Offsets CP - Michigan 7 2024 BFHR

Counterplan---Offsets
Notes
This is an offsets counterplan predicated on the word “strengthen”. This only applies to patents and copyrights since trademarks have to be renewed every couple of years anyways. The counterplan uses a term tailoring mechanism where the USPTO is able to determine the length of patents based on various factors. There are several internal net benefits to choose from and some of them can functions as turns case arguments to aff advantages.
I think competition needs to be fleshed out more for sure. This whole counterplan is basically based on the 1NC Mandel card. It’s really good but many of us struggled to find cards that were similar. You also might want to change the counterplan text as per your liking.
Thank you to Kavi Chidambaranathan, Reagan Subeck, and Jerry Chen.
1NC
1NC---Copyright
The United States federal government should weaken domestic intellectual property protection by [plan] and reduce copyright duration.
Strengthening protection requires assessing the net effect on IP law.
Mandel ’18 [Gregory N.; January; Dean & Peter J. Liacouras Professor of Law, Temple University; Minnesota Law Review, “Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress,” 102:803]
(footnote 12)
12. Consistent with the standard approach applied in analyzing the ideological direction of Supreme Court decisions, whether a given decision strengthened or weakened intellectual property rights was determined based on the net effect on intellectual property law with respect to the issue at hand, not based simply on whether there was a change from the status quo. See, e.g., Lee Epstein & Andrew D. Martin, Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why), 13 U. PA. J. CONST. L. 263, 272 (2010) (applying this methodology to code decisions as liberal versus conservative); Isaac Unah et al., U.S. Supreme Court Justices and Public Mood, 30 J.L. & POL. 293, 307–10 (2015) (same); The Supreme Court Database, WASH. U. L. SCH., supremecourtdatabase.org (last visited Nov. 5, 2017) (same). Thus, Eldred v. Ashcroft, 537 U.S. 186 (2003), is coded as strengthening intellectual property rights because it upheld the Copyright Term Extension Act against a constitutional challenge. As the statutory name implies, the Copyright Term Extension Act extended owner’s copyright terms. Though upholding the law effectively maintained the status quo, the Court’s decision on the issue before it favored greater protection.
[insert solvency and net benefit from below]
1NC---Patents
The United States federal government should weaken intellectual property protection by [plan] and reduce patent duration.
Strengthening protection requires assessing the net effect on IP law.
Mandel ’18 [Gregory N.; January; Dean & Peter J. Liacouras Professor of Law, Temple University; Minnesota Law Review, “Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress,” 102:803]
(footnote 12)
12. Consistent with the standard approach applied in analyzing the ideological direction of Supreme Court decisions, whether a given decision strengthened or weakened intellectual property rights was determined based on the net effect on intellectual property law with respect to the issue at hand, not based simply on whether there was a change from the status quo. See, e.g., Lee Epstein & Andrew D. Martin, Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why), 13 U. PA. J. CONST. L. 263, 272 (2010) (applying this methodology to code decisions as liberal versus conservative); Isaac Unah et al., U.S. Supreme Court Justices and Public Mood, 30 J.L. & POL. 293, 307–10 (2015) (same); The Supreme Court Database, WASH. U. L. SCH., supremecourtdatabase.org (last visited Nov. 5, 2017) (same). Thus, Eldred v. Ashcroft, 537 U.S. 186 (2003), is coded as strengthening intellectual property rights because it upheld the Copyright Term Extension Act against a constitutional challenge. As the statutory name implies, the Copyright Term Extension Act extended owner’s copyright terms. Though upholding the law effectively maintained the status quo, the Court’s decision on the issue before it favored greater protection.
[insert solvency and net benefit from below]
Copyright
Solvency
2NC---Copyright---Generic
Variable copyright durations solve---some IP requires longer protection and shorter protection for some fosters more innovation.
Heald 21 [Paul; Albert J. Harno & Edward W. Cleary Chair in Law at the University of Illinois College of the Law; 6/18/2021; CREATe; “21 for 2021: Term of Copyright: Optimality and Reality”; https://www.create.ac.uk/blog/2021/06/18/21-for-2021-term-of-copyright-optimality-and-reality/]//kaviWaRu
Existing evidence and research agendas
Since measuring the effect of copyright term length on creativity is difficult, and because most economists conclude that the required life-plus-fifty is already sufficient to stimulate substantial creativity, scholarship has tended to focus on the relative costs and benefits of copyright protection.
A. Optimality. Direct evidence concerning the optimal length of copyright in economic terms is necessarily incomplete. For example, experts agree that the length or protection should vary by type of work (software v. movies) and the extent to which the sunk costs of creationo can be recouped without a property right (for example, by using a paywall or by selling advertising). Certainly, a multi-million-dollar film needs a greater monetary incentive than the creation of a home video. For this reason, abstract discussions of term length have had little impact on policy. See Yuan (2006), Yoon (2002), and Rappaport (1998).
Nonetheless, the work of Pollock (2009), and others, is instructive. Developing an algorithm using standard assumptions as to discount rate and diminishing demand over time (“cultural decay”), Pollock concluded that the optimal term of copyright is around fifteen years and concluded with a 99.9% confidence rate that the optimal term is less than 50 years. Heald (2020) has recently updated Pollock’s insight in graphical terms by depicting the time necessary for a publisher to capture the present value of a copyright.
The graph shows that, assuming a 3% discount rate and depreciation rates suggested by NBER research (Soloveichik (2013) and 2014), publishers can expect to earn nearly 100% of expected revenue from a work in its first 30 years, suggesting that deadweight losses caused by longer protection would outweigh any additional creative incentives. Garcia and McCrary (2019) suggest an even shorter optimal term based on their study of the revenue streams of recorded music: 5-10 years. Garcia, Hicks, and McCrary (2020) find an even shorter economic life for blockbuster recordings. Ku, Sun, & Fan (2015), examining the correlation between copyright term extension and registration rates in the US, are unsure of term length optimality. For an early and highly sceptical discussion of the proper copyright term, see Breyer (1970).
Giorcelli and Moser (2015) concluded in a narrow study of Italians operas from 1770-1990 that an increase in term length may have been a factor in stimulating the production of more operas, but they do not opine on the term length optimality.
B. Access to Existing Works. Early defenders of copyright term extensions argued that legal protection had benefits beyond providing creative incentives. They suggested that copyright protection should increase the distribution and commercialization of creative works. Virtually all subsequent empirical work suggests instead that copyright reduces public access to works. The chart below from Heald (2014a) shows an increase in the availability of books as they fall into the public domain, and a substantial suppression of availability of books still under copyright original published in the 1930s-19990s
**chart omitted**
Similarly, Heald (2020a) found that Canadian novels were more likely to be in print after they fell into the public domain. Imke Reimers (2019) also studied books and confirmed that the expiration of copyright status increased the availability of new editions. Studying ebooks in Australian, New Zealand, US, and Canadian public libraries, Flynn, Giblin, and Petitjean (2019) found that availability increased after the copyright term for a title expired. Cuntz (2020) found changes in copyright status significantly increase the number of total performances individual operatic works received on stage once a copyright expired. Macgarvie, McKeon, & Watson (2018) found that expiration of copyright for EU sound recordings from the 1950s and early 1960s was associated with a 141-247% increase in re-releases. Biasi & Moser (2018) found that the nullification of German copyrights during WWII resulted in a significant increase in the availability of various scientific publications. Erickson, Heald, & Kretschmer (2015) found that author pages on Wikipedia were more likely to have images when photographic copyrights had expired. Heald (2008a) found that popular US songs falling into the public domain were not less likely to be exploited in movies than newer copyrighted songs. This finding was confirmed in Heald, et al (2012). Heald (2007) found that bestselling books published from 1913-22 were more likely to be in print than their copyrighted bestselling counterparts published from 1923-32.
C. Effect on Derivative Works. Less research has been done on the effect of copyright term length on incentives to create derivative works. In theory, the owner of a copyrighted work might have a greater incentive to engage in follow-on creation than another party mining the public domain. Two recent studies have found that the expiration of the copyright term in a work leads to increased creation of derivative versions. Flynn, Giblin, & Petitjean (2019) found that ebooks were more likely to be made from public domain titles, concluding that “exclusive rights do not appear to trigger investment in works that have low commercial demand.” Buccafusco & Heald (2012) compared US bestselling novels from 1913-22 (all in the public domain) with bestselling novels from 1923-32 (all under copyright) and found that a significantly higher percentage of the public domain novels had been made into audiobooks and ebooks.
D. Price Effects. An early paper by Liebowitz (2008a) suggested that copyright term length might have no effect on the price of copyrighted books, but several subsequent papers have shown significant discrepancies between the prices of copyrighted and public domain works. For example, Heald (2020a) found that the price of Canadian bound and ebook editions dropped significantly after their copyright terms expired. This was consistent with his prior research on book pricing in South Africa and the US: Heald (2020b) & Heald (2007). Flynn, Giblin, and Petitjohn (2019) also found libraries paid a higher price for access to copyrighted ebooks in Australia, New Zealand, Canada, and the US. In an historical study, Li, Macgarvie, & Moser (2015) found a fifty percent increase in book prices in the UK associated with the doubling of the copyright term in 1814.
E. Orphan Works. The longer the term of copyright, the more difficulty potential licensees have in finding copyright owners. Several jurisdictions have responded by offering compulsory licences when a reasonable search fails to identify an owner. One important exploration of this topic is Favale, Homberg, Kretschmer, Mendis & Secchi (2013) which compares various national schemes and conducts a simulated rights clearance exercise.
The squo causes rent-seeking and results in economic inefficiency. Only tailored terms solve.
Garcia & McCrary 19 [Kristelia; an associate professor at the University of Colorado Law School and Director of the Content Initiative at the Silicon Flatirons Center for Law, Technology, and Entrepreneurship; Justin; is the Paul J. Evanson professor of law at Columbia Law School, a professor of law at the University of California, Berkeley, School of Law, and a faculty research associate at the National Bureau of Economic Research; 2019; “A Reconsideration of Copyright’s Term”; Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2780]//kaviWaRu
In other words,
the result of the blanket extension of the copyright term [referring to the CTEA] was that a huge amount of intellectual property having little or no commercial value, yet potential value as a public domain input into future intellectual property, will be kept out of the public domain for another twenty years. 76
When it comes to IP, deadweight loss--a form of economic inefficiency--is a real concern: "Strong intellectual property rights increase the deadweight loss on innovations that would be forthcoming . . . [and] can lead to an inefficient duplication of R&D costs . . . ." 77Due to its exceptionally long duration, copyright in particular may overprotect the average work over time. Our analysis in Part II supports the conventional wisdom that copyright's protection should be limited where it merely works to raise the cost of competing expression.
Some commentators have alternately suggested that overly strong copyright protection afforded at later points in a work's term may lead to, at best, marginally valuable works and, at worst, rent seeking over-entry into the various content markets. 78Consequently, the stronger the copyright protection, the more entry is encouraged--even where that entry may be of questionable social value.
In other words, incremental expansion of the number of works in a particular genre over time is unlikely to add much social value. For example, in his work on product differentiation in copyright, Professor Michael Abramowicz offers the following illustration of this intuition:
By writing a vegetarian cookbook, I may be able to win many sales that otherwise would have gone to the . . . vegetarian cookbooks that already exist. My entry into the cookbook market might thus be an example of rent dissipation, because my investment in the cookbook project is aimed . . . at taking away rents . . . that the authors of existing cookbooks otherwise would have enjoyed. Of course, my cookbook may offer some new recipes . . . and other features that . . . might increase the total rents available. The more cookbooks [*366] of a particular type that already exist, however, the smaller this increase is likely to be. 79
In other words, the optimal level of copyright protection for an information good like a cookbook maxes out where any further increase in protection will merely raise the cost of new expression. This is because as the number of works in the public domain decreases (a result of strong protections that last too long), the cost of creation increases--there is less "raw material" for followup creators to work with. 80
The second and third vegetarian cookbooks ever published, for example, may be appreciated not only for their diversity of recipes and introduction of consumer choice but also for the price control that each may exert on the others. Competition lowers prices but only to a point. In a free market (for these purposes, a world without copyright), new cookbooks will cease to be created once the cost of doing so exceeds the revenue that the cookbook can demand. Even with copyright protection, the 3,000th vegetarian cookbook arguably introduces little to no social value at the margin. For this reason, some scholars have suggested that weaker copyright protection might avoid this kind of questionably, or at least ambiguously, beneficial creation--creation that may be encouraged at the expense of other endeavors deemed more socially beneficial, such as opening a vegetarian restaurant. 81
Finally, the current copyright regime, with its lengthy term and uniform level of protection throughout, can, and often does, lead to overreach or rights accretion. Rights accretion--or the accession of additional (nonstatutory) rights to a copyright owner--results from an abundance of caution on the part of prospective licensees. Fear of infringement claims can lead prospective users to request and pay for licenses when none are necessary. 82This phenomenon is a predictable, and undesirable, result of a copyright regime whose protections are so broad--and its punishments so severe 83--for so long as to suggest to a prospective user that it is better to be safe than sorry.
2NC---Copyright---Creativity/ Culture
Turns the aff---longer copyright protections in the status quo prevent innovation at full capacity and hinder revenues.
Parc & Messerlin 20 [Jimmyn; Associate professor at the University of Malaya; Patrick; a Professor of Economics at the Institut d'Etudes Politiques de Paris and Director of the Groupe d'Economie Mondiale de Sciences Politiques; 3/27/2020; International Journal of Cultural Policy; “The true impact of shorter and longer copyright durations: from authors’ earnings to cultural creativity and diversity”; https://www.tandfonline.com/doi/full/10.1080/10286632.2020.1829608?scroll=top&needAccess=true]//kaviWaRu
There is a widely held belief that a longer duration in copyrights ensures higher earnings for authors. In emphasizing the critical role of authors, this paper argues that a longer duration with private contracts hinders an increase in the revenues from works, hence the earnings of authors. This is because the very limited bargaining power of authors and the principal-agent dilemma induce publishers to be structurally under-performing – that is, not effective enough at optimizing (or maximizing) the full cultural potential of the works they are responsible for.
As a solution, this paper suggests that, if well designed, a shortened copyright duration will clearly bring benefits to the vast majority of authors as well as society. This shortened duration induces publishers to develop more impactful business activities coupled with effective strategies in order to maximize the utilization of contracted works. Furthermore, authors can benefit from the reputational earnings of their works that enter the public domain much earlier than under the current system. More activities under the public domain period will allow authors to be more at the center of the industrial chain. They will also be able to concentrate on their creation without any fear of copyright infringement. Another benefit is that due to the earlier public domain period, many works that are not too outdated will become more readily available. In such a case, this availability would inspire authors to produce better works. Through various measures such as internet platforms and media outlets, they can be diffused faster and wider than before. Therefore, this system can contribute toward enhancing cultural creativity and diversity.
Some might argue that digitization has ruined a number of cultural industries as internet piracy and copyright infringement have been more prevalent than before. As this paper places these issues related to digitization, technological advancements, and their impact aside, they can be further analyzed in order to draw important implications that can be applicable during this period. In this regard, several real-world examples such as the emergence of Netflix or even the Korean music industry with K-pop can hint at ways to overcome copyright issues in the era of digitization (Parc and Kawashima Citation2018; Parc and Kim Citation2020). This task can be synergistically undertaken by utilizing and applying the findings of this paper.
There is no doubt that culture and its diversity should be protected and preserved. Culture consists of tradition and modernity in terms of the period in which it was developed. In other words, they can be described as either ‘accumulated’ or ‘accumulable’ heritages (Parc and Moon Citation2019). Surely, these accumulated heritages were once accumulable ones and have

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