Transformative work of the year (so far): To tell my story, showing near DC now

Runs until July 30

Although the structuring conceit is a loose retelling of
Hamlet, with a modern-day fangirl as the tragic protagonist Elsie, there are a
number of other fandoms represented, most obviously Harry Potter, secondarily
Twilight (though only identified as “vampire” in the promo materials, grrr), MCU (similar, grr), LoTR, Sherlock, and Historical RPF (Abraham Lincoln).  Some observations:
1.    
Just as Ready Player One hails as its ideal reader an 80s fanboy, this play hails a 21st-century
fangirl.  I laughed a lot. 
2.    
Me, a pedant: Technically, this isn’t a
“fanfic,” but a “fandrama” or “fanwork,” though I understand why they used the
more well-recognized term.
3.    
For a number of reasons, commercial “fanworks,”
if you accept the application of that term to them—and for this play at least I
think we should—tend to be metafictions, interested in the mechanisms of
storytelling (see, e.g., Jasper Fforde’s series, Dumas père’s Kean as remixed
by Sartre, Supernatural’s Fan Fiction and Slash Fiction episodes), especially
if you include in the metafiction category retellings from the perspective of a
character whose experience is elided from the original (see, e.g., Wide
Sargasso Sea, Lo’s Diary, The Wind Done Gone, Jacqueline Carey’s retelling of
LoTR).  This play is no exception, as the
title indicates, and I also sense a reference to Hamilton’s “who lives, who
dies, who tells your story”—especially since Petri’s play, much more than
Shakespeare’s, emphasizes that you (the character) have little to no control
over those things.  In Petri’s version,
Elsie is not able to orchestrate the narrative for Horatio to repeat.

4.    
The program fascinated me because the format is
very specifically taken from the Archive
of Our Own
, with its major tags, additional tags and kudos count, as well
as fandom categorizations.  And I’m
pretty sure all the additional tags are canonical,
even though some of them are not what we envisioned when we set up the
additional tags field.  That’s folksonomy
for you.  Anyway, obviously I don’t think
there’s any trademark problem, and wouldn’t be for a creative work even if it
used more of the Archive’s trade dress, but it’s notable that the AO3 now
provides some standard formatting choices.
FFrom outside, a wall inviting audience members to share their fandoms.  I recognized maybe half?

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Transformative work of the year (so far): To tell my story, showing near DC now

Runs until July 30

Although the structuring conceit is a loose retelling of
Hamlet, with a modern-day fangirl as the tragic protagonist Elsie, there are a
number of other fandoms represented, most obviously Harry Potter, secondarily
Twilight (though only identified as “vampire” in the promo materials, grrr), MCU (similar, grr), LoTR, Sherlock, and Historical RPF (Abraham Lincoln).  Some observations:
1.    
Just as Ready Player One hails as its ideal reader an 80s fanboy, this play hails a 21st-century
fangirl.  I laughed a lot. 
2.    
Me, a pedant: Technically, this isn’t a
“fanfic,” but a “fandrama” or “fanwork,” though I understand why they used the
more well-recognized term.
3.    
For a number of reasons, commercial “fanworks,”
if you accept the application of that term to them—and for this play at least I
think we should—tend to be metafictions, interested in the mechanisms of
storytelling (see, e.g., Jasper Fforde’s series, Dumas père’s Kean as remixed
by Sartre, Supernatural’s Fan Fiction and Slash Fiction episodes), especially
if you include in the metafiction category retellings from the perspective of a
character whose experience is elided from the original (see, e.g., Wide
Sargasso Sea, Lo’s Diary, The Wind Done Gone, Jacqueline Carey’s retelling of
LoTR).  This play is no exception, as the
title indicates, and I also sense a reference to Hamilton’s “who lives, who
dies, who tells your story”—especially since Petri’s play, much more than
Shakespeare’s, emphasizes that you (the character) have little to no control
over those things.  In Petri’s version,
Elsie is not able to orchestrate the narrative for Horatio to repeat.

4.    
The program fascinated me because the format is
very specifically taken from the Archive
of Our Own
, with its major tags, additional tags and kudos count, as well
as fandom categorizations.  And I’m
pretty sure all the additional tags are canonical,
even though some of them are not what we envisioned when we set up the
additional tags field.  That’s folksonomy
for you.  Anyway, obviously I don’t think
there’s any trademark problem, and wouldn’t be for a creative work even if it
used more of the Archive’s trade dress, but it’s notable that the AO3 now
provides some standard formatting choices.
FFrom outside, a wall inviting audience members to share their fandoms.  I recognized maybe half?

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9th Circuit burps up a correction to recent Gerber case

Bruton v. Gerber Prods. Co., No. 15-15174, 2017 WL 3016740,
— Fed. Appx. — (9th Cir. Jul. 17, 2017)
On a petition for rehearing, the previous
panel opinion and partial dissent
were withdrawn and replaced with the
following, still partially reviving plaintiff’s consumer protection class
action but getting rid of a deception theory, as the dissent had wanted.
Bruton filed a putative class action against Gerber,
alleging that labels on certain Gerber baby food products included claims about
nutrient and sugar content that violated FDA regulations as incorporated into
California law.
Again, the court of appeals rejected the district court’s
ruling that the class wasn’t ascertainable. There is no separate
“administrative feasibility” requirement for class certification.
However, there was no genuine dispute of material fact on
Bruton’s claims that the labels were deceptive in violation of the UCL, FAL,
and CLRA.  Her theory of deception was
that the combination of “healthy” claims on Gerber’s products, in violation of
FDA regulations, and the lack of claims on legally compliant competitors’
products made Gerber’s labeling likely to mislead the public into believing
that Gerber’s products were of a higher quality than its competitors’ products.
This theory “may be viable,” since even technically correct
labels can be misleading under California law. 
However, Bruton didn’t produce enough evidence to survive summary
judgment; her own vague, uncorroborated, and self-serving testimony was
insufficient.  Further, the record
included Gerber’s and some competitors’ labels, but it showed that those
competitors made many of the same allegedly illegal claims. “A reasonable jury
comparing the labels side by side could not rationally conclude that Gerber’s
labels were likely to deceive members of the public into thinking that Gerber’s
products were of a higher quality than its competitors’ products that made the
same type of claims.”  Likewise, FDA
warning letters (informal and non-binding) didn’t indicate that competitors
complied with the law.
However, the district court erred in granting summary
judgment to Gerber on Bruton’s claims that the labels were unlawful under the
UCL. The unlawfulness prong “borrows” predicate legal violations and treats
them as independently actionable under the UCL. “The best reading of California
precedent is that the reasonable consumer test is a requirement under the UCL’s
unlawful prong only when it is an element of the predicate violation.” The
predicate violation here was of California’s Sherman Law, which itself
incorporates standards set by FDA regulations, and those standards didn’t
include any requirement of likely deception. (Though query how that works with
modern First Amendment jurisprudence.)

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Park claim fails to fly: formerly well-known mark lacks current secondary meaning

Parks LLC v. Tyson Foods, Inc., 2017 WL 3014273, — F.3d –,
No. 16-2768 (3d Cir. Jul. 6, 2017)
District
court opinion discussed previously here
. Since the 1950s, Parks Sausage
Company has manufactured or licensed sausage under the brand name “PARKS,”
though its registration expired in the early 2000s.  In 2014, Tyson, the owners of the frankfurter
brand BALL PARK, which is responsible for 23% of the revenue of all franks sold
in the US, launched the super-premium line PARK’S FINEST, and Parks sued for
trademark infringement and false advertising. 
Here, the court of appeals affirms the rejection of both claims.
“False advertising claims do not require proof of secondary
meaning, so litigants may be tempted to frame a false association claim as a
false advertising claim, to ease their evidentiary burden.”  That’s what seems to have happened here, so
the court tried to clarify the distinction between §43(a)(1)(A) and
§43(a)(1)(B) claims, holding that the false advertsing claim here failed
because it was “essentially a false association claim in disguise.”
False advertising requires a misrepresentation of “the
nature, characteristics, qualities, or geographic origin” of a product.  “PARK’S FINEST is only misleading in the way
that Parks suggests if a consumer makes the connection between PARK’S FINEST
and PARKS and has in mind a pre-existing association between PARKS and high
quality products. This is a false association claim and nothing more.”  Even the argument that the name would
misleadingly imply that the product was a sausage when it’s really an inferior frankfurter
depended on the consumer knowing that PARKS was a mark for sausages and making
a false association.
Even if Parks argued that “PARK’S FINEST” was misleading for
blurring the distinction between frankfurters and sausages, the packaging was
unambiguous that the product was frankfurters and the rest of the label couldn’t
confuse consumers; plus Parks repeatedly took the position that a frankfurter
is a kind of a sausage, meaning that there was no misleadingness by its own
lights.
Parks contended that PARK’S FINEST was misleading with
regard to “origin,” but that didn’t work both for the reasons given above and
because §43(a)(1)(B) is about geographic origin, not other types of false
designations of origin.  It’s not the
right vehicle “for addressing claims of false designation of origin that are
not concerned specifically with geographic origin.” “Geographic origin” “refers
solely to the place of origin and not to the creator, manufacturer, or any broader
conception of the term ‘origin.’”  (In a
footnote, the court commented that it wasn’t resolving the issue of whether a
term had to be a “geographically distinctive trademark” before a manufacturer could
be found liable for falsely advertising the geographic origin of its goods.  Here “trademark” seems to mean something like
“common-law certification or collective mark.”) 
Because the name PARK’S FINEST says nothing about the product’s
“geographic origin,” there was no valid §43(a)(1)(B) claim.
The false association claim then failed for want of a
showing of secondary meaning.  As a
surname-based mark, PARKS was required to show acquired distinctiveness; it
didn’t have that any more.  Parks argued
that inherent distinctiveness should have been a jury question because “parks”
is also the plural of “park,” as in recreational land, and therefore could be
seen as an “arbitrary” mark. “But it is undisputed that Parks was named after
its founder, someone who Parks describes with justifiable pride as ‘an
important figure in the history of American Business,’ and Parks’s reputation is
closely linked to its founder,” so no reasonable juror could conclude that
PARKS was anything other than a reference to the founder. (Isn’t there a
logical problem here?  If in fact PARKS
lacks acquired distinctiveness, why wouldn’t the hypothetical reasonable
consumer encounter the mark in ignorance of its history, and thus not make the “link”
as described, leaving her to figure out what was going on?)
Of note in the secondary meaning discussion, Parks tried to
use its confusion survey to show secondary meaning; that didn’t work well.  An Ever-Ready
survey shows consumers only the potentially-infringing product and asks open-ended
questions to determine whether they believe the product is associated with the
senior mark; it can also provide evidence of secondary meaning. This kind of
survey works best for commercially strong marks.  “Holders of weaker marks more frequently
employ a Squirt survey,” as
here.  A Squirt survey puts two products side by side and asks consumers
about their beliefs about source.  “[A]
well-designed Squirt survey may show
a likelihood of confusion. What it does not do or even purport to do, however,
is prove secondary meaning.”  Because of
how the survey is conducted, “a consumer who had never heard of PARKS could
still conclude that the two products were affiliated.” Follow-up questions
might have allowed participants to identify the source of PARKS or PARK’S
FINEST, which could have shed light on secondary meaning, but the survey didn’t
ask them.

Parks argued that proof of likely confusion proved secondary
meaning, but that’s just wrong.  The
evidence sometimes overlaps, but not always. “Establishing that two marks are
similar does not necessarily lead to any valid conclusion about whether either
of the two has secondary meaning.”

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Bee aggressive: Copied ad leads to grab bag of claims

Fischer v. Forrest, 2017
WL 2992663, — F. Supp. 3d –, 14 Civ. 1307 (S.D.N.Y. Jul. 14, 2017) (report and
recommendation)
Fischer invented
Fischer’s Bee-Quick, a product used to facilitate honey harvesting, and
marketed it using, among other things, the following four phrases:
a) “Are you tired of your spouse making you sleep in the garage after
using Butyric Anhydride?”
b) “Are you tired of using a hazardous product on the bees you love?”
c) “Fischer’s Bee-Quick is a safe, gentle, and pleasant way to harvest
your honey”
d) “A Natural, Non-Toxic Blend Of Oils and Herbal Extracts”
Defendants were in
some way involved with Brushy Mountain Bee Farm, which initially resold
Fischer’s product, using the text (whose authorship was disputed):
This 100% Natural, non-toxic blend of oils and herb extracts works just
like Bee Go and it smells good! Fischer’s Bee Quick is a safe, gentle, and
pleasant way to harvest your honey. Are you tired of your spouse making you
sleep in the garage after using Bee Go? Are you tired of using a hazardous
product on the bees you love? Then this is the product for you!
Around 2010, Brushy
Mountain decided to sell a comparable product that performed the same function;
Brushy Mountan bought a third party product and labeled it as “Natural Honey
Harvester,” but continued to use nearly the same promotional text.  A 2011 Brushy Mountain catalog used the
phrases as follows:
For years we have promoted the use of a natural product to harvest
honey but an unreliable supply of such a product has forced us to come out with
our own. This 100% Natural, non-toxic blend of oils and herb extracts works
just like Bee Go® and it smells good! Natural Honey Harvester™ is a safe,
gentle, and pleasant way to harvest your honey. Are you tired of your spouse making
you sleep in the garage after using Bee Go®? Are you tired of using hazardous
products on the bees you love? Then this is the product for you!
Fischer also alleged
that defendants intentionally removed copyright management information (“CMI”)
from Fischer’s promotional brochure and the Fischer’s Bee-Quick bottle photos. Defendants
changed the textual reference in one of the phrases from “Fischer’s Bee-Quick”
to “Natural Honey Harvester,” and allegedly also stripped the metadata from
Fischer’s original Fischer’s Bee-Quick bottle photo displayed on Brushy
Mountain’s website, and overlaid the photo with a watermark of the Brushy
Mountain Bee Farm logo.
There were lots of
factual disputes; the magistrate recommended not granting summary judgment on
the ground that Fischer’s copyright registration was invalid, even though the
first submission (of several) to the Copyright Office didn’t contain the
brochure at the heart of the case.  The
magistrate also recommended finding the brochure as a whole copyrightable, and
concluded that the relevant portions evinced enough originality to be
protected, at least as a whole. The “rhetorical questions that play on the
worries of beekeepers” were unique and the whole of the brochure was greater
than the sum of its parts, although the phrase “A Natural, Non-Toxic Blend Of
Oils and Herbal Extracts” was merely descriptive of the product ingredients. Even
in isolation, though, most if not all of the rhetorical questions were long enough for copyright protection, particularly the “sleep in the garage” bit.
Unfortunately for
Fischer, the copyright claim still had fatal problems.  (1) He did not register before the
infringement began, so he was not eligible for statutory damages or attorneys’
fees.  (As an aside, the magistrate
analyzed the relevance of secondary liability to the rule that infringements
that continue past the date of registration don’t provide eligibility for
statutory damages—although two of the vendors for  which Brushy Mountain was allegedly
secondarily liable began their infringing activities after the registration,
their infringements were republications of the initial ad, and thus part of an
ongoing series of infringing acts that didn’t restart the clock.)  (2) Fischer elected statutory damages and
declined to submit evidence of actual damages (which probably would have been
hard to prove; this is not the type of work for which there is a licensing
market in which money changes hands). 
(3) Defendants agreed to remove the challenged text, mooting the claim
for injunctive relief.  With nothing left
for a court to do, the magistrate recommended granting summary judgment to
defendants on the copyright claim.
DMCA claim:  Fischer alleged that defendants stripped the
metadata from Fischer’s original Fischer’s Bee-Quick bottle photo displayed on
Brushy Mountain’s website, but the magistrate recommended rejecting that
argument because he submitted no evidence that the metadata included CMI; not
all metadata is CMI. Fischer also argued that the allegedly infringing ad had
CMI stripped from it because defendants changed the phrase, “Fischer’s
Bee-Quick™ is a safe, gentle, and pleasant way to harvest your honey,” by
replacing “Fischer’s Bee-Quick™” with “Natural Honey Harvester”:
  
side by side comparison
Fischer argued that the
product’s name, because it had Fischer’s name in it, was CMI.  To prevail on a §1202 claim, Fischer had to
show that defendants “intentionally remove[d]” CMI that was “conveyed in
connection with copies … of [his] work or … displays of [his] work.” The
relevant “work” here was the the brochure, while defendants created derivative
works of the brochure. The creation of infringing derivative works didn’t
qualify as the “removal” of CMI from the original work. 
The magistrate was
also skeptical that even more direct “extraction” of phrases from a larger work
could constitute “removal” of CMI, since the statute contemplates “copies” of a
work and extraction of “distinct elements” of a work doesn’t constitute a “copy.” 
If, for example, someone extracted and reproduced several sentences
from a copyrighted Sherlock Holmes story, without crediting the Conan Doyle
Estate, it would stretch the definition of “removal” to say that CMI had been
“removed” from the copyrighted “work.” It might be copyright infringement, but
it would not be a DMCA violation.
This conclusion
makes total sense—otherwise Blurred Lines
should also have been the basis of a §1202 claim—but it requires a bit of fancy
footwork to reconcile with the idea that substantial similarity can constitute
a violation of the reproduction right, further strengthening my view that the
derivative works right should be where such claims live.
Even assuming that
the relevant “work” was the four key phrases collectively, Fischer didn’t show
that the phrases contained CMI.  “The
DMCA’s expansive definition of CMI cannot trigger liability any time a person’s
name is contained in a copyrighted work without reference to how that
information was used and displayed on the work itself.”  The name of the product discussed in the work
is not CMI for the work; such a name, even if includes the author’s name, “does
not have any CMI significance—it simply is part of the product’s name (just
like Kellogg’s Corn Flakes or Wrigley’s Chewing Gum).”
Fischer didn’t plead
a trademark infringement claim, the magistrate reasoned, because he
consistently alleged only “counterfeiting,” even when represented by
counsel. 
Fischer’s §43(a)
false endorsement claim also failed. 
This claim was based on Brushy Mountain’s use of URLs that, even after
they switched products, still contained “fischer” as part of the address
string, e.g., http://ift.tt/2vxXJjD
 

page for Fischer replacement, with Fischer’s name still in URL post-domain path
The judge applied
the multifactor confusion test, and found that the claimed strength of the
mark, mark similarity, and product similarity all favored Fischer.  But there was no evidence of actual confusion
or bad faith, which the judge found to be the most significant under these circumstances.  This wasn’t a domain name case; the use of “Fischers.com”
or “Fischersbeequick.com” to sell a competing product would support a false
endorsement claim. But a name “buried in the post-domain paths of the Brushy
Mountain web pages” wasn’t likely to confuse consumers about Fischer’s
endorsement or approval. “No consumers are likely to believe that Fischer has
somehow endorsed or approved Natural Honey Harvester when viewing the
post-domain portion of the URL, if they even see it at all.”  Likewise, consumer sophistication favored
defendants.  “Whether defined as the
typical consumer of beekeeping products, or internet users writ large, no
ordinary consumer is likely to see Fischer’s name in the post-domain path of
the URL and wonder if that signified his endorsement of a completely different
product in the accompanying web page.” 
Nor did Fischer provide evidence that, as he contended, the use of his
name in the address led Brushy Mountain’s pages to appear higher in search
results, or that, even if that were true, that fact would have any bearing on
consumer confusion..
Fischer’s only
evidence of actual confusion was an undated review on the Brushy Mountain
website complaining: “The first bottle I bought last year worked well but this
new stuff was a complete waste of time and money.” But there was no evidence
that the commenter ever bought Fischer’s product, as opposed to two different
bottles of the replacement product; defendants submitted an affidavit stating
that the review was posted two and a half years after Brushy Mountain stopped
selling Fischer’s product.
The New York unfair
competition claim is like a §43(a) claim, but requires “‘either actual
confusion or a likelihood of confusion, and there must be ‘some showing of bad
faith’ on the part of the defendants.” So that was a no-go too.
Note: why not a
right of publicity claim?  Would the
court’s CMI reasoning “this is a product name, not an author name” also apply
there?  Would there be any other defense?
The magistrate also
recommended tossing out Fischer’s false advertising claim, which was based on
the statement, “For years we have promoted the use of a natural product to
harvest honey but an unreliable supply of such a product has forced us to come
out with our own. This 100% Natural, non-toxic blend of oils and herb extracts
works just like Bee Go® and it smells good!”  Fischer primarily argued that “our own” was
false, because they bought a third-party product, though he also claimed that “the
third-party manufacturer makes nothing but cleaning products, calling into
question if the product is even food-grade, let alone ‘100% Natural”’  Furthermore, the only thing one defendant said
about whether the product was “actually natural” in deposition was “I assume
so.”  Given where the burden of proof
lies in a private false advertising claim, this wasn’t enough to proceed on the
100% natural claim, even though it was material.
As for “our own,”
that wasn’t literally false; while it could mean that defendants selected the
ingredients and personally created the product, but “another reasonable
interpretation is that defendants marketed a natural honey harvesting product,
from whatever source, under their brand name,” which was true. There was no
evidence of consumer deception, even though Fischer testified that unnamed
competitors had responded to the ad by making their own knockoffs—even if
knockoffs emerged, that didn’t mean the ad caused them, or that consumers were
deceived.

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Bee aggressive: Copied ad leads to grab bag of claims

Fischer v. Forrest, 2017
WL 2992663, — F. Supp. 3d –, 14 Civ. 1307 (S.D.N.Y. Jul. 14, 2017) (report and
recommendation)
Fischer invented
Fischer’s Bee-Quick, a product used to facilitate honey harvesting, and
marketed it using, among other things, the following four phrases:
a) “Are you tired of your spouse making you sleep in the garage after
using Butyric Anhydride?”
b) “Are you tired of using a hazardous product on the bees you love?”
c) “Fischer’s Bee-Quick is a safe, gentle, and pleasant way to harvest
your honey”
d) “A Natural, Non-Toxic Blend Of Oils and Herbal Extracts”
Defendants were in
some way involved with Brushy Mountain Bee Farm, which initially resold
Fischer’s product, using the text (whose authorship was disputed):
This 100% Natural, non-toxic blend of oils and herb extracts works just
like Bee Go and it smells good! Fischer’s Bee Quick is a safe, gentle, and
pleasant way to harvest your honey. Are you tired of your spouse making you
sleep in the garage after using Bee Go? Are you tired of using a hazardous
product on the bees you love? Then this is the product for you!
Around 2010, Brushy
Mountain decided to sell a comparable product that performed the same function;
Brushy Mountan bought a third party product and labeled it as “Natural Honey
Harvester,” but continued to use nearly the same promotional text.  A 2011 Brushy Mountain catalog used the
phrases as follows:
For years we have promoted the use of a natural product to harvest
honey but an unreliable supply of such a product has forced us to come out with
our own. This 100% Natural, non-toxic blend of oils and herb extracts works
just like Bee Go® and it smells good! Natural Honey Harvester™ is a safe,
gentle, and pleasant way to harvest your honey. Are you tired of your spouse making
you sleep in the garage after using Bee Go®? Are you tired of using hazardous
products on the bees you love? Then this is the product for you!
Fischer also alleged
that defendants intentionally removed copyright management information (“CMI”)
from Fischer’s promotional brochure and the Fischer’s Bee-Quick bottle photos. Defendants
changed the textual reference in one of the phrases from “Fischer’s Bee-Quick”
to “Natural Honey Harvester,” and allegedly also stripped the metadata from
Fischer’s original Fischer’s Bee-Quick bottle photo displayed on Brushy
Mountain’s website, and overlaid the photo with a watermark of the Brushy
Mountain Bee Farm logo.
There were lots of
factual disputes; the magistrate recommended not granting summary judgment on
the ground that Fischer’s copyright registration was invalid, even though the
first submission (of several) to the Copyright Office didn’t contain the
brochure at the heart of the case.  The
magistrate also recommended finding the brochure as a whole copyrightable, and
concluded that the relevant portions evinced enough originality to be
protected, at least as a whole. The “rhetorical questions that play on the
worries of beekeepers” were unique and the whole of the brochure was greater
than the sum of its parts, although the phrase “A Natural, Non-Toxic Blend Of
Oils and Herbal Extracts” was merely descriptive of the product ingredients. Even
in isolation, though, most if not all of the rhetorical questions were long enough for copyright protection, particularly the “sleep in the garage” bit.
Unfortunately for
Fischer, the copyright claim still had fatal problems.  (1) He did not register before the
infringement began, so he was not eligible for statutory damages or attorneys’
fees.  (As an aside, the magistrate
analyzed the relevance of secondary liability to the rule that infringements
that continue past the date of registration don’t provide eligibility for
statutory damages—although two of the vendors for  which Brushy Mountain was allegedly
secondarily liable began their infringing activities after the registration,
their infringements were republications of the initial ad, and thus part of an
ongoing series of infringing acts that didn’t restart the clock.)  (2) Fischer elected statutory damages and
declined to submit evidence of actual damages (which probably would have been
hard to prove; this is not the type of work for which there is a licensing
market in which money changes hands). 
(3) Defendants agreed to remove the challenged text, mooting the claim
for injunctive relief.  With nothing left
for a court to do, the magistrate recommended granting summary judgment to
defendants on the copyright claim.
DMCA claim:  Fischer alleged that defendants stripped the
metadata from Fischer’s original Fischer’s Bee-Quick bottle photo displayed on
Brushy Mountain’s website, but the magistrate recommended rejecting that
argument because he submitted no evidence that the metadata included CMI; not
all metadata is CMI. Fischer also argued that the allegedly infringing ad had
CMI stripped from it because defendants changed the phrase, “Fischer’s
Bee-Quick™ is a safe, gentle, and pleasant way to harvest your honey,” by
replacing “Fischer’s Bee-Quick™” with “Natural Honey Harvester”:
  
side by side comparison
Fischer argued that the
product’s name, because it had Fischer’s name in it, was CMI.  To prevail on a §1202 claim, Fischer had to
show that defendants “intentionally remove[d]” CMI that was “conveyed in
connection with copies … of [his] work or … displays of [his] work.” The
relevant “work” here was the the brochure, while defendants created derivative
works of the brochure. The creation of infringing derivative works didn’t
qualify as the “removal” of CMI from the original work. 
The magistrate was
also skeptical that even more direct “extraction” of phrases from a larger work
could constitute “removal” of CMI, since the statute contemplates “copies” of a
work and extraction of “distinct elements” of a work doesn’t constitute a “copy.” 
If, for example, someone extracted and reproduced several sentences
from a copyrighted Sherlock Holmes story, without crediting the Conan Doyle
Estate, it would stretch the definition of “removal” to say that CMI had been
“removed” from the copyrighted “work.” It might be copyright infringement, but
it would not be a DMCA violation.
This conclusion
makes total sense—otherwise Blurred Lines
should also have been the basis of a §1202 claim—but it requires a bit of fancy
footwork to reconcile with the idea that substantial similarity can constitute
a violation of the reproduction right, further strengthening my view that the
derivative works right should be where such claims live.
Even assuming that
the relevant “work” was the four key phrases collectively, Fischer didn’t show
that the phrases contained CMI.  “The
DMCA’s expansive definition of CMI cannot trigger liability any time a person’s
name is contained in a copyrighted work without reference to how that
information was used and displayed on the work itself.”  The name of the product discussed in the work
is not CMI for the work; such a name, even if includes the author’s name, “does
not have any CMI significance—it simply is part of the product’s name (just
like Kellogg’s Corn Flakes or Wrigley’s Chewing Gum).”
Fischer didn’t plead
a trademark infringement claim, the magistrate reasoned, because he
consistently alleged only “counterfeiting,” even when represented by
counsel. 
Fischer’s §43(a)
false endorsement claim also failed. 
This claim was based on Brushy Mountain’s use of URLs that, even after
they switched products, still contained “fischer” as part of the address
string, e.g., http://ift.tt/2vxXJjD
 

page for Fischer replacement, with Fischer’s name still in URL post-domain path
The judge applied
the multifactor confusion test, and found that the claimed strength of the
mark, mark similarity, and product similarity all favored Fischer.  But there was no evidence of actual confusion
or bad faith, which the judge found to be the most significant under these circumstances.  This wasn’t a domain name case; the use of “Fischers.com”
or “Fischersbeequick.com” to sell a competing product would support a false
endorsement claim. But a name “buried in the post-domain paths of the Brushy
Mountain web pages” wasn’t likely to confuse consumers about Fischer’s
endorsement or approval. “No consumers are likely to believe that Fischer has
somehow endorsed or approved Natural Honey Harvester when viewing the
post-domain portion of the URL, if they even see it at all.”  Likewise, consumer sophistication favored
defendants.  “Whether defined as the
typical consumer of beekeeping products, or internet users writ large, no
ordinary consumer is likely to see Fischer’s name in the post-domain path of
the URL and wonder if that signified his endorsement of a completely different
product in the accompanying web page.” 
Nor did Fischer provide evidence that, as he contended, the use of his
name in the address led Brushy Mountain’s pages to appear higher in search
results, or that, even if that were true, that fact would have any bearing on
consumer confusion..
Fischer’s only
evidence of actual confusion was an undated review on the Brushy Mountain
website complaining: “The first bottle I bought last year worked well but this
new stuff was a complete waste of time and money.” But there was no evidence
that the commenter ever bought Fischer’s product, as opposed to two different
bottles of the replacement product; defendants submitted an affidavit stating
that the review was posted two and a half years after Brushy Mountain stopped
selling Fischer’s product.
The New York unfair
competition claim is like a §43(a) claim, but requires “‘either actual
confusion or a likelihood of confusion, and there must be ‘some showing of bad
faith’ on the part of the defendants.” So that was a no-go too.
Note: why not a
right of publicity claim?  Would the
court’s CMI reasoning “this is a product name, not an author name” also apply
there?  Would there be any other defense?
The magistrate also
recommended tossing out Fischer’s false advertising claim, which was based on
the statement, “For years we have promoted the use of a natural product to
harvest honey but an unreliable supply of such a product has forced us to come
out with our own. This 100% Natural, non-toxic blend of oils and herb extracts
works just like Bee Go® and it smells good!”  Fischer primarily argued that “our own” was
false, because they bought a third-party product, though he also claimed that “the
third-party manufacturer makes nothing but cleaning products, calling into
question if the product is even food-grade, let alone ‘100% Natural”’  Furthermore, the only thing one defendant said
about whether the product was “actually natural” in deposition was “I assume
so.”  Given where the burden of proof
lies in a private false advertising claim, this wasn’t enough to proceed on the
100% natural claim, even though it was material.
As for “our own,”
that wasn’t literally false; while it could mean that defendants selected the
ingredients and personally created the product, but “another reasonable
interpretation is that defendants marketed a natural honey harvesting product,
from whatever source, under their brand name,” which was true. There was no
evidence of consumer deception, even though Fischer testified that unnamed
competitors had responded to the ad by making their own knockoffs—even if
knockoffs emerged, that didn’t mean the ad caused them, or that consumers were
deceived.

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Court gags on Utah’s ag-gag law

Animal Legal Defense
Fund v. Herbert, No. 13-cv-00679 (D. Utah Jul. 7, 2017)
The court strikes
down Utah’s ag-gag law, relying on Alvarez,
Reed, and the idea that not all access procured by lying is “trespass”
or “harmful.” H/T James Grimmelmann, who thinks the reasoning doesn’t quite
work, perhaps because of the court’s reluctance to rely on the legislature’s
obvious speech-suppressive intent.
A series of
high-profile investigations into agricultural facilities in the mid- to late
2000s spurred a new round of ag-gag laws. While one might once have thought
that film of workers jabbing sick cows in the eye, grinding up live chicks, and
skinning calves alive might have led to increased protections against animal
abuse, it instead mostly led to increased protections against investigation of
agricultural facilities. (One wonders what Upton Sinclair would have thought:
the animal rights organizations aimed for the heart, and apparently hit the
public in the eye.) Utah’s law was introduced, according to its sponsor,
because of “a trend nationally of some propaganda groups . . . with a stated
objective of undoing animal agriculture in the United States.” Another
representative, a farmer, stated that the bill was targeted at “a group of
people that want to put us out of business,” and noted that farmers “don’t want
some jack wagon coming in taking a picture of them.” The sponsor of the Senate
bill said that the bill was meant to address the “vegetarian people that [are]
trying to kill the animal industry” by “hiding cameras and trying to . . .
modify the films and stuff like that.”
Utah’s law
criminalized “obtain[ing] access to an agricultural operation under false
pretenses,” as well as (1) bugging an agricultural operation; (2) filming an
agricultural operation after applying for a position with the intent to film;
and (3) filming an agricultural operation while trespassing.
In 2013, Amy Meyer
became the first person to be charged under the law—apparently the only person
ever charged under an ag-gag law nationwide. She was arrested while filming
what appeared to be a bulldozer moving a sick cow at a slaughterhouse, though
she was on public property at the time and thus not subject to the law. She was
actually charged, though the State dismissed the case without prejudice (!).
This is an interesting case study not of chilling effects (of which more below)
but of licensing effects—the police, whose acts are likely to be far more
important than those of prosecutors, and harder to constrain, felt empowered to
suppress her recording because they had a general sense that some kinds of
recording were illegal, and prosecutors backed them up.
Meyer, joined by
ALDF and PETA, sued. The state challenged their standing. Allegations of
subjective chill aren’t injury in fact, but “a plaintiff need not expose
himself to actual arrest or prosecution to be entitled to challenge a statute.”
In the Tenth Circuit, standing requires (1) that in the past, the plaintiff
engaged in the kind of speech implicated by the statute; (2) that the plaintiff
has a desire, but no specific plans, to engage in the speech; and (3) that the
plaintiff presently has no intention of engaging in the speech because of a
credible threat the statute will be enforced. 
This test was satisfied by all three plaintiffs.  No concrete plans to violate the law were
required.
The state argued
that lying and recording without permission weren’t protected by the First
Amendment at all.  Starting with lying:
lying is speech, but some speech is outside the First Amendment
categorically.  Alvarez, however, says that “lies are not categorically
unprotectable by the First Amendment,” though lies that cause “legally cognizable
harm” are outside of First Amendment protection.  Do the lies targeted here—“obtain[ing] access
to an agricultural operation under false pretenses”—cause legally cognizable
harm?
The state identified
two kinds of harm from such lies: (1) danger to animals and employees, and (2)
trespass. The first is (no pun intended) bullshit.  There was no evidence of it, and no evidence
that it motivated the law’s enactment.  Plus, even though some lies could endanger
animals or employees, not all would, e.g., “the applicant who says he has
always dreamed of working at a slaughterhouse, that he doesn’t mind commuting,
that the hiring manager has a nice tie.”  These are interesting examples because they’re
all, in some way, unfalsifiable.  There
are falsifiable lies that also wouldn’t inherently pose dangers, though they
might be somewhat more correlated with various risks—e.g., the applicant who
claims to have a college degree but doesn’t; the applicant who fails to report
a conviction twenty years ago; and so on. 
Query what the fate of a more specific law targeted at lying about
qualifications ought to be where the job itself doesn’t actually require a
particular qualification.
On to trespass: the
state argued that access to private property procured through misrepresentation
is trespassing, and trespassing is inherently legally cognizable harm.  But misrepresentation doesn’t always negate
consent, and with consent there is no trespass. 
Courts to consider the issue have concluded that it depends on the type
of harm, if any, the liar causes. “[I]f the person causes harm of the type the
tort of trespass seeks to protect—interference with ownership or possession of
the land—then her consent to enter becomes invalid, and from that point on she
is not merely a liar, but a trespasser as well.”  This is where James Grimmelmann objects, as I
understand it; trespass can also be about interference with the right to
exclude, which is why we teach Jacque v.
Steenberg Homes
, and that is inherent in the tort.  But there is still physical trespass that
harms only dignitary interests—as in Jacque—and
dignitary interests have at best a mixed track record against First Amendment
interests (note that I am doing the usual slip/slide between coverage and
protection here, sorry).  Anyway, without
interference with ownership or possession, the consent given to the liar
remains valid even if procured through misrepresentation. 
“Thus, a competitor
who enters a business to steal secrets while posing as a customer is a
trespasser, as is the man who is invited into a home while posing as a
repairman, but is in fact just a busybody looking to snoop around (because both
have interfered with ownership or possession of the property).” 
Okay, that’s a
little harder to explain, because the secret-stealer may cause economic harm,
but not to the land, and the busybody
may not cause any economic harm (and we may have to default to the concept of
high-risk categories, since someone who will lie to get into your house poses
obvious dangers to you and your property). 
Contrast those people with the court’s examples of liars who don’t cause
trespass-type harm: “the restaurant critic who conceals his identity, the
dinner guest who falsely claims to admire his host, or the job applicant whose
resume falsely represents an interest in volunteering.”  These seem to be, respectively, socially
productive, social, and hard-to-see-how-a-jury-could-judge-harm lies.  It’s not clear to me that the concept of
“possession” helps much here in figuring out the difference between lies that
are generally recognized as causing more harm than they’re worth and lies that
aren’t.  It seems that trespass doctrine
itself may encode the same “lies that cause harm” category as Alvarez, with all the resulting
questions about when the inquiry should be retail or wholesale.  I can’t say that feels wrong to me, but it
does expose the structure of Alvarez’s
consequentialism. 
Back to the court’s
reasoning: “the Act here is immune from First Amendment scrutiny under the
State’s trespass theory only if those who gain access to an agricultural
operation under false pretenses subsequently cause trespass-type harm.”  Because such people don’t necessarily cause harm, and the law
sweeps in trivial, harmless lies—“an applicant’s false statement during a job
interview that he is a born-again Christian, that he is married with kids, that
he is a fan of the local sports team,” or the use of a local address for an
applicant who’s out of town—the law is subject to First Amendment scrutiny.
The state argued
that the court should construe “false pretenses” to exclude harmless white lies
and cover only lies material to a person’s access.  That had vagueness implications, and might
cover the applicant who’s really a fan of the crosstown rival rather than the
local team, but regardless, the lie’s materiality to the owner does not itself
make a liar into a trespasser, as several cases about undercover investigations
have held.  So when is an invited guest a
trespasser? The court offered the example of a landscaper who gets a contract
by misrepresenting his previous experience, then does a great job—has he
committed a trespass?  The court found
the “trespass-type harm” standard to be the most persuasive.  The materiality of the lie might render it
harmful, but not in a legally cognizable way. 
Ultimately, absent a further showing of harm, at least some of the lies
criminalized by the law were protected by the First Amendment.
The state then
argued that obtaining a job under false pretenses causes legally cognizable
harm.  Alvarez says: “Where false claims are made to effect a fraud or
secure moneys or other valuable considerations, say offers of employment, it is
well established that the Government may restrict speech without affronting the
First Amendment.” This might work if the law were limited to obtaining
employment under false pretenses, but instead it covered “access,” which would
include “lying about wanting to take a tour, lying about an interest in acquiring
the facility, or lying about wanting to write an article about the facility for
Modern Farmer.”
The First Amendment
also applied to the recording provisions, even though the state argued that the
act of recording wasn’t speech.  But we know that
speech-suppressive laws can operate at different points in the speech
process.  The government can’t circumvent
the right to disseminate a video by regulating the making of that recording
instead.  The state can regulate the act
of recording, but the regulation must be justified and tailored appropriately.
Finally, the state
argued that the First Amendment wasn’t implicated because the law applied only
to speech on private property, to which the First Amendment didn’t apply. The
state’s argument conflated “a landowner’s ability to exclude from her property
someone who wishes to speak” with “the government’s ability to jail the person
for that speech.” The First Amendment is not itself a license to trespass on
private property, or a defense to a private trespass claim.  (But isn’t that exactly what it is here, run
through a concept of consent?  After all,
the state is involved in the enforcement of the private trespass claim, as it
was in NYT v. Sullivan.  One way to think about it, tentatively: what
we are really talking about is the idea of consent, and how some lies don’t
vitiate consent; it might be a different question if the state explicitly
legislated to make clear that a particular lie vitiated consent, but absent
that there is a common-law background against which relevant harm is
defined.  Framed like that, this
implicates the question of standing/legislative competence to identify harm,
but at least provides a roadmap for how one might alter the definition of harm
by finding something new and cognizable.) 
Generally, a
landowner can remove someone from her land even when that person wishes to
exercise First Amendment rights. But the question here was whether the state
could prosecute a person based on her speech on private property, without even
justifying or tailoring the law.  It
can’t.  The state certainly couldn’t
criminalize any criticism of the government on private property.  (Could it criminalize political discussions
without the consent of the property owner on whose property the discussions
were held?  This hypothetical has some
relevance to various proposals about whether, for example, Delaware ought to change its corporate law so that shareholders should
have to affirmatively vote to allow corporations to give political donations.)
What level of
scrutiny applies?  Under Reed, a law is content-based “if
determining whether someone violated the law requires looking at what was said.”
 Still, it’s not entirely clear what
level of scrutiny is applied to anti-lying laws after Alvarez, in which a plurality applied strict scrutiny and two other
Justices applied “proportionality review,” seemingly a variant of intermediate
scrutiny.  The court wasn’t sure what the
“narrowest” ground in Alvarez was,
because it characterized the disagreement among justices as “one of kind—whether
to apply strict or proportional scrutiny—not of breadth.”  That seems odd to me; ordinarily we’d say
intermediate scrutiny was the narrower ground, but in any event, lower courts
have generally applied strict scrutiny to laws implicating lies post-Alvarez.
Here’s where
everything would be much simpler if we just admitted this was a viewpoint-based
law; there’s a reason they’re called “ag-gag” laws.  But instead, the court reasoned that the law
was content-based because determining whether there’s been a lie requires
scrutinizing what the person said.  The
state argued that an anti-lying provision is content-neutral because it barred
all persons, regardless of the message they intend to disseminate, from lying
to gain access to agricultural operations. 
But that’s not the test under Reed.  As for the recording provisions, the question
was whether criminalizing the recording of a particular location was a
content-based restriction.  It was,
because the law criminalizes the recording “of” the operation, not merely any
recording “at” the operation.  “[A]
person standing on agricultural operation property who films a passing flock of
geese is certainly at an agricultural operation, but nobody watching the film
would contend it was a recording ‘of an agricultural operation.’ … In short, if
a person walks off an agricultural facility with a recording, the only way to
know whether she is criminally liable under the Act is to view the recording.”  That’s content-based.
The court’s reading
of Reed is readily defensible (though
it doesn’t address the internal contradictions of Reed, as it has no reason to do
so).  Essentially, at least outside of
commercial speech, only time/place/manner restrictions are exempt from strict
scrutiny.  One might wonder what is left
for the concept of viewpoint-based laws. 
In a pre-Reed world where
content-based meant “not time, place and manner, but covering broad categories
in some way that doesn’t inherently suggest that a government attempt to distort
debate is afoot,” the concept of viewpoint-based regulation did useful work in
identifying government attempts to distort debate that would get scrutiny that
was strict in theory and fatal in fact. 
Post-Reed, who knows?
Unsurprisingly, the
law didn’t survive strict scrutiny.  The
court didn’t have to wade too far into “complex policy questions” because of
the breadth of the law.  The government
identified four allegedly compelling interests: (1) the law protects animals
from diseases brought into the facility by workers; (2) it protects animals
from injury resulting from unqualified or inattentive workers; (3) it protects
workers from exposure to zoonotic diseases; and (4) it protects workers from
injury resulting from unqualified or inattentive workers. The state explicitly
disclaimed reliance on privacy or property interests.  As the court noted, there’s no mention of
worker or animal safety in the legislative history, which was instead “rife with
discussion of the need to address harm caused by ‘national propaganda groups,’
and by ‘the vegetarian people’ who are ‘trying to kill the animal industry.”
Even assuming that
animal and worker safety were actually the reasons for the law, there was no
evidence that the law advanced those interests. 
The targeted harm was entirely speculative, and that can’t establish a
compelling state interest. 
At most, there was “some
evidence in the record of Plaintiffs’ undercover operatives perhaps prolonging
suffering of animals by not reporting abuse in a timely manner.” The state
didn’t claim that the law furthered the interest of quickly addressing animal
abuse by agricultural operations, but even had it done so, the law wasn’t
“remotely” tailored to that goal. 
Several states require employees who record abuse to turn over the
recording to authorities within a certain time period.  While not opining on the constitutionality of
such a provision, that would be both more narrowly tailored to and more
effective at addressing delays in reporting animal abuse.
Even if the state
had shown a compelling interest in animal and employee safety, it hadn’t shown
narrow tailoring.  Narrow tailoring
requires that a law be “actually necessary” to achieve the state’s interests,
and may not be over or underinclusive.  The record didn’t show necessity, and was both
hugely overinclusive, criminalizing “the most diligent well-trained undercover
employees, and underinclusive because “it does nothing to address the exact
same allegedly harmful conduct when undertaken by anyone other than an
undercover investigator.”  What the law was perfectly tailored to do was
preventing undercover investigators from exposing agricultural facility abuses.
ß We are
apparently having a general debate over whether, or in what circumstances, courts
can look at what the government officials responsible for a policy were
actually trying to do, based both on what they said and on what they wrote into
the policy.  If you think that the
analysis above was too much work for an obvious conclusion, or that it may have
unintended consequences for much less pernicious laws, as I do, then it may be
useful to rely more heavily on the objectively manifested indicia of intent:
who was targeted?  There’s often no
separate need to ask “why.”

Anyway, as the state
didn’t contend that preventing such exposure was a compelling state interest,
that was the end of the analysis, and of the law.

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