Tuesday, October 13, 2015

CFP: Intermediary liability

Intermediary Liability: How to Kill Content on the Internet. Thanks to statutes like Section 230 of the Communications Decency Act and even the Digital Millennium Copyright Act, intermediaries in the United States are at least theoretically shielded from liability for how actions by users on their systems. As a result, the internet has become a diverse and vibrant platform for speech of all sorts. Some, however, seek routes around these limitations on liability. One vector of attack is through the DMCA, but new tactics are also being tried, including the pursuit of domainwide injunctions, site blocking, and threats to payment providers, as well as attempts to limit Section 230. Many of these attacks on intermediaries are launched by entities focused on controlling intellectual property rights . In this talk we’ll consider those, and also how these tactics are being used by those with objections to other types of speech, such as adult content, including “revenge porn” and online advertisements, or content governed by the “Right to Be Forgotten.” And we’ll look at what can be done to better protect all online speech from censorship by strengthening intermediaries’ legal and political positions.
Cathy Gellis, Attorney (moderator): §230 and DMCA for intermediaries.  §230 is very strong for intermediaries.  Plaintiffs hate that.  Can’t be compelled to remove content.  But see Barnes v. Yahoo! (contract claims are allowed).  Carveout for federal crimes; IP.  No state carveouts, but they try.  DMCA for ©—much more complicated and conditional than §230. 
Emma Llanso, Director, Free Expression Project, Center for Democracy & Technology: §230 is incredibly strong legal protection for intermediaries—really important.  Strength has drawn the attention of people who’d really like to be able to sue an intermediary for a harm caused by a third party. Various attempts to amend/work around.  Victim of child trafficking who has judgment against the person who trafficked them, but that person is judgment-proof.  Seeking to go after website that posted ads related to trafficking: very sympathetic P; law enforcement learns that §230 bars making the website liable. 
53 State/Territorial AGs sent a letter to Congress proposing an amendment to allow state laws for intermediary liability to override §230.  Defeated due to outcry; since then, would-be imposers of liability have gotten more clever. Big one, especially this year: looking at the exemption for federal criminal law.  Efforts to create new federal criminal laws with some kind of liability for hosting third-party content, such as the SAVE Act: Stop Advertising Victims of Exploitation Act.  Additional liability beyond existing trafficking liability—the crime of advertising a person for trafficking purposes.  Passed earlier this year, without formal hearing.  Ultimately added to Justice for Victims of Trafficking Act, which got tied up in Lynch confirmation so rational debate ended.  Not clear what “advertising” means.  Not defined in statute.  Point of law according to advocates was to be able to go after platforms that host advertising.  But the person who creates the ad is arguably the advertiser—still unsettled.
Rebecca Tushnet, Professor of Law, Georgetown University Law Center: Compared to §230, §512 notice and takedown doesn’t make anybody happy.  That doesn’t mean it’s good, but it does mean it’s a compromise that may be extremely hard to change, despite the unanticipated volume of notices—hundreds of millions overall.
Takedown problems: (1) algorithmic overreach—recently dealt with a Harry Potter takedown notice based on the fact that the name of the file is Harry Potter and the Deathly Hallows; have had similar issues with fan fiction stories that happened to use the same name as a popular song—insufficient use of metadata—also a problem of figuring out that some online instances are in fact noninfringing because authorized by the rightsholder—for example, NBC Universal recently took down its Canadian affiliate’s stream of Mr. Robot; (2) claim overreach—attempts to use DMCA for privacy, trademark/getting competitors’ links removed, suppressing criticism (claims made on behalf of the Argentinean gov’t; Apple trying to hide its contract terms)—Google’s Transparency Report, WordPress’s hall of shame.  Need for better deterrent to claim arbitrage; some hope that Lenz will improve matters, at least for problem (1).  Big differences in behavior of the small number of senders who send millions of notices—algorithms are the problem—versus the large number of senders who send a few notices a year—for whom misuse or at best misunderstanding is the problem.  For fascinating empirical data: Daniel Seng, The State of the Discordant Union: An Empirical Analysis of DMCA Takedown Notices, 18 Va. J. L. & Tech 369 (2014)
Other than judicial decisions interpreting §512, what’s going on?  Experience from PTO/NTIA DMCA best practices group: weak tea.  Didn’t even go as far as Lenz in its recommendations for submitters of DMCA notices: “it is a good practice to take measures that are reasonable under the circumstances (e.g. taking into account the information visible to the notifier and the apparent volume of infringement at the location, etc.) to … appropriately consider whether use of the material identified in the notice in the manner complained of is not authorized by the copyright owner, its agent or the law.” Didn’t specify much of anything for senders or recipients of notices b/c the DMCA already gives plenty of detail about what you’re supposed to do. 
Participants insisted on having best practices for counternotification even though we all understood that counternotices don’t come from people who read PTO/NTIA best practices.  Compare the bad practice for notice senders: Bad practices for notice senders include “Falsely asserting that the notice submitter has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.” Bad practices for counternotice senders include, “Failing to take reasonable efforts to form a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the identified material.”  Again, compare Lenz: the courts are doing a better job.
Larger lesson: this was a meaningless exercise, and we still couldn’t agree on much of anything. Stalemate that will leave current law in place, making judicial interpretations the most important source of law unless/until raw political power produces a different result for copyright owners.
Speaking of which: testimony on §512 before Congress.  Content owners have come up with a phrase that is Frank Luntzian in its brilliance: “notice and takedown” is insufficient, so we should have “notice and staydown.”  Just a little change!  Essentially indifferent to the reality that this is filtering with a rhyme.  Attitude from representatives at the hearings earlier this year was essentially “get the nerds on it” and “Google can do this with Content ID for video and sound on the YouTube servers it controls, so it must be possible for everyone to do this with everything for the entire internet.”  Risks: It is very difficult to get a representative to understand something when her campaign donations depend on not understanding it.
Final random note: design patent—none of the exclusions we’re used to, including fair use; people are getting design patents on logos and graphic interfaces, potentially creating huge new sources of infringement litigation.  Newly discovered by plaintiffs’ lawyers and ordinary businesses, which have less interest in balancing free speech interests than media plaintiffs do.  So, like the ITC, this is an issue for intermediaries to keep an eye on.
Gellis: People want content down from the internet.  How will they use/abuse/change/route around laws to get the content taken down?
What other content is being seen as bad and worthy of takedown?
Llanso: We are increasingly hearing “Google can do it” from regulators around the world—drawn from implementation of DMCA notice and takedown. A lot of policymakers think of notice from private individuals to intermediaries resulting in content takedowns, without court involvement, as standard/comfortable.  Proposals around “extremist” content—but one big problem is that people don’t offer much of a definition of extremist content.  Concerning to look at a category that runs the gamut from political/religious speech to incitement to commit imminent violence.  France: wants public-private partnerships w/intermediaries. UK has internet referral unit, official gov’t unit to use content policies defined by major platforms like YouTube and content flagging mechanisms, as a way for gov’t to get rid of content that may or may not be inconsistent w/ the law.  No court involved.  No obvious angle for users whose content has been taken down/opportunity for appeal/oversight from independent third party.
(RT: May be another reason to endorse algorithmic approach approved by the court in Lenz: makes more clear that © notice and takedown is a poor model for other types of content, which can’t be determined in an algorithmic way.)
Gellis: right to be forgotten.
Llanso: Right.  Even if it’s private action, speakers feel censored.  Right to be forgotten has created a circumstance for search engines that they have to respond to assertions from private parties or they’ll violate European data protection law—have to be responsive to private parties, not court orders.
Gellis: DMCA is about not using the courts—lowers transaction costs but also creates them.
RT: if you get sued as an intermediary, hard to get out on a motion to dismiss.  Means that to get big you need an agreement with the industry. 
Gellis: out of the courts: validity of the claim is never tested, which means there’s vulnerability to abuse.  Small intermediaries: not as bullish as RT—many in the content industry regret allowing Google to grow big.  Small intermediaries can’t take the risk of ignoring the takedown notice—it may be crap, but the safer course is just to delete/just censor.
Llanso: threats to credit card companies led them to refuse to process transactions for Backpage—not just for adult content but for everything. Backpage sued sheriff for pressuring the credit card companies as a prior restraint on speech.  Important case to watch—TRO granted against sheriff.  But denied PI, so the case is being appealed to the 7th Circuit.  One of the most concerning elements of the dct opinion was characterizing the letters as containing threats but also containing the Sheriff’s own 1A-protected advocacy—a stunning result.  Adding advocacy shouldn’t be able to avoid liability for censorship—a roadmap for any official to threaten.
Gellis: nothing on the internet happens w/o the help of someone else.  Intermediaries are everywhere—some issues are restricted to a particular sector, but that’s why people try to recharacterize issues.  Protecting intermediaries is important b/c it’s difficult to get the good stuff if we pressure intermediaries to take down everything bad.
Q: View of speech as an absolute and internet as exceptional medium.  Financial intermediaries are also intermediaries, but we restrict them offline, for a variety of different transactions, including restrictions on arms trade, other blockades.  When this is electronically, and we can’t get jurisdiction over people, how do we get at those kinds of transactions w/out targeting the intermediary?  What’s the minimal harm way of targeting the intermediaries?
Llanso: there are laws proportionate to the harm.  When we don’t have gov’t acting under a clearly defined law, with balances worked out, we have a big problem.  If the rule is “don’t make the sheriff angry” and the content isn’t adjudicated unlawful, that’s a big problem.

Right of publicity question of the day, Will Ferrell edition

Here is a story about a Will Ferrell-themed bar.  Given New York's very limited statutory right of publicity, and the fact that the menu items don't seem to use the actor's name, does the display of photos of him in the d├ęcor/the reference the owner makes to the bar being a "tribute" to him sufficiently count as use in trade?  If so, would the pictures that many restaurants often display of celebrities who've eaten there also violate NY's right of publicity?  I wonder if this bar owner got very canny advice. 

CFP 2015: Internet content blocking by the ITC

Computers, Freedom & Privacy Conference 2015
Internet Content Blocking by the U.S. International Trade Commission.
In April 2014, a little-known agency called the U.S. International Trade Commission handed itself power to block data on the Internet. Internet companies fear for the future of cloud computing, civil society is worried about the openness of the Internet, and the MPAA wants to use the agency to implement SOPA-style website blocking. In this session, we’ll discuss how we got here, what might come of the decision, and what is being done about it.
Russell Brandom, The Verge (moderator): DNS/IP address blocking proposals; SOPA/PIPA defeated, but efforts to block content on the internet have now moved to ITC.  Invisalign has IP; dentist in Texas engages Pakistan firm to make the models, and he’ll print them in Texas.  If the Pakistan firm had printed the objects, Customs could have stopped them.  ITC determines that it can stop the data transfer as well.  MPAA is quite interested in this!  If info transmission can be blocked, will be powerful tool against copyright infringement as well.
Charles Duan, Director, Patent Reform Project, Public Knowledge: ITC’s powers cover “articles,” and opined that transmission of data over internet was “articles.”  ITC decisions are appealable to the Fed. Cir., which last month heard appeal primarily focusing on ITC’s determination about “articles.”  Regulation of information as it moves over international borders: a lot at stake. If the ITC has that power, other aspects of its functioning become troubling.
Jonathan Engler, Partner, Adduci, Mastriani & Schaumberg: Represented MPAA in intervention.  The importation of an article is required—the ITC has evolved into a specialized patent tribunal; about 20% of all patent trials in the US are held at the ITC.  Attractive: It’s fast—18 months—and it’s specialized.  Reversal rate at Fed. Cir. is much lower than average district judge.  ITC was always intended to provide a remedy for business torts generally.  Also has a series of cases about trade secret misappropriation abroad: ITC has enforced against it even though bad behavior was outside US jurisdiction. Antitrust; TM also familiar.  This case didn’t seem different to the ITC.
Brandom: b/c it’s a trade court, tends to move faster and have stronger remedies—thus it’s a preferred venue for patents.  Serious effect on trade policy.
Bill Watson, Trade Policy Analyst, Cato Institute: Remedy was total exclusion from US market, with rump unfairness jurisdiction.  US lost a challenge at what is now the WTO, where trade court decided that this was discrimination against imports, and they pointed out some of the things supporters like—speed, lack of jury.  There’s nothing meaningful about importation that makes infringement different/more difficult than domestic infringement.  Problem for US patent system: difficult to reform patent law b/c you have two statutes and two venues. eBay v. MercExchange—injunctive relief isn’t automatic, but that doesn’t apply to ITC, so patent trolls ran over there—problem needs to be fixed separately. 
Brandom: specialization = powerful home-court advantage for a lot of firms.
Mike Godwin, General Counsel, R Street Institute: We are pushed to treat IP right violations as if they were subject to theft laws, or in ITC some kind of unfair trade practice. But we don’t just use the internet to transmit stuff about goods/things people have legal rights in. Digital platforms are by nature, unless otherwise designed, transnational. Gov’ts aren’t very comfortable with that.  Natural economic impulse by industries to externalize costs of enforcement to government.  This was SOPA/PIPA—effort to impose costs of enforcement on platform providers; same here w/ITC.
Engler: agrees on convergence issue.  The biggest significance of this case is the first 3D printing case for the ITC—highly disruptive innovation, already grown into significant business.  Pirate Bay now has focus on CAD files that infringe TMs and patents as well as copyrights—can print out in your basement.  Going after basement-dwellers didn’t work out well for music, last time around. There are freedom of internet concerns, but also concerns for Caterpillar’s ability to control the production of spare parts for its tractors. Can’t look at transmission issue in a vacuum.
Brandom: classic response to that in ITC situation: if tomorrow, there were no ITC, there’d be other remedies available to Invisalign.  Infringer is in Texas, not in Estonia.
Duan: We’re usually talking about having 2 remedies.  Trying to shoehorn new problems into old categories.
Engler: Inducement—the ITC has long found that you can’t circumvent the remedy by doing domestically what you couldn’t do abroad.  They have a history of saying—you can’t bring in a server with infringing software, and you also can’t bring in a server and email yourself the infringing software to get around that.  Not pure shoehorning.
Godwin: We’re seeing legal evolution and we need to find a limiting principle.  We’re not seeing one here, which is the reason we’re marching out the prospect of everyone becoming an infringer once 3D printers are widespread.  Everyone’s a potential mass © infringer now; not anticipated when laws were crafted; the same is about to happen to patenting.  Even biopharma patents will be cheaply infringed.  Don’t want to convert specialist court to huge presence.
Watson: it’s not just bad actors involved. The Texas dentist isn’t sympathetic, but the impact of having this ability at the ITC isn’t just going to hurt him.  Internet companies deciding where to put servers won’t want to expose themselves/their customers to liability.  Distorts the market.
Brandom: biggest question mark is about enforcement.  Internet backbone companies?  Traditionally, a pallet of iPhones stays in the warehouse until the dispute is resolved, but in information industry that’s a catastrophic roadblock. 
Engler: there are limiting principles.  Maybe not optimal, but exist.  You have to name the person who you accuse; APA provides them the ability to come in and defend themselves. More than ½ the time, ITC finds for defendant. Even in ClearCorrect case (this one), they accused the dentist and ordered him not to print the files. No parade of horribles on remedy side.  Internet backbone: if under DMCA there’s immunity for the ISP from an injunction in the dct, so too in the ITC, almost certainly. He’s heard them say, in the Fed. Cir. argument, they’d feel bound by US limiting principles.
Duan: Interesting thing this points out is how different the internet is. Easy to ID one person doing a shipment.  As we’ve seen in other instances, there are unexpected pressure points on the internet.  Going after music downloaders; then shift of strategy to the intermediaries.
Engler: unlike a dct, ITC orders have to be approved by the President. There is a political venue for ITC cases to stop if they’re overstepping boundaries.

Trademark question of the day, sperm donor edition

From an eagle-eyed student, who also reports that one consequence of transferring from a well-regarded state school to an Ivy League school was the appearance of these ads on his Facebook wall. Dilution of Nike's marks? 

Friday, October 09, 2015

Class claims down the toilet? Court stays lawsuit for FTC action

Belfiore v. Procter & Gamble Co., --- F.Supp.3d ----, 2015 WL 5781541, No. 14–CV–4090 (E.D.N.Y. Oct. 5, 2015)
The district court stayed six related consumer class actions against “flushable” wipes on the ground that the FTC could probably protect consumers more effectively.  Consumers alleged that they paid a premium for “flushable” wipes—moist towelettes intended for use in place of, or in addition to, toilet paper—that are not actually “flushable.”  P&G’s wipe, “designed to break down through chemical processes and physical manipulation, shows no signs of coming apart while in a home’s plumbing, or possibly even after it reaches a municipal sewage plant.” “Similar class actions are pending in other courts. A number of municipalities have brought a class action against manufacturers of similar products, claiming clogging of their sewage disposal facilities,” while others are warning their citizens not to flush “flushable” wipes.  NYC has proposed to ban “flushable” claims unless they’re certified by a third party test approved by NYC.
The FTC has an ongoing inquiry into the use of the term, and one competitor was recently subject to a proposed consent agreement with the FTC about describing its products as “flushable.”  In order to make “flushable” and similar claims, the producer would be required, among other things, to have substantiation that its product “disperses in a sufficiently short amount of time after flushing to avoid clogging, or other operational problems in, household and municipal sewage lines, septic systems, and other standard wastewater equipment.”  P&G is also the subject of an “informal inquiry” by the FTC, focusing on the ability of various wipe products to pass through municipal sewage system facilities.
Because “certification of a statutory damages class would pit New York State’s consumer protection law, which explicitly prohibits statutory damages in class actions, against the federal class action rule, which contains no such prohibition,” here prudence counseled in favor of staying the putative class action to see what, if anything, the FTC will do, even though the class action predicates were otherwise met.  Fundamentally, Judge Weinstein disagreed with the Supreme Court’s treatment of the interaction between state law and Rule 23, because he believed that it would reward forum shopping, and used that disagreement to weigh against certification.  I imagine there’s room to disagree over whether this is appropriate.  Moreover, with multiple cases pending across the nation, “there is a substantial risk of inconsistent judgments regarding the meaning of ‘flushable.’ A robust management of the “flushable” problem by the FTC, rather than by courts, could avoid unnecessary inconsistencies and controversies, helping manufacturers, retail vendors and consumers alike.”
If circumstances changed, the court indicated that it would likely deny certification of a damages class, but certify an injunctive relief class.

The packaging of the wipes at issue, which had been the same since 2011, claims that the wipes are “flushable,” “Septic Safe,” and “Safe for sewer and septic systems.” 

“Flushable” wipes cost substantially more than toilet paper and non-flushable wipes.  P&G’s wipes are created by using jets of water to entangle a wood-pulp base, structurally supported by a chemical binder.  It contends that the wipes begin to disintegrate when dropped into the toilet upon exposure to physical forces and biological factors found in wastewater systems. P&G offers reimbursements who complain that the wipes caused a clog.  Plaintiff Belfiore bought the wipes and experienced clogged plumbing and sewer back-up; a plumber charged him over $500 to remove the wipes and other materials from the pipes, though he hasn’t yet paid the bill.
The parties argued about the definition of “flushable,” with plaintiff going basically for “it’s not flushable if it doesn’t break down sufficiently to pass through pipes and causes serious problems for individual owners and municipalities.”  P&G argued that what’s flushable is “a subjective inquiry, unique to each purchaser’s experience.”  Defendant’s experts suggested that “flushable” meant that an object would “successfully leave their home,” meaning that wristwatches and matchbox cars would qualify as flushable.  There are also industry guidelines for flushability that look at whether the product becomes unrecognizable in the sludge generated in the normal course of wastewater treatment.  The FTC’s proposed consent order also provided a definition that offered some guidance, as noted above.  There was no consumer survey on the term’s general meaning (though I would think that “septic safe” etc. further qualify the claim to give it more meaning).
NY’s GBL § 349 allows recovery of actual damages or $50 per transaction, whichever is greater, except that C.P.L.R. § 901(b) bars class actions seeking to recover “a penalty, or minimum measure of recovery created or imposed by statute,” unless that statute explicitly authorizes recovery through a class action, which §349 does not.
The Supreme Court considered the interaction between FRCP 23 and § 901(b) in Shady Grove Orthopedic Associates v. Allstate Ins., in which the Court found that Rule 23 controls over §901(b).  Though Shady Grove “undermines the important state substantive policy behind § 901(b). But it is binding on federal courts, and therefore, in the instant case.”  However, §901(b) still influenced the court’s certification analysis.
As for the class action factors, P&G disputed commonality on the theory that the alleged injury depended on individual experience with the product. But that’s not the injury in a false advertising case; here, injury was the price premium paid by everyone, even if some consumers were satisfied or had varying danages. “Those who are satisfied that the premium was worthwhile can opt out or decline to file for damages awarded to the class.”  Likewise, this meant that the plaintiff’s claims were typical, because his plumbing bill wasn’t the focus of the litigation and his damages theory was based on price premiums.
Adequacy: There was “some doubt” that counsel intended, or was able, “to finance the expensive consumer and economic studies necessary for effective prosecution of a case on a premium price theory.”  But, given that plaintiff was now seeking only the statutory $50 award, that wasn’t likely to be decisive, and counsel seemed qualified in other respects.
Ascertainability: the court rejected the “no receipts, no ascertainability” argument for the usual reasons—it would destroy the very low-value aggregated claims that the class action device was designed to accommodate, increasing injustice.  Self-identification via affidavit could be appropriate given that the alleged misrepresentation was uniform across all products.
Rule 23(b)(2) injunctive relief class: The court refused to hold that plaintiff lacked Article III standing to bring a claim for injunctive relief, because that would denigrate the NY consumer protection statute by denying anyone who figured out that she’d been deceived from representing a class of the still-deceived.
A single injunction against the labeling here would provide relief to each member of the class; individual claims for monetary relief can’t be certified under 23(b)(2), at least where it’s not incidental to the injunctive or declaratory relief.  The monetary relief sought by some class members—individual plumbing costs—was incidental to the injunctive relief and could be tried separately. Thus, if the action weren’t stayed, the court would look favorably on a 23(b)(2) injunctive class.
Rule 23(b)(3) damages class: The court found predominance.  P&G argued that whether consumers were injured by the “flushable” label requires an individualized inquiry into each purchaser’s experience, since some consumers have “consistently flushed without a problem” and therefore could not have been deceived.  But either all consumers bought “flushable” wipes that were, in fact, “flushable,” or none did.  P&G also argued that materiality would require individualized proof.  But such individualized proof is unnecessary under §349, which uses an objective standard.  Moreover, the plaintiff’s damages model, which used hedonic regression to determine a premium from the product, was sufficient to establish classwide injury.  Once injury was established, statutory damages could be calculated classwide.  Any individualized issues about plumbing products would be tried on an individual basis.
Superiority: The courts are split on whether superiority analysis can consider the ability of administrative agencies to address the key contention in the case.  Given Rule 23’s reference to “adjudicating” claims, some conclude that it only requires a comparison to individual litigation.  However, it was sensible to consider the FTC’s potential action, which could resolve issues on a uniform national basis.  If an administrative agency has yet to take definitive remedial measures, some courts deem a class action superior. See, e.g., Bryan v. Amrep Corp., 429 F.Supp. 313, 319 (S.D.N.Y. 1977) (status of FTC proceedings was unclear).
Here, however, a class action seeking statutory damages wasn’t superior, because the FTC was better suited to protect consumers nationally and it was already considering P&G’s flushable claims:
In the interest of uniform protection of consumers, the FTC should address the instant case and related cases, lest inconsistent judgments and labeling abound. This risk is serious, as noted by the number of cases that have already reached varying dispositions. Consumers as well as vendors require a uniform definition of “flushable,” and the FTC is best suited to announce it.
New York’s public policy against statutory damages in class action cases, which could easily be excessive (here, up to $95.5 million), buttressed this conclusion. Such a large award would also contradict Congress’ intent in enacting CAFA: “to discourage excessively harsh results eclipsing plaintiff’s actual damages.”  (Is that what CAFA intended to do?)  Thus, the court wasn’t likely to certify a damages class, on superiority grounds.
However, for the moment, the court merely relied on the primary jurisdiction doctrine to stay the case.  Although the doctrine is relatively narrow, and usually doesn’t apply where the issue is “legal in nature and lies within the traditional realm of judicial competence,” and although the courts are generally well-suited to determine false advertising issues—both in terms of the science and in terms of likely consumer understanding—policy considerations counseled in favor of a stay. GBL § 349 also expressly provides that it “shall be a complete defense” under the statute if the challenged act or practice “complies with the rules and regulations of, and the statutes administered by the federal trade commission ... as such rules, regulations or statutes are interpreted by the federal trade commission.” “Thus, a determination by the FTC that defendant’s flushability claims are supported by, or not supported by, competent evidence under the FTCA would, at a minimum, be important to proceedings in this court and could be conclusive.”  Moreover, there was danger of inconsistent rulings among various courts and the FTC, without a consensus on the definition of “flushable.”  An FTC ruling blessing or rejecting these claims could end the need for litigation.  Plus, the FTC process allows for public comment, while an individual class action generally doesn’t.  (Objections?)

Thursday, October 08, 2015

Lexmark means what it says, except when it says not to use the word "standing"

New Jersey Physicians United Reciprocal Exchange v. Boynton & Boynton, Inc., Nos. 12-5610, 13-2286, 2015 WL 5822930 (D.N.J. Oct. 1, 2015)
Plaintiff NJ PURE sued Boynton, who added third-party defendants Joanna Elias and Eric Poe.
Boynton is an insurance agent that brokers the sale of medical malpractice insurance policies to physicians and other healthcare workers. NJ PURE is a “reciprocal inter-insurance exchange,” that is engaged in the “direct sale of medical malpractice insurance policies that it produces itself to physicians and other individuals and institutions engaged in the provision of healthcare.” Elias and Poe were employees of NJ PURE during the relevant time period.
Boynton alleged that it competed directly with NJ PURE because NJ PURE markets its medical malpractice insurance policies directly to potential insureds, without the use of a broker.  It alleged that NJ PURE falsely advertised that NJ PURE was rated favorably by A.M. Best Company to several existing and prospective Boynton customers.
Under Lexmark, a plaintiff must allege that it falls within the zone of interests protected by § 1125(a), which requires injury to “a commercial interest in reputation or sales.”  Moreover, its injury must be proximately caused by the defendant’s conduct.  Alleged loss of customers was an injury within the Lanham Act’s zone of interests, and because the loss was allegedly procured through false and misleading statements, there was proximate cause.  Though NJ PURE argued that other insurance companies were more directly injured, Lexmark rejected a direct competition test.  Moreover, though the parties didn’t compete in producing insurance policies, they definitely competed in selling insurance policies.
However, as to Poe and Elias, Boynton didn’t claim that their alleged misrepresentations caused customers to end business relations with Boynton, so there was no standing.  (Once again, lower courts just refuse to end their use of the simple term “standing” to describe the inquiry, even while applying the standard Justice Scalia set out.)
Many district courts in the Third Circuit have applied a so-called “slightly heightened” or “intermediate” pleading standard for false advertising claims under the Lanham Act, because of the “fraudulent” element necessary in a Lanham Act claim (whatever that means).  (Note also that this so-called standard dates from before Twiqbal and arguably has no further function or validity thereafter.)  Assuming arguendo that the standard applied, Boynton satisfied it.  It alleged that in “May or June of 2012” an unknown representative of NJ Pure “verbally advised” a representative of OB/GYN that “NJ PURE had received a favorable rating from A.M. Best Company.”  That was sufficiently detailed to allow NJ PURE to mount a proper defense.
Tortious interference with existing contract claims also survived against NJ PURE, though not claims for future economic advantage; Boynton claimed that it lost a customer to NJ PURE, it didn’t allege facts showing expected future economic benefits from that customer other than those obtained under its existing contract.

Wednesday, October 07, 2015

What is ICE seizing?

Early lessons from my FOIA suit against ICE, which has finally resulted in an initial document production: (1) ICE might as well not be keeping records about what it seizes.  The variations include everything from “suspected counterfeit” [particularly informative!], “counterfeit T-shirts,” “counterfeit NFL shirts,” “NFL shirts,” “Buffalo Bills shirts,” “sample,” and other variants I no doubt missed. 

(2) Spelling is very much hit or miss, and it seems likely (given errors in spelling the generic terms accompanying brand names) that the spelling variations are often produced by the people doing the data entry, which means it’s impossible to tell whether the seized suspected counterfeits are near-perfect or the kind of shanzhai misspellings that signal inauthenticity to all but the most careless/least proficient in English.  (Dolfins!  Qowboys!)

(3) They haven’t produced any photos, so it’s impossible to get a sense of the quality of the seized items and, again, whether they are obvious counterfeits.

(4) I’m pretty curious as to why the “Beer pong hat,” and “marijuana hat” were seized, but there’s no explanation in the list I have.

Tuesday, October 06, 2015

New right of publicity website

A great new resource has arrived!  Jennifer Rothman of Loyola-LA has created Rothman’s Roadmap to the Right of Publicity: a 50-state interactive survey of right of publicity laws, plus breaking news.  Check it out!

Monday, October 05, 2015

DMCA doesn't block reverse engineering of vehicle diagnosis software but TM might

Ford Motor Co. v. Autel US Inc., No.14-13760 (E.D. Mich. Sept. 30, 3015)
Apart from cars and trucks, Ford sells automotive repair products. Among them is Ford’s Integrated Diagnostic System (IDS system) which diagnoses potential problems with Ford vehicles and guides their service and repair. The hardware components of the IDS system include a 16-pin diagnostic link which sends information from the vehicle to the on-board computer system.  The software component  receives information from the hardware and produces diagnoses and recommends repairs based on the information it receives.
The IDS software contains various data compilations. Ford alleged that some of the compilations within the IDS software were trade secrets.  One compilation was the “FFData file,” allegedly a trade secret protected through encryption and obfuscation technology (the latter being designed to defeat reverse engineering by making the code obscure to any unauthorized attempted reverse engineer).  Autel allegedly created a program to circumvent Ford’s security measures and access the FFData file without authorization, then inserted the FFData file into a vehicle diagnosis and repair product that competes with Ford’s IDS System.
Ford also alleged trademark infringement, because a screenshot of the Autel DS708’s electronic menu screen shows the Ford Oval alongside the logos of Chrysler and General Motors on the “USA” menu option.
Copyright: In the Sixth Circuit, pleading copyright infringement requires greater particularity than usual because of the potential for harassment suits.  Ford’s copyright registration for a data compilation, CALID_VIDQID_REC, presumptively established its originality. But Ford didn’t adequately plead copying of protectable elements—the copyright in a factual compilation is thin.  Ford alleged that “detailed technical analysis of data files stored on Autel’s DS708 device shows that the FFData file is duplicated on Autel’s DS708 device.”  This didn’t necessarily mean that the selection, coordination, and arrangement of the data, which was all that Ford could protect, were copied on Autel’s device.  General allegations of infringement that don’t identify specific infringing materials are insufficient to state a claim under Rule 12(b)(6), and the plaintiff needs to describe the manner in which the defendant’s work infringes.
Ford’s § 1201 claim was also inadequately pled.  Ford apparently alleged violations of §§ 1201(a)(1) and 1201(a)(2): circumvention of access controls and trafficking in access control circumvention devices. 

The court first, mistakenly, accepted Autel’s argument that Ford failed to allege that it owned a valid copyright at the time of the alleged circumvention, because Ford’s registration of its compilation was post-circumvention.  Registration, of course, is not a condition of validity, though Ford apparently didn’t offer any argument on this point.  Lexmark said that §1201 requires a plaintiff “to show that the ‘technological measure’ at issue “controls access to a work protected under this title,” which means the claimed work has to be original enough to protect (but not registered).
Second, Autel argued that Ford failed to allege that Autel’s circumvention was for an improper purpose.  The Sixth Circuit has stated that “the DMCA's anti-circumvention provision was designed to support the efforts of copyright owners to protect their works from piracy behind digital walls such as encryption codes or password protections by banning the use, manufacture, or sale  of technologies that circumvent digital copyright controls,” and adopted Judge Merritt’s concurrence in Lexmark finding that
The legislative history of the DMCA makes clear that the anti- circumvention provision is not intended to function as a comprehensive ban on all circumvention technologies; rather, its purpose is to prevent those technologies from being used as a tool for copyright infringement and to provide remedies for copyright holders against individuals and entities who facilitate the widespread unauthorized reproduction of copyrighted works by making such technologies available to the public.
That means plaintiffs must plead and prove “a purpose to pirate on the part of defendants.”  This the complaint did not allege.  Thus the court didn’t reach Autel’s third argument, which was that its circumvention was permissible reverse engineering.
The trademark infringement claims, however, survived (they didn’t need particularity, though the abusive litigation concern seems just as large with trademark as with copyright).  Ford argued that Autel’s use of its logos and listing of the program “Ford V2.10” under the Ford Oval in Autel’s DS708 device. Autel argued that source confusion was unlikely because it was only using the Ford Oval, along with the GM Logo and the Chrysler Logo, so that the DS708’s users could choose the correct diagnostic program that will be compatible with their respective vehicle manufacturer.  The court found the allegations sufficient: Autel’s use of Ford’s allegedly world-famous logo was “on its menu screen,” and it used the actual logo with distinctive shape, color and lettering.  Plus, post-sale confusion is actionable in the Sixth Circuit.  Nor could fair use be evaluated on a motion to dismiss.  (The court mashed up descriptive and nominative fair use, quoting the descriptive fair use test but apparently understanding that the use was, according to Autel, referential/nominative, citing Volkswagen AG v. Dorling Kindersley Pub., Inc., 614 F. Supp. 2d 793, 800 (E.D. Mich. 2009) (“the Court finds that the VW EMBLEM is used only to describe the actual vehicle. Accordingly, the claim is barred by the fair use defense as a matter of law.”).)
Ford’s state law trademark claim survived, as did its claim under the Michigan Uniform Trade Secrets Act.  I would have assumed that reverse engineering was a lawful means of acquiring the relevant information even if Ford tried to block the reverse engineering.  Thus, though Ford didn’t need to plead with particularity what about its program was a trade secret, I don’t understand how it pled an improper method of acquisition.  Ford’s state law unjust enrichment claim was, however, based solely on Autel’s alleged misappropriation of Ford’s trade secrets and thus was preempted by the state trade secrets statute.

Friday, October 02, 2015

Notre Dame Roundtable on Drassinower, Part 4

Session IV Subject Matter and Limitations
           Rebecca Tushnet
Drassinower defines trademark as the right to completely control the meaning of a mark as applied to a good or service: radically unidirectional, like a one-way traffic sign, and a trademark is not and should not be that!  Government (one-way sign) versus corporate (they’d like you to think that).  Book says: TM is not an invitation requesting a response/dialogue.  But I think that’s another slippage between the work and the copy, in Mark Rose’s terms.  In a sense, you’re not invited to modify a particular copy of a book even if you’re invited to engage in a dialogue.  To the extent that the invitation is a commercial one in the TM sense, that’s ok.
We’re allowed to talk about a Mickey Mouse operation, or a Cadillac health plan.  Genericide occurs when people talk back.  Urban white Englishpeople using Burberry; African-Americans adopting Timberlakes.  This overstatement is natural because he is trying to find a way to distinguish © from TM, and without a strong conception of influence on purchasing decisions—aka materiality—TM doesn’t have the kind of core that can be identified and distinguished from ©, since it is indeed about communication between producers and consumers.
When doubt arises as to whether it’s an indicator of source, Drassinower says, TM fails—but can still be valid and also part of a conversation.
Relatedly, Drassinower says: A trademark addresses others as consumers rather than speakers.  But self-understanding of marketers is now as TMs as branding strategy—intent is absolutely to address them as speakers, to penetrate their consciousness, to interact w/them on Twitter.
First Amendment concept: consumers and speakers are the same people. Once we give corporate speakers protection, it becomes harder and harder to distinguish speaking from selling things—a particular kind of conduct.  This is something that needs to be addressed in 1A doctrine more generally.
           Mark McKenna
By definition TM is an invitation to respond; whether it is/functions as a TM depends entirely on how consumers respond.
Striking resemblance b/t using a © work as a work (his concept of infringement) and the concept of use of a mark as a mark. TM rights aren’t in gross; they are relational, rights to use in a particular setting. Copying as such is not infringement unless it has a certain kind of effect. Once you define a TM that way it’s easy to work out what infringement must be.  © too, to Drassinower, isn’t a right in gross.  So there’s less need to resist property than you think.
Lessons from TM: there’s always been a TM use requirement; the problem is you immediately descend into addit’l Qs. From whose perspective do you evaluate whether there is a TM use? Is it based on consumer perception, or inherent in the nature of the use. That relates to what kind of evidence you’d want. Au-tomotive Gold: keychains made from car symbols aren’t being used as TM, D says, we’re using it ornamentally—court can’t wrap its head around that idea. No conversation in the case about how you would know it’s a TM use.
Drassinower makes a similar move: to infringe is to use a work in a particular way. How will a judge know whether a use has been a use as a work?  Evidence of consumers or not?  TM use ground to a halt b/c courts couldn’t figure out how to apply it—just collapsed into likely confusion.  If it’s perceived from viewers’ perspective, are you just asking whether there’s substantial similarity? Is there a difference between non-use and non-infringement?
TM law also expanded during the same time and its growth at least coincided with if wasn’t caused by massive rhetoric shift to consumer protection—interesting question about what kinds of rhetoric bound rights and which enable their expansion. Could we say something similar about certain instrumentalist language in ©?
           Pam Samuelson
Charmed by the book too; thinks it accounts for maybe 55% of © as we know it.  Good identification of types of copying that aren’t copying that © law should be worried about.  But reproduction may not ever really harm an author. What harms authors is public dissemination, distribution, communication. That suggests that your regime only requires one exclusive right: dissemination to the public.  Maybe that also means that © only ought to attach on publication.
One benefit: wouldn’t need as many exceptions. 
Moral rights: accept a moral right of attribution but not integrity under this view?  Also related to transfers—authors may be unhappy with fate after transfers.  Nadine Gordimer: swore off licensing after one work was mangled in movie version.  Of course, under Drassinower’s modality, she has no right to say anything b/c no derivative works right. Does she have a right to a disclaimer?  She doesn’t think the reproduction right is totally overlapping w/ deriv works right, though Nimmer does—still need to answer the Q about the scope of the right that gets to be infringed; what should be done w/nonliteral infringements?
Final issue: secondary liability is probably the biggest deal in © right now, and she’s not sure what happens to it in Drassinower’s theory.
Disagrees w/his interpretation of Baker v. Selden: even if you could find expression in forms Selden published, someone using that to keep accounting books would not be an infringer; we agree on that, and Mrs. Selden was trying to make everyone using the accounting forms pay.  Not w/in the scope of ©. Where we disagree: Baker was speaking Selden’s forms. He had a book in competition w/Selden.  The compelled speech issue doesn’t work here.  The SCt didn’t just let off all the users of the forms, but also let Baker off—the second person gets to utter the speech as a necessary instance of using the system.
McKenna: in TM, you often have the difficulty that consumers understand things differently—which group of consumers wins? Functionality has an answer to that—if it’s doing something other than indicating source, that wins. You’ll have the same Q here with people doing various things to the work.
Drassinower: didn’t mean to say that you can’t speak about the TM.  Not completely controlled—only controlled as indicator of source.  That is the subject matter of the right, and so loss of control of that meaning is loss of the TM.  The harm at issue is paradigmatically confusion—the right to control the meaning is to have oneself as the source (of course successful infringement leaves that meaning intact!).  The reason I need it is to characterize © as having something to do with dialogue, juxtaposed with something communicative but not dialogic.  Consumer may or may not be a speaker, but passively receives.  The activity of consumer is distinct from response of another author.
McKenna: the specificity of TM is inviting a particular kind of response b/c of the nature of the communication—purchase related.
RT: If you want something that’s communicative and unidirectional, how about the law itself? Traffic laws, the police officer—they are communicating but not inviting dialogue. 
Drassinower: it would be clearer if I granted that the audience/consumer is not passive. The exchange of information b/t purchaser and seller is in the context of sale.
Silbey: difference b/t © and TM is also evidenced by the durational rules of each.
DiCola: Katy Perry Left Shark example: it’s the audience that made the meaning; some kind of dialogue is happening between producers and consumers.  Language of value might be helpful too: the audience made the meaning. 
Drassinower: interesting question about role of substantial similarity: audience issues. 
Silbey: not much seems to be left of derivative work or even substantial similarity after the book’s theory.
Samuelson: which leads us to the point that the book doesn’t leave us with much idea of what the boundary would be.
Debate b/t Samuelson and Drassinower over what Baker stands for.  Samuelson: Baker was using the forms to communicate; he wasn’t a user of the forms. He was using the forms to communicate his own competing book/explanation of the system.
Drassinower: use as part of system is devoid of liability—but according to my theory they could be infringed by use of the forms to explain the system in another publication.  And he interprets Baker to say that by its own terms.  Samuelson says he’s fastening on a single phrase and not looking at the cases that follow it and the overall context of the case.
DiCola: language of the case has some equivocal moments, but the fact that Baker published a book undermines the distinction you’re trying to draw, because he still won.  Baker v. Selden is about competition—it’s making a decision about market structure for accounting books. 
RT: Then couldn’t you see Baker as a secondary liability case, if it’s about competition to provide these forms as well as the system/its explanation?  Which goes to Mark McKenna’s concerns about what counts as © use under Drassinower’s system.
Gordon: even if Baker doesn’t align with its historical explanation, Congress enshrined the distinction in its building/use distinction in §113—building a described thing isn’t infringement.  Leg. history: a drawing of a car = no right over the actual car.  Baker stands for limitations on copyrightability and limitations on scope of rights, enshrined in statute.
Heymann: consider the protests by musicians who don’t like use of their music in political campaigns: they consider it compelled speech, but they don’t own the ©.  This harm sounds more like defamation.  Is compelled speech necessarily tied to ©?  The same harm happens in other ways through works.
Sprigman: design patent—typefaces—aren’t these speech too, subject to the same compelled speech objections as paintings?  If art is speech, isn’t industrial design speech?
Drassinower: use as tools v. use as works: Google Books—use as tools distinction is in Baker and it can help answer Google and other products. So use of the toaster as a toaster would be ok.
Sprigman: A speech focused © law without adopting the 1A’s definition of speech?
Drassinower: Yep (and sensibly so, I think).
Samuelson: can’t conceive of a use in which Baker’s use of the Selden forms would be infringing. Your reading is about dicta.  Otherwise Baker would be an infringer.
Also, the distinction between patent and copyright isn’t as sharp as we’d all like. One can engineer a document; both inventors and authors think and behave in highly similar ways. The question of what’s protectable in a computer program must be addressed even if you take it out of ©. Notion of authorial creativity and technological creativity doesn’t exhaust the realms of creativity—authorship and invention as the two metaphors have trapped us/distracted us.
Balganesh steps in to defend Drassinower’s view of Baker, given that the SCt called the book of forms a “work” closer to the method than works usually are, making the opinion contradictory.
Gordon: but that’s true of any method—an implementation will be more like a method than like a novel.
Samuelson:  The Ct thought that useful arts were usually made of metal or stone; this one was actually embodied in a writing, and it’s that the Court referenced when it said that the useful art, even embodied in a book, was treated like the useful art made of metal.  [Then Gordon & Samuelson discuss the role of merger in Baker—Samuelson blames the Nimmer treatise for calling Baker the origin of merger and then taking that as license to ignore the method of operation etc. exclusions in the statute.]
Madison: In 1A the availability of alternatives is sometimes used to justify a particular speech restriction—similar to how merger is analyzed in ©. 
Sprigman: Typeface: why not cover it? You’re proposing a deep structure that unifies things within the subject matter of ©.
Drassinower: Doesn’t think fonts are act of authorship.
Sprigman: maybe you’re saying you want a hurdle before you allow the © switch to be turned on.
Drassinower: my system has to say there are phenomena that flip the © switch; there’s no domain distinction between mark, work, invention without one.
Sprigman: my domain distinction would be need for incentive: we’re not living in a font-free hellscape.
McKenna: you’re having the conversation about fonts b/c it seems to you that they might fit the contours of what’s proposed (you’re not having the conversation about mousetraps), and that suggests you’re agreeing that’s the right question.
Drassinower: agrees.
Rebecca Curtin: if we used this language to talk to the public, would that be less chilling of uses that we think are fair?
Drassinower: hopes that’s right—part of what he was trying to do.  If this were the grammar, instead of value, it would undo the suspicion of copying.

Notre Dame Roundtable on Drassinower, Parts 2 & 3

Session II – The Work as Dialogue
           Mike Madison
An element in the book: The “work” is a Macguffin.  The the thing that holds our attention/draws the narrative together while not necessarily having meaning in and of itself.
A book about concepts/conceptual framework.  Error to ask too much in doctrinal solutions/payoffs/nuances of © on the ground.  Complicated landscape of how works get created, not singular author/text.  Speech as part of community/co-creation.  Drassinower’s story is not set up to process at the institutional level. 
What is the agency of the audience?  If it really is a dialogic process, then there is a back and forth.  Book spends most time on authorial side, less on audience.  Also, materiality: material presence of the work is part of the understanding of what’s going on with the work.
           Laura Heymann
Intermediate step of audience is important b/c helps understand whether second individual is speaking as an author or merely for an author.  Multiple instances in which intent is a bad standard for authorship: Prince’s deposition in Cariou; post-hoc rationalizations. Audience is the way we assess authorship. 
Work for hire: is it in some way a fraud, if the audience perceives the individual as author?  Transfers issue: the “Cherry Ripe” case, where the photographer sells the rights to the first phoot and is held to infringe his own work.
Compelled speech: someone who engaged in unauthorized filesharing is in some sense speaking exactly as author intended.  Author didn’t intend to speak to those who didn’t pay.  (Although that’s a weird way to divide an audience—and author may well have intended to speak to those people through radio play, etc.)  Is it important that others know about it for the insult to the author—being treated as a puppet?  May be the difference b/t compelled association and compelled speech.
A and B may independently create the same work.  C gets permission from B to speak; has C caused A to speak as well?  Ties into Qs of whether attribution matters.  Replicas of the old masters made in China: how do we think about their production and reception?
           Jessica Silbey
Parrot on the cover of the book: When parrots copy they don’t speak for themselves—social behavior—a form of practice and engagement.  Not copyright-relevant. 
Equality paradigms: equal treatment may result in a denial of equal opportunities—e.g., failure to accommodate pregnant or nursing women.  Entitled to certain needs in order to facilitate opportunities.  Denial can be a form of denigration or domination.  As compared to antidiscrimination, antidominance is about subjugation, which compelled speech could be part of.
Deliberate freedoms/capabilities approach: equality deprivation is assessed not by whether other people have them but what is a denial of dignity/autonomy.  Drassinower relies on equal dignity/substantive equality—fuller connection to dominance would be useful. He says dominance over another’s work is piracy; personal/private engagement w/ a work is not dominance and fulfills the work’s destiny.  Equal dignity seems to require nonsubordination, but being enjoined from speaking another’s words is a form of control—lawful mutual restraint.
Independent creation and the primacy of the public domain are underneath the explanation of legitimate restraint.  We level up: freedom to, not freedom from.  If copyright as balance is war, than equal dignity is peace: the quality you’re striving for as a person.  Necessary consequence is no derivative works right: that would impose an impermissible hierarchy of authors.
Interference w/work is not so much inequality but unfreedom. So we’re back to the freedom from/freedom to divide.
           Chris Sprigman
© is a world of sequential innovation; must trade off ex post and ex ante interests.  Some external justification we’re trying to maximize?  Joint productivity?  Or a rights-based account as here, a reciprocal relationship between first and second-comers.
Instrumentalism provides a weak normative basis at best for ©; impoverished account of progress/the thing we’re supposed to be treating as a maximand. You don’t get an understanding of progress solely through observing the world; you need to have an idea of what it is.
More broadly, efficiency is a weak normative justification for anything. 
Justify v. specify: lawyers deal with specification. How do we tradeoff between Cariou’s rights and Prince’s?  Rights-based theories have little to say about this.  P. 211: discussion of Pruneyard—need to assess gravity of impairment of rights to each.  Sprigman thinks you can’t do that with anything internal to the rights based account; you need an external referent.  You are not judging impairment of right but deciding to shape the right, using utilitarianism.  Like Rawls, which shapes rights according to the sum of a bunch of utility calculations in the original position (how well off am I?).
Maybe this cafeteria model is ok: deontic model providing broad outer constraints; then specifying details of the law with an external referent, like here a deeper concept of progress, then treat that as a maximand.  This may be difficult, contestable, often imprecise, but that’s about where we are.
Gordon: still puzzled about why we want to allow people to control the way their speech is used in the world.  For example: pro-choice book of interviews w/women who’s had abortions or given a baby up for adoption; anti-choice author wants to use these accounts. 
Drassinower: that’s fair use. The interest I try to describe doesn’t track an author’s desires or wants.  You can’t publish on condition that your ideas aren’t discussed.
Madison: The Chinese painters in Dafen are using the source work as a work.  Audiences in hotel rooms know it’s not an original. What is the nature of their engagement?
Drassinower: Mousetrap and poem both require skill; but the types are different. Just as translators do something deeply sophisticated, so do Dafen’s copiers, but that doesn’t make them authors. We can quibble about whether activity is located in right place in our distinction, but the whole endeavor depends on us being able to make the distinction.
Rebecca Curtin: translation. Consider Seamus Heaney’s translation of Beowulf: what he does is absolutely a translation, but also uses a lot of Irish words, feminized images; his project was to undermine that nationalist epic of England.  There is clearly compelled speech there if we assume the monk wouldn’t sign on to this project. But Heaney is also communicating using this other speech.
Drassinower: one answer is to call him not a translator.  When to call someone a translator is the question.  Don’t have to have an answer in any particular case—just a translator can’t be an author b/c she is translating into another medium. There are factual qs about whether a particular instance is transformative.  He wants to shape how we frame the Q.
Underneath all utilitarianism is a rights-based theory, b/c you are distinguishing persons (who have utility) from other animals (which can also have utility/experience)—fundamentally rights theories say that there is a difference b/t persons and things.
[stepped out for lunch]
1:00 p.m.-­2:30 p.m.  Session III Speech vs. Value
           Rebecca Curtin
[came in late from lunch] Is the proprietary right idea as hostile to the author as the book believes?
           Peter DiCola
Utilitarian maximand is unclear: works, creativity, number of creative workers/authors. Sympathetic to the idea that utilitarianism and deontological approaches are in eternal death struggle that no one will win. Both are different sides of the same whole: instances in which the good is best described as maximizing value and others in which it is best described as a deontological commitment.  What if we picked, including between subjective well-being and preference maximization, a huge dispute in utilitarianism.  Does that distinction have anything to do w/the emptiness of the version of utilitarianism at work in © balancing?
A good (in utilitarian terms) could be a process, not a commodity.  Can perhaps help understand why liberty/autonomy are valuable.
Drassinower says: Economists are saying: legal lines like originality are proxies to find value (or value that should be privatized?) despite Type I and Type II errors.  Drassinower finds this aesthetically unsatisfying, which he gets—doesn’t really seem to explain the doctrines in detail. 
Systemic analysis is required: one user taping one show is not the issue. It’s a question of how the industries will be organized and the effects of these behaviors on a large, repeated but unorganized scale.  Is an implicit assumption of the methodology atomistic, assuming a core dispute between one author and one user?  Is that necessary to the approach?
Quite useful to show how the models ignore the infinite chain of creators we see in reality—a better explanation of the public domain than rather arbitrarily picking one author and calling them “first” and another “second-comer.”
           Glynn Lunney
Economist: Drassinower challenges his life’s work.
Deriv work right and protection for computer programs: not consistent w/theory/should be excluded from ©: why were these data points excluded from your “looking at the world” method.  What if the plaintiff didn’t know about the copying—is there a puppetry problem?  What about subconscious copying—it seems that’s still making the plaintiff the puppet, just not on purpose.
Other doctrines that aren’t explained: why have criminal liability (patent doesn’t)?  Economics can offer a more sensible reason (less of a problem with fly-by-night patent infringement), as can political economy (lobbying).
Other doctrines can be explained instrumentally: limited times.  Realms that neither patent nor copyright covers, left to the workings of the market—why not?  Patent has no independent creation doctrine for economically rational reasons—independent invention is common and allowing all would dissipate the benefits/destroy the incentives, while truly exact/substitutable independent creation isn’t; Ants and Bugs are not perfect substitutes.
Length of © didn’t really matter until we got the internet, which allowed out of print books to have a second life.  Low protectionism got a boost from online empirics.  Will we get another 20-year term extension before 2018? Empirical/instrumental approach has opportunities to influence policy now.
The wrong of copying: he doesn’t see the moral wrong as compelled speech, but as misrepresentation/misattribution.  He wants lots of copying, but he wants the credit for being right.
           Amy Kapczynski
Likes starting w/Feist to show that an economic perspective can’t explain what © is. 
Community/self-constituting nature of authorship helps explain the difference between compelling commercial speech (ok) and compelled political speech (not ok).  But corporations have all sorts of © ownership—here they’re given full rights, w/minor differences for WFH.  Does that have to go under Drassinower’s theory?  You need to explain 90% of © with a doctrinalist account; if you can’t explain most of it, then something else is at stake.
Likewise, book may not explain low required level of originality: does writing the shampoo narrative on the bottle embody the communication of a speaking being to another? 
Sprigman: tractability of a problem is important, but not the only thing. The best minds of their generations elaborated Ptolemaic astronomy, as we’ve wasted the best minds on constitutional law (hey!). 
Drassinower: explicitly metaphorical agenda.  Try to think about different metaphors for ©. It may be that compelled speech is very different in the First Amendment context, but the speech trope was helpful in talking about the public domain as something immanent/inherent in ©.
In terms of transfers: can see it as the granting of a right, though it’s true he hasn’t provided a theory of how that takes place.  Contract doesn’t have to mean transfers of property/commodities; can be licenses.
Thinks he has captured most of © in making his critique—an immanent critique: Feist attempts to carve out a specific domain for © from the sphere of value.  It’s very hard to have a non-negotiable public domain once you start calculating balance—just b/c we’re “winning” more user rights cases now doesn’t mean that there’s a solid foundation.
It’s true that lay concept of copying isn’t necessarily compelled speech—but it’s also not “you’re minimizing my welfare!”
Mark McKenna: Old unfair competition cases are rife with natural law concepts, but also make clear that property is not in the mark as such, but in the relation. You may be identifying property as a thingification, focused on the work as such, but the property interest could be defined in a similar way—not the work.  Is there anything lost by a sufficiently careful definition of the property interest—an interest in a use rather than an easement or something like that. 
Drassinower: committed to the idea that authors speak, they don’t own.  The proprietary language misdescribes the relation.  Performances/works of authorship/expression—they aren’t property concepts.  Yeats: Vehicles of meaning can’t be owned by someone other than the thinker.
Madison: there’s a slippage in the dialogue about legal categories of property/things, then the phenomenal character of what actually happens when author and audience engage in some way. Requires a lot of nuance to keep track of which level you’re operating at.
Samuelson: author’s perspective: this is mine is not just about this is my speech, for some authors.  Self-conception as autonomous person may require concept of ownership.
Sprigman: Peggy Radin would say that property isn’t an instrumentalist concept. 
Drassinower: I don’t think that the idea that a work is property is consistent with the idea that an identical copy, in some circumstances, is not property.  The act of producing the thing.
McKenna: TM is that way—one mark isn’t property in a completely different field/use.
Drassinower: speech discourse/property discourse are different, even as rights discourses. 
McKenna: property isn’t inevitably that: property law has been warped, though.  The history you’re working with is the same period I worked with in TM history.  So he doesn’t think a lot rides on the property distinction if you have a more nuanced sense of what property was that ws true of the courts that developed the TM concept. 
Drassinower: I can’t reject that easily the idea that property requires thingification. 
Silbey: First Amendment—there are so many parts of the 1A consistent w/Drassinower’s theory, especially early 1A doctrine before distortion by corporate speech/corporate personhood.  Speech as attribute of dignity and citizenship in public sphere as well as just political sphere. More to say about how the 1A imagines the public domain as primary/radically nonfungible.  As free speech maximalism has (supposedly) taken over the SCt, the public domain is shrinking!  Creators believe in right of property/radical nonfungibility of free speech: this is an inconsistency for them but really profoundly felt.  Low level of originality is an easy place to resolve the inconsistency, though—creators don’t think the shampoo bottle text should qualify.
Garnett: it’s totally ok to be a thing person (property is a thing) instead of a bundle person in property. Maybe you can’t just make up relational rights and call them property; maybe that doesn’t make sense of what’s going on.
Madison: there’s progressive pushback even on the thing side.  It’s possible to use thingification to achieve certain goals, but intuitively Drassinower doesn’t feel it.
Balganesh: To Kant, exclusion was critical, so it’s understandable from a Kantian.