From the archives: knitalikes

Found going through old knitting magazines, a version of the “splurge or steal?” fashion spread for knitters: “Which One Is the Calvin?” Text: If you love the high style of designer originals but hate the high costs, this is the sweater set for you! The crisp cable detailing that decorates the genuine Calvin Klein is faithfully re-created in our version. The delightful difference: You knit [Family Circle’s] twosome … for just $47, instead of spending $340 to buy the real set. So which one is the Calvin? You’ll have to look closely–only the price tags give them away. [The person who saved these didn’t save the left side of the image, but the magazine goes on to say that the one below is the Family Circle version.]

The kicker: Calvin Klein also authorized knitting patterns. Does that matter?

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Honey Badger Don’t Care (4th of July edition)

 Seen on the street:

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An Antitrust Framework for False Advertising, out now

Michael A. Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising, 106 Iowa L. Rev. 1841 (2021)

From the introduction:

 

Federal
law presumes that false advertising harms competition. Federal law also
presumes that false advertising is harmless or even helpful to competition.
Contradiction is not unknown to the law, of course. This contradiction, though,
is acute. For not only are both the regimes at issue designed to protect
competition, but they are both enforced by the same agency: the Federal Trade
Commission (“FTC”), which targets “unfair competition” through antitrust and
consumer protection enforcement.

Anticompetitive
conduct, the focus of antitrust law, increases price and reduces quality. False
advertising, the focus of much consumer protection law, deceives consumers and
distorts markets. Both types of conduct harm consumers. Despite this overlap,
nearly all courts have dismissed private antitrust claims based on false
advertising. They have concluded that the conduct cannot violate antitrust law.
Or they have presumed that the harm is de minimis. This makes no sense. As the
Supreme Court has long established, “false or misleading advertising has an
anticompetitive effect.”

Courts’
concerns stem from the reasonable notion that not every instance of false
advertising violates antitrust law. And (usually implicitly) they have worried
about applying antitrust’s robust remedies of treble damages and attorneys’
fees. These courts fear that antitrust liability will disincentivize companies
from engaging in advertising that is merely questionable and that might provide
useful information to some consumers. But false advertising law preserves a
robust space for puffery and debatable opinions; overdeterrence concerns don’t
justify analysis that is inconsistent with both the economics and psychology of
advertising and that, at a minimum, essentially makes it impossible to bring a
successful antitrust case based on false advertising. Nor do the Lanham Act’s
remedies for false advertising fully address harms to competition. Reasoning
that conduct that is already illegal on other grounds need not concern
antitrust law ignores the multiple other contexts in which breaches of
non-antitrust laws are considered to be potential antitrust violations.

We
begin by introducing the laws of antitrust and false advertising, explaining
the regimes’ objectives and methods. We then survey the antitrust caselaw,
critiquing three approaches courts considering false advertising claims have
taken. Finally, we introduce our antitrust framework for false advertising
claims. At the heart of the framework is a presumption that monopolists
engaging in false advertising violate antitrust law, with that presumption
rebuttable if the defendant can show that the false advertising was
ineffective. The framework also applies to cases of attempted monopolization by
incorporating factors (falsity, materiality, and harm) inherent in false
advertising law, along with competition-centered issues on targeting new market
entrants and entrenching barriers to entry. To illustrate how our framework
should work, we apply it to an important area: advertising for biosimilars,
which are pharmaceutical products with a substantial and growing role in
treating numerous diseases.

False
advertising that exacerbates monopoly power has been dismissed by antitrust law
for too long. This Essay seeks to resolve the contradiction in the law by
showing how false advertising threatens the proper functioning of markets.

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Reading list: Discrimination is Unfair: Interpreting UDA(A)P to Prohibit Discrimination

Stephen Hayes & Kali Schellenberg, Discrimination is
“Unfair”: Interpreting UDA(A)P to Prohibit Discrimination

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3832022

This
Article explores a theory that discrimination is a type of “unfair” practice
covered by federal and state laws prohibiting unfair, deceptive (and sometimes
abusive) acts and practices (“UDA(A)Ps”). An “unfair” practice is defined by
statute as something “(1) likely to cause substantial injury to consumers; (2)
which is not reasonably avoidable; and (3) that is not outweighed by
countervailing benefits to consumers or competition.” Discrimination fits
neatly within this statutory language, and its incorporation as an unfair
practice is consistent with the purposes and traditional guardrails around
application of UDA(A)P law, as well as general principles in civil rights
jurisprudence

 

Applying
the “unfairness-discrimination” theory would fill important gaps in the
existing patchwork of antidiscrimination laws, which currently leave large
swaths of the economy unregulated and unprotected from a variety of
discriminatory practices, including those with a disparate impact. By taking
seriously the plain language of UDA(A)P law, federal entities like the CFPB and
FTC, state attorneys general and agencies, and in some cases private
individuals, could make great strides towards ensuring that entire markets and
industries are not free to discriminate.

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Reading list: The Kids Don’t Stand a Chance: Unfair and Deceptive Advertising in Children’s Apps

 Mary Kate Fernandez,  The Kids Don’t Stand a Chance: Unfair and Deceptive Advertising in Children’s Apps, 66 Loy. L. Rev. 211 (2020)

Intro: 

The University of Michigan released a startling study (“the
Michigan Study”) in October 2018 which unveiled that “manipulative and
disruptive” advertisements are deceptively built into phone applications (“apps”)
designed for children.
 The results of this study led
members of the United States Senate and several public interest groups to
petition the Federal Trade Commission (“FTC”) to investigate apps marketed
specifically to children.
 The current federal administrative
regime for regulating deceptive advertising targeted at children, however,
falls far short of what is necessary to enable the FTC or any other federal
agency to respond to the revelations in the Michigan Study with meaningful
protections for children.

A striking passage on host selling:

This advertising practice, illegal during children’s television
programming, is fundamentally unfair to child consumers. Yet, multiple apps
designed for children heavily employ host-selling.

 For example, in PAW
Patrol: Air and Sea Adventures
, the commercial characters are not only the
object of gameplay but also have interactions with the user.
 Characters make faces
indicating feelings of disappointment when the user does not click on locked
items that require payment.
 App characters also
show disapproval when the player is unable to accomplish a certain mission
because he did not make a required purchase.
 The Michigan Study
stated that such tactics “could be characterized as social pressure or validation”
and “may also lead children to feel an emotionally charged need to make
purchases.”
 In Doctor Kids,
the main character bursts into tears if the player does not make an inapp  purchase.
 In Barbie Magical
Fashion
, Barbie narrates and specifically encourages users to use “locked”
items that require making a purchase.
 

Most problematic of the
host-selling examples was Strawberry Shortcake Puppy Palace. In this
app, Strawberry Shortcake instructs users to choose a puppy to play with, but
only one out of eight puppies can be played with for free. 
Every other puppy is
locked.
 If the child selects a
locked puppy, Strawberry Shortcake says, “Oops. To play with [name of puppy],
you’ll need to get the puppy pack. Or you can unlock everything and get the
best deal.”
 Throughout the game,
Strawberry Shortcake has thought bubbles. Some tell the user that the puppy is
sad, and the user should give the puppy what it wants. But oftentimes the item
that the puppy “wants” is locked, and when the child selects it, Strawberry
Shortcake tells the child to buy “the activities pack to keep the puppy happy.”

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Misinformation, Disinformation, and Media Literacy in a Less-Centralized Social Media Universe

Knight First Amendment Institute, Reimagine the Internet 

Great panel today; more to come the rest of the week and they will shortly post the video. 

Francesca Tripodi (UNC) shared her amazing research about how
conservatives use textual interpretation techniques to interpret information
and reject journalistic interventions. Conservatives then use and trust Google’s
top results, believing that Google top results reflect reality, which seems a
bit contradictory to me. The problem is that our keywords are ideological, so Google
searches confirm one’s worldview: searching for “illegal aliens” gets you
right-wing sites that confirm what they already believe, while “undocumented
workers” produces very different results. And it’s not just Google—DuckDuckGo is
better for your privacy but returns the same type of results based on
ideological keywords. Google suggestions create the possibility of parallel
internets that are invisible to outsiders. “Data void”: limited/no content is
available, so it’s easy to coordinate around keywords to guarantee that future
searches are directed to content that includes these terms—this is what
happened to “crisis actor.” Search engines are not designed to guide us through
existential crises or challenge our beliefs—the notion of relevance is
subjective and idiosyncratic as well as unstable and exploitable. Knowing/understanding
audience concerns and amplifying key phrases allows conservative media to drive
users to search where their beliefs will be reinforced. Like Council of Conservative
Citizens reaching Dylann Root in his searches for black on white crime. They
encourage viewers to “do the research” while highlighting phrases that lead to
the preferred sources. So Google started autofilling “Russian collusion” with “delusion,”
a phrase promoted by Roger Stone. In impeachment proceedings, Rep. Nunes used
his opening remarks to repeat a few names/phrases and tell us that we should be
paying attention to those—which, when searched in Google, linked to Fox, Daily
Caller, and even more right-wing sources. Urged constituents to do their own
research. Nelly Ohr: a perfect data void/litmus test. She used to work for
Fusion GPS and is part of a conspiracy theory about Russia investigation—the search
exists in a vacuum and was curated by conservatives as a dogwhistle about
election fraud.

What can we do? How can Google fix this? It’s important to stop
thinking about a fix and focusing on Google. Misinformation is not a bug in the
code but a sociological issue. The only way to circumvent misinformation traps
is knowing the kinds of Qs people seek answers to, knowing how they interpret
information, and knowing how political actors exploit those things. [Easy-peasy!]

Barbara Fister, Gustavus Adolphus College: In practice, students
are treated as information consumers who need to be educated to examine claims.
At universities, they are often treated as needing help finding information in
the walled garden of the library, focusing on information that will help them
satisfy professors. Libraries have felt compelled to emulate Google and create
single-search boxes. But the results don’t help you navigate the results, so it’s
no wonder that students come up with workarounds. Students have trouble getting
themselves situated. They adopt a strategy and stick to it; look for “safe”
sources; often don’t really care about the topic because it’s been assigned.
Follow the news, but don’t trust it; don’t think college does much to prepare
them to ask questions of their own. Feel both indignation and resignation about
algorithmic systems invading their privacy. Students feel that they’re in a
very different place than professors; they’re used to different sources. “We
grew up with untrustworthy sources and it’s drilled into us you need to do the
research because it can’t be trusted.” Students are already being taught “media
literacy” but more of the same won’t necessarily help, because people who
believe misinformation are actually quite “media literate” in that they
understand how these systems work and are good at manipulating them. Qanons understand
how media/info systems work; they interpret media messages critically; they
feel passion for discovery and enjoy the research b/c they feel like they’re
saving the world. Alternate authority structure: trust yourself and
trust Trump/“the Plan.”

What is to be done? Deep-seated epistemological differences: if we
can’t agree on how we know what’s true, hard to see common ground. So what’s
next? Recognize the importance of learning to trust, not just to be skeptical;
get at why to trust rather than what to trust—saying “peer-reviewed research”
doesn’t help; explore underlying values of knowledge systems, institutions, and
practices such as journalism’s values; frame learning about info systems as
education for democracy: you have a role to play; you should have an ethics of
what it is that you will share. Peer-to-peer learning: students are learning
from each other how to protect privacy etc. Students are concerned about their
grandparents and about their younger siblings—interested in helping other age
groups understand information.

Ethan Zuckerman, moderator.

Fister: Further reading: Information
Literacy in the Age of Algorithms
—what
students are interested in that doesn’t come up in class: knowing that Google
works by using the words we use rather than as a neutral broker would be very
important! Alison J. Head (January 5, 2016), Staying smart: How today’s graduates
continue to learn once they complete college
; Project
Information Literacy Research Institute, Alison J. Head, John Wihbey, P. Takis
Metaxas, Margy MacMillan, and Dan Cohen (October 16, 2018), How Students Engage with News: Five
Takeaways for Educators, Journalists, and Librarians, Project Information
Literacy Research Institute
.

Tripodi: People would say “I don’t trust the news” and she’d ask
where they got candidate info; they say “Google,” without acknowledging that
Google is an aggregator of news/taking content directly from Wikipedia. We’re
not in a new time of epistemological fissures or polarization—we have always
been in a place of big differences in how we seek truth, what are sources of
knowledge, how we validate knowledge. What’s changed: we can connect from
further away and we have an immediate ability to determine what we think is
right. Focus on keywords is something that work on filter bubbles hasn’t yet
considered—it’s not the tech that keeps us in the filter bubbles; we are the
starting point for that closure.

Zuckerman: the people who find hate speech on YouTube are the
people with hateful racial attitudes—so the polarization argument may not work
the way we thought.

Fister: the power to amplify and segment market messages is way
more pronounced now. But it was deliberate fissure with the rise of Fox News,
talk radio. Amplified by platforms that like this content b/c controversy
drives attention. Far right white supremacists have always been good at tech—used
film early, used radio; they are persuasion machines designed to sell stuff. They
are earning money while using the platforms, which has changed the velocity/amplitude
of the most hateful speech.

Tripodi: There may be ways to figure out the keywords that
resonate with people’s deep stories, to find the data voids, by doing more ethnographic
work. The narrative that conservatism is being silenced: trying to reshape
objectivity as “equal balance.” Rebranding of objective to mean “both sides.”
If your return doesn’t show equal weight, it’s somehow flawed/biased/manipulated
[at least if your side isn’t dominant]—that’s leveraged in the rightwing media
ecosystem to say “don’t use these platforms, use these curated platforms that
won’t ‘suppress’ you.” That’s complicating notions of media literacy, which
sometimes uses “look for both sides” as an indicator of bias. Propaganda campaigns
are now leveraging the idea of “lateral reading”—looking for relevant phrases around
the target of interest in a new window—these systems are being deliberately
exploited. Thinking about keyword curation may help: you could put a bunch of “Nelly
Ohr” all over mainstream coverage of the impeachment. Old fashioned SEO
manipulation in a new light.

Fister: discussion of the tautology underneath this: you trust the
sources you trust b/c you trust them. People create self-reinforcing webs of
trust by consulting multiple sources of the same bent. Students are also
interested in talking about how algorithms work, including for sentencing
people to prison; tie that to traditional values/understanding of how we make
knowledge.

Tripodi: in response to comment on similar dynamic on doctor/patient
relations: when people search “autism treatment” they are more likely to see
non-evidence-based treatments, because doctors with evidence-based treatments
are not using YouTube. Has a student who is trying to create a lexicon for
doctors to tell people “research these treatments”—you can’t tell them not to
search, but you can give them phrases that will return good quality content.
Also important to make good quality content for evidence-based treatments.
People are looking on YT; have to be there.

Zuckerman: that requires auditing the platform; YT is not that
hard to audit, but FB is when it directs you to content.

 

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Today’s IP artifact: Cuervo bottle with dripping red wax seal

 This decision remains one of my least favorite, but perhaps I will nonetheless get a bottle of Maker’s Mark to pose beside it.

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Tootsie Pups

 Acquired from a seller before the inevitable shutoff. The rare occasion where I see the harm story, since Tootsie Pops theoretically contain chocolate, which one would not want to give a dog.

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Does Gordon v. Drape really mean what it says about explicit misleadingness?

Testing Gordon v. Drape with the paintings of Tom Sachs, some of which
reproduce famous product labels in their entirety (or nearly so). The
introduction to the coffee table book I just bought says,

From
Reese’s Peanut Butter Cups and Snickers bars to images of American flags and
Air Force One, Sachs takes familiar brands, symbols, and commodities as his
subjects. He represents these iconic images in his deliberately imperfect and
conspicuously handmade aesthetic, wanting us to see the uneven brushstrokes and
roughly hewn surfaces that distinguish his “handmade paintings.” By drawing
attention to how his objects are made, he deconstructs the formidable and
complex systems that powerful logos and brands represent. In Tom’s words, “When
I look at these paintings, to me they all speak about power. There is power in
logos and there is power in good advertising.”

On Artsy, the description says:

Critiquing
the speed and regularity with which a materialistic society replaces
commodities, Sachs uses both a profusion of commercial icons in his work and
builds his own functioning versions of consumer goods using re-purposed items,
such as the glossy, black Prada Toilet (1997), a workable toilet constructed
out of Prada’s up-market packaging, with the company’s logo prominently
displayed on the sculpture. Sachs’s works are emphatically process-oriented, an
expression of the artist’s DIY spirit, divulging even the flaws of his complex
and labor-intensive projects.

So, are his works explicitly misleading? See below for some examples:

 

Note the detail on this painting:

If you think the “Tom Sachs” signature on the side helps, what about this one?

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Reading list: race and GIs

Reading list:

Mathilde Cohen, The Whiteness of French Food: Law, Race, and Eating Culture in France
(forthcoming in French Politics, Culture, and Society, 2021)

English Abstract:

Food
is fundamental to French identity. So too is the denial of structural racism
and racial identity. Both tenets are central to the nation’s self-definition,
making them difficult, yet all the more important to think about together. This
article purports to identify a form of French food Whiteness (blanchité
alimentaire), that is, the use of food and eating practices to reify and reinforce
Whiteness as the dominant racial identity. To do so, it develops four case
studies of how law elevates a fiction of homogeneous French/White food as
superior and normative at the expense of alternative ways of eating and their
eaters—the law of geographical indications, school lunches, citizenship, and
cultural heritage.

Really interesting perspective on GIs; if you believe that they
were born in sin (racism/colonialism), do you think that they can be redeemed?

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