Wednesday, February 28, 2007

Shiffrin tribute: my presentation

My turn: Dissent, and its translation into copyright’s fair use doctrine, has been a preoccupation of my work in copyright, and Shiffrin’s exploration of dissent as a central First Amendment principle is incredibly valuable because it emphasizes that dissent is not just something for crackpots. Dissent is communal and expansive, often seeking to persuade, participating rather than always walking away.

Because I’m not a philosopher, and come to these issues from a background in trademark and false advertising, I decided to focus my comments on questions surrounding falsity and misleadingness. In particular, I’m interested in the meaning of individual words and how we as a community make meaning. Much of the discussion at the conference assumed that, at the granular level, falsity judgments were relatively easy to make. But common fact patterns in trademark and false advertising cases cast doubt on this.

Two relevant quotes: First, Bill Clinton’s notorious claim that “It depends on what the meaning of ‘is’ is.”

Second, a quotation from Through the Looking Glass, featuring Alice and Humpty Dumpty.

“… There's glory for you!”

“I don't know what you mean by ‘glory,’” Alice said.

Humpty Dumpty smiled contemptuously. “Of course you don't -- till I tell you. I meant ‘there's a nice knock-down argument for you!’”

“But ‘glory’ doesn't mean ‘a nice knock-down argument,’” Alice objected.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean -- neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master -- that's all.”

The key parts of this dialogue are quoted literally hundreds of times in law review articles, usually as a disparaging reference to some strained or counterintuitive interpretation of a term. But Humpty is not engaged in an inherently illegitimate enterprise: It’s the combination of his undisclosed private meaning and Alice’s preexisting expectation that makes his use of “glory” infelicitous – not even misleading, because it obviously doesn’t mislead Alice, but a poor method of communication. In other circumstances, it’s perfectly reasonable to define a word for your purposes. Alice’s interaction with Humpty, indeed, continues beyond this oft-quoted exchange: Because he knows so much about words, she asks him to explain Jabberwocky, which is full of new words, and Humpty provides the now-standard definitions of Lewis Carroll’s various coinages. Humpty can be a reliable source of meaning, under the right circumstances.

So, while “that’s glory for you!” is a misstatement, “that’s a TiVo for you!” or “that’s a GPS receiver for you!” can be intelligible and even helpful. At what point do we allow individual commercial speakers to define or debate terms, the way we allow people to define and debate terms like “Democrat” or “family values”?

Many of the examples that follow already came up at the conference, often with the assumption that they were easy cases. I want to suggest that they’re not easy, even though we may want the government to step in and regulate them.

From trademark: “Glass Wax,” for a car polish that contains no wax. This raises the question: what does it mean to wax your car? Can you wax your car without wax? Ultimately, trademark’s answer is “yes,” but that’s not obvious.

Dolphin-free tuna: One possible definition of dolphin-free tuna is tuna caught in a net that didn’t happen to kill any dolphins. If the net brings up a dolphin, you throw out the whole catch. This doesn’t address the fundamental objection, which is that the method of catching the tuna routinely and predictably kills a lot of dolphins – but it remains the case that the cans of tuna don’t have any dolphins in them and didn’t even need to have dead dolphins picked out of them. The problem is in likely consumer understanding, as with Clinton’s parsing of “is.”

Not tested on animals: The Body Shop got in some hot water years back because of its definition of this term, which was that its particular products hadn’t been tested on animals. Some of the ingredients, however, were regarded as safe for cosmetic use because they had been tested on animals by others, and the Body Shop relied on that data. So is “not tested on animals” true or false?

Organic/made with organic: There has been substantial debate over the proper definition of “organic,” an official definition of which has now been adopted by the USDA. Products not meeting USDA standards, but meeting some other definition of “organic,” cannot be labeled organic. “Made with organic” is a separate standard, requiring at least 70% organic content. One effect of this rule is to decrease producers’ incentives to make processed food with organic content below the threshold, because they can’t truthfully advertise the organic content, and organic food is more expensive. It may also encourage producers to make more products with 70% or greater organic content and discourage them from adding a tiny bit of organic material to a conventional product in order to get the “made with organic” label. The overall effects are hard to predict.

Cajun: Can Cajun catfish come from China? This was the subject of a recent 11th Circuit case, in which a panel decided that it was not inherently misleading to label Chinese catfish “Cajun.”

Cashmere: What is cashmere? If cashmere is “recycled” – the fibers torn apart and reprocessed, creating a cheaper product missing some of the characteristics of traditional cashmere – can it still be labeled cashmere? It depends on what the meaning of cashmere is.

Safe and effective: To the FDA, a drug is safe and effective if that is shown by two sufficiently large, well-controlled studies. One study won’t do, nor will anecdotal evidence. Though individual doctors can prescribe and even proselytize based on their own experience with off-label uses of drugs, the drugs’ manufacturers can’t make claims unless they meet the FDA’s standards, lest they be deemed to have misbranded the drugs. Is the FDA suppressing truthful information, or defining what “safe and effective” means, or both?

Miles per gallon and milligrams of tar: These are both measurement systems chosen by the government from various alternatives. An advertiser can’t use other measurements, even though the government standards have known flaws and even if the advertiser tells the consumer that it isn’t using the conventional measurement.

A fetus is a human being: The New Jersey Supreme Court recently heard arguments in a case about what a doctor must tell a patient before an abortion. The plaintiff argued that, if she’d known that a fetus was a human being, she wouldn’t have agreed to an abortion. The doctor argued that requiring such a statement would force him to take a controversial moral and ethical position, and that in any event the patient must have known that a pregnancy at term would produce a baby.

These examples illustrate the vast range of situations in which truth and falsity, even for a single term, are hotly contested. Falsity aside, sometimes government regulates out of a direct worry over deception, as with the dolphin-safe tuna example. It’s possible that the tuna makers could eventually change the meaning of the term for consumers, but that might take a lot of time and cause substantial confusion in the interim. Moreover, reliance on changing consumer perceptions would also make it harder for producers who used safer fishing techniques to explain the advantages of their version of dolphin-safe tuna, which would also have the disadvantage of being more expensive because of the different production method. Thus, government regulation of the use of the term is justified as the fairest and most efficient way of avoiding deception.

Other times, government regulates out of concern over communication itself, reasoning that a fixed standard – as long as it’s reasonable – is in consumers’ interests to decrease “noise” regardless of deception. Consumers benefit when they can make comparisons knowing, or assuming, that all producers use the same standard, whether for organic food or car mileage or milligrams of tar. This has costs in fixing meaning and possibly deterring improvements that won’t show up on the standard measures, but it also has all the benefits that standardization usually allows.

The tradeoffs of government regulation can also be seen in the fact that consumers aren’t monolithic. Information, or lack of information, that helps some hurts others. Many consumers benefit from the government’s system of grades for meat, but more discerning consumers may suffer because they can’t get information about the differences at the highest end. We choose who to help by regulating or by refraining from regulation.

A common solution to this problem is to focus on who gets to decide what is false – the FTC, the FDA, or a jury. (And it’s important to recognize that even the people like Judge Kozinski who advocate full constitutional protection for commercial speech usually claim to want to preserve the common-law cause of action for fraud, which means that a jury would decide what “dolphin-free tuna” means.) We solve the problem of definition, in other words, by changing the question. That isn’t a real solution, since the decisionmakers on whom we rely will have to decide whose meaning to endorse. My own suspicion is that juries may not be better at this, and may systematically be worse, than agencies with experience evaluating a variety of advertising claims over time.

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