Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

You might notice that my blog posts, at least those on the blog’s home page (www.persuasivelitigator.com) always have a photo at the top to catch the eye and help frame the content. I get my photos through a pay-site, or through various sites, like Flickr Creative Commons, which license free and credited use under specific conditions. These non-profits exist in order to allow content creators to use the work of other creators on the theory that everyone benefits from the free exchange. So in selecting my images, I go the legal route — not just because that makes survival sense in a legal field, but also because it is the right thing to do. Yes, I am that kind of person. I have more than 900 albums in my personal digital music collection, and I purchased them all: No copies from friends and no illegal downloads. 

In the world today, however, that is not common behavior. Even among law blogs, some images seem to be used simply because they’re “on the internet.” Research shows that many to most Americans engage in at least some kind of illegal file-sharing or copying behavior, simply because our online lives have made it so easy. The resulting attitude, that everything we see is also something we can use, translates to litigation in intellectual property cases. Some parties want to bootstrap on those attitudes, and others will need to counter those attitudes. Research from a couple of years ago (Fast, Olson & Mandel, 2016) raises the question of whether messages of the kind jurors might hear in trial could influence views on how restrictive or forgiving intellectual property law should be. In this post, I will take a look at that research and how it might translate into trial messages.  

The Research: 

Researchers from the University of Washington and Temple University conducted the first study to look at the effects of manipulating the message on the reasons for IP protection, to see if the views of lay people can potentially be modified. Among the more traditional arguments regarding the reasons for IP (e.g., preserving the incentives to create, natural rights to one’s own invention, and expressive rights to share one’s own ideas), they also focused on a creative commons argument, noting that restrictive intellectual property protection places a burden on future innovation and creativity, and that stifles future work that could benefit us all. The idea behind this rationale, common particularly among younger Americans, is the idea of making information as free as possible.

The team’s main finding is that exposure to arguments about the importance of the public commons led participants to support weaker IP protections.  

“Across the board in both studies, the commons argument led to decreases in support for intellectual property protection, both concerning more general conceptual understanding (e.g., “Do you think intellectual property laws in the United States should be made strong, weaker, or left about where they are?”) and in specific vignette contexts (e.g., participants saw it as more acceptable for one company to copy another company’s patented vaccine).” 

To a lesser extent, arguments about avoiding plagiarism as a basis for IP protection also had the same effect. The plagiarism message, framing IP law as a way of preventing people from claiming other people’s work as their own, however, was about as effective as the control condition (containing no rationale regarding IP protections), suggesting that this view might already be the default popular understanding of the reason for intellectual property protection. 

In other findings, respondents tended to believe infringement is more acceptable if the infringer acknowledges the original creator. In addition older adults, women, and employed individuals are more likely to see infringement as a problem.

Translating the Message Into Trial

The researchers found that “emphasizing the need for material to be in the public domain can lead to measurable reductions in support for stronger intellectual property protection.” One implication for those wanting to reduce the force of IP protections is to include a similar message stressing the creative commons. The message used in the study was as follows:

Creativity and innovation are very important. Since we value the continuing development of creative works and innovative products, we want to limit intellectual property laws. With fewer intellectual property rights, people are free to build upon other people’s creations and innovations to achieve even more advanced works. Through the free sharing of creative works and innovative products with limited intellectual property laws, we allow for an even greater amount and quality of creation and innovation. 

In trial usage, defendants accused of infringement are unlikely to call for “fewer rights” or “limited IP laws,” which could sound like a request for juror nullification. In most cases, both sides, and the jurors themselves, will want to believe that a preferred verdict involves applying and not ignoring or changing the law. But inevitably, that law needs to be interpreted. And parties on the receiving end of an IP suit are generally going to want to call for narrower interpretations of what these laws should protect. In that way, an argument about preserving a creative commons could play a role. The trial version of the message tested in the experiment might be as follows: 

Creativity and innovation are very important, and are at the root of what the law seeks to protect. Since we value the continuing development of creative works and innovative products, we want to make sure we are not exaggerating the zone of what is protectedWhen that zone is relatively narrow, people are free to build upon other people’s creations and innovations to achieve even more advanced works. Through the sharing of creative works and innovative products with few restrictions on creative use, we allow for an even greater amount and quality of creation and innovation. 

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Other Posts on Intellectual Property: 

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Fast, A. A., Olson, K. R., & Mandel, G. N. (2016). Experimental investigations on the basis for intellectual property rights. Law and human behavior, 40(4), 458.

Image credit, Flickr Creative Commons, Andy Melton