IPSC: Closing plenary: DOGE; the First Amendment (me!); and the 50th anniversary of the Copyright Act

David Schwartz (Northwestern Pritzker School of Law), Christopher Cotropia (The George Washington University Law School), DOGE Days at the USPTO? Evidence from a Natural Experiment in Administrative Reform

PTO provides some employees w/union protections and others not. As soon as DOGE hits, nonunion staff productivity goes way down, while examiner productivity remains constant. Admin has acknowledged patent examiner union; did not try to enforce return to office mandate.

Staff makes sure drawing is sufficient and application has all necessary parts. There’s a lot of activity; staff does more than examiners—total nearly 53% of events while applicants represent about 30% (necessary activity before next step is triggered for someone else), and examiners do the rest. There’s a strong correlation b/t how busy examiners are and how busy staff is. Relatively parallel trends.

But after DOGE, activity dropped—not because people were fired/left although examiners dropped by 1% and staff dropped by 5%; result holds even normalized by employee—a 40% drop in productivity for staff and nothing significant for examiners.

What if threat of tariffs spooked applicant behavior? Checked for that; enormous PTO backlog makes unlikely, but maybe it could delay responses to OAs. Even when we sample to just account for things where applicant delay won’t matter, same results.

Implications: significant costs from admin reforms like DOGE. Abrupt intervention in administrative state that created a lot of uncertainty & ambiguity. Unappreciated benefit of benefits of unions/job security: unions are accused of resisting change. Will be studying longer term effects as well.

We didn’t look at quality, but we did look at whether they changed the mix of things they did (maybe initial responses are easier) but they didn’t.

Rebecca Tushnet (Harvard Law School) History and Tradition in First Amendment Intellectual Property Cases

I’m going to skip over as much IP doctrine as I can make myself ignore on the theory that most of you know at least some of Zacchini, Eldred, Golan, Jack Daniel’s, and Elster. I’m going to focus on trying to draw connections between the First Amendment IP cases and what we might expect from seeing history and tradition as a method expand to more of the First Amendment.

The news is not good. “History and tradition” as constitutional theory is originalism unconstrained by textualism. Unlike in the Second Amendment context, where the Court has reasoned from things earlier regulators didn’t do to strike down gun regulations today, in “history and tradition” First Amendment law the Court has reasoned by broad analogy to allow new speech restrictions.

This is not a result of politicization, even if the adoption of the method is politically driven because originalism wasn’t getting the right results. It is the result of the impossibility of using history and tradition without a theory of how to make good analogies from the past to the present. History and tradition thus does not meaningfully constrain Justices even in low-political-salience areas like copyright and trademark.

Most discussion of the risks of Bruen-izing the First Amendment has so far focused on the risks of reviving speech controls in their historical form such as blasphemy, obscenity, and unfettered defamation law. The IP story shows that it’s worse than that: it is fully possible to appeal to history and tradition to further expand control of speech beyond historic limits. At a bare minimum, the considerations present in other modes of free speech reasoning—the considerations involved in tailoring regulation to regulable harm—remain necessary even when consulting history and tradition.

As Richard Fallon noted, the strict scrutiny test “evolved simultaneously in a number of doctrinal areas” by the 1960s and quickly came to “dominat[e] numerous fields of constitutional law.”  Strict scrutiny as a standard means that the government must show that its actions were “narrowly tailored” to further a “compelling government interest,” and that they were the “least restrictive means” to further that interest. In First Amendment cases, it is usually strict in theory and fatal in fact.

Not too long ago, the Roberts Court seemed destined to use strict scrutiny liberally to invalidate many government speech regulations. The court struck down campaign finance laws, privacy laws, and anti-animal crush video laws, and in 2015, the Court announced that strict scrutiny would apply to all content-based regulations, including noncensorious regulations like those of a city trying to specify which signs can go where and for how long. But, the composition of the federal courts has changed, and the Supreme Court is clearly open to throwing out decades of precedent.

In the Second Amendment case Bruen v. New York, the Supreme Court held that only gun restrictions that met a stringent historical compatibility test would be allowed. But judges are rarely trained historians, and history tends not to speak in one voice. Reflecting some of the resulting problems, in a followup case, Rahimi, a majority of the Court reiterated that its test did not require a “historical twin,” but rather a “historical analogue.”

To understate matters, it is not yet clear what constitutes a sufficiently close analogy. One possibility is that the analogy is sufficiently close when the Court tells us it is. But that’s not law.

Any serious attempt to apply history and tradition as a legal standard has to grapple with the well-known challenges of analogical reasoning. And unfortunately the IP cases do not suggest that the Court will be able to do so.  The unifying factor in the First Amendment IP cases is their reliance on history and tradition to uphold a speech restriction whose contours had been substantially expanded from those known when the Constitution—or the Fourteenth Amendment—was adopted.

In the gun cases, the Court begins with the presumptive coverage of gun rights (the people have such rights, for self-defense) and then looks for whether history approves of the challenged limits on those rights. In the First Amendment IP cases, the Court does not begin with the presumptive coverage of “the freedom of speech,” but rather with the historical compatibility of intellectual property claims with free speech. This sets up the result: new IP rights are also fine.

In Zacchini, for example, the Supreme Court consistently characterized the conflict as one between the television station’s First Amendment rights to report news and the performer’s interest in his “entire act,” the latter of which was equivalent to a well-recognized common-law copyright claim.  Lower courts then immediately disregarded the Court’s analogy and started approving almost anything called “right of publicity.” But Common-law copyright in an entire performance is very different from controlling any mention or evocation of an identity. Bruen-type attention to the right of publicity’s different subject matter (what Justice Thomas called the “how” of regulation) and justifications (what he called the “why” of regulation) compared to copyright could have helped limit overreaching claims.

More recently, the Court used history and tradition to reject two First Amendment challenges to new copyright legislation. Rather than analyzing whether these changes were speech regulations subject to intermediate or strict scrutiny, the Supreme Court reasoned that term extension and creating federal copyrights where none had previously existed were both things Congress had done before, so no additional First Amendment analysis was required. 

As long as Congress acted within the “traditional contours” of copyright, the Court told us, its acts required no further scrutiny. But what are those traditional contours, since we know after Eldred and Golan that those contours don’t include “a work’s term of protection is the term specified when it was created” or “a work in the public domain stays in the public domain”? Copyright’s subject matter, covered rights, and scope of what constitutes infringement of a right have all expanded dramatically since the Founding. I should note that I don’t generally oppose these expansions; my argument is instead that the thing we call copyright is very different from what the Framers called copyright, so saying that their copyright was consistent with the freedom of speech doesn’t tell us an awful lot about our copyright without a theory of how to compare theirs to ours even if “the freedom of speech” remains constant.

The Court did identify fair use and the idea/expression distinction as key traditional contours of copyright. But Congress has passed laws that cut sharply back on fair use in the digital context. Lower courts both before and after Golan have said it’s constitutional to prohibit “circumvention” of digital access controls even if that makes many fair uses impossible. If your only guideline is “traditional contours” and there is a history of contracting freedom to use copyrighted works, then it’s difficult to tell when the traditional contours have been unconstitutionally reshaped.

Even more recently, trademark law has seen the same untethered use of history and tradition. In Jack Daniel’s, the court essentially reasoned that, because trademark law is historically grounded, source-identifying uses that cause deception must not be part of the speech historically protected by the First Amendment.

But there are even worse problems with the analogy to founding-era trademark than there are with analogizing to founding-era copyright, given the lack of a substantive federal registration system until the mid-20th century, the vast expansion of subject matter, and the vast expansion of what constitutes infringement, not to mention the invention of dilution.

Then, in Vidal v. Elster, most of the Justices appealed to history and tradition as supporting the names clause that bars registration of a living person’s name without their consent. But the cracks in history and tradition were finally noticeable even to them: Should the analysis be at the level of the purpose of having a trademark registration system? A registration system needs to make content based distinctions to function. Does that mean that any content-based regulation is ok? That would allow Congress to, for example, deny registration to any trademark that made reference to birth control or abortion. That’s a very broad analogy.

Justice Thomas’s opinion for the Court relied on the long tradition of providing unfair competition protection to names in tort lawsuits brought by the person whose name it is, as well as of allowing people to use their own names in commerce even when someone else has already used that name in a line of business. That is, “a tradition of restricting the trademarking of names has coexisted with the First Amendment … Though the particulars of the doctrine have shifted over time, the consistent through line is that a person generally had a claim only on his own name.”

This is mostly true, but unhelpful: First, the reference to “trademarking” a name is ahistorical because, historically, trademarks arose from use in commerce. “Trademark” wasn’t a verb. The registration system is not the same thing as allowing a private right of action for name confusion. This is a clear example of how the history and tradition approach expands judicial freedom—Justice Thomas didn’t even seem to notice that he was generalizing from individual private infringement suits to a government-run registration system that bars certain registrations even in the absence of private opposition.

Second, even if we accept the jump between private tort claims challenging specific uses and a statutory restriction on registration, that common-law history has an obvious link with Section 2(a), the prohibition on false association. Section 2(c) goes further—its only independent utility is when it applies to a mark that wouldn’t falsely suggest a connection. Barring registration of DEMOCRATS AGAINST ELON MUSK doesn’t seem like it’s going to facilitate source identification. This is especially true given the difference between registration and actual use: Even without a registration, Elster can (for now) sell his TRUMP TOO SMALL T-shirts, thus inflicting the same source- or reputation-affecting consequences on the world.

Bruen directed courts to consider whether new gun regulations were sufficiently analogous to past ones in the “how” and the “why” of their burden on a law-abiding citizen’s right to armed self-defense. By contrast, in Elster, Justice Thomas’s opinion ignored both the how of past regulations—through infringement claims—and the why—fraud prevention instead of protection for a free-floating interest in personality.

Justice Barrett’s concurrence was attentive to this gap. As she wrote: “[T]he Court’s evidence, consisting of loosely related cases from the late-19th and early-20th centuries, does not establish a historical analogue for the names clause.” The ability to cherry-pick a few cases out of the historical record allows for a lot of manipulation, especially in a common-law nation where there is no such thing as an unbroken, consistent line of cases.

The majority approach has both a timing problem and a conceptual problem. For timing, why is the late-19th and early-20th century important when it was neither the Founding nor immediately around Reconstruction? Conceptually, Barrett wrote: “[T]he Court never explains why hunting for historical forebears on the restriction-by-restriction basis is the right way to analyze the constitutional question.”

A key issue is that the founding era had comparatively few laws and more reliance on judicially recognized causes of action than we do now. In common law adjudication, even when judges articulated general principles, they were applying them to particular facts, so limiting principles that weren’t presently relevant in the case before them were often omitted from discussion. Perhaps more importantly, the analogy between the historical caselaw and a statute would have to come from identifying the rule emerging from the caselaw and comparing it to the statute. And any grouping of cases to give a “rule” has to have an underlying theory of what unites these cases: a classic level of generality problem. “Historical cases were about protecting rights when names were used as source-identifiers” is one theory, but so is “historical cases were about protecting rights when names were used deceptively as source-identifiers,” which creates a different baseline.

History and tradition is probably going to play a bigger role in future First Amendment cases, as this year’s Paxton v. NetChoice decision upholding age verification requirements for certain websites signals.  In Paxton, the Court used a history of regulating minors’ access to obscene-for-minors speech to identify a legitimate state interest in identity verification legislation. But website age verification is unlike brick-and-mortar age verification because it can potentially be saved for government review or exposed to hackers (something that just happened with the identity verification for a women-only app, Tea and its male competitor TeaOnHer), and it is very expensive, as opposed to the very low marginal cost of checking IDs in a store staffed by humans.

The broader lesson is that a law’s overbreadth, underbreadth, and harms compared to the alternatives for achieving the government’s interests are necessary considerations, but ones not facially addressed by history and tradition. History simply doesn’t supply its own analytic framework, and “sufficiently close analogy” is not all that helpful.

The flabbiness of history currently works differently for different constitutional rights. Most of the work of the history and tradition test in Second Amendment law comes from what legislators didn’t do—they didn’t regulate guns in particular ways. In the First Amendment context, by contrast, courts have extrapolated from private rights courts and legislatures granted in the past to allow them to grant new and expanded private rights in the present for similar reasons. Anti-gun regulation judges can dismiss inconvenient past examples of gun regulation as misunderstandings. Pro-IP rights judges can seize on outlier cases, or simply use the general justifications for IP rights expressed in past cases and treat them in isolation from the countervailing considerations that formerly limited those rights.

The expansion of relevant evidence beyond text to any practice (or nonpractice) of legal regulation aids in the project of judicial freedom: In such a vast corpus, who could deny that there must be some errors and misunderstandings in there? At the same time, judges can dismiss inconvenient past limits on IP rights as matters of legislative grace, and can always find at least some expansive descriptions of the private interest at issue, which then justifies further expanding the scope of the right.

The manipulability of levels of generality in defining an interest grounded in history and tradition requires more legal tools than are currently on display—and those tools cannot be found in “the past.” They require interpretation and judgment.

Therefore, although the tiers of scrutiny may be shaky for various reasons, the concerns they implement will not go away. In the First Amendment, those animating concerns include: worry about government suppression of views it doesn’t like, whether by viewpoint-based laws or laws that in practice discriminate against particular viewpoints; related worry about government’s ability to identify when speech actually causes harm rather than just causing upset; not unrelated but separate concerns about overbreadth and underbreadth, where poor targeting of a regulation may reveal bad motives or just unwarranted discrimination against certain kinds of speakers when other speech causes the same harm but remains unregulated.

One useful question is whether a speech restriction matches well to the putative harm it addresses. If its harm-prevention claim relies on an extended causal chain that could be interrupted by other factors, or is unpersuasive as a justification for the law at issue because of the amount of harmful speech it leaves untouched or the amount of harmless speech it suppresses, then we should identify a constitutional problem.

That is, considerations of fit—usually considered as part of the second and third prongs of strict or intermediate scrutiny—cannot and should not disappear even if the “compelling government interest” and “substantial government interest” standards are replaced by a test that requires the government interest asserted to be recognized by US history and tradition. Indeed, tailoring concerns are likely the only way to evaluate whether newly enacted laws are consistent with a history and tradition of allowing some speech regulations and not others. Historical analogies can start us off, but we will still need to ask about tailoring and alternatives.

Zacchini, the right of publicity case, could even offer us a potential model if we took the historical analogy seriously as a limit on what lawmakers can enact, as in the Second Amendment context. After all, there were reasons why common-law copyright in unfixed performances didn’t prevent most reporting about what people said or looked like.  Better still though would be to take on directly the project of identifying the relevant government interest and the extent of a regulation’s impact on speech that ought to be protected.

[very good questions I didn’t get a chance to write down, sorry! Among others, Mark Lemley suggested a Bruen-type approach: if they didn’t do it before, they can’t do it now. There’s a lot of debate in the broader con law literature, but I think it’s probably more important to make sure that the competing interests are defined at the same level of generality—freedom to choose nonconfusing marks, for example, instead of freedom to use someone else’s name in a nonconfusing way, if you’re going to describe “source indication” at a very high level of generality as a justification for the names clause.

Jake Linford asked whether the relatively recent historical pedigree of strict scrutiny gave me any pause. No. First, I carry no brief for strict scrutiny as such; European congruence and proportionality also provide tools to address causation/harm/tailoring issues that history & tradition can’t alone address. Second, there is a difference between a constitutional commitment and how that constitutional commitment is implemented. NYT v. Sullivan is a good example—defamation was well known as a legitimate cause of action, but its dangers were also well known and the SCt thought we’d learned enough about them to put new procedural barriers in place. Another example I didn’t mention is the Miranda warning—when we know that specific problems recur, we can change our implementation of the constitutional guarantee even as the guarantee remains the same.]

Elizabeth Townsend Gard (Tulane University Law School), Zvi Rosen (University of New Hampshire Franklin Pierce School of Law), 50 Year Review of the 1976 Copyright Act

Gard is new EIC of J of © Society; looking back on 50 years and forward to next 50 years b/c Next Great © Act seems unlikely. Doing interviews w/prominent scholars/lawyers/legislators. We want to take a snapshot of © in 2026, so engagement is welcome; there’s going to be a conference at GW in Oct. 2026. Younger scholars encouraged. Copyright Society Research Guides: for scholars to use.