T.J. Chiang, George Mason University
Patents and the First Amendment
Patents on methods of communication: why isn’t this a 1A
problem? Similar to ©: can prevent other
people from saying what they want to say, how they want to say it. Eldred
solution doesn’t seem persuasive: patent at the Founders’ time was nothing like
this.
Printed matter: point of novelty can’t lie in printed
matter, but that doesn’t really apply to the situation here (where the patent
is on method of sending an advocacy message).
This isn’t content neutral because it’s a patent on a method of sending
an advocacy message, not just anything.
Strict scrutiny doesn’t fit well with patents. Would ideas of fair use, more robust printed
matter doctrine, more robust abstract idea doctrine help? SCt after Bilski says it’s no longer in common law
mode of making things up, but a theory with a foundation in existing doctrines
might help.
Betsy Rosenblatt: different points in system to address
this. The advocacy patent: enforcement
will necessarily impinge on core speech. That might best be addressed at
patentability stage. What if you took the word “advocacy” out of that claim,
this would be less disturbing, but maybe more abstract. May need to address at the infringement
level.
Chiang: content restrictions only end up in patents because
the patentee puts them there but doesn’t really need them. If the facial restriction allows you to
enforce just against people you don’t like, that creates 1A problems.
Q: many speech technologies are patentable—the printing
press when invented, for example. The telephone. What distinguishes them?
A: not much. Bell’s
telephone claims didn’t discriminate based on content, but covered useful
speech.
Edward Lee, IIT Chicago-Kent College of Law
The Freedom of the Internet
A form of popular constitutionalism: people
defending/defining the internet freedoms they believe in.
Some core concepts of free speech map easily onto core 1A—no
government censorship. But questions of
privacy don’t. Also, internet
governance. SOPA/PIPA protests were able to use core expectation to defend
decentralized governance. Privacy/NSA:
seen much slower reaction because US doesn’t have coherent constitutional
history for privacy compared to EU.
Movement’s claims aren’t all legal: political,
technological. Might have to go to sui generis principles, or statutory reform
to protect internet interests.
Reasons for optimism about getting principles into positive
law, but also barriers. Obstacles include:
public attention span/keeping people involved; defense is easier to mobilize
than offense; rights sought are greater than classic free speech leading to
mapping difficulties; different cultures/laws mean piecemeal progress; IP
intersections create difficulties—once we hit balancing of interests, that’s
difficult to get a determinate answer from (also true with privacy, nat’l
security). Even strong pro-freedom organization proposed that copyright shouldn’t
“disproportionately” interfere with
freedom.
RT: US does have history of intellectual privacy in
constitutional law—NAACP, membership privacy, professors, etc.
A: yes, but it’s not as coherent.
Q: are these all equal priorities? Equality, open architecture/internet
governance, free speech, personal data, and due process are all under his
sketch of “free and open internet,” but people might endorse one more than
others (and related subconcepts).
A: his sense is that activists often have all these on their
wishlists.
Rosenblatt: the diversity of views as a barrier to consensus. SOPA/PIPA protests centered around the idea
of fighting centralized governance, but others called it decentralized
governance in that the law would give ISPs the power to control so much—delegating
governance to the ISPs, even if the
ISPs didn’t want it. (May depend on what you mean by governance.)
Glynn Lunney, Tulane University Law School
The Right of Publicity and the First Amendment: A
Fundamental Re-Examination
1A seems like a convenient savior from overbroad IP. Turning
to 1A may further expand the IP rights we seek to contract, though.
The 1A isn’t appropriate here—doesn’t get the right
outcomes, draws weird lines. Means we don’t think enough about what the
appropriate boundaries of the right of publicity ought to be in the first
place. Also has the effect of drawing a
line in the sand; but the RoP then crowds up to the line, expands until it hits
that line.
Not clear why courts are better at identifying the sorts of
speech that are more fulfilling to us as individuals. Could live with that. But then there’s Comedy III.
Transformativeness is not a 1A value at all: there’s no 1A value in
saying “hell no, we won’t go” in a different way than the protester next to me. The line makes no sense, can’t be sensibly
applied, idiosyncratic, involves lots of aesthetic choices; thought that
Saderup was transformative and Tiger Woods wasn’t. Then there’s the Electronic Arts cases, 2-1
votes finding nontransformativeness.
Then CBC case: running a
fantasy baseball league is a core 1A value?
Is that really persuasive?
Zacchini: Justice White’s opinion is a straightforward
definition of the right: televising the entire act would destroy its value
(though he includes a footnote saying that it might not; but the only remedy
that Z would have under state law was damages, and if he can’t prove them he
gets nothing, so that’s a case for the RoP).
Compared to EA with realistic avatars—here’s a market, where injunctive
relief is an issue, and where you need permission from 1000s of athletes or you
can’t create the product you’re trying to create. For CBC, better to argue that there should be
competition in provisioning fantasy baseball instead of allowing MLB to control
monopoly. 1A is a diversion from whether
it makes sense to have the RoP cover certain uses.
Finally, drawing a line leads to expanding the RoP. Copyright: Baker v. Selden—risk of saying
that ideas are free is that all expression becomes property; market failures
are fair use flips to no fair use where market exists.
Mark McKenna: Transformativeness makes some sense in ©
because you can think coherently about what it means to transform the subject
of the work. But that doesn’t make sense with an identity. If an identity is transformed, there’s no
violation of the right, since the right is in the identity.
A: agrees.
McKenna: how would courts make the decision about whether a
use should be monopolized? The RoP confers a monopoly by definition.
A: fair q, but we haven’t developed that vocabulary.
Fromer: how much does this depend on RoP remaining mostly
court made? Legislatures may embrace
robust definitions.
A: well, that’s Lochner. So we tolerate when they get it wrong.
Welkowitz: that gets sticky when you have forum-shopping
(e.g., Indiana with its wide jurisdiction and 100 years, Tennessee with its
perpetual protection). This may explain
why the 1A is attractive: it’s a national standard.
A: does the 1A give you uniformity? 9th Circuit deferred to the Cal.
appellate courts on scope of transformativeness. Of course it’s right that legislatures are
predictably wrong in certain areas, even economic regulation, but RoP is not
unique in that regard. Maybe choice of
law matters.
RT: NB: my husband agrees that the Saderup Three Stooges are
transformative: heroic presentation. Almost all 1st A Ps will look
petty; that hasn’t been much of a barrier.
Generally: I am a fan of this
argument about risks of going to the 1A/the value of pure copying. But I think the RoP absolutely
unconstitutional as applied to noncommercial speech, and unconstitutional
applied to nondeceptive advertising. So
I would say that done right the 1A gives the right answers; somehow the
California Supreme Court has gotten to say what the boundaries of the federal
1A are, and that’s the problem.
A: relying on the 1A distracts us from developing the
doctrine within itself. (RT: but I think that’s like saying that we should be
focusing on the internal limits of seditious libel—we don’t need to do that if
the 1A bars enough.)
Amanda Reid, Florida Coastal School of Law
Copyright Capture: The Power of Music and the First
Amendment to Set it Free
Incumbent forces have captured copyright doctrine, so the
courts are the bulwark to protect us. Music is “making other people’s speeches.” Music is a compelling case for using
expression, not just ideas. Benefits to
individual: literature on value of music to help with pain management, healing,
autistic children, drug abuse relapse prevention. Music triggers the pleasure centers of the
brain. Encourages empathy, creativity, nonviolence, cross-cultural education. Protests, political change. Music is core political and social speech.
But music today is locked up by conglomerates. Congress is captured. The copyright ratchet
is in full force. Though the public
interest is hard to define, we can at least identify sick
processes/policies. Court defers too
much. In light of capture, and in light
of the value of music, the Court should engage in more searching review. A checking function.
Unconstitutional limits: the sound recording performance
complement, and the other regulations on what internet broadcasters can
play.
Definitional balancing: whether value of music outweighs gov’t
interest in regulating speech. Companies
are paid royalties; broadcasters want to use actual expression; the traditional
contours of copyright have been altered.
Q: is music that special?
With internet broadcasting, the argument becomes more clear, but why isn’t
this argument more general?
A: because the rules are special for internet broadcasters.
Andrew Gilden: why doesn’t fair use cover the political uses
and special cases?
A: the webcasting limits are additional to that, and the
webcasters are paying for their uses.
Kristellia Garcia: concerned about harm. But would this speech that you’re talking
about be behind the walls? Protest songs etc. are more open.
A: but now is locked up.
Q: but many folk songs are on smaller labels. Rhetorically: the categorization of special
interests is difficult. One person’s special interest is another’s
livelihood. There are diverse
viewpoints, as exemplified by this group.
(And our large corporate donations.)
Q: why isn’t antitrust a better way to go?
A: that would be a good idea/different paper.
Chien: why focus on the SCt?
A: more opportunity to move 6 people.
Rosenblatt: Is all music the same? Music industry has captured some of the music
distribution process, but copyright forbearance may end up being a big part of
the way music gets used as core speech.
Rebecca Tushnet, Georgetown University Law Center
Stolen Valor and Stolen Luxury: Free Speech and Exclusivity
Warning: it’s now 3 pm to me and I still haven’t had any
Diet Coke. Started with
Breyer: “Those [other] prohibitions, however, tend to be
narrower than the statute before us, in that they limit the scope of their
application, sometimes by requiring proof of specific harm to identifiable
victims; sometimes by specifying that the lies be made in contexts in which a
tangible harm to others is especially likely to occur; and sometimes by
limiting the prohibited lies to those that are particularly likely to produce
harm.” Fraud statutes are an example of the first category, requiring proof of
materiality, reliance, and injury. But all the interesting work happens in the
second and third, where legislators decide that categories of
misrepresentations, or specific contexts, make harm particularly likely.
In a footnote, the dissent made a very important point:
there is a potentially big difference, for First Amendment purposes, between
“each case must show individualized harm” and “the legislature can reasonably
decide that a situation poses so much risk of harm that it may be banned or
criminalized.” The Court’s skepticism of
blanket legislative determinations of risk ultimately produced the “clear and
present danger” standard for antigovernment speech, rather than the earlier
“bad tendency” test that allowed the state to punish all antigovernment speech. But most courts still presume harm in
dilution and post-sale confusion cases without any showing of actual, present
harm—indeed, the standard is explicitly only that confusion or dilution must be
“likely.” The presumption that any kind
of confusion or mental association is likely to cause a trademark owner harm
drives many decisions. Other speech
regulations require more. An
individualized proof requirement can substantially constrain the scope of a
law, and even deter unmeritorious and speech-chilling suits.
My argument about TM law, including dilution, has two parts:
(1) certain kinds of harm are not constitutionally cognizable. Harm to reputation caused by nonfactual,
nonfalsifiable speech shouldn’t be actionable—that’s the lesson of NYT v. Sullivan
and Falwell v. Hustler. (2) Even if we
believe that dilution and post sale confusion can cause economic harm and that
should be actionable, such harm, along with harm caused by deception is too
easily presumed in TM cases.
The black-letter doctrine has long been that actual harm
from confusion is so hard to show that it can simply be presumed for purposes
of granting injunctive relief. Courts
rarely explore the alternative hypothesis: maybe harm is often hard to show in
noncounterfeiting cases because harm is uncommon.
As Laura Heymann noted, decisionmakers who think of
reputation as something with commercial value can easily translate that belief
into findings of likely harm, even without a sound factual basis. Decisionmakers may worry that other people
are more easily swayed by negative, nonfactual messages than they themselves
would be, increasing a bias towards finding harm. These problems fit into a larger literature
about cognitive bias: people who dislike something are likely to consider it
harmful. This poses a significant challenge for First Amendment doctrines that
allow regulation when speech causes tangible harm, but disallow it when speech
only causes offense. Unpopular speech,
including copying that smacks of free riding, will readily be deemed harmful.
Trademark’s property rhetoric helps insulate it from the
otherwise antiregulatory thrust of modern Supreme Court jurisprudence. To the hierarchical individualists who
dominate there, free riding for profit will appear more harmful than buying
politicians for profit: one is use of legitimately obtained power (hierarchy)
and one is illegitimate use of another’s reputation (defying hierarchy). In the case treated as completely sensible by
every opinion in Alvarez, the Court found the Amateur Sports
Act’s prohibitions on unauthorized uses of the Olympic marks to be a reasonable
way to protect the USOC’s “legitimate property right.” The Court held that Congress could
reasonably have determined that an explicit likelihood of confusion requirement
is unnecessary because most commercial uses of the Olympic marks are likely to
be confusing or at least to harm the distinctiveness of the marks (that is, to
dilute them). It did not examine the
evidence Congress had used to conclude that these were real problems.
When the supposed property rights of a respected institution
are not implicated by a government regulation, by contrast, the Court is likely
to scrutinize the evidentiary record with greater care. Alvarez is but one example. In Brown v. Entertainment Merchants
Association, the Court was much more skeptical about the link between violent
video games and increased aggression in minors, despite dozens of studies
supporting a link. Likewise, the Court
demanded much more in the way of proof of a connection between speech and harm
when striking down a ban on “virtual” child pornography. The common-sense claim that sexual images of
unreal children will lead viewers to act against real children seems no more
tenuous than the claim that a local business’s use of “Victor’s Little Secret”
could someday lead to fewer purchases from Victoria’s Secret, especially since
the latter is explicitly framed as a mere likelihood of dilution and dilution’s
harm is always posited to occur sometime in the future.
Judges’ preconceptions about harm are likely to present
great barriers to change, unless and until advocates can retell the stories of
infringement and dilution and show how they are more like claims to avoid
offense than they are like claims to avoid injury from defamation.
Recent developments after eBay hold out some hope for more serious interrogation of
trademark’s harm stories. In 2013, the
Ninth Circuit held that “cursory and conclusory” invocations of irreparable
harm, not based in any specific evidence before a court, would be insufficient
to justify an injunction. Further,
“citation to a different case with a different record does not meet the
standard of showing ‘likely’ irreparable harm.”
Applying this case, a district court then rejected the argument that confusion
about plaintiffs’ responsibility for the defendant’s product could harm the
plaintiffs’ reputations when defendant delivered a shoddy product. Although this “lost control over reputation”
theory has long been accepted by courts as a reason that consumer confusion is
always harmful, the district court pointed out a logical and factual gap:
plaintiffs didn’t provide any evidence of shoddy manufacturing, making their
theory of irreparable harm “purely speculative.” While presented as a matter of equitable
principles, this demand for an individualized, evidence-based showing of harm
can also be speech-protective.
The challenge is now to go beyond that inquiry, which is
limited to the injunctive relief aspect of a case, and look at TM harm more
generally.
Gilden: eBay insulates harm from the doctrine itself. Is the proposal to have a more robust 1A
defense?
Lunney: do we need to push back given difficulty of getting
damages? If we have eBay working.
Ochoa: how much attributable to likelihood language in
statute?
Calboli: harm to legit interest of proprietor is the int’l
standard.
Said: actual malice as a limiting standard?
RT: difficulty is actual malice about what? The Rolling
Stone tobacco case shows the difficulty if the actual malice isn’t malice
about whether some fact is true, which is a comparator in the world we
have. Actual malice about whether
something’s an ad or is free riding different?
McKenna: either Congress can decide wholesale on one extreme
or you have to do it retail. Likelihood language is challenging. Middle: congress doesn’t get to decide it’s
harmful generally, but a court has to find that this kind of confusion, if
happening, is likely to cause harm.
Chiang: how does Alvarez fit into this? What if Alvarez is
wrong, and dilution is also ok?
Rosenblatt: Many times Congress decides something is harmful
when it might not be. Patent infringement too.
(eBay is not a constitutional standard.)
We don’t want TM to be one of those situations.
RT: and now we’re back to Lochner & footnote 4.
Q: how do you think of dilution’s history? Cts were
skeptical at first.
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