Notre Dame Roundtable on Scope, part 5

Posted on March 31, 2017 by rtushnet
Abraham Drassinower, Publish and Perish: Remarks on
Copyright Duration
Commentators: Barton Beebe and Chris Buccafusco
Beebe: for non-WFH, term is calibrated to lifespan of
author.  Why so reliant on the death of
the author to measure protection?  Not so
interested in the historically contingent elements; more analytical.  Not interested in duration as such, +50, +70,
etc.  Not interested in corporate works
or even relatively functional works like computer code, or other works of low
subjectivity like technical manuals. The ideal © work in this mediation is a
novel or critical essay. How would this sensibility, which isn’t concerned
w/history, work w/TM law?
Why death? B/c of independent creation as a
requirement/doctrine, which sets it off from TM and patent. Result is a play of
identity and difference. There is a single text, but two separate authors might
have authored it separately.  The two
texts would then be treated as different works as a legal matter.  © is indifferent to the objectivity of the
work—a communicative act. Two different authors can produce two different
communicative acts even if they produce exactly the same text. Author’s status
is not transferable. It can’t be suddenly their death that measures the
term.  [Two deaths of the author: also a
description of WFH, no?]
Millar v. Taylor: personal link b/t author and work allows disclosure
w/o abandonment, but that also entails limited duration as right. Author’s
authority as speaker can’t survive her own death.
Responses: why doesn’t the argument actually support
perpetual ©?  Authority could survive
death, couldn’t it?  Gorgeous,
uncommodified version of © as communicative acts, not expression on the
marketplace. Is this a narrow slice of daily life of © in market/different from
standard case of commodified object?
Death of the author: used to support the myth of independent
creation, which the paper takes for granted. Duration based on death indicates
that the author is the source, not the society etc.
Buccafusco: as a thoroughgoing welfarist, skeptical of
logical analysis of legal scheme. If we have a theory of what © is, what should
it do/is it likely to do w/r/t more peripheral doctrines? From independent
creation we can learn something about duration. But which way does the causal
arrow run? Does duration really tell us what the central point of © is?
If certain durations must follow from certain goals of ©, you
have to really hammer that home. Counterargument: © has never been linked to
the death of the author. Ending at death isn’t the same thing as ending if
death—if you register then die, you’d get the full term.  Beginning to apply a fixed term once death
occurs is different, and so we need to know how to think about this post-death
fixed term. The author’s authority survives, for a rather long time.  Draws on distinction b/t patent and © but
never tells us what’s importantly different about what inventors do and why
their relationship to their creations is different.
Scope: that I have spoken doesn’t mean you can speak for me,
Drassinower says, but that’s except for all the times I can—not substantially
similar, under license, fair use, when I inaccurately attribute to you. So what
kinds of speech are appropriately the author’s and what are not (this is likely
to be in the book but not the chapter).
Drassinower: Tied to the person of the author—the proposition
that the work is an act. Independent creation is unthinkable if we think of the
work as a thing b/c an independently created work would be the same thing/a
trespass. It has to be an origin issue, about acts. Once you think of works as
acts, then copies aren’t “things” out there, but rather megaphones through which
the author thinks. When the author dies, they’re no longer personifications of
the author and their status dies with the author. Link is severed by biological
death, and work is now in public domain [after 70 years have passed].  Not applying a theory of anything, just
trying to understand why death is in the statute. Either we account for why
death is in the statute or we say it shouldn’t be, but our theory of © should
account for it, especially given the foundational issue in Millar v. Taylor
which is whether there was to be a public domain/limited duration at all.
Fromer: people prefer life plus to fixed term—optimism bias
or something else? One thing w/Canadian lens is that you don’t have America’s
problem of WFH.  This is a big problem
for an Americanist trying to make the same claim as you are—who is authorship
given to? You need a new formula once an entity is the author.  Also interesting to frame it as being about
death than about life.  What if you
framed it another way?  © doesn’t stop at
death, sure, but one thing you can say for sure is that © goes through life.
Drassinower: yes, he thinks we misunderstand the
relationship b/t author and copyright by having it extend so far past
death. 
Yelderman: Authors can lose their rights to speak by
transferring ©. Shouldn’t your theory not just give the author a defense but
even cause the © transfer to be forfeit?
Said: death of the author/the reader matters at least as
much/more. The concept is about creating additional dignitary interests in
readers, but you are using it for the author.
Drassinower: we should think of the work as a connection b/t
author and audience—it is the site of a relationship, juridically speaking. If
that’s what the work is, then one pole’s disappearance makes the whole thing
disappear.
Said: if you double down on that characterization, it feels
fundamentally incompatible with a property interest at all.  She sees a tertium quid, a space w/a reader’s
interest (also a property interest?).
Drassinower: the analogy is not property or patent bargain,
but defamation: link w/reputation.  After
death as well as in life.  Interested in
looking at the text to tell us what differentiates copyright from other regimes:
independent creation.  Otherwise: We’d
have to understand which parts are historical accidents and which aren’t, which
is difficult to do. He’s not sure independent creation is a myth: not about
divine creation.  If there’s no
independent creation, then © makes no sense as a whole.
McKenna: your method is to try to ID foundational tenets and
extract them, then reason about what would make the system work. A lot rides on
identifying the critical features. Why not say: a central feature of © is that
it lasts 50 years after death?  The fact
that it doesn’t expire on death has historically been a feature of every ©
system and so why don’t you extract that. 

Buccafusco: independent creation is required for patentability (though not
infringement). You have to not-copy in an especially clever way, which should
produce a strong relationship b/t inventor and creation.
Fromer: in patent what predominates is the length of the duration.
You might want to say that inventors also have some sort of connection, but
there is a strong interest in keeping the duration much shorter, so lifespan of
creator will be problematic.
Drassinower: defense of independent creation in ©, absent in
patent, is important.
McKenna: novelty is not about whether you copied it, but
whether you made the same thing as something that existed before.  Copying probably makes the same thing, but
copying is not the key.
Buccafusco: you get so much from originality in ©, whereas
in patent you have to invent and do so much more to qualify for patent.
Drassinower: I’m not trying to find a theory of why patent
isn’t perpetual, but rather trying to figure out why death is in the © Act.
Lemley: is the act of authorship static or dynamic?  No concern after death seems to presuppose
that author is not speaking any more, even if audience is still receiving
message and still cares about the source. 
That suggests authorship is a one-time act. But if so, why does it last
beyond the moment of creation itself [or publication]? The only reason for
duration at all that is moral is the idea that it is a continuing relationship
w/the work.  But if that’s right, how do
you get a moral theory for stopping at death? 
At death economic incentives cease to work, but what else?

Drassinower: can endure, like a reputation, where the right doesn’t endure
beyond your life even if the reputation does. 
Rule Against Perpetuities: the owner dies and the right persists, but
only so long.
Buccafusco: why isn’t the right analogy privacy? Right of
first publication—seems just as plausible as the scheme you posit here. Sure,
defamation is a different analogy but why pick it?
Lemley: you seem to view my speaking as a continuing
act.  If I say it when I’m 15, then
forget about it, if it’s still me speaking during my life why doesn’t it
continue after my death?
Drassinower: you can no longer authorize or reject speech
after you die.
Lemley: what if you’ve assigned the right to authorize?  Couldn’t I contract it to survive my life?
Drassinower: you don’t own it after your life.
Said: does it matter if copyright contributes to works being
lost/suppressed, impeding the author’s communicative function for books out of
print?  You’ve privileged one thing (authorization)
in a way that hurts the author’s interest. That suggests that people’s works
who don’t ever fall out of circulation should get better or different
treatment, introducing hierarchy of interests. The interests in communication
don’t feel static; if you cast them as static for a theoretical/normative
purpose, you have to overcome the empirics/theories that would privilege the
readers, or privilege other values such as efficiency.
Drassinower: there could be a distance b/t what is happening
and what © doctrine is saying. I’m trying to understand how © is
operating.  Seems to him that © says that
authorship generates a certain kind of right that lasts at least until death.
Lemley: you’re saying I’m still speaking when it’s reused—it’s
a new act of speech by me.  But that’s
somehow not true after death.  Compelling
me to speak is a fiction—it may be completely clear that it’s a pirate copy.

Drassinower: b/c you can neither authorize nor not authorize
after you’re dead. Work is ongoing act; each copy is not a commodity but a
representation of the author as speaker. I don’t think you can make sense of
independent creation and fair use without this concept.

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

Posted in Uncategorized | Tagged , | Leave a comment

Notre Dame Scope Roundtable, part 4

Posted on March 31, 2017 by rtushnet
Chris Buccafusco & Mark Lemley, Screening Functionality
Commentators: Abraham Drassinower and Jim Gibson
Gibson: regime shopping is even more troublesome than scope
problems in one regime. Design patents seem to exist purely for regime
shopping; everyone wants a patent right w/o having to go to the PTO.
Didn’t find the notion of a percentage continuum of
functionality all that helpful b/c the limiting doctrines/screens discussed
very infrequently depend on the percentage of functionality in a given work—maybe
merger does. They tend to boil down to some kind of separability (e.g., Altai’s
nugget).  Not tonnage but ease of
extracting one from the other, except for design patent which has jettisoned
any requirement. Some are more bright line than others; Google v. Oracle says all
consideration of what’s separable is shunted into fair use which is at least
chronologically clear.  The filter being
used is often a function of the kind of work the author creates: software,
product configuration, PGS work. But it’s also a function of where the court
sets the boundaries of the work; that performs a separability/filtering
function itself—are we starting w/ something purely aesthetic or
functional?  Maybe the X axis should
represent separability where Y axis represents functionality—they’re related
but distinguishable.
Originality as a more important screen after Star Athletic: Breyer suggests that the
majority’s test would still produce a defendant-favorable result after
originality is applied.  Also merger: one
concept of merger is functional constraint on choices. You conceive of merger
as something that kicks in at the low end of the aesthetic scale, but maybe it’s
the zero/vanishing point on the scale. Originality would also fit in there.



Material that gets filtered out, but comes back in in
compilation analysis—look and feel analysis gets sloppy, though there are some
real compilations w/new aesthetics when put together.  A lot of screens aren’t just functionality
screens, such as idea/expression, which also mediates between past, present,
and future authorship.  Even Altai isn’t
entirely about functionality—also about originality, public domain. Left
w/question: if you’re evaluating screens in pros & cons for functionality,
do we lose anything b/c of pros and cons for the other work that these screens
do that we should be considering?
Drassinower: differences b/t exclusion and filtering: what’s
out altogether, and what’s out even though it originally got in (like a border
crossing and you have visa for a particular purpose). They both preserve free
competition.  Exclusion as a heightened
originality requirement—not copied, and subjecting to filtering ought not be
too costly; if it is too costly, we have a heightened originality
requirement.  But do you mean to say that
originality is formally an independent principle, and if so what’s the relation
with functionality?  Other tension worth
developing: functionality as market efficiencies.  Administrative efficiency is separate: the likelihood
that judges/etc. will make wrong decisions. Elaborate market logic’s
relationship to administrative logic that presides over the
functionality/protectability determination.
Lemley: A one-D line wouldn’t allow you to draw the
distinction we want, which also goes to scope of protection.  X axis is percentage of functionality, Y is
scope of protection; in a perfect world we’d have a 45 degree angle, with only
the nonfunctional stuff protected. What constrains that? Administrative costs,
difficulty of filtering. What do we do given those costs to get the second-best
outcome?
Separability, not in the Star Athletica sense, can help us
with the easy stuff to figure out the size of the “work.” Copyright does screen
on percentages—in certain contexts the game is not worth the candle.  Food, yoga poses.  Leave it out entirely, or leave it out unless
it passes a threshold.  Depends on
assumptions about how much will be expressive v. how much functional.
Exclusion = what’s out entirely; filtering tells you what
you get once you’re in.  It’s rules
(exclusion) v. standards (filtering). 
[Does that make sense when exclusion is often itself done case by
case?]  The reason we have functionality
doctrines is channeling in the service of market efficiency, but implementation
of functionality screens is not driven by market efficiency; it’s driven by
concerns about administrative efficiency.
Buccafusco: we try to avoid defining functionality at all.
We are also concerned w/incentives: we don’t seem to be experiencing a shortage
of recipe-related creativity, or dam-related creativity, or polka-related
creativity—interaction b/t incentive costs and administrative costs helps
explain the screen.  [Also error costs,
as Lemley points out—even if we didn’t think there was much need for
incentives, we wouldn’t be so worried if we thought this would be done in an
error-free way; individual errors are costly as McKenna points out.]
Fromer: you’re conflating exclusion and filtering based on
actual examples—you tend to talk about exclusions as categorical b/c that’s how
we see them, but they don’t necessarily have to be that way. Separate factor
affects that: if it’s case by case that affects costs.  Another factor not disaggregated is
timing.  Administrative costs: you assumed
that filtering would be later than exclusion. 
So what costs are just about one or the other?
There is a functionality screen in utility patent: utility.
Is there any symmetry going on? Thinking through that might illuminate other
areas.
Burstein: Design patents is the most disconnected from the
others. But is there really no filtering in design patent? We do it in
infringement/claim construction—not in principled or clear way, but even though
it’s not done in validity, you get particular appearance and not general
concept.  What would a threshold look
like?  Would it be enough to disclaim the
functional part by putting it in dotted lines?
McKenna: No recipes is one kind of categorical rule.  Traffix is another kind of categorical
exclusion, but it’s a determination based on substantive definition of
functionality rather than ontological status as recipe. © has a mixture of both.
TM law is almost uniformly not ontological. 
One way TM tries to mitigate costs: Wal-Mart shifts the curve over,
making it have to meet other thresholds for secondary meaning so we don’t have
to get to the difficult functionality issues. So think about sequencing w/r/t
other doctrines. Is it better to do originality first, or is it so permissive
that we are using functionality to avoid hard cases?  [RT but practically, don’t courts and the PTO
tend to do both functionality and no secondary meaning, belt and suspenders?]  Court sometimes can’t figure out secondary
meaning so does functionality; Louboutin is the opposite, where they do secondary
meaning b/c they can’t figure out functionality [and then they neglect
infringement analysis; Louboutin is a weird one b/c it finds secondary meaning
and then announces there’s no infringement]; no rule of law tells them which to
do first.
Lemley: exclusions are the easiest to do before trial so we
go there first. Filtration tends to require a jury. As a practicing
lawyer/administrative cost sensitive person, instinctively on board with
avoiding hard questions when easy questions can resolve the cases.  Gives him some pause is whether doing that
case in and case out ends up having selection effects that bias the substantive
law.  If all the strong functionality
cases are also cases in which there aren’t secondary meaning, we might
therefore get a functionality doctrine made up of cases in which functionality
argument is pretty weak.  Sequencing as
error cost reduction in particular cases might have systemic effects on
doctrines/case law.
McKenna: just exclude product configuration altogether, that
will solve the problem.
Lemley: one way to insulate decision from reversal is to
make a bunch of aligned findings: functionality and no secondary meaning, or
secondary meaning and nonfunctionality. That tendency is less in courts of
appeals than PTO and district courts.
Beebe: There’s no third category—neither aesthetic nor
functional—proposed in the paper. This seems suspicious.  Where do you classify political or religious
speech?  Nonfunctional, but therefore
aesthetic?  For you, the secondary
category is the aesthetic and your real focus is functional and nonfunctional,
and you could dispense with any reference to the aesthetic.
Lemley: by aesthetic we might mean “something legitimately
subject to an IP regime that isn’t patent.”
Said: if you’re trying to screen, you don’t care where it
goes after bouncing off.  If you’re
trying to channel, you do care where it goes.
Gibson: but you are trying to avoid people getting back-door
patents. So you do care about the double-dipping problem.
Said: but your mechanism to deal with that problem is
screening.
Lemley: we aren’t into deciding whether the monkey selfie is
copyrightable.  It makes it through the
screen as nonfunctional, but we don’t care whether it gets ©.
McKenna: the fact that you have to be clear that it’s not
necessary for it to be patentable for it to be screened out by being the kind
of thing that could only be covered by patent—Bonito Boats—should affect the design of the screen.

Said: Litman said, 30 years ago © descriptions represented its protection as
porous; now many don’t, don’t talk about thin/thick protection.  Worried that this paper may be doing that at
the level of the work.  Could a screen
ask the question: is this work predominantly composed of protected elements or
not?  Not a fan of the more discerning
ordinary observer test for works comprised of public domain elements, b/c that’s
true of all works, but some lawyers in some jurisdictions have used a filter to
think about it that way. Some works you can see at a distance as predominantly
composed of copyrightable/uncopyrightable things.
Lemley: even short of exclusion, you’re talking about the
Wal-Mart approach from TM. Mostly not about expression (or branding) so create
a new & higher threshold outside functionality.
Said: would rather see that than filtering. When you see
filtering as a binary option, it’s almost always gotten wrong. Why give it such
an important role?  If we have to go all
the way to the facts, how is it different in any way from substantial
similarity? [It is different in framing, as the Fromer/McKenna paper suggests.  It focuses attention on chunks which may
limit the scope granted to the work/design etc.]
Gibson: still wants a definition of functional, especially
if the other side is “not functional.”
Samuelson: Vessel Hull Design Protection Act was supposed to
be an industrial design law and then it never happened; think about where that
would fit in if it changed. If the paper has generality beyond American
context: other countries have grappled w/relationship b/t ©, design law, and
other forms of unfair competition; functionality plays a role there.  If design patent didn’t have “ornamental” in
it, it’d be a straight up industrial design law.  VHDPA prohibits getting both design patent
and VHDPA protection—it’s the one prohibition in the law; does raise the
question of what the interactions would be like.

Lemley: he thinks VHDPA is really a new form of utility patent,
like plant patent. Our view of functionality there should be different b/c the
goal is not to prevent people from getting back door utility patents, but
rather to give them a new form of utility patent w/fewer requirements.

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

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

Notre Dame Scope Roundtable, part 3

Posted on March 31, 2017 by rtushnet
Pam Samuelson, Functional Compilations
Commentators: Zahr Said and Steve Yelderman
Said: Framing questions: what is functionality? Does it
differ in compilations v. other things? 
Is it the same as the useful articles doctrine?  How do owners/litigants determine and assess
functionality? Paper provides coherent and cohesive account of caselaw but isn’t
in the business of predicting how to do it going forward.  Are there tools we can offer to
courts/litigants to do this kind of filtering? 
Tort-based questions we might try.
Act of collecting is sometimes asserted as a creative
endeavor. Sometimes collecting is expensive. 
Cartographic mapping of caselaw that allows us to see patterns.  Taking the cases at face value: you don’t
move from formalist to realist modes. 
Incentives for creating them are typically economic, practical.  Dictated by function: compilations are
dictated by purpose much more than romance (or choices are more constrained in
fulfilling the purpose).  Merger ought to
have an even higher bar in the compilation side—would need something whimsical
or arbitrary, not just exercise of choice. 
Exercise of skill and judgment as foundation for ©?  If it’s testable as good or bad—if the person
exercising judgment is subject to malpractice for screwing up—that might be a
reason to exclude it from ©. Almost estoppel: if you’ve asserted value in
market based on truth status (that could be actionable if relied on and false),
you shouldn’t be able to claim that the feature is creative. Another question:
if elements improve the compilation measurably, then they shouldn’t be
protectable.  Look to advertising law for
standards re: materiality/measurability.
Steve Yelderman: Taxonomy he perceived was somewhat
different from Samuelson’s.  What’s a
compilation? Is a ham sandwich a compilation? Seemed to define it in the
negative in contradistinction to 8 work categories in 102(a).  Compilations don’t come in until 103.  But then again neither do derivative works,
which can be AV works etc.  So why can’t
compilation be literary or PGS work? True that plaintiffs often look to
compilation as fallback; but usually unprotectable not b/c missed one category
but b/c it wasn’t original or was functional. 
Often the reason we look at compilation is b/c we already have
functionality concerns looming.  One
consequence: what’s a compilation is a bit malleable.  Labels? 
In many cited cases, courts aren’t explicitly using that language, e.g.,
instruction manual cases talk about 102(b) and systems, but not so much about
compilations.
Distinct limitations, sometimes together and sometimes
apart: presence/absence of Feistian
originality/creativity.  Is the act of
creation the type © intends to incentivize, as opposed to sweat of brow. That’s
about origins, backward-looking. Other concern is forward-looking: the need for
others to access system/process in work after the fact of creation, often under
102(b)/Baker v. Selden.  That’s what he
thinks of as functionality proper. 
Recipes have Feistian creativity, but it’s still a list of instructions
about how to recreate a dish.
How do concerns about small chunks carry over to the greater
whole, or not?  Some border crossings are
legit. Feist explicitly contemplates that lack of originality at the level of
original elements can be atoned for by the judgment required in compilation.
Others not so much—yoga. It’s also possible that individual elements might be
creative, but assembled into a system might be unprotectable as a system—this is
what Delta Dental missed. The different causes for exclusion might influence
how we think about the compilation problem.
Samuelson: interested in how “compilation” served as a
backup for other claims. Agrees that compilations can be one of the 8
categories—the Copyright Office says this is required for copyrightability, as w/yoga case.  Drug labels/instruction manuals: they’re on
the fringes of compilation, but had enough in common w/other cases to include
them.  Also it’s the selection and
arrangement of elements that gets attention in infringement analysis, and those
are compilation words.  This is the small
change of ©, usually invisible, b/c not Disney or Google, but borderline. 
Paper reacts to Oracle v. Google, b/c the software here is
functional compilations—Fed. Cir. was wrong. Showing that functionality matters
outside of PGS works, contra Easterbrook.
Lemley: what would change if the paper were “functional
works” v. “functional compilations”? Real work is showing functionality limits ©
full stop.
Samuelson: that’s larger project. 
McKenna: calling them compilations highlights the extent to
which they’re only marginally protected in the first place.

Said: different notion of authorship, particularly the kinds of compilations we
see litigated. Term of art in statute v. artistic process—there’s a tension in
those two meanings, and problematizing them is a political intervention to
software as a literary work.  There’s a
definition of compilation in the statute—gathering and then starting to make
creative choices. Literary work: the whole notion that software is literary work
is unjustified artifice in copyright’s own terms, that we have to live with
going forward. Keep thinking about authorship.

Samuelson: everything about a program is structure, sequence, and organization.
Functionality has to limit protection of compilation elements, but it’s
invisible once you adopt SSO. 
Buccafusco: much of the work Altai does in filtering out
still doesn’t tell us what the protectable “nugget” is. 
McKenna: does © have any theory of what belongs to utility
patent?  Samuelson’s paper shows that ©
has some instincts that aren’t fully articulated.  We could then ask whether it matches up
w/patent law’s actual domain as defined by patent law—which he thinks is way
broader than what © says is patent law. Courts have instincts about what kinds
of functionality count; rejecting certain kinds of arguments, but w/o robust
way of talking about.
Lemley: something other than the communicative expression
achieving the results: part of the definition of functional?
Beebe: But for the TM paper we began with, papers are
unified by struggle to distinguish b/t worlds of subjective and objective.
Modernity has been struggling w/that for centuries. Human freedom/objective
necessity.  Communication of free
subjects—aesthetic in nature.  Functional
world: world of necessary, instrumental reason, compilations that don’t express
pure freedom.  What Drassinower talks
about in © is very different—the utterly free speaker, while Samuelson talks
about someone constrained by the objective world. ©’s fate is to address both,
especially b/c software consists of language. 
If you are committed to preserving human subjectivity through ©, patent
law (ironically?) offers limits.

Samuelson: Software IP lawyers say—w/demise of patentable
subject matter after Alice, some say © needs to expand. But if it’s too
abstract to be protected by a patent, it’s too abstract to be protected by ©.
One reason Oracle v. Google is a bad precedent is that it encourages that kind
of thinking.

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

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

Opinion in my suit against ICE

Posted on March 31, 2017 by rtushnet
Tushnet v. U.S. Immig. & Customs Enforcement, No.
1:15-cv-00907 (D.D.C. filed Mar. 31, 2017)
Thanks to my able counsel Michael Kirkpatrick of Public
Citizen, initially assisted by Georgetown students from the Institute for
Public Representation.  Here, the
district court denies ICE’s motion for summary judgment in my FOIA suit,
ordering ICE to do further searches/explain why it can’t and to review its
redaction of certain elements of industry guides to detecting counterfeits
supplied to ICE.
I particularly appreciated the court’s wry summary of how
this dispute began, including “Tushnet explained to ICE that an irreverent
parody of a recognized trademark does not infringe because it creates no confusion
over the item’s provenance.”  A bit more:
As reported in the Boston Globe,
ICE spokesman Daniel Modricker announced that any item that “debas[es] a
mascot—and really anything that denigrates a team—is guaranteed to be
contraband.” Nestor Ramos, U.S. Agents Tackle Fake Super Bowl Items, Boston
Globe, Jan. 31, 2015).… After reading the article, Professor Tushnet
immediately wrote to Modricker seeking clarification of ICE’s position on
parody merchandise. Modricker doubled down in his reply: “if one logo
[disparages] another logo than it would be infringement.”
When pressed further on ICE’s legal
basis for seizing parody items, Modricker looped in attorney Joseph Liberta,
Chief of the agency’s Criminal Law section. … Liberta attempted to assuage
Tushnet’s concerns by noting that ICE, in consultation with agency and
Department of Justice attorneys, relies on “potential fair use provisions and
federal circuit-specific case law” when determining whether probable cause
supports a seizure. He invited Tushnet to submit a FOIA request to obtain more
information about the number of counterfeit seizures ICE had made in recent
history.  Two weeks later, Tushnet took
him up on his offer ….
How do ICE agents determine what to seize? The court
explained:
As noted above, the only material
that ICE produced in response to Tushnet’s request for training or guidance
documents given to ICE agents were 25 instructional guides provided to ICE by
various sports leagues and sports apparel companies.  Tushnet finds it is “implausible that ICE has
no documents of its own” that instruct officers on how to distinguish
counterfeit marks.  The Court does not
share Tushnet’s skepticism on this score. It seems entirely logical that ICE
would rely on apparel licensers and manufacturers to point out the unique
features of their branded clothing, rather than to expend the resources
necessary to develop those guidelines internally. 
But that fact makes it quite important that such guides be
legally accurate, rather than overclaiming trademark owners’ rights.  It also suggests that Mr. Liberta’s initial claims to me about relying on fair use and federal circuit-specific case law were, let’s say, unfounded, which is really too bad.
I also partially prevailed on my challenge to the adequacy
of ICE’s search, given the disparity in search terms used by field offices,
some of which didn’t even use the terms I specifically identified in my
request, such as “dilution.”
FOIA Exemption 7(E) authorizes agencies to withhold “records
or information compiled for law enforcement purposes [that] would disclose
techniques and procedures for law enforcement investigations or prosecutions,
or would disclose guidelines for law enforcement investigations or prosecutions
if such disclosure could reasonably be expected to risk circumvention of the
law.”  This creates a relatively low bar
for agencies, who must only show logically how releasing information would create
a risk of circumvention.  On the basis of
this exemption, ICE redacted over 300 of the 521 pages of the industry guides
it released.
The court reasoned: “[o]n its face, ICE’s justification
appears sound:  If ICE agents use these guides
to distinguish counterfeit goods, revealing the features they look for could
help black market manufacturers improve the ‘authenticity’ of their products
and potentially avoid detection. This explanation provides a straightforward
link between disclosure and potential violations of the law.” Though the court
rejected several of my objections, however, it agreed that “there is no
legitimate law enforcement purpose in detecting non-counterfeit goods”:

[Tushnet] maintains that some of
the material redacted from industry guides might incorrectly characterize
clothing as counterfeit when in fact it is a lawful parody. Withholding such
material would therefore serve no “legitimate law enforcement purpose” because
ICE has no legal authority to seize these items. Tushnet points to a “No Flyers
Zone” t-shirt that features the Philadelphia Flyers logo with the Chicago
Blackhawks logo imposed over it as one example of an item that was mislabeled
as counterfeit in one NHL product guide. The use of the Flyers logo is lawful,
according to Tushnet, “because there is no confusion as to whether the Flyers
sponsored the shirt.”  In addition,
Tushnet presents evidence that ICE has seized other items in this same vein,
which suggests a potential misunderstanding within the agency as to what
constitutes trademark infringement. The examples offered by Tushnet give the
Court pause because 7(E) redactions would be inappropriate if there is no risk
that a law could be violated, and successful parodies do not violate trademark
laws…. Given the evidence Tushnet has produced and the agency’s apparently
exclusive reliance on industry guidance to discern trademark infringement, the Court
finds that ICE has not sufficiently justified its 7(E) redactions and that a
material factual dispute remains regarding the applicability of this exemption.

from Blogger http://ift.tt/2nI9P8M

Posted in Uncategorized | Tagged , | Leave a comment

Notre Dame Scope Roundtable, part 2

Posted on March 31, 2017 by rtushnet
Jeanne Fromer & Mark McKenna, Claiming Design
Commentators: Sarah Burstein and Rebecca Tushnet
RT: Great paper exploring the ways that different claiming
regimes contribute to producers’ ability to maximize rights by claiming under
multiple overlapping regimes, copyright, design patent, and trade dress. Discuss
specific regimes, then overarching issues.
One key argument of the paper: Early claiming might force a
designer to think more carefully, and at an earlier stage, about the ways it is
likely to market the design and about extent and nature of competition their
designs will face. Query whether this is only true when there is peripheral
claiming, or where scope is limited very strictly to the claimed
design/counterfeits thereof—early claiming by exemplar may allow for a lot of
manipulation too. One example: Maker’s Mark case v. Jose Cuervo, where the
registered mark is the dripping wax seal but it turns out that red is a
component of the “real” mark, which quite clearly allows Maker’s Mark a better
chance at validity.
The TM registration process is also more demanding in terms
of limits on presentation: the PTO will refuse to register a “mutilated” mark
or a phantom mark; the thing claimed must be recognizable and complete as a
symbol in itself without other matter interposed or to be added later. This
serves notice functions but may also make possible some intervention on scope. Should
the description offered in an unregistered trade dress have to meet the same
standards for clarity as the registration process? Paper says courts don’t have
a uniform level of generality; is there any way to specify the appropriate
level of generality w/reference to PTO practice? Drawing of the mark?
Copyright: Lack of clarity about the claim complicated
Varsity Brands: the ambiguity about whether Varsity claimed only
two-dimensional drawings or the designs of uniforms themselves. Varsity
registered its copyright in two-dimensional drawings of cheerleading uniforms,
but the Sixth Circuit treated its claim against Star Athletica as if Varsity
claimed rights in the design of threedimensional cheerleading uniforms. Did the
SCt understand or destroy the difference? The car example in the opinion
suggests that there is a difference, but the treatment of the “uniform” design
suggests that there is not.
Originality and the concept of the “work” somewhat limit the
extent to which one can manipulate the exemplar in copyright, as is likely to
be taken up on remand in Varsity Brands. But we are increasingly seeing that
design patent lacks similar constraints. Not only does it not have a decent
functionality doctrine, but the ability to claim tiny parts of a design,
accompanied by lots of dotted lines, may minimize the risks of not capturing
what a competitor will do, especially if you can file multiple design patents
on the same object—iPhone. One possible path for the paper: instead of election
of remedies, but think about whether it’s possible to limit design patents per
article of manufacture—even with many points of novelty, still only one design.
Another really useful insight: visual claiming likely
focuses viewers on a design’s gestalt—though perhaps in skewed ways—rather than
individual features, whereas verbal claiming likely does the opposite. And
verbal claiming is often unavoidable once there is a serious challenge to
validity using prior art or we’re at the infringement/scope stage—this seems to
be true in design patent and copyright, and courts don’t even try to avoid
verbal claiming in trade dress, using the ability to articulate the trade dress
in words as a proxy for the examination that the claimant has otherwise avoided
by not registering.
All three regimes entail forms of central claiming because
these legal regimes involve laying claim to some members of the set of designs
protected by the right as contrasted with peripheral claiming, which would lay
claim to all members of that set. If litigation occurs, this central claiming by
exemplar is then supplemented by claiming by characteristic. Central claiming
reduces the cost of claim drafting, because the drafting party need not think
through and articulate at the time of claiming the metes and bounds of the
design. Central claiming by exemplar is also cheaper than claiming by
characteristic, and may involve simply creating the relevant work or design.
Paper says: Visual claims are necessarily by exemplar (even
if labeling directs the viewer to particular characteristics of the exemplar). But
we can do better with notice by specifying the best way to do visual exemplar claiming,
plus supplemental claiming by characteristic. So how do we do that? One
subsidiary point made by the paper: The trick of “broken line” claiming can
undercut the notice provided by the claims and make it hard to manage the scope
of the design rights. Examiners, competitors, or judges might perceive the
level of specificity in these drawings to be much greater than they actually
are. Ok, so what is the possible solution? For design patent: Requiring a claim
to cover an article of manufacture plus the claimant’s ability to identify
point of novelty, even if the point of novelty is the overall combination? That
actually is what we do w/©, where we have a work and then the unprotectable elements
get filtered out, supposedly.  And w/TM,
we use the concept of source identifier to do the heavy lifting—with respect to
product design, the idea of “limping marks” might also be of use, cf. the
European Kit Kat case: association isn’t enough.  New thought: in dilution we’ve specified that
association isn’t enough, it must be association that impairs the
distinctiveness in the mark.  So too for rights
in limping marks in the first place: association with a particular producer is
not enough, it must be association that consumers use to identify the goods and
services they wish to buy or avoid.
Sarah Burstein: Agree re: mutilation/phantom marks: separate
commercial impression required for just a part. That could be an external
limiting constraint—where Ugg claims any boot w/ button infringes the trade
dress, maybe you need separate commercial impression.
Not sure she buys rosy picture of early design claiming—plenty
of shenanigans possible.  Paper says most
designs are claimed before infringement begins. Not sure that’s true,
especially for litigated design patents. Maybe true of what’s on register in
archives, but filed or amended post-marketing—Nike files 100 different
variants. More economical approach: file whole iPhone, then keep chain of
continuations in the oven.  Nordock:
continuation of utility patent filed 4 years after “infringer” came on market.
Earlier disclosure is good, yes.
Trade dress: Taco Cabana’s continuing ability to say that “pink
is a part of our trade dress” even though it wasn’t claimed in the last Taco
Cabana case. That remains a problem even after the first definition occurs
through litigation.
Configuration designs—seem less concerned w/surface
ornamentation/packaging—would like more clarity on that. Now after Star Athletica maybe we are going to
have more conflicts w/surface ornamentation.
Big picture Q: why should we care what you claim? Still get
broader scope in TM no matter what b/c of infringement standard. We didn’t always
care. In 19th c.: you could claim article of manufacture configuration,
surface ornamentation, both. PTO didn’t really care.  You got the whole thing.  Curious about how that might interact
w/framing effects mentioned in the paper. 
TM: separate commercial impression might be a limit.  Do you want some limit on “you get what you
claim”?
Fromer: What’s the connection b/t claiming and scope? You
could say it’s irrelevant, but it is about framing the case/setting things
up.  This paper is teeing up the fact
that this process is actually going on, b/c right now it’s relatively
unreflective—courts often accept the descriptions they get uncritically.  That has many effects.  There should be internalization w/in business
of claiming too broadly or too narrowly; utility patents has that in spades.
But utility patent is peripheral claiming; hard to do in central claiming b/c
you can make inconsistent claims in central claiming—emphasize different
features at different times, different levels of generality. Make them
internalize costs of claiming broadly sometimes and narrowly other times. 
McKenna: Other thing difficult in TM: rights are dynamic;
trade dress you have today can change tomorrow, whereas utility patent is
supposed to be locked down, at least in theory. 
Lemley: struggle w/peripheral/central divide, b/c advantages
and disadvantages for each. Utility patents: verbal claiming sucks. However
manipulable the image is, lawyers are better at manipulating words but also
creating weird unintended effects in both directions, broader and narrower
scope.  One question is whether we ought
to think differently about it depending on whether copying is an element of the
regime in question.  Disclaimers can also
be used: use of words to supplement images might not be “here’s what’s
important” but “here’s what standing alone I don’t claim”—that allows a prior
art analysis.  Closest prior art idea in
design patent—here’s what needs to be distinguished.
Penalizing overclaiming: in the noncompete context, some
courts have a no-blue-pencil rule: if it’s overbroad, we strike the whole thing—this
deters overclaiming.  Is there a way to
do that in design patent that shares the utility patent’s feature that if it
covers the prior art it’s invalidated in its entirety?
Buccafusco: There’s a validity/creativity stage: do you have
something capable of granting rights at all? 
That has costs of overbreadth. There’s also a functionality screen.  There’s also a liability/scope claim.
Copyright smashes them all together at the same time w/overlapping doctrines.
Over regimes spread them out.  Think
about costs of overclaiming at different stages? Costs w/r/t validity might not
be that high if validity doesn’t create a lot of market power.
McKenna: deep down no one form is adequate.  Verbal claiming doesn’t work.  Show students verbal description of Taco
Cabana, and they think it’s every Mexican restaurant ever; show them the
pictures and they think, oh, it’s nearly the same.  Inescapable conclusion is that the best
requires some combination of visual and verbal. Shouldn’t pretend as design
patent does that you’re only doing visual, not verbal; shouldn’t do what trade
dress law does, which is require verbal but often take whatever plaintiff shows
up with.
Samuelson: Independent invention isn’t as much of a concern
on the design patent side. What is the motivation for design patent? The possibility
of getting total profits!  Perry Saidman:
claims that design patents are just about stopping knockoffs. How does that fit
in?  A bit more about strategic
considerations that affect early/late claiming.
McKenna: very few companies create product configurations to
indicate source; they figure it out later; many registered long after first use
(he believes).  Lawyers dabbling in both—love
design patent b/c they can get secondary meaning from design patent exclusivity—bootstrap
into secondary meaning. Other strategic reason: the ability to get patents on
bits and pieces, which you can’t do effectively w/TM because atomizing “mark”
into bits makes source identification difficult.  Also faster than acquiring secondary meaning.
Zahr Said: there is self-claiming that’s posturing but ends
up being performative via overenforcement—e.g., DMCA notices. You claim
something and then you claim to own every part of it, even though the law is
not that way.  Loves the idea of
disclaiming.
Lemley: award extra remedies for better claiming? 
Fromer: hold people to their intentions.
Said: somewhere between claiming and estoppel.
McKenna: if I say my design is X but then claim infringement
by X-1, it’s not a difference in harm, but in what triggers the harm. 
Lemley: you get a substantial benefit from claiming ex post.
Markman hearing is good b/c makes you decide scope when both validity and
infringement are on line at the same time. 
As long as we’re doing scope before infringement we’re better off than
we are today.
Fromer: might not help w/all notice but would help in
specific inquiry.
Burstein: might also get a design patent b/c there’s no use
requirement: can stop making handbag and still claim rights.  Copying: is design patent really about
deterring knockoffs? If so, that’s a very different system than we actually
have.  We’d have to change the way we
proved copying. Industrial design has been about mass production, which
presumes access; we’re just cutting to the chase by fighting about similarity.
But we do have copying-like doctrines; if there’s really close prior art, you
might not have been copying the plaintiff. She sees in complaints designs that
look independently created, in part b/c they’re super functional.  If it’s truly ornamental, one can expect less
independent creation, but if anything goes there’s a lot of independent
creation.
McKenna: real ornamentality requirement could also solve
this problem.
Lemley: many of the problems are functional but not all,
especially for minimalist design like rounded corners on a phone.  Not b/c it’s functional but b/c it’s simple.
Burstein: designers wouldn’t want to work in a clean room—the
whole point is to find new solutions; looking at what other designers have done
is important.  [There is no clean room,
as there is not w/©.]
Said: courts too often find that “making choices” =
protection.  No, choices for many reasons
should not be protected. 
Grynberg: Fed. Cir. dominance is a problem: they control
design patents but design patents aren’t their focus.
Fromer: same with PTO. 
At least there are unregistered TMs so that TMs aren’t the sole province
of an agency for which they are not primary as a focus.

McKenna: Fed. Cir. doesn’t like to invalidate design patents—it’s
also the outlier in TM functionality; it’s an outlier in how it treats ©
(Oracle v. Google).

from Blogger http://ift.tt/2ojy6n5

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

Roundtable on the Scope of IP Rights, Notre Dame Law School

Posted on March 31, 2017 by rtushnet
Barton Beebe & Scott Hemphill, The Scope of Strong
Marks: Should Trademark Law Protect the Strong More Than the Weak?
Commentators: Mike Grynberg and Mark Lemley
Grynberg: Doctrine developed for certain situations may not
make sense for other situations, including the relevance of strength. (1) Why
does strength play such an important role in TM litigation? (2) Can we be sure
that super-strong marks resist confusion at low levels of similarity/product
relatedness? (3) normative implications.
(1) Maybe courts just misunderstand relation b/t TM strength
and confusion, or maybe they’re enacting assumptions about free riding into
law. But equating strong marks w/likely confusion could also be a heuristic for
judges/juries. Beebe’s earlier work on multifactor test: one thing judges do is
stampede the factors. Representative heuristic: cases w/strong or well-known
marks correspond to our mental model of what TM infringement is.
(2) Consumers can be loyal to a weak mark & recognize
differences. How do we characterize the consumers w/in the curve described by
strong/weak marks? We need to be able to describe the consumers—some will
simply not know the mark; others will know and be familiar; others will know
and be unfamiliar/not alert. For famous marks, maybe the proportion of “alert”/difference-noticing
consumers is higher, but maybe it’s higher for weak marks too because they
simply don’t know the mark; there’s nothing to be confused about. Maybe famous
marks include fewer consumers who don’t know anything, but maybe the shift is
to a greater share of careless consumers who know a little but aren’t very
alert. Strength and familiarity may not be the same thing.
(3) Sometimes the paper seems to gesture at: Normatively,
reasonable consumers should not have been confused. Even if the strength story
were true, then, we might want to ignore it: inattentive consumers are not
protected; reasonable consumers exercising ordinary care is a standard that
doesn’t necessarily have anything to do with the treatment of strength as such.
Strength is a proxy for a general removal of context?  If this isn’t strictly about strength, then
solutions could be properly directed at cabining the causes of action or
creating safe harbors such as for referential uses.
Mark Lemley: Why care about strength at all? We could just
ignore it, but the point of the paper is not that it’s irrelevant but that it’s
relevant in ways we don’t currently treat it in the law. Can you use this
argument in reverse: I have a weak mark so I should get more protection?  Or is it that strong marks don’t get much
protection and weak marks don’t either? 
One way to deal w/this might be inherent distinctiveness. We lump
together two very different concepts. Acquired distinctiveness might diminish
likely confusion, but inherent distinctiveness might have no impact at all, or
the impact is different.  Apple v.
Pineapple Computer, at outset of Apple’s existence—[to me this is the Lollipops
v. Jellybeans roller rink case]—inherent distinctiveness can support a finding
of confusion in a way acquired can’t b/c a person only vaguely familiar might think
“fruit—computer—oh yeah, I recognize that.”
Strength might change the type of confusion we care about.  Affiliation, post-sale, sponsorship
confusion.  Should we care about that?  If strength is bolstering the weakest
confusion cases, that might further justify the conclusion that strength
shouldn’t be used as a supporting factor. 
Dilution: where strength does the most work is dilution, b/c
it substitutes for every other factor for a strong enough class of marks. There
might actually be dilution proof marks. 
Things that generate enough consumer awareness that you can’t dilute
them—iconic, like Uncle Sam, American flag, Santa Claus—you can’t dilute them
no matter how hard you try, sorry, Bad
Santa.  Maybe the presence of
parodies, satires, etc. ought to signal
fame, with implications for “policing” theories.
Beebe: Students do relate most easily to famous examples—our
ideal type of TM litigation involves super-strong marks. What is the
implication, then?

Lemley: proxy for bad intent. 
Nikepal?  That was chosen b/c Nike
was a strong mark.  If that’s right, then
we affirmatively might not care about it, b/c free riding is ok, or we might
think that there are already plenty of proxies for bad faith.
McKenna: that strain of thought, there’s no good explanation
for choosing this similar mark, goes back to technical TM ideas—as old as the
distinction b/t different kinds of TMs.
Beebe: would like to emphasize more that our focus is
super-strong marks. The paper should be just about utterly super-strong marks.  Phase shift: widely recognized by general
consuming public, and known very well. Inverted U phenomenon we’re arguing for
is limited to those super-strong marks. If well known, consumers know it well
and can identify differences.
Does it work in reverse is a fantastic question. Didn’t address
it in the interests of simplicity but now we can.  Quick answer: superstrong marks is our focus,
but talking about the inverted U as a whole is useful. Normative commitment is
narrower, so resists the weak marks should get broader protection idea, but
should think about it. 

Beebe: Practitioners say affiliation confusion still exists, so Beebe/Hemphill
argument is irrelevant.  Strength =
knowledge not just of signifier but of other contextual elements.
Lemley: one implication might be that if strength does the
work in affiliation confusion, that’s less valuable/more dangerous and a reason
to discount strength.  Identical marks in
radically different contexts might be of interest.  If someone outright copies a random coffee
shop logo to sell soap in a different city, it’s not clear whether we should
even care; who is harmed?  Copying Apple
logo to sell soap will attract attention in a different way (not just b/c it’s
aesthetically appealing) and that might be different, at least as a proxy for
bad faith.
RT: Drawing on Lemley’s point.  Strength and affiliation confusion: maybe
strength increases likelihood of confusion for these types of confusion
(including post-sale) if we think these types worth having, but only after a
certain level of similarity is reached. 
May also make a product category difference; what kinds of marks are
likely to engage in sponsorship etc. relationships and with what other
products.  NASCAR sponsorships v. other
types of relationships: anyone might sponsor NASCAR, but not anyone would
affiliate with anyone else, including a competitor (which also has implications
for MTM Watch type cases).  Fortres
Software case—some insights there that might deserve actual theoretical
elaboration and connection to other doctrines; maybe also Land O Lakes!  Those cases don’t tell you what to do in the
next case that arises, but they’re also not wrong: there are differences in
plausibility of confusion claims.
Are there super-strong marks w/in category?  Old Lexis v. Lexus case: is Lexis
super-strong w/in its category? 
Interaction b/t product similarity and mark secondary meaning.  So w/in category, may be easier to
distinguish small differences or you’d expect “a Lexis Nexis company,” whereas
Lexad doesn’t have that implication. 
Jim Gibson: If we got rid of strength, would intent and
actual confusion do the same work?
Pam Samuelson: A mark that stays in one category for a long
time, even if it’s super-strong, may be unlikely to affiliate with other
products.  Honda makes cars; Apple by
contrast keeps expanding the kinds of products it makes.
McKenna: is strength even an empirical matter, or a reward
for having chosen a good mark/having built goodwill. Samuelson’s strength is
not goodwill/familiarity but more like marketing theory—if you’ve seen a bunch
of market extensions, the likelihood that you’ll see another as a market
extension is higher.  Law assumes
strength equals greater familiarity equals greater likelihood of
confusion.  Can’t have it both ways—can’t
be a theory of confusion but not helpful in dispelling confusion.  In terms of “no good reason for you to pick
that mark” that came from a technical TM background that required direct
competition—if you’re directly competing and using the same technical TM, there
probably is no good reason. But once we blow that up, the work that strength
does changes—lets you enforce it against broader range of goods and services—and
old assumptions don’t make sense.  Paper
can illuminate the difference b/t strength w/in category, which might give you more
scope w/in category but not outside it, and strength across categories.
Lemley: what do we do about Nikepal then?  The absence of plausible explanation other
than drawing from strength of mark is true even w/o identity.
McKenna: true, but that’s dilution or nothing.  If the law’s assumption is right, you should
only be able to win if you show a survey, showing high levels of confusion—not just
15%.  If you can’t that’s pretty telling.
Chris Buccafusco: higher level brands may feel more
confident to spin off products—popularized whiskey may be more likely to try
out beer.  Budweiser will put its name on
all sorts of drinks.  Whiskey has whiskey
aged in beer casks, beer aged in whiskey casks—those markets are now
interrelated.  Jameison’s will be more
likely to try that than a non-well-known brand. 
McKenna: actually exceedingly rare to be in beer and spirits
industries.  There’s expansion in cider
but it’s interesting if consumers think that.
Buccafusco: Consider also that 90% of the value of a LV bag
is the signalling function; maybe confusion over that is more important than
confusion over a mark that is source identifying but not socially signalling in
the same way.
Grynberg: Consider pieces of a mark—the Maker’s Mark red wax
seal—you could have appropriation but not of the whole; the paper seems to
assume the whole mark is there.
Lemley: maybe a difference b/t word, image, and product
configuration marks—but that may be about skepticism about product
configuration trade dress.

McKenna: plausibility of alternative explanations for using
configuration may be much higher by default.

from Blogger http://ift.tt/2nDHD5m

Posted in Uncategorized | Tagged , , | Leave a comment

Reading list: Placebo effects of marketing

Posted on March 31, 2017 by rtushnet

Yann Cornil et al., Does Red Bull Give Wings to Vodka? Placebo Effects of Marketing Labels on Perceived Intoxication and Risky Attitudes and Behaviors
Forthcoming, Journal of Consumer Psychology

Abstract:


Why sexual assaults and car accidents are associated with the consumption of alcohol mixed with energy drinks (AMED) is still unclear. In a single study, we show that the label used to describe AMED cocktails can have causal non-pharmacological effects on consumers’ perceived intoxication, attitudes, and behaviors. Young men who consumed a cocktail of fruit juice, vodka, and Red Bull felt more intoxicated, took more risks, were more sexually self-confident, but intended to wait longer before driving when the cocktail’s label emphasized the presence of the energy drink (a “Vodka-Red Bull cocktail”) compared to when it did not (a “Vodka” or “Exotic fruits” cocktail). Speaking to the process underlying these placebo effects, we found no moderation of experience but a strong interaction with expectations: These effects were stronger for people who believe that energy drinks boost alcohol intoxication and who believe that intoxication increases impulsiveness, reduces sexual inhibition, and weakens reflexes. These findings have implications for understanding marketing placebo effects and for the pressing debate on the regulation of the marketing of energy drinks.

from Blogger http://ift.tt/2op3aPi

Posted in Uncategorized | Tagged , | Leave a comment

Reading list: Pam Samuelson on bottom-up and top-down theories of fair use

Posted on March 31, 2017 by rtushnet
Pamela Samuelson, The
Relative Virtues of Bottom-Up and Top-Down Theories of Fair Use
A Response to Abraham Bell and Gideon Parchomovsky, The
Dual-Grant Theory of Fair Use,
83 U Chi L Rev 1051 (2016).

Abstract: This Essay explains why I think that Dual-Grant
takes an unduly narrow view of the work that fair use does and should do in US
copyright law, is blatantly inconsistent with existing case law in more ways
than it acknowledges, fails to recognize important values found in many fair
use cases, and would, if followed, have the unintended consequence of making
fair use more unpredictable and incoherent than it is now.

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

Posted in Uncategorized | Tagged , | Leave a comment

internal studies on consumer preference support class action treatment for weed killer claims

Posted on March 29, 2017 by rtushnet
Martin v. Monsanto Co., No. 16–2168, 2017 WL 1115167 (C.D.
Cal. Mar. 24, 2017)
This case grants class certification, illustrating the use
of internal consumer research in class action practice.  The probabilistic nature of consumer reaction
is not necessarily a great fit with class actions, but the use of presumptions
can deal with that, as here.
Monsanto makes Roundup Weed & Grass Killer Concentrate
Plus and Roundup Weed & Grass Killer Super Concentrate. Unlike “Ready-to-Use”
Roundup, these concentrates must be diluted with water before use. A prominent
sticker on the front neck of the bottle states that the product “Makes Up to __
Gallons”:  
 

bottle with “makes up to 42 gallons” prominent on neck
On the back label of the bottle, the instructions advise
users to “Add 6 fl oz Per Gallon of Water” for Concentrate Plus, or “2 1/2 fl
oz Per Gallon of Water” for Super Concentrate. Martin alleged that, when users
follow the instructions on the back label, the concentrates only produce about
half of the amount that Monsanto claims on the front neck sticker.  Additional instructions are in a pamphlet sealed
under the back label, which can be opened before purchase, but it’s not clear
how many consumers do that. The instructions state that, for best results,
consumers should use the amounts provided on the back label, but that, for
“easy to kill weeds such as seedlings,” the purchaser may add less concentrate
per gallon of water. Only in that case will the concentrates make the amount
claimed on the neck sticker.
Martin brought the usual California advertising/warranty
claims.
Analysis of note: Monsanto argued that Martin wasn’t typical
because she “did not read the instructions prior to purchase,” but failed to
present any evidence that any significant portion of the class read the
pamphlet or fold-out prior to purchase, or, specifically, the alternative
mixing instructions for “easy to kill weeds such as seedlings.” Martin had
evidence that she acted like thousands of other purchasers. And “a plaintiff’s
individual experience with the product is irrelevant where, as here, the injury
under the UCL, FAL, and CLRA is established by an objective test…. [I]njury is
shown where the consumer has purchased a product that is marketed with a
material misrepresentation, that is, in a manner such that members of the
public are likely to be deceived.”
Monsanto argued that Martin was an inadequate class
representative because she “seeks less in damages than the purported class
members could receive outside of a class litigation through a full refund.” Monsanto’s
consumer guarantee states: “If for any reason you are not satisfied after using
this product, simply send us original proof of purchase and we will replace the
product or refund the purchase price.” But people who sought refunds weren’t
adequate class representatives, because they aren’t class representatives at
all, and members who want a refund were free to opt out.
Predominance: Monsanto argued that class members had varying
reasons for purchasing the concentrates, making materiality and reliance predominating
individual issues. But for breach of express warranty, and for violations of
the UCL and FAL, Martin didn’t need to prove individualized reliance. And,
while reliance is an element of the CLRA, “an inference of common reliance
arises if representations are material, and materiality is judged by an
objective standard rather than any understandings specific to the individual
consumer.”
At this stage of the litigation, Martin provided sufficient
evidence of materiality to the reasonable consumer to make class certification
appropriate. Monsanto’s own documents and consumer studies did the work. Monsanto
itself considered its Gallons statement to be a “key claim[ ].”  A 3,000 person consumer research study found
that “[w]hen asked what helps them make a purchase decision about what
concentrate product to buy at [the] shelf,” 42% of respondents selected “How
many gallons of product you can make,” which was the third-highest of 13
factors. Two-thirds of those who purchased concentrated herbicide did so
because of “Value (price per oz. is cheaper than ready-to-use).” When
researchers presented focus group subjects with a mock shelf of herbicide
products, they observed that “Price to gallon ‘best value’” claims caught
consumers’ eyes with “some frequency,” with “some consumers actually d[oing]
the math on their notepads for various brands.”
A presumption of reliance is inappropriate when class
members “were exposed to quite disparate information,” but here, there was no
evidence that class members could buy the products without being exposed to the
representations at issue. In “cases involving product labels,” courts
“reasonabl[y] … infer that the class members were exposed to the allegedly
misleading statement at the point of sale.”
Similarly, Martin’s damages models were tied to her theory
of liability and could be measured on a classwide basis. The “underfill”
percentage could be calculated by comparing the number of gallons made when
following the instructions on the back label with the number of gallons
promised on the neck label. This number could then be multiplied by the retail
price to obtain a standard damage amount for each bottle. This
benefit-of-the-bargain model was adequately tied to Martin’s theory of
liability on her express warranty claim and appeared to be capable of measuring
damages on a classwide basis, since the methodology was identical for every
purchaser and for any given bottle size. 
Likewise, her restitution damages model was adequately tied to her
theory of liability on the UCL, FAL, and CLRA claims and appeared to be able to
measure damages on a classwide basis.  Class
members bargained for a certain price-per-gallon: the average retail price
divided by the number of gallons promised. This number could serve as a proxy
for the actual value-per-gallon of spray solution and multiplied by the number
of gallons the products actually supplied to determine the actual value of the
products. Monsanto could challenge these models through cross-examination at
trial.

Finally, Monsanto’s refund policy didn’t make class
treatment inferior.  Under the plain
language of Fed. R. Civ. P. 23(b)(3), “[t]he analysis is whether the class
action format is superior to other methods of adjudication, not whether a class
action is superior to an out-of-court, private settlement program.” 

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

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

Plaintiff doesn’t have to rebut 230 immunity in complaint against multiple parties

Posted on March 29, 2017 by rtushnet
Moretti v. Hertz Corp., No. 14-469, 2017 WL 1032783 (D. Del.
Mar. 17, 2017)
Moretti sued for violation of California’s false
advertising, consumer protection, and unfair and deceptive trade practices
laws, and common law fraud.  Moretti
alleged that prices for car rentals in Mexico were advertised in U.S. dollars
but later converted into Mexican Pesos at an artificially inflated rate,
leading him and other consumers to pay more than the advertised price for their
rentals as a result. Defendants also allegedly failed to inform consumers that
the purchase of liability insurance was mandatory, disclosing terms and
conditions stating the contrary. Hertz and Dollar Thrifty allegedly supplied the
misleading information about car rental prices and terms to Hotwire, and
Hotwire incorporated the content into listings on its website. Hotwire allegedly
continued to do so despite consumer complaints and Hotwire’s knowledge of the
information’s fraudulent content.
Hotwire moved for judgment on the pleadings under §230.   The court found that a complaint need not
affirmatively negate any of the elements of Section 230 immunity. Immunity
under §230 requires Hotwire not have “contribute[d] materially” to the
offending nature of the content, and the complaint was silent on that. “Taking
the well-pleaded factual allegations as true, there is no basis in the
Complaint from which the Court could conclude that Hotwire did not function as
an ICP and did not contribute materially to the alleged misrepresentations.”  Some §230 cases can be decided on the
pleadings, but not this one; “the Court cannot treat the Complaint’s silence as
to whether Hotwire materially contributed to the false statement as an
affirmative allegation that Hotwire did not do so.”  The court was influenced by counsel’s
representations at oral argument that, “if needed, [Morelli] could plead
sufficient facts to show that Hotwire is not entitled to the protection of
Section 230 immunity.”  Given that
additional facts would help the parties and the court to understand the case,
the court ordered Morelli to amend the complaint “to include any specifics
which are in his possession that help to show why Plaintiff believes Hotwire is
not immune under Section 230.”

from Blogger http://ift.tt/2mPt0yG

Posted in Uncategorized | Tagged , | Leave a comment