Beyond the Dog’s tactics in employment dispute may have been beyond the pale

Posted on April 7, 2026 by rtushnet

Beyond The Dog, LLC v. Salzer, 2026 WL 884140, No.
3:24-cv-1439 (VAB) (D. Conn. Mar. 31, 2026)

Plaintiffs (BTD) sued defendants Salzer and Canine
Behavioral Blueprints, LLC over a failed working relationship, resulting in claims
for trade secret misappropriation, breach of contract, unjust enrichment,
unfair competition, and related counterclaims. I’m going to focus on the
advertising-related claims, but some breach of contract claims survive for
trial.

Beyond the Dog is a Missouri dog-training business. Dr.
Salzer signed its Trainer Non-Compete Agreement /Employment Agreement, which
contained restrictive covenants, confidentiality provisions, and a carveout for
“[a]ctivities solely for academic purposes and not-for-profit.” During her
employment, plaintiff Echterling-Savage supervised Salzer and worked with her
on dissertation-related research. The dissertation was published through the
University of Kansas. The relationship deteriorated after Salzer moved to
Connecticut, started working with a local SPCA and a business called Our
Companions, and opened Canine Behavioral Blueprints (CBB).

Plaintiffs took steps to protect contractual and
confidentiality interests they believed remained in effect, including sending a
letter to the MSPCA, communicating with a third party about CBB, and attending
a public Our Companions seminar presented by Salzer. This allegedly interfered
with Salzer’s professional opportunities and contributed to the cancellation of
her lecture series and the end of her work with Our Companions.

If you want to know how this litigation is going: Previously,
the court granted a preliminary injunction against plaintiffs’ use of agents to
pretend to be potential clients of defendants in order to obtain defendants’
business documents, or any other covert corporate espionage activities; communication
with the MSPCA and Our Companions or with any other of Salzer’s employers or
business relationships regarding Dr. Salzer or the claims of this litigation
except for the purposes of discovery; or following, or engaging agents to
follow, Salzer, park outside her house, places of employment, or at her
clients’ houses, or otherwise communicating or speaking with Salzer; telling
any third party that Salzer breached her contract with Beyond the Dog or
misappropriated trade secrets or confidential information; and “initiating or
otherwise promoting further proceedings with the University of Kansas regarding
the issues of this litigation.”

Common-law unfair competition under Missouri law: This
requires passing off. Here the allegations were, in essence, reverse passing
off, and Dastar has much to say. [Although Dastar was federal law
specifically interpreting the word “origin” in the Lanham Act, its rationale
supports the idea that state laws are preempted by copyright if they don’t
follow Dastar.]

Beyond the Dog argued that its unfair competition claim “targets
deceptive marketplace conduct non-attribution in credentialing and promotion,”
because “CBB’s intake process mirrors BTD’s distinctive two-part system
(front-end prompts and non-public back-end scoring that generates a
protocol-oriented report), reinforcing a false impression of origin and
distinctiveness in the services Defendants sell.” That did not get the job
done. “The Supreme Court foreclosed this type of non-attribution or
methodology-based claim … in Dastar.”

CUTPA counterclaims: The Connecticut Unfair Trade Practices
Act provides that “[n]o person shall engage in unfair methods of competition
and unfair or deceptive acts or practices in the conduct of any trade or
commerce” and gives a private right of action to a person who suffers an
“ascertainable loss of money or property, real or personal.” Defendants argued
that their acts targeting Salzer arose from “employment-relationship
enforcement, not marketplace conduct.” They also argued that there was no
actionable harm because their letter to the MSPCA “did not accuse Dr. Salzer of
any wrongdoing,” that it was sent “to ensure non-disclosure, not to interfere
with her employment,” and that MSPCA “has continued to employ Dr. Salzer and
has even given her a raise.”

Although an employment relationship doesn’t constitute trade
or commerce under CUTPA, a jury could find that the acts of which plaintiffs
are accused didn’t arise solely from an employment relationship. After all,
Salzer’s non-profit work was “specifically excluded from the scope of her
Agreement with BTD,” but they targeted the MSPCA anyway. Likewise, plaintiffs
allegedly attended Salzer’s seminar, sought access to her presentation
materials, and attempted to interfere with Dr. Salzer’s teaching activities and
her relationship with Our Companions. Repeatedly dangling the prospect of a
recommendation letter, then refusing to provide it unless she agreed to
relocate and work for them in Dallas, Texas, allegedly harmed Salzer’s ability
to obtain certification and referrals in Connecticut. And the “mystery shopper”
activity could be justified pre-suit investigation or instead conduct that a
reasonable factfinder could deem deceptive or unfair under CUTPA.  In addition, sending a takedown notice to the
University of Kansas could be part of the counterclaim, given that the dissertation
was allegedly “used ‘solely for academic purposes’ and thus ‘exempt’ from Dr.
Salzer’s non-disclosure agreement with BTD,” and allegations that “BTD made
demonstrably false allegations to protect non-existent legal rights knowing
that an academic misconduct investigation into Dr. Salzer’s dissertation could
be reputationally ruinous.”

For similar reasons, the tortious interference counterclaims
survived, as did defamation per se (accusations of theft can be per se
defamatory), subject of course to proof and potential defenses like truth or
privilege. Connecticut common-law unfair competition is narrower than CUTPA, but
that claim also survived. A reasonable jury could find “justified, limited
enforcement conduct,” or “fraud, misrepresentation, intimidation or
molestation, or that the defendant acted maliciously, in interfering with the
plaintiff’s business prospects.” Similarly, negligent infliction of emotional
distress survived because it targeted conduct “beyond an ordinary
employment-termination dispute or distress arising solely from litigation.”

from Blogger https://tushnet.blogspot.com/2026/04/beyond-dogs-tactics-in-employment.html

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Netflix’s promotion of fictional team does not constitute trademark use

Posted on April 7, 2026 by rtushnet

Pepperdine University v. Netflix, Inc., No. 2:25-cv-01429-CV
(ADSx) (C.D. Cal. Mar. 31, 2026)

After denying
the motion for preliminary injunction, the court finally tosses Pepperdine’s
lawsuit based on use of a fictional Waves team in a Netflix show. Rogers
applies to content, even prominent content, in a TV show.

Pepperdine claimed, and the court assumed, its rights in “Waves”
for its athletic teams, along with a blue and orange color scheme “in
conjunction with athletic programs and athletic merchandise, and/or in
conjunction with other symbols that are associated with and identify the
university—including the ‘Waves’ team name and the number ‘37.’”

Defendants made and distributed Running Point, “a
series about a woman who is unexpectedly appointed president of a basketball
franchise named the Los Angeles Waves.” The LA Waves allegedly use a mark similar
to Pepperdine’s Waves trademark and similar colors to Pepperdine’s colors: a
similar font, the color orange for the lettering, white outlining, a blue
border, and the use of the word “Waves” in a similar context—on athletic-style
clothing.

Pepperdine alleged that the use of the Waves marks is “pervasive”
in the series, and appears throughout the series—on jerseys, shirts, stadiums,
etc., including a logo that is similar to Pepperdine’s Waves mark, with a blue
and white wave next to the orange “WAVES” text. “The show also includes a
framed jersey in a conference room with the number 37 on it.”

Pepperdine alleged that defendants (or others) promoted Running
Point with Waves references: Actors have posted pictures of themselves in
“Waves” jerseys, with the caption “SIGNED to the Los Angeles Waves! . . . Check
out my dunks on Running Point now on Netflix.” Another actor posted an image
which prominently states “Los Angeles WAVES.” Defendant Kaling International’s
official Instagram profile previously showed its founder, Mindy Kaling, wearing
a “WAVES” shirt, and included a biography reading “Home of the Los Angeles
WAVES.”

Pepperdine alleged that the team name is thus “essentially
synonymous with the show’s identity and its source.” Also, third parties are allegedly
now selling variations of Waves-branded merchandise under the description
“Running Point.”

The court looked to the cases discussed in JDI to identify
the appropriate situations to use the Rogers test: the “Barbie Girl”
case, University of Alabama Board of Trustees v. New Life Art, Inc., 683 F.3d
1266 (2012) and Louis Vuitton Malletier S. A. v. Warner Bros. Entertainment
Inc., 868 F. Supp. 2d 172 (S.D.N.Y. 2012). The court also pointed to the Rogers-based
dismissals in Haas Automation, Inc. v. Steiner, No. 24-CV-03682-AB-JC, 2024 WL
4440914 (C.D. Cal. Sept. 25, 2024) and JTH Tax LLC d/b/a Liberty Tax v. AMC
Networks Inc., 694 F. Supp. 3d 315 (S.D.N.Y. 2023). In the former, a book
included plaintiff’s mark on its front cover, back cover, and on several pages,
but the mark was “not used to tell the consumer who published the book or the
source of the book.” Rather, the mark told the consumer what the book was about
and who the author worked for. In the latter, the defendant’s TV series
included a fictional tax preparation business called “Sweet Liberty Tax
Services.” In both cases, defendants had not used the marks “as their own
identifying trademark.”

By contrast, post-JDI, courts have rejected Rogers
as applied to the name of a news website and the title of a film.

Netflix argued that its uses were not source-identifying and
that defendants were clearly identifying themselves as the source of the TV
series.

The court agreed. It was insufficient to allege “extensive
use of the Waves mark in the show, Defendants’ use of the Waves mark to market
the show, consumers’ connection of the Waves mark with the show, and
Defendants’ previous pattern of obtaining trademarks for fictional entities
within their television series.” That’s because the question is whether
defendants “used the Waves mark as a designation of source for their own
product—Running Point.”

Just as “Barbie Girl” repeated Barbie’s name and imitated
her voice, pervasive use of the Waves “mark” “does not explicitly mislead as to
the source of the work,” and does not “explicitly or otherwise, suggest that it
was produced by [Pepperdine].” That didn’t change with allegations that the use
in the content was so pervasive as to be “essentially synonymous with the
show’s identity.” Nor did the court accept conclusory allegations that the use was
source identifying.

At most, Pepperdine alleged that the Waves mark is
“immediately recognized” to identify the Running Point series, and that
its use is synonymous with the series. But use to “identify the show” is not
itself use “as a designation of source.” Identifying the show can include content!
An actor who posts themselves in a “Waves” jersey saying “Check out my dunks on
Running Point now on Netflix” is pretty clearly identifying Netflix as the
source of the show. Use in marketing wasn’t inherently trademark use, nor was
it relevant that “Defendants have obtained trademarks in fictional businesses
central to their shows in the past.”

The use was artistically relevant and not explicitly
misleading. The court noted that the parties did not, as alleged, use the Waves
marks for the same “purpose”; while you could call both “sports-related
entertainment,” Pepperdine uses the Waves mark to identify its collegiate
sports teams, and defendants use it in a TV series for a fictional sports team.

Although Pepperdine alleged that third parties sell Running
Point Waves merchandise, they didn’t explain how defendants could be liable
for the acts of these third parties.

Nor did statements like “home of the Los Angeles WAVES,” equate
to claims like “‘Nimmer on Copyright,’ ‘Jane Fonda’s Workout Book,’ or ‘an
authorized biography’” as a statement that misstates who authored or endorsed
the series. The question was whether defendants were misleading consumers as to
the source of the Running Point series. To the contrary, they were explicitly
claiming to be the source of the series, rather than claiming “brought to you
by Pepperdine,” or even “brought to you by the WAVES.” A fictional professional
sports team “can clearly be distinguished by consumers from the Pepperdine
Waves—a real collegiate sports team.”

from Blogger https://tushnet.blogspot.com/2026/04/netflixs-promotion-of-fictional-team.html

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naked licensing could constitute false advertising of origin

Posted on April 7, 2026 by rtushnet

Epson America, Inc. v. Global Aiptek Inc., 2025 WL 4631973, No.
8:23-cv-00222-FWS-DFM (C.D. Cal. Dec. 17, 2025)

Epson alleged that defendant GAI purposefully and
deceptively inflated the lumen and brand specifications of its projectors in
violation of the Lanham Act and California’s UCL. The court mostly granted Epson’s
motion for summary judgment.

As alleged: “Within a particular projector category, such as
portable consumer projectors, the quality and corresponding price of a specific
projector are largely determined by its resolution and light output.” Lumen rating
is a key product feature; more is more expensive and lumen ratings are
prominently advertised and displayed on packages. Online, sellers list a
projector’s lumen rating in the product description, title, and even in the
product name.

GAI purportedly entered into a trademark agreement with HP
in 2017 to “use, reproduce and display the HP Trademarks” on “the HP Branded
Products” including LED based projectors. It allegedly used the HP mark on
packaging and advertising, and on GAI’s employee business cards. “HP has not
manufactured projectors for sale under its own brand since at least 2011.” “GAI
desired to use the HP name because HP has a ‘huge global presence and track
record.’ ”

ISO sets the internationally recognized standard for
scientific measurement of white brightness in a laboratory setting.” GAI advertised
its projectors with various lumen values. For example, it advertised its HP
BP5000 model as having various light output specifications, including “6000
Laser Lms (2500 ANSI);” “4500-Lumen; “2000 ANSI Lm;” “2000-lumen;” and “200
ANSI Lumens; 6000 Laser Source lumens.”

However, “GAI does not conduct any testing to confirm the
brightness specifications of its projectors.” A principal “claims that he uses
his own ‘personal perception’ and ‘instinct’ to look at the projectors with the
naked eye and determine whether it is ‘fitting [his] expectation’ and ‘whether
this is a match to the data sheet or not.’ ” “GAI has no internal definition of
‘laser lumen’ and cannot distinguish it from a ‘lumen.’ ”

Epson had two false advertising claims: (1) GAI inflates the
lumen values of the projectors, and (2) GAI misrepresents who manufactures its
projectors, which I find a much more interesting argument!

Epson’s evidence demonstrates that the lumen claims were
literally false, based on its independent testing. Each of the models tested
produced results evidencing light output significantly below the brightness
values claimed by GAI, e.g., the HP BP5000 model produced “an average light
output of 1655 lumens, testing as low as 1598 lumens, and nothing above 1732
lumens.” “That each projector is advertised so far above its highest tested
output demonstrates literal falsity.”

Although GAI relied on test reports commissioned from
Shenzen Circle Testing Certification Co., it did not produce an expert witness
to opine on the veracity of these test reports. “Without expert corroboration,
the test reports do not create a battle of the experts on the truth of GAI’s
advertisements.”

GAI also argued that ISO standards “account for normal
manufacturing variances” and that projectors can comply with that standard “as
long as its measured light output at the time of shipment is no less than 80%
of the value stated on its specification sheet.” But Epson’s unrebutted testing
shows that GAI’s projectors produce lumen values at well below 80% of their
advertised values. Independently, GAI didn’t show why compliance with ISO
standards “would somehow allow an entity to avoid liability under the Lanham
Act.”

GAI then argued that it uses the term “ANSI lumens” or “LED
lumens” to notify consumers that GAI is describing the internal brightness of
the projector rather than the light that exits the projector. “GAI’s
explanation, when viewed in context, does not make sense,” given that “GAI has
no internal definition of ‘laser lumen’ and cannot distinguish it from a
‘lumen.’ ” “Moreover, there is no reason to believe a consumer would understand
GAI’s advertisements to be referring to the internal brightness of a projector.”

HP manufacture: Epson argued that a “trademark license does
not permit a licensee to represent itself as the brand owner or to trade on the
licensor’s goodwill as if the products originated from that licensor.” It cited
mainly naked licensing cases like Barcamerica Int’l USA Tr. v. Tyfield
Importers, Inc., which said that it was “inherently deceptive” for a licensor
to fail “to exercise adequate quality control over the licensee.”

The court decided that this question was for the jury. A
naked license might not show literal falsity, and, given the Ninth Circuit’s
caution that it is “difficult, if not impossible” to define “how much control
and inspection” the licensor need exercise, whether there was a naked license
was ill-suited to summary judgment. “That is especially true here where GAI
provides at least some evidence that HP has not completely abdicated oversight
of manufacturing and quality control.”

But GAI didn’t contest the materiality of lumens or direct
competition between the parties. Online “retailers often create their own
comparison of the specifications of the specifications of competing brands’
models, with the lumen rating at or near the top of the list.” GAI argued that there
was no injury because GAI’s most popular projector retails for $150 while
Epson’s cheapest model starts at $300. That didn’t let GAI createa triable
issue as to injury. “That one projector might differ from another in price to
some degree does not mean that those projectors do not compete at all because
consumers evaluate other factors such as performance and brand when purchasing
projectors. GAI’s argument is better suited for the damages phase, where a
difference in price could demonstrate the degree to which sales were diverted
from Epson to GAI.” Epson was still entitled to summary judgment on liability.

from Blogger https://tushnet.blogspot.com/2026/04/naked-licensing-could-constitute-false.html

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lack of harm allegations beyond “direct competition plus customer inquiries” insufficient for false advertising standing

Posted on April 6, 2026 by rtushnet

Kalmbach Feeds, Inc. v. Purina Animal Nutrition, LLC, 2026
WL 598608, No. 2:25-cv-00617 (S.D. Ohio Mar. 4, 2026)

Previously.
Kalmbach sued Defendant Purina for false advertising under state and federal
law in connection with its Farm to Flock chicken feed, which Purina represented
as helping to defend against viruses such as avian influenza.

Although Kalmbach received a preliminary injunction because
of the misleadingness of Purina’s claims, it didn’t sufficiently allege injury,
so the court granted Purina’s motion to dismiss with leave to amend.  

Kalmbach alleged that deceived consumers asked why Kalmbach
has not also produced a feed that defends against avian influenza. And it
argued that direct competition plus customer inquiries satisfied the zone of
interest test. The court disagreed. There was no allegation of reputational
harm in the operative complaint, so Kalmbach had to allege injury to its sales.
Allegations that “[c]ustomers have…been misled by Purina’s false claims – to
Kalmbach’s direct detriment” were conclusory. “Put differently, Kalmbach must
plead that Purina’s false claims actually hurt it, rather than simply confused
customers. Kalmbach does not allege that these confused customers would
otherwise have purchased Kalmbach’s feed—Kalmbach just presumes injury.”

Now do trademark infringement!

from Blogger https://tushnet.blogspot.com/2026/04/lack-of-harm-allegations-beyond-direct.html

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Commemorating 50 Years of the Copyright Act, part 3

Posted on April 4, 2026 by rtushnet

STLR Panel 2: Litigating Fair Use in Copyright

Zahr Said: Substantial similarity is confused. Sedlik is a
good example. Laudable for concurrences to recognize need for reform in this
crummy, confusing test, but that’s not reflected in the case itself.

First, because the court’s diagnosis of what went wrong is
mistaken. Second, the case didn’t go wrong: it was correctly decided. Third,
this is a really unusual case, not a run of the mill © case.

Court confused copying and substantial similarity. It made a
number of errors along those lines, ignoring intermediate copying—“it’s the
photo tattooed on an arm.” P’s counsel encouraged the conflation of the photo
and tattoo, even though Ds only conceded that the reference photo Kat
von D used was 100% identical to the Sedlik photo. This matters b/c it’s calling
for reforms, and the court said it was representative of a too defendant-favorable
standard, and that’s wrong. If you treat the unusual as the common, we’ll be mired
in further doctrinal mud.

Court thinks the outcome is wrong for the right reasons. But
it was right! (I agree and filed an amicus focused on this.)

The timing was also weird—Warhol came down in the middle of
it and the court had to revise its analysis. What to do: don’t build reforms on
a landfill! Change the language; stop relying on Nimmer’s treatise and use
Goldstein on infringement instead—precise, clear, elegant. Clearer thinking.

(or?) Dispense with the test! That’s what the concurrences
were thinking about doing anyway.

Daniel Goldstein: Represented blind scholars & National
Federation of the Blind in HathiTrust. Kudos to Peter Jaszi. Early commercial
ebooks were inaccessible; not interested in the market. University of Michigan,
by contrast, considered accessibility key to the digitization of their library,
even before Google got the message. Librarians are the best. Intervened as a
defendant in the litigation, and university didn’t oppose even though he’d sued
universities for ADA violations in the past; publishers didn’t oppose, probably
because they didn’t want to lose the first motion in the case.

The romance of the case was important; lots of excitement
about blind researchers being able to access works for the first time. And the fair
use argument was strong: dicta in Sony about accessible books for the
blind being fair use; Chafee amendment; etc.

The publishers wanted to impound the entire library; the National
Library Service can only generate about 2000 accessible books/year but publishers
never suggested just giving it a copy. ADA was also relevant as a clear & comprehensive
national mandate for accessibility/against discrimination against people with
disabilities—universities have to offer the same experience when feasible and this
was a way for schools in HathiTrust to make the research program available to blind/print
disabled students. Why didn’t the publishers ask for the digitization program
to pause during settlement discussions? Not sure—seems like a bad call. Their
arguments consisted of saying that the Chafee Amendment/Sony dicta was
only about making a single book for a single blind person accessible and that
universities weren’t authorized to make accessible copies.

Corynne McSherry: Public Resource v. ASTM: Teeny nonprofit
that makes government information available online in an accessible way. Conflict
with ASTM over building standards. National Archive has a copy of every
standard incorporated by reference in the Federal Register; or you might find a
copy in the library; or you might buy a copy. Public Resource decided to change
that. Eventually won on fair use; thinks this should have been decided on
copyrightability. The law that governs us cannot be copyrightable. Fair use is
more complicated.

Also, all the creative work in standards is done by
volunteers who want to create good standards for their industries; the work
done by the profit-seeking entities is not creative. © is not needed.

Fair use is bearing too much weight. Rights holders think
fair use is too big, but the expansion of copyright is what creates the need for
fair use (as Jessica Litman wrote). But it shouldn’t have to bear so much
weight. 102 should have prevented copyrightability of standards enacted into
law. We should also have digital first sale, but we had to use—and lose—on fair
use instead.

Samuelson: very interested in fact issue v. legal issue in
fair use cases. Court said the overall fair use inquiry was mostly law, but
what is it that can be found as a fact? Although fair use isn’t tried to juries
very often, and Sedlik is an outlier, as is GvO, that is something that not
many practitioners have focused on.

Goldstein: in HathiTrust, there was good evidence that
publishers had no interest in creating a market for the blind/print disabled,
and they donated books to the National Library when they did. That was the key factual
part from his POV; the rest was law and policy.

Sprigman: Restatement of © picks up on this—the parties’
interests are relevant. Emphasized in SCt Public Resource case—they resolve it
on protectability; some affected parties will be willing to roll the dice on
fair use. The less bold among us would have to think twice before using the law
that belongs to all. Fair use isn’t just framed as a defense, it’s
case-specific.  Maybe the Court has
signaled to lower courts that they should be relying on copyrightability.

McSherry: UpCodes cases—ASTM keeps pushing the idea that
commercial uses are fundamentally different. They’ve mostly lost in dct, but
not entirely. It shouldn’t matter: it’s the law! Make the law more available!

Said: it’s troubling to give the jury an idea/expression
instruction unless they have some understanding of the caselaw—they’ll
interpret it according to lay understandings. That’s led her to worry about
transformativeness. Sometimes it’s a factual question, but Kelly v. Arriba Soft
is not the kind of case where a jury would have been able to figure that out.

Fisher: 107 makes explicit that the four factor list is
nonexhaustive. Puzzling how few cases press a fifth factor. E.g., shouldn’t it
matter for social justice that we provide access to the blind? We’ve known
since Rousseau at least that the rule of law requires accessibility. We don’t
need to frame that in constitutional terms. [I teach that courts find a way to
stuff considerations like this into the four.]

Said: why isn’t that public benefit?

Fisher: that’s controversial as an extension of factor 1.
Breyer is willing to do it in GvO, but Sotomayor is not in Warhol. It would be
a way to address ambiguity if we had a more sensible allocation of what you were
trying to show. [I’m not sure that would help with ambiguity. It’s not the
numbering that’s the problem.]

McSherry: we’re always framing it one way or another,
including “consider four factors in light of the public interest in …” She
doesn’t like good faith as a fifth factor.

Goldstein: could put all his considerations in factor one
b/c they were about the accessibility purposes of the use; not transformative,
but still a fair use.

Said: Trevor Reed, Fair
Use as Cultural Appropriation—interesting argument about factor two,
considering whether the work was being appropriated from an indigenous culture—judges
are sociologically conservative (but maybe can be invited).

STLR Panel 3: The Role of Fair Use in Copyright

Trevor D. Lohrey: Should we have factors?

Christopher Sprigman: predictability is an issue. Leg
history frames fair use as an equitable rule of reason. Court is supposed to be
doing something synthetic, not considering factors like in a “test.” A platform
for thinking about the individual case with attention to ©’s progress-promoting
purpose. Predictability is often a virtue, but not always—like patience. I don’t
think we should be looking for a rule.

Laura Heymann: doesn’t fault judges for going through
factors in an atomized way. The synthesis is challenging. It’s really about
giving more weight to the “fair” in fair use. But judges don’t want to be
unmoored.

Peter Henderson: we have examples of conflicting holdings in
what looks like the same case. We don’t want to have bright lines.

Heymann: consider folk knowledge that develops around areas
of law. “You can copy 300 words or less.” That suggests that people want those
kinds of sub-rules.

Henderson: you can also see a desire for that in AI training—don’t
output more than 300 words w/o a license, etc.

Barton Beebe: Appellate reversal rate for fair use cases is
about 1/3, which is almost exactly the same as for other civil litigation. The
dissent rate is 1 in 10, almost exactly the same as for other civil litigation.
The hard cases are hard, which is why they’re being litigated—that’s why there’s
unpredictability in the individual litigated case; fair use is not that
special.

Heymann: though there also effects on nonligitation
decisions.

Lohrey: change over time?

Sprigman: The use of the “purloined” manuscript in Nation: a
journalist would think that’s how the system works, while a lawyer thinks it’s
bad; a lawyer thinks it’s good to keep secrets for your clients while a layperson
might object. O’Connor failed to see outside of her bubble. Leval and others
helped erode the idea of “good faith.” Fair use is about market competition now.
Restatement focuses on how the factors can aid in assessing whether the
defendant is undermining fair competition. That’s something that takes time and
has slowly matured.

Heymann: shortcut for judges can be “is this tech analogous
to tech we’ve encountered in the past?”

Sprigman: what Congress meant to do was to take a snapshot
of judicial creativity in fair use, but in a way that didn’t freeze it and
rather spurred that creativity. In some areas of the Act Congress said very distinctly
what it wanted and in others it approved continued judicial innovation—to keep
development going. So when people complain we’ve gotten away from the purpose
of fair use, I want to ask: what did you think that purpose was?

Lohrey: is fair use now too market-focused and about
battling economists?

Sprigman: your answers depend on your priors. He thinks it’s
a good development b/c he came from antitrust where those issues are asked
every day and there are tools. If the bete noire of © is substitution, he thinks
that the question of substitution can be answered much more accurately than a
general fairness inquiry.

Heymann: that devolves into fights over market definition,
which seems pretty hard. Does milk compete with Coke? [Sprigman says it’s surprisingly
difficult to answer that question—which to me doesn’t make the point he thinks
it does. I’m not sure that you can solve the difficulties by switching the
terms of debate—you just get different difficulties that you might only notice after
a bunch of cases.]

Sprigman: hypotheticals can help—it’s theoretically
tractable to ask whether the market for one work affects the market for
another. In fairness, we have to figure out whose interests count and for how
much.

Henderson: you still have to choose your models, components
of your models—it constrains degrees of freedom but not infinitely. In the
latest evolution of market dilution theory, some of those models aren’t really
couched in anything particularly data-grounded. [E.g., the Court’s claims about
derivative markets in Goldsmith.] We will often not have data,
especially about potential future market harms.

Beebe: one hypothesis—when a court finds fair use it will
find that it’s a question of law, and no fair use will be a question of fact.

Heymann: you see some cases saying that there’s no market
because the corporation could have exploited it but didn’t and that means there
must be none, whereas cases like Monge say that the © owner might change her
mind. [I think these can be made more coherent by thinking about the idea of
corporate rationality versus individual caprice. But I admit that this doesn’t
cover cases like the Seinfeld Aptitude Test case.]

Beebe: don’t ask “is this conduct fair use”; instead ask “should
this conduct be fair use?” There is no “is” in fair use in cases of this
nature. It’s all “should.” There’s no preexisting rule that we apply to the
facts.

Sprigman: many opinions leave lots unresolved. AI cases: One
of the Cal. cases finds fair use might give the rule “don’t use pirated
datasets”? The other Cal case says: “this is terrible—this shouldn’t be fair
use but it is, b/c Ps are so inept. I know in my bones that market dilution harm
is happening.” But competition for an industry—w/a class of human authored
works—is not something we have experience with. As a matter of © law I think
the answer is that © shouldn’t recognize that as a theory of harm, but we can
think about how to address it as a different kind of harm—labor law, tax law. ©
is a poor vessel for that.

Beebe: A human supremacist view: more and more stuff is not
the goal. The processes of creativity are important to human flourishing, not
the consumption of stuff. The solidarity of sharing it with others. Humans over
machines and corporations! Fair use should be resisting both, not just
machines.

Ochoa: if fair use is a “should,” are we getting things
systematically wrong?

Sprigman: thinks general fairness concerns interesting but
not central; fair use law holds up pretty well. Mistakes always exist and don’t
seem directional or pernicious.

Beebe: Clarification: Lots of fair use questions aren’t that
hard. 80% of the time fair use is an “is.” District judges don’t have time for
a lot of “should.” We need is or it will be chaos. But for LLMs/AI training,
there is no “is.” The hard questions are at the edges.

Sunder: don’t romanticize what our © has wrought—women as
naked models/objectified subjects, not creators. Hollywood gives us sequel
after sequel, movies based on commercial products like Lego and Labubu. The
cheerleading uniform! The human creator supposedly fostered by this law
deserves a closer look. Possibility of hybrid innovation/cyborg creativity—good
with human flourishing, not supremacy.

Beebe: fair! Romanticism: thinks of American romanticism of mid-19th
century, very folk-oriented, not the heroic muscular unusual author. But fair
to point out that lots of people were not enjoying the mid 19th
century!

Sprigman: Readers should be important in our theories—the people
shaped by creativity as well.

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Commemorating 50 Years of the Copyright Act, part 2

Posted on April 3, 2026 by rtushnet

The 1976 Copyright Act: Mostly Evolutionary, Not
Revolutionary Tyler Ochoa

1790 Act adopted the Statute of Anne—not radical even though
it was the first for the US. Similar here—major changes, but not radical.
Expanded subject matter; protection on creation/fixation instead of publication
and preemption of state law; automatic protection without preconditions (by
amendment), reduced formalities, codified idea/expression.

But 1909 Act covered “all the writings of an author.” “Original
works of authorship” aren’t that different. Likewise, lawyers didn’t
necessarily take common-law copyright as seriously as federal copyright, but
there was common-law copyright before the Act preempted it for fixed works. Moving
the federal protection back to the date of fixation isn’t a huge change.

Formalities: some change.

Codifying idea/expression: It’s a good thing that we wrote
it down because of the textualist turn, but it was an existing principle. Not a
radical break.

Fair use: same thing.

Exclusive rights: again, evolutionary.

WFH: a reasonably big change in defining what can be WFH,
rejecting instance & expense test (which he thinks was a mistake by the
courts in the first place).

Duration/renewal: Motion pictures and musical works were
heavily renewed, and most other things weren’t. Life plus 50 isn’t just an
extension, it’s a fundamental change in measurement. And it’s a change that we
haven’t felt the full impact of yet b/c we’re only 50 years out. None of the ©
granted in 1978+ have yet entered the PD (w/exception of some unpublished works
by deceased authors).

Terminations: same idea as renewal term, but new opportunity
b/c of unitary term.

Compared to what happened since the 76 Act: rise of computer
programs, though the definition of literary works was written to allow them. BCIA:
elimination of formalities; elimination of registration requirement for foreign
works (subject to limited remedies). Architectural works; VARA; automatic
renewal for works 1964-1977—works no longer go into public domain for failure to
renew. NAFTA; TRIPS; Uruguay Round restoration—a radical change. Public
performance rights for sound recordings. Term extension; DMCA adding 512, 1201,
and 1202. Cumulatively this is a radical break with the past, but mostly after
1976. The 1976 act did change from incentives to publish towards natural right
of author, but that was a change in principle with fewer radical changes than
came later.

Moral Rights, 50 Years Later Xiyin Tang

Poised for a resurgence among concerns for human creators in
a world of AI slop. Entrepreneurs are using TM, even trade secret, to protect
rights far beyond VARA. Monty Python case is a classic example using TM—but the
cause of action was a stand-in for moral rights, by the court’s own admission.

VARA has had limited success—limiting to fine arts likely
fell well short of Berne requirements. Also US rights are waivable, though
nonassignable. Only 84 adjudications of VARA claims, 71.4% of which dismiss the
claims, often on procedural grounds. More concerning are cases that effectively
chip away at the scope altogether, further neutering it. First Circuit held
that VARA didn’t protect site-specific works of art at all—where the location
is integral to meaning—based on the public presentation exception. But this was
the type of art that formed the basis of the public justification for VARA in
the first place—Richard Serra’s Tilted Arc. SDNY denying injunctive relief in
Five Pointz; money is not a good remedy. And the 7th Circuit found
that site-specific art wasn’t just ineligible for VARA, but ineligible for ©
generally. But site-specific art is the exemplar of postmodern artistic practice.

Nonetheless, predicts that moral rights are posed for a
resurgence. AI has led to a new insistence on human creation. Private deals
w/AI: authors don’t just get a per-generation payment for summarizing their
work, but a link to purchase—attribution. Decision holding that Wu-Tang Clan’s
album was a trade secret—independent economic value comes from ability to
exploit exclusivity to create an experience that competitors can’t. Secret art
could therefore be trade secret art.

Terry Fisher: what about fan fiction and other
interventions?

A: Artists care about originals. Maybe expansion of moral-esque
rights could impinge on what people do w/a copy of the original, but the
Wu-Tang example is about works that exist in an edition of one, and that’s what
she’s concerned about.

Keynote Address: Authorship in the Shadow of the 1976 Act Paul
Goldstein

AI challenges: believes that transaction costs are the key
and that private or public deals can achieve them. But copyright dilution—competition
with AI-generated works—should not be actionable because the ideal is that
works should be priced as low as they can be without destroying incentives.

Points out that Jane Ginsburg showed that French copyright
was initially utilitarian/incentive concerned; moral interests became important
later. US: the author-protective provisions that Congress introduced in 1976
are important—a shift in the philosophical base of ©, according to Barbara
Ringer, to make the primary beneficiaries of © individual authors.

What do authors want? To be recognized as the authors of
their works. Consider Creative Commons, which found that attribution was so
commonly desired that attribution became the default. Audiences also want this,
which is why they go to concerts instead of watching from the comfort of home. They
also want community—shared passion—but the main desire is authenticity, the knowledge
that the tiny well-lit figure on the stage is their favorite performer, not a hologram.
Authenticity is the consumer-side counterpart of the desire for attribution.
Author & audiences meet and form a bond. But aura can be attached to
multiple copies of identical objects—ubiquitous reproduction hasn’t led to the
withering of aura, but strengthened our desire for it and created new
strategies to produce aura.

But TM may overprotect attribution at the expense of popular
culture—missing limited term and public interest exceptions. It’s not enough to
exclude protection for generic elements; its exceptions for parody and the like
aren’t vigorous enough. Presumably this was a concern in Dastar.

So now we need attribution in ©. 106A (VARA) should be
replaced w/an exclusive right for all authors to claim authorship and object to
distortion/mutilation/modification of the work, taken from Berne. Generative AI:
a user who asks for a story in the style of Raymond Chandler justifies an
attribution right. [Hunh? Doesn’t the user, by definition, know?] Style is not
copyrightable, but we could draw the line more generously if there was only an
attribution right, not a control right; the limited term would avoid the parade
of horrors and parody would be allowed.

Lemley: there are lots of circumstances in which creativity
requires that you not keep integrity. Tang’s answer was focused on individual
copies/single copy works. But your moral right is broader. What do you do about
fan fiction?

A: look to what other countries do. They valorize commentary
and individual creation as much as the US does. French law has a robust exception
for parody and pastiche.

RT: I don’t think that would work. Litigation culture is a
big deal.

A: the motion picture studios are why we don’t have a moral
right in this country. France, Germany, Canada etc. have moral rights and
moviemaking—but the answer was the litigation culture in the US. Would love to
see some empirical work on that. On the attribution right, would love to see a
full-fledged empirical study of asking © litigants why they sued; integrity
touches on vital interests. Turns in part on what the remedies are. One could
fiddle with remedies like injunctive relief rather than monetary relief, though
then you lose the contingent fee bar.

Barton Beebe: Scalia dismissed tracing the origin of Nile
and all its tributaries—what if we recognized moral rights of author and all of
those who preceded her and put a burden on her to state her sources? Religious
traditions might support this.

Sprigman: other attribution systems exist, but Earth is for
the living: part of art’s responsibility is to free itself from the past
despite its influence. You are taking a side on what art should do; our
perspective is from writers, but may not serve readers very well.

Panel 1: The Copyright Act and Technological Change

R. Anthony Reese: legislative response to digital
technologies was the key in the midpoint period; last couple of decades saw
less of that other than Music Modernization Act. Focusing on civil, not criminal,
amendments. In 1980 we added a definition of computer program; not a big
change. We’ve only added one exclusive tech based right—digital audio public
performance for sound recordings. Not a response to tech but to political
failure of the 1976 Act.

Some expansions to limitations—110 for distance education
(not very helpful in pandemic); 111 Family Movie Act allowance for skipping
naughty scenes hasn’t created a flourishing business model. But 114’s limits on
nonsubscription broadcast transmission enabled HD over the air radio. Also bars
on record rental, etc.

We’ve done a bunch of compulsory licensing, mostly tinkering
to provisions already there like adding low-power TV to the cable ones already
there. DAT licensing; some compulsory license for the digital sound recording public
performance right; satellite retransmission licenses; modernization of
mechanical licenses to include a blanket license for streaming & download. Copyright
Office was not a fan of compulsory licenses but Congress is enamored of them in
specific circumstances.

Remedies: 512 limits have been incredibly important. 408
preregistration, maybe has some effect (about 700 works/year); 504(c) allows
willfulness to be presumed if you provide false domain name contact info in
connection with © infringement.

Sui generis provisions: AHRA (desuetude/written so narrowly
as to exclude general purpose computers just as they were about to become the
way music was enjoyed), 1201/1202.

Amendments motivated as much by
political/legal/market/social developments as by the new technologies
themselves. Record Rental Act passed not b/c of CDs but because of shops that
rented out tapes and encouraged copying; the worry was that it would get worse
w/CDs but the business model already existed. Similarly, low-power TV was added
not b/c it was new but b/c the FCC hadn’t previously authorized its deployment.

Jessica Litman: substantive approach is shaped by drafting
method—to invite many of the stakeholders who know they’re interested to work
out their differences and embody their compromises in statutory language.
Overreliance on compulsory license is b/c it’s easier to reach a compromise.
Even in the 1909 Act, courts had devised separate rules for different kinds of
works; they wanted to incorporate exclusive rights shaped to works, but then
that turned out to work really badly when new tech like movies came around. So
1976 Act tried for one size fits all rights, but then everyone needed bespoke
exceptions to continue doing the legitimate things they’d done every day. They
tried to make exceptions as narrow as possible so they couldn’t be used for
anything else (e.g., jukebox exceptions). Insiders make the rules that they and
© outsiders will have to follow—unfriendly to outsiders.

How does this method work for insiders? Their efforts make a
lot of assumptions that may not pan out. DMCA is a good example. Implicitly
incorporate promises about how insiders will treat one another. But none of the
promises are legally or morally enforceable, so many get broken. Promises of
publishers & distributors to creators turned out to be particularly
vulnerable to breakage. Also: If you exclude outsiders from negotiations for as
long as you can, you’ll miss important issues on the horizon that aren’t
central to anyone sitting around the table.

Result: insiders came out believing that they’d
significantly fortified themselves against scary new technologies, and as those
have failed, we’ve seen © insiders adopting more combative negotiating postures
& developing deep resentment about the interests they believe are eating
more of the pie than they should be permitted to eat. Legacy © owners are earning
more money than they ever have. But they are nonetheless looking at © with grievance
and resentment b/c technical services delivering material are also earning a
ton of money—instead of saying “big pie, wow, awesome!” they want that whole
pie. That’s led some to believe they’re entitled to hoard rights, money,
control, and market share by any means they can manage.

When you call © insiders together to write a statute to fix
things, you get the MMA. Has some good things and some bad things buried in the
middle—but most of this hoarding is currently coming at the expense of
creators. They’re earning less, unlike the legacy industries. When we tell them
to compromise on AI, this is also what we may expect.

Pam Samuelson: A happy story on the scope of software
copyrights. Wasn’t initially clear whether machine executable code was
copyrightable. Initial attacks on copyrightability had to be overcome, but scope
was unclear—Paul Goldstein wrote early article expressing concerns about risks
of monopolizing functionality. Suggested borrowing patent misuse doctrine.

Whelan v. Jaslow then gave super-broad © protection—early expectations
about thin © to avoid protecting functionality were totally ignored. All of the
“structure sequence and organization” was protectable if there was a modicum of
creativity; everything should be protectable unless there was only one way to
achieve it.

6 years of effort followed (Samuelson in the lead!) to get
the results right. David Nimmer also wrote an article suggesting that more
filtration was required. 2d Circuit adopted this in Altai requiring abstraction,
filtration, and comparison. Filtering out unprotectable elements was a really
significant advance and got us back to a relatively thin scope. Compatibility
is unprotectable.

Fed. Cir. agreed w/dct that we should have © hearing like
Markman hearing to do claim construction—another important development. So © turns
out to accommodate software well, after struggle.

Mark Lemley: Imagine a collection of model weights that
gives a possibility, but not a certainty, of generating an infringing copy: is
that a copy? The statute’s answer is incoherent. The right to reproduce the
work in copies; copies are copies when they’re fixed; fixed means the copyright
owner authorized it. That doesn’t make any sense so nobody pays any attention.
We use the same definitions for protectability and infringement, causing the
problem. But we do use the part that says fixation means it has to be
perceived, reproduced, or otherwise communicated.

The parties in AI cases take some extreme positions—models don’t
include content; output is just a collage of intputs—neither of these things are
true. Can extract Harry Potter verbatim w/a four word prompt from Llama 3.1. Extraction
is possible for some works/parts and some models but not others. New work shows
you can expand extraction if you go beyond verbatim extraction.  But again it depends.

Jane Ginsburg shows that you can retrain models to force them
to regurgitate a work, and that makes it more likely that they’ll regurgitate
other works, suggesting other works are latent.

Is a work latent in a model a tangible copy? It’s
complicated. Models don’t store works directly, but encode weights reflecting relationships
b/t words or syllables. You can make a copy of a picture using ones and zeros
even though the ones and zeros aren’t the picture—deterministically, these are
copies. But Microsoft Word doesn’t encode War and Peace even though all the
necessary parts are in Word waiting to be put in the right order.

Information theory: can the work be extracted with less than
the same information you already have? Compression algorithms: sometimes we can
store less than all the info & use it to generate a work. Lossless compression
is clearly a copy; lossy compression probably creates non-identical copies that
are nonetheless still copies. Compression algos are still deterministic, though—same
imperfect copy every time.

AI extraction is rarely deterministic. We can get a result
10% of the time; are the other 90% also stored in the model? That means more
works are in the model than there are atoms in the universe. © hasn’t dealt much
with nondeterministic copies. Kelly v. Chicago Park District comes closest—a garden
is not ©able b/c it’s not deterministically fixed. Compare to video game output
cases: you infringe by making a map used w/existing video game to cause it to
be played in a new map even though the images aren’t contained in the map.

Kelly is probably wrong: most people would say a garden
could be sufficiently replicable to be fixed. Game cases: predictable and
replicable—the same map and characters would show up. Though now there are
procedurally generated games where the map changes on the fly, but that still
involves output. Not all the possible maps exist already in the game.

Challenge: sometimes it’s easy to get out—high degree of predictability
and replicability. Sometimes it’s not really possible. Sometimes it requires a
lot of work but can be done.

We should say that if it’s easy to get a work out, it’s
probably worth saying it’s in the model. But if you have to know what you’re
looking for, and keep trying until you get it, then we probably should not call
it a copy.

Why this matters: if a copy is in the model, then making a
copy of the model infringes the copyright in the underlying work. Meta is distributing
the model weights to lots of people.

Maybe those models are fair use—probably be the right
result, but harder to reach, especially after Warhol. Fact of
intermediate copying might be important (even though he doesn’t think it should
be).

In response to Tony Reese: maybe we could say they’re unfixed
but derivative works which don’t require fixation. Reese” points out that the
RAM copy cases about duration of presence in computer—not a great way to do it
but we did do it. Also compare Google Books: how much of a book you can
assemble by doing searches was relevant to the fair use analysis.

A: maybe that functional approach is practically the best
way to go. If I can prove that it’s in there somewhere but it costs $10,000s to
do that each time, that’s not a real way to get a “copy.” It is also really
hard to resolve such questions as a matter of class actions—courts would like
to have an answer, and an answer depending on a work by work, model by model
analysis is not going to be desirable to them. Even if it’s the truth.

Tang: incidental copies in the course of streaming music,
for example, raise similar questions.

Samuelson: a new round of cases about using YouTube
performances—allegations of 1201 violations to say that scraping the video to
use that data for training. Even if the stream itself wasn’t a copy, if you can
make a copy from it, what to do? Should there be a meaningful distinction b/t
access controls and copy controls? Reese
said yes! (And he was right.)

Gellis: is vibe-coded software copyrightable?

Lemley: depends on how vibey you were! Maybe a selection and
arrangement ©, though for code that will be less broad.

Samuelson: divinely authored works cases are also relevant.

RT: For Samuelson: courts often seem to divide over whether
there are 2 ways to have a thin ©: the first way is that anyone who does the
same thing can make a nearly identical work, but they can’t engage in
reproduction; but the second and more controversial one is that anyone can copy
chunks of the work as long as they don’t copy nearly the whole thing: Sedlik concurrences
and Thomas’s dissent in GvO. Do you think that these are both examples of thin ©?

Samuelson: we’re close to a thin © but not as thin as Goldstein
suggested (which was an exact copying standard). Dennis Karjala suggested a
rule of exact copying being needed for infringement; emulating functionality is
really important for freedom. Lotus v. Borland—that’s actually a case allowing
copying the interface (that is, a chunk) as a method of operation. You still
have to write/code the functionality independently. Fed Cir ©ability ruling in GvO
was a real step backwards—wrong as a matter of law.

Lemley: Thin ©: if the test is virtual identity, one way to
test is for really close identity (99% or close), but © in general protects
protectable expression. One approach would be to say that identical copying of
even a small fragment is infringing under this virtual identity standard; the
other approach would require copying the whole work verbatim or close to
verbatim. That will matter a lot where most of what I copied was not
protectable.

Reese: part of the problem is that most courts dealing with
this look to Feist, but Feist isn’t about either of those things. In these kinds
of cases, not very much of what you put into your work is ©able, b/c you’re
using facts/all you get is selection, coordination, and arrangement.
Infringement means parsing carefully which thin part of your work is protected
by ©, but that doesn’t say anything about whether partial copying infringes a
thin ©. There’s no original understanding to look back to!

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Commemorating 50 Years of the 1976 Copyright Act, Stanford Law School

Posted on April 3, 2026 by rtushnet

The Copyright Act at 50: Evolution and Impact

Shira Perlmutter

Copyright Act took a long time, with input from lots of
interest groups and attention to detail—hundreds of contending and overlapping
interests were involved. Hard to imagine this process today. Desire to avoid
need for constant amendment/future-proofing. But did they do enough? Didn’t
create a general right to exploit the work publicly, which would have obviated
the need for continued parsing the scope of each right, like public
performance.

Some changes over time, most prominently the DMCA. More than
codifying common law principles; tech-specific obligations. Less durable as
business models evolved; might have unexpected consequences in Cox.
[Hunh? Cox is not a DMCA case.] 1201: some provisions are highly detailed and
technical, and outmoded. But the rulemaking process is flexible and fair-use
based and has produced new exceptions. Allows © owners to rely more securely on
TPMs, enabling the celestial jukebox. Fair use has also played a critical role
as a flexible judicial tool. The bones are solid, even with AI.

Q: registration requirement is tough on creators. Can’t get
protection [statutory damages] before infringement.

A: You can register—the issue is remedies.

Chris Sprigman: why do you think that it was ill-considered
to add to fair use that unpublished status isn’t dispositive?

A: b/c courts had already walked back their overreading of
unpublished status. Worried about accretion of more specific language in a
statute that’s supposed to deal with rapid change. [Seems like a levels of
generality issue; unpublished seems general enough to be robust.]

Sprigman: it’s always good when Congress talks back to the
Supreme Court.

Laura Heymann: say more about moral rights?

A: A patchwork in the US; would love to see Dastar
reversed and some additional protections provided.

Q: how to design AI training licensing framework?

A: Doesn’t have proposal but thinks it would be possible;
easier in areas w/high value works. Small low value works w/authors who aren’t
organized are harder. At some point there may be a statutory solution building
on experience in the private sector with making a licensing system work.

Tyler Ochoa: Cox v. Sony?

A: Personal views! Shocked at how short the decision was and
how little thought there seemed to be about the implications. Threw out decades
of © law quickly w/o analysis. Repercussions well beyond the facts. Congress
clearly intended to continue the separate treatment of © contributory liability
from patent and aiding and abetting liability. [Don’t you know that only
Supreme Court cases count? My line on this: “This is easy and you are all
stupid” is a poor way to think in drafting most Supreme Court decisions.]

Do We Need a New One? William Fisher

Statute has grown by accretion, not revision, and only when
there can be agreement by major stakeholders. Hypothesis: useful to start
fresh. Draft from Oren Bracha, William Fisher, Ruth Okediji, and Talha Syed. A
couple of points: Limit scope of adaptation right. Reproduction
right/substantial similarity is almost overlapping with it, but matters when
there’s no reproduction. Independent of exclusive rights of © owner, wants to have
rights attached to, at least initially, authors rather than owners—right to
attribution, generously defined, and to integrity, narrowly defined. Shorter
duration. Compulsory licenses not just for music covers but for educational
uses.

Sprigman: Why is remuneration for authors the first
principle? The Court has said that’s a means to an end. Why not “vibrant
creative environment”?

A: order isn’t meant to connote hierarchy, but worth
thinking about. Utilitarianism isn’t the only goal; fair treatment of artists
is also a goal.

Q: like the use of lessons from laws around the world. Was
that a reason to delete statutory damages, which aren’t available in many places
around the world?

A: there are well-known specific defects in the US system of
statutory damages. The substantial range for willful infringement per work
becomes bizarre & punitive. There are workable models that would function more
like liquidated damages in contracts. The functions of augmented damages,
including incentives to bring suit, could be adequately performed by enhanced
damages for abusive positions (doubling) and attorneys’ fees. Fees should be more
likely for small creators and less likely for deep pocketed plaintiffs.

About Face: Deepfakes and the Misuse of Copyright Madhavi
Sunder

Denmark is granting © in a person’s face to combat
deepfakes. Incentives/progress/access aren’t just buzzwords but the raison d’etre
of our law. But roughly a decade ago, things began changing, not just b/c of
AI: using © as a tool to redress noneconomic social harm: safety, protection,
dignity, reputation.

Denmark goes beyond using © to serve non © ends/do an end
run around 230, as past proposals in the US have done (thanks
for the shout-out) to expanding the scope of © beyond what it should cover.

Denmark’s amendment covers life of the author+50 years and
protects all natural persons against digitally generated images of personal
characteristics. Limitations for caricature, satire, parody, criticism of
power, social criticism, etc. But this would cover foreign nationals as well. Includes
a takedown right. Drafters suggest that the new right is not really copyright
but personality right, and the law should be changed to be officially called
the “Copyright, etc. Act.” [It’s ©, Jim, but not as we know it!] Attribution
and integrity for authors is not the goal; broad dignity harms to individuals,
society, and democracy.

EU is considering whether to adopt a similar proposal. US
may be heading in a similar direction—Jennifer Rothman identifies convergence
between ROP and ©. Digital replica report by Copyright Office suggests new laws
are needed.

Faces and voices aren’t authored in the way © has
traditionally required; we allow soundalikes. However, some people (Balganesh,
Gilden) suggest that © has always had concerns with dignity. Likewise, the
Court allowed photographers to own © in depictions of faces. This tension
raises charges of unfairness, as in Moore v. University of California. Descendants
of enslaved people can’t claim ownership of daguerrotypes of their ancestors;
Prince, who decried ownership of his name and music, becomes the subject of a
photographer’s © claim at the Supreme Court. Surveillance: your face belongs to
us. The issue about face is not whether property, but whose property.

IP and blackface: Jim Crow was a minstrel character—“love
and theft” of black dances and bodies—loved and despised, coveted and expropriated.
Elvis painstakingly listened to recordings of Black artists on repeat so he could
copy them, and Tennessee then called its voice ROP law the ELVIS Act—irony! Digital
replicas are the next frontier. Abba has created a concert featuring digital
replicas of their younger selves; they sang and danced in motion capture suits
with monitors and cameras everywhere. This show will last as long as people
will pay to see it.

Sunder’s about-face: She criticized the goal of efficiency
in © and argued for considering other interests like semiotic democracy. Is
this the same thing? No. © can’t be everything everywhere all at once.
Doctrinal coherence matters. Doctrinal collapse b/t © and privacy has
structural harms including threats to the rule of law. © is too consequential
and long-lasting and easy-to-get to be careless about; statutory damages and
notice and takedown are big deals.

© is about authors, whether you’re a high protectionist or
low protectionist. In an age where we’re all curated online, we should have a low
threshold for protection, but not create mutant copyrights far from the real thing.

Cathy Gellis: Implications for national treatment?

A: will think about it—interested in whether we’re
replicating it for ourselves.

Lemley: is the right alienable in Denmark? © as a regime is
usually about being able to sell rights.

A: all premised on consent.

Quasi-copyright and the Copyright Act, Rebecca Tushnet

My focus here is on 1201 and 1202. My argument is that their
evolution in the courts shows something about the workings of the legal system
and the incentives of both plaintiffs and judges.

As most of you know, 1201 prohibited circumvention of access
controls and trafficking in technology that circumvented rights controls or
access controls, with a variety of statutory exceptions that are essentially
too complicated to be used, and a provision for allowing additional temporary
exceptions after Copyright Office rulemaking, but only for the direct access control
circumvention provisions not for the trafficking provisions, so you have to
both have an exemption and somehow get the technical capacity to use the exemption
which is illegal for someone to give you.

Tony Reese wrote a great article explaining the benefit to
the copyright owner of characterizing a technological protection as an access
control rather than a rights control – no individual circumvention is allowed
in the absence of an exception– thus in every case, copyright owners plead that
a TPM is an access control, and courts have uniformly accepted this
characterization—so this supposed four part scheme of access and rights
controls, direct circumvention and trafficking, quickly became a two part
scheme involving only access controls. Rights controls immediately lapsed into
desuetude.

Because of how broad 1201’s access control provision was it
initially seemed to offer copyright owners broad new rights. This was
especially important for manufacturers of machines that happened to have
software in them—providing compatible products, for example, could be reframed
as violating access controls. However, in two prominent decisions courts—using interpretive
methodologies that would probably not be adopted today—interpreted 1201 to try
to prevent its use to control markets that aren’t really based on the value of
the copyrighted works; the major cases are perhaps tenuously based in the
statutory language but they probably do track what Congress thought it was
doing.

These two decisions, Chamberlain and Lexmark, dampened the
appetite among many non-copyright-reliant manufacturers to use 1201 to try to
control repair and resale. There’s a real case to be made that 1201 has importance
for phones and apps, but it’s no longer a big part of copyright litigation.

In addition, the rulemaking process proved so exhausting
that the Copyright Office decided to streamline it for existing exemptions. And
because the trafficking provisions only cover traffickers, not customers of
traffickers, people with exemptions use circumvention software they got from
elsewhere and we all just generally ignore the issue in the exemption process. I
would suggest that, at least for the time being, we’re no longer in a legal
innovation phase with 1201.

Meanwhile, 1202 litigation has exploded. 1202 covers knowing
removal of copyright management information that facilitates infringement or
provision of false CMI, and although there were always a few cases about it, it
has been discovered in the last decade—as causes of action sometimes are
because lawyers are innovative—and gained new prominence in cases like the AI training
cases. 1202 doesn’t require registration in order to get statutory damages and
so questions about what constitutes removal of CMI or the relevant intent are
actively being litigated. Pam Samuelson and her coauthors have written a good
article about the arguments, but I just want to point out that lawyers have
done exactly what they’re good at: pushing the boundaries of the law in order
to achieve interests for their clients even when the more obvious claim—like copyright
infringement—won’t work for copyright-specific reasons.

Given this increased use, it’s not surprising that we see countervailing
theories attempting to limit the growth of 1202 cases. One court even recently
dismissed a lawsuit brought under 1202(b)(1) against ChatGPT on Article III
standing grounds—under the TransUnion case, 1202 can’t constitutionally
authorize a private cause of action for internal CMI removal that goes no
further—plaintiffs didn’t allege any actual harm beyond the removal of CMI in
the training dataset, so they didn’t have standing to seek damages, and they
didn’t plausibly allege that a substantial amount of their creative expression
would appear in future results, so they didn’t have standing to seek injunctive
relief.

I have some broader thoughts about this incredibly abbreviated
account, based on Carol Rose’s classic article, Crystals and Mud in Property
Law: Fools and scoundrels are the bane of the law because they make it
unpalatable to follow the most natural understanding of a clear rule. Hard
edged rules written into law—like the prohibition on circumventing access
controls—predictably lead scoundrels to abuse their fellow citizens, as in Lexmark
and Chamberlain, and subjects fools to disproportionate liability, especially where
statutory damages are involved. Courts then understandably push back, inventing
equitable limits and turning a clear rule into something more muddy. But muddy
rules are expensive to navigate and create their own set of problems.

In Carol Rose’s story about real property law, legislatures eventually
intervene to create a new and different clear rule designed to solve the problems
created by existing fools and scoundrels under the previous regime. This works
for a while and then the infinite creativity of humans, both good and bad, produces
new fools and new scoundrels.

I think Rose’s story has key lessons for copyright. (1) Future
proofing is something of a myth. It’s worth trying, because immediate obsolescence
when a few facts about the market change is not good—I’m looking at you, vessel
boat hull and mask works protection and 512(b)—but the idea that you can set
and forget a law ignores the fact that lawyers and judges are human beings—at least
for now—and human beings are collectively really good at finding ambiguity or opportunities
for arbitrage.

(2) If we face a situation where we don’t trust that the
legislature will intervene, or can intervene productively, then things get a
lot harder. When that’s combined with a judicial approach to statutes that
focuses on the dictionary meaning of specific words rather than an appreciation
for the structure of the legislation and the context in which the legislature
was operating, scoundrels are likely to prosper and fools are likely to be
abandoned to their fates. I don’t have solutions but I am predicting a long roll
in the mud.

Lots of interesting comments; I think both the legislative
process (actual deliberation) and judicial concepts of the role (neither
entirely free to disregard the statute in favor of the common law/equity nor laser
focused on individual words in isolation from the structure and purpose of the
law as a whole) need change from where they are.

Tony Reese pointed out that the Copyright Office testified in the legislative history that many things were “clear” but didn’t need to be in the statute–should we revise to make those things explicit? I think the issue w/that is the fools/scoundrels problem–one reason you might not write out the exact wording is that you can’t foresee what will happen when clever lawyers get their hands on it directly and treat a principle as a rule. This is a classic content moderation problem! 

from Blogger https://tushnet.blogspot.com/2026/04/commemorating-50-years-of-1976.html

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court gives guidance on disclaimer placement, AI alterations in enforcement proceeding

Posted on April 3, 2026 by rtushnet

InSinkErator LLC v. Joneca Company LLC, 2025 WL 4631972, No.
8:24-cv-02600-JVS-ADS (C.D. Cal. Nov. 24, 2025)

Previous
discussion of this false advertising case. In a separate order, the court
deals with other compliance issues than those below. It rejects the claim that
the injunction requires Joneca-controlled search results to display the
disclaimer as part of the result. Consumers will only be able to buy the
product by clicking on the link and therefore will see the disclaimer as long
as the underlying result page complies with the injunction.   

InSinkErator moved to enforce the preliminary injunction and
the court granted the motion in part. The injunction barred “Joneca, its
officers, agents, servants, employees, and attorneys, and all other persons who
are in active concert or participation therewith and who have actual notice of
the injunction” from “[m]aking any false and deceptive horsepower claims
regarding Joneca-made garbage disposal products.” Joneca was further enjoined
from “[a]ssisting, permitting, or causing to be made by any third party any
false and deceptive horsepower claims … including on retailer or wholesaler
websites.” It was required to include the following disclaimer on all online
listings of its products: “Horsepower claimed on package does not indicate
motor output or motor power applied for processing.”

InSinkErator reviewed Joneca’s online product listings and
found that the disclaimer was sometimes included in a tab that customers had to
click into or scroll down to in order to obtain more product information. It
argued that this wasn’t good enough.

Civil contempt requires clear and convincing evidence, that
(1) the party violated a court order, (2) beyond substantial compliance, and
(3) not based on a good faith and reasonable interpretation of the order. Violation
of a court order is shown by the party’s “failure to take all reasonable steps
within the party’s power to comply.”

InSinkErator argued that some of Joneca’s disclaimers weren’t
“clear and conspicuous.” “Instead of appearing at the top of the page or in the
first image of the product, the disclaimer sometimes appears in an expandable
section containing product details near the bottom of the webpage.”

Joneca argued that the disclaimer was placed in the “first
permitted or technologically feasible location given each retailer’s specific
restrictions,” usually located next to an explanation of the product’s
horsepower.

The court indicated that the spirit of its order “was that
any reasonable consumer would come across the horsepower disclaimer before
making a purchase” because horsepower is “one of the top purchasing
considerations for garbage disposals.” “This is made evident by the inclusion
of horsepower in the product title of every online listing shown to the Court.”

The court then provides some guidance that might or might
not be generalizable:

For physical packages, the Court’s
Order required the disclaimer to be bordered in red and affixed to the front of
the package. It would thus be difficult for any consumer to purchase a physical
unit without seeing the disclaimer. Any online disclaimer should be similarly
conspicuous and immediately viewable just like on a sign or product package in
a physical store.

A reasonable consumer may not click
through all of the online product details before making a purchasing decision.
Thus, to be sufficiently conspicuous—analogous to the disclaimer on a physical
package—the online disclaimer must be immediately viewable to the consumer
without additional navigation on the product listing. This means that the
disclaimer must not be located only in a product description lower on the page
or in a separate tab, but rather at the first feasible location at the top of
the page. Where it is feasible, this should come in the form of a text entry in
the product highlights. Otherwise, it should be added to the first product
image immediately viewable to a consumer on the product listing page. Where the
disclaimer is included at the top of the listing page in the product
highlights, Joneca need not also include the disclaimer in the first product
image.

Some of Joneca’s online disclaimers are not immediately
viewable to consumers on a product’s landing page and thus Joneca hadn’t taken
all reasonable steps to bring these product listings into compliance. Joneca argued
that the various online product listing policies of its retailers prevented
compliance. “But nowhere in Joneca’s declaration does it claim to have
requested a variance from any retailer’s listed policy or otherwise sought an
accommodation in light of this Court’s Order…. The potential for accommodation
is underscored by InSinkErator’s submission of images of product listings from
Home Depot’s website with text in the first image, despite the plain language
of its policy disallowing such text.”

Thus, “Joneca must work with its retailers to modify the
location of the disclaimer to conform to the above requirements in order to
come into compliance with the preliminary injunction.” However, the court
declined to find Joneca in civil contempt because it applied its initial
disclaimer pursuant to each retailer’s online listing policy in good faith.

A footnote worried about AI page changes [yes, now every
compliance person should have the same worries!]: “[T]o the extent a listing on
Amazon or Walmart comes out of compliance, such as because of an AI-generated
text box, Joneca should work with the retailer to include the disclaimer per
the criteria listed.”

from Blogger https://tushnet.blogspot.com/2026/04/court-gives-guidance-on-disclaimer.html

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former TM owner states valid damages claim against licensee of current TM owner that drove it out of business via infringement

Posted on April 3, 2026 by rtushnet

Wagner Zip-Change, Inc. v. Tubelitedenco, No. 23 C 05077, 2026
WL 673148 (N.D. Ill. Mar. 10, 2026)

Wild facts! Wagner was until 2021 in the business of selling sign
lettering products, including its trademarked Jewelite Trim (also known as
“trim cap”), “a plastic molding that adds dimension to cut-out sign letters.” It
obtained an exclusive license to use the mark in 1987. It contracted with a
third party, Vidon, for manufacture, and sold its products to distributors,
which then sold them to sign companies and other end users. Defendants were
among the largest distributors.

Vidon allegedly began manufacturing a knock-off version of
Jewelite Trim. Tubelite then allegedly entered into a distribution agreement
with Vidon. Tubelite allegedly (1) made false and misleading statements that
Vidon’s knock-off trim cap was “the original trim cap,” that Vidon was just a
“different name” for Jewelite, and that the product was “the exact same”; (2)
used the Jewelite mark in connection with the sale and promotion of the Vidon
trim product; and (3) filled at least several hundred customer orders for
“Jewelite,” “Wagner Jewelite,” and “Wagner” trim cap with the Vidon product. Tubelite’s
conduct allegedly “contributed greatly” to driving Wagner out of business,
resulting in at least $4.5 million in lost sales. Wagner ultimately gave up its
rights in the Jewelite mark, which was then assigned to Vidon.

Wagner sued Tubelite for violations of the Lanham Act and
state law claims for unfair competition and tortious interference with
prospective economic advantage.

Under these circumstances, the court rejected Tubelite’s
argument that, though its use of the mark was confusing, Wagner couldn’t sue because
(1) it’s not the current user of the mark and (2) Vidon is the mark’s current
owner.

Wagner was suing for damages, not an injunction. Violation
of its past rights gave it a cause of action. Cases requiring use for trademark
rights “simply stand for the proposition that a plaintiff claiming infringement
must show that it had rights in the mark when the alleged infringement took
place.” It was enough that “Wagner had enforceable rights in the mark when
Tubelite used it to sell Vidon’s products.”

For statutory standing, a plaintiff must (1) “allege an
injury to a commercial interest in reputation or sales” that (2) “flow[s]
directly from” the defendant’s violation of the statute. “Wagner easily
satisfies that test, alleging (1) a commercial injury (loss of millions in
sales) that (2) directly resulted from Tubelite’s misleading use of the
Jewelite mark.” Nothing in Lexmark required a plaintiff to show
current rights in the mark or likelihood of a future injury. “Nor would that
requirement make much sense. Consider the consequences: defendants who
appropriate another party’s mark so successfully as to actually drive that
party out of business—as Tubelite is alleged to have done here—would
effectively be immune from suit under the Lanham Act. That would be an
exceedingly odd result.” Indeed, Lexmark itself commented that “a
competitor who is forced out of business by a defendant’s false advertising
generally will be able to sue for its losses.”

Tubelite also unsuccessfully argued that Wagner’s false
association claim fails because Vidon, as the Jewelite mark’s current owner of
record, has an incontestable right to use the mark. Incontestability had
nothing to do with the issue here. Vidon acquired the mark after the alleged
misuse of the mark took place. [Maybe Vidon has such a right, but it didn’t
have such a right.] “Second, Tubelite—not Vidon—is the defendant in this
action, and it has presented no legal authority to suggest that it can assert
Vidon’s rights in its own defense.” Anyway, there were lots of exceptions to incontestability.

Sometimes dumb arguments make for bad explanations that omit
nuance, but sometimes they lead courts to articulate the reasons for the rules,
and that’s nice.

from Blogger https://tushnet.blogspot.com/2026/04/former-tm-owner-states-valid-damages.html

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delay still defeats Lanham Act presumption of irreparable harm

Posted on April 3, 2026 by rtushnet

Skillz Platform Inc. v. Voodoo SAS, 2026 WL 717220, No. 24-CV-4991
(VSB) (JW) (S.D.N.Y. Feb. 12, 2026)

Skillz sought an injunction against defendants’ allegedly
false representations about not using bots, and against defendants’ use of bots,
in their gaming applications. Skillz has showed up before litigating against
other gaming companies’ bot-related representations. Its games including those
where players can compete to win cash prizes in head-to-head, skill-bracketed
tournaments that ban bots. Defendants run similar games and advertise
themselves as, e.g., “fair” and “skill-based” games that are played against
“real players” with “no bots allowed.”

The magistrate recommended against an injunction solely on
grounds of delay. The relevant date for measuring delay was not the filing of
the initial complaint, but at the time Skillz learned of the alleged harm. Even
after filing, it waited seven weeks to move for a preliminary injunction.
Without more evidence about when it first learned of the bot use, this
“undercuts the sense of urgency that ordinarily accompanies a motion for
preliminary relief and suggests that there is, in fact, no irreparable injury.”

In addition, the claims of irreparable injury were too
remote and speculative to justify emergency relief. Although the parties do compete,
Skillz didn’t show a logical causal connection between the alleged false
advertising and (1) its own sales position or (2) the overall cash gaming
market.

Skillz showed that its sales and market share decreased
since 2021, but not that the alleged false advertising played any role in that
beyond unsupported speculation by a self-serving declaration. So too with harm
to the overall market. “Courts in this circuit have frequently rejected such
speculative arguments in deciding whether to issue a preliminary injunction.”
[Now do trademark infringement!]

Without evidence of harm to Skillz’ own reputation, as
opposed to allegations that distrust was harming the overall market, money
damages could redress any injury.

from Blogger https://tushnet.blogspot.com/2026/04/delay-still-defeats-lanham-act.html

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