Recent reading: on brands and sumptuary codes

Inspired by Kali Murray’s great comments at this past week’s Race
and IP conference, some notes from recent reading:

Virginia DeJohn Anderson, Creatures of Empire: How Domestic
Animals Transformed Early America

Relevant to TM and sumptuary laws (addressed in Barton Beebe’s excellent work), Anderson recounts how in
some places Native people were barred from marking their own livestock, but
punished if they killed a marked animal. In other places/times, both Indians
and colonists were required to use their own brands to identify animals, but
who got away with violating the rules was unsurprisingly racialized.

Relevant quotes (footnotes omitted):

In the Chesapeake, as in England,
livestock owners could protect their rights to mobile property by marking their
animals. A few seventeenth-century planters branded cattle on the horn, but
most colonists preferred to clip animals’ ears. Virtually every family had its
own earmark, involving some combination of slits, holes, half-circles, forks,
“fleur-de-lis,” or cropping. They registered their marks at the county court,
where the information was recorded to help in identifying strays. Colonists
regarded earmarks as a form of personal property to be handed down through the
generations. In 1658 when Thomas Gerard neglected to register his earmark and
William Evans then used it himself, an angry Gerard took the case to Maryland’s
Provincial Court. Gerard protested that his mark was “of a long standing,
although not heretofore recorded” and had been “injuriously taken” from him.
Since Evans had not yet used it, Gerard argued, the earmark ought to be
restored to its rightful, if negligent, owner. Far from finding this a
frivolous proceeding, Maryland’s governor not only heard the case but, in an
unusual move, polled the councillors for their individual opinions. Four of the
five officials sided with Evans, noting his compliance with the law. The
governor, however, found merit in Gerard’s emotional plea and asked Evans to
relinquish his claim. Evans did so, and a chastened Gerard promptly recorded
the mark in his own name….

The Bay Colony legislature tried to
minimize contention with a 1634 measure stipulating that trespassing swine
would be dealt with according to the rules of the town in which the animals had
been found, but this did not help aggrieved parties discover where the beasts
actually belonged. Thus in 1647 the General Court required owners to paint a
symbol with pitch on the flanks of livestock designating the town where they
lived. Just as earmarks labeled livestock as private property, these town
marks, or in some cases brands, identified them as animal members of a
community. Yet town marks also symbolized the attenuated control of each
community over its animals’ whereabouts….

Natick’s herds had grown
sufficiently numerous by 1670 that its inhabitants [“praying Indians”] petitioned
the Massachusetts General Court to assign them a town brand to distinguish
their animals from those belonging to neighboring settlements. Although some
form of the initial letter of a town’s name customarily served as a brand mark
for English communities, magistrates designated a bow and arrow for Natick—an
ambiguous symbol at best, suggesting that no amount of acculturation would
fully erase from English minds the sense that Indians remained fundamentally
different from colonists….

Indians knew that colonists
identified their animals by earmarks; whether native owners would be allowed to
do the same remained an open question for several decades. A story that
probably originated in Virginia and later circulated in England suggested that
by the 1650s earmarks had at least become a topic of conversation between
Indians and colonists. Informed by irate Englishmen that his followers had been
stealing hogs, a sachem reportedly countered that colonists had been just as
busy killing the Indians’ deer. The English reminded him that earmarks
identified the hogs as private property but deer displayed no comparable sign
of ownership. “Tis true indeed, none of my deer are marked,” the Indian coolly
replied, “and by that [you] may know them to be mine: and when you meet with
any that are marked, you may do with them what you please; for they are none of
mine.” Possibly apocryphal, the anecdote nevertheless fairly represented Indian
wit and addressed a topic of current interest to both parties….

Once Chesapeake-area Indians owned
swine, the virtues of marking them became self-evident. Unmarked hogs offered
tempting targets for colonial thieves, who needed only to clip the ears of such
creatures to claim them as their own. Given the propensity of colonists to
steal livestock from one another, this was no idle threat. Earmarks also
distinguished Indian hogs from feral swine. Native owners could have marked
their beasts at any time, but these marks would not provide genuine protection
until colonial authorities recognized them as legitimate symbols of private
property. Virginia’s legislature did not make such a concession until 1674
when, in a measure aimed at curbing Indian theft of English animals, it ordered
county courts to designate “a perticuler marke” for inhabitants of each native
town to use on their swine. Assigning a mark to towns instead of individuals
may have indicated that Indians regarded swine as common property, or simply
that the burgesses failed to make distinctions among native owners. Whether
earmarks actually enabled Indians to defend their animal property is unclear.

Oddly enough, when faced with the
same circumstances, New England magistrates adopted precisely the opposite
tactic. Although there is evidence to suggest that some Indians in Rhode Island
took the initiative to begin marking their swine, one by one New England legislatures
moved to prohibit the practice. Between 1666 and 1672, Rhode Island, Plymouth,
and Massachusetts all ordered that “noe Indian shall give any eare marke to his
swine upon the penalty of the forfeiture of such swine.” Indian hogs brought to
market had to have uncut ears; native sellers of pork likewise had to produce
intact ears to prove ownership. The ostensible reason for this policy was to
prevent Indians from profiting from stolen English swine, but its more obvious
effects were to complicate Indians’ market activity and to render Indian
animals vulnerable to unscrupulous colonists who merely had to mark the
creatures’ uncut ears and claim possession. There was also no way for Indians
to distinguish their swine from feral beasts that, if less numerous in New
England than in the Chesapeake, still roamed the woods and were regarded by
colonists as fair game. If Christian Indians in Natick, allowed to have a town
brand for their animals, were exempted from the earmark prohibition in
recognition of their efforts at acculturation, they would have been the
exception that proved the rule. New England magistrates otherwise denied
Indians use of the acknowledged symbol of legitimate ownership, as if it ought
to signify their progress toward civility rather than their hogs’ status as
private property.

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Harvard Journal of Sports & Entertainment law seeking submissions

 The Harvard Journal of Sports and Entertainment Law (JSEL) is accepting submissions for Volume 13, set to publish during AY21-22. Submissions for Issue 1 will be reviewed and accepted through August 2021. JSEL is looking for articles on topics related to sports and entertainment law, and especially encourages law professors to send in articles. We want to err on the side of encouraging submissions, so if you have a nearly completed draft that just needs to be fleshed out a bit more, we would prefer to be able to review it.

Submissions should not exceed 25,000 words, including footnotes. All manuscripts should be submitted in English with both text and footnotes typed and double-spaced. Footnotes must conform with The Bluebook: A Uniform System of Citation (21st ed.), and authors should be prepared to supply any cited sources upon request. All manuscripts submitted become the property of the JSEL and will not be returned to the author. In addition to the manuscript, authors must include an abstract of not more than 250 words, as well as a cover letter and resume or CV. Authors also must ensure that their submissions include a direct email address and phone number at which they can be reached throughout the review period. The journal strongly prefers electronic submissions through the Scholastica online submission system (or ExpressO if available). Submissions may also be sent via email to jselsubmissions@gmail.com.

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Reading list: native ad disclosures that work?

Eyal Peer & Dalia Shilian, Improving Consumers’ Ability To Detect Native AdvertisingUsing Identified Disclosure:

Native advertising of online content, such as articles embedded within news websites, is a covert attempt by marketers to affect consumer attitudes and behavior. Because such marketing can have detrimental consequences for consumers, regulators worldwide have begun mandating that disclosures accompany marketing content. Despite these mandated disclosures, studies repeatedly find that consumers still fail to detect native ads even when they include various disclosure labels. We argue that the failure of these and other such disclosures, (e.g., software licensing), results from consumers becoming so habituated to these notices that they fail to recognize or use them effectively. We propose an improved form of disclosure for native ads requiring explicit identification of the name of the company or marketing agent paying for the non-original content. Identified disclosure can be more effective because it is more salient and can vary between ads and platforms. In two studies, we show how adding identified disclosures to native advertising increases detection rates significantly and consistently. We also discuss important implications arising from using smart disclosures for consumer protection.

Payoff: at the end of the article, the authors note that
Israel’s consumer protection authority has adopted its recommendations as a
native advertising disclosure standard.

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a handful of Google v. Oracle thoughts: categories, microworks, and market circularity

A couple of small Google v. Oracle thoughts: The majority
clearly says that, as with other categories of protected works, distinctions
can be made within the categories, drawing lines “among” computer programs,
books, and films. Not all literary works are the same; Infinite Jest gets a different kind of copyright protection than my emails do. Likewise, while the recent Warhol case at times seems
to imply that the derivative works right overrides fair use, the same GvO passage
says that copyright provides both reproduction and derivative works right, but
also subjects all works to fair use. 

One of my minor obsessions is “courts that reproduce the
entire works in suit in the opinion”—whether they find for the plaintiff or the
defendant, and whether they rule on substantial similarity or fair use, they never
even consider whether it’s ok to do so. It’s obviously a good idea for purposes
of understanding what the law is—a description of a song or picture will never allow
a subsequent reader to understand what the protectable expression in the song
or picture was—and I think obviously fair, but it’s amusing to me that it
happens without anyone pointing out that this must be in reliance on fair use. 

Anyway, in GvO, Justice Breyer instead reproduces an entire
short story, which was just minding its own business and had nothing to do with
the case, in two different languages no less. And he does so in the course of
suggesting that the scope of fair use would be more limited with respect to that short story than to a sentence of the same length in a longer novel. I think
that’s a troubling conclusion—Justin Hughes has written very well about the
problem of “microworks” and the right result would probably be to say that the book
of stories from which that story comes should be the proper unit of analysis
for factor three. But now I have questions: Can casebook authors use this
portion of the case without fear? Could the copyright owner bring a CASE Act
claim against the US as a result? I don’t actually know whether claims against
the US can go to the Copyright Office or have to go to the Court of Claims. 

On factor four, it was nice to see acknowledgement that (1)
the licensing package Oracle offered was very different from what Google
ultimately copied, and thus didn’t show market harm from what Google
actually copied
and (2) this was a circularity problem, which should be
avoided. Also, relevant to the “mixed question of law and fact” issue, the
majority says: “the jury’s fair use determination means that neither Sun’s
effort to obtain a license nor Oracle’s conflicting evidence can overcome
evidence indicating that, at a minimum, it would have been difficult for Sun to
enter the smartphone market, even had Google not used portions of the Sun Java
API.” I think that means that the jury verdict must be interpreted to have
favored Google on factor four, resolving the factual part of factor four in its
favor. I am not sure what that means for summary judgment in future cases,
especially if factor one remains more of a legal question.

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Fanciful Failures: Keeping Nonsense Marks off the Trademark Register

 I’m excited to announce the publication of this Note by my former student Grace McLaughlin, which addresses the fascinating topic of marks optimized to get into Amazon’s system rather than to function as indications of source for humans. Highly recommended!

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Global Advertising Lawyers Alliance (GALA) Webinar – “Hot Topics in Advertising Law in North America”

I always enjoy these and recommend the free GALA webinars to
those interested in advertising law; I joined in progress due to some technical
difficulties on my end.

Joseph Lewczak: FTC v. Teami ($15 million settlement, all
but $1 million suspended), where there were other bad things like fighting
cancer claims and also nondisclosure by influencers like Cardi B. FTC does not
want disclosure below the “more” expansion link, if any; it has to be above so
anyone will see it even if they don’t seek out more info.

Kelly Harris: In Canada, Competition Bureau brought
enforcement action against FB for misleading privacy representations even
though it’s a free service. New bill: regulating online programmers like
Netflix, though UGC will be excluded (but might be included if commissioned for
or developed by the service). Regulator will impose “conditions of service,”
though not quite traditional broadcaster licensing.

Jose Antonio Arochi: Mexico doesn’t have specific
regulations. Twitter reviews for Sephora where consumers were demanding money
for allegedly expired products and saying they couldn’t get refunds from
Sephora. Apparently Consumer protection agency called Sephora to clarify the situation—there
was no litigation.

Melissa Steinman: Shop Safe Act introduced trying to stop
fakes in ecommerce; didn’t go through (attempt to create contributory liability
for platforms) but will be reintroduced, so keep an eye out. Theme for this
year: platform liability.

Reviews: Vitamins Online v. Heartwise: Manipulation of reviews
actionable under Lanham Act, including manipulating “helpful” votes and giving
people free stuff for positive reviews.

Maryland: First ever digital advertising tax, on gross
receipts. Vetoed by governor but overridden; lawsuit brought by platforms like
FB and Google—wait and see. NY, DC, WA are considering similar taxes so it’s a
trend to watch.

Harris: In Canada, the provinces regulate consumer
agreements online. Certain procedural requirements: must be able to see &
save a copy of the disclosures/contract w/in 15 days, via email receipt for
example. Certain practices are limited: unilateral changes of material elements
like price. Failure to comply: right to rescind; damages, including on class
basis and class actions in Canada are rising, especially Quebec and B.C.
Competition Bureau is very interested in digital economy. Drip pricing (adding
fees after initial disclosure) is an area of significant interest: StubHub,
TicketMaster, car rental companies that charge “environmental” fees.
Substantiation of “regular” price claims is also a big issue.

Arochi: Again, Mexico has nothing specific to online shopping,
just consumer protection and COFEPRIS (Mexican FDA), which does regulate
advertising. Suspended 34,000 webpages during pandemic of people trying to
publicize products that are health-related or make health claims. Permits for
certain products are required in advance: health related, supplements,
food/beverage, pesticides, alcohol/tobacco. Also new disclosures for high-fat
etc. foods with big labels on the front of the package.

Jeff Greenbaum: Don’t assume that online disclosures are
clear and conspicuous, even if “everyone is using them.”

Harris: Canada: disclosures can clarify but can’t correct a
misleading main claim or contradict the main claim. One click away is likely
low risk of regulatory enforcement, but ensure disclosures travel across
platforms and ensure consistency in disclosures in multiple places and/or
media: that was at issue in recent self-regulatory competitor challenges. This
is an issue of coordinating teams that might be in charge of different media.

Arochi: Mexico enforcement is more likely to target different
products that become a problem. There aren’t as many cases day by day and that
lack of emphasis from the authorities affects behavior.

Lewczak: consider that disclosures need to be fit to medium
and consumer’s consumption thereof: disclosure in YT video description may not
be enough. Not a lot of US action on sweepstakes. Covid concerns: don’t be tone
deaf; giving away cruises, event tickets, and other in person prizes can be
risky and generate bad PR. Don’t require physical presence for entry or award
of prizes. Do your rules have a force majeure type limit that allows
covid-related flexibility? Avoid unintended sweepstakes with attempted
charitable giveaways to doctors, restaurant workers, etc.; may require
disclosures and charitable registration: Draper James teachers giveaway. Loot boxes
are on the horizon.

Harris: Winner of contest must complete test of skill; cases
vary on what’s enough, but 4-part, multi function math question with a time
limit. You can do it on entry or just for the winner; depends on structure of
promotion. Also: no forcing purchase to enter, but can say, “submit an original
essay.” Quebec: registration requirements (doesn’t apply below a certain
monetary threshold, and to non-advertising promotions like a contest for
employees) + French language availability. A minimum disclosure is required in
all advertising, adequate and fair disclosure: number and value of prizes and
other material facts—entry dates, eligibility requirements, geog. distribution of
prizes if any. Can be difficult depending on how contest structured.

Arochi: Interior Ministry and Consumer Protection Agency require
permits for some sweepstakes/contests. TV contest for example requires a
specific agency permit. Chance-based contests may not need a permit. Division
of authority may not be clear so may have to ask both agencies and then pick
one to apply to.

Steinman: Lots of US action on country of origin. NPRM, July
2020 on Made in USA claims, codifying current enforcement policy and adding
ability to seek civil penalties: need all or virtually all of manufacture, or
component parts/ingredients, to make Made in USA and related claims. This can
include use of flags, eagles. But can use qualifiers like “made in USA of
domestic and foreign components.” “Designed in US” can also work. California
has a 5% foreign content requirement. FTC also challenged “Danish cookies” that
weren’t made in Denmark.

FTC v. Williams-Sonoma: $1 million penalty and prohibition
on unqualified US origin claims without being able to substantiate them. FTC v.
Chemence, Feb. 2021: $1.2 million for violation of existing order, highest
monetary judgment ever for Made in USA case. Made in US: final
assembly/processing and all significant processing in the US, and all or
virtually all ingredients/components are made/sourced in the US. Assembled in
US: product is last substantially transformed in the US, its principal assembly
takes place in the US, and US assembly operations are substantial.

Harris: Made in Canada standards are similar: last
substantial transformation in Canada; at least 51% of total direct costs of
producing/manufacturing occurred in Canada, and accompanied with appropriate
qualifying statement (e.g. made in Canada with imported parts). Moose Knuckles
parka, 2016, lacked qualifying statement (made with Canadian and imported components);
settled for $750,000 donation. Product of Canada: like made in Canada, but all
or virtually all of the total direct costs (98%) must be Canadian.

Arochi: Mexico has one of the highest numbers of
Appellations of Origin; more than 8 processes for obtaining certification for GIs.
Hecho in Mexico is a certification; must be (majority) produced in Mexico, not
precisely corresponding to AOs or GIs, but permit coming from Mexican
government.

Greenbaum: Environmental marketing: Little FTC enforcement
but some states have enacted more stringent requirements or made Green Guides
into enforceable rules. Mattero v. Costco: class action over Costco’s “environmentally
responsible” claims for detergent: were claims sufficiently qualified/were
other benefits communicated: court denied motion to dismiss. New administration
and revision of Green Guides may be an opportunity for FTC to change its
approach.

Harris: Canada is similar; no specific green marketing laws,
just Competition Act/provincial statutes. Federal guidance on green claims like
recyclable exists, and self-regulatory code/guidance specific to environmental
claims. Ongoing consumer class actions regarding pesticide in supposedly “organic”
medical cannabis. All 2020 self-regulatory consumer complaints were upheld,
including against a joke about benefits of saving water, because water scarcity
is a serious issue and implication that product could help was found misleading—humor,
puffery defenses rejected. Also home fragrance claimed to have “natural”
ingredients—some ingredients were natural, but no evidence that all
scent components were. Exaggeration of environmental benefits also were
challenged. Grain Farmers of Ontario: depicted farms and farmers under stress, food
supply shortages, empty grocery stores: condemned as inappropriate
fearmongering.

Arochi: Also enforced by consumer protection agency
(PROFECO) and COFEPRIS. CONAR is the self-regulatory body.

Taste and cultural concerns:

Lewczak: BLM and #MeToo—but not clear that any regulator or
self-regulator will do anything. Major TV networks have their own guidelines
against violence, antisocial behavior, oversexualization, stereotyping. Third
party organizations also complain: PETA for animals, MADD for alcohol, other
rights groups. Frida Mom’s ads showing reality of postpartum recovery rejected
from 2020 Oscars for being too graphic—at least get some PR benefit from that.

Harris: significant Canadian regional differences. Claims
likely understood more literally by regulators. Supreme Court of Canada uses
the “credulous, hurried and inexperienced” standard. Can’t demean, denigrate,
disparage: one complaint can bring you before Ad Standards. Canadianisms to
watch out for: mostly metric except for height and weight of people; Celsius
for weather. French exists outside Quebec. Spelling is different: colour,
behaviour, honour, centre, etc.

Arochi: Spanish is the official language. Regional
differences are significant; a federation with 31 states and Mexico City. 10th
most populated country in world, most Spanish speakers. Measurements are always
metric/Celsius for weather. Can start claims before consumer protection agency
without disclosing identity, which allows competitors to bring claims strategically.

Covid enforcement

Steinman: FTC recorded more than 130,000 complaints in first
half of 2020; issued more than 300 warning letters with 95% compliance rate; has
brought some cases against covid treatments. Even Purell received a warning
letter. Also price gouging cases. Quality King raised prices for Clorox etc several
times and was forced to disgorge profits + penalty; 3M has also been active
against mask resellers (or counterfeiters). Privacy is also a hot topic: CCPA
in California is now effective [or as Eric Goldman might say, it’s in effect].
First class action under this has been filed, against Ring (plaintiffs include
people who were hacked which they found out when someone talked to their
daughter).

Harris: Canada is seeing new rights, Consumer Privacy Protection
Act—against automated decisionmaking, deidentified data; data portability/erasure;
Quebec is also updating his regime.

Arochi: New food labeling law in Mexico, against use of
cartoons on foods with excess fat etc. Black stamps on products that qualify;
also new guidelines on medical marijuana.

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WIPIP SESSION 9.B. — Copyrights

Peter Lee, UC Davis School of Law

Autonomy, Copyright, and the Structure of Creative Production

Theory of the firm would suggest more consolidation within
the firm in creative industries than exists. But creative autonomy is one
reason that people would prefer not to be employees. © also has a role by
allowing credible transfers. Big caveat: © facilitates contractually mediated
vertical disintegration, but it does not guarantee creative autonomy; bargaining
power of artists matters a lot. As digital distribution increases, © will still
play an important role in promoting creative autonomy not by facilitating vertical
disintegration but by facilitating top-down vertical integration, bypassing
traditional intermediaries. But power disparities will continue to matter for creative
autonomy.

Derek Miller: Historically, where does © affect the firm?
How do you show the causal story? Not all works are vertically disintegrated—the
Marvel Universe is horizontally structured, controlled by WFH. Actors are
disintegrated from the Hollywood system they used to live under but have
basically no © power—so how do they fit in?

A: don’t have much historical lens. Some other work suggests
© leads to greater autonomy. Composers may have broadened composition styles in
response to ©/market participation. [In chat, Derek Miller finds those studies
unconvincing; © control by composers was difficult/complex, and they built
other forms of patronage, often by subscription.] Disney is an outlier. Did
acquire Marvel, which started independently. Actors: Justin Hughes has a really
nice piece on actors’ ©able contributions, but they don’t often leverage them to
enhance autonomy. There are other factors to autonomy, including powerful
guilds that can serve that function.

Eric Goldman: consider the entire distribution chain and
what’s going on in terms of vertical/horizontal integration in each element.
YouTubers: distributor/author relationship is entirely different than old
model, and not clear © is the driver.

Jessica Silbey: Consider whether Tasini expansion of author
rights led to more or less dis-integration. Different ideas of how private
ordering works in © may affect the story.

Betsy Rosenblatt: consider, e.g., how over the top TV
services are affecting industry structure. Relationship to social justice? Has
a piece on Nipsy Hustle and ©–creative autonomy piece would fit well into
that, particularly for musicians in the age of the 360 deal.

Lisa Macklem: Consider foreign distribution as well, and
Lemley’s piece on how Disney is creating new scarcity for the first time in a
while.

Giovanni Maria Riccio, University of Salerno (with Federica
Pezza)

Conservation and Restoration of Street Art: Striking the
Line Between Protectable Common Goods and Inadmissible Musealization of Urban
Spaces

Art in public spaces: Not “public art” a la totalitarian
regimes, but works in public spaces that are freely accessible to the public
regardless of the form of expression. Site specific, connected to local
communities, with political or social meaning. Questions: who owns ©? Who owns
the work? (Options: owner of the support, e.g. the building; the commissioning
party; the municipality; the people who “live” the work?) What are options for
conservation, restoration, and preservation? Should consider public space art,
in some circumstances, as a common good, with ownership interests at least in
part in people who live in the area. Focus on the work and its meaning more
than on the subjects and their rights.

Pezza: Civil law legal systems don’t require fixation; UK CDPA
requires works to be “recorded”; US requires fixation. Edge cases: makeup, assemblages
(Oasis cover photo shoot case), carved ice. UK has a closed list of subject
matter; you can’t protect something that isn’t on the list. The assemblage of
objects in Oasis—difficult to ID what the subject matter was.

Unclean hands? European theory: Commission of unlawful act
[like placing art w/o permission] may not result in loss of patrimonial
benefits deriving from exploitation of the work. Failure to grant © would
sanction the author 2x, in addition to the typical penalty for the crime
committed. US may apply unclean hands: Villa v. Pearson Education (N.D. Ill.
2003). But practical differences may be narrow.

Riccio: Consider Convention Concerning Protection of World
Cultural Heritage, UNESCO. Intangible cultural heritage includes artefacts and
cultural spaces associated therewith that communities, groups, and in some
cases individuals recognize as part of their cultural heritage—should not be
excluded from access. Is VARA the only possible solution? Time consuming for
owner, transaction costs are moved on owner though they didn’t commission the work;
often not easy to find author; all choices in authors’ hands. Proposal: before
proceeding with destruction or alteration of work, owner should communicate to
public authority which should have a period of time to decide whether the work
should be protected or not. Silence should be consent. Decisions should be made
by experts, art curators, artists, local residents. Public calls for street art
made by public entities should include information about
conservation/restoration.

Zvi Rosen: reminded him of riparian rights—not at all what you
propose, but might be interesting comparison.

Justin Koo, University of the West Indies, St Augustine

Protecting Works of Mas – Contemplating the Protection of
Carnival Costumes

Are Carnival costumes w/in scope of ©? “King” costumes are
the most elaborate and fanciful. More typical, esp. for women: a swimsuit with
decorations attached; can get more elaborate with feathers and design elements.
Crosses the originality threshold in many cases. But is it the right type of
subject matter for ©? © attaches without registration and endures for much
longer than design rights. Star Athletica: can it be conceived of as
something other than a costume?

Tyler Ochoa: Thinks that these were probably easily
registrable even pre-Star Athletica because of nonfunctionality. [But is
there separability?] But what is the problem we’re trying to solve here—what harm
will happen if we don’t protect these costumes with ©? Not sure he sees a huge
problem.

A: He’s interested in whether it meets the standard, and
also whether it would create a problem with future costumes/a licensing culture.

Rosenblatt: worth asking who © would benefit, which might
not be anyone in Trinidad—the risks you discuss seem greater than benefits. Enforcement
becomes a problem when it contradicts a history/culture. Would also be
interested in what the cultural norms are: are there anti-copying/divergence
expectations? Are most of the producers doing individual hand made works or are
there big commercial producers?

A: it’s all decentralized, independent designers and
creators. Every year there are disputes, but never any litigation.

Rosenblatt: shaming based? Yes.

A: also note that with the Stormtrooper Lucasfilm decision
in the UK, the US approach is not guaranteed.

Derek Miller, Harvard University Faculty of Arts and Science

On Typographical Copyright, with Examples from Modern Drama

Typography includes layout, spacing, font; format is physical
like book, ebook. Typographical variation: headings, italics, small caps, even
the numbering of a page. Experimental scripts have even more variation. Plays that
are expansive in typography often involve author specified layouts, that are
reproducible in other formats. A “spell” by Suzan-Lori Parks; is “elongated and
heightened (rest) … has a sort of architectural feel.” The spell involves headers
with character names and no dialogue, repeated, e.g. Lincoln/Booth/Lincoln/Booth/Lincoln/Booth
with each name on a different line—but if reproduced incorrectly they can give
the wrong impression. Plays often circulate in different editions—reading editions,
acting editions, etc. Very few publishers print in all these formats. By
defining layouts, publisher can affect reception of a play. Modern ereaders can
strip away typography/allow individual readers to configure for their
preferences. What should a typographically conscious playwright do? Can we
reinvent IP norms to support their artistic intentions. Should permit some
typographical fluidity as texts change meaning but also allow authors to specify.
HTML/CSS can be a model—adaptable but typographically conscious. CSS allows reintepretation
of values such as distance b/t elements while retaining the relationships among
different parts. © currently focuses on html only, text of the work. But we can
protect a work as CSS too if it’s describable in an abstract, reproducible form
like CSS.

Eric Goldman: personal passion, emojis, might play into
this. Does PDF solve this by allowing publisher to control display? It does
take things away from the reader. Goes to some of the underlying Qs about who
gets to decide how they consume the content. It’s ePub format that allows users
to customize, so maybe there are some works that shouldn’t ever be in ePub.

Rosenblatt: selection coordination and arrangement is already
©able—maybe no change is needed.

A: has no examples of assertion. But typography can be
entire content of expression—imagine a script that is just five versions of the
Gettysburg address with different emphases each time. [I wonder whether that’s
actually about the typography; I would consider the typography the fixation of
the decisions about which words to emphasize. But maybe my definition of
typography is too constrained!]

Annemarie Bridy, Google & Yale Information Society
Project

Testing the Server Test: Embedded Images and the Changing
Scope of Online Public Display

Troubling developments in case law. Server test was adopted
in 9th Circuit in 2007. The analytic challenge: what the user sees
and what’s going on under the hood are very different things. Internal v.
external perspective: how should the law see it? Server test is internal perspective.

The Leader’s Institute v. Jackson, Texas 2017: departing employee,
messy case; © counterclaim alleging that TLI “framed” Jackson’s company’s whole
website, making it appear that content at Jackson’s site originated with and
belonged to TLI. TLI sought sj in reliance on server test. Court disagreed: on
the facts, Google just provided links, and the user was “essentially navigating
to an infringing website”; court was troubled by the framing being
intentionally misleading, as opposed to being clear that the content didn’t
belong to Google. This is weird b/c the conduct under the hood was the same. On
the law, the court thought that causing someone else’s content to be visible “on”
a website could be public display even when the transmission originates from
somehwere else.

Higher profile: SDNY, Goldman v. Breitbart, involving an
embedded tweet containing a photo copied w/o permission from Snapchat.
Subsequent SDNY cases involve Instagram embeds: Sinlair v. Ziff Davis (now
settled), McGucken v. Newsweek, Boesen v. United Sports Pub’ns. Either followed
Goldman or didn’t reject it (e.g. Ds didn’t even rely on server test in
the first two and in Boesen they won on fair use). Instagram has now said that its
terms don’t provide sublicense for embedding.

Free Speech Sys. v. Menzel: InfoWars (run by FSS) ran a post
about Hungry Planet, featuring nine images from p Menzel’s book. Embedded from
a website that was hosting and diplaying them with Menzel’s authorization. FSS
filed a declaratory judgment action seeking a declaration of noninfringement—in
the 9th Circuit, but the court found both factual and legal problems
w/ FSS’s reliance on the server test. Even if the server test applied, wasn’t
clear InfoWars wasn’t actually hosting the images. Legally, there are cases
from other circuits refusing to apply the test outside the context of search,
and FSS cited no 9th Cir. authority applying it beyond search. Not
good! Similar issues in Europe, with neighboring right for publishers now
putting pressure on ability to link to content on 3d party websites.

Wu: so you want to do only secondary liability? How would
you deal with the Jackson situation?

A: that would be non actionable under ©. There might be
other theories, but not ©.

Wu: and these other scenarios? Normally putting a copy
online with permission doesn’t make it freely copiable.

A: But the Ds here aren’t copying! The Q is about in line
linking, not copying. EU says it’s “communication to the public,” and there are
Qs about what constitutes the intended public. So they ask whether it’s a
different or new public. We used to assume that something on the non paywalled
internet was for the public as a whole. But these cases have a different flavor.
Consumptive uses do feel different.

Sean Pager: Another potential distinction: the link embedded
in a way that the photo pops open immediately, no secondary click required. Not
like an email link that you have to click on to load a photo (though different
email providers do this differently).

A: but that’s the same thing as search.

Pager: but the user does the search and then clicks on the
thumbnail to load the inline image. In Goldman, the user doesn’t direct
anything; something just comes into their Twitter feed.

A: That’s the same as in Aereo. [The user chose who to
follow]

Peter Mezei in chat: In VG Bild-Kunst, the AG focused on “automated”
access, no click required, for embedded content and opined that such uses
needed authorization. Awaiting eagerly ECJ judgment.

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WIPIP SESSION 8.A. — IP Theory (partial)

Ester van Zimmeren, University of Antwerp

Exploring Trust Building Mechanisms for Specialized
Intellectual Property Courts

CJEU patent court hasn’t entered into force, but there are local
and regional bodies. Question: will users trust a new court? Trust in the court
and trust in the judges are both important. Trust implies uncertainty about
future behavior. Trust means accepting vulnerability based on positive
expectations of intentions or behavior of another. Relational and dynamic: A
trusts B to do Y. So we need to know who has to trust to think about building
trust. (Quote: will a business trust its crown jewels when it doesn’t know the
court/the judges?) A leap of faith; distrust is not necessarily bad. Boundary-spanners:
persons who interact on behalf of the organization with the outside world: the
judges? Reputation based on case-law national level—including education, expertise/experience
with patent cases, career path (career judges v. recognition judges,
generalized v. specialized judge, etc.), management of litigation process,
shared values.

Andrew Michaels: Everyone likes to complain about the Fed
Cir, but they are doing their best and he thinks that’s doing ok. Maybe should
invite more judges from other countries to sit in and give new ideas.

A: Japan model: rotate in and out of specialized courts.
District judges can also temporarily sit in on IP high court. Rotations are
usually pretty fast but they can stay longer in the IP courts (rotation is
throughout the system)—interesting balance. JPO also participates—interesting but
are there rule of law issues?

RT: Consider comparison with Facebook Oversight Board (creepily
called the Oversight Board)—because it’s not a governmental organization it has
an extreme relationship to building trust as an adjudicator. Current controversy
over judges talking to journalists.

Glynn Lunney: when Fed Cir was constituted they took the
judges from CCPA and immediately adopted the old precedent as a way of
transitioning.

Margaret Chon: who are the stakeholders? Some of the quotes
suggest that businesses are the ones who need to trust, but if the key were the
public interest, then the question of what the relevant trusting community was
would be different.

Lunney: Why is trust important? Trust or not, you had no
choice but to litigate in front of Fed Cir.

A: because in the EU you do have choices. If you choose
unitary patent, you have to go through the unitary court but you can also use
the traditional European patent systems—and then choose the unitary patent
court, if it ever comes, or choose the traditional parallel litigation
opportunities.

Lunney: will there be a race to the top/race to the bottom?
Compete for patent litigation?

A: that’s a big Q in the debates!

Michael Carroll, American University Washington College of
Law

The Right to Research in US Intellectual Property Law

Context: reframing exceptions and limitations, including subject
matter and scope limits, as user’s rights. Connected to AU’s work on user’s rights
in int’l and comparative law. Focus on basic and applied research in all fields
of inquiry, including humanities—research intended to promote progress of
science and useful arts, commercial and noncommercial.

Right to research is not a single reified legal right, not a
single rightsholder. Drawn from a variety of legal sources—int’l (not in this
paper’s scope), constitutional, statutory, private ordering/open licenses.
Normatively: variety of limiting doctrines loosely cohere into a whole greater
than its parts: user’s rights are enabling provisions and positive goods in IP.
Persuade courts to keep larger whole in view when interpreting and applying
these doctrines; reform doctrines that have been interpreted too narrowly like
experimental use in patent. There are other policy concerns about research such
as privacy, human subjects rules.

Not just a right of researchers, but libraries, archives,
and other intermediaries need to rely on it to collect materials and organize
them as research inputs and distribute them as research outputs. Likewise, open
access is part of the greater whole.

Copyright: incomplete list: ideas/facts/other §102(b) limits when
applicable; fair use (reverse engineering, text and data mining, other forms of
copying); §1201 (too-narrow security research exemption; possible First
Amendment limits).

Patent: incomplete list: subject matter limits (abstract
ideas, products of nature, natural phenomena); other eligibility limits
(enablement, written description as limits on patenting early stage research);
non obviousness and novelty; disclosure function; experimental use; revisit
need for fair use in patent.

Trade secret: incomplete list: subject matter limits—readily
ascertainable/collectively known; scrutinize whether NDAs in widely distributed
research-relevant info are sufficient to maintain secrecy.

Margaret Chon: research for self-fulfillment? Minaj v.
Chapman, which RT suggested in chat was “experimental use comes to ©,” might be
about creative self-fulfillment as well as ultimately commercial. [Lunney
responds, fairly enough, that this characterization might limit © fair use to
the overly limited patent definition.]

A: He definitely doesn’t want a commercial/noncommercial
divide categorically. He wants to tell a users’ rights counterstory focused on increasing
knowledge. [But doesn’t that require you to take a stand on what counts as
knowledge? Is only using big data to create a new historical interpretation
within scope? If you (or the library on your behalf—v important during Covid)
make copies of a set of individual works and you analyze them and create a new
historical interpretation, I assume that counts. So is it fiction/nonfiction
that’s the divide?]

Betsy Rosenblatt: Carys Craig has written about the pitfalls
of calling anything a user’s right—may want to engage with that. This project
seems useful in discussing §1201. Justification for infringement nexus; many
proposed exceptions are also for research. Does my big library of TV shows make
me a researcher?

A: It could—he sees Minaj as definitely within scope b/c it’s
not substitutional copying. That’s the flexibility of fair use: copying for the
purpose of research is fair use, but copying for the purpose of just watching
the stuff and enjoying it is not. Artists and critics, both getting ready to do
something new, are also engaged in research.

Eric Johnson, University of Oklahoma College of Law

An Intellectual Property Fix for Platformer Sales-jacking

Platforms like Amazon and Apple create a marketplace for independent
retailers, but also compete on their own platforms. They cherry pick the best
and copy them, crushing the independent sellers. What to call this? Information
appropriation (Lina Khan) doesn’t seem illuminating. Platform information
appropriation? Sales-jacking, like hijacking. [In comments, Brian Frye suggests
calling it “competition.”]

Antitrust has been suggested as a solution, but this isn’t
anti-competitive; it is anti-innovative. [Isn’t one of the recognized harms of
monopoly that it harms innovation?] It’s worth considering this as an IP
challenge. The harm is to soft innovation—market insights, product ideas, etc.—things
not patentable or ©able. Soft innovation used to be protected by friction, first
mover advantage. Frictionless commerce leads to appropriability, so incentives
decrease. This soft innovation is important for econ growth and worth worrying
about.

Retail data right: prevent market participant side of
platform from using data from market provider side: for some period of time?,
unless paying a royalty? Sounds like an antitrust enforcement issue, but could
be a general retail data right. [using data to do what? Can you recruit other
sellers for Etsy by showing that macrame is selling well?]

Contracting/bargains: we don’t want the platform firm to require
contracting out from all participants, but maybe collective
bargaining/performing rights organization model, PRO model is largely shaped by
antitrust [this sure sounds like reinventing antitrust]

Requirements separating market provider decisionmaking and
participant decisionmaking, which he acknowledges also sounds like antitrust.

RT: [bracketed comments above] I think this is INS v. AP for
Amazon: a quasi property right. Look at the challenges of providing a right
only against platforms by looking at the example of India, where Amazon had a
variety of relations with big sellers (and appears to have violated Indian
rules about vertical separation). The issue of barring only platforms from
doing this copying would reduce to an antitrust issue of ensuring vertical
separation.

A: Agree that antitrust is also about innovation.

Tyler Ochoa: Thinks this is an antitrust problem; why doesn’t
divesting vertically solve the problem? US v. Paramount Pictures: studios were
forced to divest theaters: supplier should not own channels of distribution.

Rosenblatt: Not convinced this is a problem. This is
competing: how does it differ from ordinary competitive behavior that we think is
good for consumers? The reason is the platform has info about sales and pricing
that’s harder for other third parties to find. Isn’t this only a regular trade
dress/design patent issue; otherwise product-jacking means “the market working
the way we want it to”?

A: not necessarily a problem, but risks. No way to
appropriate returns from doing the research for, e.g., going to India and
discovering just the right jam to import.

Lunney (chat): Can streaming music services make their own
content in your regime?

Chon: This is an inequality problem, not (just) an antitrust
problem: wealth accumulates in one direction. That’s not an IP problem as such,
but Jeff Bezos needs no more money. It’s the small business that needs more
structural support.

Lunney: Amazon reaching equilibrium—it is in their interest
to have small sellers to make these discoveries, so they have an incentive to
refrain from swooping in too quickly. Consider that? May not be persuasive.
[Especially given the different incentives within the firm; eating one’s seed
corn is unfortunately standard.]

Rosenblatt: Agree with Chon: we should acknowledge that we
think this is a broken market where small businesses are being crowded out and
frame it not as harm to innovation but harm to development of small businesses.

A: Antitrust today doesn’t care about inequality [though I
take the Khan et al position to be that it should] but it at least purports to
care about innovation. There are good reasons to believe that inequality hurts
overall innovation/growth.

Rosenblatt: It’s also just bad.

Chon: Amazon needs different incentives.

A: historically they bought Zappos and Diapers.com but now
they don’t have to do that b/c everyone starts selling from Amazon in the first
place and can just take over the products w/o having to buy them out.

Carroll: This isn’t problematic until you hit a certain
level of scale—antitrust historically comes in as a circuit breaker—this is the
issue w/ Etsy.

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WIPIP SESSION 7.A. — Trademarks

Jeanne Fromer & Barton Beebe, NYU School of Law

The Future of Trademark Depletion in a Global, Multilingual
Economy: Evidence and Lessons from the European Union

TMs transcend boundaries b/c brands transcend boundaries;
even small businesses are often looking beyond borders to other countries. EU
is good for study b/c it has a system made of 27 countries with 24 language,
15% of global economy, 450 million consumers. Can help us understand how rights
assertion is working in a global, multilingual system.

Spoiler: things are bad. EU TM runs in parallel w/national
system. All or nothing: you need to show entitlement throughout EU; if a term
is generic in one country, then no EU TM is allowed. EUIPO doesn’t engage in
relative grounds review: doesn’t look for confusing similarity; 3d party
oppositions are the only check. When assessing confusing similarity in an
opposition, one pronounced difference is doctrine of translational similarity
(known in US as doctrine of foreign equivalents): mark can be confusingly
similar if it translates; it’s common in the EU for people to speak 2 different
languages.

Registration can occur w/o use; no examination for use; 5
year grace period for use. TM clutter is widespread.

Registration rate is really high, not surprising given lack
of relative examination.

Selection: not more of a pool to choose from in a global market,
but less of one, because if a mark means something bad in one place it won’t
work for a global branding strategy. Irish Mist ran into this in Germany, where
“mist” means manure. Also, mark may be taken in a jurisdiction, which happened
to TJ Maxx in the UK, which then had to switch to TK Maxx/Milky Ways varying by
jurisdiction. And there’s a limited set of words that are very same/similar
across multiple languages b/c of cognates, loan words, onomotopoeia. English is
the dominant language in registrations; it’s the language of business.

Studied EU using a bunch of databases; found incredible
levels of depletion, worse than in the US despite fewer marks being registered
in EU. Most common words are claimed unless they mean something negative, and
when we translated registrations into the 5 major EU languages the level of
depletion got worse. Likewise, for close similarity, the congestion is worse
than in the US. Similar results for pronounceable syllables. Marks are getting
longer over time b/c more is taken.

German: it’s only 40% depleted in common terms, but when you
account for translational similarity it goes up to 80%. Most multilanguage
terms are taken (REPUBLICAN is the one that’s intelligible in all 5 languages
that’s not taken; strong meaning makes it unattractive).

Crowding has increased over time across classes. Oppositions
are going down over time. Very few companies do most of the oppositions.
Compared to 2(d) refusals, just really low. Oppositions that do proceed tend to
succeed b/c there is so much crowding. As opposers increase, chance of success
increases, until inflection point where crowding is so great that confusion
w/any given mark becomes unlikely.

What to do? (1) More enforcement of use requirements to get marks
off the register, whether up front or examination after a grace period. (2) Ex
officio review. EU does a bad job of putting existing registrants on notice;
there are a lot of unrecorded settlements so you can’t tell what’s really going
on. (3) Translational similarity should be revisited. We can train consumers;
consumers would eventually learn to distinguish translations. (4) Fee
structure: should charge more for more valuable words.

Lisa Ramsey: Do EU lawyers care about clutter? In INTA they
don’t seem to.

Barton Beebe: There’s no interest at all in increasing use
requirements/shrinking use to 3 years by major EU lawyers b/c they tend to
represent the big brands. But maybe they don’t realize how bad things have gotten
for SMEs especially.

Fromer: more recognition academically; EU classes are
broader/cover more things than US registrations.

RT: But can you really train consumers?

Fromer: not convinced that the consumers are translating now—need
evidence on that in order to defend the doctrine.

Beebe: consumers could probably be taught about clearly
different languages. Translational similarity may be a special case where
consumers react differently [v. my example of the UNC and University of Wisconsin
cases in the US where the PTO said that consumers had stubbornly continued to
perceive the marks as indicating a single source despite over 100 years, in the
former case, of uncontrolled use].

Irine Calboli: Single market: freedom of goods means that there’s
no way to stop confusingly labeled goods at the border if you’re giving a
European market. So the consideration goes beyond TM law/translational
similarity.

Barton: Spain gave a national registration to Matratzen for
mattresses, even though it’s generic in Germany.

Alex Roberts: Say more about charging more for more valuable
marks. How do we do that/does that discriminate against smaller entities?

Fromer: any changes can’t be prospective only or new
entrants will be harmed. We have to recognize we’re not starting from scratch.
One possibility: whether at initial stage or at renewal, charge more based on
some metrics of value such as being multilingual.

Irene Calboli: Interaction with failure to function?

Beebe: The future of the TM system is crowding. The
registering agency/system overall in EU has given up on the problem of crowding.
So what? They’ve heard the argument: Maybe it’s good to have barriers to entry b/c
TMs are just artificial product differentiation. This argument failed in the
US/law and econ and might fail in the EU too.

Jake Linford, Florida State University College of Law

An Information Theory of Bad Faith Trademark Use

Intent is crucial to many P wins, but many scholars criticize
this as irrelevant to consumers who can’t see the bad faith adoption. Sheff
says: maybe both infringement and dilution are proxies for when we think
sellers are manipulating consumers’ bounded rationality. Intent may be
irrelevant still, he suggests, but Linford says that may not be right. Intent
could help us rightsize info to make sure sellers aren’t overly opportunistic. We
should care about bad faith. Second entrant should have to account for why it
ended up with a mark that is highly similar to an existing mark. Information
theory: noise or interference that makes it harder for info to be received as
intended.

What counts as bad faith? In some circuits, failure to do a
search; becoming closer to P’s packaging over time; intentionally dragging out
litigation. Although good faith doesn’t preclude a confusion finding, it should
probably work for the D like evidence of bad faith works for P to negate the
ratcheting effect. More leeway for good faith behaviors may make the market
more efficient for consumers. Conducting a search/seeking advice of counsel
should be counted in favor.

Mark Lemley: to do this we need a very clear definition that
is significantly narrower than existing definitions. Right now intentional reference
to the TM is often considered bad faith. Also: should ask same Qs of P’s good
faith: was there evidence of confusion or were you suing from fear of competition?

Betsy Rosenblatt: Model jury instructions are terrible, as
are standard proposals. Bad faith is bad, but even lack of bad faith might also
be bad; says nothing about good faith! Why do we want balance? The argument is:
people who are trying to confuse might be better at it, but she doesn’t think
there’s any evidence that’s true.

Carys Craig: Intent may be discounted in the legal
articulation, but bad faith may be driving more of the results than we think,
neglecting actual confusion considerations. Good faith parties may end up
winning anyway for doctrinal reasons.

Roberts: doctrinal narrative that producer is really
powerful. Thus if trying to fool, likely to be successful. Thus even if we’re
punishing bad faith it coincides with this narrative of producers being likely
to succeed at what they do.

A: Henry Smith’s idea of equity as an overarching attempt to
police against opportunism.

RT: was going to talk about Smith’s idea of equity but I think
it might be why your idea struggles against the multifactor test. In Smith’s
idea, bad faith/fraudlike behavior is a precondition to entering into the
equitable realm, not part of a multifactor test. If we had double identity +
unfair competition, and opportunism of some sort was a precondition for
entering the unfair competition realm, then that could work, but Smith thinks
that multifactor tests like the one in TM are evidence of an unproductive
collapse of law and equity that just creates a big muddle.  

Beebe: bad faith seems to overwhelm a multifactor test
cognitively; it’s a bludgeon. Circularity is an issue too, but its presence seems
to blow out any other factors.

Calboli: Bad faith internationally/in the history?

Lisa Ramsey: if the underlying subject matter is itself attractive
(inherently valuable speech), then the TM owner/claimant is the one who’s free
riding.

Brad Biddle, Arizona State University College of Law (with
Jorge Contreras & Vigdis Bronder)

Certification (and) Marks – Understanding Usage and
Practices Among Standards Organizations

Some mismatch in definition of “certification” marks—some organizations
deliberately avoid that term. TM registration much more common than certification
mark registration in this space. Many SSOs don’t apply for TMs at all. Conventional
wisdom doesn’t match real world practice. For reformers: focusing on
certification mark rules won’t matter if most certification happens in TMs.
Lawyer-driven? Feeling of greater freedom under TM rules?

Jessica Kiser, Gonzaga University School of Law

The Reasonably Prudent Consumer of Alcohol

Sees a trend of more refusals in alcohol/wine/beer. Some
dumb ones; even as PTO recites rule that there’s no per se overlap between beer
and wine. A couple of theories: is PTO more likely to find confusion between
beer and wine than between two similar wine marks b/c it thinks wine consumers
are more sophisticated? One possibility: this is a problem here b/c it is a
really crowded space—a beer company might release ten new names a year, even if
they aren’t in use two years later. Alcohol has been found related to cigars
because people consume them together; Harlequin romance has a wine line so now
publishing may be related? Does wine, in fact, go with everything?

Alexandra Roberts, University of New Hampshire Franklin
Pierce School of Law

Mark Talk: Making Secondary Meaning

McCarthy: Trier of fact, like lexicographer of modern slang,
must attempt to find out the meaning to the consuming public. Yet almost all
the evidence they consider is indirect, proxies for understanding.  The assumption is that if the producer puts in
the work, it will happen. These principles have been around since even before
the Lanham Act—length of use, advertising spend. Yet a lot has changed in those
75 years—internet destabilized active producer/passive consumer binary. Can
look in spaces like Reddit to see how consumers are actually using a term: “boy
brow” turns out to refer almost always to Glossier makeup product, while “no-poo”
refers to general practices of not using shampoo/products that people do use
instead and not to the registered mark for a particular non-foaming cleanser. Celine
used mark talk on the internet to show secondary meaning for its robot face
bag.

Is this a one way ratchet? 6th Circuit, in case
about DJ Logic, said that FB fans, likes, followers, celebrity followers could
have substituted for sales evidence (but it wasn’t). Astroturfing is a risk.
Thinking about how to formalize this.

Eric Goldman: relatedly, weaponization is a risk: get people
to talk about a competitor’s mark as generic. Google results may be harder to
game than the direct evidence.

Lisa Ramsey: Might also shed light on failure to function!

Linford: project to identify fame: large corpora and data
analysis? That’s what you’re trying to do too. WIPO often considers internet
results to be sufficient evidence in domain name disputes; maybe that could be
a model.

Lemley: this will be more complicated for genericness b/c a
number of uses are likely to be ambiguous. Knows of existing ML project: build
a context engine to parse the use of terms that are possibly being used as a
mark v. generically.

Calboli: maybe many of these shouldn’t be registered anyway—generating
new rights that might not be worth protecting. Especially with trade dress.

A: maybe should focus more on word marks. [Hmm, I think it
might actually be more useful for trade dress, but that might depend on your
priors about how likely it is that people really recognize various supposed
trade dresses.] But wants to make space for niche uses: can be a well-known
mark among consumers of particular product.

RT: preservation through transformation: if we do this
because it gives us more direct evidence than we could easily acquire before,
secondary meaning will become a different thing than it is now. That is neither
good nor bad in itself. Will also accelerate quantification (isn’t it kind of
wild that 75 years after the Lanham Act we have no idea whether secondary
meaning has to be the dominant or most common meaning because we so rarely have
direct evidence?). Compare to what happened with rise of control arms in
surveys and effect on what percentage is sufficient to infringe—unrecognized by
courts, they increased the standard by looking at confusion net of control;
also what happened in 1-800 v. Lens.com where clickthrough rates substituted
for a survey.

A: Ideally it gets closer to what we have said it is all
along, tied to the goals of TM law.

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WIPIP SESSION 6.A. Competition and Antitrust

BJ Ard, University of Wisconsin Law School

Competition With and Without IP in the Video Game Industry

Negative space; a number of lessons. Character protection is
meaningful: Pac-Man/combination of elements. Patents can cover some
elements/game rules, but most gameplay won’t satisfy novelty. Trademark, right
of publicity. Trade secret is also one way of going after clones when the
clones are produced by former employees. There aren’t so many other ways to
prevent copying; there is only limited protection for games/rules under ©. Thus,
a game called Threes was overshone by 2048 which had the same mechanics but a
little easier, cleaner interface, marketed better: no litigation b/c Three’s
developers could see there was no case. Similarities in golf games came from
life, not copying one. Menus, point bars, selection screens are scenes a faire,
as is “save the princess” trope.

Hard to copy when a game costs millions to make: graphics,
marketing, network effects are hard to copy; feedback loop where the next Call
of Duty will sell well.

Independent developers like Three are vulnerable; Zynga
became notorious for this kind of copying.

Strategies: (1) Themes that aren’t widely
popular—depression, winning by not fighting; horror is a niche. (2) Alternative
funding mechanisms like Kickstarter or tip strategies.

Zvi Rosen: DRM seems to keep this from being a negative
space. Steam, other platforms use DRM extensively including to sell hardware.

Victoria Schwartz: Some video game copying issues do get
resolved before litigation—so there is enforcement that doesn’t show up in
public.

Giuseppe Colangelo, University of
Basilicata & Stanford Law School

Enforcing Copyright
through Antitrust? The Strange Case of News Publishers Against Digital
Platforms

Digital platforms
seem to expand the market at least as much as they substitute for news. But
concern is that Google/Facebook’s bargaining power means they take too much
advertising/lack transparency in advertising.

European way:
Twisting © through article 15 of the SDM: additional layer of © to encourage
cooperation b/t press publishers & online services. From an economic
perspective, critics say there’s no empirical evidence in support of free
riding narrative and no proof of a causal relationship b/t introduction of
neighboring right and increase in revenues for press (German and Spanish
experience). Legal perspective: critics say overbroad (any digital use of
insubstantial parts that don’t meet the originality requirement) and
contentious definitions (“press publication” and “very short extracts”). French
competition authority and Google are fighting about title/headlines: do those
count as extracts?

French antitrust
case: French law required remuneration for reproduction and communication to
public of press publications in digital format. Google said it wouldn’t display
extracts unless publishers set a zero price. French Competition authority said
Google had to negotiate because it has a dominant position in general search.
But both the domestic law and EU Directive create a right to prohibit use of
protected content, but do not establish a right to obtain remunderation or to
require the conclusion of license agreements for use of the protected content.
Even antitrust law cannot transform a wish into a duty. Paris Court of Appel
nonetheless affirmed the order to negotiate in good faith with press publishers,
and Jan. 2021 announced agreement w/French publishers.

Outside the © box:
US: hot news doctrine, fair use, antitrust suit against Google for digital
advertising. UK: ex ante code of conduct + investigation into G proposals to
disable third party cookies. Australia: mandatory bargaining code with binding
final offer arbitration process as backstop. In Europe, hyperlinks aren’t
covered, but in Australia, even hyperlinks are covered. Canada: rumors of rules
to force digital platforms to pay news outlets.

Conclusions: ongoing
debate about role of competition policy. EU © approach has limited
effectiveness; French approach forces negotiation in shadow of competition law.
Regulation as a more coherent way, but potential unintended consequences. Other
ways to support journalism might be better, not through IP/competition policy.

RT: Contradiction
with monitoring/anti-abuse initiatives: what happens if FB concludes that a
publication is an arm of the Russian government? What happens if this turns
into ad fraud? Interested that you mentioned the digital advertising antitrust
suit b/c that claims that ad prices are too high—press might make less money if
it succeeds. Factual questions: If G were broken up, would there be any
argument for the publishers under French competition law?  Does Bing or DuckDuckGo have any of these
agreements? Or are the French publishers now interested in maintaining G’s
monopoly because that’s the only reason agreement is required?

A: Lemley’s recent paper on conflicting goals of regulation
says same things. The regulators are pursuing conflicting goals! Google in
France will accept the deal forced by the French competition authority; this
will create trouble for Facebook. Probably FB’s reaction in Australia is a way
to anticipate reaction in Europe, b/c there’s discussion there about a
mandatory code of conduct in the digital sector, which would be another proof
that the ancillary right itself has no effect. Some Europeans are trying to add
the Australian “solution.”

Nikolas Guggenberger, Yale Information Society Project, Yale
University

Essential Platforms

For transportation, we have regulated modes that are the
only way to reach customers (bridges, railroads). The app store is the new
version of that. Certain digital platforms have become gatekeepers for
commerce, and this strangles innovation. They extract monopoly rents and
destroy competitors. They can behave in that manner b/c network effects shield
them from effective competition.

Learn from the past: essential facilities doctrine, establishing
access rights for competitors.

First, we should revive this doctrine as applied to
platforms, granting downstream competitors access where the market doesn’t have
reasonable alternatives; bar discrimination and self-preferencing; guaranteeing
horizontal interoperability. Second, expand the doctrine and upend the platform
monopolies entirely by ensuring horizontal interoperability—competing platforms
can reach customers on Amazon, competing app stores can reach customers on
Apple or Google Play, competing social media can reach customers on FB. Like
the telephone network works today, where AT&T customers can reach T-Mobile
customers. Analogy to optimal design of IP rights: we create monopolies to
incentivize innovation, but those exclusive rights are limited in time and
scope. This allows follow-on innovation which is existential for economic
progress.

RT: still have questions for abuse; isn’t this
pro-counterfeiting, especially when many market participants are overseas and
not otherwise subject to regulation—we want the sites to screen those out. You
want bridges with guards.

A: Wouldn’t require platforms to sell whatever they’re
offered. Business justifications for denying dealing would still exist. Safety
concerns or other legal violations would be relevant. But you can’t
discriminate to safeguard monopoly profits/position.

RT: But does essential facilities doctrine really teach us
anything about how to resolve conflicts about who should get to sell?

A: would not be that interested in federal rules of platform
procedure, but the decision Amazon makes should be reviewed judicially. Whether
it allowed due process wouldn’t necessarily help. [One of things Amazon gets
criticized for is giving its partners more deference in defining/policing
unauthorized uses, so I don’t think we can completely separate “anticompetitive
behavior” from “kicking people off for bad content”—indeed that’s the issue
with the recent 9th Circuit case saying 230 doesn’t apply to
allegations of anticompetitive conduct. And the massive House report complains
that Amazon fails to police against counterfeits, and immediately thereafter complains
that Amazon kicks too many small sellers off for selling unauthorized
products.  It’s possible that both are
true, but solving both problems is harder than solving one of them.  It may well be that the sorting costs are
worth it, but I think more needs to be said about how that would work.]

BJ Ard: How do you make it more concrete? Delisting apps due
to conflict between Apple and Epic is easy. But FB interoperability sounds
hard. [Do you really want it interoperating with Parler?]

A: various possibilities do exist for transferable
information, e.g. services building on existence of bank account without
coordination w/bank.

One of the challenges is that a small company might not be
able to do anything with the raw data—this is why they need access to Amazon’s
tools.

[In chat I asked about whether we want FB to interoperate
w/Parler; his answer was yes, but FB can apply its own content moderation
standards exactly as they apply to content originating with FB.]

Liza Vertinsky, Emory University School of Law

Artificial Intelligence, Patents and Competition

Thesis: ML along with control over large data sets will end
up increasing concentration of and control over innovation processes in ways
our current regulatory system is not equipped to deal with. (Sorry, not good
with patents.) To those who have, more will be granted—the predictions will get
better with more data, increasing the advantage of business.

Joy Xiang, Peking University, School of Transnational Law

IP Licensing, Antitrust Law, and Access to Essential Technologies

What are essential technologies? Pharma tech (Doha
Declaration), cleantech, digital platform technologies. Global South is a net
importer of such tech and this allegedly contributes to exploitation. Available
mechanisms in antitrust and IP: abuse of dominant position (refusal to license,
essential facilities doctrine, excessive/abusive pricing); IP misuse doctrine;
int’l or regional exhaustion/parallel imports.

Refusal to license: US makes actionable under exceptional
circumstances; usually no obligation to license from IP owner. EU is similar.
China says there’s no obligation to license, with valid justifications.
Essential facilities: US hasn’t recognized IP as essential facilities, but EU
and China are open to using the doctrine and to considering IP as essential
facility. South can learn from EU/China on abuse of dominant position.

Christine Haight Farley: this requires a very well
functioning administrative state to provide access.

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