IPSC session 4

Session 4: Old and
New Theories of IP

Shyam Balganesh, The Common Law of Copyright
Censorial copyright
claims: motivated by non economic, dignitary concerns, and the author/creator’s
principal objective is expurgatory—to prevent the work from circulating
publicly. These claims have existed from the origins of Anglo-American
copyright. We treat them as illegitimate b/c of incentives myopia. This exists
w/in the moral rights paradigm, the right of withdrawal/repentance right. In
one jurisdiction, author has to purchase copies at lowest available price.
During 1965 © revision study, they considered withdrawal right & said it
was absurd, though they were aware it existed. 
Pope v. Curl, 1741,
private letters published. Real theorizing in 1818, Gee v. Pritchard: analogous
to revenge porn, correspondence b/t husband & wife about illegitimate child.  © grants injunctive relief even though this
isn’t about encouragement of learning: legit interest and injunction
granted.  Similar in Prince Albert v.
Strange, 1849, sketches by Prince & Queen somehow acquired, again
injunction granted. Folsom v. Marsh discusses Gee & why letters should be
protected.  Woolsey v. Judd, NY 1855,
discusses interests beyond just works of literary merit that ought to be
protected. Clear recognition of necessary balancing: public interest; what if the
party to whom letter is directed needs to publish to vindicate himself;
etc.  Salinger v. Random House: an
account that builds on the early cases, very much a censorial claim. Michaels
v. Internet Ent. Gp., 1998, attempt to put it into terms of statute that is
facially neutral in terms of its theory. 
Doe v. Elam III, 2018, revenge porn case with $6 million award: © may be
an imperfect fit, but it has always played this role.
Not claiming that
these claims ought to flourish and blossom or extend into new domains. Recognizing
them as a distinct category allows us to grapple w/the underlying concerns that
accompany this category, the First Amendment primary among them. [It is not
clear to me that many people have missed this point under current doctrine, but
ok.]  Harm produced through expression:
can be copyright harm, or other harm, e.g., defamation.  W/in copyright harm, there are also
distinctions: appropriative harm (market or even non-market terms per
Drassinower); in situ reputational harm (integrity rights: the harm is to the
work, not to the individual in any other distinct way); and disseminative harm
(harm from public circulation of the work)—the harm is really 106(3) distribution.  The author’s inability to exercise the right
to exclude is seen as an infraction of the author’s autonomy.  The idea of right to exclude starts having
resonance w/in the censorial claims—overtone of Hegelian personality interests,
which has been misapplied in many other © situations. The conduit through which
Hegel conceives of authors rights comes through property.
There’s also an
authorship interest here. The connection b/t the creator and expressive work is
critical to these claims. Author’s personality/dignity. [But see Monge—what is
going on there? It is just as censorial/privacy-based.]  Distinct between 106A moral rights: the harm
isn’t in the work as such but through it—the dissemination of the work
is what generates the harm, not the existence of the work.  [How does that work with the attribution
right?]
Recognizing these as
distinct analytically allows us to better police them from a 1A perspective. We
might validly draw from other censorial claims: defamation, false light—no strict
liability; actual proof of harm needs to be shown for recovery, no presumptive
damages/punitive damages.  [How is this
different from saying © isn’t for these kinds of claims.] Could do this
directly or through expanded fair use—nature of the work could accommodate
this.
Joe Miller:
Reconceptualize Harper & Row through this lens. Congress’s modification of
the law post-Salinger about unpublished works arguably makes your approach harder
[I would say less persuasive].
A: yes: conflated
right of first publication and right of withdrawal. [Further discussion makes clear
that he doesn’t think there’s been conflation by Congress but rather what he
calls a partial recognition that the moral interest for unpublished works is
distinct from the moral interest for withdrawal, but I think he believed that
the availability of injunctive relief was sort of a withdrawal right, with
which I disagree.] Distribution & publication were replacement categories
from old acts.  Q is whether the same
interest carries over to published work, and he doesn’t think that
distinguishing published from unpublished makes sense.
Andrew Gilden:
Scientology case where guy tried to withdraw work in order to screw with
Scientology.  There’s an effort to
acknowledge the economics of withdrawal, but differently.
Q: constitutional
basis for the incentive theory, but not for this. Older English cases may be
interesting for common law history but that’s not necessarily what Art. I sec.
8 cl. 8 allows.
Uri Hacohen (and
Peter Menell), Unjust Endorsement: Tiger Woods endorsed Stanford Financial,
revealed as Ponzi scheme.  Advertiser’s
challenge is to overcome consumer skepticism. Distraction/stealth to overcome
resistance; also endorsers and other mechanisms.  Early endorsements were mostly in print.
Changes: scale;
people famous for being famous. Fake follower, reviews, likes, news.  Strategies have expanded online: distraction,
stealth, repetition, exploiting connections/children etc.  This is troubling, but regulation is
limited.  Norms remain of limited effect
and endorsers don’t seem constrained by norms; rather they’re competing for
income.  Other relevant considerations
include social surveillance, public health from overconsumption.
Deception is
easy.  Endorsement disclosures are
somewhat regulation. But there should be a private right of action/class action
remedy. Whistleblower immunity/rewards per SEC. 
Endorser liability should be seriously considered.  Disgorgement/punitives as remedies. Higher
standards for disclosures—for doctors, medical product manufacturers have to
disclose any payments or other transfers of value to physicians or teaching hospital.
Patients can see that, b/c doctors now fear to take drug money. If they take
money and don’t disclose, they risk public sanctions. Should have the same
disclosures for other endorsement relationships, available to consumers and IRS
and social media; FB and Instagram could use technological tools to ensure this
information surfaces.  Morality and
social industry norms need to change in this direction.  Anti-tobacco public service ads as a model:
funded from tobacco tax.
Jeremy Sheff: There’s
fair amount of evidence about ineffectiveness/counterproductivity of disclosure;
evidence of compliance will be misread as evidence of credibility, as in health
supplements market where consumers interpret the “not endorsed by the FDA”
statement as meaning “the FDA has checked this and allowed us to say this.”
[Also a licensing effect on disclosers.]
A: we are advocating
a registry. Consumers who want to look can. This is about cognitive limitations
around consumers; don’t say there’s no justification for trying to educate
consumers [fortunately that’s not what Sheff said]. We want to help consumers
understand that Captain Crunch isn’t their friend—kids have cognitive
limitations. [And the evidence is that those limitations are hard to overcome
with disclosure; it might be that a ban on cartoon endorsers for kids is the
best solution.] Tobacco campaigns have studied this issue extensively.  W/social media, we have to be especially
concerned w/how our brains are being influenced, and the FTC is overwhelmed
now.
Irina Manta: if
endorsers say something they know is incorrect, more people would be fine with
liability, as opposed to having duty to investigate on the part of the endorser.
A: Sure, duty to
investigate. Whether Stanford’s endorser knew or not, he got $8 million and a
lot of people invested in a Ponzi scheme. That money should go back into the
pot for victims; he was unjustly enriched. 
More punitive when they knew or should have known. But esp. for bankruptcy
we should look at moral responsibility and have him disgorge.  [I like it. 
Much more likely to have an effect on behavior than disclosure; it operates
on the incentives of the endorsers directly.]
Manta: there might
be a temporal element—if it was 10 years ago he endorsed, different.  Will be difficult to assess when they knew.
A: changing the
cultural environment.  If Beyonce takes
$50 million from Pepsi, she needs to accept her part in what Pepsi is doing. 
Irina Manta,
Explaining Criminal Sanctions in Intellectual Property Law
Common & civil
law are the usual/historical actors in IP; criminal sanctions have tended to
involve force, only more recently expanding to lots of nonforcebased harms. One
justification has been analogy to theft. 
Generally no danger to safety of owners, other harms of theft.  If not theft, what is IP infringement?
Perhaps vandalism—reduction rather than elimination of value; owner can sell/license;
in rare cases (Banksy) can increase value. Another analogy: trespass.  Criminal sanctions for IP are generally
higher than for vandalism offenses with the same value reduction. IP owners
should accept the limitations on the property analogy, which are that not all
property crimes cause the same kinds of harms and justify the same kinds of sanctions.
Why is there no
patent crime?  Litigation is very expensive,
and patent registrations are by far the hardest/most expensive to obtain and
confer greatest power to exclude. But: registrations are often invalidated;
patents are complex; willfulness is an issue. 
Purposeful patent infringement represents a very low percentage of
overall patent infringement; recent tech has had a much larger effect on ©/TM
infringement than on patents. Goods that are patented and pirated are often
already sold with counterfeit TM as well, so there’s no need there.  Thus the costs of criminal sanctions in
patents would be greater than in TM/© and the benefits lower. 
Daniel Hemel: SEC is
a good analogy—securities fraud is like counterfeiting.  FDCA violations: related to what you’re
saying about pharma—there’s separate criminal sanctions for that.
Q: given the differences
in actors, you might say more about criminalization against corporations v.
against individuals. For patents, you might talk more about the actual costs,
what a trial would look like [if there weren’t a plea], gov’t expertise v.
relevant private parties.
Peter Menell, The
Use and Misuse of Intellectual Property Kinship: IP isn’t a monolithic term—we spend
a lot of time dealing w/channeling doctrines; it’s a key role for cts even
though it’s often not spelled out in the doctrine itself.  Examples where it is: Idea/expression; useful
article; functionality.
Mistake introduced
by Sony v. Universal.  We ought to keep
in mind that patent and copyright are pretty different regimes, merely linked
sequentially in constitutional text. Design patent is much closer to © and
shouldn’t cover functional elements—this is a big mistake that needs to be
corrected.
Functional analysis
of IP kinship: utility patent is an only child. 
There may be some cousins (API copyright; design patent) but the point
is that this is a family with a single child. 
Don’t want other children treated the same—utility patent supremacy
principle.  But some of the other issues,
like tax, sure, it’s a family with lots of kids—w/r/t treating the asset of IP
similarly, sure.  Likewise bankruptcy.
Interpretive issues:
courts often fall back on historic kinship when it doesn’t work very well.  Sony: does patent’s blanket immunity for any
dual use tech make sense for ©?  He doesn’t
think so—there are too many differences b/t what they seek to promote (tech v.
art), whether complements provide systemic threats to the system, etc. 
Kirtsaeng: int’l
exhaustion.  Wiley wanted to say it had
the right to import under §602. 
Kirtsaeng: first sale means it’s lawfully made under this title (in
accordance w/the © Act).  Ginsburg’s
dissent is compelling, even if you agree with the Court’s normative
result.  Patent version of that case a
few years later: Roberts appeals to similarity of patents and ©, but doesn’t
attend to footnote about the differences b/t them and throws caution to the
wind. 
eBay: draws on © law, even though prior © cases always gave injunctions; prior
SCt cases like Tasini had just talked
about how you could deny them.  Then
people applied it to TM law.  We should
have been more contextual.  [I think this
is about anti-patent exceptionalism in the SCt, not about kinship—note that
this is the first time he’s mentioned TM since the first slide with a bunch of
other things that also aren’t mentioned. The remedies language in the statutes
are similar b/c that’s what federal remedies language tends to look like—see also
Winter, which TM and © courts have
also looked at but which is about environmental law.]
We use metaphors as
shortcuts b/c IP is hard and a lot of the statutes are terse and court-elaborated.  Our SCt doesn’t have consistent ways of
interpreting anything, so historic kinship can organize votes; Congress doesn’t
get around to fixing things.  This is
slopply, lazy, distorted, and path dependent.
We could learn a lot
from comparing and contrasting. Utility patent spends a lot of time on claim
construction. Should be more careful w/design patent. Let’s learn. Bratz
litigation: persuaded DCt to hold essentially a Markman hearing on ©.
Joe Miller: SCt
briefing: does it shed light on the degree to which the adversary process
invites thoughts in kinship terms or not?
A: this is how I get
research projects—look at the lawyers’ choice of argument. Sony made this
argument routine. SCt doesn’t want to learn this rich complexity. We should demand
more of our highest court. [But that’s not about eBay, is it, where the transfer to TM is in the lower courts?]
[My Qs] It’s also
about ROP—he talks about Saderup in the paper. 
[And I definitely think that Saderup is a terrible idea.  But it can’t be about a historic kinship
insofar as the connection b/t © and ROP was invented in Zacchini.]
Kristelia Garcia:
given the differences b/t music, books, etc. would you go so far as to say
there should be book copyright, music copyright, etc.?
A: we’re the scholars:
that’s our job where appropriate.

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IPSC: keynote

Keynote: The State of
IP Scholarship – Rebecca Eisenberg
When she began,
patent scholarship in the academy was minimal. 
Early 1980s, CAFC creation prolonged the ghettoization of patent law,
even though the field was poised for greater integration into the legal system
as law firms began to see the potential. Fed. Cir.’s early years provided
targets for scholarly commentary, but wasn’t interested in legal scholarship.
Not that motivating to write for them and be ignored.  Consolidation also meant that 1980s didn’t
see many patent SCt cases. So not clear who the audience was for it, and
doctrinal scholarship was out of fashion; interdisciplinary scholarship was
considered more intellectually serious.
Early years after
Bayh-Dole: people starting to get interested in patent law because it was in
their way; scientists encountering the patent system and worried about its
impact on traditional practices/norms/scientific exchange. They became an important
audience and source of info on emerging problems. They didn’t have many other
places to turn, so that worked out well for her research agenda/scholarly
impact.
Matters are much
better today: recognized that IP is important subject; our problem is one of
abundance/figuring out what to say against the backdrop of prior art.  Not a fan of articles that make the claim “this
article is the first to …” perhaps b/c she’s the benighted old guard, but also
b/c it’s distortionary of our framing. We should be in conversation w/each
other rather than w/2d year law review editors. 
[Yep. Also, there’s nothing new under the sun; I don’t believe in
originality, just better and worse (in context) ways of saying something.]  She was looking for predecessors and anybody
saying something remotely similar, not trying to stand out in an empty
field.  Rigorous backgrounds in other
fields=improvement—serious training equips high level interdisciplinary work.
That’s raised the standards for what counts as good interdisciplinary work.  New sources of data, analytical approaches—rigorous
empirical work asking good questions are more interesting/useful than what used
to exist.
Also, good doctrinal
scholarship remains important, b/c IP law is really important and we need
scholarship to guide and criticize doctrinal developments. Growing SCt interest
in patent law in recent years has been helpful in drawing attention.  And a lovely shoutout to legal blogs that
help link practitioners and scholars.
New law profs used to
start teaching w/o having done much writing; had to figure out how to become
legal scholars on the job. Other fields would scoff at amount of necessary
writing. Now
there’s fellowships and other backgrounds that mean publications are often substantial.  Fellowships do create a challenge for people
who can’t afford to live on a fellowship salary for a year and then move a
family, disproportionately women. 
[I think the change here is not necessarily to the field’s benefit, and other parts of the university still scoff and will continue to do so.] However, the old system placed inordinate
weight on law school grades, law review, and clerkships; especially people from
science backgrounds that reward terse writing could have struggles with that.
Also, interesting stuff happens in practice, and future scholars should be able
to immerse themselves in that environment before they start, then pause and reboot
in academic life. Our productivity is now great, though it’s possible to have
too much of a good thing; if you write a lot you tend to get better at it.
IP advantage: new
problems and issues are constantly coming at us.
Comments by: Jorge
Contreras: Economists like to name concepts after themselves: Coase theorem, Schumpeterian
innovation. We’re more modest; only judges get these intellectual vanity
plates. Still, theories can be intricately linked w/scholars who bring
attention to them, such as Lessig’s code as law and Eisenberg: in 1998, she
coauthored an article w/Michael Heller which brought to the biomedical and
legal academies the notion of the anticommons, drawn from Garrett Hardin’s tragedy
of the commons.
Predicted anticommons
in biotech didn’t materialize, but why?  Eisenberg
& Heller had recommendations, and NIH implemented them as early as 1999,
not as requirements but as recommendations. Other market changes have
undoubtedly had effects—changes in the patent system relating to biomedical
discoveries, such as utility and inability to patent sequences with unknown
function, as well as §101 eligibility cases. 
If the anticommons didn’t emerge, why do we still care?  It’s b/c the anticommons risk and theory is
incontrovertibly correct.  Striving to
prevent it from happening is policymakers doing their jobs.  The effects of the doctrinal change of the
sort in Mayo is probably an accident and not likely to recur. The fundamental
premise of excessive fragmentation of rights leading to underuse of resources persists.
Similarly, her insight on blockages seems correct: they’re more likely to occur
when innovation requires an affirmative step, like getting an organism from
someone, rather than when the burden is on the owner to sue—situations of
practical excludability.
Michael Mattioli:
Lovely tribute to Eisenberg as mentor from his time as a fellow.
Arti Rai: Similarly
lovely tribute, with emphasis on Eisenberg’s contributions to IP and health
law.
Tejas Narechania:
Ditto, with IP and administrative law/institutional analysis.
Moderator: Molly Van
Houweling

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IPSC session 3 (trade secret then copyright)

Session 3:
Trade Secrets, Courtney
Cox, Can the Law Force You to Lie? The Use of Deceptive Precautions to Protect Trade
Secrets
Reasonable measures to
protect the secret are generally required. Should you have to engage in
deception, or deceptive misdirection (answering a related question but not what
was asked, or answering partially as if it were fully) to be reasonable?  Lying/misinformation can cause real harms to
others, if they rely on your representation to do something, and there are
dignitary harms in being lied to/treated as an object.  Concerns about trust: if everyone lies when
it’s convenient, then representations become incredible.
Companies do in fact
lie to protect trade secrets.  E.g.,
putting out that security officers are listening at the local bar.  Or putting in a deliberate error in a map to
identify copiers.  How I Met Your Mother:
to protect the finale, they mislabeled scripts/casting calls; Game of Thrones
films fake scripts so the cast doesn’t necessarily know what will be
shown.  Cisco found source code distributed
(disgruntled employee) and rather than attracting attention via takedown it
seems to have posted a bunch of different fake versions; this is designed to
wear people out and get them to think it’s all fake.
There’s philosophical
debate over how to define a lie. Some people bake into the concept the idea of
wrongfulness, but she doesn’t want to do that: she means intentional assertions
of fact that aren’t true. A lie can be deceptive, if it imparts the false
belief.
Some of these
techniques are definitely cheaper than demand letters/hiring a lawyer. Thus they
could count as reasonable measures, alone or in combination with
techniques.  But: (1) doctrine of unclean
hands—you shouldn’t be able to get legal relief based on conduct that is itself
inequitable/wrongful, which is often about deception; (2) risk of harm to others;
(3) general distaste for misrepresentation; (4) immorality of lying no matter
what. If trade secret is the codification of commercial morality, then it
shouldn’t include this.
Harm: suppose a
screenwriter thinks they’ve been hired to write a finale for Game of Thrones,
and they therefore give up lucrative other opportunities. Is this relevant
harm?  Should we compare this to other
precautions that they should have taken? 
You’re allowed to have guard dogs; if the guard dogs are unreasonably
vicious, then the remedy is tort law. 
Thus, torts should provide the remedy rather than being incorporated
into trade secret law.  [Query whether
there’s any scenario in which the screenwriter hasn’t contractually waived all
rights here.]
Bottom line: yes,
there is at least a not insignificant set of deceptive practices that should be
okay/not actionably deceptive or unclean hands; there may be a subset that are
required.  She would not draw the line at
corrective, post-disclosure deception. 
Car manufacturers: road tests of a new innovation, protecting from
corporate spies with cameras. So they use car disguises: cardboard covering the
innovation, or making it look like some other innovation was being tested so
that it wouldn’t be properly identified.
Q: gov’t lies all the
time, for (they think) good reasons—informants, cooperating witnesses,
interrogation. Is there a salient difference b/t gov’t lying and gov’t rewarding
lies through policy? Compelled speech considerations: posits that gov’t should never
force someone to lie through doctrine even if lying is ok when chosen.  Reactions?
A: There is reason to
think gov’t can do what civilians can’t, but that doesn’t cover the whole
logical space of actions.  Rewarding
might not be enough to compel—you don’t have to claim trade secret protection,
but if you want to do so, you have to engage in speech, just as you would to
get a professional license of many kinds.
IP and Creativity
Sean Pager, Much Ado
About Norms
Issues w/suboptimal
norms: if there’s not sufficient communication, people may think norm is
popular even though everyone else only goes along b/c they think it’s a norm
too—drinking a lot on college campuses, for example.  Became a norm b/c of a vocal minority.
Powerful people can also impose norms against the true internal desires of
most.  Ellickson’s Shasta farmers are all
white men occupying lands stolen from Indians and often exploiting Latino
workers.  How seriously should we take these
concerns in IP norms?  This is a question
worth asking.
One example: People
have written about Nollywood, the Nigerian film industry, as a negative IP
space. Early on, Nigerian filmmakers used lead time to make money before piracy
overtook them; new tech has changed that. 
Social norms/marketers guilds have replaced that with a de facto
exclusivity norm. That meets the paradigm of social norms solving a gap in IP
law, but is it an optimal norm?  He says
no. Would be better off with a formal IP system. Guilds often discriminate
ethnically, by gender, etc. Filmmakers want a formal system but have been
politically blocked by the clout of the marketers—norm-locking.
Chris Sprigman: how
important is it to the norms literature whether norms are efficient?  Varies across the literature. Rothman has
work on this. Some is descriptive and also attempts to account for why the
norms lead to the production of certain types of content and not others. Could
categorize this literature in your discussion.
Jennifer Rothman: Lisa
Bernstein has some work on this in merchant norms.  Inherent biases in relying on norms based
system—pay equity and hiring; informality of the system can reify principles of
discrimination. Not well described in the IP context w/r/t these norms.  That would be a meaningful intervention.
Rosenblatt: “good”
and “efficient” are not the same thing. I could reasonably be accused of being
overoptimistic about norms, but good v. destructive/counterproductive/discriminatory/otherwise
suboptimal are different things. Effective governors of behavior, beneficial
governors of behavior, good substitutes for law: these are different things
from when norms are efficient. 
A: would also add:
good/efficient for whom or for what? 
[See Glynn Lunney on this Q in IP law generally, not on norms.]
Q: interesting work
on architecture—fan fiction sites where the sharing models are designed by
women, v. FB where all the creators of the sharing features are men.   [missed the name, want to know it!]
A: link there b/t
code as law and norms as law.
Q: identify
situations where formal law has replaced norms, or where there is demand to
codify norms. Could happen for different reasons: norms might be suboptimal, or
somebody lobbies to impose costs on someone else. Transitions are revealing situations.
Andres Sawicki, The
Law of Creativity?
Lots of different
models of creativity. Law’s traditional model: works are public goods, need incentives.  Categorization: (1) Motivational. Focus on
the individual; psychology; motivation for creative behavior. (2) Environmental.
Individual behavior isn’t the primary determinant; there’s a lot of
serendipity, fortuity, unexpected results, play; what matters is the
sociocultural environment in which the individual environment and so we should
focus law on opportunities for serendipity. 
There’s surface tension, so to speak—the agents operating in these
models look very different. Homo economicus is completely unrecognizable in
ordinary life; in the creativity models, we have rich portraits of humans
operating in recognizable contexts. 
There’s also tension in the role of IP law for the models. IP is central
to the operation of the model in public goods conception, not so much with the
others.  (1) and (2) tend to bash the rational
actor’s lack of realism. 
Can we resolve this
tension?  Respectable realism, from
philosophy of science. There are lots of useful ways to look at a given
phenomenon depending on what you’re interested in.  All models are wrong but some are useful, and
it’s with that in mind that we should choose our models.
Could also abandon
model realism more generally.  Model
realism is an important natural sciences issue—are there “really” subatomic particles
just because we can make/verify predictions that come from positing their
existence?  As legal scholars we don’t
need a grand unified theory, or to posit unique differences b/t intrinsic and
extrinsic motivation, we just need to know what we want to do. What are we
using these models for?  Generating
testable predictions is something we want from models.  But we can also make interpretative uses:
looking at hypothetical situations. 
Models can also be built from the ground up, used as slightly more abstract
representations of reality in order to organize our thinking/our world—that’s
going on w/some of the models in the literature/critique of public goods
model.  There’s no right way to do this.
Jeremy Sheff:
Epistemological roots of those philosophical schools matter—American pragmatists,
for example. When rubber hits road on doctrine, will intersect w/Legal Realism
in important way b/c of the epistemological commitments in philosophy of
science and how they map to Legal Realism.
A: His point is that
we’re not there yet. Entirely possible that all these models and maybe more
will provide useful insights. [Some pluralism about realism?  That would be a fantastic title, I think.]
Sheff: that’s a very
pragmatist idea, but there are limits on how far a pragmatist take on epistemology
can take you. If it’s about how our community defines truth, then the interest
shifts to the definition of our community.
Christopher Sprigman,
The Second Digital Disruption: Algorithms & Authorship in the Adult Entertainment
Industry
First digital disruption:
rise of content distribution on the internet—Napster disrupted the music industry.
Now, with porn, content builds brands to sell other stuff: just as with Amazon,
its video content is an inducement to get people to sign up for Prime.
Mindgeek started w/
rise of YouTube: pornographic user-uploaded videos. Destroyed the mom & pop
outlets. Large financial backing enabled Mindgeek to use piracy to drive down
the value of the mom & pop outlets and then buy them up.  Camming has stabilized as an experience good,
hard to knock off—like monetizing live music performances.  There’s an enormous custom market now.
But the next thing that
happens is Mindgeek’s dominance. Now that they control so much production and distribution,
user data comes back to them, allowing them to kick off the second digital
disruption centered on data-driven creation, if this is a harbinger of what is
coming from Netflix and Spotify and Amazon: to shape the way content is
presented and even made.  Netflix made
House of Cards because their data told them that a group of consumers they
wanted to court would like a BBC-like political show and would like Kevin
Spacey.  What picture you see when you
see a tile for The Crown is based on
your responses to past ads for shows. Amazon is following in Netflix’s wake,
greenlighting content and then strangling it in response to data. Spotify is
interested in computer generated music.
Data changes the risk
of failure. More data: maybe able to create fewer risks.  Can also indirectly address the risk of
success (which is piracy).  Entities that
engage in data driven creation tend to be big and to have an all you can eat
model, which makes piracy less important. We might be able to have less
copyright and get the same investment incentives because the risk of failure is
less (so the incentive needs to be less) and the risk of piracy is also less.
Moral intuitions
about copyright: labor theories. 
Consumer preferences and choices might start to be understood as part of
the contribution to the “work” that is produced. One model: The creator brings
something to humanity, like Prometheus bringing fire: that myth is hard to
sustain with data driven creativity. The creator is watching the watched, who
are then watching their reflections.
Sheff: I should hate
this trend, but not sure about what’s the problem.  (A: Feels manipulative.) Even if it is in this
iterative way, you still need experiments: you need an A and a B for your A/B
testing.  You don’t reach an equilibrium.
Data driven model can’t seem to capture that.
A: lots of research
tries to pin this down. Newness plays relatively modest role—we tend to like
things that are a little bit new but not a lot. Not that different from what we
actually like, but we just tell ourselves a story about what we like that doesn’t
match with our real enjoyment.  He thinks
of fashion: often the constant churning of the same stuff. Hard to make
judgments about whether fashion is more or less creative than other fields.
These Qs are above his pay grade.
[Jon Ronson’s The
Butterfly Effect influenced my thinking here. Camgirls and customs are the
opposite of algorithms: this story you’re telling is not really about
algorithmic creation but about the immiseration of the middle class, where
Mindgeek makes all the money and we’re back to cottage industry for everyone
else.  Note that this content is mostly
functional, and the average stay on the site is ten minutes; they don’t think
they can give guys more orgasms or longer ones, do they?  So what is the data being used to shape
content for? There are good reasons rooted
in the structure and incentives of the firm why they might want to use the
algorithms to direct the creation of porn and tell people that they are making
better porn as a result, but it’s not obvious why this tells us about creating
things that have more degrees of freedom/some aim other than producing an
orgasm.  So, for example, I’m
pretty sure a lot of big companies would prefer AI performers instead of cattle/actors
[who might, you know, end up being Kevin Spacey]. But I also have a strong
sense that AI performers won’t work for some significant subset of porn consumers,
to whom it is important that a woman do something for them. I could be wrong
about that, though.
Relatedly: Cui bono: and
what is the relationship of who benefits to the content of what is produced?
When I was growing up guys didn’t expect to come on our faces, and at least the
reporting tells me that things have changed.
A: [partial] Interpretive
qs are beyond my pay grade. [But if you’re telling us to draw conclusions about
creativity from this example, that’s what you’re getting paid for.  We are privileged white people and some
topics might not be our topics to publicize and pioneer the discussion on.] The
paper is about a phenomenon of which the adult industry is the best exemplar,
but Netflix and Spotify are part of the story. Camming and customs are
happening and have nothing to do with data. We’re trying to show you where Mindgeek
came from and our fundamental story about how the use of data may transform
industries [but if you’re only telling half the story about what the industry is, then is that a useful account? It
seems a lot like talking about work without talking about domestic, unpaid
labor].
Rosenblatt: consider
the things toddlers like to watch on YouTube—it’s not what you think.
Normatively may be unclear/different.
Lemley: old enough to
remember when cable was going to replace TV with ads b/c of the new business
model.  In fact, it just gets layered on
top of the existing revenue generation model. Fine w/normative suggestion that
we should be fine w/piracy but as a practical matter, the business model is
likely to be “here’s a new way to make money.” [Relatedly, dialing down on
copyright dials down the only lever that the people in cottage industry
production may have, which has serious distributional consequences.]
A: risk of failure
going down changes incentive structure, and risk of success going down has
indirect effects, suggesting recalibration could be appropriate.
Lemley: differential
benefits for big producers which are the only ones who can do this at the
necessary scale.  Small producers lose out.
A: this is what
people accuse Mindgeek of having done—used piracy to drive down value of
companies they acquired. TW/AT&T merger: TW made argument that they needed
to be able to hook up to digital distribution in order to target ads/shape
content and avoid competitive disadvantage w/Amazon and Netflix; the judge
totally bought it.  Data now becoming
more salient in creation of content: that’s a fundamental story. Whether this
is good or bad is a new set of questions. Sounds like new issues of platform
dominance, as w/FB.  That may be indeed
what we’re facing. May make sense to oppose it and do something about it but we
have to identify it first.
Immiserating the middle
class: FastCompany CEO wants lots of middle class musicians, not people earning
millions a year.  Self-serving vision but
not normatively worse than opposite. Artists do benefit in surprising ways:
bands on tour use Spotify data not only to decide where to tour but also what
songs to play in what cities. In equilibrium, we should expect artists to do
better at identifying and finding their audiences.

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IPSC session 2

Session 2: IP History
and Theory,
Stephanie Bair, IP
Inequality
Artists and innovators
are not equally distributed. Rich people are more likely to acquire IP rights than
poor people; whites than minorities in the US; males than females.  Theoretical lens: income inequality. Children
from high-income families are 10x more likely to apply for a patent than
children from low income families, even controlling for educational
achievement. Only 18% of inventors were women. Brauneis/Oliar on ©.  Income inequality has similar race/gender
aspects, and both IP and income inequality contribute to concentration of
wealth in the hands of a few. Some people think income inequality is good b/c it
encourages risk-taking.  Is the same true
of IP inequality?  No, it doesn’t hold
water b/c IP is already structured as an optional incentive system. If you want
financial and status benefits, you can create something; what’s not required to
serve this incentive function is relativity or inequality in the system itself—having
more IP than others is not what’s driving the system.
IP isn’t a perfect
proxy for innovation, so there could be IP-related reasons for disproportionate
participation in the formal IP system. Financial, cultural, value-based reasons.
Or they could be disproportionately innovating in areas of IP that aren’t
protectable, like social innovation. They could be denied IP rights at higher rates
due to explicit/implicit bias, and there’s some empirical evidence of this in patent.
Stereotypical male conception of innovation. 
There is also a true innovation gap—people from certain groups are
innovating at suboptimal levels.
Role of exposure to
other inventors/innovators—exposure to such a mentor increases likelihood that
person from underrepresented group becomes an inventor.
Psychology literature:
Circumstances of poverty bias decisionmaking away from types of thought
processes that lead to creative breakthroughs. 
Effects of past chronic stress on explorative v. exploitative thinking—when
people experience the world as harsh and unfair, people stick to what they know
rather than exploring new options. Problematic from creativity perspective.
Also, dichotomy b/t habit based and goal based decisionmaking. Chronic sleep
deprivation, linked to poverty and racial subordination, contributes to habit
based decisionmaking, which also hinders creativity. Even if IP system is fair
and open, hard to respond to its incentives.
[Woolf’s A Room of
Her Own.  Time and leisure and space,
mental and otherwise, are in short supply when people are overburdened with
care work/survival work.]
Jeremy Sheff: Effects
of poverty on lived experience of individual poor people: if I don’t make a
living, I won’t eat and my kids won’t eat. 
Don’t need psychology to explain the absence of the capital/time
required for innovation.
A: this is additional
to the explanations like that one. 
Chetty study specifically found financial barriers to entry weren’t as
important as one might have hypothesized in that if those barriers were absent
but there wasn’t a mentor, it didn’t matter as much.  [People from poorer backgrounds who can make
high incomes often feel pressure to do so to support others/justify the
sacrifices made to get them there; perhaps a mentor can direct that in the
direction of innovation.]
Sean Pager: note that
new innovation/creation from underrepresented groups may fill gaps that need
filling, rather than more of the same.  Role
of incubators set up by interest groups etc.?
Copyright, Andrew
Gilden, Copyright’s Market Gibberish
Cases like Nunez and
Bond v. Blum reject privacy as something w/in scope of market analysis. Other
cases where Ps resist sale for any reason, like Salinger, reason that though Ps
don’t want to sell these rights now, they might in the future, so there’s
market harm; or they’ve sold similar photos/rights in the past and so have
market-based rights now. Cases about political opponents: P isn’t allowed to
say there’s market for headshots used by opponent, but Don Henley is allowed to
presume a market for political licensing of his songs. Weirdly large body of
caselaw about religious disputes: Lerma/Scientology.  Worldwide Church of God: P able to stop
splinter group from using founder’s highly racist views—no financial interest in
the work or interest in selling it, but court hypothesizes there’s still
economic value to defeat fair use.
Does not want to require
actual/foreseeable harm to P’s market interests. Not possible to rigorously
separate market and emotional reasons. There are distributive problems w/
economic only view—advantages those with track record of success in the market,
like Salinger. [Though that doesn’t have to be the case if you use traditional,
reasonable or likely to be developed as a standard.] Slicing apart economics
and emotions have a disproportionate impact on women, minorities, and the poor,
whose injuries are less likely to be valued highly (or at all) in monetary
terms.  “Coddling artistic vanity” is a
gendered concept w/no place in the © system. Author’s right to change “his”
mind and eventually sell a sex tape; courts use “his” and not “her” in this
framing.  Courts should instead openly
and explicitly discuss the interests that they are actually weighing.  Basis in the statutory text: effect on the
potential market for, or value of, the copyrighted work, stated in the
disjunctive.  Video Pipeline: © isn’t
just about monetary compensation.  We
have developed a good taxonomy of defendants who should be allowed to copy and
not a good taxonomy of plaintiffs who should be able to assert nonmonetary
interests.
Likely pushback:
expand © in problematic ways.  He thinks
it will help reign in abuses and censorship. We can distinguish between privacy
and autonomy and online business reviews or efforts to suppress political
opponents.  In cases where courts do
openly discuss privacy/religious interests, they do so to deny claims, so
expansion of © comes from opacity.  If
courts can be open and explicit about noneconomic interests, so can parties,
which means that remedies can be tailored to those interests.
Annemarie Bridy: Longstand
policy choice not to have moral rights in ©. 
Your argument seems to be that courts are backdooring this through
market harm, so let’s just embrace it. Normatively I would be inclined to hold
the line and criticize the cases. © is looking for public benefits and that
generally happens through markets/dissemination, so we should keep that.
A: don’t take a
strong stance on what the balance should be, saying that the cases are wrongly
framed as market interests v free speech rather than surfacing the conflict.
[Shouldn’t the criticism then be that the cases making up fake market interests
shouldn’t do that?] He doesn’t think there should be a cause of action for
mutilation/distortion, but actual copying cases should consider the motivation behind
the invocation of ©. There’s no way to distinguish economic/emotional
motivations.
Bridy: but isn’t that
what the fair use factors are for, testing for the right motivation in
asserting a 106 claim?  If you aren’t
experiencing harm under 107, you shouldn’t win.
A: but you can’t
actually police that because of the market language that non-market Ps are able
to use.  We can’t draw those lines.
Q: Why not tell these
Ps that they should bring privacy claims if they have privacy interests, not ©
claims?
A: then we have to
ask why they don’t—it’s b/c of weaknesses in those cases. [But why does that
mean it should matter to the fair use analysis?]  Selective access to privacy protection
through © is the worst of all worlds.
[Yeah, I have the
likely pushback. Allowing “value” to mean “nonmonetary value” creates what I
call the “Centerfold” problem: I may feel bad that you made a critical, fair
use, and the work may now feel contaminated to me, but I don’t believe that the
law should weigh that against fair use.]
Dustin Marlan, Unmasking
the Right of Publicity
Protecting the
internal dimensions of the person is generally considered the role of privacy,
not publicity rights. Jerome Frank’s conception was very influential.  Now a hydra-like right, merchandising,
endorsement, and “impressment.” Similar to intrusion upon seclusion, false
light, etc. in terms of privacy categorization, but what caused this
bifurcation between economic interests and personhood/privacy interests? What
is the persona—“mask”—for publicity rights? Might be based on Franks’ own
conception of a self split into the private true self and the public false self
which is constructed and commodified.  Haelan was the first recognition legally
of the persona as an assignable, alienable right independent of the right of privacy.  Frank had been psychoanalyzed and recommended
it to his colleagues; wrote about psychological concepts of the law in which
judges were father-substitutes making the pretense that law was clear and
precise.  He was a fact-skeptic, believing
that uncertainty in judicial process resulted not just from uncertainty in law
but uncertainty in judge’s perception of facts—law varies w/judge’s
personality.
Consider other
concepts of the self that better integrate privacy and publicity: Julie Cohen’s
postliberal approach to the problem of selfhood is relevant to both:
subjectivity emerges gradually, shaped but not determined by surroundings,
situated within relationships, practices and beliefs. Celebrity as a mask that
eats into the face (hey, I wrote a thing about that)—may
be impossible to distinguish them in the way the law now presumes.
Shyam Balganesh:
wonders whether other stuff in Frank’s life was more important than his earlier
book—Frank himself was very clear about his academic persona versus his
judicial persona.
Copyright, Christopher
Yoo, Are Ideas Independent from Expression: Implications of Linguistics and Cognitive
Science for Copyright
Sapir-Whorf: language
structures our worlds, determines our actions, constrains our thoughts. Steven
Pinker believes that we think in mentalese: we have a concept of blue that is independent
of the word for blue.  Even though Korean
treats blue and green the same, Pinker thinks there’s something innate, as does
Noam Chomsky who posits a universal grammar and that language/acquisition can
be studied out of context.  “Colorless
green ideas sleep furiously” is grammatically correct even though it is
meaningless—there’s an inherent structure. 
Another version of language is agglutinative, with verb at end and
particles changing the meaning, like Finnish, Hungarian, Korean, Japanese—another
major form that just happens to manifest in different parts of the world b/c
there are a limited number of ways to structure language.  Now: renaissance of interest in Sapir-Whorf—studies
of directional languages/thinking.  Huge
controversy about which way causality runs. 
Inuits have multiple words for snow, but the number is in dispute and they need them. 
Implications for ©: Paramount
v. Axanar—unauthorized Star Trek prequel; Paramount asserts © in Klingon as a
language.  Natural languages aren’t
copyrightable, but what about constructed languages that originated from a
creative work but are now spoken by people? Axanar case says it’s a jury
question. Sapir says language is an agreement b/t people to communicate on
certain terms. Doesn’t have to be formal agreement, but genericide is an
example: by practice we use thermos to mean a thing.  Tolkien’s estate asserts © in Elvish but
doesn’t assert rights in noncommercial uses. 
See also Esperanto, Loglan, Na’avi, Dothraki.  Loglan is a constructed language to test the
Sapir-Whorf hypothesis, to see if they thought differently when using it;
creator asserted © to stop others from using, which seems self-contradictory.
Wikipedia and
Aboriginal languages: Tasmanian palawa kani is an attempt to synthesize
fragments of 12 extinct indiginous languages and promote its use. Wants to set
rules on who can use it, claiming under UN Declaration of Human Rights of
Indigenous Peoples, not copyright. Raises how shared language can define a
community. Wikipedia rejected request for removal.
Oracle v. Google: can’t
© overall computer language, but a specific computer program can be. Where is
API in that scheme?  Fed. Cir. reversed
two jury verdicts saying it was ok. This is about levels of
generality/taxonomies.  Reminiscent of
Nichols v. Universal Pictures; EU came out the other way.
Other implications:
right to speak a particular language; importance of gendered speech.
Pam Samuelson: how
would you rule on computer languages developed in order to become “lingua” of
that community versus things that are more artistic such as Klingon? What tool
do you use? She thinks of language as system with structure & component
elements.
A: the way statute is
drafted excludes all that. We have a generality problem. He would draw the line
at functionality. Similar to transformative use—now w/database cases it’s about
making creative works more useful rather than more/differently creative.  Tolkien’s Elvish: Kind of like laches—once you
let it loose in the world, other people should be able to use.
Justin Hughes:
Malaysian/Ba’ahasa was a pidgin/trading language for coastal peoples, built
into a language—this seems like a functional purpose.
Betsy Rosenblatt: you
talk about genericide; we don’t protect systems b/c we think they’re
functional. To the extent that it’s a communication tool, it’s functional even
if it is expressive in the origin. So wouldn’t draw a line b/t Klingon and Java
b/c they are both building blocks.
A: Coders say code is
beautiful but most of them don’t do that in their daily work.  Klingon was designed by linguists.

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IPSC session 1

Standard disclaimers apply: These are my
summaries, not the presentations themselves.
As
usual, I have to skip a lot of interesting presentations and I try to attend
things I haven’t seen, no matter how good the ones I have already seen/read
drafts of are.
Session
1: Trademarks
Jason
George (and Lisa Larrimore Ouellette), Trademarks as Innovation Incentives
Not
saying that the goal is/should be innovation. SCt has said multiple times that
TMs aren’t about promoting innovation or discovery; that’s patent/©.  We’re saying that this has made us overlook
the effects of TM on innovation, which could be good or bad.  Survey evidence: many innovative firms don’t
use patents at all. Pharma/chem aside, firms view first mover advantage as more
important in appropriating returns from investment.  Not concerned about lines separating
doctrines. TM is important in maintaining/extending first mover advantage and
thus creates incentives.  Purple pill for
Nexium=competitive advantage in the marketplace; the Swiffer, which used lots
of existing inventions but appropriated returns through branding.
Economists
are now using TM as innovation indicator—registrations correlate w/R&D
spending, stock market value, and self-reported innovation as well as patent
counts. There are caveats. TM registrations don’t mean 1-1 new product; could
be a product new to the firm or the marketplace rather than new to the world,
but that’s also true of patent
àinnovative product. Also
industry-dependent, but in some industries TM better correlates w/innovation
than patent, for example in info services.
This
doesn’t mean that more TM means more innovation.  TMs have costs to innovation, as w/patents.  Barriers to entry; higher prices to consumers.
Overincentive—TMs can endure forever.
How do
first movers exploit TMs?  At least three
mechanisms: staking out the most effective marks—Beebe & Fromer on the
marketing literature on the limited supply of “good” marks.  Causing chosen marks to become synonymous
with the innovation—arguably Lyft is a better name for ridesharing, but Uber
owns the category mentally.  Using the
first mover period to develop brand loyalty, as w/name brand drugs after patent
expiration.  Can work together: cronut is
an apt name for the hybrid pastry, and it’s a registered TM though it’s
arguably generic (and the registrant may not have been the inventor [which
seems to be a problem for the theory, as does the Swiffer example]) and
developed brand loyalty. [Isn’t this an incentive to create a thing called
brand loyalty or goodwill, not the thing that we have historically called
innovation?]  Shredded Wheat case goes to the link—protecting a name synonymous
w/product has a similar effect as patent protection post-patent
expiration. 
Complementarity
b/t patents and TM in industries w/low turnover and need for differentiation
b/c advertising spills over to similar products, like the pharma industry. [Maybe
you need TM differentiation to preserve market share in pharma precisely
because pharma depends on patent-type innovation, which is generally free for
others to copy once the patent expires?] 
But TM provide distinct benefits over patents: Cost. You don’t need
anything to get TM protection but bring product to market, and registration is
cheaper/faster than patent examination. TM cover more subjects than patent—anything
that can be sold in the market.  Quick
innovation cycles are poor fits for patent as w/software, but first mover
advantage can be significant. Less robust protection than patents, but weaker
protection over a longer period can achieve the same incentive w/less deadweight
loss.
Any full
economic analysis of given TM doctrine should take good & bad into account
when trying to measure its effects on a particular industry.  Where doctrines give wiggle room: genericide,
secondary meaning, functionality. Unclear if change is needed. Added complexity
from trying to factor in may o/w possible efficiency gain but that’s different
from believing that these effects don’t exist.
[Why not
call this theory a theory about protection against point of sale confusion or maybe
just against counterfeiting?  Current
formulation seems to be imprecise in just the way that distorts full economic
analysis.  Does dilution protection
support first movers’ incentives? 
Especially given the evidence about how most (non-pharma) firms don’t
make internal distinctions b/t IP doctrines (see also Jessica Silbey’s work),
it’s hard for me to understand how one would distinguish between “existence of
some basic TM right” and “this particular aspect of the doctrine” in performing
the economic analysis of a doctrine’s incentive effects.]
Q: this
is about what TMs do to compete/bring a product to market, not innovation. What
is it about TM law that is stimulation innovative activities as opposed to
bringing a product to market? Also: Don’t really get how registration is an
innovation indicator. From economic perspective there’s such a low cost that it’s
not a great signal. Innovation correlates w/ a lot of stuff like not being
starved.
A: Rewards
a number of different activities, but mechanisms affect first mover advantage
in a lot of ways.  One could argue that
first mover advantage is the key thing, and TM extends that.  Causes TM to have more direct effect on
innovation.  Also true that correlation
isn’t causation.  Don’t rely on those
studies.
Christian Helmers
(with Carsten Fink, Andrea Fosfuri, and Amanda Myers​), Submarine Trademarks
iPhone mark
originally filed in Trinidad & Tobago on paper March 2006, by a company
called Ocean Telecom that eventually merged w/Apple.  Filed USPTO by Ocean Telecom Sept. 2006 for
extension from T&T.  Official
announcement by Apple Jan. 2007.  Released
June 2007; merger w/Ocean Telecom Sept. 2007. This reflects the submarine
strategy: public disclosure is strategically delayed by filing in a foreign
jurisdiction w/o online publication and sometimes combined w/use of shell
companies. That can then be used to get US priority when filed w/in 6 months
under the Paris Convention.
Small but increasing
number of mostly tech firms. Used PTO TM dataset to ID TMs 2002-2016 claiming
priority from one of 6 jurisdictions that are Paris Convention but don’t
publish online register. Also extracted non-submarine filings from companies
that use the submarine strategy.  187
unique company names doing submarine filings. Also distinguish filed in own
name/filed by shell company; our prediction is the upward trend of filings will
continue to increase.  Apple, Google,
Zynga, Mattel, T-Mobile, Cisco, Amazon, LG, Bethesda Softworks, Intel, Beats
Electronics, Facebook, Instagrams, Nest Labs, Tivo.  Amazon stands out w/shell company filing
strategy, but Apple has done it more numerically so far.  Strong trend: class 41, 42 (computer &
entertainment services), goods class 9 (computers): usually filed in products &
services.  Mattel stands out here as toy
company, but has used the strategy for online characters.
Used Google Trends:
are submarine TMs associated w/fewer online searches prior to official product
announcement/release?  Answer: yes. iPad
Air, for example, had zero search intensity until official announcement; the USPTO
filing date was after the official product announcement. Compared to regular
TMs: the regular marks have much higher search intensity before the
announcement date.
Thus submarine TMs do
seem to be associated w/more secrecy than regular TMs. More likely to use when
TM/product is more valuable; competition for products/names is intense; company
pursues a global branding strategy. Various metrics, including: Where you tend
to have a lot of refusals and oppositions, companies are more likely to go
submarine.  Madrid filing/Madrid filing
in China (indicating a global strategy) is positively associated w/submarines
b/c they’re worried about squatting in China.
Daniel
Hemel (and Lisa Larrimore Ouellette), Governing the Semantic Commons
Semantic space is
elastic, but not infinitely or effortlessly so. English speaking consumers can
be trained to remember marks like Krasny Oktyabr, but it’s a cognitive stretch.
Example: Hagen Dasz.  Tragedy of the
semantic commons include costs of proximity: costs arising b/c marks are too close
semantically to one another include consumer confusion, reduced incentives to
innovate/invest in quality.  Distance
also leads to confusion: medication with name too long for expanded Twitter
count makes it hard to identify the medication or to figure out what’s the
same/different—leads to greater reliance on gatekeepers and greater start-up
search costs.  Compare: last French/Italian
wine you drank—what was the mark, not the varietal? For non-connoisseurs, it’s
hard to remember and we become reliant on people who restrict market access.
Trouble w/TM is not
just that semantic space is limited, it’s also that almost any change to TM law
that reduces the costs of distance will increase the cost of proximity, and
vice versa.  This tradeoff is almost
inevitable. Consider geog. limits on TM protection, or higher showing of
secondary meaning before recognizing a descriptive term as a mark: that
increases ability to approach the other use, but also risks confusion for the
people who do cross over geog. lines or who do think there’s a single source.
3 possible escapes
from the dilemma: propertization. TMs are relatively weak property rights;
assignment in gross doctrine limits alienability/divisibility, making semantic
space heavily zoned—you can’t just do whatever you want w/your property. We
could remove the zoning and allow property owners to allocate regardless of actual
consumer protection, so the single owner could decide, or not, to allow one
user in California and one in Iowa, or one user in one category of beer and
another user in another category. Demsetzian logic: trust the mark owner.  Trouble is the Merrill/Smith argument about
slicing property.  Other marks lose
information value when you do this.  You
can’t then look at any TM and understand what it represents, and the property
owner doesn’t take that externality into account when making decisions for its
own benefit.
Could use Pigouvian
tax, or subsidize firms that expand the semantic commons.  Target tax benefit for advertising to those
who call their product “Smirnoff” instead of “Natural Light.” 
Alternative ID
systems: government generated, like SSNs, or bar codes (privately generated) so
that you don’t have to remember what you drank before and can just scan the bar
code.  There is need for coordination,
whether by gov’t or by private systems. 
Some health systems use 10-digit identifiers and others use 11-digit,
and not all transfer the 10 to 11 in the same way, which is a problem of semantic
space but not generally thought of as a TM problem. 
Q: is propertization
sensible given the confusion results?
A: We know that land
is finite and we’ve still given strong property rights.

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The Ninth Circuit don’t care: successful Rogers defense reversed because plaintiff’s trademark is “artistic”

Gordon v. Drape
Creative, Inc., No. 16-56715 (9th Cir. Jul. 30, 2018)
The Ninth Circuit
routinely invents some new epicycle for trademark defenses; here it unfortunately
mushes together Rogers and
transformativeness (absent the word itself, replaced with “artistic”).  There are a number of good reasons why a
trademark right is not the same thing as copyright in an artistic work.  [See also: there’s no copyright in short
phrases, and an artistic work can’t be a trademark for itself.]  This opinion unfortunately does not appreciate
those distinctions, creating a sort of tradecopymarkright, the kind of thing Dastar cautioned against.
Gordon is the
creator of a popular YouTube video known for its catchphrases “Honey Badger Don’t
Care” and “Honey Badger Don’t Give a S—.” He registered the former phrase as
a trademark for various classes of goods, including greeting cards. Defendants made
greeting cards using both phrases. The district court granted summary judgment on
Gordon’s trademark claims for defendants, using Rogers v. Grimaldi, 875 F.2d 994
(2d Cir. 1989).  The court of appeals
reversed.
The court of appeals
found a triable issue of fact on artistic relevance: “Defendants have not used
another’s mark in the creation of a song, photograph, video game, or television
show, but have largely just pasted Gordon’s mark into their greeting cards. A
jury could determine that defendants did not add any value protected by the
First Amendment but merely appropriated the goodwill associated with Gordon’s
mark.”  What has happened here is that
the word “relevance” has been ignored, and “artistic” has been reinterpreted as
a thing that the defendant must add
to the original, rather than having a meaning-based relationship between the
original and the accused work.  I don’t
understand why “Barbie” wasn’t just “pasted” multiple times into Barbie Girl, etc.—the court has some definition
of “pasting” that includes “forming a joke around” but not “forming a song
around.” 
What’s really going
on here is a denigration of the greeting cards as works—protected by the First
Amendment, yes, but not real works like songs, photos, video games, etc.  This is not without irony given the ways
these classes of works have been denigrated in the past, but it also speaks to
the confidence courts have in making judgments about how much art is in a work, which they seem to think differs from judgments
about merit.  And therein lies a deeper
irony, which is that trademarks are one prominent example of how lots of
meaning can be concentrated in small semantic/symbolic units.  Hamlet
these cards ain’t, but they shouldn’t need to be, and it seems to me that, as
with cockfighting
in Bali
, one could perform a pretty serious reading of current American
culture using these greeting cards.  The
court of appeals basically doesn’t think that defendants did anything more than
tell the same joke that Gordon did.  Ok,
but it’s still a joke that has nontrademark meaning, and preserving the freedom
to engage in that kind of expression is the point of Rogers.
The court of appeals
found that the defendant had met its initial burden of showing that the
allegedly infringing work was part of an expressive work protected by the First
Amendment [pause for the usual sigh: the court means noncommercial speech,
since commercial speech is also usually expressive].  The burden shifted to the plaintiff to show
not only likelihood of confusion but also at least one of Rogers’ two prongs: explicit misleadingness or lack of artistic
relevance.
The greeting cards
were, of course, expressive works: “Each of defendants’ cards relies on
graphics and text to convey a humorous message through the juxtaposition of an
event of some significance—a birthday, Halloween, an election—with the honey
badger’s aggressive assertion of apathy.” 
The level of necessary artistic relevance must merely be “above
zero.”  If this weren’t the Ninth
Circuit, it would be startling for the next sentence to be in a case that finds
a triable issue of fact: “The honey-badger catchphrase is certainly relevant to
defendants’ cards; the phrase is the punchline on which the cards’ humor turns.”
Unlike every Rogers inquiry up until now (including Parks), the court continues: “the ‘artistic
relevance’ inquiry does not ask only whether a mark is relevant to the rest of
the work; it also asks whether the mark is relevant to the defendant’s own
artistry.” [Citation needed.] How do we define relevance?  “The use of a mark is artistically relevant
if the defendant uses it for artistic reasons. Conversely, the use of a mark is
not artistically relevant if the defendant uses it merely to appropriate the
goodwill inhering in the mark or for no reason at all.” [A key problem here is
that “to appropriate the goodwill” isn’t the opposite of “for artistic reasons”—what
the court is really doing is importing transformativeness from the right of
publicity defense to Rogers, which I
can’t see as a benefit, especially given the mess it further makes of the video
game cases, which I would’ve thought couldn’t get worse. Silly me.  Also, “to appropriate the goodwill” sounds
worryingly intent-based, though the court isn’t clear on this, and Rogers itself was supposed to draw a
line between “to invoke the cultural significance of” and “to infringe” which
is now apparently infinitely regressed into the test.  Suppose the defendants credibly testify that
the purpose of the use was to create a joke that felt contemporary and
casual.  Is that “artistic”?]
The court continues:
“[f]or artistic relevance to ‘be above zero,’ the mark must both relate to the
defendant’s work and the defendant must add his own artistic expression beyond
that represented by the mark.” 
[Apparently original artwork and minimal jokery does not qualify as
artistic expression as a matter of law; I would have thought it should.]  For example, “[n]o one seeing Warhol’s work
would think he was merely trying to appropriate the goodwill inhering in
Campbell’s mark; no one thought Warhol was selling soup, just art.” [And what
do they think defendants are selling? 
Trademarks?  Unsurprisingly, here
we also have evidence-free judicial factfinding about consumer perceptions of Warhol—a
hallmark, no pun intended, of transformativeness cases. Also, if you can
plausibly explain to me why Andy Warhol is not “simply”
copying the soup cans
but defendants here might be, in a way that doesn’t
rely on Andy Warhol’s own (partially soup-generated) fame, I will knit you a
sweater from very nice wool. Warhol
famously (like
honey badger itself) didn’t
care
, and much critical reaction at the time thought he was making nonsense;
the canvases
sold badly
.  Query what would happen
if Richard Prince invested in defendants today.]
Next, the court treats
the trademark owner as an “artist” even though it is beyond peradventure that
the trademark laws are not about creativity: “[I]t cannot be that defendants
can simply copy a trademark into their greeting cards without adding their own
artistic expression or elements and claim the same First Amendment protection
as the original artist. That would turn trademark law on its head.” [This would
only be true if you assume that all trademarks are “artwork” and ignore
“source-indicating use” as a meaningful limitation on trademark protection—the
latter of which, in fairness, is the modern US trend, even if it shouldn’t be
because it creates problems like this one. 
The court’s counterfactual reminds me of Justice Breyer’s example in the
Wal-Mart oral argument of a hairbrush
shaped like a grape: although I can imagine a card that just said “Coca-Cola”
on the front and nothing on the inside, I can’t really imagine who would bother
to make it or who would buy it, so I don’t know why assuming that such a card
would infringe helps us answer the question of whether a greeting card that
does more than that could infringe.  Would
that even be a greeting card?]
For purposes of
summary judgment, “defendants may have merely appropriated the goodwill
inhering in Gordon’s mark without adding any creativity of their own.”  [Query: if there is testimony that the
greeting cards as a whole are copyrightable despite using a stock phrase,
should that satisfy the inquiry?  If not,
why not?  What other standard for
“creativity” do we have?]  It was true
that the uses weren’t non sequiturs and made sense in context [presumably contra Parks], but there was a triable issue of fact “whether defendants added
their own artistic expression, as opposed to just copying Gordon’s artistic
expression.”
And then the court
notes that Gordon presented evidence that he sold products bearing the mark,
including greeting cards (and that defendants declined a licensing deal with
him and defendants’ president testified [unconvincingly] that he couldn’t
recall what inspired the cards).  With
the placement of this discussion, the court seems to be grasping towards some
sort of creativity-substitution standard—did they fill the same market niche,
satisfying the same demand for expression?—but this isn’t a copyright
infringement case.  A short phrase like
HBDC isn’t copyrightable.  In fact, as
framed, the court has just put copyright preclusion squarely on the table: if
the question is whether there was copying of expression, that sure sounds like
a right equivalent to copyright protection.
Anyway, “a jury
could possibly conclude that defendants used the phrases for artistic reasons on
one or more cards but not on others.” 
This wasn’t like other prior cases, the court said.  In Rogers,
“[t]he film did not appropriate Ginger’s mark; it came in praise of her craft, celebrating
Rogers and Astaire’s ‘elegance and class’ and contrasting it with the ‘gaudiness
and banality of contemporary television.’” [Which is to say it appropriated more
of her image than just her name, which is apparently ok.] The film’s title was
“not a disguised advertisement for the sale of goods or services or a
collateral commercial product.” [Also true of these cards, which are themselves
the expressive product being sold.]
The junior users in the
Barbie cases “also viewed Barbie as a cultural icon, even if they did not treat
her with the same adulation that Fellini did Rogers.” [And honey badger isn’t a
mini cultural icon?] In the Empire
case, “Empire” has a bunch of common, relevant meanings. And in the video game cases,
“the borrowed mark was part of a much larger context,” [which notably didn’t
translate into a finding of transformativeness in the portrayal of the players
themselves as applied to the right of publicity claim,] which was also true of
the GTA/Pig Pen case.  Thus, the court contrasted “the junior user’s
own artistic expression” with “use in the same way that Gordon was using it—to
make humorous greeting cards in which the bottom line is ‘Honey Badger don’t
care.’”  [Which again conflates the expressive content of a work with a trademark for a work—assuming Gordon
had a valid mark, it was valid as an identifier of the source of goods or services,
not as the content of a work. “Honey Badger don’t care” might be capable of
being used as a trademark for some things, though it’s a pretty long one.  Gordon has no trademark rights over the “bottom
line” of an expressive work—that’s what copyright is for, except copyright
doesn’t cover short phrases.]
“A jury could find
that defendants’ cards are only intelligible to readers familiar with Gordon’s
video and deliberately trade on the goodwill associated with his brand.”  [Here we have another way of making the
fundamental mistake: the “brand” if any, and the catchphrase are fully
distinguishable, just as the Statue of Liberty is famous but not famous as a mark even though there are entities
using it as a trademark such as Liberty Mutual. 
I would be stunned if there were noticeable secondary meaning here in
the sense of consumers being familiar with the honey badger phrases as an indicator of source for stuff in
the way that Hallmark is an indicator of source for greeting cards.  The defendants might thus easily have been relying
on the cultural meaning of the phrase without free riding on Gordon’s “goodwill”
in any trademarks.  This can be true even
when there is substantial secondary meaning, as when I say “this is a Mickey
Mouse operation”—unintelligible to those who don’t know the icon, but also
protected by the First Amendment when it’s, say, in a restaurant review.
Another way to get
at this issue: I doubt anyone would contend that Barbie Girl is “intelligible” to listeners unfamiliar with Mattel’s
Barbie, or Fred and Ginger to viewers
unfamiliar with Astaire and Rogers; at the very least, just as with the
greeting cards, those works would lose a lot of their resonance without their
cultural contexts.  Rogers, until now, allowed speakers to invoke a well-known, or not well-known, entity without equating
that invocation to use of goodwill in a trademark sense. Indeed, the court’s
blithe equation here of familiarity with trademark meaning is exactly what Rogers rejected.]
Anyhow, a jury must
decide whether defendants used the phrases “in any way that distinguishes their
use from Gordon’s and thus … ‘imbued’ their product with any ‘expressive value’
apart from that contained in Gordon’s trademarked phrase.”  [Note that this formulation is not the same
as what the court apparently thinks is the real test, the repeated question of whether
defendants added “their own artistic expression or elements.”  Suppose the jury finds that artistry is in
the beautiful portrayal of the honey badger. Does that count?  This is basically the same question as I
asked above about copyrightability.  (1) If
artistry in honey badger rendition is insufficient because the question is instead
whether the parties’ ideas were the same (they were using both using the
phrases for greeting card punchlines), then we have Dastar problems times a million. 
(Imagine what happens in a few years when somebody makes a Steamboat
Willie cartoon—not a parody, just another standard Steamboat Willie cartoon—how
will we determine what “distinguishes” that from an authorized Disney Steamboat
Willie cartoon for purposes of this new, improved Rogers test?)  (2) If instead
the question is whether the parties’ expression was the same, then we only have
copyright redux (and summary judgment for defendants should be warranted,
unless there’s something the court isn’t saying). (3) More likely the court is
just thinking “there’s not enough” without giving any useful guidance on what “enough”
might be, or why more than “more than zero” ought to be required.]
But hey, the
defendants might win on artistic relevance, or on likely confusion or on
abandonment.

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tell me no lyes: hair relaxer claims continue

In re Amla Litigation, — F.Supp.3d —-, 2018 WL
3629226, No. 16-cv-6593 (S.D.N.Y. Jul. 31, 2018)
Plaintiffs brought fifteen claims, including false
advertising, against L’Oreal based on alleged defects in the Amla Legend
Rejuvenating Ritual Relaxer, which is used to chemically straighten naturally
curly hair. The court previously certified a NY class and a Florida class, but
now decertified the unjust enrichment classes and classes seeking injunctive
and declaratory relief, granting summary judgment to L’Oreal on those claims, and
also granted summary judgment on all dangerousness-related claims based on the
relaxer component of the product and on the California plaintiffs’ omission-based
fraud and negligent misrepresentation claims. Summary judgment was denied as to
the NYGBL claims and all remaining claims based on dangerousness or representations
or warranties regarding Amla’s ability to protect scalps or implicit
misrepresentations that the product is safer than relaxers that contain lye.
Hair relaxers generally use an alkaline agent “to
penetrate the hair’s outer layer and permanently break the disulfide bonds in
the hair’s keratin proteins, forming new, substantially weaker bonds.” The hair
becomes straighter but more fragile—that is, damaged. This can cause hair
breakage and scalp burning, as relaxer users know. L’Oreal’s expert survey
determined that, after adjusting for the control, 80.2% of respondents believed
that no-lye hair relaxers such as Amla can irritate the scalp and 63.5% knew
that it could cause hair to fall out. “Users’ baseline expectation, then, is
that the product here at issue, like all hair relaxers, poses risks. The
alleged difference must be one of degree.”
Amla’s relaxer component contains proprietary
“pro-solvent ingredients,” allowing the alkaline agent to penetrate the hair
faster than they otherwise would. Plaintiffs alleged that these ingredients,
together with the design of the emulsifier in the relaxer cream, caused the
product to finish relaxing hair in less time than users could reasonably apply
and remove it. But the alkaline agent continues breaking disulfide bonds until
it is removed or neutralized; thus, the relaxer would necessarily break more
bonds than necessary to relax the hair, thus allegedly making the product
unreasonably dangerous. The court found plaintiffs’ expert report on the dangerousness
of the relaxer component unreliable and inadmissible, and their other evidence
of dangerousness insufficient.
Plaintiffs also argued that Amla was unreasonably
dangerous and representations to the contrary were false and misleading because
the scalp protector in the Amla kit does not “protect[ ] scalp & skin,” as
represented on the product’s packaging. Their expert report tested the scalp
protector versus petroleum jelly five times and each time found that the
relaxer penetrated the scalp protector after a few minutes, while petroleum
jelly lasted 30 minutes. This was admissible evidence, and the court noted that
users might not complain about an unreasonably dangerous flaw in the scalp
protector, given that users already know that the relaxer can burn if it
touches the scalp (and thus presumably might blame themselves for user error in
applying the scalp protector, without understanding that it had failed them).
Thus, there was a genuine dispute over scalp protection, including whether
representations and warranties about scalp protection were misleading or were
breached.
Other alleged misrepresentations were based on the
statements/warranties that Amla was a “no-lye,” “anti-breakage” and “intense
conditioning” “rejuvenating ritual” that is “infused with” a “powerful
antioxidant rich in vitamins in minerals” and which “delivers unified results,”
has “superior respect of hair fiber integrity,” “reveal[s] visibly fuller,
silkier hair”, “protects scalp & skin” and “infuses hydration &
conditioning.” The court found that, the scalp protector aside, these were
literally true claims as applied to the individual kit components to which they
were directed.
However, plaintiffs also argued that these
representations, and other package elements, misleadingly communicated greater
safety than other relaxers, and though the product wasn’t unreasonably more
dangerous than other relaxers, “the evidence strongly suggests that the product
is not safer,” creating a genuine dispute on that issue. But was there a
dispute over whether such a claim was made? The issue is how a normal consumer
understands “no-lye,” a technically accurate description of L’Oreal’s lithium
hydroxide product (lye is sodium hydroxide).
Separate from the litigation, L’Oreal conducted a
study among 406 African American women, from 18 to 49 years old, who had used
hair relaxers in the past six months. In that study, 57% of respondents said
that the phrase “no-lye” communicated to them “that the product contained
no/fewer chemicals” than other relaxers, and 39% said it communicated that the
product “will not be harmful to the hair.” 27% of respondents pointed to the lack
of lye as the principal reason they would like to use the relaxer. Another
L’Oreal study found that “women are drawn to trying Amla relaxer anticipating
that an oil-based/no lye relaxer … will be more soothing and protective of a
sensitive scalp than relaxers they’ve used previously.”
Plaintiffs offered their own survey of a similar
population, which L’Oreal moved to exclude. That survey found that 80% of
respondents answered that they would expect a relaxer whose package makes the
“No-Lye” representation to be “less harsh on your hair,” 77.5% would expect
that it is “more safe to use,” and 77.9% that it is “less likely to be harmful
to your scalp and hair.” L’Oreal argued that the questions were leading in that
they forced respondents to specifically consider safety, which they might not
just seeing the package. There was no control group. “Comparable flaws have
rightfully served as the basis for exclusion of similar surveys in other areas.”
However, there was significant external evidence that relaxer consumers already
associate lye with dangerousness and no-lye relaxers with comparative safety,
as discussed above. “The risk that respondents only considered this possibility
because of the listed responses is therefore relatively low, making the survey
results more reliable.” Thus, the survey was admissible, and there was a
genuine dispute over whether the package “meaningfully communicates to users
that it is safer or gentler than relaxers that do contain lye.”
Unjust enrichment: plaintiffs’ only damages theory
was that the product was so dangerous as to be worthless, justifying a full
refund. They didn’t have evidence of damages based on the value of the scalp
protector, and that didn’t render the entire kit so dangerous as to be
worthless; the other parts performed their intended functions. [Query whether
any reasonable consumer would buy a kit with a worthless but really important
component.] Thus those claims, and their class, went away.
By contrast, NYGBL § 349 provides for the greater of
actual damages or $50 statutory damages for anyone injured by a violation of
its terms. “Because the statutory damages apply on a classwide basis, there is
no need to determine the exact amount of [any] price premium.” A reasonable
juror could find that adding the scalp protector increased the price of the
product. The package advertised the scalp protector as one of its five steps and
recommended its use in the section of the packaging labeled “READ BEFORE
PURCHASING.” Also, 85.4% of respondents in plaintiffs’ survey, all of whom had
used relaxers, indicated that a scalp protector should always be applied before
using no-lye hair relaxers.
L’Oreal argued that some class members likely would
have purchased the product even in the absence of those allegedly misleading
representations. “This argument, however, is an attempt to impose a reliance
requirement where none exists. As the New York Court of Appeals has recognized
in this context, ‘[r]eliance and causation are twin concepts, but they are not
identical.’… If there is a price premium, then every purchaser of the kit paid
more than they otherwise would have, so every purchaser was injured. A
purchaser’s individual experience after purchasing the product or idiosyncratic
ex ante valuation does not matter.”
Since plaintiffs didn’t show a likelihood of
repurchasing the product, their declaratory/injunctive relief claims were
dismissed.
Fraud/negligent misrepresentation by omission: New
York, Florida, Illinois, and Missouri define a manufacturer’s duty in varying
ways, but the upshot is that “a manufacturer that knows its product presents an
unexpected safety risk when put to its normal use has a duty to disclose that
fact to consumers who do not have access to that information.” In California, a
duty to disclose only arises if there is a direct “transaction” between a
manufacturer and end-consumer and negligent omission claims are otherwise
barred, so the California claims were kicked out.

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