IPSC Breakout Session III

Posted on August 12, 2016 by rtushnet
IP & Privacy
Exploring Privacy as Commons
Katherine Strandburg & Brett Frischmann
Knowledge production/privacy as highly related, not
orthogonal/opposed.  Knowledge production
framework as a way of doing descriptive empirical case studies of how privacy
works in context, which can aid policy design. Appropriate info flows take
place in complex and variable forms, and understanding the variations is
important.  Knowledge commons framework also
lines up w/Helen Nissenbaum’s work on contextual integrity in the privacy
realm. Norms and info transmission principles can be supplemented w/a broader
conception of governance.
Privacy is community management that applies to resources and
involves a group/community but doesn’t denote the resources, community, place,
or thing: privacy is the institutional arragnement of these elements.
Meeting under Chatham House rules: identify or affiliation
of speakers/participants can’t be revealed but participants are free to use the
info received. Is this privacy or knowledge commons? It is both: encourages
candor, openness, sharing of ideas. Once adopted, the rule governs the
resources/knowledge produced and behavior. Reflects and shapes norms for
participants; reinforces boundary b/t community members and nonmembers. It’s a
good example of privacy/commons governance. 
Norms of behavior at IPSC can also be described in the same way.  [E.g., I blog about talks but not about
hallway conversations, I think he means.]
Studies of different research consortia for rare diseases,
which are all about knowledge production: in both, there are IP issues on the
fringes, but one really important issue that drives production is privacy w/r/t
patient data. How do you get patients to participate?  What will happen w/clinical trials? 
The basic characteristic distinguishing privacy from nonprivacy
is institutionalized sharing of resources among members of a community: both
jarring and useful.  We are accustomed to
think of privacy as nonsharing, but privacy is often social; always connotes
boundaries b/t sharing and nonsharing.  Doesn’t
work at n=1, maybe not w/physical resources; sidelines normative debate and
values; takes a long time and needs dedicated research community. Benefits:
learn more about variance, nuance, obstacles/dilemmas, institutions; explore
intersections w/knowledge commons, as w/big data; learn what people really care
about and why; improving insittutional design.
Q: seems like a lot of work is done at different level of
generality. Drug cos. are willing to claim protection for privacy as their
justification for not sharing information.
A: the studies do provide the necessary details. Boundary
crossing: sharing research w/community at large v. within the pharma co. You
can get at boundary management by studying a variety of pharma patient
communities: rare disease community is different than big pharma. In one case,
pharma reps were part of the disease research community. We unpack what privacy
means only if we study them systematically, asking the same set of questions to
a bunch of different communities.
Q: sharing among corporations involves very different
environments, cultures, etc. than sharing among friends—privacy as trust.  How do you translate an idea about privacy
that’s inherently about individuals to a larger corporate environment?
A: look at the ends they set for themselves and how their
practices interact w/ that.  Maybe
withholding data benefits the internal community; our proposal doesn’t judge
that or assume that it has social benefit.
Q: can anything be excluded from the definition of an
institutional arrangement you offer? E.g., family, freedom.
A: not sure!
Silbey: Privacy is generally considered an individual right
against the gov’t in constitutional law; we don’t study institutional
mechanisms enough in law to figure out how individual rights are translated
into a system.
A: he thinks of privacy as a means; ends are for society to
determine.
Trickle Down Privacy
Ari Waldman
How we operationalize privacy in institutions.  Individual expectations of trust form
contexts of privacy.  Bamberger/Mulligan’s
work in 2010, 2015 about operationalizing privacy on the ground.  We can write all the laws we want, but what
happens in corporations as they write policies or create products that suck in
data or manipulate us into sharing information? 
B/M showed: corporations began to take privacy more seriously, even
though the law didn’t change much in 20 years; still swiss cheese like. What
changed: development of robust privacy professional sphere, who understood that
privacy was about trust.  Role of FTC in
developing common law of privacy and data breach notification statutes also
mattered, as well as tech changes where new products primarily implicated
privacy. If that’s true that over 20 years companies have developed a more
robust conception of privacy, why do we still have all these problems? Why are
privacy notices still so terrible, unread, unhelpful?  Why are some companies more nimble w/privacy
issues than others? Why do platforms get built specifically to manipulate people
into sharing data they might otherwise not share?  Do practices start at the top? What about in-house
lawyers, and people creating the tech/designing the products? Do they share the
robust conception of privacy at the CPO level? And what’s the role of the user?  This matters to help companies that do care
to structure their operations to take care of privacy, and for purposes of
legal reform. FTC settlements just say “create comprehensive privacy program,”
which generally means hiring a CPO, but if that doesn’t matter we should know.
Research design: interviews w/lawyers, programmers,
engineers, members of privacy teams, project managers/tech leads.  Observation of product design process for an
app that involves lots of user data. 
Qualitative w/quantititave aspects.
Hypothesis: robust privacy won’t trickle down from CPO w/o
active tech person lower down who shares that vision.  Tech people aren’t trained like lawyers or
ethicists, but in efficiency/gathering data. May think about privacy in terms
of notice, or user’s response.
Privacy leads even at middle management tend to think about
privacy as more than notice, but also user trust, even if they don’t have a
complete concept of what privacy is. Robust practices and guidelines exist in
all but the newest startups. Lawyers think of privacy as notice pure and
simple. They write privacy policies as legal documents; don’t care about impact
on users’ decisions to share.  Their goal
is to cover everything—cautious. 
Technologists use the same words as robust privacy pros, but they
fundamentally think about privacy as notice. Privacy becomes creating a product
that’s fun and takes in data.  Privacy
norms trickle down: only time he’s seen it trickle down is when the
technologist designing it isn’t just given a mandate “take privacy seriously”
but also shares the robust vision of privacy/trust.  May have something to do with
education/training.  An engineer
manager/product designer who feels the same way may also be able to produce the
privacy trickle down.
Cyberlaw & Intermediary Liability
DMCA+ Enforcement in the New gTLDs
Annemarie Bridy
Rise of DMCA plus enforcement.  Two categories: Type 1 DMCA intermediaries
are covered by DMCA but have privately agreed to do more.  Graduated response; link demotion for search
engines; proactive content blocking (Content ID etc.). Type 2 are beyond the
reach of secondary liability but have privately agreed to do more—payment network,
ad network—notice and termination or blocking regimes.  Domain name registrars—pressure on ICANN and
related entities to engage more actively.
Characteristics of DMCA plus: nominally voluntary but
implemented under gov’t pressure: members of Congress, IPEC, USTR.  Privately negotiated w/o input from public or
public interest groups.  Terms generally
disclosed only partially, w/resistance. 
Enforcement lacks transparency re: nature/volume of sanctions. Lack of
procedural safeguards for accused infringers. Notable exception: Copyright
Alert system, which was more transparent in substance and operation than other
agreements.
Enforceable against users via provisions in intermediaries’
TOS that prohibit illegal activity/abuse and reserve right to terminate service
at their sole discretion.
For TM, the ACPA and UDRP have existed since before
2000.  Domain Name System is a logical
target b/c domain names often incorporate word marks.  Rarely requires assessment of underlying
content of website, which means a critical difference from © enforcement.
Enforcing © through DNS is more recent; © owners like it b/c
it enables cross border enforcement. First major development: PRO-IP Act of
2008, which became the basis of hundreds of domain names, from © to counterfeit
pharmaceuticals. SOPA almost provided for court-ordered site-blocking. Courts
have been asked to grant, and have been granting, site-blocking injunctions
against US based nonparty registrars and registry operators.  Private ordering: MPAA and Donuts, which
contains hundreds of new GTLDs.
Rightsholders saw in new GTLD process the opportunity to
inject © related obligations between ICANN and registries/registrars.  In 2014, USTR included a new issue focus on
domain name registrars in its annual Special 301 review of notorious
counterfeit markets. Called for © owners to get new procedures/policies.  Music/movie industries most active in
lobbying for new © enforcement.  Demanded
increased commitments for © enforcement, especially those targeting music or
digital content.  2013 version of
Registrar Accreditation Agreement contained new obligations for accepting
notices of infringement.
ICANN Registry agreement now requires registries to include
in contracts w/registrars a provision requiring registrars to include in
contracts w/registrants an obligation to refrain from © infringement and a
promise of suspension.  Registrar Accreditation
Agreement requires registrars to have abuse contacts to receive reports, w/duty
to investigate and respond appropriately to claims.  Thus Registrar is contractually bound both to
registry and ICANN. Complainants can seek redress through ICANN’s contractual
compliance process by completing a simple online form.
Donuts is registry operator for .movie, .wine, .computer,
.education., .clothing and others. MPAA has announced another partnership and
created a template for agreements w/registry operators.  Donuts thus requires adherence to ICANN and
acceptable use policies.  Permits
registry to delete, suspend, revoke, transfer or cancel the offending domain
name.  Donuts agrees to treat MPAA notices
expeditiously and w/presumption of credibility, like Google’s trusted removal
program for search.  Standard for
complaint: has to be clear and pervasive © infringement before approaching
registry; first must go to registrar of record and hosting provider; complaint
must state DMCA-like good faith belief; must be the result of human
review.  Intended to limit volume of
notices under the program.
Normative concerns: presumption of guilt; target/sanctions
affect entire domain, not URLs; no requirement of attempt to contact the
registrant despite the requirement to look up WHOIS information. Lack of
clarity about what’s clear and pervasive infringement; what’s careful human
review. Lack of procedures for registrants to contest complaints/appeal
sanctions; lack of transparency.
Goldman: great to do all this digging; glad it was you and
not me.  [I’ve joined ICANN’s TM review
group and I share this sentiment.]  Is
this an unstoppable train? Is there a way to combat that, similar to §512(f)
for wrongful takedowns? Is there any cause of action possible?  W/o §512(f), fox is in henhouse; what can the
chickens do?  We need a better §512(f).
A: that’s a hole in the law, and not clear what public law
can do b/c users have consented to terms of use. More productive way to go
about this: try to get these agreements to look more like the Copyright Alert
system. That had a right to a third party appeal to a neutral third party, and
these don’t.  Can’t get details of Donuts
agreement or Radix agreement though did get template for trusted notifier
agreement.
Justin Hughes discussion: Someone registers
Harrypotter.education, and MPAA detects a bunch of streaming going on. They’re
under no obligation to contact the registrant? 
Yes. They’re under an obligation to contact the registrar, then
Donuts.  Then the registry is under an
obligation to assess clear & pervasive © infringement identified through
human review—it’s a bit of a black box. 
If Donuts finds so, they are obligated to cut off the registrant no
matter what the registry has found. 
A: Donuts has said that there have been 6 complaints filed
under trusted notifier system; 3 domain names blocked.  This was their evidence that it’s working,
but no info is available, for example about what a user sees when a site has
been blocked or locked.
RT: ICANN could require disclosure/transparency in its
agreements. There is something we as a community can do: join ICANN’s working
groups on these issues. I’ve done it for TM and it is not fun, but it is
necessary work and right now they are not hearing from the policy/academic
community, only from people with stark economic interests.  Show up!  Voice matters at ICANN.
IP, the Constitution and the Courts
A Free Speech Right to Trademark Protection?
Lisa Ramsey
International issues: US and other countries are members of
Paris Convention, w/obligations to allow certain registrations.  Says that nations may deny
registration/invalidate registrations for marks contrary to morality or public
order. WTO members agreed in TRIPS to keep that the same.  International conventions on human rights—allow
restrictions to freedom of expression if necessary to protect public order and
morals; rights and reputations of others; to prevent incitement to violence.
Consider, not just in the US but as a template for
evaluating free expression issues: 1. Gov’t action. Who is regulating the
expression?  If FB deletes your post,
there’s no state action.  If it’s a
misleading ad taken down by the FTC, that’s gov’t action though ok.  In Tam, the gov’t action is a law barring
registration of disparaging TMs (gov’t inaction).
2. Suppression, punishment, or other harm to expression. Consider
how the regulation actually harms expression. Unconstitutional conditions
doctrine: big debate.  Ramsey’s position
is that unconstitutional conditions shouldn’t apply where the benefit being
denied is the right to suppress the free speech of others.
3. What’s being regulated? TMs are expression, even though
you sometimes see people deny it.
4. Whose expression is being regulated?  Tam is not about gov’t speech—TM registration
is individual speech.  Could also
consider whether corporations have free speech rights, though they do in the US.
5. Are there categorical exclusions for this type of
expression?  Misleading commercial
speech, incitement to violence. But scandalous/disparaging marks aren’t
categorically excluded.
6. Whether the regulation of expression fails constitutional
scrutiny—level of constitutional scrutiny depends on local doctrine.  Is it content- or viewpoint-based?  Does it cover commercial or noncommercial
speech? Requires evaluation of law’s purpose, fit between law and purpose,
amount of harm to expression.
Upholding options: SCt might use unconstitutional conditions
doctrine to say that §2(a) is constitutional. 
Could say it satisfies constitutional scrutiny, though unlikely to say
it satisfies strict scrutiny.  Or it
could go the (c) route, treating (c) differently than other kinds of speech as
long as Congress doesn’t alter the “traditional contours.”  Offensive TM laws seem pretty traditional;
but might be a problem for dilution.
Linford: Ginsburg isn’t going to want to go near “traditional
contours”—Golan signals that
traditional contours means only 2 things. 
What about Harper & Row claiming that there’s no conflict, and we’ll
say hands off. 
Q: What is the state action requirement?  Enforcement of TM including injunctive
relief.
RT: my question was similar—Linford says “hands off” but
what does that mean?   “In Tam, the gov’t
action is a law barring registration of disparaging TMs” but that’s gov’t
inaction.
A: When the examiner denies your application that’s gov’t
action.
RT: but in that case if I go to court and say “FB suspended
my account for using a non-real name and you should bar that part of the TOU
b/c it violates my free speech rights” then you also get state action in
enforcing FB’s contractual terms.
A: true.  Reminder
that TM registration allows lots of suppression of speech—can interfere
w/T-shirts, merchandising, claim dilution, etc.
Charles Duan: disparaging marks have particularly strong
expression values—people use them to express feelings.  Preventing others from using those terms may
thus be worse than ordinary suppression through TM.
A: yes, one of the dissents does a really good job—makes a
difference from ordinary unconstitutional conditions cases, where benefit
sought was not the right to suppress others’ speech. Still, troublesome to have
individual examiners deciding what’s disparaging.  Internationally, nations can decide
(Afghanistan bars marks that are harmful to chastity).
Pam Samuelson: Different nations have different ideas of
scandalousness, public order, disparagement. Are you thinking we need
harmonization?

A: the opposite. We need to allow nations to make their own
decisions.  I worry that after Tam,
people will go to other countries and demand registration of these marks. Some people will only register marks that they can register in multiple countries, so there’s a chilling effect no matter what.

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IPSC breakout session 2

Posted on August 11, 2016 by rtushnet
IPSC Breakout Session II: Trademarks, Advertising &
Consumers
Relying on Reputation
Jim Gibson
Reputation: what rational consumers would use to decide what
products/services to buy. We shouldn’t expect that info to be widely available
to consumers w/o some help, and yet the law assumes that the market for
reputation works enough to rely on it.
Public goods problem: each of us has our own reputational
experiences w/firms. We can generally rely on it but it’s anecdotal: we want
aggregate information.  My review
externalizes my benefit but without reward, so we’d expect underproduction.
Reputational aggregators can help. But their interests may not be aligned with
consumers’; no movie has ever had less than 3 stars on Fandango, and Yelp sells
its services to businesses rather than to consumers. 
IP rights: find a party interested in creating/disseminating
the good & give them exclusive control. The firm: They don’t have the
externalities problem b/c they internalize benefits of buying.  But the firm’s interest is in creating
positive/bottom-line maximizing info, not accurate representations of quality,
price etc.  Consumers are manipulated
into believing untrue things simply through repetition. If a firm tells
consumers that its coffee isn’t bitter, that affects consumer perception even
though consumers know the info comes from self-interested firm.
Courts think that info about firms will solve problems with
boilerplate contracts.  Reputational
constraints as keeping firms from enforcing onerous terms. If reputation doesn’t
work that well, reliance is misplaced.
TM law: core infringement dovetails well w/reputation
approach, but expansions don’t—dilution by tarnishment; lack of control over
assignments/licensing; ways in which mark itself is viewed as having a
reputational value qua reputation as opposed to something that provides
accurate information.
Defamation: Really about the truth, not about reputation. I
can destroy reputation by revealing the truth. 
Bill Cosby: invested a lot in reputation as America’s dad, which has
since been destroyed. Defamation has it right.
RT: Many people enjoy providing reviews/perceive it as a
positive.  Why isn’t that enough? Do
those people who enjoy providing reviews differ in some systematic way from
those who don’t?
A: Spite is a powerful motivator; what about good
experiences?  There’s probably a
relatively low level of crowdsourcing that’s necessary; eBay is probably a
really good reputational system b/c it’s costless to share.  People are more attentive to recent ratings
than aggregate ratings.  It may not be
enough.
Lisa Ramsey: there are fake comments; sometimes there are
verified reviews.  I also look for number
of comments/negative comments.  It’s so
easy to comment now.  [I think this is a
matter of leveraging reciprocity norms; Ramsey mentions guilt.]  I feel good when I reply to surveys about
performance—I’m performing a public service.
A: True, but that feedback often just goes to the firm—helpful,
but not fully solving the problem.
Michael Madison:  Doesn’t buy the tragedy of the commons
framing. There are all sorts of info problems, including overproduction,
reciprocity problems (seller worried about giving poor rating out of fear of
getting poor rating), asymmetry, information that is out of date (right to be
forgotten), etc. Account for what’s going on in the world by adding more of the
complexities.  Push back on reputational
information as a “good.”  [Arrow’s
information paradox.] As if there were a simple definition of what that means;
as if there is a natural social interest in “accurate” reputation as opposed to
collection of opinions.  Precisely
because we have all these mechanisms to share opinion, how much of that is the
right amount is a contestable thing. As you frame this question, which is an
important one, you need more dimensions to the model to capture some of the
looseness and fluidity of what’s going on rather than treating reputation as a
species of good that was produced by manufacturing.
Going Native: Can Consumers Recognize Native Advertising? Do
They Care?
David Hyman & David Franklyn
A couple of small empirical studies and armchair empiricism;
lots of regulatory interest.  Lots of
argument by invective (John
Oliver) and blanket denials and media angst. Regular ads as control; native
ads as treatment.  If consumers don’t do
a good job ID’ing them, can we change the disclosures to improve that?  What do labels even mean to consumers? 
Online survey of 1000 respondents, who saw 18 images/2
videos. We tested things like Forbes content by Fidelity aka “ForbesBrandVoice”
which doesn’t have “paid,” “ad,” or “sponsored.” The Onion also has paid
content: Woman Going to Take Quick Break After Filling Out Name, Address on Tax
Forms: small “sponsored,” actually for H&R Block.  NYT’s Netflix article w/very tiny “paid ad,”
and Atlantic’s native ad for Scientology that looks exactly like Atlantic
article except for “sponsored content.”
Respondents do much worse identifying native ads than
regular ads.  Native: 37% thought it was
paid content.  Regular: 81% ads.  49% thought native ads were unpaid v. 12% for
non-native; remainder unsure.
What if we tweak the label? 
In-your-face “paid ad” bar across the Fidelity ad: those who saw “paid
ad” went to 56% understanding from 40%, suggesting that modifications to
labeling can make a difference, though still well short of understanding for
regular ads.
Finally, asked whether respondents thought each label was
paid, unpaid, don’t know.  Paid ad/paid
content/this content was paid for by/paid post/ad all did better than 80%;
sponsored did 79%, sponsored content and sponsored post 76%; brand voice/brand
publisher/presented by in the 60s and partnered content/partner was at 57%. Written
by: 23%.  So many labels are bad and the
diversity is not helping anything.
Limitations: representativeness of our ads?  Of our sample population? Used reputable
organization but replication should be tried. 
Validity of our approach: we threw out people who went through too
quickly or didn’t answer our attention question, but this isn’t in the wild,
and we’re open to alternative methodologies if they exist.
Consumers do much worse at identifying native ads than “regular”
ads, regardless of brand, platform, architecture, and labeling.  If they’re trying to hide the fact that they’re
running ads, mission accomplished. 
Evidence of two-way blurring; even modest tweaks materially improve
recognition; does any of this rise to the level of deception?
RT: two-way blurring?
A: if you give people unpaid editorial content, a material
number think it’s actually paid, 35%.  A
little variation across examples.  From
consumer protection perspective, that’s not something the FTC would much care
about.
Barton Beebe: will consumers develop sophistication about
this?  People have learned about movie
sponsorship.  [armchair empiricism?]
A: Possible, but the variability is much higher.  Movie = single thing that people see
together, but native ads have huge variation and narrowcasting.  Harder to police given speed of emergence.
Lisa Ramsey: 4% of people thought it was unpaid when it said
paid—are there certain kinds of people who are making that mistake?
A: people who participate are over 18, relatively good
cross-section of community. 
Disconcerting that people don’t always recognize “paid ad” as ad, but
that’s how people are—they don’t look at labels.
McKenna: consistent w/TM surveys!
Laura Heymann: what would deception mean here?
A: FTC says: you don’t have to prove actual deception; the
more you blur the lines, the easier FTC enforcement action would be. We did ask
whose content you think this is, advertiser or platform or both—w/native ads,
pretty substantial #s thought it represented both the advertiser’s viewpoint
and the platform’s, though that’s not the same as deception.
Q: wide variety of examples—they may involve different
relations between the platform and the sponsor. Sometimes the content was
written by the platform but paid for by someone else v. written by advertiser
and posted on the platform. Does that make a difference?
A: A lot of the media companies have set up in-house
operations for native ad campaigns to be sold to advertisers.  We don’t see a difference based on that issue
in people’s perceptions.  The development
of in-house units probably increases the likelihood of deception b/c they can
frame the content to be exactly like the publication they’re working for.
Naming and (Re)Claiming
Laura Heymann
What makes something a name and how much do audiences assume
that a name has connotative and denotative functions?  The meaning of a name comes from the public.
You can announce your name as whatever you like, but it’s not unless a
sufficient number of people adopt it for you, even if you use it. Same for a TM—recognition
of a mark as a mark/name is what gives it existence. Richard Craswell’s great
article on sports nicknames—crowdsourced. Research on prison nicknames:
bestowed upon people, not given to themselves. 
Inherent in this process is recognition that a lexical unit is
functioning as a referent and not as a description. 
Referring: repetition and reinforcement.  If meaning of a term becomes fixed, is it apt
to say that a name has truth value?  We
don’t expect a man named “Rich” to be wealthy; we recognize that as his
name.  A “rigid designator”: our beliefs
about qualities of subject aren’t relevant to the referential process. It doesn’t
matter if someone loses a limb; they’re still the same person with the same
name; so too if it turns out they plagiarized a paper. TM embodies that in some
way—TM doesn’t require TM owner to surrender TM if it changes ingredients,
suppliers, employees who make the product.
If names are rigid designators, we might return to In re Tam
and ask whether a name can offend or disparage, qua name.  A word can do so when used to describe
others, and research on slurs would say that a slur is offensive b/c it is
uttered by a person toward another person, not necessarily the word itself.
This is Tam’s entire point: the ability to reclaim a word means that whether
that word has communicative/truth value depends on the identity of the
speaker.  One reason offered by court to
refuse to approve a name change was b/c of speech burden imposed on others who’d
have to use the name in exchanges w/others. 
This is a strategy employed by Starbucks customers in reverse: give name
as “black lives matter” so barista will have to say that out loud.
Slurs convey expressive content: conveying attitude of
speaker.  The idea of reclaiming is to
deprive the word of meaning and transform it into a rigid designator, same as
when McDonald’s reclaims MickeyD’s.  Are
names truth?  Pursuing America’s Greatness
v. FEC: can independent political committees use candidates’ names in the names
of their committees or projects?  DC
Circuit finds that’s content based discrimination, and it’s not enough to be
able to use the candidate’s name in the content of the project/webpage.  That’s what she’s interested in—what do we
mean when we say that something functions as a name? Are they sometimes true,
never true, etc.?  Bands named “Cheap
Girls” w/no women performing in them: is that deceptive? Is it a signal?  Would the Slants be disparaging or not
depending on the ethnicity of its members?
Relevant doctrines: When we allow TM to reemerge from
genericity: Singer, Best Buy (once it argued in court that the phrase was
generic!); public use doctrine allowing TM owner control over a term that the
public uses to identify the TM owner but the TM owner doesn’t; abandonment; §2(a)
bar on deceptive marks.  ORGANIK for
clothing not made from organic fibers: if people use that to tell what the
clothing is made of, then they’re seeing it as informational device and not as
a rigid identifier and therefore it isn’t functioning as a TM should.
Madison: how much do you need to invest in framework of
rigid identifiers, partly b/c there’s an enormous literature around that.  Tam case may be too rich; what about the
dispute over the ownership of “Stephen Colbert,” the “character” from CC’s “The
Colbert Report.”   Captures the themes you’re talking about w/o
triggering disparagement concerns.
A: two different things embodied in the same person! 
Q: Whose perspective are we taking? What happens if they
intend it as a name, and it’s understood as a name by some people and not by
others.
Ramsey: slogans can be identifiers, but they don’t have to
be.  How do you think about them?  “Make America Great Again” is not the same as
“Trump.”  Also, Lee et al.’s paper on how
context is key—you don’t know if a name is a mark until you see how it’s
presented.
A: there has to be an initial moment associating the name
with the thing; they don’t exist in the abstract.
[Still marshalling thoughts about this. I think the answer
is often that a TM can be a rigid identifier and convey lots of information, including w/Best Buy and ORGANIK—in
fact, the aim of creating a rigid identifier may often be to convince consumers
that certain characteristics are embedded in the product being sold no matter
what the facts are, the ingredients are, etc. 
That’s why TM owners like descriptive marks; that’s why VIAGRA invokes
vigor, Niagara, etc. Thus, making a binary may not be hugely helpful.]
Why Does Trademark Law Protect the Strong More Than the
Weak?
Barton Beebe & Scott Hemphill
Strength, scope, and competition in TM law: Not a purely
original argument—we’ve all been thinking this forever, but people haven’t
systematically presented this basic argument except in a Judge Rich opinion in
1988, suppressed by J. Rader very quickly thereafter.

Standard view: there’s a positive relation b/t strength and scope. This is
wrong, at least in part.  Rationale for standard
model: strong marks are more easily activated in consumer’s mind; consumers
will infer that junior use originates in senior user; infringers can be assumed
to target stronger marks; consumers approach more famous marks with less
consumer care—just asserted by Fed. Cir.
Assuming identical marks, a product dimension (x), and a
percentage of consumers confused (y), a curve describes consumers likely to be
confused by use on competing goods, related goods, or even unrelated goods.  Consumer population is diverse.  Maximum acceptable percentage of consumer
gives us the scope of the right at issue. 
Increased strength of a mark may push up the curve and broaden the scope
of the mark, but the standard model assumes the shape of the curve remains the
same as it’s pushed up.
Now assume identical products, a mark dimension (z), and
percentage of consumers confused (y), same thing.  A 3D distribution will describe the proportion
of consumers likely to be  confused by
junior use of mark identical, similar, or dissimilar to senior mark on
identical, similar, or dissimilar goods.
Standard model assumes that increased strength increases
likely confusion and increases scope of mark. Other assumptions: The relation
between strength and confusion/scope is always positive—except in the limited
cases of reverse confusion and, controversially, parody.  Strength operates the same way in identical
mark, different goods cases as it does in different mark, same good cases.  Case law under either situation is
interchangeable. Inherent/acquired strength operate in the same way, and cases
about inherently distinctive marks can be cited in cases about secondary
meaning.
Judge Rich: BVD v. Body Action Design (Fed. Cir. 1988): BVD
v. B.A.D. for men’s undergarments. The fame of a mark cuts both ways. Better
known it is, the more readily the public becomes aware of even a small
difference. BVD would trigger the observer to notice at once that BAD, with or
without periods, is a different symbol. 
See also Jiffy v. Jordan (CCPA 1973) (Rich, J., dissenting). A few other
cases have made similar observations.  A
few articles also question the correctness of the claim, but Jerre Swann
defends it.
Kenner Parker Toys v. Rose Art (Fed. Cir. 1992) (Rader, J.)
Play-Doh v. FUNDOUGH for toy modeling compounds.  TTAB applied BVD and dismissed
opposition.  Rader says: free riding
justifies the positive relation—competitors want to snuggle as close as
possible to a famous mark. Fame could never be a liability in TM—while scholars
might debate as a factual proposition whether fame heightens or dulls the
public’s awareness of variances in marks, the legal proposition is beyond
debate.  If investors forfeit legal
protection by increasing fame, the law would then countenance a disincentive
for investments in TM.
But we can solve this problem: begin w/assumption that TM’s
guiding purpose is to promote competition; consumer protection is underneath.
Free rider justification isn’t persuasive w/r/t continuously positive relation
b/t strength and scope/confusion. Identical marks, there is a positive
relationship b/t strength and scope/confusion. But for similar marks, competing
products, there is a local maximum.  The
3D distribution may rise, but also changes shape. Proportion of consumers
confused may increase, but scope of protection narrows.  Follows a fortiori that superstrong marks
would also be less protected for similar marks, similar products and similar
marks, dissimilar products.
Heymann: does sponsorship/affiliation confusion complicate
this?  E.g., Boy Scouts and Peewee
Scouts.
Beebe: Best I can do for now is to fall back on the idea of
TM as both prescriptive and descriptive; can prescribe a condition in which
consumers learn.  It may be that the
association challenge is devastating for some things, but similar marks/similar
products and similar marks/dissimilar products might be different b/c of
consumer understandings about famous brands. If you saw something like the Apple
logo on a very low-end tech product, you might reject the idea that it came
from Apple.
McKenna: This isn’t really an empirical rule, but modern
doctrine’s obsession w/confusion requires it to pretend that it is.  Your argument at the end seemed nonempirical.
You need to clarify: is this empirical? If so: Look at brand extension
literature.  Also: when you talk about
similarity, note that people have hard
time w/specificity of visual marks but may do better on word marks.  [Though there is also a huge difference b/t
production and recognition worth thinking about, since it’s recognition that TM
law is generally concerned w/.]  Then if
it’s empirical, think hard about different forms of confusion.
Branded
Irina Manta
TM provides important incentivizing functions that make it
more like © or patent than conventionally assumed, and we should care about
that. Traditional story: TM are instrument of commerce, protected under
Commerce Clause, not incentive for creation/innovation.  TM as red-headed stepchild of IP family.  Three traditional functions: source
identification, advertising, and quality guarantee.  Neglected incentivizing functions: creation
of original marks; hedonic benefits of loving TMs; socially desirable behavior
[work hard so you can afford your Louboutins, or at least your Nikes].  [This is like claiming that securities law
exists to encourage people to work hard and make more money.  It has a level of generality problem, among
others. Also query whether all incentives to work hard and make more money, if
those are the same thing, are socially desirable; see, e.g., drug money, Wall
Street finance, Donald Trump.]
Expansion of TM law over time beyond source confusion to
affiliation confusion, dilution, initial interest confusion, post-sale
confusion.
TM as creations: often the most valuable asset of a
business, e.g., Starbucks.  [Deven Desai
would say this is conflating a TM with a brand.]  Companies invest $ in infusing brands w/a
personality: SoulCycle isn’t just a name, it’s a lifestyle, also Harley
Davidson.  [Though note that these
lifestyles are usually shared w/ other brands as well—they’re not creative/unique
even if it takes intelligence, luck, and even creativity to come to “symbolize”
that lifestyle.  Or you could just be
like PBR and be adopted by hipsters for a time.] Takes on life of its own.  TMs can be included in art exhibits.
TMs as hedonic goods: experience of goods = happiness, just
as via © or patent. TMs are inherent parts of products; there is no defensible
distinction b/t “real” and “artificial” experiences of marks.  [Though the research on body image etc.
suggests that people who spend a lot of time thinking about their presentation
to the world end up unhappier and also poorer off in other ways, so I’m not
sure that conclusion holds here even if it might re: your perception of a car’s
value.]
TMs as socially desirable behavior incentives: People use
branded goods as self-rewards; I can have Starbucks b/c I did such a good job
today. Possible correlation in US b/t working longer hours and desire for brand
consumption. Use of branded goods to overcome bias and achieve community status—anti-aristocratic
b/c you can become more equal by wearing certain things or appearing a certain
way.  Wearing a nice suit to
interviews.  [A branded suit? Tressie McMillan
Cottom has a great
essay about this, but TMs don’t seem to be required.]
These incentivizing functions have increased in importance
over time. This brings TM closer to copyright and patent, and needs to be
considered in making policy.
Gibson: what implications are there for TM scope?  If we had a law that focused on source
confusion and not dilution etc., would people not find alternative hedonic
pleasures/ways to reward themselves for working hard?
A: given the state of the empirical data, it would be
speculative to say. Doesn’t know whether we need dilution to get those things.
This is the law we have.  Not necessarily
enforced strongly, but might still provide a deterrent. There are also 1A
implications w/dilution. But we can’t divorce TM law from other social policy
as others have done, where we pretend that only confusion is at issue.
Madison: Timing of the shift in case law in relation to
this?
Manta: thinking about how we could measure brand development—going
from TM as boring, traditional function to powerful.   Measuring strength of marketing, penetration
of advertising.
McKenna: circularity: you say we have to account for how
people interact socially w/brands, but that’s the result at least in part of
how the law has treated brands.  Even if
we wanted to preserve hedonic value, consumers would likely find it somewhere
else, and if we don’t know that, the policy payoff is unclear.  Also, there are other people who get hedonic
value from access to brands, or access to similar brands; if we do a whole
hedonic calculus we have to consider them too. If we want to consider
incentives to work hard, TM would not be the place to start—tax, education
policy would be more appropriate.
Manta: yes, utilitarianism is hard, but we have to start
somewhere. This matters too.  Hedonic
value of access to brands, knockoffs—but there are also people who don’t care
much about brands.  [?]  In this room, we probably chose our jobs b/c
we cared less about money than making partner, but others chose
differently.  Some criticisms of dilution
have disregarded these incentives, and have assumed that brands are just about
false needs.
Ramsey: even if the empirical research shows that people are
doing what you say, should we care? The costs of dilution protection are also
higher—protecting these values has different tradeoffs than protecting against
confusion over source.

Manta: there haven’t been economic discussions about
dilution’s harm/benefits.  It’s all
highly theoretical, speculative.  I don’t
know which way it cuts, but that doesn’t mean it’s not a real effect. Skeptical
that dilution has had more than a marginal impact on speech.

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IPSC Breakout Session I

Posted on August 11, 2016 by rtushnet
IPSC Breakout Session I: Copyright: Music & Remixes
Assessing France’s Graduated Response Scheme Against Piracy &
State Interventionism in the Marketplace for Copyrighted Content
Nicholas Jondet
Strong philosophical attachment to ©, and economic interests—Universal
Music is French-owned.  In practice, low
fines and no convictions despite misdemeanor status of infringement and
possible 3-year sentence and €30,000
possible penalties.  2006: wide consensus
for adapting criminal provisions. Proposal of €150 fines for uploading and €38
for downloading. Struck down by constitutional court: infringement is the same
whether it’s offline or online.  2007:
review of system, which recommended a graduated response adminstered by a
dedicated body b/c private parties on their own couldn’t deal with mass piracy.
Constitutional council said that proposals didn’t fit the
French human rights framework, notably the 1789 Declaration on Human Rights, requiring
balance of copyright and freedom of expression; disconnection must be done by
courts.  Two phases.  Authority sends warning; access to internet
isn’t absolute but penalty must be imposed by court.  Internet user has duty to secure network
against use for infringement.  Hadopi:
2010.
2012: Hollande was elected; his party wanted to get rid of
Hadopi.  But he personally was more
circumspect.  Tension in independent
administration from the start: the carrot and the stick.  Budget was large, but decreased and went up
last year to €8.5
million.
If you’re a rightsholder, you collect info and notify
Hadopi. 5 million first warnings sent; 500,000 second warnings and 3,000 third
warnings.  Last year there were 1.6
million first warnings sent.  2221
deliberations about referring a case to the courts. 361 cases brought to
courts. Courts assess the infringer; 51 decisions reported back to Hadopi.
Fines between €50-1,000.
Copyright societies think the courts are too lenient. One disconnection
reported so far.
A lot of studies about whether it works.  Hadopi argues that it doesn’t have enough
funding to fulfill its mission.  There’s
a database of legal French services done by Hadopi—making it easier for people
to find content.
Justin Hughes: detection is the responsibility of a
rightsholder.  Data collection has to be
approved by the relevant authority, as opposed to what happens elsewhere.
Annemarie Bridy: we use the Copyright Alert system in the
US, though it’s not producing any reports or information.  They’re renegotiating the MOU.  Talk about relative benefits of gov’t system?
A: public scrutiny. 
The fact that you have an authority in charge of checking that privacy
is respected helps w/due process and ability to appeal.  Real issue w/French system is costliness for
taxpayer.  The rightsholders should/could
put money into the system.
Copyrightability of Digital Remixes and the Right of
Remixers
Yahong Li
Remix as a general condition of culture; digital remix
brings back Read-Write culture, as argued by Lessig. Musical remixes as
prominent examples: Grey Album, Mix the City, Girl Talk.  Legal reality: protection has been
strengthened for copyright owners, ISPs, mainstream social media, but remixers
and creators fall into a legal vacuum, potentially oppressed both by ISPs and
by copyright owners.  Peter Menell:
mashup as defining genre, but uncertain contours of copyright pushed this
underground and stunted its development, depriving artists of compensation and
further alienating netizens from © as a system. Recent cases not just in US;
many remixes in Soundcloud were taken down. 
Righthaven trolling; FUD in uncertainty of remix.  Andy Baio: “the chilling effect is palpably
real.” 
Legislative developments: Canada, UGC exception for
noncommercial remix.  UK: new fair
dealing exceptions didn’t include UGC; other countries have rejected/not
mentioned. US Green Paper says still needs exploring. Questions: is fair use
enough? Predictable v. unpredictable. Is it a defense or a positive right?  Does the P have to rebut the defense or does
the D have to prove the four factors?
Q: what rights does a downstream remixer have?
A: Right included in copyright.
Q: does the legal culture affect whether uncertainty is good
or bad for production?  Or is it more
about whether the producers are noncommercial producers?  Compare to dojinshi in Japan.  There, it’s a huge commercial business, in
essentially open conflict with formal Japanese law, but there are very few
legal conflicts. Why, and can it be exported?
Q: what about eliminating the possibility of injunctive
relief?
The New Problem with Music
Peter DiCola
Spotify: huge net losses. The more they make, the more they
lose. Partly owned by © owners. What’s going on?  “Why Tech is Eating the Music Industry,” from
Digital Music News.  Apple, Alphabet,
Microsoft, Amazon, have bigger market cap than ExxonMobil; FB is just behind.
Compared to 2006, when it was just Microsoft at the top.  Amazon is about to jump into streaming; like
Google & Apple, has deep pockets and doesn’t actually need the music side
to be profitable. Music as an add-in to Amazon Prime increases customer
loyalty; if they move the needle on retention of a few percentage points, that’s
worth billions to Amazon.  The other
piece is that music services have special data about us.  Wal-Mart was the biggest music seller before
the internet; cheap prices on music got people into the stores.  Music now is not about its own value, but
about keeping people on platforms and collecting data about them. Think about
how customer data has changed in the new music industry.  Think about changes in the broader
context.  Music industry used to require
a lot of trains and trucks shipping; big box retailers made music stores smaller
part of business and music stores concentrated into chains; labels had little
customer data other than record clubs. 
In 2000s and 2010s, consolidated into major labels while unauthorized copying
exploded. Retail inventory becomes enormous, stable, and generally always
growing. Interaction w/customer data—digital retailers have data; shipping is no
longer a problem. 
Steve Albini, The Problem w/Music,
1993, the Baffler: recording engineer on Nirvana’s last album; also band
members. Net income from a year on a major label contract: $4,031.25.  Today, he
thinks Spotify and streaming are great. He says: We never made any money
from selling records; now I can reach fans worldwide and support touring and
other ways musicians make money.  What
could contracts look like in industrial organization terms? Hard to imagine ©
owners having leverage; not just largeness, but large user base: you have to be
on YT, even Taylor Swift agrees.  Hard to
imagine Amazon agreeing to give music companies a cut of lawnmower sales, even
if data from music helps shape the pitch Amazon gives for the lawnmower.  So downward pressure can be expected to
increase. Customer data: could they negotiate for access to who’s buying?  Could © require this?  Raises serious substantive privacy questions,
and questions about ©/privacy overlap.
Q: South Korea: Samsung launched “Milk,” w/every phone
sold.  Free music service, but
rightsholders and fans objected—if people become used to getting free music,
then no one will want to pay for it. 
Samsung withdrew the music service.
RT: How does this interact w/§512 and the industry’s
complaints that YT drives down prices?
A: Everything structural is going against the music
industry. Consumer surplus is huge; music fans are saving $100s per year
w/access.  So that’s why you have to go look
at the development of industry; makes §512’s configuration less
pressing/solving the last problem. 
Changing §512 is not going to solve these problems.
Q: is Tidal working?
A: No. $19.99 initial price point; market says no, that’s
not the price point for music.  Consumers
aren’t yet interested in higher quality. 
Hard to get consumers to care about artist-owned services, and part of
that is that artists make it hard for audiophiles to buy the highest quality
FLAC; it’s so much easier to use Spotify.
Annemarie Bridy: Tussle b/t Spotify and Apple re: antitrust
w/r/t in-app purchases.  So interesting
to watch evolution of exclusivity/fragmentation in availability of content,
attempts to differentiate v. antitrust.
A: may need to formally model incentives of people to be in
and out of exclusive deals.  What
contracts we should expect is a really interesting question; also affected by
DoJ ruling on ASCAP.  There are people in
the industry who think Spotify can’t survive on its own b/c it doesn’t make any
money.
Q: Is Albini saying that artists’ interests are more aligned
w/intermediaries than w/labels at this point b/c intermediaries aren’t acting
as bottlenecks?
A: Yes, but the one point is the data—if you want to tour,
you want to know where you’re popular.
Who Killed the Radio Star? How Music Blanket Licenses
Distort the Production of
Creative Content
Ariel Katz & Eden Sarid
Cultural production in radio’s Golden Age: mix of music and
talk, mostly talk. In-house production, mainly live.  Mid-50s/60s shift in content to much more
music, less talk.  Less quality in talk
that remained. Music is prerecorded; content is outsourced, not
live/commissioned by radio stations. 
Explanations: television; other tech changes; social and cultural
changes (video killed the radio star).
Alternative explanation: music is crucial to radio;
broadcasters get blanket licenses to perform music from CROs. Conventional
wisdom: CROs produce efficient reduction of transaction costs; but raise
concerns about lack of competition, market power.  Our point: blanket licenses also distort
cultural production, artificially diverting resources away from other cultural
products and to music. Where marginal price of playing another song is zero,
you play more songs and have less talk. 
Unless you’re a publicly funded radio station that need not behave
according to pure economic rationality.
But why only after the mid-1950s?  Sound recordings aren’t fit for broadcasting
yet; broadcasting is live and all content has to be performed in the studio.
The cost advantage of blanket license is less pronounced.
RT: these last two papers have a dialogue about the effects
of “all you can eat” both on intermediaries and end users.  Increased social value overall, decreased
value to individual input.  Both papers
also have a dialogue about placing music within the context of other economic
outputs, and the effects of that on what look like internal doctrinal and
market issues.  Glynn
Lunney’s work is also of note here.  Question:
Commercial radio: what’s the role of diversity/niches such as Rush Limbaugh?  Role of product differentiation, as discussed
in plenary?  There is an incentive to
capture the non-music fans somehow.  Maybe
people are satisfying their talk needs with the internet and PBS Newshour.  Also: When you say distortion, you might be
asked: compared to what? What would the world look like without CROs? 
A: We could do without them, and so we should be mindful of
what they actually do.  Talk radio: may
need public funding to produce it.
Hughes: Not clear that there’s any evidence this increases
or decreases users’ utility.  Would pay
per play be a better system? We could certainly do that, and that might distort
less than a blanket license, but that’s only true if the people negotiating a
blanket license don’t know much about the radio station, which they do.  I negotiate a blanket license = I know a lot
about their users and how much music they play; it actually represents
something closer to pay for play than you seem to assume.  “All you can eat” can be predictable if you
know who you’re feeding and you’ve been doing it a while.  [nicely said]
A: compare to situation w/o CMOs.  That doesn’t mean pay for every play
necessarily; that could be inefficient. 
Sony might bundle all its music. 
Hughes: recorded music, not blanket licenses, might be the
cause.  Session performers were driven
out by recorded music—would have to be really high price before it would
justify live music.
A: true, it’s a combination.
How Law Defines Music
Joseph Fishman
Law has focused on melody. 
Blurred Lines case: lawyers and music professors agreed that it’s only
been melody.  Musicologists saw a sea
change b/c all that’s been protected before is melody.  ?uestlove says there was no plagiarism b/c
the melody different. But recent cases, not just Blurred Lines, have adopted a
more multidimensional view of what counts. 
Until about a decade ago, the commentators would have been right.  How did we get here? Older view was in
tension w/what other genres went through, where any aspect could in theory be
the basis of a © claim. If what we want is theoretical purity, then the
trajectory is good; healthy outcomes for music, however, would return to the
old focus on melody. The reasons for rejecting melody only were good ones but
we end up with a suboptimal, unpredictable, overly broad law as the result.
Commentators in the West used to think melody was the most
important, influential part of a musical work. Music publisher rearranged
serious opera into light dance music; court rejected defense of fair
abridgement b/c melody was that in which the whole meritorious part of the
invention consists.  Thus, it wasn’t an
abridgement, in reality.  But melody’s
dominance is not true of lots of music today, from jazz to pop music.  Producers are paid lots to contribute
elements long before melody enters.
Traditional justification is weak, so we shouldn’t be
surprised by Blurred Lines type cases in which courts don’t feel bound to
dismiss claims notwithstanding the absence of melodic copying.  Other recent cases: New Old Music Gp. v.
Gottwald (SDNY 2015)—purely about percussion. 
BMS Entm’t v. Bridges (SDNY 2005)—case about reuse of phrase “like that.”  Court says original selection and arrangement
is enough: jury question for total concept and feel.  Blurred Lines fits both these templates.  Each individual element isn’t de minimis isn’t
a matter of law. Not as much of an outlier as sometimes portrayed. If there’s a
trend, where do we go?
There is a better, doctrinally neglected reason to focus on
melody: would make infringement assessment more predictable. Music is
relatively modular. It’s often possible for composers to break off a discrete
chunk called melody and focus on that as the thing to avoid copying. You don’t
have to play the impossible game of divining a similarity index with elements
of unknowable weights, from melody to orchestration to percussion to timbre etc.  Good for downstream creativity.  This rule would be an improvement b/c it
cabins the inquiry. Only problem is that ex ante predictability as a policy
lever for substantial similarity has never gotten much traction, though it’s
been tried.
Shyam Balganesh: take a look at Mark Rose’s new book,
Authors in Court, w/behind the scenes study of case in which the attempt was
tried.  The plaintiff’s atty had written
a treatise on breaking down works.
Hughes: is this shift b/c of the rise of recorded music and
the fading of the score into the background? 
You said in the paper jazz musicians understood this melody rule about ©,
but I don’t think that’s true.
A: Mark Osteen studied bebop in 50s and 60s and said it;
have to go back and check his sources.  Popular
legal consciousness: not terribly nuanced, but understood that melody = lawsuit
but borrowing arrangement would not.
Andrew Gilden: wouldn’t this make it easier for famous
artists to take from nonfamous artists?
A: why asymmetry? 
Would make it just as easy for relatively unknown artists to copy
nonmelodic stuff. 

Pam Samuelson: writing was pretty much the melody prior to
1976, so that history might support your thesis.  Might not be bad idea to go back and bolster
the argument around the 1976 Act by looking at what the cases were focused on
at that time. One question: is music different now than it was at the time
these issues were being decided by Congress?  

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IPSC First Plenary Session

Posted on August 11, 2016 by rtushnet
Scarcity of Attention in a World without IP
Jake Linford
We impose artificial scarcity so authors can pick up sunk
costs. But costs of creation have fallen; perhaps © should be narrowed as a
result.  Wrinkle: attention scarcity.
Cheaper dissemination = information gluts. 
Imposes costs on consumers.  The
scarce resource today is attention.  People
compete for attention by riffing on cultural artifacts.  Some of the competition is zero sum.  Internet time has shifted 2008-2013, from
chat and news sites to social media and video. 

Trademark is a way of dealing w/scarce attention, but © is different.  Music played in restaurants: it draws in
consumers.  Attracting attention w/©
expression so they can charge you.  [Is
attracting customers for food the same thing as attracting attention?]
If we had less copyright protection [compared to what?],
then what?  Perhaps: Less entry; less
glut.  Narrower protectionàlower
expression costs, lower costs of creating around, lower barriers to entry from
building off of existing ©.  Retain
protectionàmore
costs of inventing around.  Less
creative/distinct entry. Things that are more similar.  Abramowicz/Yoo have talked about this as rent
dissipation/product differentiation: more resources dissipated racing to
capture first mover advantage.
Fishman’s work: ©  may
impose useful restraint on entry.  [I have written a response to Fishman here.] Constraints on type of creativity: sonnet constrains output more than
free verse, which can make work more creative/better by several metrics.  George Lucas wanted to do a Flash Gordon
remake; he couldn’t get permission so he gave us Star Wars—wouldn’t have been
the same cultural phenomenon.  [Because
reboots of existing franchises, like Batman, never become cultural
phenomena!]  Reducing © protection is
therefore premature.
Mark Lemley: If you think we’re creating too much derivative
stuff, ok, but challenges premise that attention scarcity causes that.
Attention scarcity = difficulty sorting is the theory, but people have worried about
disintermediation for a long time, and crowdsourcing is at least as good and maybe better than
expert selection in allowing us to find good/bad. If 20 people make a
derivative Star Wars movie, but the crowd is good at finding the right one.
Linford: if the crowd tells us the first Star Wars movie is
good, 20 people rush to follow, and Lucas has to rush out his sequel.  There is also intermediation via FB, Google,
and Spotify, and maybe they’re not sorting in our interests. [But that is not
the same thing at all as causing an overload problem.] We’re not getting the
full picture. [We never were.]
Q: why allow the public domain then?  Pride and Prejudice and Zombies.
Linford: that’s a strong form of the argument—doing something
with a work that I don’t like is wrong b/c I have a strong connection to the
argument. Different question about length v. breadth while in place. People
share that intuition, but the evidence isn’t strong enough.
Betsy Rosenblatt: we live in a world with trends.  The solution is that people tire of sameness.
Doesn’t seem to be a need to do anything other than let the trend run out.
Linford: The more you narrow ©, the more similar the horror
movies are.
Rosenblatt: Why is that bad?
Linford: negative quality. 
Bigger rush to move sequels through the process. What we really want is
new takes on the trend, and © provides some discipline to make things at the
margin more different than they would be. 
[This is not what the literary scholars think.  See David
Roh’s book.  More production around a
type by people trying to work with what audiences liked about the original is how you get the kind of variation
that creates whole new genres and subgenres. 
Consider Twilight and its progeny; you may not like them, but there’s no
question that Twilight, a sexualized but not explicit supernatural romance, was
part of a causal chain creating a billion-dollar “New Adult” genre.]
Q: reputation?
Linford: reputation matters in part b/c of incentive to
produce the next installment.  [This
account works ok for movies if you ignore that people care about who the
actors/directors are, but terribly for singers. 
Very few albums are “sequels,” even Adele’s.]
Q: it’s an empirical Q whether variety makes people better
off, or whether things that are more different from each other are actually
better b/c of that.  It’s complicated.
You need to support that at the level of a particular genre or market.
Linford: genres might matter, but we do a lot of thinking
about theoretical work/modeling w/o empirics. 
Q: but the models don’t predict that variety makes people
better off. You need an empirical analysis of the genre/market.
Linford: disagree w/©. 
[I think the argument conflates lack of scarcity and
diversity except when it equivocates about them.  We also
impose artificial scarcity to incentivize dissemination.  The idea is that we get “more” copyrighted
works overall.  There are two kinds of “more,”
creating the classic incentives/access tension. 
But you have to define your “more”—is it lots of Batman
merchandise/Frozen merchandise, which © incentivizes and lack of ©
incentivizes, or is it lots of comic books? 
To the extent that ©’s idea/expression distinction allows close cousins,
it also allows you to manage your attention very easily: I tune out ads for
horror movies; I don’t tune in to Fox News.]
What’s In vs. What’s Out: How IP’s Boundary Rules Shape
Innovation
Mark McKenna & Christopher Sprigman
McKenna: Every IP rule defines itself in some way through
negative relation to patent. TM doesn’t allow utilitarian functionality. © is
the same. Design patent focuses nominally on ornamentality, defined as inverse
of functionality; concern was of people avoiding rigor of utility patent
standard by getting design patent instead. Doctrine is noticeably weaker in
exclusion than TM and ©, but in all cases the matter isn’t excluded b/c it
doesn’t meet ordinary standards for protection in ©, TM, etc. but rather b/c
this matter is for utility patent: to avoid undermining utility patent
supremacy.
This only works if other systems have a reasonably clear and
stable sense of what kinds of things belong to utility patent.  IP sense of patent’s domain is mostly
reductive and intuitive; undertheorization of utility patent’s boundaries is
one reason courts have struggled so much to channel. Utility patent law itself
has been quite inconsistent on its domain. This is more than a doctrinal
problem. If you believe that IP exists to create incentives, you can’t be
ambivalent about this point.  IP rights
as substitutes for each other: create incentives that create types of
production. You also still need an explanation for the subject matter of our
different rules even if you don’t care about incentives.
Sprigman: Utility patent focuses on technological
innovation, but what does that mean? Historical sense of meaning of Useful
Arts, working from machines, chemical compositions, etc.  Most important to this is nonobviousness.  Patent law has been inconsistent: look at utility
patent for mixed cut gemstone which enables appreciation of desirable
characteristics of a diamond in ways that prior cuts don’t allow. Is that
functionality? Design patent for gemstone cut was also granted; court says that’s
just pretty, not functional.  Patent on
method for assessing character: what kind of utility is this?  Not technological.  Utility patent is thus inconsistent about its
own grounding.
McKenna: Conundrum: widespread belief in utility = tech
innovation, but in practice inconsistently enforced, yet every other are of IP
acts as if tech innovation is where they should defer to utility patent. But in
many cases TM courts struggle to understand with what it means to be functional—and
then there’s aesthetic functionality, which has always been controversial b/c
some people consider it an oxymoron.  Even
though the SCt endorses the idea, it applies different rules—competitive need
rather than Inwood/Traffix rules. 
Undertheorization of functionality thus means courts don’t even
recognize that they’re using functionality in a particular way. Features can be
useful as marketing tools, to make things look better, etc.; tech utility is a
normative choice, which doesn’t make it wrong but does make it worth talking
about.
Star Athletica
panel agreed that the design should be evaluated by asking what the functions were
and then seeing if they were separable. 
For majority, function was to cover the body. For dissent, the purpose
of the design was inescapably to identify the wearer as a cheerleader, making
chevrons etc. inseparable.  Case turns on
court’s understanding of what should be kept out of © as functional.
Sprigman: how to fix? One approach: if patent is open to
aesthetic utility, then exclude much more from other fields.  Or we could explicitly limit utility patent
to tech innovation and be rigorous about it w/in patent too.
Q: Ted Sichelman: a lot of this goes back to historical
differentiation of guilds, dividing tech and fine arts. Based on institutional
concerns, modes of production; do changes in these things justify rethinking
the boundaries?
Sprigman: the kind of education of people who enter into the
patent system is very different; part of difficulty w/design patents is that
the PTO doesn’t attract people w/aesthetic education to understand trends and
prior art.
McKenna: Perhaps the features of the patent system are
suited to the kinds of innovation it generally covered.  If that’s the case, then we might want to avoid
growing the system.
Q: what’s the right answer?
McKenna: collective effort is required. The paper tries to
show that IP has a problem as a system and that it needs to be addressed.  Makes it easier for people to use one right
to protect that which other rights want to leave free for general use—overprotection.
Most areas of IP haven’t internalized the systemic costs, not accounted for
overlapping rights, thus haven’t calibrated right.
Sprigman: if pill efficacy depends in part on color b/c of
placebo effect: is utility patent going to treat that as patentable? Might be
within patent subject matter but not patentable because obvious.  If so, TM will kick it out. Is that
good?  If utility patent doesn’t accept
pill color, then will TM accept it? Or will TM start thinking about competitive
need for pill color?  If you think
placebos respond to incentives, we might want to exclude it from TM.
Q: If all regimes have delineations, why do we need to
worry?
McKenna: Not everything will fit somewhere; we also need to
be concerned b/c TM etc. make claims about what utility patent is/does and if
those are wrong we have issues.
Patent Clutter
Janet Freilich
We don’t know much about what’s in patent claims. They’re
supposed to point out and distinctly claim the invention.  Many empirical studies about patent
litigation, few about claims. Textual analysis of 25,000 patents. Are claims
really only about the invention?  Test:
does claim language appear in the specification?  Result: about 25% of claim language appears
rarely or never in the specification.
Invention in claims must be discussed in the specification;
if not discussed, unlikely to be new/used in a new way/combined in a new
way/etc.  “Non-inventive language.”  E.g., list of pharmaceuticals that are known
to be delivery devices—not really what the invention is about.  Average of 9.4% of claim words are nowhere in
the specification.  About 90% of
noninventive language is in dependent claims. Highest in chemistry and pharma
(27%), computer lowest (21%). Patents w/more noninventive language roughly
correlates w/fewer forward citations and lower renewal rates.
Limitations: probably underestimates noninventive language
b/c a claim term can be mentioned many times in specification and not be about
the invention. Can’t account for drawings.
Why?  Signaling:
patents are marketing documents.  Decoy
function: if you claim 100 different things, competitor doesn’t know which you’ll
choose. To avoid rejection during prosecution. Insurance against future
commercial uncertainty or litigation—to make it more likely that your claim
covers the commercial embodiment.
Implications: may not satisfy §112.  Clarity. Have to be one sentence long;
sometimes noninventive elements make a claim 4 pages long. Words by definition
aren’t defined in specification, and if they’re vague that increases the
challenge. But exemplars can increase clarity of general terms.  Prosecution: examiners struggle
w/noninventive language; can be part of strategy to run down examiner; creates
difficulty of search by generating false positives; creates impresssion of
patent thicket, but if term is part of noninventive language, patents may not
be relevant.
Claims are doing more than just describing an
invention.  Is there a heart of the
invention?  What does the ideal claim
look like? What is its purpose? May not be possible for claims to be only about
the invention.
Jeanne Fromer: amended claims are written by lawyers, not
inventors.  Hard to make comparisons.
Freilich: synonyms are discouraged; prosecuting attys are
careful about trying to satisfy written description/enablement.  Great idea to look at amended claims. About
half of patents add noninventive language during prosecution, apparently in
response to examiner rejections. 25% take out noninventive language during
prosecution, and the remainder stay the same.
What We Buy When We “Buy Now”
Aaron Perzanowski & Chris Hoofnagle
What does it mean to own or buy something in the digital
economy?  Amazon’s remote deletion of
copies of 1984 was a particularly
notable incident, but happens quite often. 
Empirical testing of different consumer options.
Takeaway: consumers are confused about what rights they
acquire.  We asked: can you lend this
book to a friend, resell it, give it away, leave it to someone in your will,
keep it as long as you want?  Most people
believed of digital goods that they could own, keep, have it on any device; 1/3
think they can leave ebooks in will, give them away; ½ think they can lend
them.  Resale and copy were the only ones
where about 15% thought they could do it. 
“License now” instead of “buy now” created many fewer responses that they
“owned” the book but the other operations like lend, give in will, etc.
remained very similar.  Short notice
about rights for ebooks did a bit better in terms of reducing beliefs in right
to lend, gift, resell (though many percentages were still above the #s that
often indicate deception in reasonable consumers).  Women and people over 65 tended to be more correct
than younger white men, who tended to have a sense of entitlement over what
they could do with their “purchases.”  [Which
is a reminder that entitlement has good and bad aspects.]  On average, people who saw “license now” and “buy
now” got less than ½ of questions about rights correct; short notice increased
correct answers by one, whereas “buy now” for hard copy were mostly right,
though not all thought they had the rights they did.  Preferences in terms of rights were the same
for ebooks and hard copy; 54% were willing to pay more for at least one of
three control rights, often $1-3 for products ranging from $6-12.  Lack of rights makes them more likely to
download illegally and to stream.
Justin Hughes: did you adequately separate digital file from
device in Q about lending/gift?
A: we tried to make it clear that you were asked about
lending a digital file, not a device, but that is definitely a concern.
Eric Goldman: Another story to be told from your data: it’s
really hard to inform consumers. Many still aren’t getting the message w/the
short notice.
A: They had one exposure to the short notice—I would think
that repeated exposure might increase results. [Probably not, which he then
notes as a potential for ignoring the standard notice.]  We aren’t pro designers/ UIX designers—a professional
might well do a much better job. What this tells me is that this is a promising
avenue for improving consumer understanding. 
[Richard Craswell has done excellent work on the CBA aspects of this—how
much we should invest to inform those consumers who can be informed, even if we
can’t fix everything.]
Q: re change over time.

A: there’s a level of dissatisfaction w/inability to get
kinds of rights they expect. The only thing growing as quickly as streaming is
vinyl records: people are willing to pay for permanence, but the sellers don’t
want to sell.  [And of course there’s the
classic xkcd making this point, not to
mention Calibre and its easily
available plugins for your ebook backup needs.]

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failure to speak can be advertising but not presentations to trainers

Posted on August 10, 2016 by rtushnet
WIKA Instrument I, LP v. Ashcroft, Inc., 2015 WL 11199059, No.
13-CV-43 (N.D. Ga. Jul. 10, 2016)
WIKA sued Ashcroft, a competing maker of pressure gauges,
for false advertising and related claims, and Ashcroft counterclaimed
similarly.  WIKA sells the XSEL Process
Gauge, available with either a dry case or a liquid-filled case, and Ashcroft’s
competing models are the Ashcroft Type 1279 Duragauge and the Type 1259
Duragauge.
Of broader note: Durability claims made in PowerPoint slides
created by Ashcroft for use in a “Train the Trainer” presentation shared with
Ashcroft’s sales force and product specialists at its distributors:  These people weren’t members of the relevant
purchasing public. The only evidence that the advertisement may have been
disseminated to an actual consumer was one exchange.  This wasn’t enough to constitute “commercial
advertising or promotion,” given the size of the pressure gauge market.
Ashcroft’s counterclaims: Ashcroft alleged that WIKA mislead
consumers regarding the composition of its gauges by selling consumers its
gauge made of thermoplastic material despite consumers identifying in their
requests for quotation (“RFQ”) that they sought a phenolic gauge. Ashcroft
claimed that WIKA should have filed an “exception” to any RFQs for a phenolic
gauge to notify customers of the discrepancy.  WIKA argued that this wasn’t commercial
advertising or promotion because it was merely a failure to speak, but the
cases didn’t support a distinction between affirmative and negative conduct. “False
advertising claims often turn on what was not said or disclosed by the
defendant; less than full disclosure may constitute actionable false
advertising.”
WIKA argued that only consumers had standing to challenge its
practice because they decided whether WIKA needed to “except” to a bid
specification.  But that didn’t
distinguish WIKA’s practices from those of advertisers in general; consumers
might be injured too, but the Lanham
Act isn’t for them.
As for durability claims, Ashcroft argued that cited tests
didn’t support WIKA’s claims. For example, Ashcroft argues that the tests only
showed, on average, that the XSEL lasted 4.46 times longer than the 1279 rather
than 5 times longer, and the test included only Ashcroft and no other
competitors. WIKA responded that the difference between 5 and 4.46 was “a
partial truth, at worst,” and that WIKA reasonably assumed that its gauge would
outlast other, cheaper competitors.  The
court left this dispute for the finder of fact.
Ashcroft did offer testimony about harm about specific
consumers who bought XSEL gauges rather than 1279 gauges when WIKA failed to
except to bid specifications for phenolic gauges.  Moreover, a presumption of injury could apply
in this case, given that there was sufficient evidence for a reasonable trier
of fact to conclude that some comparative statements were willfully deceptive: “Specifically,
there is evidence that WIKA did not have access to the tests performed by its
German parent company prior to making the 5 times longer claim based on the
tests. There is also evidence that WIKA did not perform its own testing for the
2.5 times or more representation; WIKA relied only on an anecdote from a
consumer.”
The same evidence failed for tortious interference, though,
because Georgia requires more than circumstantial evidence that the plaintiff
would have received the business—it requires direct evidence. 
WIKA Instrument I, LP v. Ashcroft, Inc., 2013 WL 12061904,
No. 13-CV-43 (N.D. Ga. Jul. 3, 2013)

Showed up in the same Westclip search (I’m getting a lot of
these oldsters recently).  Of possible
greater relevance: the court declined to require WIKA’s Lanham Act claim to
satisfy Rule 9(b).  In addition, WIKA was
not required to plead that it had consumer surveys supporting its allegations
of misleadingness. “[T]he standard on summary judgment is different than the
standard on a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6). WIKA is not required to prove every element of its claim at this
stage of the proceedings.”

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Confusion bans are content-based so disclaimers must be tried first, court rules

Posted on August 8, 2016 by rtushnet
Pursuing America’s Greatness v. Federal Election Comm’n, No.
15-5264 (D.C. Cir. Aug. 2, 2016)
I wonder whether INTA is worried about this case.  If not, why not?
The Federal Election Commission prohibits unauthorized
political committees, like Pursuing America’s Greatness, from using candidates’
names in the titles of their websites and social media pages.  The Federal Election Campaign Act (FECA) creates
two kinds of naming restrictions.  A
committee that is “authorized” by a candidate to receive or spend money on his
behalf must use the candidate’s name in its name. Unauthorized committees may
not. FECA’s naming rules reach only committee names, but the FEC also restricts
the names of committee projects, including online projects, such as websites or
social media pages whether or not a committee’s project involves fundraising.  An exception allows unauthorized committees
to use candidate names in titles that “clearly and unambiguously” show
opposition to the named candidate, because “the potential for fraud and abuse
is significantly reduced.”
To support Governor Huckabee’s most recent run for the White
House, plaintiff PAG used a website and a Facebook page named “I Like Mike
Huckabee.” PAG sought a preliminary injunction to prevent the FEC from
enforcing its naming rules. 
PAG and the FEC first disagreed on whether this was a mere disclosure
requirement or a speech ban.  A
disclosure rule is one that  requries the
speaker “to provide more information to the audience than he otherwise would.” The
rule here wasn’t a disclosure requirement, because it prevented PAG from
conveying information to the public [in its name/project title].  By contrast, FECA’s requirement that
unauthorized committees disclose their lack of authorization is “garden-variety”
disclosure, even though the required disclosure necessarily bans one statement
(the false statement that the committee is authorized).  By barring the use of candidate names in titles
of communications, the FEC banned more speech than that covered by FECA’s
provisions requiring disclosure.
This speech restriction is content-based because the FEC has
to look at the content of the title of PAG’s website/Facebook pages to figure
out if there’s any violation.  The fact
that unauthorized committees can still use candidate names other than in titles
doesn’t mean the regulation is content-neutral; that fact just goes to narrow
tailoring.  Anyway, titles are important:
The title is a critical way for
committees to attract support and spread their message because it tells users
that the website or Facebook page is about the candidate. Without a candidate’s
name, the title does not provide the same signaling to the audience. Allowing a
committee to talk about a candidate in the body of a website is of no use if no
one reaches the website.
Query: is this true, given current search engine
practices?  My guess is that Google would
recognize the relevance without the candidate’s name in the title. 
As a content-based regulation, the FEC rule needed to be
narrowly tailored to serve a compelling interest.  It wasn’t, despite having the same  basic structure as trademark law! The court
assumed that avoiding voter confusion was a compelling interest.  Now, consider typical infringement remedies—not
to mention significant portions of §2—held to this standard:
Here, the FEC reasonably fears that
voters might mistakenly believe an unauthorized committee’s activities are actually
approved by a candidate if the committee uses the candidate’s name in its
title. But there is a substantial likelihood that section 102.14 is not the
least restrictive means to achieve the government’s interest.  For example, as amicus pointed out, the FEC
could require a large disclaimer at the top of the websites and social media
pages of unauthorized committees that declares, “This Website Is Not Candidate
Doe’s Official Website.”

Disclosures are less restrictive alternatives, and the FEC’s
rejection of them was based on its belief that disclosures would impose burdens
without solving the confusion problem. 
But the FEC didn’t offer any evidence
that “larger or differently worded disclosures would be less effective at
curing fraud or abuse than a ban on speech” or would be burdensome.  The FEC needed “more than anecdote and
supposition” to support a regulation subject to strict scrutiny. “Where the ‘record
is silent as to the comparative effectiveness of . . . two alternatives’—one of
which burdens more speech than the other—the more burdensome restriction cannot
survive strict scrutiny.”  So that’s it—disclaimers
for everyone! 

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Confusion bans are content-based so disclaimers must be tried first, court rules

Posted on August 8, 2016 by rtushnet
Pursuing America’s Greatness v. Federal Election Comm’n, No.
15-5264 (D.C. Cir. Aug. 2, 2016)
I wonder whether INTA is worried about this case.  If not, why not?
The Federal Election Commission prohibits unauthorized
political committees, like Pursuing America’s Greatness, from using candidates’
names in the titles of their websites and social media pages.  The Federal Election Campaign Act (FECA) creates
two kinds of naming restrictions.  A
committee that is “authorized” by a candidate to receive or spend money on his
behalf must use the candidate’s name in its name. Unauthorized committees may
not. FECA’s naming rules reach only committee names, but the FEC also restricts
the names of committee projects, including online projects, such as websites or
social media pages whether or not a committee’s project involves fundraising.  An exception allows unauthorized committees
to use candidate names in titles that “clearly and unambiguously” show
opposition to the named candidate, because “the potential for fraud and abuse
is significantly reduced.”
To support Governor Huckabee’s most recent run for the White
House, plaintiff PAG used a website and a Facebook page named “I Like Mike
Huckabee.” PAG sought a preliminary injunction to prevent the FEC from
enforcing its naming rules. 
PAG and the FEC first disagreed on whether this was a mere disclosure
requirement or a speech ban.  A
disclosure rule is one that  requries the
speaker “to provide more information to the audience than he otherwise would.” The
rule here wasn’t a disclosure requirement, because it prevented PAG from
conveying information to the public [in its name/project title].  By contrast, FECA’s requirement that
unauthorized committees disclose their lack of authorization is “garden-variety”
disclosure, even though the required disclosure necessarily bans one statement
(the false statement that the committee is authorized).  By barring the use of candidate names in titles
of communications, the FEC banned more speech than that covered by FECA’s
provisions requiring disclosure.
This speech restriction is content-based because the FEC has
to look at the content of the title of PAG’s website/Facebook pages to figure
out if there’s any violation.  The fact
that unauthorized committees can still use candidate names other than in titles
doesn’t mean the regulation is content-neutral; that fact just goes to narrow
tailoring.  Anyway, titles are important:
The title is a critical way for
committees to attract support and spread their message because it tells users
that the website or Facebook page is about the candidate. Without a candidate’s
name, the title does not provide the same signaling to the audience. Allowing a
committee to talk about a candidate in the body of a website is of no use if no
one reaches the website.
Query: is this true, given current search engine
practices?  My guess is that Google would
recognize the relevance without the candidate’s name in the title. 
As a content-based regulation, the FEC rule needed to be
narrowly tailored to serve a compelling interest.  It wasn’t, despite having the same  basic structure as trademark law! The court
assumed that avoiding voter confusion was a compelling interest.  Now, consider typical infringement remedies—not
to mention significant portions of §2—held to this standard:
Here, the FEC reasonably fears that
voters might mistakenly believe an unauthorized committee’s activities are actually
approved by a candidate if the committee uses the candidate’s name in its
title. But there is a substantial likelihood that section 102.14 is not the
least restrictive means to achieve the government’s interest.  For example, as amicus pointed out, the FEC
could require a large disclaimer at the top of the websites and social media
pages of unauthorized committees that declares, “This Website Is Not Candidate
Doe’s Official Website.”

Disclosures are less restrictive alternatives, and the FEC’s
rejection of them was based on its belief that disclosures would impose burdens
without solving the confusion problem. 
But the FEC didn’t offer any evidence
that “larger or differently worded disclosures would be less effective at
curing fraud or abuse than a ban on speech” or would be burdensome.  The FEC needed “more than anecdote and
supposition” to support a regulation subject to strict scrutiny. “Where the ‘record
is silent as to the comparative effectiveness of . . . two alternatives’—one of
which burdens more speech than the other—the more burdensome restriction cannot
survive strict scrutiny.”  So that’s it—disclaimers
for everyone! 

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Strict liability means competitor can create literal falsity by bringing out better product

Posted on August 4, 2016 by rtushnet
SharkNinja Operating LLC v. Dyson Inc., No. 14-cv-13720 (D.
Mass. Aug. 3, 2016)
In 2013, Dyson launched an ad campaign claiming that some of
its vacuums had “twice the suction of any other vacuum” on the market. In July
2014, however, SharkNinja released a vacuum called the Shark Powered Lift-Away,
as to which the “twice the suction” claim was untrue. SharkNinja sued Dyson for
false advertising and Dyson counterclaimed based on SharkNinja’s packaging for
the Shark Rocket upright stick vacuum, which claimed that the product “deep
cleans carpets better vs. a Full Size Dyson.”
Twice the suction: On May 7, 2014, counsel for SharkNinja
sent a letter to in-house counsel at Dyson, advising him that in July 2014,
SharkNinja intended to launch a new vacuum, and that the performance
capabilities of this new vacuum would render Dyson’s TTS claim literally false,
though SharkNinja didn’t enclose any test results. On July 9, 2014,
SharkNinja’s general counsel sent another letter, telling Dyson that the Shark
Lift-Away was officially on the market, and that testing demonstrated that Dyson’s
“twice the suction” claim was literally false. Dyson then bought Shark Lift-Away
units for testing. By early September, 2014, Dyson had received both internal
and third-party test results confirming that the Shark Lift-Away had more than
half the suction of its models.
Dyson conceded that the launch of the Shark Lift-Away
rendered its TTS claim literally false as of July 8, 2014. Dyson argued that it
took prompt, commercially reasonable steps to remove the “twice the suction” claim
from the marketplace, while SharkNinja argued that Dyson dragged its feet. Dyson
did not begin stickering over the claim on product packaging in stores until mid-November,
and SharkNinja argued that the false claim remained on the market until early
2015.
The court found that Dyson’s promptness, or lack thereof,
was irrelevant to its basic liability. 
Intent or lack of good faith isn’t required under the Lanham Act, which
is a strict liability statute and which was enacted to remove the common-law
requirements of intent to deceive/willfulness. 
Dyson’s citation of cases in which courts allowed advertisers a
reasonable period of time to remove false claims from the market involved court-issued
injunctions.
The language of the statute is
compulsory, and it includes no exceptions for cases in which a manufacturer
undertakes good faith, commercially reasonable efforts to remove a false claim
from the marketplace upon learning of its falsity. Good faith is simply not a
defense to a false advertising claim under the Lanham Act. Thus, the case law
and the statute seem to appropriately establish that an advertiser that puts a
claim into the marketplace bears all of the risk of the claim being false or
becoming stale. An approach that allowed such an advertiser to continue to
benefit from false or stale claims, so long as reasonably commercial efforts
were undertaken to remove the advertising, would not adequately disincentivize
the behavior prohibited by the Lanham Act or foster vigilance about the accuracy
of advertising claims. Further, it would unfairly shift the cost of stale or
inaccurate claims from the sponsor of such claims to its competitors, as long
as the sponsor made reasonable efforts to remove those claims.
  
Thus, SharkNinja was entitled to partial summary judgment on
Lanham Act liability.  SharkNinja also
showed that the “twice the suction” claim was material as a matter of law.
Suction is an “inherent quality or characteristic” of vacuum cleaners, and
materiality was presumed. Likewise, literal falsity leads to a presumption of
deception. “Dyson is liable for any damages proximately caused by its false TTS
advertising claims appearing after July 8, 2014, assuming that SharkNinja
proves such causation and damages at trial.” 
There were also factual issues about whether Dyson’s conduct was
willful.
The Rocket “deep cleans carpets better than a full-size
Dyson”: The claim had an asterisk, corresponding to a footnote that said
“*Based on the Dyson DC40 ASTM F608 (imbedded dirt removal on carpet).” The
comparative claim claim appeared on five out of the six box panels for the
Rocket vacuum, but the footnote appeared only on one side panel, at the very
bottom, in tiny print. Dyson argued that the disclaimer was too small and
discreetly placed for consumers to take notice of it, so the claim made was that
the Rocket outperformed every full-sized Dyson upright vacuum, which was false.

SharkNinja argued that its claims were literally true, but
literal falsity is usually an issue of fact. 
The factual dispute about what message was actually communicated couldn’t
be resolved on summary judgment.  Dyson
also argued misleadingness and offered a survey; SharkNinja challenged the
survey, but the court didn’t find flaws sufficient to exclude it at trial.  As for materiality, cleaning ability is also an
“inherent quality or characteristic” of vacuum cleaners, so materiality was
presumed.

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Annemarie Bridy takes on the Copyright Office’s overreach

Posted on August 4, 2016 by rtushnet

Here, on the set-top box FCC rulemaking. The Copyright Office wants people to believe that copyright is a general right to control commercial exploitation, and that if cable companies want to cut deals with content providers trading away customers’ fair use rights, the FCC has no business saying otherwise.

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Can functionality become nonfunctionality with new data?

Posted on August 4, 2016 by rtushnet
C5 Medical Werks, LLC v. CeramTec GMBH, 2016 WL 4092955, No
14-cv-00643 (D. Colo. Jun. 10, 2016)
C5 competes with CeramTec in the ceramic hip implant market.
In 1998 CeramTec patented a ceramic composite used in hip implants, advertising
that the chromium oxide in its composite increased the hardness of its hip
implant and made it pink.  CeramTec
sought trademark protection for pink in hip implant components after its patent
expired.  The PTO first rejected the application
for failing to show acquired distinctiveness; subsequently it put the color
mark and COLOR PINK on the Supplemental Register.  (Which shows that the PTO often doesn’t have
the necessary information about the affected industry to find functionality.)
C5 sued CeramTec for cancellation of its mark and a
declaration of no trademark infringement. CeramTec answered and counterclaimed
for infringement, asserting in part that its testing once suggested that
chromium increased the hardness of ceramics, but that more recent and more
accurate testing demonstrates that chromium does not increase the hardness of
ceramics.  This, it claimed, defeated C5’s
functionality argument.  (But is chromium
the reason the product works?  If so, Traffix teaches, nothing else need be
tried.)  C5 responded by adding false
advertising claims.
The court found that C5 lacked Article III standing to bring
its false advertising claim.  The court
first found that there was only a presumption of injury “in false advertising
cases where the defendant’s representations are literally false or demonstrably
deceptive…. ‘i.e., when the defendant has explicitly compared its product to
the plaintiff’s or the plaintiff is an obvious competitor with respect to the
misrepresented product.’”   But … if
chromium doesn’t make ceramics harder and CeramTec said it did, that’s literal falsity.  The court doesn’t explain itself here.
Regardless, 10th Circuit precedent was only dicta,
and the court therefore declined to apply a presumption of injury to obvious
competitors.  The court also rejected
Sunlight Saunas, Inc. v. Sundance Sauna, Inc., 427 F. Supp. 2d 1032 (D. Kan.
2006), because that case applied the presumption to the merits of the claim and
not to standing.  C5’s other allegations
were bare allegations of harm.  It might
be enough to plead that “CeramTec’s false advertising injured C5 because it
strengthened CeramTec’s market position and erected barriers to C5’s market
entry,” but that’s not what the complaint said.
Anyway, C5 failed to allege a fairly traceable connection
between its injury and the complained-of conduct.  In what sounds a lot like pre-Lexmark reasoning, the court said that,
to find causation, it would have to infer the following speculative facts: “(1)
consumers chose CeramTec’s hip implant because they believed that one of its
ingredients, chromium oxide, increased the hardness of the implant; (2)
consumers acquired that belief because of CeramTec’s false statements; and (3)
this strengthened CeramTec’s market position and created barriers preventing C5
from entering the market.”  The court
considered (2) “particularly problematic because C5 claims that the relevant
industry, including industrial manufacturers of ceramic powders, scientists,
and consumers such as orthopedic surgeons believed, and still do believe, that
chromium oxide increases hardness.” But C5 failed to explain how it was harmed
by CeramTec’s statements rather than by the beliefs of the industry as a whole.

Finally, C5 failed to properly allege redressability.  It sought disgorgement of CeramTec’s profts
and injunctive relief.  First, because C5
failed to allege a specific injury as discussed above, the court couldn’t determine
whether disgorgement of CeramTec’s profits would be an appropriate remedy.
Second, CeramTec now claims that chromium oxide doesn’t make its products
harder, so an injunction is no longer necessary.  C5’s requested corrective advertising—ordering
CeramTec to advertise chromium oxide’s nonfunctionality—would be particularly
odd given C5’s current advertising that chromium oxide is functional.

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