Copyright essentialism and the performativity of remedies.

• Author: Gilden, Andrew
• Position: III. The Performativity of Remedies through Conclusion, with footnotes, p. 1154-1183

3. The Performativity of Remedies

   Although constitutional remedies scholarship provides useful tools--largely absent from copyright scholarship--for discussing the rights/remedies interrelationship, it provides little guidance as to why a particular combination is deployed in a particular case. (133) Poststructural theories of performativity and temporality, however, have the potential to link the chronological and conceptual interplay between rights and remedies to deeper normative commitments of copyright adjudication.

   As explained above, the copyright field has largely overlooked the last of Levinson's rights/remedy relationships: "remedial deterrence," which both accounts for the "split-the-baby" dynamic discussed below under the eBay/Salinger standard and, not coincidentally, happens to be the most overtly countersequential in Levinson's taxonomy. A court's awareness of the real-world future consequences of its ruling on the merits--that is, its remedial decision--influences that "earlier" merits ruling in a manner rendered invisible by the rights essentialists' two-step process of adjudication. (134) An essentialist view of rights, whether in copyright or constitutional law, has the potential to shield the pragmatism and policy considerations at play in the articulation of rights, and the unidirectional rights [right arrow] remedies sequence "legitimate[s] and protect[s]" not just the idealized status of rights but also the normative commitments behind them. (135)

   There is something extremely provocative lurking within Levinson's critique of the rights/remedy split, his concern for the opacity and disingenuity of substantive adjudication, and his turn toward countersequentialism as a way of exposing the normative underpinnings of a court's decisions. Although largely couched in the legal realist tradition, in arguing that remedies are not a mere outgrowth of some preceding decision on the merits but instead that the "after" shapes and defines that which happens "before," Levinson's theory rejects the essentialism of rights and suggests the "performativity" of remedies. A particular view of the eventual outcome of a dispute--and a normative belief in how similar parties should engage with one another in the future--sets in motion a series of steps that lead to and justify the ultimate combination of rights/remedies determinations.

   A remedy is performative to the extent it brings into existence the substantive right that appears to prefigure and legitimize it. (136) Rather than a remedy being a court's attempt at filtering an idealized right through the pragmatics of real-world implementation, the court's understanding of the law's consequence produces a right that can be implemented in accord with the court's normative sense of justice and fairness. In this sense, Levinson's legal-realist approach to remedies dovetails with queer and poststructural work on performativity. Just as scholars such as Judith Butler push against the distinction between a fixed material body and its gendered social construction, (137) Levinson questions the distinction between a pure constitutional value and its translation into the remedial apparatus. (138) According to Butler, it is a "juridical conception" to culturally inscribe meaning on that which appears to precede the social, political, and discursive, and the exercise of "juridical power" requires the existence of some temporally preexisting phenomenon to will upon and bring into social being. (139) The later-occurring social apparatus produces, and does not merely represent, that which appears to precede it temporally. (140)

   Butler's work on offensive speech is particularly instructive. In determining that particular speech is unlawful, a court does not simply identify that speech as being in some fundamental sense offensive or obscene and then decide to deploy its remedial powers in order to censor it. (141) The adjudicative process may create the appearance of some preexisting categories of low-value or unlawful speech that are then censored, but the court is instead producing offensiveness and obscenity--and, as a corollary, nonoffensiveness and nonobscenity--through its power to censor. (142) In a manner closely aligned with Levinson's theories of remedial equilibration, the court shapes and defines freedom of speech through the imposition of a particular remedy. The idea that censorship defines speech, and that remedies define rights, inverts the "temporal relation" commonly associated with the "conventional view" of adjudication. (143) Through this temporal inversion, a court's knowledge of what it is going to do in the future--imprison a deliverer of hate speech, desegregate schools, enjoin a book's publication--reaches "back" and teleologically lays the foundation for its future pronouncements. (144) Viewed through the lens of performativity, the role of remedies is not merely to modulate some preceding identification of rights so as to enhance or diminish that right's real-world impact, but instead to shape rights in order to align with particular social needs and normative beliefs of how disputes like the one at hand should be resolved.

   Performativity theory also brings to light the potential for temporal sequencing to effectively reinforce normative preferences. What comes first must be able to stand on its own and be described in a manner that is independent of the description of some later concept, and through this seeming independence, the first-in-time becomes naturalized and normalized. Rights in an essentialist framework can and must be articulated first-in-time as a matter of principle, independent of remedial policy considerations. Accordingly, questions of whether an individual has a right to compensation or assistance of counsel or humane prison conditions stand on their own, pure and untainted. (145) What comes second to this primary concept in turn becomes an extension, "exaggeration," or "diminution" of the normal course. (146) The question of whether someone is entitled to an injunction, to challenge the conditions of her arrest postconviction, or to have a prison cell to herself are merely second-order questions designed to effectuate the first-order right at a certain level of robustness; they are inherently dependent on, but by no means constitutive of, the earlier-identified right. This account, however, denies the interrelatedness of the seemingly earlier-identified right and its real-world implementation in the form of a remedy award. By focusing intellectual energy primarily on this apparently later-in-time real-world implementation, and conceding at least to some degree the existence of a foundational right to compensation, counsel, or humane prison conditions, we shield the assumptions and beliefs that feed into those rights from critique or meaningful engagement. (147) If a denial of an injunction is motivated by the belief that a liability rule adequately balances the interests of the parties and the general public, this policy preference, as well as its potential drawbacks, feeds "backwards" into a finding of infringement while remaining hidden by a forward-moving linear sequence. (148)

   Viewing rights as performatively constituted by their remedies accordingly exposes the potential for a reshaping of remedies to further ideologies at odds with the stated motivations for remedy reform. As Butler notes, "[A] performative 'works' to the extent that it draws on and covers over the constitutive conventions by which it is mobilized." (149) These "constitutive conventions" of the performative--in other words, the normative commitments of the regulatory scheme--are obfuscated primarily by the positing of some element-bodily "sex" for Butler, "rights" here--as preceding both language and social construction. If a particular concept is regularly and repeatedly treated as existing independent of ideological, pragmatic, and political consideration, it becomes entrenched as a foundational concept unmarked by the messiness of interpretation and social construction. (150) The problem, though, is that the apparently foundational is actually constructed by that which appears to spring forth from it and accordingly is inseparable from normative considerations. As Levinson has shown in the constitutional context, (151) and as the cases surveyed in the next Section suggest in the intellectual property context, rights determinations cannot be separated from remedial considerations, and the expressly pragmatic considerations of the remedies determination give rise, at least to some degree, to a declaration of a substantive right.

   In some ways, the performativity of remedies is nothing new. John Austin, for example, observed the following:

   [I]t is perfectly clear that the law which gives the remedy, or which determines the punishment, is the only one that is absolutely necessary. For the remedy or punishment implies a foregone injury, and a foregone injury implies that a primary right or duty has been violated. And, further, the primary right or duty owes its existence as such to the injunction or prohibition of certain acts, and to the remedy or punishment to be applied in the event of disobedience. (152) In other words, Austin in the nineteenth century, like Levinson in the twentieth, recognized that rights and duties come into being through the imposition of a particular remedy. The concept of performativity in the poststructural tradition, however, digs a layer deeper into the remedial considerations stated by a court and provides theoretical tools for unearthing ideological assumptions potentially at odds with those presented on the surface. What may appear to be--and what may be fully intended as--a vindication of speech and expression rights may instead reflect a commitment to market-oriented individualism at odds with the more communitarian ideals for which speech and expression often serve as proxies. (153) By refusing to take for...