Alleging that unauthorized reseller sells old product defeats first sale defense

Posted on February 13, 2017 by rtushnet
Unite Eurotherapy, Inc. v. Walgreen Co., Case No.:
16-cv-01706, 2017 WL 513008 (S.D. Cal. Feb. 7, 2017)
Unite sells boutique hair care products through authorized
resellers and its own website. Unite alleged distribution agreements with all
of its resellers, allowing those resellers to make sales only through limited
channels and prohibiting those resellers from selling its products through
online or internet channels. Since about August 2010, its distribution
agreements contained an Anti-Diversion Agreement prohibiting resellers from
selling “Product to persons or entities purchasing Product in bulk” or to “any
diverter or redistributors of products or to any other person or entity
reasonably believed to be purchasing Product for subsequent sale,” as well as
related provisions. 
Unite sent defendants C&D letters informing them of
these agreements and that its online sales of Unite were unauthorized.
Defendants continued to sell the products on walgreens.com, allegedly resulting
in the loss of two accounts and numerous other existing clients threatening to
drop the brand.

The court found that intentional interference with contractual relations was
properly alleged, even though Unite didn’t identify the specific third parties
who’d been induced to violate their agreements, because it sufficiently alleged
that all its distributors were bound and that Walgreen knew that because Unite
told it.
Unfair competition/trademark infringement: Defendants
pointed out that the first sale doctrine exists.  But there’s a quality control exception: “Where
the distribution of a product that does not meet the trademark holder’s quality
control standards results in the devaluation of the mark by tarnishing its
image,” the non-conforming product is deemed not genuine and infringing. The
question is “whether the public is likely to be confused as a result of the
lack of quality control,” because of a hard-to-detect defect in the product.
Unite’s first theory, that consumers would likely be
confused into believing that the sales were authorized by Unite, was barred by
the first sale doctrine.  But Unite also
alleged likely deception about the quality of the product, “because the
unauthorized sales are dumping old product of degraded quality into the
marketplace.” Thus, the quality control exception applied.  Comment: How can this be sensible?  Unless Unite reclaims old, unsold product—which
allegations the court didn’t mention—then authorized products can be just as
old. The allegations the court mentioned were that Unite engages in extensive
product testing (pre-sale), and that it carefully chooses salon sellers to keep
the products off of others’ online sites, because online retail sites tend to “
‘dump’ products that have been sitting on shelves or in warehouses for too long
and therefore of lesser quality.”  But
all products age; I don’t see how these allegations survive the
first sale doctrine.

from Blogger http://ift.tt/2kjNezm

Posted in Uncategorized | Tagged | Leave a comment

calling a rival “imitation” is neither defamatory nor confusing

Posted on February 13, 2017 by rtushnet
Baltimore Sports & Social Club, Inc. v. Sport &
Social, LLC, 2017 WL 526499, No. 16–cv–02953 (D. Md. Jan. 6, 2017)
 

BSSC logo

Sport & Social logos

BSSC initiated suit, claiming that Sport & Social’s use of the marks BALTIMORE SOCIAL and BALTIMORE SOCIAL SPORTS, the yellow and black colors and the Maryland State flag were likely to cause confusion.  Defendant Sport & Social counterclaimed against BSSC for
a declaratory judgment of noninfringement, as well as for tortious interference,
false advertising, and related claims. The parties compete in recruiting individuals to play sports
on company-organized teams.  BSSC
allegedly began telling current and prospective customers that it was an “imitation”
social league, and at the February 2016 Sport and Social Industry Association
conference attended by both parties, a BSSC principal wore a t-shirt at with
the phrases: “BSSC, It’s the Real Thing,” and “DON’T BE FOOLED BY
IMITATIONSocials,” with the last word in the “same font and style” as Sport
& Social’s logo which contains the phrase “BALTIMORESocial.” They also allegedly
displayed the same slogan on a banner at an event at Camden Yards for opening
day of the Baltimore Orioles’ 2016 season, and put a picture of this banner on
BSSC’s Facebook page.
 

“imitation” banner

“imitation” T-shirt (PS: does Coke have an issue with “it’s the real thing”?)

Also, “[o]n separate occasions throughout the summer of
2016,” BSSC allegedly “occupied” fields at Patterson Park where Sport &
Social had planned sporting events for its customers. BSSC employees allegedly were
“hostile and rude” and “refused to leave the fields, causing disruption and
delay to Sport & Social’s planned events.”
Defamation: BSSC allegedly defamed Sport & Social by
calling it an “imitation” social league.  This couldn’t be defamatory because “imitation”
is a “rhetorical statement” that lacks precision and cannot be “proven as a true
or false statement of fact.” 
Verifiability, or the lack thereof, is the key.  Even if “imitation” is shorthand for
“counterfeit,” in this context, it was precisely the type of “loose,
figurative, or hyperbolic” language protected by the First Amendment. Even if
the evidence proved that the companies were substantially similar, that wouldn’t
prove that Sport & Social was an “imitation” of BSSC.  Because defamation was the “independently
wrongful or unlawful” act underlying Sport & Social’s tortious interference
counterclaim, that went too. The non-factual nature of “imitation” in this
context also ended the Lanham Act counterclaim.
Only a consumer has standing under the Maryland Consumer
Protection Act to challenge unfair and deceptive trade practices.

Finally, Sport & Social alleged that BSSC’s use of the “IMITATIONSocials”
logo was likely to cause confusion with “BALTIMORESocial.” Though likely
confusion usually can’t be resolved on a motion to dismiss, “a conclusory and
‘formulaic recitation’ of the elements of a[n unfair competition] cause of
action is insufficient.”  Here, that was
all Sport & Social had. (By contrast, BSSC’s initial complaint alleged
various instances of “[a]ctual [c]onfusion” including players who thought they
were playing in BSSC leagues when they were playing in Sport & Social
leagues and email inquiries from Sport & Social players regarding
scheduling for soccer, a sport not offered by BSSC.) Not only was Sport &
Social’s pleading minimal,  “the whole
point of the statement is to draw a distinction between the two entities,”
rather than to propagate confusion. 

from Blogger http://ift.tt/2kKTMG4

Posted in Uncategorized | Tagged , , | Leave a comment

WIPIP, part 5

Posted on February 11, 2017 by rtushnet
Zvi S. Rosen, The Lost (and Found) Copyright Records
Before July 1870, copyright registrations were at each
federal district court.  Form of oath
dictated by statute; also deposited title page. 
Deposit records; assignment records; indexes; misc. other records.  Process: register by signing oath at local
district court as author/proprietor; have to deposit in DC. Until 1831, had to
provide notice  by publishing in local
paper for 4 consecutive weeks. 1802: added notice on works.  Almost no one did the newspaper publishing,
as far as he can tell.  Most records held
at rare book room of Library of Congress. 
Many missing records.
B/c title page deposit was completed before publication, it
was often the only part to survive if the book was never published.  About 30% of the deposits are these ghost
books.  For some jurisdictions, only the
title pages and not the other records survive. 
DC: Good records of deposits exist for much of the period, but most
books weren’t deposited, so it’s a spotty record. 
List of non-standard registrations up to 1861, being product
labels etc.—handwritten.  Many records
were assumed lost, but ended up in regional divisions of National Archives.
Digitized all and will host at GW law. 
Goals: locate old records; crowdsource local transcription;
combine transcribed data to get a continuous record of registration for 1790 to
now.
RT: What did they think they were doing with records of
registrations?  Was there a larger
plan?  Especially interested in that
non-standard registration list—were there associated proposed reforms.  But overall: Compare to property records,
contract doctrine about reading terms: what is the importance of requiring
notice when the required steps will generally not serve to provide actual
notice?  Symbolic notice: a statement
that I know what I’m doing?  Rare chance
that someone will actually search the records before acting?  W/real property title, you’ve incentivized
the creation of intermediaries that actually perform the necessary checks—doesn’t
seem to have happened in © for many uses.
A: notice was always half-baked. They knew newspaper notice
wasn’t working and kept it in the statute for 40 years.
Q: got rid of newspaper notice in 1831 for new
registrations, but kept it for renewals.
A: technically kept until 1909. Not much legislative history
about 1831, but interesting to know why they kept it.
Silbey: Institutional memory in © registers—whether the
people who worked there worked there for a really long time, as civil servants
tend to do. 
A: it was the clerks of district courts, which was a
patronage job, about ten years. Sometimes a deputy clerk if there were multiple
courthouses.  The administrative head of
the court, but that might be the only person who worked there, maybe not even a
fulltime job.  NY had a whole
infrastructure, including a dedicated © person, with printed forms.  Delaware had 50 © registrations for 70 years—they
just handwrote them.
Very little © litigation before 1830s.
Will Slauter, Copyright Law and Registration Practice: The
Case of News, 1870-1918
Example: Wanted registration as a book, not a print, because
they wanted to sue for infringement even though it was a weekly.  Political and cultural resistance to the very
idea of owning news—18th century to today. Registration records are
used more by literary historians than lawyers—filled in gaps where no copy
survives; teach us about the use of © by particular authors; trends in
publishing.
Registration had to precede publication, which was hard for
news.  Also, what do you register—a dispatch?
These registrations, if done, were of questionable validity for a long time.
1829: Clayton v. Stone, no copyright for price current (updates on market news)—suggested
no © for newspapers, but not clear. In 1884, effort to legislate 8 hours ©
automatic; defeated. 1886: Harpers Weekly sued; newspaper could qualify as a
book under the statute, but considered an illustration so was less useful for
written news.  1900: Tribune v. AP: can
register, but lots of stuff in a newspaper isn’t covered anyway.  1909 Act: newspaper copyrightable, but only
the copyrightable matter—not the news.
1850s: seeing more registrations of individual articles, and
whole Harper’s Weekly every week.  Serial
fiction; history; politics; biography—but what about news?  1830s, attempt to legislate special © for
news in Britain; not a response to tech but to political economy, since up
until that time newspapers had a stamp duty that artificially kept prices high.
Entrenched papers invoked fear of flood of pirate papers.  1880s in US: rise of cooperative press
associations, news © proposed in US as national news organizations began to
integrate.  AP, and United Press—thinking
about a direct rival, AP leadership pushed for special © and didn’t get
it.  That didn’t stop them from
registering news articles as books. 
Colorado News & Press Ass’n found its news copied by a news thief, a
slick fellow who repacked their news for his own customers. They threatened to
sue, but he said news couldn’t be ©.
INS v. AP: Citing Nat’l Tel. v. Western Union, AP argued
news couldn’t be copyrighted.  But what
hasn’t been noticed before is that the AP had used © in the past, such as
Spanish-American war, and did so again in months leading up to INS. Registered
16 selected news stories—seems like effort to set up test case.  You might say this doesn’t matter.  Didn’t come up in the proceedings, even
though much of the debate was about whether news, once printed w/o ©, was
abandoned to public. If anyone had noticed that AP was registering and arguing
that © was impossible, that would have seemed hypocritical, but the majority
didn’t even accept the argument that © was impossible—it was possible for the
literary form, not the underlying facts, which is what the AP wanted.

Why do these records matter? Complement to history of legislation and case law—how
historical actors sought to use © and to what effects.
Silbey: administrative agencies often drive debates or reify
lines drawn from inside out; this is not a standard story of bureaucracy.
A: there’s probably a change after 1898, when the new
register does want to impose a bit of order on the chaos.
Zvi S. Rosen & Saurabh Vishnubhakat, An Empirical Study
of U.S. Copyright Registration and Renewals, 1870-1977
Until 1897 there were statistics in annual reports; then
they moved to a new building.  1891:
Catalog of Copyright Entries. That included statistical info from 1903; 1909
started listing renewals separately. 1947: richer statistical information.  Computerized since early 1970s; form basis of
public database of all copyright registrations and renewals filed since 1978.
Authors almost always registered around the time of
publication.  This can be checked by
comparing registration date to renewal date.  Over 95% registered b/t 27 and 29 years before
renewal was filed.  In 1992, dropped but
only to above 90%, and then in the last year a bunch of people tried to
register and renew at the same time. When renewal became optional, absolute #s
of renewals dropped.
Are the annual reports statistically effective for comparing
registrations to renewals?  All based on the
fiscal year, not the calendar year, for registrations, even though all the
renewal data is per calendar year. 
Large volume categories—books, periodicals, music, artwork.
Artwork peaks 1909, and only got back to that level by the 1970s. Books peaked
in 20s, dipped, then steadily up.  Music
and periodicals: steadily up.  Small
volume: dramatic works and lectures go up, then dip a lot.  Photographs: people registered motion
pictures as photos until 1920s, but still huge drop from 1000s to under 100 in
the 50s.  Panics in economy create small
dips.
Renewals: books go steadily up; motion pictures small but
still show up.  Total renewal rate by
registration year goes somewhat steadily up until renewal becomes optional,
which is a cliff.  Music: renewal rates
35-40%; motion pictures very high—the only one over 50%. Books peak for
original registrations in the 40s. 
Periodicals go up and then plateau when the renewal term becomes 47
years.  Artwork: definite jump that
steadies when renewal term becomes 47 years. 
Music is volatile, but high for works created in 1910s and 20s; goes
back up for works in 40s and 50s. 
Renewal rate for 28+28 term, 12%; extending 15%; to +47 up
to 18%; then downwards when optional, even when renewal term increased to +67.
Can do event studies to see if new Register or legal changes
map onto anything.
D.R. Jones, Edicts of Government: Copyright in State Legal Materials
Compendium: policy, won’t register a gov’t edict issued by
state in other jurisdiction, including legislative enactments, judicial
decisions, administrative rulings.  States
are nonetheless making claims of copyright. 
Some discussion in runup to 1976 Act; decision not to put specific
coverage in though some people claim that’s b/c it’s covered already.

Open access, right to access law as part of access to
justice. But what does access mean?  Is
searchability required?  Access to
justice literature talks mainly about forms, but the law itself is also
important. State has duty; doesn’t need incentive to publish.  But states induce publishers to publish by
claiming ©/exclusive copyright.  This is
the law: a factual issue.  The concern is
one for authentication.  

from Blogger http://ift.tt/2l0RJyi

Posted in Uncategorized | Tagged , , | Leave a comment

WIPIP, part 4

Posted on February 11, 2017 by rtushnet
Mark McKenna & Jessica Silbey, Investigating Design: An
Empirical Study of Industrial Design and IP Protection
Interviews & institutional analysis. Hypothesis
generating—anti-copying/copying practices, etc.
Buccafusco: consider who’s in the sample—don’t limit to
self-identified designers. Following career trajectories of design school grads
is one path but also consider other people who ended up doing design, like UX
design for websites.
Q: if you start w/ academic grads you may get rhetoric that
doesn’t match reality.
Silbey: a risk w/snowball studies; you have to ask carefully
for people who see things differently.
Q: interviews will difffer over whether you’re trying to
understand how design patents work in daily life v. what should be the system—studies
of successful design innovations?
McKenna: we want to know how people do design; incidentally,
we want to know how they’re thinking about law and how the legal system works
for them; we want to know about TM, ©, design patent but as a feature of their
work.
Lunney: studying what’s not there is hard—is there an
absence of market support for something that IP could help with?
Dogan: compare here w/Europe—is the thought process of
designers different w/an assumption of robust protection?  Also interesting to interview the designers
who copy—an entire industry in fashion & other design industries.
Silbey: The difficulty is how to disentangle what people
think they’re supposed to say about homage, about distinguishing themselves,
from the rules we know they play by. It’s cultural as well as legal.
McKenna: industrial design is all copying: they start w/a
design that exists in the world and try to tweak it. May get different kinds of
thinking about that question v. clothing. 
[Doesn’t clothing exist in the world? 
A functionality issue, perhaps.]
Sarah Burstein, The “Design” in Design Patents
Radical but unrecognized shift in the types of design we
think are patentable. Most designers think design is methodology, process, not
a thing, so it’s not surprising to see change. 
Two least favorite CCPA decisions by Judge Rich—history undermines
assumptions of practitioners.  19th
C. patent office rabbit hole: what did “article of manufacture” mean in
1877?  It took a lot.  Projects: Article of manufacture piece is
coming out soon; current talk; then partial designs.
Courts have read “new” & “original” out; subject matter:
“ornamental,” “design,” “for an article of manufacture.”  For 19th c., there was a big list,
changed in 1902 to current language. No matter how the language changed, courts
interpreted it the same: two classes of designs, shape and ornamentation. Shape
is the outward form or contour. 
Ornamentation is the surface illustrations/delineations things printed
or pressed into surface; cut glass contours for bottle.  You could claim one or both.  It was the whole article.  Ex parte Pope: tried to claim entire
configuration of seat riser as well as a portion thereof; PTO said you couldn’t
do that; it had to be the
configuration. This persisted after the 1902 Act.
Today: PTO says it’s any visual characteristics applied to
an article, which is a lot broader.  Use
the same language of configuration or shape & ornamentation.  But now we see people claiming fragments of
shape or fragments of ornamentation. 
What happened?  They say surface
ornamentation but they’ve expanded it to “surface treatment”—that opens up a potentially
broad range, including computer icons; contrasting color or materials; anything
else on the surface—golf club face scoreline pattern—that’s certainly not
ornamentation.
What happened?  Judge
Rich.  In re Hruby, 1967.  1952 Act was pretty clearly not trying to
change stuff for design patents. But when Rich gets this case for the patterns
of water shot out of a fountain—not the machinery, but the water sprays—the PTO
says nope, that’s not a design for an article of manufacture and the PTO
reverses.  Article means anything made by
man, and the sprays of water are made by man. 
Technically about different subject matter requirement but important b/c
Rich equates configuration with 3-D design and then says the water is ok.  The court showed no understanding or care for
the historical meaning of either article of manufacture or design.  They could have said Congress meant to change
it, but they didn’t it.
In re Zahn, 1980, drill shank case. The design was the shank
portion; the PTO refused b/c said the entire configuration was the design, not
just the shank.  The court said that was
cool b/c the statute didn’t require an entire article.  This is a watershed—you can be creative in
design patent application. This is where shenanigans start in earnest.  Possibly not aware of relevant history and
precedent. More likely: larger emphasis on periperhal claiming, allowing
applicant autonomy in defining the scope of the claim—the design is what I say
it is.
So what? (1) Important for reading old cases. Don’t assume
that the contemporary rules applied, even if the language is the same.  (2) Current interpretation: are we stuck in a
Zahn world?  No, can note its shaky
historical foundation, lack of inevitability of reading the language in this
way.  Implications for (1) partial
designs, US and int’l; (2) GUI design patents—since this is the basis for
approving such patents; (3) debates over special remedy of full disgorgement.
If we’re reading old cases wrong, may be reading them wrong as to this too.
McKenna: does Apple/Samsung lock us in b/c the Ct has said
that the article of manufacture can be a component—makes it no longer sensible
to talk about partial design if whatever is claimed is the design.
A: not sure that’s what the Ct did. In theory, we could
acknowledge that some components are articles, but we could make you claim the
whole component—the screen, not some corner of the screen.
McKenna: but now can’t I say the article of manufacture is
this corner?
A: in the 19th c. they would have said now.
McKenna: Apple/Samsung is a second-best solution; maybe it
was never necessary in the first place if we shouldn’t have been granting these
patents in the first place—a rearguard attempt to fix problems from Zahn.
A: still interested in distinguishing article of manufacture
from design.
Lunney: always important to know how we got where we
are.  Also important to know it was Judge
Rich—ex parte, w/just a gov’t lawyer and an applicant—shows how these things
can go wrong/off the rails. You may not be able to rewrite, but can tweak way
appeals from PTO are heard.
RT: interesting to put in context of legal thought of the
time: pre-Realist; they thought there were platonic ideals of everything, not
just a design.  Formalism—we don’t have
to abandon that if it’s encoded in the statute. 
[Now I’m thinking about tax doctrine: there’s evasion and avoidance; we
recognize that laws create structures that one must take into account, and some
things are within the statute and others without—especially if a distinction is
made by the legislature, it is acceptable to say that some line must be drawn
and that the legislature could rationally put it in one place even if facts on
the ground are something of a continuum, like a speed limit.]
Stacey Dogan, The Role of Design Choice in Intellectual Property
and Antitrust Law
Issue in both contexts: should law influence the design of
technology/innovation?  Answers differ
depend on political/ideological predispositions in IP and antitrust.  People who are strong advocates of IP rights
are often antitrust skeptics and vice versa. 
Grokster, Aimster, Betamax; Allied Orthopedics, Microsoft—common factor
was courts being asked to look at the design choices made by defendants and
unpack them to figure out whether their choice of design should be impugned b/c
it helped enable infringement or exclude competitors/shore up a monopoly.  The design itself wasn’t independently
unlawful, but allegedly unlawful for role in achieving some unlawful end.
Courts’ starting principle is non-interference.  Or so they say.  Generally leave it up to the market to bless
design.  Non-interference in ©/TM:
substantial noninfringing uses make a product ok; parties need not design
staple products to avoid or minimize infringement; not a cost-benefit
analysis.  Parallel in antitrust: even
monopolists don’t have to design products to make life easier for competitors.
And yet: Grokster, court looks at design as one of the
factors taken into account in determining whether there’d been inducement.  Both technological design and business goals
in designing the system as it did.  In
some antitrust cases, Microsoft and Bard, courts look behind the product to
figure out what motivated particular aspects of the design choices.  Bard biopsy guns: a redesign of the gun was
made w/primary intent of making the gun incompatible w/others’ needles.
Microsoft browser bundling, making it very hard for people to remove it and
substitute Netscape.
Are there common themes or differences across
IP/antitrust?  Common reasons for
non-interference: error costs (impossibility/incommensurability of weighing
value of innovation v. other interests—risks of Type I/false positive errors);
supervision costs (oversight of design—court reluctant to be regulatory
agency); chilling effect & interference w/legit trade.
One reading of Grokster
focuses on intent: to root out ventures that wouldn’t exist but for
infringement.  It’s not actually the acts
of inducement that matter; they are only evidence of intent to induce.  Focus on whether intervention would interfere
w/commerce unrelated to infringement. 
Theory: unlikely to interfere w/future development of tech done by
people w/better motives.  Similar thread
can be found in antitrust cases.  Courts’
starting rule is not to second-guess design choices. Attempts to identify
dimensions of products that have no purpose but to exclude.  Things that made no economic sense except
when exclusionary effects are taken into account. 
Posner is willing to interfere w/design choices in Aimster, whereas he’s hands-off in
antitrust; Michael Carrier is very strong non-interventionist in IP context,
but believes in heavier hand in antitrust context. This reflects normative
views of underlying area of law.
McKenna: we have an entire area of torts based on products
liability—law is perfectly willing to second guess design when there are good
reasons. Why in IP but generally not elsewhere? 
Antitrust, market power tripwire—might be more reason to intervene v. IP
which applies to every actor in the industry.
RT: Ann Bartow’s point: TM/false advertising flip is the
same, where people who like strong TM like limited false advertising liability
and vice versa (it me).  Nature of the
people you’re harming; ability to protect themselves via knowledge or
competition?  So with antitrust we might
say competitors can protect themselves via the market more easily than
consumers w/product design.  Likewise,
the IP cases in which these principles come up are not standard individual
infringement cases; they are cases in which it is clear that it is industry v.
industry, whether or not they’re contributory infringement cases; it’s clear
that big market actors with big structural effects are in play.
Lunney: property v. markets—Posner & Carrier would both
say they’re consistent.  Do they just
weight the values differently? 
A: sure, but interesting to unpack that to figure out what’s
underneath.
Aaron Perzanowski [& Dave Fagundes], Juggalos Without Juggalaws:
The Norm-Based Governance of Clowns
Following up on Dave Fagundes’ work on roller derby; also
Perzanowski’s work on tattoos, w/premium placed on unique designs viewed as
deeply personal in part b/c they’re connected to the human body.
Clown eggs: carefully painted, disturbingly accurate
portraits of clowns painted on chicken eggs, including wool hair and portions
of costumes.  Astounding and maybe
disturbing. Seems to have originated in UK, now known as Clowns Int’l.  Also, disputes about similarity on online
forums (these are awesome).  What norms
spring up: was the registry a response to norms; did it create norms?  How does the registry screen or resolve claims?  Does it play a role in norm enforcement?  Why has the UK registry persisted and the US
registry has not?

Q: what’s the standard of similarity? To the untrained eye, there is not
infinite possibility here.  So how does
that relate to similarity measures elsewhere?
A: good question. There are conventions; 4-5 types of clowns
recognized as genres, so there are constraints on how much you can do and still
be recognized as a clown. We’ll get some of that from interviews.

Sheff: seems more like dilution than confusion—it makes my
entry in this space indistinct b/c similarities are so close but not
exact.  Dilution of a non-strong identity;
as opposed to dilution for famous marks—might provide insight on what dilution
gets wrong.

from Blogger http://ift.tt/2lAlrGZ

Posted in Uncategorized | Tagged , , , , | Leave a comment

WIPIP, part 3

Posted on February 10, 2017 by rtushnet
Carys J. Craig, Relying on (User) Rights-Talk: On Copyright Limits
and Rhetorical Risks
Many ways to limit ©; here focusing on defenses/exceptions,
the ideal type of which is fair use. If our goal is to constrain ©, what should
we be calling these things?  Not a
doctrinal Q as such, but a critical theoretical inquiry—a strategic concern in
Canada and internationally.
Semantics isn’t all. 
There is confusion about the ontology of the nature of “limits,” “exceptions,”
“defenses, “user rights”—how we conceptualize user privileges or freedoms has a
direct bearing on how we define lawful uses w/r/t availability; scope; burden
of proof; conditionality; effectiveness, etc. 
Logic of the reasoning: nothing short of “user right” can trump
proprietary rights of the owner. But will that necessarily serve the interests
of the public or those who hope to constrain ©’s excesses?  Double-edged sword.  Natural rights or individual rights based
claims for © inevitably lead to broader © and undermining public interest—ever-increasing
pool of creations; increasingly restrictive interpretations of defenses.
Canada: due limits to authors’ rights come from users’
rights in fair dealing.  Must not be
interpreted restrictively; user rights are not just loopholes. Necessary for
fairness & balance.  Canadian SCt has
reiterated that it’s serious a few times. 
Int’l implications: Israeli courts had to figure out whether
move to fair use was a move to user right; SCt first said simply a defense, not
a user right, but 2 subsequent cases referred to it as “right.”
US: Patterson & Lindberg, 1999, © as a law of user’s
rights based on 1A.  A few lower court
cases arguing that it is a right granted by the Copyright Act, not merely an
affirmative defense.  But bound by SCt to
apply it as a defense.  Outliers; the
affirmative defense version is the accepted one, dissolved into external
individual rights like freedom of speech.
Int’l treatises still use “limits” and “permitted
exceptions,” even in the Marrakesh treaty which is the first to require
exceptions. Still a lot of mobilization around user rights.
What’s wrong with rights? Metaphorical balancing acts.
Commensurate weight with creators as considerations to be traded off; zero sum
approach.  All interests reduced and
traded off with one another.  Turn into
CLS: they’re just a legal fiction. Critique of the critique: critical race
theorists, who say that they can be useful legal fictions & we should wield
them anyway for our own benefit.
Can cause us to overlook social values, public policy
purposes that should be animating discourse about where the limits of © rely.
We might inadvertently reinforce rights rhetoric in the © domain—it’s hard say “use
rights” for users and then say “use utility” when authors make their rights
claims.
RT: Rights talk literature, e.g., Mary Ann Glendon—an interesting
debate on the right over what IP is and whether it’s a right; Julie Cohen:
rights talk in privacy v. ©.  I end up
mostly rejecting “The master’s tools will never end up dismantling the master’s
house” because it’s not very easy to dismantle the master’s house without them.
Buccafusco: maybe differently useful/harmful in different
contexts?  Public, legislature, judicial
systems?
A: Certainly for critical race scholars—dual consciousness,
where we use them with people who talk rights talk, but we should be aware that
we’re donning that mask & understand ourselves that’s just a game. But we
can’t separate out audiences; rights have a way of becoming real, making it
harder to talk about the values that inform them.
Lunney: more historical reasons on why users’ rights are
popular at this point in time?  [Possibly
Jessica Litman’s work on expansion of ©?] 
Certain desperation in responses to ©’s excesses.  Are we trapping ourselves into something that
will turn on us?  [Consider Jack Balkin’s
concept of ideological drift in this regard.]
A: theory of what © is in Canada—what caused that?  Has to do with tech change, networking of
users, state of © reform, and particular political activists like Michael Geist
mobilizing a user community base.  Politics
of when rights emerge as claims, as argued by Duncan Kennedy: group starts to
recognizes itself as a group in a positive and not just negative way and
formulates a rights claim to be neutral and apolitical.
Said: People who aren’t aware of rights won’t enforce—knowing
that one is part of a group is a privilege.
Martin Skladany, Proposals to Reduce the Harm of Excessive Copyright
Protection That Are Immune to Big Copyright’s Influence
One possibility: Creating a tech union not to argue for
better pay but to argue that Google’s policies on privacy should be different—a
political organization aimed at its boss. 
Do we have any incentives to reduce consumption or increase creation
that don’t involve getting stuff via Hollywood? 
Collective funds to get more revenue into the pockets of artists—a hedge
fund for artists.  Sign a contract
saying, if at any point in next 30 years, they’re called on to deliver 30
pieces of art to the fund, they’ll do so; they’ll only be called on to do so if
they become famous. A small way to chip away against the harms © is
creating.  Not all the ideas are
attacking overconsumption/undercreation; other ideas attack orphan works
problem; other ideas attack low pay for artists.
Most of what we overconsume today has neurological component
explaining why we overconsume—TV’s attentional inertia; online use, various
rewards.
Rosenblatt: Challenge the underlying assumption that
consuming and producing are mutually exclusive—there’s more creative output,
and more high quality output, now than there ever has been before.  Nor is your underlying assumption that more
money à
more creation necessarily true, or that more punishment for noncreation would
create more creation. People don’t like to be compelled to create stuff, in the
long run. 
Skladany: on average that’s not what we’re
watching/consuming.  Not worried about
productive consumers; the prototypical scenario is someone who watches TV and does
not create.  That’s not healthy.
Rosenblatt: maybe he needs more inspiration, and not less Hollywood.
Skladany: © isn’t the main reason; we should be funding lots
of arts education.
Said: would it matter if people were watching 10 hours of “news”
a day?
Skladany: what’s the value of 10 hours a day? Would you want
a 5-year-old watching like that?  Let’s
get rid of lots of © and see where the chips fall.
Buccafusco: what you’re saying is that the general
assumption about consumption and creation is backwards—that consumption in ©,
which we normally treat as leisure, which we usually attempt to maximize, is
bad at least over some tipping point. 
And creation, which is labor, which we typically want to minimize, is
good.  You can make these arguments but
you have to say why—the history of © has been going in another direction, which
is to try to convince people to labor to create © works with the reward of ©.  We spend a lot of time trying to figure out
the appropriate amount of consumption of calories; if you eat too much or too
little you die earlier and can’t eat later; there might be some amount of
consumption of entertainment that’s bad, but what is it?
Skladany: Not a liberal but a perfectionist.  I’m not forcing anyone to create, but if you
don’t create in your life, something is missing.  [I think we all actually agree w/him but are
not sure why these solutions would spur these non-creators (if non-creators
they are) to create.] What is overconsumption? 
I’m not going to commit to X amount of hours.  Calories too depend on other factors. 
Pager: Is the 10 hours the problem or is it the opportunity
cost of those 10 hours?
Skladany: the latter: what else is important in life?  Family, friends, helping others.  [Auden supposedly said: “we are put on this
earth to make things,” but also “we are put on this earth to help other people;
I’m not sure what the other people were put here for.”]
Q: a theory of why people consume 10 hours/day: so when you
meet a stranger or a friend you have a shared experience to talk about
together. Can reinforce social ties. There’s a variety of things that shared
consumption can get you socially.  [Like
fan fiction!]
Skladany: if you’re consuming 10 hours/day, you don’t have
time to work—our consumption often occurs at work, but not if you’re a factory
worker.
Glynn S. Lunney, Copyright’s Price Competition Deficiency
There’s very little price competition for © works: iTunes is
$1.29 or .99; good movie/bad movie you pay one price at the theater; video
games are mostly all the same price when they come out. Aftermarket in used
stock exists, but initially we get the same price. Broadcast TV, you get 12
min/commercials for every ½ of content—the price is the same.  Bundling has different consequences.
Competition—as an economist, we look for cross-elasticity of
demand. Many © works don’t have that kind of competition—you won’t see La-La
Land if the price is 5% less than Rogue One; you wanted to see Rogue One.  Some degree of market power, creating
familiar deadweight loss triangle. Optimal price w/works of varying popularity
is to set different prices to maximize profits/rents. That’s what we use as
incentive in © to reimburse author etc. 
Deadweight cost: exactly half of producer surplus where we have linear
demand curve. 
If you can only charge one price for both that maximizes
total income, you’ll set a different price. 
Get less rent for popular and unpopular works; fail to sell as many of
the less popular works than you should—higher deadweight loss for less popular
works, though lower deadweight loss for more popular works.
Introduction of price competition in the eBook market: some ©
owners set a low price on eBooks—especially first volume in trilogy, new
author.
Initial foray: 50 “best” books from 19th and 21st
centuries; found lowest prices for paper/electronic copies of each.  Lowest price for electronic copies of 19th
C.: zero.  Ave. for print: $5.  You could also find higher-priced
ebooks.  21st century: eBook
price averaged $10; paper $9.  That is
curious. 
Costs of © are therefore higher in a digital environment. ©
enables value-based rather than cost-based pricing—that is, market power.  Charging more for convenience.  We don’t need © to ensure continued
distribution of public domain works, shocker! 
Clumping in both markets: paper, median and mode is $9.52; eBooks,
median and mode is 9.99.  Also more
clumping at eBooks—other prices recurred a lot. 
Buccafusco: lock-in to Kindle?  Tricky to make assumptions about that.  Interested in ideas about extent to which
consumers just don’t know value of works. Often producers don’t know
either.  When most people go to the
movies, they don’t know what they’re going to see—they stand there and
pick.  [So weird.]  They might take price as a signal of quality,
and discount movies that are cheaper.  If
they do that, and if producers are also uncertain about consumer price
sensitivity, then it might be easier to signal that all are high value and
discount later on.  Look at circumstances
where consumers do have well-formed preferences at time of purchases to see if
there’s still price competition?  [Diet
Coke and Diet Pepsi?]
A: doesn’t buy lock-in since most of those prices were from
Google Play. If price is signal of quality, what is the role of other
indicators, like ratings? 
Neel Sukhatme: Initial Q: why have uniform pricing?  Apple knows how to make $ (though it’s money
for Apple, not for the record companies). Uniformity may draw people to the
system.  How do the contracts work?
[Apple; the record companies fought hard for minor price discrimination and
only won after Jobs’s passing.]  Formally
model this: if there’s an error in understanding how much a song is worth,
maybe it makes sense to start off the same for everything and deviate over
time.
Said: doing the daily deal was a full-time job—pushing and
shaping the market, not just consumer demand. 
Always interested in when things are dropping out of licenses and
disappear from Netflix.  Suspect that’s
happening in eBooks.
Eric E. Johnson, Intellectual Property and Growth Economics
Robert Cooter: Rapid economic growth quickly overtakes
static inefficiency in redistribution, as long as it is sufficiently rapid.
Innovation is the most important thing! 
Or maybe the future is so advanced as to be unimaginable.  If we take seriously the idea that tinkering
with IP can cause tech to take off at exponential rates—a very large population
of people living happy lives could be spread all over the universe—that’s a
potential good lost, happy lives, with every year of delay; entropy is
advancing irreversibly or we are sacrificing good lives worth living.  [Oh, for Jeremy Sheff’s commentary on this.]
What’s helpful here? Focus on dynamic efficiency is useful
in broadening our perspectives. 
Criticisms: (1) implementability—how do we distinguish b/t fertile
inventions that give rise to more innovations and thus be kept free and
inventions that should be given IP rights? Cooter says “bring in economists!”
but he also says economists have been wrong up to him.  (2) argument proceeds on unfounded
premises.  He says economic growth
compounds like a dollar in a bank. But that’s different from innovation—how does
innovation compound?  A new class of
molecule might lead to 50 new drugs, but after that the innovation slows—they aren’t
each a new class of molecule.  (3) IP
rights can put the brakes on growth for innovations that foster further
innovations; so what you really need is a lot of incentives, but incentives
that don’t provide market power—government rewards. 
Rosenblatt: are you simply condemning hyperbole?  People who make outsized claims are probably
wrong.  We do fair use in © to identify
uses that are productive—what about doing the same in patent?  Maybe the place to tinker is not in
protectability but in scope.
Lunney: economists’ fixation on greater income may not be
consistent w/flourishing, above a certain level of income. More advanced tech
may not be better tech in terms of human satisfaction.

A: he skips past that and says innovation à
growth and growth is what’s good.

from Blogger http://ift.tt/2kelIyw

Posted in Uncategorized | Tagged , , , | Leave a comment

WIPIP, part 2

Posted on February 10, 2017 by rtushnet
H. Brian Holland, We Are All Cyborgs Now: A Cognitive Theory
of the Third-Party Doctrine
Once upon a time there were categorical protectsion for
private papers against search & seizure. Courts then ruled that personal
property was no longer categorically exempt from search and seizure.
Distinction b/t papers and other effects was broken down.  There’s a warrant requirement, though.  But an exception if the gov’t’s acts aren’t a
“search” under the 4A.  A search occurs
when the gov’t violates a reasonable expectation of privacy.  Third party doctrine comes in to show there’s
no reasonable expectation of privacy. Voluntary assumption of the risk that a
third party would disclose to the gov’t—gov’t needs only subpoena or similar
process.
Sotomayor: Ill-suited to digital age, given our sharing of
more information with more third parties. 
“Sharing” means something different—not just intentional tangible
exchange. Not necessary to commercial relationship; now baked into basic
tech.  Personal papers stored on third
party servers such as those of Dropbox—covered by 3d party doctrine even though
there may be no person on the other end! 
Does not comport w/reasonable expectations of privacy.
What is to be done?  First,
personal papers are not mere effects, which are separately mentioned in the
4A.  Worthy of special, if not
categorical, protection.  Specifically,
3d party doctrine should be narrowed to protect personal memory artifacts that
are created, communicated, and stored on tech designed to structure, replace or
augment human memory.  Looking at
cognition and memory, linking function to doctrine.  Related to the idea of embodied cognition and
the extended mind.  These cognitive
memory artifacts are part of our cognitive systems; should be protected b/c of
relations b/t 1A, 4A, 5A—they play a role in freedom of thought and freedom of
conscience.  Linked to idea of security
of persons.  Bodily integrity linked to
autonomy, dignity, and identity—the extended mind is also an extension of the
body.
Consistent w/other theories; passes Orin Kerr’s test of
being tech neutral in the sense that you don’t gain a benefit as a criminal by
using digital tech.
Many people agree that the 3d party doctrine should be
curtailed but we haven’t had a theory w/a judicial impact.  My solution: reinvigorate “papers” as a distinct
object of protection w/their own theory. 
Problem: b/c of the history, there’s little literature on the protection
of papers under the 4A; most is focused on the place where the papers were
found—the home—and the papers as property. But that’s not descriptively
accurate any more.  Should we look at
scholarship on creativity? 
RT: Skeptical that would help b/c it’s not clear that papers
are different—thinking about Erving Goffman & Peggy Radin, where it’s
possible that other property will be equally important to personhood.  Framers?
A: they said nothing about why they used both papers and
effects! In England, the history is largely about searches for (seditious)
pamphlets, which ended up being found in the home but were intended for broad
distribution; in the US, the history is largely about searches for untaxed
items/tax records.
Q: Recent case—police got pacemaker data—under 3d party doctrine.  But if he wanted to get the information himself,
DRM might have prevented him from
doing that. 
Stacey Dogan: what’s the line?
A: there is no absolute line—some people take pictures of
everything they want to remember.  I’d
rather look at the 3d party instead of the particular use.
Dogan: but you may lose people who don’t believe that a song
in your cloud storage is a personal appendage.
Amanda Levendowski, Fair Use for Fair Artificial
Intelligence
Lots of scholarship on biased AI.  There are lots of ways to introduce bias—the people
creating the algorithms; the data selection; data classification. IP
scholarship hasn’t addressed how © can channel AI.  E.g., training facial recognition algorithms
on white faces.  Amazon’s same-day
delivery rollout didn’t include Roxbury, predominantly black area—result that
people in that area didn’t get the same access. 
ProPublica’s investigation of machine learning algorithm for reoffending
after exiting the prison system; African-Americans were assigned higher risks
for lesser crimes. This could change bail, sentencing, parole for the
worse.  Likelihood of arrest was related
to overcriminalization/overpolicing in predominantly black areas.  Word mapping: Google News showed gendered
patterns.  Neutral: king is to man as
queen is to woman.  Man is to computer
programmer as woman is to homemaker—the algorithm picked up bias by reading
human works.  Training an AI on the Enron
emails is going to be based on the habits of a bunch of white oil & gas
guys from Texas.  Latanya Sweeney: people
searching “black” names aren’t going to get good job ads and are likely to get “search
for a criminal record” ads instead.  This
isn’t how we should train our algorithms.
Low-friction data (easy to acquire) are biased.  Twitter firehose: API allows most tweets to
be used in research. Userbase skews young, white, and urban—made Hurricane Sandy
look like it was centered in Manhattan, not Rockaway where they lacked
electricity.  Wikipedia: largest CC
source of data: fewer than 10% of active Wikipedia editors are women. If you’re
using Wikipedia for low-risk natural languages training, you get the bias of
the people who edit Wikipedia.  Same
thing happens with public domain books, and judicial opinions (largely written
by old white guys w/degrees from Harvard and/or Yale).
Solution: Google Books. 
Messy ethical question: do we actually want our robots to be really good
at recognizing people, or talking to us?
Q: Copyright Compendium’s argument that copying by a machine
isn’t expressive at all?
A: Compendium’s focus is whether computers can author.  It’s not copying, it’s scraping; there are
different words for the same thing. But Judge Koh in Meltwater was very
concerned about scraping that ignored robots.txt.  It wasn’t a true CFAA case, but the idea of
scraping can create issues with CFAA.
Alex Roberts: what’s the protected by copyright but unbiased
corpus that could be used instead?
Q: works by feminist authors or those w/intersectional approach,
post-1923.  If you want a robot that
doesn’t code homosexual as a slur, you need recent books.
Tiffany Li, Robots vs. Animals: Toward a Unified Theory on
Intellectual Property Rights on Non-Human Creators
Elephants paint; the monkey selfie; computers or algorithms
can create art or new discoveries. No consensus on applying IP principles to
those two categories.
Why does this matter? 
Today’s science fiction is tomorrow’s science fact.  What incentivizes non-humans?  Should we try to do so?  Do we only want to incentivize human
creativity?  Fairness theory: should
trees have ©?  Who determines who the
creator was if there’s no human author? 
Personality theory: does a nonhuman have any moral rights?
Monkey selfie: is the author the person who pressed the
button on the camera? Or the person aware of the work being created?  David Post says pressing a button b/c it
makes a funny sound isn’t authorship b/c authorship requires an awareness that
a work is being created.
Algorithms don’t work the same way computer generated art
does. Right now our computers are not aware of an act of creation. If we
consider authorship as only something human, there’s no point in discussing
this, but I’d argue that what creativity is shouldn’t be limited to humans—there
will almost certainly be AI that can decide to create, or will create what
looks like the same mode as human.  Ultimate
Q: what does it mean to create, produce, or author a work?  Comparing computers to animals can lead to
interesting conclusions about envisioning a photo v. clicking a button. 
RT: Why care? Compare this question to 3D printing, which
also to me raises “why care” questions insofar as the principles seem pretty
similar even if the outputs are different.
Holland: does it matter whether it’s the animal incentivized
by the click of the camera or the computer incentivized by its
programming?  If the point of © is more
works, which is a big if, then would it matter whether it was a human?
Cathy Gellis, Testing the Limits of the Section 230 IP Exemption
Stealth provision from Sen. Wyden to counteract the rest of
the CDA—to make sure that censorship wouldn’t be too easy.
Trademark, not part of the Progress Clause—why does it get
shoved under the rubric of intellectual property?  Paper tries to explore that.  How do we figure out what IP is?  Why do we think that, and can we push back on
it?  One reason this is important: lots
of people use workarounds.  Lots of
people frame their problems as © problems; Google v. Garcia was not about the
film’s distribution being harmful for reasons that had anything to do w/©.  Registrars are willing to break anonymity too
easily—anonymous speech is protected by the 1A. So she wants to get TM out of
230 to avoid evasion.
There are other things that go wrong. In the 9th
Circuit, the IP exemption means federal IP; other circuits, and even California
state law, include state based IP claims.
Dogan: Need to argue on two levels: if you’re making an
argument that this statute should be interpreted to exclude TMs, you have to
look at the legislative history to figure that out.  Even though there’s been pushback against use
of IP as a label more broadly, it’s undeniable that in common parlance lots of
people include TMs as IP.
A: there doesn’t seem to be legislative history on this.
Dogan: can you fix this if © workaround still exists?  You generally want there to be less liability
for intermediaries and this is a way you think you can get there—more persuasive
to give a principled reason.
A: one of these things is not like the others.

Silbey: since 230 was supposed to be easily operable
immunity, the idea that it was exempting federal criminal law and IP should
also be easily identifiable as such.  One
might think registered IP could be included. 
What is IP is too hard a question to answer, but which IP for easy
on/off immunity switch might be easier. 
Could also be how people claim the IP, rather than preemption.

from Blogger http://ift.tt/2kdV1de

Posted in Uncategorized | Tagged , , , , , | Leave a comment

WIPIP part one

Posted on February 10, 2017 by rtushnet
Works-in-Progress Intellectual Property Colloquium
Boston University School of Law
Opening Plenary [missed beginning due to travel]
Timothy K. Armstrong, Symbols, Systems, and Software as Intellectual
Property: Time for CONTU, Part II?
Functionality is still a problem. Altai seemed to work well
for a while; at least intellectually consistent w/treating software as variety
of literary work. But Oracle v. Google threw that out; said it only applied to infringement,
not to scope of protection for software. 
If there’s different ways to write code, then your particular way is
copyrightable.  Meanwhile, patentability
of software advanced here, though not in many other countries.  Congress might not have considered
patentability in AIA.
CONTU as a process: that was a worthwhile exercise, even if
you don’t like the results. Consider pros and cons of various types of
protections—we should do it again.
Wendy Gordon: maybe we should just punt—any functionality
concerns, court should not give TM/©.
A: Loath to endorse a result that might lead to thick patent
protection for software.
Dogan: if Oracle hadn’t happened, would you need this?
A: there’s still an Alice
question, but yes, Oracle is a big deal.
Lunney: if you argue for CONTU 2, shouldn’t you think that
CONTU 1 did a good job? CONTU specified specific amendments & Congress
followed, but you’re not happy w/specificity of results—any reason to think it would
be better this time?
A: That’s a question of outputs and I’d like to get some
input.
Betsy Rosenblatt: Look at current USPTO/NTIA/Copyright
Office roundtables etc.—may or may not be a black hole; §512 best practices was
totally anodyne. Can we really get a good agreement out of any group these
days?
A: Worth a try.
Rebecca Schoff Curtin, Zombie Cinderella and the Undead Public
Domain
ZOMBIE CINDERELLA for dolls initially refused for Disney’s
Cinderella for dolls—would have implied that Disney had exclusive rights to
Cinderella for dolls.  Overturned on
appeal, but TTAB relied on the idea that it was a weak component b/c others
were using the term in the market; at best highly suggestive. Denies rights
merely b/c commercial appropriation of the character wasn’t complete enough. We
should deny the first entrant into the doll market the right to control the
public domain character. Thus, we should extend aesthetic functionality to
cover elements in the public domain. Cinderella, when used w/dolls, connects
the dolls to the public domain figure, amplifying the possibilities for
play.  So too w/features of the tale that
connect to the tale—for Snow White, hair as dark as ebony and skin as white as
snow.  Non-reputation-related competitive
advantage is conferred by these elements.
Others have suggested aesthetic functionality for characters;
Zombie Cinderella enables us to step back from fraught cases of characters that
actually emerged under modern copyright (e.g., Betty Boop, Dorothy Gale).
Generic or functional for dolls? Rosenblatt has pointed out
that it may be hard to think of a character name as generic for the
character.  The goods are dolls, not
Cinderellas.  [Hm. I think they might be
Cinderellas, just like my son was a Stormtrooper for Halloween.]   Genericity
focuses too much on linguistics and not enough on the cultural work the term is
doing, a problem that could be exacerbated in a trade dress situation.
Wyatt Earp—public figure. 
Similar argument.  However, actual
applications haven’t been good. 
Superman, Batman, and Joker drawings as TMs for dolls; CCPA said that
there was no merit in the argument that the aesthetic features of the drawings
prevented TM function.  9th
Cir.: Betty Boop case; withdrew opinion applying aesthetic functionality. On
remand, the dct turned again to aesthetic functionality, but relied heavily on
finding D’s uses ornamental, not TM, use. 
Protection of feature as TM would thus impose significant
non-reputation-related advantage. That limits the potential for this defense a
lot—would not have helped ZOMBIE CINDERELLA, but why not recognize the
functional portions of each mark?
Lunney: Merry Xmas case for words on Xmas ribbon: words that
are functional; Damn I’m good TTAB decision w/that phrase for a bracelet.  Why focus on non-reputation-related
disadvantage and not other language, like important commercial ingredient in
success.
A: I’m afraid of Pagliero:
Justin Hughes says it’s been rejected.
Lunney: but it’s quoted directly by Breyer in Qualitex.  Brand value v. intrinsic value: ask whether consumers
would be better off if they were subject to competition in the market for
Disney character dolls.
Mark McKenna: be more radical—say it’s not for TM at all. It’s
not genericism, functionality: it’s Dastar—trying
to capture stuff that should be in ©. However badly © does with characters,
that’s copyright problem. Mickey Mouse may be hard, but the rest are all easy.
Q: explore failure to function/use as a mark.

Rosenblatt: aren’t you coming back to genericity? The signal being given is “this
is a Cinderella.”
A: I’m not saying just signalling is aesthetic functionality—Cinderella
Maids Service, Cinderella Eyebrows Spa, Cinderella Soap Co.  There is a lot of overlap w/genericity, but
it’s harder for product design. 
Concurrent Sessions 1
Andres Sawicki, The Law of Creativity?
Replication crisis in social sciences.  Social psychology is the main source of the
creativity literature—Teresa Amabile et al. 
Another red flag: creativity studies usually feature between-subject
study design, replicates at a lower rate than within-subject studies. P values:
doesn’t know the extent to which the literature upon which we’re relying is at
the .05 threshold; next step in project is to check this.  Effect sizes, another topic of investigated:
the larger an effect you see, the more likely it is that it’s replicable.  Studies may be underpowered; there may be
effects but you don’t see it in the subsequent studies.
Model specificity: standard IP (patent and copyright) model
is an artist or inventor facing choices whether to create.  Standard incentive thesis.  Creativity literature: we need a different
model; not sure what it is.  IP
creativity literature has adopted a motivation model or a cultural conditions
model.  Motivation: incentive thesis all
over again.  Should we be measuring the
number of works created over a certain threshold? More people choosing creative
careers? We should be more precise about the marginal benefit we want to
measure for giving IP rights.  Creativity
literature opens up the idea that we don’t just care about the $ going back to the
creator—attribution, control, something in addition to or instead of the cash.
Existing normative theories: incentive, natural rights,
capabilities. Implicit normative theory in the new literature: we should
maximize creativity.  It’s a good, but at the cost of what?  Does the literature itself have a normative
theory other than the maximization of creativity?
Jessica Silbey: When we’re comparing social psychology
literature to legal analysis of creativity through social psychology, there’s
an overarching disciplinary q of what/why those disciplines are asking when
they ask questions.  I appreciate the
replicability issue, but the larger q is whether we’re running experiments for
the same purposes, or what the import is for the discipline in which we’re
working.  Add to this project: theory of
what the law is supposed to accomplish in the first place.  Most of the social psych, sociology, anthro
work has a theory of the discipline that informs the experiment.
A: As legal scholars, what is our goal/responsibility in
drawing on other disciplines?  An
opportunity for interdisciplinary work. 
It’s not just an idea of describing creativity; he sees the idea as
maximizing creativity—or well-being, autonomy, competence, relatedness: we
should have debates about whether those are the normative aims we want to
promote. 
Sean Pager, A Unified Theory of Authors and Incentives
Criticism: current law’s “© directly induces creativity”
model relies on demonstrably false theories about creativity; sometimes
copy-skeptics want courts to call into Q the whole idea of copyright—straw man.   I
think this model oversimplifies and I want to rescue the incentive model from the
cloud it’s under.  Reframe what ©
incentivizes: creative investments, not creative works.  Piggybacking on Jonathan Barnett’s Copyright
Without Creators.  Investments in
post-creation commercialization.  This
explains a number of features of copyright doctrine.  He’s persuaded by most, but wants to refine
sharp dichotomy b/t creation and commercialization.  The commercialization process is chock-full
of creative acts/talent, that progressively adapt original authorial work into
derivative forms that represent original works of authorship.  Script development.  The industries are motivated by copyright;
that’s authorship that’s happening.  Most
clear in AV industries, but also recording, even publishing.
What about individual authors?  Are they just intrinsically motivated or does
© change the way authors behave?  There
are different types of authors.  Two such
types: the commercially minded creators—mercenary, Samuel Johnson non-blockhead
types.  Plenty of examples.  But what about the intrinsically motivated—does
© change their behavior?  Maybe they’re
creating out of love, but they also need to eat and pay rent, and sometimes
need inputs to create.  © leads people to
invest more resources, creating works of higher social value.  Does the market value social value directly? That’s
a caveat/something he wants to bracket. What about works the market doesn’t
value?  They’re not left entirely out of
the cold because of the derivative rights market.  People who want to direct films serve as
camerapeople on films—commercialization process puts more money in the system
that provides often well-paying jobs to creators while they’re waiting to
succeed; they gain training, skills, experience, personal contacts—so when they
can engage in passion projects they’re able to do so. A particular kind of
cross-subsidy. Also creative clusters subsidize individually motivated
creativity.  Lifetime career arc of
investment also leads to more investment in better creativity—just like pickup
softball players are intrinsically motivated, but pro sports leagues have
higher investments in skill and creativity and thus more entertainment value.
Q: Does anyone disagree w/your basic thesis?  Or are we arguing about what’s necessary to get creativity if that’s
what we want, given insistence by MPAA et al who show up to Congress claiming
that “we won’t get any creativity at all unless you make Google filter its
search results”?  That is, we are
interested whether Johnson was right about blockheads or whether he was at best
joking since that sentence is in his own diaries—and also in what tradeoffs we
are willing to accept in order to get these investments in specific types of
works, which may crowd out or suppress other types of works.  Perhaps we don’t want to bracket the question
of what’s valued by the market versus what we want in the universe of
creation.   Perhaps we’re interested in the gendered and
raced ways in which the standard paths of access are open to certain people—another
way to describe what you’re describing is ‘the old boys network.’
A: I was myself constructing a straw man of objections.
There’s an awful lot written that has oversimplified incentives. If you want to
disagree w/©’s incentives having acknowledged them, he’s cool with that.
Silbey: How important is the anti-copying protection that
exists today to the argument that they need to make money?  That is, money as an incentive versus © as an
incentive. The equation w/needing to earn a living and © as the means to earn a
living is not entirely clear to her.
A: not claiming that no one would engage in commercial
creativity w/o ©.  Marginal
increase.  Counterfactual models/marginality
is addressed in other papers.
Silbey: so anti-copying is the lynchpin?
A: other things too—moral rights, attribution—© has a
mismatch in the US but it does some work in this direction.  Some publish more b/c they have control.
Silbey: Control is different from $.
Sawicki: compare © to other mechanisms by which people earn
money for creativity.  Instead of NEA,
consider uniform basic income for creators.
Jorge L. Contreras & Jacob S. Sherkow, Dividing the Spoils
of CRISPR
CRISP is a way to edit DNA by removing, adding or altering
specific DNA sequences—like word processing for genetic sequences. Many
applications—disease-resistant crops, therapies for genetic disorders, etc.  Discussion of exclusive licenses from
universities—controversial in that they cede control to private companies not
bound by principles of more open practices. 
Surrogate licensing, to avoid obligations—including NIH models. It’s
profitable as a model and it has existed since Bayh-Dole.  Licenses can be made non-exclusive.  Groups will need cross-licenses from each
other—opportunity to take a step back and rethink exclusive licensing.
Q: don’t you need exclusive license to enforce?
A: that’s the concern—they can shut competitors out by
refusing to license; companies have legitimate economic rationale for
foreclosing competition.  Socially
suboptimal.
Aman Gebru, A Model Legal Framework for Intellectual Property
Protection of Traditional Medicinal Knowledge
The Hoodia story: patent granted on extract for weight
loss.  Companies eventually felt they
couldn’t produce a drug that would meet regulatory standards. There was no
provision for communities at first but companies were ultimately willing to
share profits w/them because of public backlash.
Traditional medical knowledge can be a shortcut in the drug
discovery process—one study found that TMK increased the chances of getting a
preliminary hit in plant screening from 6% to 25%. But it’s easily lost b/c of
primarily oral nature.  Encourage
investment in codification?  Gov’t investment
or subsidy; private investment (he thinks most efficient); secrecy
(inefficient); group cooperation (highly limited); first mover advantage
(little potential).

Contreras: hard to bind 100s of thousands of community
members w/o draconian legal regime.

from Blogger http://ift.tt/2kXvskW

Posted in Uncategorized | Tagged , , , | Leave a comment

P&G fails to clean up “natural” suit over baby wipes

Posted on February 7, 2017 by rtushnet
Brenner v. Procter & Gamble Co., No. 16-1093, 2016 WL
8192946 (C.D. Cal. Oct. 20, 2016)
Brenner sued on behalf of a putative nationwide class and a
California subclass of those who purchased Pampers “Natural Clean” Baby Wipes.  The individual packaging is green and includes
stylized depictions of flowering plants, animals, and leaves:
The overall box is less ornate, but still greenish:

Brenner alleged that this packaging was “false and
misleading” because the Natural Clean wipes contained “an unnatural and
potentially harmful ingredient called phenoxyethanol.” An FDA press release advising
breastfeeding mothers not to use a particular nipple cream that contained
phenoxyethanol and another troubling ingredient describes phenoxyethanol as “a
preservative that is primarily used in cosmetics and medications” that “can
depress the central nervous system and may cause vomiting and diarrhea, which
can lead to dehydration in infants.” A May 2012 report from the French Agence
Nationale de Sécurité du Médicament et des Produits de Santé cautioned
consumers not to use wipes containing phenoxyethanol on infants under the age
of three because of concerns about the compound’s “reproductive and
developmental toxicity.” The FTC took at least two enforcement actions within
the past year against cosmetic manufacturers of “natural”-labeled products
because they contained phenoxyethanol. The FTC’s press release about the
enforcement actions describes phenoxyethanol as an “artificial ingredient[ ].”  Brenner brought the usual California claims.
P&G argued that Brenner didn’t suffer an an Article III
injury-in-fact because she could not have believed that Pampers Natural Clean
Wipes were free of synthetic chemicals, given her prior lawsuit against
Kimberly-Clark for its Huggies “natural & pure” baby diapers and “Natural
Care” wipes must have made her aware that “natural”-branded baby wipes aren’t
free of synthetic chemicals, including phenoxyethanol. The court refused to
conclude on a motion to dismiss that “any reasonable consumer who was allegedly
misled by a ‘natural’ label would, without question, research every ingredient
found in any similar ‘natural’-branded products to check for synthetic or
potentially harmful chemicals before making a purchase.”  Further, Brenner alleged that the problematic
chemicals involved in the other lawsuit were different, and that her transition
from Huggies to Pampers was a reasonable response after “learning that the
Huggies brand failed to meet her expectations.”  Thus, her allegedly deceptively induced
purchases constituted classic Article III injury.
Still, she couldn’t seek injunctive relief because she didn’t
allege an intent to purchase again if the labeling were fixed.
Because the California statutes use the reasonable consumer
test, they don’t require a showing of fraud unless the plaintiff alleges “a unified
course of fraudulent conduct and rel[ies] entirely on that course of conduct as
the basis of that claim.”  If a claim
only partially sounds in fraud, the court should disregard the allegations of
fraud and consider whether the plaintiff states a claim.  Here, the court wasn’t convinced that the
complaint sounded wholly in fraud. The general allegation that Defendant knew
about the FDA and French government findings didn’t “necessarily” imply that
Defendant made its “natural” claim with the intent to defraud; it was “equally
consistent with an inference that Defendant disagreed with these governmental
findings or found them irrelevant to its product.”
Under this standard, Brenner stated a claim.  The FTC, at least in certain contexts, views
phenoxyethanol to be “artificial” and thus not “natural.” This conclusion wasn’t
dispositive evidence of meaning, but it raised a plausible inference that a
significant portion of consumers could be misled. The product packaging, which
uses a lot of green and depictions of flowering plants, reinforced the
plausibility of misleadingness.  Also,
even if a reasonable consumer wouldn’t believe that a “Natural Clean” baby wipe
contained no synthetic ingredients, it was plausible that a reasonable consumer
would believe such a product did not contain any potentially harmful chemicals.
The bulleted text below the label, “unscented with a touch
of aloe,” was not enough to limit the “natural” claim: it wouldn’t prevent a
reasonable consumer from thinking that the claim meant anything more than “unscented
with a touch of aloe.”  The court refused
to find as a matter of law that a “natural” claim, unmodified by “100%” or
“all,” couldn’t plausibly be deceptive.  Likewise, the fact that “Natural Clean” was a
trade name didn’t prevent it from being deceptive; trademark law doesn’t
preempt California consumer protection law.
P&G also argued that the “Natural Clean” label couldn’t
be actionable because “natural” has no generally-accepted meaning. Most of the
dictionary definitions to which P&G pointed were clearly inapposite:
P&G definitely wasn’t claiming that its wipes are “based on an inherent
sense of right and wrong” (as in “natural justice”) or “relat[ed] by actual
consanguinity as distinguished from adoption” (as in “natural parents”).  But the more pertinent definition, “existing
in or produced by nature : not artificial,” was consistent with Brenner’s
allegations.
The FDA and FTC haven’t defined “natural,” but that didn’t
make deception implausible; both entities have indicated that misuse of the
term could be deceptive.  The FTC has
taken at least two enforcement actions against cosmetic manufacturers for their
use of “natural” claims because the product contained phenoxyethanol.  While the FTC has said that “natural may be
used in numerous contexts and may convey different meanings depending on that
context,” that just indicates that “natural” doesn’t have a universal meaning
across product categories; it could still have a falsifiable meaning in a given
context.
The court also declined to stay this action under the
primary jurisdiction doctrine.

from Blogger http://ift.tt/2ljMF4E

Posted in Uncategorized | Tagged , | Leave a comment

Latest additions to my collection

Posted on February 7, 2017 by rtushnet

Etsy is a font of interesting objects, including dollhouse miniatures, handmade jewelry, and even soaps (which would make good party favors for IP events, just sayin’).  Transformative works?

jewelry for teaching defenses by

dollhouse miniatures

handbag soaps

closeup on Chanel soap

closeup on LV soaps

from Blogger http://ift.tt/2kIx5mI

Posted in Uncategorized | Tagged , | Leave a comment

use of P’s jewelry in D’s ad is regular passing off, not reverse passing off

Posted on February 6, 2017 by rtushnet
Brighton Collectible, LLC v. Believe Production, Inc., 2017
WL 440255, No. 15-cv-00579 (C.D. Cal. Jan. 30, 2017)
Brighton sued Believe for infringing Brighton’s copyright in
a jewelry design and also engaging in false designation of origin/unfair
competition.  In particular, Brighton
alleged that Believe used photos of Brighton’s jewelry into the promotional
materials for Believe’s lower-quality jewelry. 
One Brighton collection includes a heart within a heart design, the Reno
Heart.

Reno hearts from Brighton

Believe publishes product catalogues used in student
fundraisers.  Brighton alleged that the
infringing products were substantially similar to the Reno Heart earrings and
bracelet, but lower quality and priced lower. Believe sold 5,414 of the
bracelets (at $19.50) and 3,849 sets of the earrings (at $14), less than half
the price of Brighton’s analogous items.
 

Believe promo image from opinion
Promo image, Brighton heart, Believe heart side by side
Defendant sought to exclude the testimony of Robert
Wunderlich and Margaret Campbell regarding damages. Wunderlich was a principal
at Discovery Economics, a professional services firm that consults on economic,
financial, and accounting issues. 
Wunderlich estimated Brighton’s lost profits, including his calculation
that customers who purchased an item of jewelry from a Brighton retail outlet
also bought an additional 1.27 other items, on average.  Campbell would opine regarding “the
anticipated effects of knockoffs or imitation products on an authentic brand,” including
on likely confusion and on lower willingness to pay for Brighton products.
The court allowed Wunderlich’s testimony, which indicated a
decline in Reno Heart sales relative to Brighton’s other lines, even though
Wunderlich failed to account for all the possible other sources of lost sales.
He didn’t ignore something so central to the case as to make his opinion
inadmissible.  Also, the court allowed
him to testify about the 1.27 multiplier, which the jury might accept if it
made its own findings about how many sales Brighton lost.
The court also allowed Campbell’s opinions about the damages
she expected to follow from Believe’s alleged use of Brighton’s jewelry to sell
lower-quality products and the relative prices of Believe and Brighton’s
jewelry: lost sales and brand “dilution.” “Courts regularly permit marketing
experts to testify to the role of branding, distinctiveness, and design in
consumer behavior as well as what effects they would expect based upon the
facts of any particular case.”  Here, Campbell’s
opinion was sufficiently grounded in the evidence. Failure to conduct a
consumer survey didn’t undermine the reliability of her opinion.  (The court doesn’t explicitly discuss her
opinion on the likelihood of confusion. 
If the court is really allowing expert opinion on likely confusion to
substitute for a consumer survey, that’s an outlier.)
The court also found sufficient evidence of lost sales to
allow Brighton to proceed on its claim for actual damages.  Where a party’s marketing is misleading, there
may be “no need to require appellant to provide consumer surveys or reaction
tests in order to prove entitlement to damages.”  To recover lost profits, “a plaintiff must
make a ‘prima facie showing of reasonably forecast profits.’ ” Here,
There is evidence suggesting that
Believe disseminated nearly 700,000 sales catalogues nationwide wherein Believe
used photographs of Brighton products to sell similar, lower-quality jewelry
for less than half the cost of Brighton’s analogous Reno Heart products. After
Believe sold over 9,000 bracelets and earrings using photographs of Believe’s
copyrighted design, Reno Heart Collection sales declined at a higher rate than
Brighton’s other jewelry sales.
That was enough to create a material issue of fact. Plus,
Believe’s allegedly infringing sales provided an upper range for an award of
damages.
Believe argued that the unfair competition claim was
preempted by the Copyright Act.  Reverse
passing off—allegations that Believe sold Brighton jewelry as its own—would be
preempted.  But this allegation was that
“Believe’s sales of lower-quality, but confusingly similar products using
pictures of Brighton products gave them an unfair advantage in the marketplace
and constituted unfair competition.” That was regular palming off, and not
preempted.  (Under Dastar, does the allegation relate to the origin of the physical
objects, or the origin of the creative spark behind the objects?  Does the answer depend on whether consumers consider the bracelet they receive to be “the same” as the bracelet in the photo?)

from Blogger http://ift.tt/2lfrdxP

Posted in Uncategorized | Tagged , , , | Leave a comment