Friday, July 31, 2015

No silver bullet for innovator in bullion market

Provident Precious Metals, LLC v. Northwest Territorial Mint, LLC, 2015 WL 4522923, No. 3:13–CV–02942 (N.D. Tex. July 27, 2015)
Interesting TM/copyright case that straddles the boundaries of so-called aesthetic and “utilitarian” functionality: is the accuracy of a replica product a matter of utilitarian or aesthetic functionality?  Does it make any difference?
Provident sued NWTM seeking a declaratory judgment of invalidity and non-infringement of NWTM’s alleged copyrights, trademarks, and trade dress rights; NWTM made the counterclaims you’d expect. Provident and NWTM make precious metals in the shape of famous types of ammunition (“replica bullets”). [Slackjawed wonder/gender analysis of this market omitted]
NWTM first conceived of the idea of using silver bullion to copy famous ammunition into sizes that would easily convert to weights in even troy ounces in 2008.  NWTM therefore measured sample ammunition with a digital caliper and micrometer, viewed pictures of sample bullets on the Internet, and consulted published industry standards for ammunition dimensions. NWTM also bought hundreds of different ammunition rounds, focusing on popular shapes and sizes, and sought to recreate bullets at volumes that approximated even weights. NWTM altered the dimensions of the original .45 round it chose to match the desired bullion weight, but still sought to appeal to a “gun person, or anyone buying bullion.” NWTM ultimately resorted to CAD software to make the code used by its manufacturing machines.
According to the designer, once the bullet was “machined,” it would be weighed, and if it “weigh[ed] right they wouldn’t adjust it to meet [the particular dimension].”  The weight dictated the form.  NWTM stamped the base of each bullet with a “head stamp” containing certain information, including the product’s metal designation (silver, or “Ag”), source (NWTM), weight, and purity. “The format of the head stamp intentionally resembled the format of head stamps on actual ammunition, and was intended to convey that the replica bullet ‘has intrinsical [sic] value,’ similar to money.”  NWTM sells its replica bullets in boxes or bags designed to “evoke the feeling of military surplus ammunition,” and to “best present the product to a military customer, to evoke the military design.”  It advertised its replica bullets, which went on sale in January 2013, as “virtually identical to their ammunition counterparts,” claiming for example that one bullet “faithfully duplicates the famed .50 BM so well-known to military personnel and weapon enthusiasts,” that its silver 7.62 NATO (.308) is a “near exact, non-firing replica,” and so on.

Provident claimed to have come up with the replica bullet idea independently of NWTM, but whatever.  It too used CAD and minor adjustments to achieve the desired weight.  Provident instructed its manufacturer to make the head stamp look as similar to live ammunition as possible, and to include the weight, purity, composition, and “PM,” Provident’s “mint mark.” Both parties used Tahoma font, with Provident contending that this was the font that looked closest to real ammunition.  Provident designed its packaging to “look like an ammo box,” and began selling copper replicas in 2013, with silver arriving in November.

NWTM filed three related trademark applications. In January 2013, it filed an ITU application for “SILVER BULLET BULLION,” for use in association with “[p]recious metals, namely, gold and silver bullion,” “BULLION” disclaimed.  This was published for opposition in June 2013, and Provident duly opposed; PTO proceedings have been suspended pending the outcome of this suit.  (B&B and ITUs really don’t fit together, do they?)
In August 2013, NWTM filed another ITU application for “BULLET BULLION,” for use in association with “[p]recious metals, namely gold and silver bullion.”  The PTO issued an office action refusing to register the mark as merely descriptive; the application has been suspended pending final disposition of a prior application filed by a third party, but the examiner rejected NWTM’s argument that the term wasn’t descriptive.
In March 2014, NWTM filed another “COPPER BULLET BULLION,” which Provident opposed after it was published for opposition.
In June 2014, NWTM filed five copyright applications for its five types of silver replica bullets, listing them as “sculptures.”  The Copyright Office denied registration because the new material did “not contain a sufficient amount of original authorship.”  
The court turned first to trademark.  Under governing precedent, “the concept of descriptiveness must be construed rather broadly.”  If imagination is required to connect the term to the product, it’s suggestive; if the term conveys information about the product, it’s descriptive.  Alternatively, courts ask “whether others in the same business would generally need the word to adequately describe their product or service.”
All three claimed word marks, SILVER BULLET BULLION (SBB), COPPER BULLET BULLION (CBB), and BULLET BULLION (BB), weredescriptive, because they immediately conveyed the “characteristics, qualities, and ingredients of NWTM’s replica bullets without requiring the consumer to make any mental leap.”  Bullion is a generic term for precious metals in mass/in bars or ingots.  Though copper isn’t conventionally understood as bullion, the price increases of the last few years, it was reasonable to define “bullion” broadly enough to include copper; Merriam-Webster defined “bullion” as “metal in the mass.”
NWTM argued that the terms were meaningless prior to the existence of its replica bullets, and consumers might have thought of images of bars or coins with bullet-related art on them.  Plus, the SBB and CBB marks had been published for opposition.  But publication for opposition entitles NWTM to no presumption (only actual registration does).  Second, the descriptiveness test isn’t applied in the abstract: it’s applied to these products, which are replica bullets.  The metal words describe the material of the replica, and “bullet” describes the shape.  In the alternative, competitors would “almost certainly” need to use the words in the marks to describe their products.  (I understand why the court didn’t go this far, but silver, copper, and bullet at least are generic.)  “There are simply a limited variety of descriptors that can be used to describe products of this sort, and granting NWTM the trademarks it seeks would effectively preclude potential competitors from marketing goods with the terms ‘bullet’ or ‘bullion.’ NWTM has simply not addressed how its competitors could describe their products without using the terms employed in NWTM’s SBB, CBB, and BB marks.”
NWTM couldn’t show secondary meaning. “The burden to establish secondary meaning is substantial and requires a high degree of proof.”  NWTM didn’t produce any evidence of secondary meaning, and, “in a borderline case where it is not at all obvious that a designation has been used as a mark, survey evidence may be necessary to prove trademark perception.”  NWTM argued that it lacked survey evidence “because NWTM’s customers tend to buy bullion as a hedge against what they see as the U.S. government’s failing monetary policy, and those same customers would be skeptical of a phone call inquiring about the manufacturer of the bullion products they own.”  Nonetheless, the burden of proof was still on NWTM.
NWTM also sought to protect its alleged trade dress, described as a bullion piece of silver or copper that:
(1) has a head stamp with a central circular groove (which suggests the primer cap for a real bullet), surrounded by the following information in a circular pattern towards the outer edge of the base of the bullion piece:
(a) metal designation such as “Ag” or “Cu”;
(b) indication of purity;
(c) a weight; and
(d) abbreviation for the company name;
(2) is sold in packaging that evokes a military or gun enthusiast feel by including:
(a) a caliber designation that is suggested by the general shape of the bullion piece (i.e., .45 ACP, 7.62 NATO (or .308), .50 BMG, or 20 MM, or 12 gauge for shotgun shell);
(b) a designation of “grains” associated with gun powder of the bullet, giving an indication of the power of the associated real bullet type; and
(c) is sold in boxes in rows that evoke the feeling of a real box of ammunition, or in a plastic bag container with the same information in (a) and (b); and
(3) while not being an exact copy or “replica” of a real bullet, has the shape of the bullion piece that evokes the feeling of such a bullet. [NB: if you have to describe your trade dress as evoking a feeling, you are probably in trouble.]
The head stamp was functional.  It identified the weight, composition, purity, and source of the bullion used to make the replica bullet, as is apparently standard practice for bullion products. NWTM argued that the information could be located anywhere on the bullion piece, and that the combination of elements—head stamp, shape, and packaging—had a consistent look that was inherently distinctive.  Nope. 
[T]he features that comprise the head stamp, and the head stamp considered as a whole, were designed to emulate the head stamp on actual ammunition, and therefore, are “essential to the use or purpose” and “affect the cost or quality” of the head stamp. NWTM sought to establish a link with military service members, veterans, and gun enthusiasts. Thus, the head stamp is functional because it emulates actual ammunition, which would give NWTM a non-reputation-related advantage over its competitors, particularly in appealing to military service members and gun enthusiasts, who would very likely perceive head stamps that did not resemble actual ammunition as being of lesser quality.
The head stamp was also not inherently distinctive.  (Although the court didn’t mention this, it can’t possibly be under Wal-Mart: it’s product design, not product packaging.)  Each of its features emulated the head stamp on actual ammunition—it used a standard font, and the circular groove on the base simulated the primer of actual ammunition. If it created a distinctive, consistent look, “that look is that of actual ammunition.” Putting the information elsewhere on the bullet “would undermine the theme and purpose of NWTM’s replica bullets—emulating actual ammunition.”  None of the elements were suggestive, arbitrary, or fanciful, either individually or taken together.

Packaging: NWTM’s packaging referenced the caliber of ammunition and the grain count, which made the packaging resemble, and “evoke[d] the feel of,” real ammunition boxes. This too was functional, because it served to remind consumers of an actual ammunition box, “and allowing it to do so with trade dress protection would put NWTM’s competitors at a significant non-reputation-related disadvantage.”  Even if the packaging were distinctive and nonfunctional, there would be no confusion, as a matter of law. Provident prominently featured its name on the outside of its boxes, and the text on its packaging was inscribed directly on the top of the boxes. NWTM’s boxes had text inscribed on a label on the outside cover that included many of the descriptive features included on the head stamp, with NWTM inconspicuously included on the bottom left corner of the label. There was no “meaningful” evidence supporting a likelihood of confusion other than the general similarity of shape.
Bullet shape: this was unprotectable as lacking distinctiveness.  Any differences between NWTM’s products and actual ammunition were imperceptible to actual consumers, and were also functional. Changes in dimension and weight were designed to make products that weighed in even troy ounces, in part in order to give them intrinsic value as a financial investment—“the weight dictated the form,” according to NWTM’s designer. 
NWTM argued that the combination of these functional, nondistinctive features were distinctive in their “total impression.”  The court wasn’t persuaded.  “[T]he overall impression of the elements, each of which has only trivial differences with the features of actual ammunition, serves to identify NWTM’s product as a bullet.”
Even if the trade dress were nonfunctional, NWTM failed to show secondary meaning. NWTM argued that it heavily promoted the new product; that it sold over 191,000 pieces of SBB and CBB through June 2014; that it had 100% of the market share for silver bullet bullion from January to October 2013; that Provident copied NWTM; that, according to NWTM’s CEO, at least four customers contacted him to ask whether Provident’s products were in fact manufactured by NWTM, and a customer expressed confusion on Provident’s Facebook page; and a video on the “Salivate Metal” YouTube channel featured a reviewer pondering whether the real manufacturer of Provident’s product was actually NWTM.
Even if all of this unambiguously weighed in NWTM’s favor, there was still no empirical evidence of secondary meaning.  There was no admissible consumer testimony or survey evidence; its customers’ posited unwillingness to be surveyed again didn’t relieve it from its burden, “particularly given that its customers constitute a unique demographic.”  (That’s one way to put it.)  The time of use weighed against NWTM—other cases have found 3½ years of exclusivity to be “relatively brief,” while NWTM had 10 months.  While the substantial amount of NWTM’s sales would weigh in its favor, that wasn’t enough.  NWTM claimed that its marketing was successful but provided no evidence on the amount it spent marketing the trade dress.
Turning to copyright:  “A mere reproduction of a work in a different medium does not constitute a sufficient variation to meet the originality threshold for copyright protection.” See L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 491 (2d Cir.1976).  NWTM argued that its replica bullets were original because they didn’t correspond to actual ammunition, sometimes varying in dimension by a quarter of an inch or more. NWTM argued that it was an innovator and that there was significant creative effort that went into making the product, including testing, trial and error, and the creation of numerous prototypes between 2008 and 2012.
No again.  Any differences between the replica bullets and actual ammunition were trivial or functional: (1) the composition, i.e., silver or copper (functional); (2) the dimensions (imperceptible and functional in order to make a bullet in even troy ounces); (3) the shape (functional); and (4) the weight (functional).  Even were that not so, merger would still apply: the expression of a bullet in bullion couldn’t be separated from the idea. “[T]he only way NWTM can express a .45 ACP design is to replicate it, and if NWTM were to make significant variations in its replica, the product would no longer be identifiable as a .45 ACP design.”
NWTM argued that Provident engaged in false advertising/unfair competition by claiming to have its own mint, allowing it to minimize manufacturing costs and pass on savings to consumers. But NWTM failed to timely identify false advertising as the foundation for its unfair competition claim, which it earlier said was based on trademark infringement.  Also, without copyright and trademark claims, there were no actionable unjust enrichment claims.

Thursday, July 30, 2015

Amicus supporting rehearing in MTM v. Amazon

IP Professors, with excellent assistance from Cathy Gellis.

Limiting remedies when a descriptive fair use defense fails

Anhing Corp. v. Thuan Phong Co., No. CV 13-05167, 2015 WL 4517846  (C.D. Cal. Jul. 24, 2015) 
This post-trial ruling covers a lot of detailed ground on descriptive fair use, unclean hands, and remedies.  Anhing successfully sued Thuan Phong for trademark infringement; the court denied Thuan Phong’s motions and granted a permanent injunction. [NB: the Westlaw version gets rid of most of the non-English orthography; I tried to fix that but my apologies for missing instances.] 
Anhing imports food and related products, and has a private label brand, “MỸ THO,” which has existed for thirty-five years. Here are two of its rice products:   Anhing registered MY-THO (no tilde) for rice sticks and rice vermicelli in 1986.  According to the registration, “MY–THO” has a dual meaning in Vietnamese of “beauty and longevity” and “pretty autumn.” At some point, Plaintiff also began selling rice noodles in packaging with the words “MỸ THO” accompanied by ®. 

Thuan Phong is a company that began and continues to operate in the city of Mỹ Tho, Vietnam.  It makes rice paper, sold under the TUFOCO logo. The package features BÁNH TRÁNG MỸ THO in red lettering across the top and three green bamboo trees.  In 2008, it registered the mark and design “BÁNH TRÁNG MỸ THO TUFOCO DAC BIET DE LAM GOI CUON VA CHA GIO VIET NAM BAMBOO TREE HIEU BA CAY TRE VIETNAMESE RICE PAPER” for rice paper.  In 2010, Thuan Phong introduced a rice noodle product with similar packaging.   

The parties began doing business together in 2004, when Thuan Phong agreed to make rice paper for Anhing’s White Elephant Brand private label.  In 2010, Anhing discovered Thuan Phong’s US sales of rice paper with BÁNH TRÁNG MỸ THO on the label, which Anhing considered confusingly similar to its BÁNH TRÁNG MỸ-THO rice paper, and Anhing had the same objections to Thuan Phong’s “BÁNH PHỞ MỸ THO” rice noodles, given Anhing’s “BÁNH PHỞ MỸ-THO” rice noodles.  In response to Anhing’s requests, Thuan Phong maintained that the terms weren’t used as marks, but rather as information about the geographic source of the products.  However, Thuan Phong agreed to discontinue these particular phrases and to sell under “BÁNH PHỞ SẢN XUẤT TẠI THᾺNH PHỞ MỸ THO” and “HỬ TIỀU SẢN XUẤT TẠI THᾺNH PHỞ MỸ THO.”  These phrases state more clearly in Vietnamese that their rice noodles are produced in the city of Mỹ Tho.  Anhing wasn’t satisfied, because the geographic designations would still appear at the top of Defendant’s packaging, with the words “MỸ THO” in bold red lettering and in the same font size as the rest of the words on the packaging. Thuan Phong refused to move the words “MỸ THO” to the bottom of its packaging, and it didn’t change its rice paper packaging or add similar prepositional phrases.     

Anhing sued for infringement of its registered “MY-THO” mark as well as for infringement of its unregistered MỸ-THO mark and for its unregistered trade dress.  A jury found willful infringement of the registered mark and lack of fair use.  However, the jury found that Anhing didn’t prove ownership of a valid mark in “MỸ-THO” (with tilde) or likely confusion with respect to its trade dress.  The equitable issues remaining for the court were Thuan Phong’s affirmative defenses of laches and unclean hands, a counterclaim under the UCL, and Anhing’s request for a permanent injunction. Thuan Phong also sought judgment as a matter of law.   
The court rejected Thuan Phong’s laches defense based on Anhing’s delay in filing suit. Thuan Phong argued that Anhing knew about the infringement as early as 2004, when one of its representatives visited Thuan Phong’s factory, but failed to file suit until July 2013.  Laches doesn’t bar a suit against a deliberate infringer, where the public’s right not to be confused is paramount and where the infringer’s hands are unclean. Given the jury findings and instructions, its finding of “willful use” amounted to a finding of willful infringement.  The jury was instructed that it should award profits if it found willful infringement and skip an accounting otherwise, and it stated $8690.52 as Thuan Phong’s profits attributable to infringement.  Separately, Thuan Phong failed to show prejudice either in its ability to bring evidence forward or in its reliance on Anhing’s inaction to grow its business, given its position that it wasn’t using MỸ THO as a mark but as a statement of information—any delay couldn’t therefore have injured its brand or reputation.
The court further rejected Thuan Phong’s unclean hands defense based on (1) Anhing’s use of ® on rice products not disclosed in its registration for the “MY THO” trademark and next to the unregistered “MỸ-THO” mark; (2) geographic misleadingness; and (3) inequitable conduct in securing its registration. Inequitable conduct must relate to the use or acquisition of the plaintiff’s claimed rights to justify the defense, but need not be illegal or criminal.
The wrongful use of ® disturbed the court; some evidence suggested that the misuse was not inadvertent.  But it still was not sufficiently related to the subject matter of Anhing’s claims based on “MY–THO,” especially given the Ninth Circuit’s focus on balancing the parties’ willfulness and harms to each other.  (Given that the marks are so similar, it seems likely that they’d qualify for tacking if Anhing went ahead and tried to register MỸ-THO.)

Geographic deceptiveness: If the jury found that MỸ THO is confusingly similar to MỸ-THO, Thuan Phong argued, Anhing shouldn’t be allowed to use the mark, because Mỹ Tho is a city.  But the jury didn’t find confusing similarity in the abstract; it found that Thuan Phong’s use of MỸ THO as a trademark was confusingly similar to Anhing’s mark, which didn’t mean that MỸ-THO was misleading or deceptive as to geographic source.  Also, this too was unrelated to Anhing’s acquisition or use of the right it claimed.  (Hmm.  Neither of these reasons seems right to me.  Geographic terms can be used as marks, so there’s no incompatibility between geographic indication and source indication; indeed that’s why we have a descriptive fair use doctrine—to preserve others’ rights when a descriptive term has successfully been used as a mark.  And if the term is geographically deceptive, then Anhing’s claim against a producer who is in fact from the location is fundamentally related to its deceptive appropriation of a geographic term (or a confusingly similar version of the term, since I can’t see why the confusion wouldn’t go both ways).)  The court says that the right at issue is “MY–THO,” and so whether MỸ-THO is understood as a geographical reference is irrelevant, and that the connection between the terms is too tenuous to support an unclean hands defense.  But the connection was strong enough to make the terms confusing!
The court further found insufficient evidence of geographic deceptiveness. Though all of Anhing’s products were made in Thailand, there was conflicting evidence over whether the phrases displayed on its packaging was a geographic reference or pure trademark use.  Thuan Phong didn’t offer persuasive evidence to show that the mark’s “primary significance” was to refer to the city of Mỹ Tho, or any evidence of actual consumer confusion.   The products were all labeled as having been produced in Thailand.   
Unsurprisingly, Anhing’s failure to disclose the existence of the city when it registered its mark also failed to constitute sufficient inequitable conduct to justify an unclean hands defense. There was no evidence of Anhing’s knowledge of the city, understanding that it should disclose the city’s existence, or intent to deceive the PTO.
There was also no basis for Thuan Phong’s UCL counterclaim based on the misuse of ® because there was no evidence that such use caused Thuan Phong to suffer any damages. Nor did a claim based on alleged misrepresentation of source succeed—the jury could reasonably have concluded that MY-THO didn’t stand for a geographic location in most consumers’ minds.
The court also rejected Thuan Phong’s motion for judgment as a matter of law, focused mostly on its descriptive fair use defense.  Though the jury’s finding of likely confusion didn’t preclude the fair use defense under KP Permanent, the evidence supported a finding of use as a mark.  Even after Thuan Phong’s changes, the words still appeared prominently at the top and in bold red lettering, albeit in the same font and color as other words indicating the type of product (rice noodles) and the prepositions indicating geographic source.  “The jury could have found Defendant’s refusal to move the reference to ‘MỸ THO’ to the bottom or back of its packaging, or to reduce the size of the lettering, as evidence Defendant did not take sufficient precautionary measures despite its knowledge of potential infringement,” and likewise the jury could have found that its failure to change the wording on its rice paper packaging indicted an intent to attract public attention. The jury could have found that Thuan Phong displayed MỸ THO more prominently than other design features, such as its blue “TUFOCO” logo and the three green bamboo trees. 
Likewise, the jury could have found a lack of good faith, given Thuan Phong’s conduct after Anhing sent its C&D.  Thuan Phong expressly acknowledged a likelihood of confusion and agreed to modify the wording on its packaging to more clearly state its products were produced in Mỹ Tho, but refused to move this “information statement” to a less prominent place on its packaging. That refusal, combined with the lack of evidence that Thuan Phong consulted legal counsel, was sufficient to support a finding of lack of good faith.  (Wow!)  Finally, the jury was entitled to find that the use was not purely descriptive, because of testimony that Mỹ Tho isn’t a famous city and consumers don’t associate the words with a geographic place. “[T]he evidence is consistent with a finding that consumers do not interpret the words to refer to Mỹ Tho city, and that Defendant did not use the words in a trademark sense.”

As to willfulness, though there was evidence that Thuan Phong independently designed its rice paper packaging before the parties began doing business together, and chose to use “MỸ THO” not to refer to competing products but to inform consumers where its products were produced, that didn’t negate willful infringement given its continued use of the term after it became aware of the MY-THO mark. Nor did Thuan Phong’s own registration, from 2008, preclude a finding of willfulness. Though the registration was evidence of lack of willfulness, it couldn’t be viewed in isolation, and was undermined by Thuan Phong’s own statements in response to the C&D:
The words “BÁNH PHỞ MỸ THO” on the packing of Anhing Corporation and on the packing of Thuan Phong Company are likely to cause confusion in the marketplace. Thuan Phong [C]ompany does not want to use alike name of Anhing’s rice noodle (sic ). We will correct the name of our product on packing clearly in order that it will be quite different to the name of product of Anhing Corporation (sic).
“Use of an infringing mark, in the face of warnings about potential infringement, is strong evidence of willful infringement.” Likewise, failure to consult trademark counsel where such consultation would be reasonable supported a finding of willfulness.
Similarly, the evidence supported a finding of likely confusion, despite what the defendant characterized as minimal evidence of actual confusion.
The jury also awarded $10,000 in actual damages, which was supported by reasonable inferences given Anhing’s evidence that experienced a decline in sales after Thuan Phong entered the domestic marketplace, selling apparently identical/confusing staple products at a cheaper price; Anhing’s other brands didn’t suffer a decrease in sales at the same time.  The amount awarded was about 10% of Anhing’s claimed losses, making it a reasonable inference from the evidence.
Anhing also secured a permanent injunction. “Evidence of intangible injury, such as a loss of customers or damage to a party’s goodwill, can constitute irreparable harm. Evidence of a loss of control over one’s business reputation may also suffice.”  The trial evidence showed the necessary loss of control/harm, particularly because of testimony that Thuan Phong’s products were of inferior quality.  “That the jury found a likelihood of confusion substantiates this conclusion and further supports a finding of irreparable injury.”  (In other words: likely confusion is irreparable injury, so eBay doesn’t matter.) 
Irreparable injury meant legal remedies were inadequate.  “The evidentiary burden Plaintiff faced in establishing its actual damages at trial also favors injunctive relief [even though Anhing submitted evidence on actual damages and the jury made a finding]. Perhaps most important, however, is the risk that Defendant will continue to engage in infringing conduct.”
The balance of hardships favored Anhing; Thuan Phong argued that it would be harmed by being unable to adequately convey the geographic source of its products, but the fair use finding made this argument fail, though it affected the appropriate scope of an injunction. The public interest likewise favored a tailored injunction preventing confusion while allowing fair use.
Anhing argued that Thuan Phong should be limited to using the phrase “Mỹ Tho Industrial Zone” on the back of its packaging, in black ink and no more than 4 centimeters in length and 0.2 centimeters in height. There was no evidentiary basis for requiring Mỹ Tho “Industrial Zone”; the parties didn’t show that consumers would more readily recognize “Mỹ Tho Industrial Zone” as an indication of geographic source than simply “Mỹ Tho.” Nor was there an evidentiary basis for the requirement the source statement be in black ink. Thuan Phong’s packages use red, blue, green, and white ink; black ink is only used on the back, to convey information not included in its trade dress, such as nutrition facts, ingredients, and directions for use. Because the jury found no likely trade dress confusion, requiring black ink would be an unfair limitation on Thuan Phong’s trade dress rights. A ban on putting a source statement on the front of the products was also overly burdensome; some of Anhing’s own products included a statement of geographic source on the front. The jury’s confusion finding didn’t mean that any and all uses of Mỹ Tho on the front of packaging would necessarily infringe.  The same reasoning led the court to reject an absolute size constraint. “Certainly, the jury’s finding of willful infringement requires a change to Defendant’s current use of ‘MỸ THO.’ But it does not require the wholesale relegation of any and all reference to the words to an entirely inconspicuous location.”  The court allowed a six-month sell-off period, given that Anhing hadn’t shown that six more months of use would cause a significantly increased risk of harm.
Thus, Thuan Phong was enjoined from using “Mỹ Tho” in a manner likely to cause confusion; use in the same/similar manner as existing packages would be likely to cause confusion.  It had to immediately cease importing infringing products to the US.  It would be permitted to use Mỹ Tho as a location designator: “The text of the location designation shall state, in Vietnamese, ‘Product made in Mỹ Tho, Vietnam’ or ‘Produced in Mỹ Tho,Vietnam,’” and it couldn’t be bigger than the letters TUFOCO in Thuan Phong’s logo.  If on the front of the package, it couldn’t be at the top, above the “TUFOCO” logo and three bamboo trees. Thuan Phong was also ordered to immediately notify its distributors and customers in writing that it wasn’t associated with, affiliated with, sponsored by, or otherwise related to Anhing, including a copy of the final permanent injunction, and it had to immediately notify its wholesalers in writing that they were required to discontinue sales of the infringing products.     

Transformative use of the day, Lululemon edition

I can't wait to carry this bag around and watch the double-takes.  (Would also fit well on Welcome to Night Vale.)

Somehow the Coke bottle survived this dilutive free riding

1962 Doyle Dane Bernbach ad for the VW Beetle:

Headline: 2 shapes known the world over.

Text: Nobody really notices Coke bottles or Volkswagens any more. They’re so well known, they blend in with the scenery…. (The only reason you can’t buy a VW at the North Pole is that the Volkswagen people won’t sell you one. There’s no VW service around the corner.) We hear that it’s possible to buy yourself a Coke at the North Pole, though. Which makes us suspect there’s only one thing that can get through ahead of a Volkswagen. A Coke truck.

Wednesday, July 29, 2015

4th Circuit denies rehearing in In re GNC


If this ruling sticks and is actually applied in Lanham Act cases (something of which I am uncertain), then the resulting circuit split would probably justify Supreme Court review, given the Court's newfound interest in 43(a)(1)(B).

Friday, July 24, 2015

ISHTIP at Penn, part 9

Session 6 | Josh Sarnoff (DePaul University), Moderator
In Search of a Trade Mark: Search practices and Bureaucratic Poetry
Jose Bellido and Hyo Yoon Kang (University of Kent, UK)
Commentator | Amanda Scardamaglia (Swinburne Law School)
Enhanced searching: bureaucratic poetry—early manual searches. TM office was tasked with organizing words and devices for the first time: a new commodity of commercial information in signs and words and the ability to find them on the register.  Needed a system of classification to register marks; classifications changed over time to reflect commercial change.  Patent system classified according to subject matter; a different endeavor.
TM clerk was very different from patent counterparts—technical expertise v. experts in delicate art of distinguishing and classifying signs and words.  TM agent emerged, esp. after 1883 amendments opening registration for invented words, leading to significant increase in number of applications. Agents were skilled in navigating and searching the register.  Profession attempted to limit access to registration data, as patent agents had before them; closing of profession was linked to increasing openness of TM registers.  Index clerks and TM abstractors: index w/range of general marks; divisional index of devices arranged according to things like birds, buildings, and beasts; index arranged alphabetically by prefixes and terminal endings/suffixes—third index was the most important. 
Significant impact on development of TM law—led to deconstruction of words and assisted w/creating new marks by creating comparisons.  Deconstruction of words was evident in TM infringement cases as well, which focused on comparing sequences of letters in the same way.  Indexes were strategic—could find out about what competitors were doing b/c they’d register preemptively. Initially available only to agents but eventually opened to public, though agents were still powerful actors who specialized in searching the register.
Index cards and punched cards; final phase of computerized searching and privatization of search services—entrusted to private services, with a direct and immediate impact on search.  Computerization affected registrations: TMs were redesigned for mechanical purposes; transformed the way search happened—algorithms made it possible to search across subjects & geography quickly. Removed obstacles to manual search.  Transformed registry from visual markers of ownership to a metalevel database.
Discussion points: evidence of how the processes impacted the legislation itself?  Registries internationally were introduced around the same time.  What indexes if any were used at that time? Did that impact others’ indexes?  Did others’ indexes affect Britain’s? What were the tradeoffs in moving from mechanical to digital?  Paper says openness increased, but was the info the same?
Bellido: we wanted to explore bureaucratic property. Were surprised that first TM clerks in UK were A.E. Housman, Griffin, and other poets and antiquaries.  Bureaucratic poetry: indexing techniques have something to say about how TMs were conceived and developed.
Kang: TM is more complicated than patent b/c of two different forms of numbering—application number, then publication/registration. Can be complicated to retrieve full info.  Shows how unstable the nature of property is in legal practice.
Bellido: the more open the register was, the more experts could claim to be able to navigate this massive endeavor.  Legal expertise is founded in the management of retrieval tools that may look more technical/less interesting to legal scholars, but it’s everyday routine that constitutes the subjectivity of the TM expert.
Kang: relates to issue of legal agency: what does TM law actually do?
Bellido: registration practice can make the TM a thing/object of law/property even before there is a product in the market.
Kang: complicate picture of TM as consumer-driven. 
Bellido: registering invented words: impact on the legal profession—agents could then sell the possibility of providing new words to companies. We haven’t touched colonial indexing.   
You sometimes see trolling behavior around descriptive words/changing descriptive words around to try to make them registrable.  Or an agent could identify marks that were not quite as good but were usable until the register relaxed its standards.
The Modern Expansion of Trademark Rights, and How One Forgotten Treaty Made It Possible
Christine Haight Farley (American University Washington)
Commentator | Dan Hunter (Swinburne Law School)
Big claim: a forgotten treaty did a lot more than we thought it did in creating TM rights.  Hunter is not sure that this treaty made expansion of rights possible.
Paper is a detective story.  Interamerican Convention on Trademark and Commercial Protection (IACTCP) (1929).  TM comes from one of two or maybe three/4 foundations: passing off, concerns over confusion, search costs.  Does this convention give us new insights into the foundations of TM law?  Offers unfair competition as a distinct foundation.  Can we tell that the convention is a contributor to the modern day understanding?  Even if we could, so what?  The lawyer’s question: what does that tell us? 
Why was the convention ignored?  The architect of both IACTCP and the modern Lanham Act (1946) was one man, Edward S. Rogers, founder of first specialized TM firm and lover of unfair competition. 
Significance of Inter-American TM Convention (1929)—self-executing, and yet completely forgotten.  Modest number of cases in TTAB and courts, startlingly small # of cases.  Yet this is law.  Why forgotten?  Or has it been?  Are Ps all just dumb?  That seems unlikely.  Erie says there’s no general federal common law. Then there’s the Lanham Act §43(a), but also and especially 44(h) and (i).  The Lanham Act is, for all intents and purposes, federal common law, and the paper suggests that 44(h) and (i) need to be more talked about, b/c §44 is generally about recognizing TMs from outside the US; in fact Rogers included them largely to include unfair competition w/in the American system.
Questions: is the paper trying to get us to apply the Convention?  Are you arguing that unfair competition is foundational to the Lanham Act? Just b/c it’s in the Lanham Act doesn’t make it foundational.
Farley: A treaty still in force about TM—we don’t have many of those in the US.  Modern parallels were interesting about how the US makes the law of other countries and then has a strategy of making US law also through that undemocratic process.  Beyond that, this text is so interesting b/c of its novelties and timing, as well as the characters involved.  Inordinate influence of a couple of people has no modern analogue.  We can inadvertently make a mistake by privileging moments of development of IP; IP has not always had pride of place in law, society, or commerce.  Especially in TM law: early 20th c., it was a teeny field. TMs weren’t as valuable as they are; there was no TM bar, certainly not in Latin America, just a handful of people in US.  These particular people could have outsized influence.
The ground was shifting under their feet b/c the nature of marketing was changing, markets were changing, global markets were changing.  Amorphousness of IP and particularly TM.  Doing this history, evident how unsettled and indeterminate the foundations of TM are.  The story that we have an ancient idea of unfair competition, within it a new thing called TM law, isn’t right. These were simultaneously being developed and playing off one another.  Early development was a mess.  These guys are making up new law in this treaty.  Provisions don’t appear anywhere else.  Rights that suited US businesses at that moment for expansion into Latin America.
Then the Lanham Act comes along, and federal common law is pulled out.  Given the fact of the treaty, and their overlapping author, and that Rogers argues the first TM Supreme Court case after Erie, there was a unique opportunity to write a new chapter in TM as clean, settled, organized.  And we don’t get that. We get slivers of clarity, and then this space/haze around the rights. We focus on §43(a) as a site of expansion and a site for unfair competition, but these sections in 44 are what the drafters intended.
US corporations exercise their rights under the treaty in Latin America all the time; drafters expected that b/c of US dominance.  Lanham Act makes vague reference to the treaty (was explicit reference in first draft); Rogers argued that the treaty was self-executing and the SCt agreed.  Conclusion: give those rights to go after unfair competition to US citizens as well.  We didn’t get that. §43(a) was reaction of patent bar trying to put the brakes on what Rogers was trying to do in §44.  Rogers deals with this by taking §43(a), designed as substitute for 44, in the law too. 
RT: Another suspect: What is unfair competition that isn’t infringement?  Trade secret misappropriation was a possibility bruited about in the 1940s; maybe also antitrust violations.  But that kind of understanding seems impossible to recover now, especially given other laws—no court is going to find that there’s been a federal trade secret law for 70 years.  Trademark infringement-like activities that aren’t infringement but are still unfair competition?  US courts have no current understanding of what that gap might be: collapse b/t protection and registrability, absence of a passing off category in US law.
A: Many law review articles written at the time clearly stated that many things were under the umbrella of unfair competition but were nowhere collected; some understanding that it would be collected in Lanham Act: trade secret, tortious interference w/ business relations, antitrust.  Not so much interested in those things, but is interested in what the haze might be surrounding the concept.  (What might a clever P’s lawyer argue?)
Possible to bring something like a TM case w/o a possibility of confusion.  Rogers brought a case where there were nonproximate goods, a different name but phonetically similar, and no bad faith.  That was meant to be one of the §44 cases—not really a theory of confusing the public, but unfettered right to expand business.  Haze of rights as buffer around TM rights.  Rogers won, but we only talk about Frank Schecter, who lost; Rogers won by making subtle moves.
Q: compare to avoision in tax law: indeterminancy of whether someone is engaging in avoidance (ok) and evasion (not ok).  Infinite ingenuity of malefactors to get around intent of law w/o letter of law.
Madison: concepts in the law having agency v. the agency of individual humans like Rogers. Rhetorical constructs enabled by disciplinary angles. 
Q: role of timing?
A: may have been related to the Depression; also to Erie and resulting uncertainty for TM lawyers.  Treaty was a bit premature for the Latin American market.  Responding to a Europe in which the US lacked a big place, anticipating Americas as a market to dominate. WWII meant that vision didn’t come about as anticipated.  Not that many businesses were demanding these kinds of protections; just on the cusp.
Sarnoff: if the idea is to remember, do you expand rights in unpleasant ways?  Is this a comedy and not a mystery—a tale of laughter and forgetting?

ISHTIP at Penn, part 8

Methodology: What should histories and theories of IP be doing? What role should interdisciplinarity play? | Martha Woodmansee (Case Western Reserve University), Moderator
Lionel Bently (Cambridge)
We tolerated the use of the term “IP” to discuss the field, though we were aware of problems with it—not used in 19th c.; often used for law, but we wanted to talk about other regimes; we were conscious of the dangers of fetishization of law or its categories.  Methodological assumptions revealed in ISHTIP’s website: sometimes we post the best papers from each workshop as examples of good work: methodologically sound, productive, insightful.  Also a bibliography for people in the field. Also themes for conferences show concerns: a set of methodological and disciplinary assumptions: themes like representation of the intangible; IP as cultural technology; openness.
Work that disrupts evolutionary stories that make the present seem inevitable and provides ways to think how it would be otherwise; work that exposes ways of thinking we don’t readily see in our own practices: e.g., use of visual and other forms of representation of intangible. Historical work allows you to see things that are difficult to see in present environment.
Kathy Bowrey (New South Wales)
Law is an imperialist discipline: creates its own kinds of truths through relation to power and authority.  Claims about superiority of private property, freedom of contract, freedom of expression. Law & humanities have worked to deconstruct some of those normative elements.  Patent scholarship has always been more empirical, but history has occurred w/o much engagement w/legal scholars until recently. New empirics underlying © scholarship and to a lesser extent design and TMs.  Political ambition: contest claims to naturalness of power and authority.
Law claims for itself the authority to define/decide what the law is.  Interdisciplinary work challenges that authority. Cultural studies, sociology, anthropology of professions.  What it is we mean by law: fight ongoing reproduction of this imperialism. Turn to archival work is really interesting in this light.  Critical lawyers need to help historians understand complexity of law as subject—we shorthand it and are reluctant to unpack.
Adrian Johns (University of Chicago)
Identifying moments of change can be difficult in the moment, as Madison says.  So what can we imagine for succeeding in 25 years? Interdisciplinarity comes with an association w/virtue, seemingly b/c in the mid 20th century it developed as an alternative to entrenched and intellectually constraining disciplines.  Ways of reconstituting a liberal democratic order in the face of overweening claims by behaviorism/the very idea of disciplines.  Risk of creating authoritarian personality through too much immersion in rules of disciplines.  Cognitive science took off as a way to be disciplinary but also free by restoring mind to the center.  When interdisciplinarity worked, it worked by making compromises: constricted what the disciplines were between which you were inter.  Institutionally embedded in gender studies/science studies.  Brought in people from relatively closely aligned fields—anthropology, sociology. The closer the disciplines are, the more they argued, and that was productive.
ISHTIP needed to be interprofessional: scientists, filmmakers, musicians, composers, lawyers, and others. But that’s completely impossible.  Playing the long game: there are whole areas to be understood that had been systematically missed.  One of the most important: the realm of technologies, practices, corporate endeavor between the legal world and the everyday creative life. 
Madison: How would one define success in this context? No need to have a single definition. Political ambitions are embedded in Johns’ narrative; intellectual, organizational, professional for individuals.  Academics often consider the work itself evidence of its own impact.  Networking is not a great mode of political organizing.
Woodmansee: change consciousness; some other organization will become the activist avant-garde.
Madison: it doesn’t have to be that way, rigid distinction b/t research and activism—crossover is possible rather than hoping for the rest of the world to listen critically.
Woodmansee: ISHTIP was founded to be a scholarly society which is not activist, unlike CC. Those things were going on at the same time. 
Johns: ISHTIP ought to occupy not the space of a policymaking body, but venue of critical understanding to change consciousness in the end, and that’s success enough.  ISHTIP participants will be working creatively and politically, but the organization itself is not a failure if it doesn’t do that.
Bowrey: having director from humanities and one from law: our aspiration is to have equality, though nonlawyers are regularly outnumbered by lawyers. Want to be less Anglo, but higher education is under attack.  Participate/recruit fellow travelers.
Jaszi: Lawyers are likely to be with us for the foreseeable future.  Consider what lawyers interested but perhaps not skilled in other disciplines could do to become part of this discussion.  We operate in a very narrow channel; most of what we do is about the critique of doctrine. For people who have come up in that tradition, what methodologies are available? One possibility: learn to do other things—become better empiricists, ethnographers, etc.  Another: encourage project based collaboration.  ISHTIP as a space through which lawyers who know there’s more but are clueless about how to get there could identify collaborators and work actively on projects across disciplines.  Also: the kind of work that was characteristic across a wide range of legal disciplines in the first flowering of Critical Legal Studies: working w/doctrine, the thing we know how to do, but w/specific emphasis not on finding its coherence as we are taught to do in law school and not to propose the way in which doctrine can be made more coherent. But look more attentively for incoherence.  A great deal to learn from that.
Johns: Incoherence of a concept is not a fatal accusation in his field.
Q: Note the difference between expectations in fields: law = publish law review articles, especially early in career; other fields = publish in other journals and also books.  How do we deal w/that?

ISHTIP at Penn, Part 7

Session 5 | Martin Fredriksson (Linköping University, Sweden), Moderator
Open Source Intelligence: Counterinsurgency, State Secrets, and Small Novels
Joseph Slaughter (Columbia)
Commentator | Catherine Bond (University of New South Wales)
Operation of IP in the context of torture, undertaken as part of the war on terror.  Stories in which someone’s blood leaks through the lines.  Justification for torture in logics of IP?   Torture forces person to narrate—victim is compelled to become an author, and then ownership of their words is attributed to them in order to be subjected to a penalty imposed by national security law.  Law: but the fixation, if it exists at all, exists under the authority of the state—so maybe not an author in © law.
Documents released as heavily redacted.  Jenny Holzer reproduced the documents in silkscreen. The Redaction Paintings are subject to ©, so you can reproduce the redacted images but not the Holzer images—a perverse use of ©; words generated by torture victim are in the public domain.  Images themselves do have some originality added by Holzer.
Counterinsurgency manual: released by gov’t as open source, but gov’t appropriated a number of sources w/o attribution and credit.  Use of narrative w/in the manual itself, and how narratives can be adopted in counterinsurgency; also issues of academic appropriation/plagiarism. What’s taken is probably not substantial, so the issue is not © but plagiarism/control of the narrative.
In Australia, a Guantanamo Bay detainee sought to tell his story after release. Institutional response under nat’l security legislation—in the US we said that was a matter of national security.  David Hicks: arrested in Afghanistan and held for 6 years. Sleep deprived, medicated w/o consent, sexually assaulted, and beaten while conscious and unconscious. In 2007 pled guilty to material support for terrorism & returned to Australia where he served time in prison before being released. Subject to control order by federal police that expired in 2008; in 2010 Random House published his autobiography, which Austl. prosecutors then sought to suppress. Didn’t claim national security, but proceeded in NSW against him under the Proceeds of Crimes Act to stop him from benefiting from the profits of the book.  Torture victim seeks to reclaim the narrative using © as a means to do that/rebuild life by telling their story. State doesn’t seek to disrupt the edifice of ownership but use a law designed to stop drug dealers (well, that does seem like disrupting the edifice of ownership).  Proceedings proved difficult b/c the plea may not have been lawful. In 2012 the prosecutor dropped the case claiming “new evidence” which was not disclosed.
Cuts, seams, and stitches b/t traditional IP and national security, both of which claim property rights over some of the same texts. Conceptual baggace of IP and national security is not peculiar to the US. In Australia, the documents Holzer used would be protected by Crown copyright, so Holzer’s redaction paintings wouldn’t be allowed unless limited exceptions applied for 50 years. Does that matter to the paper’s story of IP?
Slaughter: Torture memos—academic sources repurposed into guidance for how to torture, but then the bibliography of openly available work was redacted. Novel from Guatemala—incorporated counterinsurgency manual from US that circulated freely in Central America.  Manual instructs military that counterinsurgency is all about narrative: narrative construct of truth, war, etc.  Military moves all military tactics into other manuals; the counterinsurgency manual is full of narrative strategies (and also full of plagiarism). Presumptive classification: gov’t claimed that people who were tortured therefore knew the sources and methods of CIA operation and could not discuss their own torture or they’d reveal CIA secrets.
When you tell scholars who don’t believe in authorial intent about an instance of plagiarism, those very scholars go straight to “what were they thinking?”  Humanistic desires for narrative at moments of crisis.
David Hicks: There are published US diaries that are published with redactions.  Lawyers are making a point about what you can’t say even in your own diary.  Jurisdiction of course makes a difference. 
Q: Manuals seem to be uncopyrightable in the US.  But able to be copyrighted int’lly.  Has the US tried to get national treatment outside the US?  How does lack of © affect their creation? 
A: classified materials are commonly designated “no foreign gov’ts” even when declassified.  Haven’t thought about that Q outside the US. Maybe in a pre-internet era there could be a legal strategy, but no examples now.
RT: (1) Common-law ©/fixation issues—if it’s not under the victim’s authority then there’s still a common-law © that arises.  Cf. Garcia v. Google: story of the dupe/vulnerable victim, another person connected to the war on terror who’s put at risk by being fooled into creating a work.  If it’s still the victim’s narrative—what counts as authority of the author?  (2) Go beyond © to IP? Orphan Black and “we’re property.” Large sf literature on owning people: contrast to patent discourses where it is almost taken for granted that you can’t own a person—v. prisoner as the slave of the state.  The prisoner creates a point of pressure for the liberal patent/non-ownership of persons story.
A: gov’t did claim to own these people—but the defense distinction was that they couldn’t own these people’s memories and therefore they could testify about torture/complain about torture. Torture isn’t just forced confession, but forced confession that must be redescribed some way as a voluntary act of will, according to the logic of torture. Thus the fixation is considered by the gov’t to be under the victim’s authority.
Q: consider the exclusionary rule as a point of contrast.
A: Gov’t can also block introduction of testimony on nat’l security grounds.
Q: is the liberal humanist subject at the core of your project? If the state is the referent for power plays, who is power exercised on?  Right to have stories told is not just state exercising power, but a way to exercise power against the state—to refuse to tell indigenous knowledge, for example. 
A: strategic revival by defense lawyers of liberal individual who has rights to privacy/narrate when those are clearly not the circumstances under which they’re being prosecuted.  Your use of “right” may be the liberal subject sneaking back in; the lawyers all use rights talk b/c there’s almost no other language to deal with this. 
From Intellectual Property to Openness? On the Potentials of Literature in Printed Books and in Digital Media
Thomas Ernst (University of Duisburg-Essen, Germany)
Commentator | Michael Madison (University of Pittsburgh)
German discourses about literary authorship in the digital world, destabilizing German © law. What is a work? The finished and final output of an author, distinguished from the author and from the recipient/reader. Different theories define and weigh the relations between these three differently.  1800: era of first implementation of © law in Germany. 2000: digital media changes started to have sustained effects on literary production, distribution, and reception.
1765-1790: age of reprints.  Since then, protection of IP established. German law focuses on protection of individual acts of origination.  Personal mental creations = works. Fichte: the difference b/t author and reader, and book as a container of ideas. 
2000: nonlinearity, interactivity: allow experimentation w/ new forms of production, distribution, and reception. Undermines German ideas, including the idea of the book as the salable container. Idea of clear gap b/t author and reader also disappears: the “prosumer.” Changes the relationship to the market: active participation in designing the products they want.
Phenomena include (1) “Twitterature”—short stories that fit on Twitter.  Hybrid text: the hashtag includes both the stories and the comments of readers/interactions w/author—new space of interaction; lose the boundaries of the work.  Literature as communication network.  (2) Crowdfunding.  (3) Fan fiction: largest German archive distinguishes between fan fiction and “free works”/Freie Arbeiten.  Community: you write the text to be commented on.  Author-readership.  (4) Social reading.  Reading groups online.  Can pay a little more to get a digital version with comments by certain other people.
2010: Axolotl Roadkill: author was hailed as a wunderkind, until a plagiarism scandal erupted—unattributed quotations from blogs.  Internet, plagiarism, etc. are terms put in contrast w/ authorship and originality. But the text is part of a digital remix culture, not part of an established literary culture. Text tells story of 16-year-old girl’s attempts to give her life meaning through excessive behavior/drinking/drugs/sex. Cites Kathy Acker, known for her intertextuality; chapter titles are quotes from popular films etc. Character says: my work and my theft become authentic as soon as something touches my soul. It doesn’t matter where I get things from, it’s important where I take them—slightly older male who inspires the narrator. Metafictional moment: mixed work becomes authentic if assembled persuasively: declares its status clearly.
Some reactions were downright furious.  4th edition, resolved “legal issues,” book appeared w/ appendix: sources & acknowledgements, listing 20 references to a blog; 22 unmarked quotations of other authors, even private correspondence. Transforms them into references—from literary work to scholarly work.  This interferes w/literary poetics.
Madison: The ideas of authorship, work, reader even historically has had more fluid meanings—Adrian Johns.  Swing of the pendulum rather than something completely new.  Political framings of the question can help as well as conceptual.
Paper relies heavily on the sense of German identity, and book culture contributing substantially to that sense.  Very interesting observation worth pursuing in greater depth: to what extent are Fichte’s concepts, and the debate even today, the product of conditions in “Germany”—cultural and national identity.

Hypertext was made controversial in © about 20 years ago, so there was a flurry of anxiety about the meaning for © protection, infringement, joint authorship, contributory liability.  In general that anxiety has passed. These Qs still have some problematics but people are no longer freaking out or wondering what to make of the fundamental structure of © given the internet—more normal science these days.
Abstract/general question of aesthetics of literature may be less interesting than pragmatics of these in particular institutional contexts. The idea of a stable artifact is still meaningful to some authors, communities of readers, institutions represented in the marketplace/culture. Other places, stability is contested or abandoned entirely.  Which are the circumstances in each category?
Everything is always changing: McLuhan said the same thing—changes are not necessarily as discontinuous as they appear to people in the moment.
Axolotl Roadkill: (1) extremely rambunctious appropriation seems problematic; (2) also failure to cite sources, leading to a shift in genres in later edition; (3) accusation is accusing her of not having taken responsibility for the work she produced—an inward directed critique.  Consider the quotation she gave in interviews about her own process, which was it didn’t matter where people got their process but only mattered where they take it—manipulating external referents to advance her own project, rather than taking them inside herself. Thus the critique is that what she’s doing doesn’t advance the understanding of art.  A true artist is personally and internally owning the work (that is, this critique is not a condemnation of all “poaching”).  Traditionally minded, but not necessarily about property or limited to digitization/processes of collaboration.
Institutional focus might change analysis versus focus on individual reactions.  Publishers’ reactions: a break w/tradition of literary studies, as well as break w/legal system’s resolute commitment to individual liberal ideal of author and reader.  How © system engages w/culture using institutions as the primary tools of analysis.  (Julie Cohen, among others, has done work of this sort.)
Ernst: Is this new? On the level of media theory/discourse studies. There’s a way of performing authorship in different discourses/media situations that can help us analyze what’s going on, e.g. interacting w/ readers on Twitter.
Q: Gender theory might help understand the situation of this German wunderkind.
A: she was forced to apologize to other authors.  Male critic first lionized her, then another male critic targeted her for takedown. 
Jaszi: consider authors coming together in organized groups and attempting to use law to inhibit a wide range of digital possibilities—Authors’ Guild litigations against HathiTrust, Lexis, etc. Self-designated representatives have things to say that sound a lot like the Leipzig Declaration criticizing Axolotl Roadkill.  Might map performance of authorship/collective performance of authorship and get some interesting results.
A: many such examples—“we need a law against this” pops up every few months.