Reading List: Jessica Litman, Casting Aspersions

Read it now. Short, readable, and recommended: "If the politics of reforming copyright law to pay more attention to whether and how much ... money finds its way into authors’ pockets seems too daunting to try, that says a great deal about the health of the current copyright law, and of the copyright bar."

Amicus in 5th Circuit age verification/app store case

 On behalf of the Organization for Transformative Works and the Wikimedia Foundation, Inc. The brief emphasizes the breadth of noncommercial speech affected by Texas's app store rating, age verification, and parental consent requirements. 

"dishwasher safe" wasn't too ambiguous to deceive where cutlery was top-rack only

Simpson v. Walgreen Co., --- F.Supp.3d ----, 2026 WL 413565, No. 23-cv-16465 (N.D. Ill. Feb. 13, 2026)

Simpson bought Walgreens’ Complete Home Heavy Duty (Complete Home) plastic cutlery. The front and back of the product were labeled “DISHWASHER SAFE” and “HEAVY DUTY” in all caps. The sides of the product were also labeled “HEAVY DUTY.” Simpson allegedly bought the product in part because she believed it was dishwasher safe, which means something different than “top-rack-only” dishwasher safe. “As it turns out, the bottom of the Complete Home box cautions: ‘DISHWASHER SAFE IF CLEANED ON THE TOP RACK.’” She didn’t turn the box over (a move likely to dump all the utensils out if the box has been opened already) and suffered the consequences. Simpson also alleged that “it is common practice in the plastic dish industry to clearly indicate when a product can only be washed safely on the top rack” and that the commonly used “dishwasher safe” symbols are distinct from the “top rack only” symbols. These labels are allegedly “particularly important for cutlery, because a dishwasher’s cutlery basket is ordinarily located on the bottom rack.”

front and bottom of box

She brought the usual California claims on behalf of a California subclass, as well as state law claims of common law fraud, unjust enrichment, intentional misrepresentation, and negligent misrepresentation.

The court refused to dismiss the claims because deception was plausible.

Walgreens argued that, under McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023), when a label is merely ambiguous, it is not misleading, and a reasonable consumer would check the bottom of the box for more details. The packaging for the plastic cutlery, it argued, clarifies any potential ambiguity with term “dishwasher safe” by adding in all caps the statement “dishwasher safe if cleaned on the top rack.” Simpson responded that “disclosures that are not on the consumer-facing front label do not cure misleading front-label representation because a reasonable consumer is ‘not expected to look beyond misleading representations on the front of the box to discover the truth in fine print on the back label.’ ”

I’ve been thinking about the consumer protection concept of ambiguity that courts seem to be leaning into, and how it differs from Lanham Act ambiguity, and I think that the consumer protection concept is distinct (and probably wrongheaded) in folding materiality into the ambiguity inquiry. Here’s my current thesis, subject to revision:

In consumer protection cases, courts seem to be asking whether a substantial number of reasonable consumers could think that their questions were answered by the front matter, and thus not look further. By contrast, in Lanham Act cases courts find ambiguity when at least one reasonable interpretation is true, or nonactionable puffery. So, if courts frame the consumer protection concept as “if one reasonable interpretation of the front matter is that the consumer’s questions were answered but that answer would be false, then deception is plausible,” there may not be much, if any, daylight between the two standards, and I think that’s the right treatment.

The difficulty is that the facts of Trader Joe’s, which the Ninth Circuit used to announce its consumer protection ambiguity standard, are so extreme about what “reasonable” consumers are supposed to know. It seemed that, in Trader Joe’s, the materiality of manuka honey’s supposed qualities was used to heighten the degree of care exercised by reasonable consumers. That is, if you care about it, you’re supposed to read more about it. But that move conflates epistemology (how do you learn what features a product promises?) with value. Thus, the reason the consumer protection version of ambiguity seems more stringent than the Lanham Act version is stealth importation of a heightened consumer care standard. One way for plaintiffs’ lawyers to proceed, it seems to me, is to specifically allege that, regardless of what we think a careful consumer should do, consumers who do care about product features often make judgments about those features based on the front label, because reasonable consumers don’t think about the details of everything they care about. That would be an exhausting and impossible way to move through the world! Alleging facts about standard practices, as the plaintiff did here, is one way to do make that conclusion more plausible.

The court agreed that McGinty didn’t apply because there, it was clear that the phrase “Nature Fusion” was ambiguous. But “dishwasher safe” was not ambiguous in the same way. Since McGinty, other 9^th Circuit cases have come closer to my proposed  “if one reasonable interpretation of the front matter is that the consumer’s questions were answered but that answer would be false, then deception is plausible” standard. E.g., Whiteside v. Kimberly Clark Corp., 108 F.4th 771 (9th Cir. 2024), found that “ ‘Plant-based” on the front of a package was plausibly misleading even though the back of their packaging disclosed the presence of synthetic ingredients.

“Plaintiff plausibly alleges that the front label of the Complete Home plastic cutlery is unambiguously deceptive to a reasonable consumer.” I wish the court hadn’t used the word “unambiguously” here, because that risks conflating “no reasonable consumer would think otherwise” with “a substantial number of reasonable consumers would receive this message,” and it’s the latter that sets the standard. Reasonable consumers can vary in the amount of thought they give to a given purchase, and that’s why we use the “substantial number” standard: so that we’re not only protecting the most careful subset of consumers.

Anyway, it was plausible that a reasonable consumer “would look at a box of ‘heavy duty’ plastic cutlery labeled as ‘dishwasher safe’ on the front and take it at its word.” Whether there was actual ambiguity was for later (again, worrisome language—the court cites the correct standard, which is whether there was deceptiveness).

[Other issues omitted, including the dismissal of claims for injunctive relief on standing grounds.]

We need federal anti-SLAPP law: Scientist wins summary judgment on Splenda's defamation & related claims

TC Heartland LLC v. Schiffman, 2026 WL 1785093, No. 1:23-CV-665 (M.D.N.C. Jun. 22, 2026)

In a time of rising authoritarianism, it’s not that surprising seeing companies following the lead of Trump, Musk, and the like in suing their critics whose research implicates them in harm. Here, in the absence of a strong anti-SLAPP regime that could have shifted the costs onto the plaintiff, the defendant counterclaimed for defamation, but both sides lose because the proper realm for resolving scientific disputes is the audience of scientists.

Heartland sells Splenda, an artificial sweetener made with sucralose. Dr. Susan Schiffman said things about her research about sucralose, which was published in a peer-reviewed scientific journal, so it sued her for defamation/trade libel (the differences don't matter here). Dr. Schiffman challenged Heartland’s online assertions impugning her scholarship and integrity, so she asserted defamation claims and an abuse of process claim. Bottom line:

Both Dr. Schiffman and Heartland have a First Amendment right to express their views on the safety and health effects of Splenda and sucralose and on the meaning and validity of research investigating those health and safety issues. Neither party has produced sufficient evidence to overcome the other’s First Amendment right to talk about the research and the conclusions to draw from the scientific research, and neither has shown a disputed question of material fact.

A bit more background: “In 2023, Dr. Schiffman, a professor at North Carolina State University, and coauthors published an article about the effects of sucralose and sucralose-6-acetate (“S6A”) in a peer-reviewed journal.” A hired lab did the experiments, not Dr. Schiffman herself. After the article was published, Dr. Schiffman worked with N.C. State to issue a press release about her research, which did mention Splenda; local news stations interviewed her about the article, and she discussed Splenda in those interviews, and a few other news sources reported on the article and published stories with her statements about her research. “In summary, she said that her research showed that sucralose carries multiple potential health risks, and she identified sucralose with Splenda.”

In response, “Heartland created a webpage disputing her article’s findings, her statements about the article, and the article’s implications. It impugned the quality of her research and essentially accused her of being a publicity hound.”

To prevail on a defamation claim under North Carolina law, the plaintiff must establish: (1) the defendant made a false, defamatory statement; (2) the statement was “of or concerning” the plaintiff; (3) the statement was published to a third party; and (4) the statement caused injury to the plaintiff’s reputation. For public figures, actual malice is required.

“Scientific conclusions based on research and speech about that research do not fit easily into the fact-opinion paradigm.” Scientific speech “receives First Amendment protection under certain conditions to encourage legitimate debate about scientific issues and to encourage discussion and research into matters of public and scientific interest.” [The Supreme Court has been extremely uninterested in identifying a category of “professional speech” that can be more heavily regulated. It’s hard to say whether the Court would be more amenable to “scientific speech” as a category that can be less regulated.] Although most conclusions in a scientific journal article are, in principle, “capable of verification or refutation by means of objective proof,” the court quoted ONY at length:

it is the essence of the scientific method that the conclusions of empirical research are tentative and subject to revision, because they represent inferences about the nature of reality based on the results of experimentation and observation. Importantly, those conclusions are presented in publications directed to the relevant scientific community, ideally in peer-reviewed academic journals that warrant that research approved for publication demonstrates at least some degree of basic scientific competence. These conclusions are then available to other scientists who may respond by attempting to replicate the described experiments, conducting their own experiments, or analyzing or refuting the soundness of the experimental design or the validity of the inferences drawn from the results.... Needless to say, courts are ill-equipped to undertake to referee such controversies. Instead, the trial of ideas plays out in the pages of peer-reviewed journals, and the scientific public sits as the jury.

Here, both parties were public figures, at least limited-purpose ones; indeed, “[t]he argument that Heartland is not a limited-purpose public figure borders on the ridiculous.”

Heartland purportedly only challenged the post-study comments, e.g., “A new study finds a chemical formed when we digest a widely used sweetener is ‘genotoxic,’ meaning it breaks up DNA. The chemical is also found in trace amounts in the sweetener itself, and the finding raises questions about how the sweetener may contribute to health problems....”; “Our work suggests that the trace amounts of sucralose-6-acetate in a single, daily sucralose-sweetened drink exceed that threshold [of toxicological concern]”; “When we exposed sucralose and sucralose-6-acetate to gut epithelial tissues – the tissue that lines your gut wall – we found that both chemicals cause ‘leaky gut.’ … A leaky gut is problematic, because it means that things that would normally be flushed out of the body in feces are instead leaking out of the gut and being absorbed into the bloodstream”; “We found that gut cells exposed to sucralose-6-acetate had increased activity in genes related to oxidative stress, inflammation and carcinogenicity”; “[a single packet of Splenda or in one drink exceeds] the level used in the food industry and in Europe, at the European food agencies, to say that this is too much genotoxic compound in the food supply. And so a single packet is too much”; “Risk wise, sucralose is worse [compared to other artificial sweeteners]”; and “basically, the data shows it’s not a good idea to consume sucralose.”

It was undisputed “that she made those statements following the publication of a scientific article she coauthored and that her remarks were directed to summarizing and explaining her research results to a lay audience.” Given that courts are “careful when applying defamation and related causes of action to academic works, because academic freedom is a ‘special concern of the First Amendment,’ ” “scientific conclusions are protected speech to the extent they are ‘draw[n] ... from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement.’ ” [The court explicitly noted that its conclusion would not necessarily apply to a consumer-facing ad.] Accurate “secondary statements,” whether in a journal article, podcast, or other media, “do not form the basis for a libel claim.” This could be resolved as a matter of law.

The secondary statements would only be actionable if they were inaccurate descriptions of the article or the article was based on fraudulent data. Heartland did not show that either limit applied.

The challenged statements were accurate summaries of the article, which said things like “Overall, the . . . findings for sucralose-6-acetate raise significant health concerns regarding the safety and regulatory status of sucralose itself”; “Data indicate the sucralose-6-acetate is genotoxic,” and “sucralose-6-acetate significantly increased expression of genes associated with inflammation, oxidative stress, and cancer.”

Heartland argued that “Dr. Schiffman did not sufficiently qualify her conclusions as preliminary or note the lack of definitive assessment as to toxicity in humans.” But Dr. Schiffman used qualifying language in the N.C. State press release such as “the finding raises questions about how the sweetener may contribute to health problems,” “our work suggests that,” and “raises a host of concerns.” The university press release said that the article relied on “in vitro” experiments and tests. “Even in the three-minute news interview, Dr. Schiffman was not definitive; she said that S6A ‘can’ have negative health effects”; the interview specifically referenced the article.  “Thus, in a shorter fashion and directed to a lay audience, her secondary statements repeat the conclusions that she made in the article based on the studies detailed in the article.”

What about nuance? “To the extent Heartland is saying that the secondary statements are not nuanced enough, that argument if adopted would essentially prohibit scientists from commenting on sophisticated research to a lay audience beyond reading their study results in full. And Dr. Schiffman’s secondary statements were not so over-simplified as to be inaccurate.”

Heartland pointed to Dr. Schiffman’s answer to the question “How much Splenda or sucralose needs to be consumed in order for this to be harmful?”: “a single packet ... is too much.” In context, this was opinion, and consistent with statements in the article discussing “significant health concerns regarding the safety ... of sucralose itself,” discussing the potential genotoxicity of “a single daily sucralose-sweetened drink” and “single servings of sucralose,” and the like. It was irrelevant that she didn’t test Splenda; Splenda is made of sucralose.

Nor was there sufficient evidence of fraudulent data or inaccurate descriptions of data. The purported inaccuracy came from Heartland’s “disagreements with her results, methodology, and decisions about what to include in and omit from her published research.” “But omitting data does not necessarily make research fraudulent.” There was no evidence that the numbers in the studies were made up or that the tests were not conducted. “Heartland and others can run their own tests following the same methodology or using methodology they say is better or more complete, and they are free to use their results to publicly rebut Dr. Schiffman’s results if that is what such research shows.”

Heartland also pointed to an investigation by N.C. State, Dr. Schiffman’s employer, into Dr. Schiffman’s research, which seems to have been prompted by Heartland’s threats. “According to the investigation report, a vice chancellor convened a panel of professors to investigate whether Dr. Schiffman committed research misconduct based on Heartland’s allegations in this case that she (1) omitted contradictory data and (2) did not disclose conflicting repeat tests.” The committee concluded that Dr. Schiffman did not follow “best practices” because she “should have reported the negative Multiflow data from Litron Laboratories in the article” and that a discussion of the reason behind the differing results “would have been appropriate and ... followed best practices.” The committee stated that the exclusion of some data “should have been discussed with all coauthors of the article.” But all of that tended to put the article in the firmly protected category, since these were scientific differences and not fraud: the report unanimously concluded that Dr. Schiffman did not commit “research misconduct” because she provided a reason for the omission. “Failing to use best practices does not equate to fraud, and nothing in this report supports Heartland’s assertion that Dr. Schiffman used fraudulent data or did not accurately describe the data and methodology underlying those conclusions.”

In the alternative, Heartland failed to show actual malice. Its evidence of malice was: the omissions; a third-party scientist’s opinion that Dr. Schiffman had bias towards the research outcome because she omitted test results; funding she received from the Sugar Association over 15 years ago; and an email about seeking funding broadly from different entities for her research. None of this evidence was sufficient to convince a finder of fact that Dr. Schiffman “in fact entertained serious doubts as to the truth of [her] publication.”  Specifically, the evidence about funding was “too remote and speculative to permit an inference that she acted with malice in making the secondary statements.” In this context, “[m]ore papers, more discussion, better data, and more satisfactory models—not larger awards of damages—mark the path toward superior understanding of the world around us.”

The counterclaims failed for similar reasons. Some of Heartland’s criticisms were protected opinion, including that the article was “not sound science,” which is vague and encompasses many meanings. Others were scientific conclusions on a “subject about which there is legitimate ongoing scientific disagreement.”

The court also rejected an abuse of process counterclaim, even though “[a]nyone who delves into the record and procedural history of this case would easily have suspicions about Heartland’s motives.” Which is why we need a federal anti-SLAPP law.

Indeed, the court says that “[t]he First Amendment does not require a scientist to defend research studies in court merely because a company whose sales of a product might be affected by publicity about that research disagrees with the research or dislikes the publicity.” But … she did have to defend her research studies in court, in part because Heartland faced no real threat that it would have to pay for her defense—imposing costs on her was a rational business decision. An anti-SLAPP law might have given Heartland pause, and would definitely have made it easier for her to find good counsel.

PediaSure "growth" claims might communicate height gain, but price premium theory fails

Noriega v. Abbott Labs., 2026 WL 1601501, No. 23 Civ. 4014 (PAE) (S.D.N.Y. Jun. 4, 2026)

Conventional wisdom is that certification is the ballgame for consumer class actions, but it might be empirically mistaken. This case is an example where there’s plenty more litigation ahead. Noriega alleged that the packaging and marketing of PediaSure Grow & Gain misled consumers when it claimed to be “Clinically Proven to Help Kids Grow” in violation of New York General Business Law (“GBL”) §§ 349 and 350.

The court denied summary judgment to Abbott and resolved a bunch of evidentiary objections.

There’s a disclaimer on the label: an asterisk, dagger, or other note of the form: “Clinically Proven† to Help Kids Grow.” The disclaimer has at various times read: “Studied in children at risk for malnutrition”; “Studied in children at risk for malnutrition, 2 servings per day,” or “Studied in children with and/or at risk for undernutrition, 2 servings per day.” It appeared in different colors, sometimes set against a background of the same color, and other times against a contrasting background.

The label also shows a cartoon giraffe wearing sunglasses, next to tick marks that resemble a ruler. Under the PediaSure name, the label states, “Grow & Gain,” and below that, “With Immune Support.” he label contains circles touting a product attribute, such as “27 Vitamins & Minerals,” “7g Protein,” and “#1 Pediatrician Recommended Brand.”

Earlier versions displayed an image of a lion. And instead of the challenged statement, the label read, “Helps Kids Grow.” At least 2 TV ads also used the challenged statement, including a “worried mom commercial” depicting a child who is shorter than the children next to him, and who stands on his tiptoes to appear taller. The voice of a mother states: “Before PediaSure, I was concerned that he was behind in growth.” She states that her child’s pediatrician told her to try PediaSure, and that “it’s clinically proven to help kids grow.” The commercial displays the word, “GROWTH,” above an image of a child standing next to tick marks. A second ad depicts a child standing between two taller children, who states that his mother was “concerned about my growth,” as the commercial depicts a mother measuring the child’s height against a doorframe. The child states that his mother tried PediaSure because it is “clinically proven to help kids grow.”

The PediaSure product page of Abbott’s website lists six published studies, and Abbott completed data collection in another study in late 2024, after the filing of this lawsuit. Whereas Abbott’s earlier studies had largely been conducted on children outside of the United States (e.g., the Philippines, Taiwan, Pakistan and Peru), the new study, AL-48, studied the effects of PediaSure in children in the United States.

Plaintiff’s experts: First there was marketing expert Dr. Gita Johar, whose report assessed how consumers would understand the challenged statement. Her methodology: review academic literature related to consumer marketing claims, and whether and when consumers can understand disclosures that purport to modify or limit such claims; review the Complaint and PediaSure labels and television commercials; then assess, in light of the academic literature, how target consumers would process the text and imagery on the PediaSure bottle, whether consumers would notice and understand the footnote disclaimer, and what reasonable consumers are likely to believe about PediaSure.

She opined that the PediaSure label would lead consumers to believe that the product is clinically proven to help kids grow tall and that the footnote disclaimer is “unlikely to be noticed, read, [or] understood.” She also opined that this was materially misleading, as clinical proof was a “key benefit” of the marketing.

This opinion was admissible even though Johar didn’t conduct empirical research or rely on case-specific data collection. Although a specific survey would have helped, Dr. Johar’s sources and methodology were reliable for these “uncomplicated” conclusions. Likewise, considering Abbott’s internal marketing materials might have helped, but only to fortify “her most central, and unsurprising, conclusion: that PediaSure’s packaging leads consumers to believe the product is clinically proven to help kids grow in height.” With extensive experience in consumer product marketing, a lack of specific expertise in children’s nutrition drinks didn’t matter.

Her testimony would help the jury because she wasn’t setting out her personal beliefs, as a consumer, about the meaning of the challenged statement on the label but rather her opinion, “as a marketing professor, based on her experience and research, about how a reasonable consumer would view and process the challenged statement in the context of PediaSure’s packaging.”

The court also denied the motion to preclude Dr. Daniel Hoffman’s expert report on whether Abbott’s studies supply clinical proof that PediaSure promotes height growth. He’s a professor in the Department of Nutritional Sciences at Rutgers University whose expertise includes “[s]tunting and growth retardation,” and “[e]nergy metabolism and body composition.” Id. He has published journal articles and presented on topics related to children’s nutrition and growth. He opined that Abbott ignored its internal claims substantiation guidance manual that addresses health benefit claims, the evidence necessary to substantiate such claims, and the claims development process. He further opined that Abbott improperly applied “inapposite studies from homogenous populations in developing countries” to children in the United States, failing to conduct “bridging studies” that enable results from one population to be translated to another.

He also reviewed FTC communications admonishing Abbott about its practice of using studies from developing countries to support marketing claims directed to U.S. consumers and internal Abbott communications that criticized Abbott’s studies, and depositions in which Abbott employees echoed those concerns.

The heart of his report analyzed the quality of Abbott’s studies, concluding that they “do not clinically prove or show that PediaSure helps children grow.” This heart was admissible, though other aspects of his testimony were inadmissible, including testimony about Abbott’s internal manual and whether Abbott complied with its own rules; about Abbott’s compliance with FTC health claims guidance; and how a reasonable consumer would interpret the challenged statement.

Finally, Dr. Ingersoll’s expert report claimed that the challenged statement had a price premium. The court excluded the testimony because he didn’t specifically test Noriega’s theory of liability: the claim that PediaSure helps kids grow in height. He also did not test the disclaimer or imagery on the PediaSure label.

The label’s references to growth “can also—or alternatively—be read to encompass other forms of growth (e.g., weight, body composition, and/or muscular development),” and he didn’t test height specifically. “Nor did it test the features which Noriega claims would make a consumer more likely to understand the challenged statement as referring to height growth (the giraffe, tick marks, and ‘Grow & Gain’ label). And it did not test the disclaimer that Abbott claims contextualized the challenged statement.”

The court commented that “[i]t would not have been difficult to design a conjoint survey to test this representation. In cases in which a label was susceptible of multiple meanings, surveys have tested the premium traceable to the meaning the plaintiff claimed was false or misleading.”

In addition, the disclaimer should have been included, as proven by Noriega’s own testimony that she construed the challenged statement to mean there was “scientific proof that this product can actually make a child grow in height,” and that such proof entailed examining thousands of children in the United States who had consumed the supplement for “a year or two” and “grew more than what they should have.” If she’d read the disclaimer, it might have changed her assumptions and her willingness to pay. “The challenged statement unavoidably includes a footnote (indicated by a dagger, asterisk, paragraph symbol, or section symbol, depending on the packaging) that contains the disclaimer. To be sure, there is no assurance that any particular purchaser read the footnote—and conceivably a study could have taken into account the incidence of purchasers who reviewed the footnote relative to those who overlooked or disregarded it.” But there was no explanation for its omission from the survey, suggesting “an impermissibly result-driven methodology.” Noriega could argue at trial that the disclaimer was too small to read and too confusingly worded. “But that justification, which is absent from Dr. Ingersoll’s report, does not support Dr. Ingersoll’s excluding the disclaimer from the survey and failing to engage with it at all in his report…. By omitting the disclaimer based on its purported ‘inadequacy,’ Dr. Ingersoll assumed the conclusion that a conjoint survey is meant to prove.”

Noriega argued that including the disclaimer in a conjoint survey would have improperly elevated it in importance, causing “focalism bias.” But conjoint surveys can address that, for example by showing one half of respondents the disclaimer, and the other half the statement without it. “Beyond that, there presumably were ways—independent of a conjoint survey—to test Dr. Ingersoll’s premise that consumers would have overlooked or not understood the footnote disclaimer. Dr. Ingersoll’s untested assertion to this effect does not bespeak rigorous methodology.”

Abbott’s materiality witness Dr. Kivetz is a marketing professor at Columbia Business School. In his survey, the test group was shown a 360-degree interactive image of PediaSure with the challenged statement and the cartoon giraffe with tick marks (the product as it appeared in stores). The control group was also shown an image of PediaSure, but without the challenged statement and the tick marks on the giraffe. Respondents were then asked how likely they would be to buy the product; if they didn’t say “don’t know,” they were asked what made them answer the first question as they did; and asked about “[a]ny other reason or reasons.” Then all respondents were informed about the typical price range for a package of six bottles of a pediatric nutrition drink ($7 to $17), and asked to indicate the highest price they would be willing to pay for the product that they had been shown.

Kivetz concluded that consumers’ purchase intentions were similar across the test and control groups, in that 88.7% of test group participants and 90.4% of control group participants answered that they definitely or probably would buy the PediaSure product that they were shown. He also found that “the vast majority” of the reasons respondents in the test group provided for purchasing PediaSure did not relate to the challenged statement or height growth. He reported that “only 1.9% of participants” in the test group gave a purchase explanation that could refer to the challenged statement, and “[n]ot a single test group participant” mentioned height. In the control group, no respondents provided, as a reason against purchasing PediaSure, that the product is not clinically proven or does not help with height growth. Likewise, the average willingness to pay for test group respondents was $12.94, compared to $12.49 for control group respondents.

Noriega’s criticisms were not so strong as to render this testimony inadmissible. This study was a between-group study; in a within-group study, respondents are shown multiple products and asked which they prefer. Noriega argued that within-group studies “should almost always” be used to assess materiality, but between-group studies have been used before in the false advertising context. And speaking of focalism bias, within-group studies would have it.  

Although more questions could have been asked, it did more than ask for a top-of-mind response: it asked consumers why they were definitely/probably likely or unlikely to buy the product, and instructed respondents to “be specific and include details.” One part of his opinion, saying that the survey he conducted is “routinely used in academic, industry, and litigation settings,” and also citing cases that accepted his consumer surveys and found that they “conclusively showed that the challenged claims were not material,” was inadmissible.

Abbott’s “clinically proven” expert Dr. Heyman, a professor in the Department of Pediatrics at UCSF, also offered admissible testimony that there was “ample clinical support for a claim that PediaSure helps kids grow, including in both height and weight” based on an in-depth review of Abbott’s studies. He also admissibly opined that two studies, which Noriega contended disproved that PediaSure has height growth benefits, “do not undermine or contradict” clinical support for the challenged statement. The court excluded his opinion that Noriega’s grandson grew in height and weight while consuming PediaSure, and that the grandson was not harmed by his consumption of it. The court also part of his testimony that depended on a study that was not relevant because it was completed after the time period on which Noriega’s claims are based (and after the proposed class period).

Once that was done, Noriega survived Abbott’s motion for summary judgment. Along with the expert testimony, there was other relevant evidence that the height message was communicated. A rational juror “could find that PediaSure’s packaging, viewed as a whole, communicates that the product helps children grow taller.” Though the wording was unspecific as to the type of growth,

the imagery alongside it supplies a strong basis, to say the least, on which a reasonable consumer could read Abbott to make a representation about height growth. The central image on the bottle is of a cartoon giraffe—the animal well-known as the tallest of all mammals. The giraffe appears next to vertical tick marks resembling a ruler that climb to the level of the giraffe’s head. There is no comparable horizontal imagery. And the words “Grow & Gain” appear in large font below the brand name. These features could readily support a consumer’s conclusion that the word “grow” in the challenged statement refers to height growth, with the word “gain” referring to weight gain.

The same was true of the commercials, which focused on children shorter than the children around them. The “worried mom” ad displayed the word “growth” above an image of a child standing alongside vertical tick marks; and, in the final scene, shows the child (who has begun drinking PediaSure) reaching up to erase a classroom white board. The “basketball commercial” ad showed a child standing between two taller children. The child states that he has “got a lot to look up to” and the commercial depicts the mother measuring the child’s height against a doorframe.

A jury could also find that Abbott records and employee deposition testimony support the conclusion that a reasonable consumer would take away from PediaSure’s packaging and marketing that it promotes height growth. A 2015 slide deck, which discusses how the giraffe concept performed in a packaging study, includes these quotes from respondents: “Measuring tape image makes it clear this product helps with growth,” and “The giraffe is cool and he’s an example of what the product does for growing.” Abbott’s brand director of PediaSure also testified that Abbott’s marketing team sought to “include height within the definition [of growth] to better define the segments of growth.”

Likewise, there were genuine issues of fact on the truth of the height claims. A “rational juror here could find that the deficiencies identified by Dr. Hoffman are so basic and devastating that Abbott’s studies cannot credibly be claimed to constitute clinical proof of the challenged statement.” That juror could agree that establishing that PediaSure promotes height growth in a malnourished child in a developing country “says absolutely nothing about whether it does the same for a healthy New York City child with a sound diet.” “The Court is unpersuaded by Abbott’s suggestion that the nominal existence of a study, even one that could be found wholly inapposite to the proposition at hand, inherently defeats a challenge to a claim of clinical proof.”

A rational jury could also find that the footnote disclaimer here was ineffective, relying either on Dr. Johar’s testimony or by “examining the packaging for him or herself,” noting that “the challenged statement and disclaimer are on opposite sides of the giraffe and that the challenged statement is larger and more prominent than the disclaimer,” and/or finding that the disclaimer didn’t address height specifically or explain the implications of the study feature (“studied in children at risk of malnutrition”) that it briefly discloses.

Invoking the Lanham Act standard, “Abbott suggests that, because the challenged statement is impliedly (rather than literally) false, Noriega is required to come forward with extrinsic evidence that the challenged statement would mislead consumers.” This isn’t a Lanham Act case, and “GBL §§ 349 and 350 do not have an extrinsic evidence requirement.” [Conceptually, this difference is hard to defend since the core concept, deceptiveness, is the same for consumers and competitors, both of whom are only harmed when consumers are deceived, but the real problem is the Lanham Act survey requirement so I’m certainly not saddened by the court refusing to port it over.] Given the giraffe and the ruler, this wasn’t a case where a jury would need extrinsic evidence to determine what message was received.

And there was a material disputed issue on materiality, including Dr. Johar’s report. Abbott’s internal documents also included an online survey of more than 500 mothers, which tested the statements that made respondents most likely to purchase PediaSure; the challenged statement ranked third out of 13 options. A 2024 marketing presentation stated that, in 2019, “height households had significant buy rate growth,” and that the fourth most popular reason consumers purchased PediaSure was that to “help child grow.”  Abbott’s documents also included statements that 51% of respondents want to buy products that “help my child grow in height” and that 20% of respondents give children PediaSure to help “grow in height.” [This may well be why we shouldn’t give much weight to anybody’s surveys on materiality or what message was communicated—the fact that Abbott was easily able to figure out a methodology that would give it the opposite result when it had a very strong interest in so “showing” suggests either that Abbott’s marketing department is very bad at its one job or that, for business decision-making purposes, the claim is material.] Abbott weakly argued that its internal records didn’t “literally” show that height was a reason for purchase, but they certainly tended to make that conclusion more likely.

Kivetz’s immateriality study, while admissible, was not dispositive given the other admissible evidence.

What about injury? There was sufficient evidence to survive summary judgment on one theory of injury: a benefit-of-the-bargain theory. Noriega testified that $3.25—the cost she claims to have paid per bottle—is “a lot to pay for something,” and that she understood PediaSure to cost more money on account of its capacity to improve height. She testified that she believed that she was “paying more” for the prospect of height benefits and that she would not have bought PediaSure had the challenged statement not been on the label. This could show detrimental reliance, but not on a price premium theory.

Good thing statutory damages are available!

6th Circuit approves of using (at least) same similarity standard for dilution as for confusion

Scotts Co. v. Procter & Gamble Co., 2026 WL 1601797, No. 25-3555 (6^th Cir. Jun. 4, 2026)

Discussion of trade dress opinion here. False advertising claim here. The district court didn’t abuse its discretion in denying a preliminary injunction against P&G on the claims that P&G’s weed-killer product Spruce infringes on and dilutes Scotts’s Miracle-Gro trade dress.

Spruce

Scotts defined its claimed common-law trade dress as (1) A green and yellow color combination; (2) With each color presented as a separate horizontal band and the top color taking up a smaller ratio than the bottom color; (3) With the two bands sharing a common border that runs horizontally along the package; (4) With a straight line dividing the two colored bands; and (5) A circular horizontally centered graphic element.

Miracle Gro examples

Approximately one-third of Scotts’s Miracle-Gro products, by revenue, are “specialty products” that come in different packaging. And a number of third-party products in the lawncare space, some of which are “widely sold in the lawn-and-garden marketplace,” and at times “shelved right next to” Miracle-Gro product, have some overlaps.

third parties

On appeal, Scotts objected to three of the district court’s factor analyses: (1) mark strength, (2) mark similarity, and (3) relatedness of goods. The big three!

Strength: the district court weighed this “at least somewhat in Scotts’ favor” because it found that the trade dress had substantial commercial strength but less conceptual strength. Scotts argued that substantial commercial strength should be sufficient to make the factor weigh entirely in Scotts’s favor. No! Strength depends on the interplay of conceptual and commercial strength. Even though Scotts has invested “substantial effort and large sums of money over an extended period of time” in promoting the trade dress, “there’s nothing particularly distinct about using green and yellow for packaging in the lawn care industry.” Extensive third party use of similar marks limited the conceptual strength of the mark, reducing its strength for purposes of this factor. [We can say—but I’m not sure any court has outright—that a mark can be both very strong and very narrow. American Airlines is highly recognizable, but it’s pretty easy to use a mark that is both heavily overlapping (using “American” or “Airlines” or even both plus a geographic modifier) and not confusing.]

Similarity of marks: Scotts that the district court erred as a matter of law by “rel[ying] on a legally improper side-by-side comparison of the packages in the courtroom,” and that it made a “clearly erroneous” factual finding that the Miracle-Gro trade dress always uses the same ratio of green and yellow.

While the Sixth Circuit “do[es] not approach trade dress claims by parsing minute differences between products,” “that does not mean that actually comparing the packaging is inappropriate.” Indeed, that’s the best practice. The district court identified the appropriate legal standard: “[W]hether a given mark would confuse the public when viewed alone, in order to account for the possibility that sufficiently similar marks may confuse consumers who do not have both marks before them but who may have a general, vague, or even hazy impression or recollection of the other party’s mark.” The district court “appropriately” cited a variety of individual visual differences to show that the “visual differences add up to a highly dissimilar overall visual impression between the Miracle-Gro Trade Dress and the Spruce packaging,” and correctly identified that the products were typically not shown side by side in retail stores.

The ratio finding was also not clearly erroneous. Scotts’s registration defines a specific one-third green to two-thirds yellow color combination. And while Scotts claimed a broader common-law trade dress, its expert testified that “our Miracle-Gro trade dress says typically one-third green on top, two-thirds yellow on the bottom,” mentioning  the “one-third/two-third” ratio repeatedly as, in the court’s words, “a key factor that distinguishes Miracle-Gro from a multitude of other green and yellow products.”

The court also noted Scotts’ attempt to make its trade dress a nose of wax. “[S]ome of the products that Scotts cites as using other ratios also completely lack other elements that Scotts identified as part of its broader common-law trade dress …. Scotts can’t have its cake and eat it too; either the yellow-and-green combination is distinct from the many other green and yellow products on the market because of its specific ratio, or it isn’t nearly as distinct as Scotts claims.”

Relatedness of the goods: Because Spruce is a weed killer and there is no equivalent product in the Miracle-Gro product line, the district court reasoned that the products are “only somewhat related” because the products are not “directly competitive.” This too was not an abuse of discretion. The Sixth Circuit sorts this factor into three categories: “(1) direct competition of services, in which case confusion is likely if the marks are sufficiently similar; (2) services are somewhat related but not competitive, so that likelihood of confusion may or may not result depending on other factors; and (3) services are totally unrelated, in which case confusion is unlikely.” This was category (2) because both were lawn and garden products, but did not directly compete.

Dilution: Scotts argued that the district court erred in holding that its finding that the Miracle-Gro trade dress and Spruce’s packaging are “highly dissimilar” also meant that Scotts wasn’t likely to succeed on its dilution claim. The Sixth Circuit has held that “[t]he degree of similarity required for a dilution claim must be greater than that which is required to show likelihood of confusion” because “[t]he purpose of anti-dilution laws is to provide a narrow remedy when the similarity between two marks is great enough that even a noncompeting, nonconfusing use is harmful to the senior user.”

Scotts argued that this precedent had to be rejected after the TDRA. It noted that both the 9^th and 2^nd Circuits have held that there’s no requirement of substantial similarity for dilution purposes, though I think they’re both wrong. [The underlying logic is that the TDRA gives a multifactor test for blurring referencing the “degree” of similarity as well as the “degree” of other factors, so it must be possible to dilute without a high degree of similarity. I think this is wrong as a matter of grammar—the statute simply doesn’t say where to draw the line. Moreover, the other factors are essentially all about fame (with the arguable partial exceptions of intent/actual association), which by definition will be satisfied if you get to the multi-factor test because you’ve shown ownership of a famous mark. So if we want continuity with the other “degree” factors, “very high” should be required for the factor to favor the plaintiff.]

According to Scotts, the district court should therefore have done more balancing, which would favor it because of its claimed fame. P&G pointed out that the definition of dilution is dependent on some amount of similarity, and that the Ninth Circuit also held that while “a particular degree of similarity is not a threshold, similarity is the necessary predicate for dilution analysis.” “The statutory text itself does not seem to mandate that the district court specifically weigh all six factors; it only states courts ‘may’ consider ‘all relevant factors’ and offers six examples.”

The court of appeals didn’t resolve the issue; even assuming that the similarity requirement is no longer heightened relative to a likelihood-of-confusion analysis, there was no abuse of discretion in finding that the “high level of dissimilarity” found in the infringement analysis also ended the dilution inquiry. [This next quote shows why the 2nd and 9th Circuits are wrong: if it’s not a humorous understatement, it’s a sign that something has gone very wrong.]  “Since dilution definitionally requires similarity and some similarity is ‘the necessary predicate’ for dilution analysis, a finding of a complete lack of similarity should strongly influence the dilution analysis.”

Even if the dilution similarity standard isn’t more rigorous than the infringement similarity standard, it was not error to hold it to the infringement similarity standard—thus, the court of appeals strongly implies, the dilution similarity standard can’t be less rigorous than that for confusion.

Some thoughts: If dilution were a less rigorous standard, how would we calibrate using the other factors of the test (“test”)? Perhaps we could say that no one can get closer than other slightly-similar marks or designs on the market. This would be particularly beneficial to makers of allegedly famous product designs or even packaging, since they’re the ones particularly likely to want to constrain competitors. This seems to me to be unrelated to any evidence we could gather about diminished distinctiveness—because even if we have a theory about preserving conceptual space around a mark, the fact of the matter is that conceptual space will shift based on other features, not just similarity. Dida’s Café would probably not make you think about Adidas, but Dida’s Sneakers could well do so. So identifying the comparators “nearest to” the famous mark that are perceptually somewhat similar and that therefore define the scope of its protection against dilution will be conceptually and practically difficult. Why would we compound our troubles by requiring less than compelling similarity, which offers us a way to define the scope of protection that is at least consistent with the idea of drawing firm boundaries around things that are property?

Promoting Progress part 2 at AU WCL

Framing the Public Interest Agenda - Beyond the Narrative of “Content vs. Tech”

Framing Digital Consumer Rights

US experience is v different from rest of world—want to support the int’l discussion keeping that in mind. US libraries are ubiquitous, 122,000 in US; int’lly, often they’re more gov’t focused. Most tech companies are globally minded—come up with Content ID, etc. to go through all jurisdictions. So int’l issues affect consumers here.

Consumer Bill of Rights was drafted some time ago—Zoe Lofgren & Boucher. Dept of Commerce also has White/Green papers. Places to start?

Dark patterns: example of non-© issue that is about being free from manipulation—consumer bill of rights shouldn’t just focus on ©. A bunch of things can undermine consumers’ digital rights. What is “information justice”? Defensive/we don’t like big tech/mechanisms of resistance like protest v. affirmative visions of social life.

Google is still the only company supporting policy work in © space where Anthropic & OpenAI & everyone else is benefiting from it.

Bill of rights as a foundational concept that could also provide int’l models. Framing human rights. Biden admin’s AI Bill of Rights could also be a source of inspiration. Privacy/consumer rights provisions built into any AI settlement.

Current democratic crisis is so broad that little corners of © are not going to be compelling; the temptation is to think that the public interest is whatever doesn’t serve the interests of big tech.

Participatory democracy as a structuring idea: need agency as citizens—access to info, quality of info ecosystem, ability to communicate w/each other not always mediated by algorithms.

Copyright in a quixotic place: enormous obstacle to many things even as content owners complain that there’s too much competition. The importance of © in this era for creativity is completely different from what it used to be and that gets lost.

There aren’t many functional ways to regulate content online. Copyright is asked to be a jobs program, privacy law, antidefamation law, to carry all kinds of water b/c it’s there and people can see they’re not getting any help to solve digital problems. Congress also realizes this for better or worse. Anticircumvention exceptions are an example of realizing they had to make it someone else’s problem or nothing would happen.

Lots of nonprofit & public benefit & prosocial uses of tech but they tend to be invisible to average person (except Wikipedia). Everyone’s yelling at ChatGPT, but integrating AI into hospitals for info collation/troubleshooting insurance is making huge strides, not for diagnosis but for better management—internal only. Fear of backlash is one reason for silence.

There is a difference b/t consumer advocacy and public interest advocacy—they don’t overlap as much today as they did 10 years ago though there’s still a ton of overlap. Music streaming as an example: consumers benefit from Spotify but the music ecosystem is tanking as a result of it. Tech/public interest coalition broke down, and rhetorically public interest messaging was tied too closely to “you need fair use so you can do this fun thing on the internet.” Internet is surveillance, AI in your job, etc. We need to pivot to address bigger questions and our positions’ importance to them. Antitrust moment: is it the hammer that we need to turn everything into a nail? Room for discussion about antitrust/© interface as policy (not whether having 3 record labels is technically a “monopoly”). RIAA speaks as if for “creators” but they’re representing the intermediaries; musicians are independent contractors who are very hard to organize for a variety of reasons.

The right to share with my friends; the right to tinker; the right to transform; the right to repair. The cost of access/price discrimination is also relevant & the huge wealth transfer from publishers & consumers to intermediaries—terms and nature of access. Consumer as creator also matters. Consumers’ interests in reaching audiences and interacting w/one another. Consider also FTC/deceptive conduct restrictions/state consumer protection for shaping production & consumption of content. Are the terms of the exchange unfair or deceptive? Antitrust has the potential to expand again. But Google search case is depressing in that regard b/c it shows the limits of antitrust remedies.

Product liability/failure to warn/plaintiffs’ bar as potential allies? Some of the tort litigation is brought by copyright ps’ lawyers. Folks in this room use the internet very differently from one another and from the ways that many politically engaged young people do. Tiktok: you can train your algorithm away from not just topics but tones. As a result, when you think about losing your ability to lend a CD to a friend—teenagers don’t think about that any more; they just tell you to go to YT or Spotify. So picking that as a battleground won’t resonate w/a lot of younger people.

© misuse: more flexible than antitrust? Not as constrained as patent law misuse.

We’re better at ID’ing copyright problems or how problems are being caused behind the scenes even as we argue that © isn’t the solution to all your problems.

If we can’t figure out how to understand or mobilize people b/c we don’t know what they’re doing, that feels like the authoritarians have one—at some level, we need a common culture. That’s about journalism, ©, and many other things—seems like an order of operations problem.

Control of Information and Knowledge - Responding to Technical,  Business Structure, Regulation, Lawfare, Contractual and Other Means Beyond Copyright

Style claims: people think they’re supporting individual artists but style protection would let Disney claim to control modern Polynesian art (Moana). How do we talk about why and how it’s really important to not expand ownership of ideas & info even if it feels pleasant to think of it as a weapon against big tech.

1202 claims: huge statutory damage assertions, even if people aren’t © owners. The play is extortion, not stopping AI. 1201 cases are challenging web scraping as violation of 1201. Big threat to viability of open internet.

Music: Controlled private domain—public domain music that is still hard to access through score controls. Draws attention to market power. Publishers will only rent scores. Similarly warps selection of scores by operas, ballets, etc.

Protecting the Roles of Public Institutions - Libraries, Archives, Museums

Provocation: consumer interests are losers in this policy space. Access to information is practically more broad, often freely or for relatively low costs. Outside of right to repair, where there is more appeal, it’s pointless to talk about consumer interests bc it’s so much better now than it used to be. Disappearance of 1984 from Kindle is an exception that proves the rule.

Preservation: physical items are easier legally speaking; licensed access means someone else’s server is in charge. But maybe the solution is ultimately not © or exceptions but instead money: finding mechanisms to work with industries. Films—would like to believe the industry wants preservation and could accept preservation on a voluntary basis. It would take a boatload of money though. Let the Academy run the archive to reassure industry that it’s an archive not to be used for piracy. We want our analog facility, but digital levels of access; we may have to accept tradeoffs. What if we can’t save everything? Not everything can/should be digitized, and even if it is, preservation institutions are brittle. The copy is the point: do we need shadow libraries? Something else? Technical solution to allow controls for reassurance? [Have big content owners ever been reassured enough to allow permanent copies? Maybe w/ music downloads b/c that’s no longer a big consumption vector.]

Telecom conceives of libraries as fundamental to broadband access; should also frame them in © as fundamental to access to culture.

Monopsony problem w/Overdrive means that more money can’t solve the problem—they’ll just soak up as much money as is available.

What is the Public Interest in Copyright Law in Relation to Other Consumer Interests - Recognizing Accretive Surveillance Harms

[personal matters took me out of the room] Anonymity/ability to be pseudonymous online. Europe has more experience balancing incommensurable human rights. Publishers would love to have all the data in the hopes of being able to monetize it somehow, but it seems to be turning into a panopticon w/o even that. Amazon doesn’t give publishers their data. Data collection is a reflex but may not have as much economic value as hoped—that might be a point where we could find common cause. Publishers often still operate like 19^th century businesses. Simon & Schuster merger documents: they just guess whether a book is going to be popular.

But big businesses are hungry: Elsevier is bidding on ICE contracts. Tying back to ©: Hachette is a case in point. Are we going to allow libraries without the strictures imposed by publisher agreements copy & lend works while protecting users’ privacy? We should insist on the public benefits of privacy. Compare to invasive level of detail demanded for 1201 exceptions.

We don’t have enough privacy-© overlap in scholarship. We have to recognize the various other interests to address & name. And remember that we have to deal w/privacy overrides in contracts—that’s why ownership is not the answer for privacy. AI is an opportunity to bring privacy folks into consultation.

It’s worse when people have to pay twice—both for access to content and then with their data. It should be one or the other: content for free, in return for sitting through ads, not double-dipping. People hate data brokers; they don’t like their info being used in completely unrestrained ways. Related to labor issues: people who are surveilled and subject to secret algorithms that can change their pay/kick them off a gig work app with no recourse to them: that’s a privacy issue!

Promoting Progress: 50 Years of the Copyright Act from the Perspective of the Public Interest

AU Washington College of Law, Program on Information Justice & Intellectual Property

Chatham House rules.

Opening discussion: The Role of the Public Interest in Framing the Copyright Act of 1976

AI is sucking all the air out of © discussion about other topics. It doesn’t have to be the predominant question of © and the public interest. 76 Act was a point where libraries and educational institutions realized they had to advocate for the public interest, but it was basically them negotiating against publishers; DMCA was enacted w/ a broader coalition of public interest organizations. Now: parents, consumer groups pushing back against platforms, and now plaintiffs’ bar finding chinks in armor w/product liability suits. Question: is social media having an “Unsafe at any speed” moment? Is this a resurgence of digital consumer rights, or something else? If it is, can we imagine © as a part of this, e.g. in a digital consumer’s bill of rights? Should YT have to have due process before a third strike nukes your account? Doesn’t seem like Congress will change © law comprehensively any time soon; we’ll be living with the 76 Act for a while.

Enactment of 76 Act: keep in mind the excitement of that time, not b/c there was necessarily so much love for the new law or experience of the new law as a loss, but a collective idea that one was about to be presented with a new tool that was fundamentally different from what had come before—part of the first generation of lawyers who first applied the law (and then of course immediately began to complain about it). Present in the classroom and in practice for decades. Ben Kaplan’s advice to students: occasionally at least, one working in the field ought to represent clients who aren’t copyright owners; classes of such people with copyright-relevant interests did develop (called alleged infringers in the cases) but were not always visible at the time.

Authorship and Copyrightable Subject Matter - From the Sweat of the Brow Doctrine to Originality

Sweat of the Brow doctrine wouldn’t die—the directory cases were where the money was! BigLaw of the time was litigating directory cases b/c knowledge-based works were valuable. They all involved Lockean labor theory type claims. Connecting to AI: as people start to make AI output claims, they feel like twists on sweat of the brow—which was always a reward for capital investment into someone else’s labor—we shouldn’t reward the labor of operating capital-intensive machinery any more than we would do that.

We need a term to capture the AI output that would satisfy the originality standard if created by a human—a work, but not a work of authorship—to name that aspect of something that might also have human authorship in it. The human contribution: not really a derivative work; how do we conceive of the collective expression of the human/AI output? If mixed into interdependent work that would otherwise count as joint authorship, seems like we just have a single author—but have we really dealt with that issue (we don’t even know whether there can be joint authorship with someone who is an employee/making a WFH)? Will people find state law alternatives for protection that aren’t preempted? There are already attempts to create state protection.

AI on the Lot conference in LA: working lawyers’ perspectives in Hollywood: lots of lip service to need to center human creativity in AI generated work and the need to document it. See Jacob Noti-Victor’s current project on deciding infringement cases after AI. Using human actors & generated backgrounds: human-generated performances keep that package protected. There was some doubt about fully AI-generated animation.

Clients want to see prompts before they’re used to see if they are intentionally or unintentionally going to infringe. They also want indemnity for the studio.

Registration: how does this scale? How do I have to document & disclose my AI use? Is the Office going to be able to meaningfully review it anyway? Is this an empty exercise? Critterz: AI-generated short film from April 2023; used text prompts to create visual characters & background design. Was registered: Script was human, voices were human, editing was human, and humans animated the characters once designed, which included human performance capture. So registration isn’t surprising, but how did it do that?

General advice: infuse as much human involvement & control if possible at every step of creation and document those touchpoints—scripts; document how humans influenced, modified, selected/arranged/combined outputs. Instead of just text prompting, use outputs other than text: have a sketch fed into a multimodal engine; make text prompts as detailed as possible in case those will confer protection. Keep the original outputs confidential, including in your filing with the Office.

3 practical Qs: (1) The Office demands you disclaim © in AI generated stuff, but they may be wrong that you don’t have a © in that. Waiting on Theater De Opera Spatial case: fully AI-generated artwork based on a text prompt; challenging denial of registration. (2) how much specificity does the Office actually need in registration? Detailed audit trail (keep for litigation purposes but might not need to expose). (3) how do you keep people from copying unprotected bits? If you vague it up, people won’t be able to be sure what they can freely copy.

No pushback from Office for Critterz by saying: (1) “to the extent not copyrightable” andgeneral description of images, etc. generated by AI, with same disclaimer; (2) no detailed audit trail, and Office didn’t even publish their general 2-page description document with the registration, which doesn’t say much/can scale; (3) if you keep disclosures vague and specific outputs confidential, people can’t copy any part of the work w/o risking copying the human element. Great for © owner but calls into question whether

Is this right for registration? Burrow-Giles said: they made these choices so the whole thing is ©able.

Single Piece of American Cheese: the documentation of the creation was extensive, which led to a finding that the selection & arrangement was ©able even though the visuals were AI-generated. It may matter who you are: represented by BigLaw, perhaps you can vague it up more readily. Or if you signal that you are following Office policy.

What kind of market do you imagine? If you’re worried about wholesale copying, all you need is a Burrow-Giles ©. It’s only when you care about copying bits that this kind of copying really matters.

Sure, the “whole thing” is copyrighted, but not everything in Burrow-Giles was ©able—Oscar Wilde’s appearance was not copyrightable. A copy of the photo would be an infringement, but not another photo of Wilde.

If that’s what you believe, what have we accomplished with the Office’s policies where registrants don’t really tell you enough to decide what you can use?

Might become even harder to ascertain what’s protected than it already was. (Relevant: Jeanne Fromer’s work on scope and claiming by exemplar.) You can look at a photo and decide what’s ©able more easily (though not always!).

Costs of nailing scope down are generally not worth bearing at the registration stage, but what if AI changes that? Alternative discussed by Noti-Victor: Markman hearing analogy, so claim scope costs are not borne at registration stage but are still required early in infringement claim.

Multiple page-long prompts may be used for a single shot, including what lens was “used.”

The issue is that the output may not be copyrightable at all, even though there are always uncopyrightable elements in a work; we used to do this reasoning only in the context of infringement, not at the front end. Doing it at the front end is not stable/scalable b/c Feist says the tiniest bit of creativity is enough to make a work original.

Issue isn’t doctrine but economic power. Human creators/actors want creativity not b/c of © but b/c of labor power. Restraints should come from the outside.

Single Piece of American Cheese: wanted to prove concept of selection, coordination and arrangement resulting in © for people who didn’t have (other) artistic skills. That sounds nice, but consider the power of the owners of the tools. Adobe v. open source: nothing in our copyright doctrine speaks to that.

Fair Use and the Constitutional Purpose of Copyright

Start w/ assignment given to students: is the quote “use the force, Luke” substantially similar to Star Wars, the movie from which it comes? Half the students, reading the standard cases, say it is, b/c it’s recognizable and not de minimis. That is, when they just read the cases, they conclude: Fair use has to handle everything if there’s a recognizable quote.

This is a bad idea, and contributes to the challenges we’re facing in a world where a lot of the litigated fair use victories are big data, not uses of individual works.  Sometimes defending big data means denigrating acts of choosing a specific work to react to: 9th Circuit said in one of its Perfect 10 cases: “a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.” Robust fair use requires multiple types, not crapping on one type for the benefit of another.

Big data cases also highlight the distinction b/t straight reproductive copying and alteration: also important to avoid tilt towards the former on purpose-based grounds, which would mean that fair use was mainly for quotations in a different context and then once in a while for parody. The kind of analysis needed to produce ASTM v. Public Resource gave us a good result, but also heavily favors pure reproduction. One thesis: Warhol’s language has negative effects on copying that alters.

Relatedly: we face a risk of substituting fair use for substantial similarity analysis, which did great damage in Warhol. Example: concurrences in the Sedlik cases suggesting that b/c copying in fact was so obvious, there was obviously substantial similarity, leaving only fair use as a limit on use of photographic references. Asking about fair use first without establishing substantial similarity enlarges the scope of what courts consider protectable, to the detriment of future creators who might not do so well on the first and fourth factors.

Also, the way courts use factor three in small-amount cases—favoring fair use because the defendant took almost nothing protectable—sits poorly with the rest of the structure of fair use analysis.

Factor three is generally a calibrating factor: it assesses whether the defendant took more than was reasonable in light of the purpose of the use. That’s why full copies can be fair use, when a transformative purpose requires a full copy. Using fair use as a substitute for putting a lower bound on substantial similarity, by contrast, is purpose-independent, suggesting that taking only a little bit is a virtue in itself.

Third and relatedly, although there are justified predictable subclasses of fair use cases, the only justification for a small-amount subclass is to avoid the need to put a lower bound on substantial similarity. That has value to judges understandably looking for shortcuts, or for Justices looking to put together a majority (looking at you, Google v. Oracle), but it can’t supply overmuch in the way of predictability, and it has serious costs for the defendants who are forced to litigate the extra issues required for a fair use analysis, including expensive economic discovery.

Fourth, and potentially of greatest significance, Warhol may put defendants who didn’t take much, if anything, that was protectable at a significant disadvantage going forward. Because the Supreme Court suggested that competing uses were not transformative even if they had different meanings or impacts, and because defendants who copy a lot of unprotectable material tend to be using it in ways that compete with the plaintiff (or at least with the plaintiff’s licensees), such defendants may be particularly likely to have the highly important first fair use factor weighed against them. For the same reasons, the market harm factor will do the same—and courts often say that those are more important factors than two and three, where what I’m calling small-copying defendants do well. Rentmeester is a good example of a case where a similar-in-unprotectable-ways photo would fare badly on factors one and four—both photos of Michael Jordan depicted him as a star player of almost unearthly talent, and both would be fine illustrations for articles about him.

This problem is particularly acute in the context of litigation over training generative AI. Recently, the Copyright Office and one court have offered a new theory of “copyright dilution”: works produced by generative AI might cause market harm by flooding the market for certain genres. But this only looks like cognizable harm by skipping over the question of substantial similarity: unless the AI-generated works are themselves infringing because they contain substantial amounts of protectable expression, they should not (and I think constitutionally cannot) count as inflicting cognizable harm.  Quickly skipping past substantial similarity reduces infringement to a question of but-for causation. Even if you don’t like generative AI—and I don’t—that is the wrong standard. Shows how fair use and scope of protection need to be considered separately to do their modern jobs.

Is public interest really a fifth factor, rather than part of the fourth factor? Where does it really fit in?

Another issue: We have to figure out how to deal w/use by use analysis without chopping everything into too-small bits. Use by use analysis kind of makes sense, but we’re in early days figuring it out.

We the public can & should fit into all four factors, & Breyer actually did that in GvO.

Rhetoric of copying and morality that infuses every conversation: by the time we get to fair use, we’re using words of morality, which can lead to twisted or troublesome logic. We end up with analysis that starts with copying in fact & moves directly to fair use, or even skips over copying in fact. You can’t demand that the public do the inquiries in order as you can w/students—how do we shape the conversation about the moral valence of copying and fairness?

One concern is how much weight is being put on fair use—all of AI, much of computer programming, etc. Part of that is the dysfunctionality of Congress. And 76 Act doesn’t say what the infringement test is. Fair use is at least a test! Worries of judges in GvO: protectability would be across the board so it was more comfortable to use fair use instead which is case by case. Wild because protectability in GvO was also entirely case by case—nobody else was going to copy those 11,000 lines of code. Substantial similarity is also supposed to be case by case!

Structure is just more comfortable to many lawyers/students for analysis for fair use than seemingly unstructured analysis for substantial similarity (certainly no structure for infringement present in statute). Questions of law can be raised—that’s why we have more SCt decisions on fair use after the 76 Act, b/c now they can say they’re interpreting a statute.

Sedlik is an opportunity to think about clarifying infringement/substantial similarity. Commit to all the limits on ©! Not just fair use. Opportunity for a Leval-type theory for theorizing substantial similarity to reinterpret the test.

People are obsessed with copying in fact. We have a bench of people who like to think they’re originalists, but as we’re talking about the public interest being part of the fair use factors, that is a way to put the constitutional concept of “progress” into the factors. (Unless the public interest is market aggregation.)

Worst offender: Sotomayor, the most experienced © Justice, not an originalist, but substantial similarity analysis in 2d Circuit in Warhol is laughable and she just buys it.

Do you try substantial similarity and fair use together in one trial? Give the jury a special verdict form? Try substantial similarity first for PF infringement before getting to fair use, or let jury hear both together? Leval says: from now on, fair use facts should be decided through special verdict; jury answers those questions; judge makes ultimate determination.

AI makes some GvO/big data case features look regrettable in hindsight: (1) ignoring commercial v. noncommercial use. Puts us in position now where courts have to bless fair use by the most heavily capitalized industries on the planet who could clearly pay for what they want; if they find no fair use, that will prejudice the ability of noncommercial, public interest, open source AI efforts they might want to promote. (2) Google Books turned on copy protections at end of product, but open source AI means you aren’t the one deploying it or people can take them off even if you do deploy copy protections.

Model building bears more weight in fair use than in the real world—people are mad about outputs, but think the only thing they can actually control is model building, so they focus on that. They don’t think outputs are controllable. © has statutory damages and enforcement mechanisms so it seems like the point of control.

Judges resort to fair use to avoid big swings that set precedent they’re scared of: GvO and ASTM where they don’t want to say the standards aren’t copyrightable. But fair use can also be used to wave away bad consequences of protection decisions in Eldred and Golan. Sedlik: J Wardlaw was shaking with rage at the concept that the jury found the works not substantially similar. Courts will appeal to fair use if they broaden substantial similarity—allowing them to answer doctrinal questions w/o attending to public interest which is shoved into fair use.

First Sale – From Ownership to Licensing

People used to have book & music collections, and now that’s not how we access pop culture, educational materials, and everything else. Questions about the common law basis. Single recovery rule has public interest consequences that have been underexplored. Origins: early 20^th c antitrust/competition cases, but SCt reiterated single recovery rule in Kirtsaeng, Lexmark—you get to recoup your costs through the first sale. You don’t get to make a sale over and over again. That’s the single recovery rule. Now honored in the breach through licensing despite SCt unanimity.

Recommendation: don’t use exhaustion and first sale interchangeably: whether a country decides to allow national exhaustion is different from first sale—Kirtsaeng was the first case to confirm that we have exhaustion as well.

Many countries don’t have broad exhaustion even internally—many countries have lending rights and we (mostly) don’t, as a clear choice. Heavy users don’t pay more for their copies as a conscious decision. But that’s destroyed by licensing, which requires libraries to pay substantially more than everyone else, putting users at mercy of platforms. For most users, that’s not horrible. For preservation, it’s horrible. At the margin it does allow platform or © owner to control ongoing uses.

Provocation: First sale is dead; get over it.

It matters that this is a wealth transfer to specific entities. Amazon is not principally passing on the revenues to authors to support authorship and creativity. It’s yet another wealth transfer to the platforms like Elsevier.

Libby/Overdrive is owned by private equity. So much profit being sucked out of this—makes publishers look good!

Publishers do get a share of a lot of this. Not all publishers are equal. Overdrive has over 95% of the public library, 774 million/year before sale to KKR. Publishers have always really disliked secondary markets like used book stores. Contract preemption: US is unique when it comes to contract preemption limiting exhaustion, creating a situation in which “first sale is dead” is a real possibility. But what is the technical solution for digital copies? Internet Archive case: if you scan something it’s a new copy. Without contract preemption there’d still be other contract doctrines that caused problems; this is like printing money for publishers/platforms so they want to defend it even with the huge problems for the public interest.

Restraints on alienation of chattels: those doctrines should be resurrected b/c of their public benefits. Lots of problems also stem from the contracts being really bad. 6-7 streaming platforms distribute 90% of video content; 5 ebook distributors; etc. Consumer protection and antitrust are important parts of the solution.

We need to be able to reuse our things: first sale is essential to conservation.

Digital first sale is going to be tough to achieve, but right to repair movement is a positive development.

©-specific policy interest relates to the public interest: access to knowledge. That is a double-edged sword when it comes to exhaustion & first sale. European reactions to Kirtsaeng/shift from ownership to access model: concern over disappearance of content. E.g., Infinity Train. There are advantages to high quantity uses paying more. What happened to prices in Thailand after Kirtsaeng? (One possible cite: Zhang, Z. and Feng, J, “Price of Identical Product with Gray Market Sales: An Analytical Model and Empirical Analysis,” Information Systems Research, 28(2), pp. 397-412, June 2017.) Global price discrimination might promote cheaper access to knowledge—exhaustion v. first sale.

109: every cobbled-together exception to allow Blockbuster, but not renting software. CleanFlicks at the bottom. All Bobbs-Merrill said was that if the legislature wants to modify the common law it has to do so explicitly. There’s no constitutional right; the legislature could erase access or © for any of these things. Book publishers would love to see first sale go away, b/c that’s the path for every AI company to build its corpus in training its model.

Details matter: do we want compulsory licenses at a set rate? The publisher decides whether a library gets the book? Does money go to the author? 109 could be the home of a new rule that says “you can’t scan a book for AI”—it would fit there. Or it could be the home of a rule that allowed that.

Consider anti-criticism licenses—you can use it as long as you don’t criticize it. That’s also a power issue.

Specific Exceptions: Lessons Learned

Questions about preservation, classroom use, other subjects of best practices—almost always come down to fair use because the specific exceptions haven’t been powerful for public institutions. Trying to craft specific exceptions will probably fail: too narrow b/c of negotiations with stakeholders; technology will change substantially by the time it makes it into actual law.

Copyright law is working great for libraries, but they don’t get to live in © space any more, they live in contract land. © policy choices reflect the public interest and we should be able to live in that land! 110(1) is amazing, 110(2) is not: when it aligns with your incentives and intuitions as an educator, as 110(1) does, an exception can be amazing. When it doesn’t, as with 110(2), it is not. We have a model for doing a good job: general, values-driven as in 110(1); horsetrading means it doesn’t work in 110(2).

Everyone is terrified of asking Congress to fix 110 b/c we know they won’t. What do you do? The only alternative is “fair use for everything,” with its own disadvantages. Think very carefully about long term implications of opportunities to enact change: university counsels can’t rely on 110(2). 108: not litigated; just used to apply savings clause to confirm that fair use is different. Maybe libraries are using it a lot and doing a bunch of things that don’t trigger litigation—that’s likely what’s happening.

Maybe fair use helps confidence that 108 means what libraries want it to mean. Jon Band’s Gravitational Pull paper—unintended effect could be to shade how we understand fair use.

As time went on and fair use proved expansive, librarians’ interpretations of 108 probably became broader/put a fair use gloss on 108. Compared to 110(1), which is clear, short, and understandable, and has developed its own fair use gloss—to allow distance education, doing what 110(2) doesn’t allow. The question for us: how did 110(1) get so good, even compared to 108?

Patry wrote that 110(1) came from language from an agreement b/t publishers & teachers, whereas 108 was trench warfare over 10 years. 110(1) was already existing practice of teachers; it was late-breaking insertion into the statute but not controversial. Tech constraints: they imagined teachers using mimeo machine in the principal’s office. But also: under the 1909 Act, public performance right was only for profit; when they decided to lift that restriction, they also decided to grandfather in existing practices—education, church, agricultural fairs, etc.

Don’t lose track of the damages part. You can think 108 means whatever you want and there’s essentially no litigation b/c you can’t get statutory damages against a librarian acting in good faith. Institutions need a substantive hook to point to say they’re good © citizens, and they need liability protection. Maybe that’s the formula: give an exception plus a statutory damages safe harbor. Libraries also are comprised of people who want to do the right thing.

Limitations and exceptions may contribute to courts thinking “if no exception then infringement” as we’re seeing in TM. Savings clause in 108 is really important. At oral argument in Hachette rights holders argued that 108 meant there was no need for fair use, but the cases have been very hostile.

But there are cases saying that “de minimis isn’t a listed defense so there’s no de minimis exception”—if it’s written too narrowly to be effective and has the compounding effect of broadening rights, that’s worse. [Like the statutory DMCA 1201 exceptions!]

University counsel might not be © experts; they like being able to look at a provision that says “notwithstanding the above, this isn’t an infringement.”

Penalties: Remedies, Secondary Liability, and their Consequences

Today’s Hikma borrows Grokster to really require active steps/intent to induce—the worry of loosening inducement is something the Court is signaling against. Gershwin no longer stands for material contribution + knowledge—it stands for inducement. Not causation!

What about vicarious liability? We’ll see more efforts to expand that to bypass Cox. But there’s also a case to be made for implications for vicarious liability in Cox. Basic takeaway from this and Hikma: they want to see purposeful, culpable conduct. Vicarious liability has been expanded past employer/employee, where lack of sufficient supervision was your problem/culpable conduct. So too w/independent contractors. But when you’re talking about entities that are farther apart, it will/should be harder to expand vicarious liability.

Also going to be pressure on volitional conduct: something that used to be considered indirect becomes direct, then you won’t have to worry about knowledge, intent, or control.

But if the courts take seriously that nothing in the statute gives rise to that broad liability, then there will be a narrowing. Wish it would have implications for 1202! Framing it as Twiqbal: when you just make general assertions in the complaint, that’s not enough.

eBay worked to limit injunctions—fewer sought, fewer granted. Libraries & educational institutions don’t need to worry about profit disgorgement; elsewhere, courts really need to think about disgorgement as a tool of equity, to be adjusted down where appropriate. Likewise, 103(a) should have equitable limits; otherwise Goldsmith might own the (c) to the Warhol images and the estate would have no (c) interest.

Good that SCt accepted cert in Cox on willfulness/statutory damages—they are clearly interested in the issue.

We should also be citing, quoting, relying on the Restatement of Copyright, which says that statutory damages should approximate actual damages.

Are class actions appropriate in © cases? Could we make more progress on that front?

Texaco was the key there: 80 journal publishers as a plaintiff class.

Build on what broke Google Books class certfication—similarity of interests or lack thereof.

Is there room for apology as a remedy or other equitable remedies unrelated to the economic conditions ordinarily associated with ©?

Here’s an argument: In our textualist era: there isn’t any contributory infringement provision in the © statute. Therefore Congress never authorized statutory damages for contributory infringement and they don’t apply.

Secondary liability in the context of TRIPS: Didn’t say anything about secondary liability, so countries have maximal flexibility on whether to adopt it.

If “to authorize” is the scope of secondary liability it will shrink in scope, which would be fine!