether such a principle might extend to a videogame's realistic renderings of real people and their tattoos requires a court to confront copyright's policy goals of mediating between the incentives copyright provides and desirable access to protected material for reasons of free speech or other weighty values, perhaps including human autonomy to be depicted accurately with one's tattoos. In this vein, 2K Games sought to introduce expert evidence of how intimately connected tattoos are to inked individuals' self-expression and the ways in which tattoos can customarily be used after they are inked. 26 This sort of evidence ought to bear on a court's determination of fair use or implied license, something the Southern District of New York indeed noted in ruling this evidence admissible and in relying 22 on it to find that the defendant's use was fair and authorized by an implied license. 27 The types of evidence the defendants set forth here help a generalist court make a reasoned decision at the intersection of copyright policy and doctrine, by examining the realities of the plaintiff's tattooing marketplace and the defendant's videogame marketplace and technology. Consider now another ever-growing set of cases working their way through the courts. Since 2017, some paparazzi photographers have been suing celebrities for copyright infringement for posting these photographers' shots of them on social media. Some of the celebrities that have been sued include Khloe Kardashian, Justin Bieber, Jennifer Lopez, Gigi Hadid, Victoria Beckham, Nicki Minaj, and Ariana Grande. 28 (Some photographers have also been suing fashion companies, like Marc Jacobs, for posting similar shots on their social media accounts of celebrities wearing those companies' wares. 29 Those cases raise somewhat distinct legal issues, so I will leave them aside.) These cases might seem like straightforward unauthorized copying of protected material. Similarly, these photographer plaintiffs might appear to be copyright opportunists in the most uninteresting way: Social media platforms are a relatively new technological medium for content distribution, and third parties are distributing the photographers' content there. 30 On this account, the photographers merely want to grow their photographs' licensing value by ensuring that they receive a financial share from celebrities' social media posts. Yet the legal answer of infringement and the photographers' opportunism is more complex than it might first seem. Like tattoos in videogames, the courts are faced with a quasi-legislative question about a copyright marketplace for paparazzi shots posted by their celebrity subjects. A court can better answer the question of infringement writ large by looking at the paparazzi photography industry, social media economics, and the complicated dynamic between paparazzi and celebrities. 27 Solid Oaks Sketches, 2020 WL 1467394, at *7-*13. 28 Julie Zerbo, From Bella and Gigi Hadid and Goop to Virgil Abloh and Marc Jacobs: A Running List of Paparazzi Copyright Suits, THE FASHION LAW (Feb. 21, 2020), http://www.thefashionlaw.com/from-bella-and-gigi-hadid-and-goop-to-virgil-abloh-and-marc-jacobs-a-running-list-of-paparazzi-copyright-suits. 29 See id. 30 For a fascinating interweave of photographers' stories and courts' takes on copyright in photography as it relates to the current age of digital reproduction, see Jessica Silbey, Justifying Copyright in the Age of Digital Reproduction: The Case of Photographers, 9 U.C. IRVINE L. REV. 405 (2019). Paparazzi photographers have generally made a living from locating celebrities, typically in public; shooting them; and selling the resulting photographs to traditional media outlets. 31 As the internet expanded, the appetite for ever-new celebrity shots also grew, fueling a market for more paparazzi shots showing stars being just like us or very different than us. 32 There has long been a symbiotic relationship between paparazzi and celebrities: Paparazzi need celebrities to photograph, and celebrities thrive off of increased media attention from paparazzi shots. 33 This symbiosis has fueled relationships between paparazzi and celebrities. For one thing, many celebrities will inform paparazzi where they will be so they can arrange to be photographed and garner additional press. 34 Additionally, paparazzi and celebrities alike know that there are certain places they can go to photograph and pose for photographs, respectively. 35 These spots include outside celebrities' homes, at fixture restaurants and nightclubs, and at entertainment industry events. 36 Consider the photographers' plight on the one hand. A paparazzo's payday has become increasingly slim, even as some have banded together into agencies like X17. 37 To the extent we as a society care about bolstering this industry's work product (and I will evade here what Barton Beebe calls "the problem of aesthetic progress" 38 ), copyright law might be protective of these photographers' licensing market. 39 That might be all the more true of social media posts, which are increasingly being used as a substitute for traditional media, including as celebrities seek to control their personal brand and narrative. 40 31 Robert Valdes & Cristen Conger, How Paparazzi Work, HOWSTUFFWORKS (Sept. 16, 2004), https://entertainment.howstuffworks.com/paparazzi.htm. 32 Id. 33 Id. 34 Id. 35 Id. 36 Id. 37 On the other hand, consider the celebrities' systemic role in paparazzi photographs. Their presence creates the value the photographs have. Also, they frequently arrange -explicitly or implicitly -to be photographed, style themselves, and choose how to pose for their shots. These industry and economic considerations would seem to bear on celebrities' defenses to infringement, particularly fair use, implied license, and joint authorship. In fact, in one of these lawsuits, Gigi Hadid claimed fair use and implied license in part on these grounds: "Ms. Hadid posed for the camera and thus herself contributed many of the elements that the copyright law seeks to protect"; "It is one thing for paparazzi to take advantage of Ms. Hadid by surveilling her, taking photographs of her every public movement, and selling them for profit. It is quite another to demand damages based on an Instagram post by the very person whose image the photographer sought to exploit in the first place." 41 Moreover, consider whether these cases might be the unusual ones in which the celebrity subject can be deemed to be a joint author of the work shot by the photographer, even under the Ninth Circuit's test: 1) each "author superintends the work by exercising control"; 2) the "putative coauthors make objective manifestations of a shared intent to be coauthors"; and 3) "the audience appeal of the work turns on both contributions and the share of each in its success cannot be appraised." 42 Two Kardashian sisters have thoughtfully weighed in on their freedom to use paparazzi photographs of themselves. Lest you think I am being condescending, their reactions are probably among the more sophisticated from celebrities on copyright law. Khloe Kardashian observed online how she has to license photos of herself to post: "A paparazzi sued me in the past for reposting an image of MYSELF. So now it just takes me a little longer because I have to go and license the images . . . MAKES NO SENSE." 43 She discussed arranging to get her own pictures taken so she has essentially replaced traditional media outlets, such as magazines, as the home for fashion viewership and discovery, and as fashion magazine readership falls, and the online sale of luxury goods continues to grow . . . , digital alternatives like Instagram are proving to be the most effective home for advertisements."). 41 Kardashian musings aside, there have been no substantive court rulings yet. Yet as these cases make their way through the courts, it will be important for judges to consider the paparazzi photography-celebrity dynamics and the marketplace offered by social media in contrast to or replacement of traditional media. A clinical application of copyright doctrine does not offer up an answer as to infringement and the specific industry and economic dynamics, as informed by copyright policy, help fill in the gaps. Consider now one last case study, that of obscure music. Lately, copyright holders of obscure songs have been suing creators of successful songs for infringement. In some ways, there is nothing new about this category of lawsuit: Earlier, I mentioned Ira Arnstein's mid-twentieth-century suits against Cole Porter and others for infringement of his obscure songs. But there is one big difference that makes these lawsuits "new," so to speak. It used to be that a defendant could win even if the plaintiff's and defendant's songs were similar, on the basis that there was no copying in fact, as evidenced by Ronald Selle's suit against the Bee Gees: In 1977, the band recorded the song at issue while holed up in a chateau located in a French village, so there was just about no way the band could have copied the plaintiff's American song. 46 There have been cases in which defendants have disputed copying but have been found liable on the ground of subconscious copying, as happened to Michael Bolton in the Isley Brothers' case against him twenty years ago. 47 Yet these "subconscious copying" cases have remained a minority of infringement cases, and probably thankfully so, because systematically differentiating independently created works from subconsciously copied ones is impracticable, as Jessica Litman has pointed out. 48 What is new in these suits by copyright holders of obscure songs against creators of more successful songs is the background condition against which they are being asserted. The "celestial jukebox" that might call up any song instantaneously for a user, which Jane Ginsburg, Paul 44 Id. 45 Other than a song locked in a desk drawer, all songs are now accessible to any third party. Then, as long as a song's similarity to another passes a certain threshold, the song will likely be deemed to have been copied in fact and on its way to being found to be infringing. That is, copyright infringement is found based on copying in fact and copying in law (or substantial similarity), and copying in fact is frequently premised circumstantially on access plus similarity to the plaintiff's work. 50 As such, in the age of the true celestial jukebox, access is nearly always a given and whatever increment of similarity will establish copying in fact will now be all that needs to be shown to establish copying in fact. Demonstrating as much is the recent jury verdict of $2.78 million in the infringement suit by Christian rapper Flame against pop singer Katy Perry 51 (though the district court subsequently threw out the jury verdict on the grounds of lack of originality of the plaintiff's work and lack of substantial similarity, yet upheld the jury's findings on access). 52 Flame's 2008 song Joyful Noise bears some, but by no means airtight, similarity to Perry's 2013 hit Dark Horse. In this case, now on appeal to the Ninth Circuit, the district court ruled that the six million YouTube and My Space views of Flame's song and popularity in the niche Christian rap market supported the jury's finding of the defendants' access to Joyful Noise. 53 The district court had earlier ruled that this evidence was relevant, overruling the defendants' objections that they had not heard the song, the song did not have commercial success, the song was not widely disseminated, and the song had success only in the most niche of markets. 54 After the jury found infringement, one commentator explained: There's no denying that "Dark Horse" and "Joyful Noise" sound similar. The beat in the latter's opening moments sounds a little like the unknown Seq: 13 21-AUG-20 13:34 The New Copyright Opportunist 13 drop in the former-but "Joyful Noise" is noticeably faster than "Dark Horse." It's also in an entirely different key, and as soon as Flame begins to rap, the song's electric guitar solos and overtly religious lyrics are impossible to recognize as even vaguely being related to "Dark Horse." [Flame] and co. had musicologist Todd Decker testify as an expert witness during the trial, who determined that Perry and her team had copied their song's beat; the musicologist that Perry and her team put forward, however, determined that all the supposedly copied elements of "Dark Horse" were simply part of pop and trap music. 55 Even though the district court subsequently overturned the jury's finding of substantial similarity, more broadly, the combination of access via the celestial jukebox and similarity due to genre constraints can make it elementary to establish copying in fact and substantial similarity. Of course, good expert testimony that a music segment is a basic, and oftused, building block of music can seek to counteract claims of improper similarities, but that will not always be straightforward. Perhaps emboldened by the jury's verdict, there are now many more actual or threatened cases in the pipeline that pit an obscure song against a successful one: singer-songwriter Steve Ronsen's song Almost against Lady Gaga's Oscar-winning song Shallow based on a shared three notes (G, A, B) that appear in Shallow's hook, 56 and PuertoReefa and Sakrite Duexe's hip-hop song Broad Day against Lil Nas X and Cardi B's collaboration, Rodeo, based on "use [of] the same chord progression (E, F, G, F, E) [and] also the same 4-measure phrase that outlines it." 57 The "obscure song" plaintiffs are opportunists not because they are seeking to carve out music licensing markets that had not previously existed, but instead because they are bringing claims against some of the most popular musicians that would have been laughable before the "everything is accessible" age in which we currently live. Courts ruling on these claims need to be sensitive to current conditions when they probe how to apply copyright law's bedrock doctrines of copying in fact and cop- ying in law, something the district court in the Katy Perry case did not do. It is particularly worrisome how easy it is to find access and then copying in fact in our current age. One possibility, as Chris Buccafusco argues in forthcoming work, is that copyright law should dispense with the copyingin-fact requirement because it no longer does any work. Instead, I am more partial to working through how to beef up the requirement because otherwise every single work that exists now seems accessible to anyone and many works seem similar based on genre constraints. Do we truly each have access to each of the 400 hours of video uploaded to YouTube every minute, 58 which is estimated to take about 60,000 years to watch completely, 59 or to the over 30 million songs on Spotify, to which 20,000 new songs are added each day? 60 V. HANDLING THE OPPORTUNIST I have just presented three cases of copyright opportunism, enabled by technological change that have opened up potential new markets or access possibilities. I suggest, with this Lecture's title, that these are new copyright opportunists rather than the same old ones long present in copyright law. The newness derives from the widely-acknowledged increasing rate at which technology has been advancing, 61 specifically in the copyright context to facilitate new modes of distribution. This technological acceleration thus provides increasingly frequent chances for courts to rule on copyright opportunism. To borrow from Justice Souter's discussion of fair use in Campbell v. Acuff-Rose Music, Inc., how should courts "separate[e] the [deserving but opportunistic] sheep from the [nothing but opportunistic] goats"? 62 The two types of opportunists often look the same, particularly at the outset. 58 The New Copyright Opportunist 15 They are each heading to the courthouse with a plausibly copyrighted work that currently has low licensing value but which they are hoping will have high litigation value. They might have tried to negotiate a license with the defendant, which in all the cases I discussed was a well-resourced heavy hitter, and gotten nowhere. The opportunist's leverage, if any, is therefore only in the courthouse. Yet the deep disconnect between the current licensing value of the copyrighted work and the possible litigation value of the work ought to be a hallmark that an infringement plaintiff is an opportunist. And that always ought to give a court pause. As Michael Burstein has argued in the context of patent law, "the pricing mechanism in a liquid market may more easily and quickly incorporate information about litigation value than commercialization value." 63 To Burstein, that imbalance is worrisome because a patent's "value in a market [actually] fails to reflect the value of the underlying technology." 64 A patent may be invalid or cover marginal technological contributions, suggesting it should have low market value, but because of risk aversion in litigation, targeted assertions against those feeling compelled to pay up, and sometimes overly generous court rulings, the patent has high litigation value. One can readily see how a similar dynamic could play out in copyright law, with defendants acquiescing to a new copyright market or a court ruling there ought to be one. A disconnect between a copyright's current licensing value and potentially high litigation value ought to signal to a court that a clinical application of doctrine might not be its best way forward, especially when there is a new copyright market categorically at stake, as with tattoos rendered in realistic videogames on subjects carrying those tattoos, celebrities' social media posts of paparazzi photographs of themselves, and obscure, but accessible, songs that are somewhat similar to popular songs. Beyond the three cases studies that I discussed, there are other recent examples of opportunistic litigation to carve out a new copyright market: Should there be a copyright market for dance moves incorporated into video games, as the Backpack Kid, originator of the flossing dance, and Alfonso Ribeiro, creator of the Carlton Dance, alleged against the makers of the videogame Fortnite? 65 Should there be a copyright market for caption snippets a user can activate when listening to an audiobook, to clarify or look up a word in a parody case, since parodies almost invariably copy publicly known, expressive works."). 63 the user has heard, as book publishers asserted in a recent suit against Audible? 66 Should there be a copyright market for third parties' embedded content from social media posts containing the content, as was alleged by a photographer of New England Patriots quarterback Tom Brady against news organizations that embedded tweets of the photograph on their sites? 67 With all due respect to Judge Forrest, who wrote the opinion on liability for embedding tweets, I think she got the framework for analyzing an opportunistic suit for a new market wrong when she wrote, albeit wittily: When the Copyright Act was amended in 1976, the words "tweet," "viral," and "embed" invoked thoughts of a bird, a disease, and a reporter. Decades later, these same terms have taken on new meanings as the centerpieces of an interconnected world wide web in which images are shared with dizzying speed over the course of any given news day. That technology and terminology change means that, from time to time, questions of copyright law will not be altogether clear. In answering questions with previously uncontemplated technologies, however, the Court must not be distracted by new terms or new forms of content, but turn instead to familiar guiding principles of copyright. In this copyright infringement case, concerning a candid photograph of a famous sports figure, the Court must construe how images shown on one website but stored on another website's server implicate an owner's exclusive display right. 68 Of course, Judge Forrest is correct that a court's ruling should be grounded in "familiar guiding principles of copyright." But these principles don't provide the complete answer when a new copyright market is at stake. When a new copyright market is at stake, a court ought to look at the intersection of doctrine and policy, about whether an extension of doctrine to a new market aligns with copyright's policies that navigate between copyright's incentives to create and distribute works and broad access to works. A court can delve into this intersection of doctrine and policy only if it has a robust understanding of the plaintiff's marketplace, the defendant's marketplace, and the technologies at issue. That is, a court ought to be preoccupied with (a more benign form of Judge Forrest's "distracted by") "new terms or new forms of content" and the technological and economic mechanisms underlying them. What are the industries on each side doing to increase social welfare vis-à-vis copyrighted works, 66 Andrew Albanese, In Filings, Audible Says 'Captions' Copyright Case Should Be Dismissed, PUBLISHERS WEEKLY (Sept. 13, 2019), https://www.publishersweek ly.com/pw/by-topic/industry-news/publisher-news/article/81169-in-filing-audiblesays-captions-copyright-case-should-be-dismissed.html. 67 Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018). 68 Id. at 585-86 (emphasis added). and what are the marketplace realities for them to continue doing that? How are they using technology to effectuate those goals? Courts that are open to engage in a robust inquiry cannot be expected to possess this specialized information intrinsically or to undertake this inquiry on their own. Litigants are well-placed to put this economic and technological information before the court, just as 2K Games' lawyers did in the tattoo videogame cases. Courts also ought to feel emboldened in these cases to appoint economic or technological experts as special masters to help sort through these issues. 69 Courts are currently used to thinking about the technological and economic details related to a copyright infringement case only in narrow areas. For example, all courts know to look to "the effect of the use upon the potential market for or value of the copyrighted work," as required by the copyright statute in analyzing fair use. 70 And courts will look to economic realities in awarding "the copyright owner's actual damages and any additional profits of the infringer," as set out in the statute. 71 But economic and technological facts are relevant throughout copyright infringement cases. To give but one example, which Mark Lemley and I have written about, when assessing substantial similarity, it is more consistent with both copyright doctrine and policy to assess substantial similarity through the lens of a typical consumer of the copyrighted works at issue than through the lens of a detached and fictional reasonable observer. 72 The reason is that "the consumer is likely to be the audience that most directly measures whether the plaintiff's work and the defendant's work at issue in . . . litigation substitute for one another in the marketplace. When the consumer is the audience for IP infringement, . . . third parties will be discouraged from producing substitutes without permission from the rights holder." 73 This Lecture began with a mention of copyright trolls, which tend to have a bad reputation in copyright law. By contrast, the copyright opportunist is less easy to judge. The copyright opportunist arrives at court with all shades of gray for a court to sort through. And the court can sort through those shades and arrive at a ruling only by analyzing the economic and technological realities underpinning the opportunist's litigation claims, connecting them to copyright policy, and using all those to fill in the inter- stices of copyright doctrine. Unlike troll suits, which Shyam Balganesh has argued are unwelcome for upsetting the copyright ecosystem by converting tolerated infringement into litigation, opportunistic suits ought to be most welcome in courts to develop copyright law so long as courts are using a robust set of tools to derive their rulings. See, e.g., Sag, supra note 5, at 1110. See Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946); see generally GARY A. ROSEN, UNFAIR TO GENIUS: THE STRANGE AND LITIGIOUS CAREER OF IRA B. ARNSTEIN (2012). 18 Perzanowski, supra note 16. R 19 Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 VA. L. REV. 1687, 1762 (2006). 20 Matt Kim,

See, e.g., Sag, supra note 5, at 1110.


" The NIH-Moderna Vaccine: Public Science, Private Profit, and Lessons for the Future ," 51 The Journal of Law, Medicine and Ethics (Issue S2) 35 (2023)

"The NIH-Moderna Vaccine: Public Science, Private Profit, and Lessons for the Future," 51 *The Journal of Law, Medicine and Ethics* (Issue S2) 35 (2023)

Christopher J. Morten, The NIH-Moderna Vaccine: Public Science, Private Profit, and Lessons for the Future, 51 J.L. Med. & Ethics 35 (Supp. S2 2023)

Building on testimony Sarpatwari delivered to the United States Senate Committee on Health, Education, Labor and Pensions (HELP) in March 2023, 3 Moderna's Violation of the Social Contract describes how the U.S. government's collaboration with Moderna to develop the wildly successful NIH-Moderna vaccine "turned the traditional model of therapeutic development on its head." 4 Sarpatwari's central theme is "derisking": the government, not Moderna, provided substantial capital and bore much of the risk. major details of Moderna's subsidies that have escaped widespread attention. First, the U.S. government's August 2020 procurement contract with Modernaworth $1.5 billion, in exchange for 100 million doses of the NIH-Moderna vaccine 5 -was apparently executed at risk. This means the contract seemingly committed the government to pay Moderna even if the vaccine never obtained FDA authorization or approval. 6 As such, this first procurement contract "derisked" Moderna's development process enormously. Second, Sarpatwari observes that, with the same contract, the U.S. government attempted to shield Moderna from any liability it might face for infringing other companies' patents in the course of manufacturing and distributing the vaccine. 7 In February 2023, the Department of Justice confirmed the government's intent to provide this additional subsidy to Moderna: "the effect of the Government's 'authorization and consent' is to relieve Moderna of any liability for patent infringement resulting in performance of the [August 2020 procurement contract] and to transfer to the United States any liability for the manufacture or use of the inventions claimed in [patents asserted against Moderna] resulting from the authorized and consented acts." 8 This liability shield may be worth tens or even hundreds of millions of dollars, as Moderna defends itself from claims of patent infringement brought by Alnylam, Arbutus, and Genevant, all of which hold patents on lipid nanoparticle technology used in mRNA delivery. 9 Yet Moderna, and its executives and other shareholders, have managed to capture the value produced by this public-private collaboration. Moderna has now decided to quintuple its prices, from about $25 per dose to $130 -a price its executives describe as "consistent with" the full value of vaccine. 10 Sarpatwari shows that these price increases are unjustifiable and likely to harm patients, public health, and American taxpayers for years to come. I testified alongside Sarpatwari at the March 2023 hearing of the Senate HELP Committee, 11 and I sought to present a distinct and complementary perspective on the NIH-Moderna vaccine: scientific. I attempted to answer two basic questions about the scientific history of the NIH-Moderna vaccine: What are the key features of the vaccine that make it safe, effective, stable, and otherwise valuable? Whose insights and labor created these features and this valuable product? My research and testimony focused on three key scientific features of the NIH-Moderna vaccine: (1) The immunogen -the chemically modified coronavirus spike protein the vaccine produces once inside the body, sparking a protective immune response; (2) The modified mRNA -the stabilized, chemically modified mRNA that "encodes" the immunogen; and (3) The delivery system -the lipid nanoparticle that helps the mRNA stay stable and enter cells in the body to begin producing protein. The choice of these three was not arbitrary; Moderna and its scientists have at points identified these three features of the NIH-Moderna vaccine as particularly important to the vaccine's success. 12 I found that Moderna did not invent any of these three features on its own. 13 In fact, Moderna cannot claim to be the driving force behind any of these three features. Here, I provide a summary. First, the immunogen was not invented by Moderna; it was instead invented by a publicly funded team of NIH scientists and academic collaborators working at the Scripps Research Institute and Dartmouth College, 14 years before SARS-CoV-2 emerged. Before entering its collaboration with NIH in early 2020, Moderna had never done any work on a coronavirus vaccine, and the company relied heavily on NIH's longstanding expertise. Writing to NIH scientist Barney Graham in January 2020, Moderna CEO Stéphane Bancel stated that Moderna would be "ready to run when you give us a sequence" of viable SARS-CoV-2 immunogen -and NIH delivered that sequence to Moderna days later. 15 Moderna's reliance on NIH in 2020 has not stopped the company from exaggerating its own scientific role in the years since, or from attempting, brazenly, to obtain its own patent on the immunogen sequence, omitting NIH. 16 Second, the modified mRNA was likewise not invented by Moderna. Primary credit for the invention of the modified mRNA belongs to researchers working at the University of Pennsylvania, including Katalin Karikó and Drew Weissman. 17 This work, and other work on modified mRNA, was again supported by NIH. 18 Third, the delivery system was probably not invented by Moderna. 19 The scientific history of lipid nanoparticle delivery systems is complex and somewhat murky, and details of the specific nanoparticles that Moderna uses in its vaccines are hard to come by. Yet it seems that the nanoparticles Moderna uses were invented and initially developed by researchers affiliated with the University of British Columbia and certain startup companies in British Columbia, 20 not Moderna. I also examined how NIH and Moderna collaborated to combine these three features (and others) into a single product, manufacturable at scale. Combining these features into a complete, validated vaccine in a matter of months was a momentous achievement in its own right. However, as I described in my testimony, again it seems the U.S. government did at least as much as Moderna. 21 For example, NIH designed, paid for, and ran the early clinical trials on the original NIH-Moderna vaccine, 22 and it later helped Moderna develop its first variant-specific booster shot. 23 Moreover, Operation Warp Speed provided equipment and other support to expand Moderna's manufacturing. 24 Then-head of Operation Warp Speed Moncef Slaoui summed it up in late 2020: "We held Moderna by the hand on a daily basis." 25 Of course, Moderna's scientists and engineers made significant contributions of their own to the NIH-Moderna vaccine. These include the vaccine's "stop codon," a commercial-scale manufacturing process, and improvement of the modified mRNA. 26 Moderna's scientists, engineers, and other employees deserve celebration alongside NIH's and their academic collaborators. Overall, however, the scientific history undermines Moderna's executives' efforts to claim the full value of the NIH-Moderna vaccine for the company. Today, Moderna controls the factories, key intellectual property and tacit knowledge, the regulatory filings, and the scientific agenda for future mRNA research. The government finds itself transformed from senior partner in its partnership with Moderna to a helpless customer. The shrunken power of the government is arguably best highlighted by a July 2023 letter that Xavier Becerra, Secretary of Health & Human Services, sent to Moderna and Pfizer. 27 Becerra essentially begged the companies not to increase vaccine prices: "Price gouging behavior takes advantage of the trust the American people have placed in you through the COVID-19 response." 28 Neither Moderna nor Pfizer has given any indication they will lower prices. In fact, COVID-19 vaccine prices are likely to rise for years to come, according to the industry's standard playbook. 29 As Sarpatwari explains, the likely consequences of high prices are grim: increased inequity and public health costs, and more illness and death from COVID-19. 30 All this begs a critical question: If the American public created the lion's share of the value of the NIH-Moderna vaccine, why is the public now left with so little? A simple answer to the question is that Operation Warp Speed's negotiators botched their negotiation. Back in the hectic, horrible, uncertain days of 2020, the Trump Administration failed to extract legally binding concessions from Moderna in exchange for the unprecedented derisking it gave the company. These concessions might have included contractual commitments to fair pricing, data sharing, and global access to mRNA vaccines; shared control of intellectual property, manufacturing data, and Moderna's scientific agenda; or perhaps some of the more quotidian concessions given to major private investors, such as shares and voting board seats. 31 A more nuanced answer acknowledges that the Biden Administration missed opportunities of its own to renegotiate for more. For example, in early 2023, Operation Warp Speed's negotiators botched their negotiation. Back in the hectic, horrible, uncertain days of 2020, the Trump Administration failed to extract legally binding concessions from Moderna in exchange for the unprecedented derisking it gave the company. These concessions might have included contractual commitments to fair pricing, data sharing, and global access to mRNA vaccines; shared control of intellectual property, manufacturing data, and Moderna's scientific agenda; or perhaps some of the more quotidian concessions given to major private investors, such as shares and voting board seats. Moderna announced that it would pay NIH hundreds of millions of dollars for a license to NIH's key patent on the immunogen in the NIH-Moderna vaccine; rather than collect this revenue, Biden and NIH could have used those hundreds of millions in financial leverage to extract concessions from the company on pricing and access. 32 Better yet, Biden could have used the Defense Production Act (DPA) -a federal statute enacted in 1950 that gives the U.S. President broad and unilateral authority to protect the national defense. 33 In 2021, as vaccine supplies were scarce and global manufacturing capacity sat idle, Biden could have used the DPA to compel Moderna to share valuable information on mRNA vaccine manufacturing with the World Health Organization, thereby expanding supplies and access, limiting the spread of new variants to the United States, saving lives here and globally, and catalyzing new research. 34 Another critical question: what to do now? Sarpatwari argues that our government could still act to urge Moderna to lower its prices, and/or mitigate the harms of high prices. He proposes increased Congressional pressure on the company; continuation of bulk purchases of vaccines; and Congressional authorization to the Centers for Medicare and Medicaid Services (CMS) to negotiate prices. 35 I agree. Sarpatwari looks ahead to future public health emergencies. In Moderna's Violation of the Social Contract and elsewhere, 36 Sarpatwari argues for a new law and policy framework for public-private partnerships between the U.S. government and pharmaceutical companies. For Sarpatwari, an essential component of this new framework will be explicit, enforceable contractual provisions in government and industry partnerships to ensure affordable prices. 37 Again, I agree. In separate writing, 38 I elaborate on long-term lessons I think we should take from the successes and failures of Operation Warp Speed. In brief, I believe our government should both restructure its legal arrangements with the pharmaceutical industry and, simultaneously, explore the possibility of discovering, developing, manufacturing, and developing pharmaceutical products without relying on that rapacious industry. The government can and should restructure legal arrangements with industry by contracting betterwith fair pricing and global access provisions, commitments to data sharing, government representatives on corporate boards, and so on as noted above-and by experimenting with alternative incentive structures that entice industry but leave greater control in the hands of the public. Such incentive structures include innovation prizes 39 and "government-owned, contractor-operated" (GOCO) partnership models. 40 Government-set innovation prizes would align R&D efforts with the greatest public health needs and would "de-link" financial incentives for industry from prices, meaning industry could be guaranteed a healthy financial reward for useful innovation while also guaranteeing low prices for patients. 41 The GOCO model-already widely used by the U.S. Departments of Defense and Energy-pays companies to operate R&D and manufacturing facilities but retains public ownership of those facilities. 42 Simultaneously, the government can and should foster a genuine alternative to the profit-hungry pharmaceutical industry. We need a "public option" comprising government-owned, government-operated pharmaceutical research and development and manufacturing, and focused not on profit but on public health and the advancement of human knowledge. 43 The opportunity for reform is ripe. Congress and the Biden Administration have announced major new investments and initiatives in research and development (such as Project NextGen (which will develop new technologies against SARS-CoV-2) 44 and ARPA-H (which expands NIH's ability to do high-risk, highreward research) 45 ). Congress is considering more (such as a reauthorized and expanded Pandemic and All-Hazards Preparedness Act (which invests billions in pandemic preparedness) 46 ). Promisingly, the Biden Administration just included an explicit, enforceable reasonable pricing provision in a new $326 million investment contract with Regeneron struck as part of Project NextGen. 47 The stakes are high. Debates over not just pharma and health care but also housing, transportation, energy, response to climate change, and more all turn on fundamental questions of the legal structure of public investment in new technologies. 48 Moderna's Violation of the Social Contract illuminates some of the weaknesses of the current paradigm of public-private partnership and points us to a new one. https://doi.org/10.1017/jme.2023.149 Published online by Cambridge University Press

Moderna's Violation of the Social Contract Highlights Moderna's Unprecedented "Derisking" and the Harms of High Vaccine Prices

An Additional Scientific Perspective Corroborates Sarpatwari's Account: Moderna Captured Valuable Science Created by the Public

Lessons and Recommendations for the Future


" The NSA's Culture of 'Legal Compliance' Still Breaks the Law ," JustSecurity , Feb. 24, 2014

"The NSA's Culture of 'Legal Compliance' Still Breaks the Law," *JustSecurity*, Feb. 24, 2014

Christopher Jon Sprigman, The NSA's Culture of 'Legal Compliance' Still Breaks the Law, JustSecurity (Feb. 24, 2014), https://www.justsecurity.org/7485/nsas-culture-legal-compliance-breaks-law/

Lately the NSA has been on a public relations offensive that has two principal aims. First, the agency is trying to convince the public that a lot of the NSA’s bad press is based on misunderstandings and factual errors regarding what the agency’s actual activities are. The agency isn’t completely wrong here, but given what we know to be true about NSA mass surveillance and the at best tenuous legal basis for much of what the agency is doing, the NSA’s complaints about inaccuracy are pretty weak stuff. With anything as complicated and secretive as the NSA’s mass surveillance programs, some of the press reporting and public debate will be off base – at least at first, until additional reporting has filled in some of the gaps and righted the inaccuracies. And the bulk of the reporting has been accurate right from the start – even though the agency has generally been unhelpful in sorting out the truth. But I’ll leave that for another time, because it’s the second piece of the public relations offensive that interests me most. The NSA has sent out two of its top lawyers – General Counsel Rajesh De and Director of Compliance John DeLong – to make the pitch that the agency, far from being the out-of-control surveillance machine that some in the press are making it out to be, is actually an intensely-regulated, closely-watched, and law-abiding good citizen. In particular, De and DeLong pushed this picture of the agency in separate interviews with Lawfare’s Ben Wittes and Robert Chesney. And De gave a speech at Georgetown University Law School that made many of the same points. There are a lot of interesting things in those interviews, which I’d urge you all to listen to and judge for yourselves. (Here’s the DeLong interview; and here’s the De interview.) But in advance of that, I’ll give you my take: After listening to both interviews and thinking about DeLong’s and De’s statements at some length, I’m not reassured at all. In fact, I’m increasingly concerned that the culture of lawyering at the NSA, far from assuring the agency’s lawfulness, actually aids and abets the essential lawlessness of the mass surveillance programs. As I’m about to describe, there is a danger here that the role of the NSA’s lawyers – and this goes for both De and DeLong – creates the appearance but not the reality of lawfulness, and, in the end, does not vindicate the law, but subverts it. What do I mean by this? If you listen to the De and DeLong interviews, you’ll notice two things. First, De and DeLong suggest that they and the agency’s other lawyers have very little – if any – input into the Administration’s interpretation of the agency’s legal authority. Nowhere in his interview does either lawyer suggest that he has any independent view of the agency’s legal authority to conduct mass surveillance. DeLong states pretty clearly that questioning the legal interpretation is not within his job description. And De emphasizes repeatedly that he relies on the expansive interpretation of the NSA’s authority that he says has been approved by Congress, and the courts, and the Administration. He gives no indication that he has his own view on the scope of the agency’s authority. Or that he has engaged with the arguments – which are, in my view, conclusive – that the agency is overrunning that authority. Let me start with De. Respectfully, if the NSA’s chief lawyer is trying to push back against the increasingly widely held view that the NSA is essentially lawless, he’s got to do better than this. De is the NSA general counsel. He’s the person at the NSA directly responsible for ensuring that the agency operates within the law. He can’t contract that job out to Congress, or the court, or the Administration, because it’s NSA employees who have to carry out the Administration’s mass spying policies, and De is the person at the agency responsible to make sure that these particular employees are provided with the appropriate legal authority to do what they are being asked to do. And it’s especially important here that De have an active role, for at least two reasons. First, the asserted statutory authority for the NSA’s mass surveillance programs is shockingly weak. And second, there is in reality very little oversight by Congress, the courts, or the Administration. The broader point is this: If NSA lawyers De and DeLong really want to argue that the agency is operating within the law, they have got to do their own work to defend a broad interpretation of the agency’s authority. In my view, that task is hopeless. But if De and DeLong want to convince us there’s reason to disagree, they are going to have to explicitly tell us why. Consider first the asserted authority for the NSA’s telephony metadata program. The law under which the government collected this data, section 215 of the Patriot Act, allows the F.B.I. to obtain court orders demanding that a person or company produce “tangible things,” upon showing reasonable grounds that the things sought are “relevant” to an authorized foreign intelligence investigation. The government claims that under section 215 it may seize all of our phone call information now because the government has a continuing interest in preventing terrorism, and the data it seizes today might conceivably be “relevant” to an investigation at some later date, even if there is no particular reason to believe that any but an infinitesimal fraction of the unprecedentedly massive pile of data collected might possibly be suspicious or even relevant — ever. That is a shockingly flimsy argument. For centuries, Anglo-American law has understood that to be “relevant,” evidence must be somehow related to a particular existing investigation or dispute. If evidence is “relevant” just because it could hypothetically relate to some future investigation that we don’t know about yet, it makes a mockery of the meaning of relevance—any evidence might be “relevant” to an investigation eventually, if by “eventually” you mean “sometime before the end of time.” In short, the government’s interpretation of its own authority to collect telephony metadata under section 215 isn’t just wrong. It’s farcical. The government’s justification for the “PRISM” program, under which the NSA collects vast amounts of e-mails and other messages—including communications to, from and between Americans—is scarcely better. The government justifies PRISM under the FISA Amendments Act of 2008. Section 1881a of that act gives the President broad authority to conduct warrantless electronic surveillance. And yet the PRISM program appears to outstrip that authority. In particular, the law makes clear that the government “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” The government knows that it regularly obtains Americans’ protected communications. The Washington Post reported that PRISM is designed to produce at least 51 percent confidence in a target’s “foreignness” — as John Oliver of “The Daily Show” put it, “a coin flip plus 1 percent.” By turning a blind eye to the fact that 49-plus percent of the communications might contain communications that are purely among Americans, the NSA has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act. My friend and co-author Jennifer Granick detailed how this happens in a recent post on this blog. What’s happening is that, when conducting upstream collection, NSA’s systems don’t always pull single messages; rather, they regularly capture what the agency, with characteristic opacity, refers to as “Internet transactions.” An “Internet transaction” may be comprised of a single message – an “SCT”, in NSA-speak. According to Judge Bates of the FISA court, approximately 46,000 SCTs collected every year are purely domestic communications between Americans, collected from international switches because they are about matters of foreign intelligence interest. Further, Internet transactions often contain multiple messages – the agency refers to this bundle of messages as an “MCT.” If only one message in an MCT is responsive to the NSA’s targeting terms, the NSA devices nonetheless pull the entire package of messages into the NSA databases. MCTs can contain messages that have nothing to do with foreigners or foreign intelligence. In total, NSA’s internal auditing, done, as Granick put it, “at Judge Bates’ version of gunpoint,” put the number of improperly collected wholly domestic American messages at approximately 56,000 in 2011. The NSA’s figure is very likely to be an undercount, and perhaps a gross undercount, because it assumes that each MCT contains only one improperly collected communication. Further, the figure only attempts to include domestic messages captured under this particular legal authority, and not under Executive Order 12333 or other rationales. But in any event, 56,000 prohibited communications in a year is bad enough. How could vacuuming up so many prohibited “pure-U.S.” communications conform with the legal limitations found in the FISA Amendments Act? Well, as James R. Clapper Jr., the Director of National Intelligence, told Andrea Mitchell of NBC, the N.S.A. uses the word “acquire” only when it pulls information out of its gigantic database of communications and not when it first intercepts and stores the information. So according to the man President Obama put in charge of our nation’s intelligence services, tapping Internet communications, diverting them to NSA computers, and storing them on NSA hard drives is not “acquiring” them. Here’s an analogy: You carjack a truck full of merchandise. And the police pull you over after you’ve driven only a few blocks. It’s clear you’ve stolen the truck. But have you stolen the merchandise? No, you say, because you haven’t yet looked in the back of the truck. Until you look, you say, you haven’t stolen anything. That’s not going to work. And DNI Clapper’s interpretation of when the NSA “acquires” the communications it intercepts and records isn’t any better. Again, the Administration’s account of what the NSA is permitted to do under the FISA Amendments Act isn’t just bad statutory interpretation. It has become the subject of ridicule. Back to Rajesh De, NSA General Counsel. He is the man charged with ensuring the NSA operates according to law. So how can he ethically rely on interpretations of the agency’s spying authority that are so obviously problematic? As previously mentioned, De’s principal argument is that the Administration, Congress, and the courts have all blessed a wide interpretation of NSA spying authority, and so who is he to disagree? But that argument doesn’t hold up. Let’s first consider the Administration’s supposed blessing of NSA programs. The Administration defended its interpretation of the meaning of “relevant” in section 215 in a white paper released in August 2013. That defense is, at best, unsuccessful. The Administration cites a number of cases that make clear that law enforcement may access records relevant to a particular investigation, and, indeed, may access the files of particular businesses, or entire computer hard drives, to find a subset of documents relevant to a particular investigation. Those cases broadly make sense, because they involve a targeted firm or individual very likely to have evidence relevant to a specific, existing investigation. But that’s nothing like what’s involved in the NSA’s mass spying programs. The Administration cites no case standing for anything like the proposition that it’s trying to prop up — that government can access the telephone records of millions of Americans suspected of no wrongdoing because some infinitesimal subset of those records may conceivably be of value to the government’s continuing efforts to prevent terrorism. There is no such case the government could cite, because the principal of relevance, as we’ve always understood it, is directly inimical to the government’s entire project of suspicionless mass surveillance. The arguments on the meaning of “relevant” in the Administration’s white paper are shoddy, utterly result-oriented, and legal fiction. If Administration lawyers have defended DNI Clapper’s interpretation of the meaning of “acquire” in section 1881a of the FISA Amendments Act, I haven’t seen it. And I don’t recommend they start now. We all know what it means to “acquire” something. It ain’t what Clapper says. What about Congress? Haven’t they approved the Administration’s interpretation of the NSA’s authority? Hardly. As Marcy Wheeler has noted, the NSA has hidden from Congress the full extent of its spying on Americans. But frankly even if the NSA had been more forthcoming, key members of Congress, such as Senate Intelligence Committee Chair Dianne Feinstein and ranking member Mike Rogers, seem interested mostly in ensuring that the NSA continue its mass surveillance programs regardless of whether they are lawful or not. In any event, the law isn’t what any particular member of Congress thinks it is. The text of section 215 of the Patriot Act and section 1881a of the FISA Amendments Act is the law, and that text simply does not authorize what the NSA is doing in its telephone metadata and FISA Amendments Act mass spying programs. Nothing Congress has done changes that. Actually, even that last sentence overstates the degree to which De can rely on Congress. Because Congress hasn’t actually done anything. Rather, Congress has failed to act. And to construe Congress’s inaction as acquiescence in an Administration interpretation of its authority that is so palpably at odds with what the law actually provides is leaning far too heavily on the most slender imaginable reed. Finally, what about the courts? Judge Richard Leon of the Federal District Court for the District of Columbia recently held that section 215 collection violated the Fourth Amendment. He did not, however, reach the section 215 relevance issue. On the other hand, Judge William Pauley of the Southern District of New York recently upheld the Administration’s broad interpretation of its authority under section 215. But again, the opinion is utterly results-oriented, unsupported by precedent, and unconvincing. The gist of the Pauley opinion is that the Administration’s interpretation is correct because the government’s mass spying programs are necessary to national security, and that Congress must have legislated with that understanding. Judge Pauley must be unaware of the statements by Representative F. James Sensenbrenner Jr., a Wisconsin Republican, one of the architects of the Patriot Act, and a man not known as a civil libertarian. In the wake of the Snowden revelations and the ensuing uproar about the NSA’s mass spying programs, Sensenbrenner said that “Congress intended to allow the intelligence communities to access targeted information for specific investigations.” But the NSA’s demand for information about every American’s phone calls isn’t “targeted” at all — it’s a dragnet. “How can every call that every American makes or receives be relevant to a specific investigation?” Mr. Sensenbrenner asked. The answer is simple: It’s not. And nothing Judge Pauley says can make it so. I could go on, for example about how the judgment of the Potemkin FISA Court isn’t viable, but Julian Sanchez has already dealt very capably with that in a recent post on this blog. And in any event I want to finish my point about Rajesh De and then move on to John De Long. The upshot is this: If Rajesh De wants to defend the lawfulness of NSA’s mass surveillance programs, he’s going to have to give us his own arguments for why those programs meet the standards of sections 215 of the Patriot Act and 1881a of the FISA Amendments Act. And he’s going to have to do better — much better — than other parts of the Administration, the Congress, and the courts have done thus far. If he doesn’t, then he’s not discharging his responsibility as the NSA’s chief legal officer to ensure that the agency is operating within the law. The NSA’s General Counsel cannot rely wholly on others’ interpretations of the agency’s authority – especially when those interpretations are as flimsy as they, at present, are. Now on to NSA Director of Compliance John DeLong. Unlike De, who fudges on this question, DeLong states clearly that it’s not his job to assess whether the Administration’s interpretation of the agency’s legal authority to conduct mass spying is correct. DeLong insists that his responsibility as the agency’s chief compliance lawyer is limited to making sure that whatever that interpretation is, the agency complies with it. DeLong uses the metaphor of the recipe versus the cooking. His job, DeLong says in his interview, is not to determine the recipe. It’s to make sure that the people in the kitchen follow the recipe. Translated into what DeLong actually does for a living, that means that DeLong is indifferent to whether the Administration’s understanding of the scope of the NSA’s legal authority to conduct mass surveillance is correct or even plausible. DeLong’s job is simply to make sure that, whatever that interpretation of the agency’s authority is, the agency adheres to it. The obvious problem with the metaphor is that if the recipe is poison, then DeLong’s metaphorical job is to make sure the kitchen staff faithfully prepares poisonous food for all of us to eat. Or, again focusing on DeLong’s actual understanding of his job, if the Administration’s legal interpretation is not in fact lawful, then DeLong’s compliance efforts aren’t providing lawfulness but the negation of it. Is that really what the NSA’s chief compliance lawyer is supposed to be doing? Without assuring himself — pursuant to his own understanding of what the law permits and forbids — that the NSA’s mass spying programs are in fact authorized? These are important questions, because DeLong isn’t just talking about his job — he’s trying to convince us that he’s part of a culture at the NSA that values the law and respects it. And DeLong’s role in this, by his own account, is to obsessively micro-manage NSA personnel and processes to make sure that they behave. At which point, DeLong’s interviewer, Ben Wittes, asks precisely the sort of question that DeLong’s account is intended to elicit. Wittes: “I’m interested in a cultural question. Having built . . . a microcosm of NSA devoted to the most neurotically detailed compliance, it must be very odd for you to see the way the agency is described . . . as lawless . . .” The answer to this is that compliance is not the same thing as lawfulness. If the rule with which DeLong is complying is itself unlawful, the compliance is merely the appearance of lawfulness without its substance. And the role of the lawyers – and this goes for both De and DeLong – does not vindicate the law, but subverts it.


" The One Redeeming Quality of NFTs Might Not Even Exist ," Slate , Apr. 2021 (with Kal Raustiala)

"The One Redeeming Quality of NFTs Might Not Even Exist," *Slate*, Apr. 2021 (with Kal Raustiala)

Kal Raustiala & Christopher Jon Sprigman, The One Redeeming Quality of NFTs Might Not Even Exist, Slate (Apr. 2021), https://slate.com/technology/2021/04/nfts-digital-art-authenticity-problem.html

When Christie’s auctioned for $69 million a “nonfungible token,” or NFT, linked to the digital collage Everydays: The First 5000 Days, many people asked WTF was an NFT? And why was a relative unknown artist by the name of Beeple now the third-highest selling living artist—for a digital work that the new owner can’t even hang on the wall? The ensuing media frenzy proved that NFTs have successfully consummated a buzzy marriage of cryptocurrency and contemporary art. But they have also been touted as solving the authenticity problem that plagues digital art. The hallmark of any digital work is that it can be replicated—perfectly, endlessly, and virtually without cost. But if you bundle the artwork with an NFT, then you have a way, some argue, of identifying the “authentic” copy. As the New Yorker recently put it, “imagine digital Beanie Babies, but with only one existing copy of each.” That supposed rarity helps make sense of the lofty price tag for Everydays, as well as for the many other NFTs out there linked to digital works ranging from tweets to music videos. David Hockney, the 83-year-old British painter whose pop-art masterpiece Portrait of an Artist (Pool With Two Figures) briefly held the record ($90.3 million auction price in November 2018) for price paid for the work of a living artist before losing that title to Jeff Koons’ sculpture Rabbit ($91.1 million auction price in May 2019), is skeptical. On an art podcast, Hockney recently said, “What is it that they’re owning? I don’t really know.” NFTs, Hockney said, are the domain of “international crooks and swindlers.” Hockney may have a point. If you look at them closely, NFTs do almost nothing to guarantee authenticity. In fact, for reasons we’ll explain, NFTs may actually make the problem of authenticity in digital art worse. The first barrier to understanding NFTs is the amalgam of techno-babble and art-world nonsense used to describe what they are. The difficulty starts with the name. On one level, it usefully distinguishes NFTs, which are a blockchain-based technology, from other blockchain-based currencies like Bitcoin or Ethereum. The latter are “fungible” in the sense that any one Bitcoin is worth the same as any other. NFTs are “nonfungible” in the sense that each is unique. It is this feature that people point to when they say that an NFT can be used as a token to identify an “authentic” digital artwork. Let’s turn back to Everydays and see if that argument holds up. The Christie’s description of the auction states that Beeple will deliver a copy of Everydays—a 500-megapixel image with a file size of about 300 megabytes—to the buyer. That feature makes this transaction resemble a typical art sale—buyer pays money; artist delivers “authentic” artwork. But unlike a painting or a sculpture or even a traditional photograph that has been created by the hand of the artist, there are countless perfect copies of Everydays floating around on the internet, copies that are indistinguishable from the one Beeple delivered to the buyer. In fact, the very technology used to store the work—the peer-to-peer “InterPlanetary File System”—creates many copies of the file containing Everydays and distributes them to many computers connected to the network as a form of distributed storage. If you want a copy of Everydays, just go here. Because there are so many copies of Everydays floating around, and because those copies are precisely the same down to the last pixel, it is very difficult to assure anyone that what they have is the original/authentic/canonical copy. That’s true even if we agree on a convention that would anoint the copy Beeple delivered as the “real” one. In any future transaction, making sure that the seller delivers that same copy to the buyer, and that the copy previously transferred has not been replaced by another, identical copy, would be very difficult or even practically impossible. But once you understand what the NFT is and how it actually works, you can see that it does nothing to permit the buyer, as the New Yorker put it, to own a “digital Beanie Baby” with only one existing copy. In fact, the NFT may make the authenticity question even more difficult to resolve. First, the “nonfungible” in “nonfungible token” refers to the token itself—that is, to the block of code that makes up the NFT, and not to the artwork that an NFT is associated with. NFTs are often shorthanded as “linking” to an artwork, or “pointing to” or “representing” it. But those characterizations are misleading. NFTs identify a particular digital artwork only in the most general way: They contain a “hash” of the artwork as part of the code that makes up the NFT, and some contain a link to an internet address that displays a copy of the artwork. A hash is a code that’s generated by passing all the data in a digital file through an algorithm that outputs a short alphanumeric “signature.” Here’s the hash for Everydays: 6314b55cc6ff34f67a18e1ccc977234b803f7a5497b94f1f994ac9d1b896a017 6314b55cc6ff34f67a18e1ccc977234b803f7a5497b94f1f994ac9d1b896a017 A 256-bit hash like this one is surpassingly difficult to hack. So for all practical purposes, no two files that contain different data, even if the differences are small, can have the same hash. However—and this is the most important point—if the same encryption algorithm is used, every file containing the same data has the same hash. What does that mean for the Everydays NFT the buyer at Christie’s paid $69 million for? The NFT’s code contains the hash for the Everydays file, Beeple’s cryptocurrency wallet address, and the address for a smart contract that governs how transactions in the token will take place. And that’s basically it. Which means that the NFT Christie’s auctioned is useless to identify an “authentic” copy of Everydays, assuming we can even agree which copy of Everydays is the authentic one. (Perhaps it’s the copy that Beeple generated originally, which is probably not the copy that the Beeple delivered to the Christie’s auction buyer, unless Beeple also delivered the storage media originally used when the image was created.) Whatever the “original” copy of a digital work like Everydays might be, the NFT doesn’t help identify it, because the NFT does not identify a particular copy at all. All it does is tell you whether any particular putative copy of Everydays contains the same data as the file from which the hash was originally generated. In other words, the NFT tells you whether you have a copy. It does not tell you whether you have the copy. It’s true that some NFTs contain a link to an internet address that displays a copy of the artwork. But that doesn’t help resolve the authenticity question, either. There’s no easy way to establish whether the copy linked to the NFT is the authentic copy, assuming, again, that we even have agreement on what the “authentic” copy is. Indeed, even the image that appears on your screen when you access the link recorded in an NFT isn’t the authentic copy—it’s a display of another copy that is made in the memory of your computer. Understood this way, NFTs sound less like guarantors of authenticity and more like an updated version of Sol LeWitt’s wall drawings. LeWitt famously broke new ground in the art world by selling artworks that consisted of instructions explaining how to make a drawing, along with the right to create the drawing the instructions described. All the instructions can tell you, standing alone, is whether a particular piece of wall art conforms with what the instructions describe. So to understand whether a drawing you see on a wall that corresponds to the LeWitt instructions is an “authentic” LeWitt, you have to know something about who produced that particular drawing, and whether they did so with LeWitt’s authorization and according to LeWitt’s instructions for that work. You have to know, in other words, all the messy details—chain of title governing the property and the rules governing its use—that are difficult enough in the physical world but much worse in the digital world, where perfect, exact copies proliferate by design. (Note that unlike with LeWitt’s instructions, you can’t use an NFT’s hash to actually create the artwork. Hashing works in only one direction.) The Christie’s auction isn’t purporting to sell art that’s an executable idea, like a Sol LeWitt wall drawing; it’s purporting to sell a Beeple artwork, the “monumental digital collage” Everydays. But Christie’s hasn’t sold the artwork Everydays. Nor has it sold a unique copy of Everydays. Nor has it sold a piece of technology that is capable of identifying a unique copy of Everydays. It’s simply sold an NFT. All of which opens up some interesting possibilities. What if Beeple creates another copy of Everydays, generates a new NFT, and Christie’s auctions that? The terms of the auction—at least judging by the information that Christie’s has made public—do not seem to prohibit this. But if making new copies has been banned, that has nothing to do with NFTs. Nor has it anything to do with copyright law. In fact, copyright law explicitly reserves to the artist the exclusive right to make copies of her work. Remember that when an artist sells an artwork, she retains the copyright unless that is also sold—a transaction that copyright law requires to be in writing. And so any commitment by the artist not to proliferate copies of a digital artwork, which she might then issue accompanied by new NFTs, would be written into an old-fashioned contract. So, NFTs don’t help resolve the question of authenticity, and in fact, they might make things more complicated. How? Because anyone can make an NFT of any digital artwork. Making an NFT doesn’t involve copying, distributing, or displaying the artwork itself, and so copyright law is not implicated. And in fact, many people have made NFTs of others’ artwork, and each one is owned by a different person. Which means that not only are NFTs useless at distinguishing the authentic copy, they also can add a lot of spurious and potentially confusing information about ownership—at least if you take NFTs seriously as stating some sort of ownership claim to a particular piece of art. In short, NFTs may seem to have repealed the laws of economics, but they cannot repeal the laws of intellectual property So what explains the NFT gold rush? Some allege pandemic boredom; others, an undue fascination with anything blockchain. (Remember the Long Island Iced Tea Corp.’s stock went up 432 percent after it changed its name to Long Blockchain Corp.?) In the case of Everydays, some even allege an elaborate conspiracy between Beeple and the buyer. But NFTs are probably better explained as a 21st-century potlatch. As Thorstein Veblen famously explained more than a century ago in The Theory of the Leisure Class, the wealthy, especially the newly so, are drawn to “conspicuous consumption.” Displaying, and even heedlessly destroying, wealth becomes a mark of status. What makes NFTs especially interesting as a social matter is that they are the latest and greatest example of what we might call “virtual Veblen goods.” To economists, a Veblen good is something consumed for its ability to (supposedly) confer status through conspicuous consumption (say, fancy Champagne brought over in a nightclub by servers holding sparklers). Veblen goods are more attractive the more expensive they are. The cost is the point. And just as more of life has moved online, so too has status competition. Instagram is perhaps Exhibit A—all that thirst!—but while you can buy followers and fake photos, what’s depicted in your feed is usually tangible, real things and places (even if you didn’t visit them). NFTs are different. The consumption depicted is not lapping up a lovely scene in Bali but a digital product that no one can ever touch or feel. It references an artwork as a signal of connoisseurship but actually dematerializes the act of consumption. What’s purchased is not the art but a token of it—something no one can see, or, in all likelihood, resell. (Who would want to be the second person who pays to not own Everydays?) In short, owning an NFT combines traditional Veblenesque status seeking with a 21st-century icing of crypto-cool. As the Verge wrote in its NFT explainer, “Whoever got that Monet can actually appreciate it as a physical object. With digital art, a copy is literally as good as the original.” What’s important is “the flex of owning an original Beeple.” Except, of course, the owner doesn’t actually own it. Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.