IPSC: Copyright Fair Use and User Rights/Trademark IV

Copyright Fair Use and User Rights

Stav Zeitouni, UC Berkeley School of Law, A Theory of Noncommerciality in Fair Use

Lots of incoherent concepts—Hachette v. Internet Archive is example where dct used “failed to pay the customary price,” but ct of appeals said the use was noncommercial but didn’t matter b/c the use was not transformative so factor 1 favors publishers. If transformativeness is dispositive, what use is commerciality?

Incoherencies: (1) how to define ‘commercial’? and (2) what weight should it carry normatively? What kind of use is noncommercial use? A category, a descriptor of other kinds of uses like scholarly/educational, something else?

Components: customary price, market harm, nonmonetary gain, indirect profit, monetary profit. The first three shouldn’t be included in the definition of commercial uses. (Paper goes into detail; I am persuaded.)

Normative weight: sometimes courts treat commerciality as a semantic/descriptive exercise as whether profit is being made, and it’s used as a heuristic for factor 4 on market harm. No normative weight beyond factor 4’s own. But sometimes they use it in a categorical/normative way, which is what Google v. Oracle does to tip the first factor. Thinks that there is normative weight to noncommerciality.

Two normative ideas: (1) incompletely commodified copyright. Things are, normatively and descriptively, fully commodified nor fully noncommodified. We treat and regulate cultural objects in ways reflective of this. Thus, universal commodification in © is dangerous: Elkin-Koren writes that when culture is turned into a market it reduces citizens into potential consumers and treats them as goods themselves. Zeitouni: access and freedom to use are what allow creative practice to occur. Both require that commodified & noncommodified understandings exist w/in ©.

Noncommerciality as a signal. The original work is assumed to be commodified b/c of the justifications for copyright law. The use might be commodified or noncommodified (parody, scholarly work); the secondary work might be commodified or noncommodified. Transformative use works at the level of the use; noncommerciality maps on more strongly to both work and use.

Can think of two axes: public benefit/private benefit, and nonprofit/for profit. Mixed purpose could be public benefit for profit, and a purely commercial area that is smaller than what is generally recognized.

Hachette: correct on the definition but wrong on the framework; noncommerciality

Xiyin Tang: how do you view the disconnect b/t © and 1A noncommerciality? What Tang worries about is equating commerciality w/profit-seeking—seems to diverge even more deeply from 1A definition of “speech that proposes a commercial transaction.” Lots of areas, like right of publicity, borrow a lot from © but also hew more closely to the 1A definition for finding coverage and don’t cover much nonadvertising speech.

A: haven’t worked that out. We’re already seeing problems from ©’s incoherence. The more you stretch commerciality to include reputational gain, etc., the more trouble fair use has.

Jacob Victor: isn’t this covered by transformativeness and the fourth factor? GvO discusses public benefit in the fourth factor already as well as market usurpation. Warhol: Mutant 1^st/4^th factor [to me this is why her project is very useful]

A: it doesn’t replace transformativeness, certainly not in rhetoric. Concerned about cases in which work is noncommercial and nontransformative. The concepts do different work. [the disability aspects of Google Books are a really good example here] The more noncommercial a use is, the more that should tip factor 1, just like transformativeness.

RT: [Loved the point that “customary price” in the Nation case is really about bad faith.

Good point about how discounting noncommerciality in nontransformativeness cases and discounting commerciality in transformativeness cases leaves noncommerciality with an unclear role to play, though I have a little caveat. “In contradiction with the Circuit Court’s finding in Hachette, this would mean that there ought to be cases in which the mere fact that a use is noncommercial tips the scales of the first factor” – is this a contradiction? Or just a criticism of the CDL aspect of the case instead of the uncontrolled digital lending? Or just a disagreement about the role of other factors? Maybe Hachette just isn’t one of those cases where noncommerciality tips the scales given how much of the work was used, just like TVEyes is a case where the defendant just took too much despite the transformativeness of its offerings.

GvO’s treatment of teaching and scholarship as noncommercial is not necessarily categorical or normative—I read it as empirical—most teaching and scholarship in this country, and at the time the Act was enacted, is and was carried out for noncommercial, that is nonprofit or governmental, purposes.

Final tiny suggestion: look at history of fan art and fanzines—often sold, but communities consider them different from conventional commercial publishing. ]

The only thing I managed to actually say: I was looking for more robust argument against what Lemley calls Chief Justice Webster/the dictionary definition. Full disclosure: I like using the dictionary because it offers a relatively narrow, profit-seeking definition of commerciality, which can be used along a spectrum of direct and indirect profit to further calibrate. I think this is a thing that more judges can reliably do than engage with commodification more broadly.

A: Unfortunately has seen judges use dictionary definitions that don’t mention profit to go the wrong way; the larger concern is the normative effect of a commerciality finding.

Trademark IV

Kevin Collins, Washington University in St. Louis School of Law, Trademarks and Clarity in Consumer Expression

Trademarks serve an extra function of clarity for consumers who bear the TM, even without confusion, justifying liability in some cases even without source confusion (though less often than courts have recognized). Consumers convey messages about their own identities by wearing brands. Not a claim about Veblen goods but about self-definition. Consumers can speak more clearly about themselves where there is more control over TMs by TM owners.

Enthusiastic consumers want to use TM to signal intensity of their affiliation with the brand message. How? They look to other consumers wearing the brand—“reference group” in consumer-identity theory of brands. Not atomistic.

A devoted beachgoer wants to signal passion for salt-water sports. If there aren’t exclusive rights SALT LIFE won’t signal well—even people who are “meh” about salt-water sports can display the mark, making the intensity signal fuzzy. If exclusive rights exist, meh consumers are priced out of the market, eliminating the fuzzy signal. Economic model proves this.

Agrees that liability is often too expansive, but need to consider clarity benefits even w/o core consumer confusion. But should only do so if mark carries identity-relevant brand messages, which many marks don’t do. [Are there any prominent P victory post-sale confusion cases where they don’t?] Also, only if the mark involves public display. Self-symbolism of using Ivory soap doesn’t count. And consumers need to value clarity; where usage creates belonging and consumers want to feel like part of a really large group—that might be true for university logos in many situations. And it should be only if the TM owner shows interest in culling reference group—if giving away TM items for publicity purposes, then no.

Lemley: I don’t think you’ve successfully distinguished Veblen goods. For your theory to work, it has to be the case that the value comes from the ability to exclude people from the group (consumers need to value clarity) and lets you charge higher prices. In what universe is that true? In cases where people in the group benefit by excluding others; we are small and select and no one else can be in the club. The reason TM owners of luxury goods adopt the Veblen approach is b/c they understand that’s what makes their marks more valuable.

A: would disagree—there’s something different between Michigan and Ohio university hats. [Didn’t he just say that universities might not count?]

Grimmelmann: If you have no TM rights, strong affiliated people will want some mechanism other than wearing the hat—they’ll wear 6 hats. If they are priced out, they’ll make their own hats if they’re really strongly affiliated. [That is, as Dinwoodie says, being passionate and being able to afford the hat are not correlated (unless you’re just talking about Veblen goods).]

McKenna: your entire theory is about vertical differentiation: some Michigan fans v. meh Michigan fans.  

[RT: The principal-agent problem here is shown by Tesla. People who bought Teslas in 2018 do not feel like they can speak more clearly about themselves.

The paper’s example of a girl wearing her dad's band T-shirt without knowing anything about the band, much to the disappointment of the guy who tries to chat her up, is a really clear expression of why the ability to jack up prices—even if it exists, which I don’t think the paper establishes for non-luxury brands—has no relationship to clarity of consumer signaling. That girl got that T-shirt in an environment fully willing to suppress post-sale confusion and dilution. But once the T-shirt entered the market, anything could happen to it. Same thing happened to Burberry with chavs and various liquor brands w/rap.

More broadly: This theory doesn’t work if there isn’t price differentiation—this is one thing Posner points out in the Ty case, which is that competition still keeps prices down even if brands have horizontally distinctive value in the abstract. Most T-shirts with brand names sell for roughly the same price, and Ohio State and Michigan State shirts definitely do. If that assumption is wrong, then there is no clarity/access tradeoff.

But most important of all: The paper relies on the assumption “that trademarks signal the intensity with which consumers embrace brand messages.” We have lots of evidence to the contrary. It’s the unauthorized merchandise that shows real consumer signaling—Harvard Debate or Thomas Jefferson Band Brass Section T-shirts show more loyalty than Harvard Law or Thomas Jefferson High School T-shirts. The economic analysis assumes that authorized merchandise sends the strongest signal. My student Jaime Gordon has done a study of Taylor Swift’s legal strategies that contradicts this claim. The person who buys Taylor Swift merch on Etsy is often paying at least as much, and sending a much stronger signal—one that is likely to be received as such—than someone who buys a concert T-shirt. Pretty much any fandom behaves similarly. And it’s the unauthorized or unofficial merchandise that is most likely to be nonconfusing but still actionable under these extended theories. If the assumption that wearing an unaltered version of the mark signals intensity is wrong, then the model breaks down.

More generally, I don’t see why current group members have a greater interest in preserving meaning than anyone else does in having meaning change. That girl has an interest in being the kind of person who wears her dad’s band T-shirts. And if Salt Life isn’t good enough to signal “I like the beach” because too many people have Salt Life clothes or stickers, then “I heart the beach” remains perfectly available.]

Jake Linford, Florida State University College of Law, Content–Based Trademark Regulation

Elster: content based regulations of TM registration have to be fine b/c TM is a content-based regime. Different Justices seem fine with reasonableness or rational basis standard, like Eldred and Golan. Congress can do what it wants.

But what about tarnishment and Tam/Brunetti? Some questions arise:

Is protection against tarnishment consistent with “history and tradition”? Thomas quotes Learned Hand from 1928 that appropriating reputation of a mark is an injury even without tarnishment b/c reputation is a symbol of its possessor. Early 20^th century would allow regulation of morality or public policy.

Is it reasonably related to TM’s purpose of preservation of goodwill and/or prevention of consumer confusion? Barrett says that shoddy goods/services might jeopardize the named individual’s reputation. That sounds like tarnishment would be good enough to her.

Is there enough evidence of tarnishment to provide Congress with a basis for anti-tarnishment? The evidence is not very strong, but maybe the Court will presume that it happens. If there’s no there there, then maybe it should be unconstitutional under Alvarez.

Is tarnishment viewpoint-based? VIP says that it is b/c disparagement is viewpoint-based. Less damaging parodies aren’t suppressed. Gov’t says no: graffiti analogy: you spray my building with graffiti: it doesn’t matter what you say, but you’ve marked up my building in a way that will deter my neighbors. If that signaling effect harms reputation, then the same sort of signaling could happen in a TM context. Imagine a Cheesecake Factory-branded glucose monitor—that incongruity could harm CF’s reputation by association with diabetes. The incongruity is the problem. SFAA/Gay Olympics also suggests survives scrutiny.

How liberally should courts use constitutional scrutiny to second guess commercial regulation? They shouldn’t be using the 1A as a deregulatory tool. 1A as tool for solving TM policy problems is likely to make a mess. Before Tam, Tushnet said that it would be bad to use 1A to second guess Congress’s decisions on registration policy. The current Court is likely to uphold tarnishment; predicts lack of appetite for constitutional scrutiny.

RT: not disagreeing on most of descriptive account, but viewpoint based regulations are really bad and it’s really important at this moment to maintain that as a distinction even in regulations of “commerce.” I didn’t think disparagement was viewpoint-based because it protected everyone; I did think scandalousness was viewpoint-based. And if disparagement is viewpoint-based because giving offense is a viewpoint, then so is tarnishment. Also, there’s a big difference in protecting only the famous: only some entities are protected against tarnishment, which is an inequality that ought to matter to the constitutional analysis. I was just reminded that the 1988 revisions started out with a disparagement provision that would have applied to all marks, which Congress eliminated.

McKenna: You make a powerful argument against the way the Court uses history and tradition. Learned Hand’s rationale in 1928 was a deviation from the traditional rule; it doesn’t immediately stick with other courts; and when it does stick, it’s used to expand concepts of confusion and not dilution. Doing what you described would be another example of misuse of history and tradition. And of course the time period to which that claim appeals has nothing to do with the Founding or Reconstruction.

A: Consider Molly Brady’s arguments about trespass by light projection: might be similar arguments. [Yeah, I thought those would produce bad outcomes too.]

Matthew Sipe: Court is also inconsistent in handling empirical social science. The Court will just pick whatever outcome it wants.

Grimmelmann: analogies to trespass: Even in the laser projection cases, there are physical objects; the logic of analogizing to intangible property is difficult. Could a property owner enjoin an adjoining billboard that criticizes them?

Lemley: it’s reasonable to ask whether we should expect consistency—the 1A might stay deregulatory for some things that benefit conservatives but allow lots of regulation of businesses that don’t share administration priorities. Also maybe IP just sits in a different mental bucket from other economic regulations when it comes to the 1A.

Sari Mazzuco: Brunetti—some of the Justices seemed open to the idea that “manner” of speech regulation could be ok; invited that sort of argument. [pretty inconsistent w/idea that sex and excrement are presumptively tarnishing and inconsistent w/gov’t defense of incongruity/glucose monitor as justification for tarnishment]

Copyright Fair Use and User Rights

Carys Craig, York University –Osgoode Hall Law School, Copyright’s Constitution: User Rights and the ‘Deprivation of Property’ Misdiagnosis (Or: Lessons from South Africa’s Constitutional Debacle over the Copyright Amendment Bill)

Risk that comes w/ a property based approach to conceptualize ©: not a South African story but a story of law generally. Old chestnut: is © a property right? We should resist focusing on individual entitlement and right to exclude; look more to speech, dialogue, cultural participation. One common response is that it doesn’t matter what we call it as long as we recognize that there are different kinds of property with different rules; the consequences attached to that particular species of property are what matter. We are all realists here!

But Jennifer Nedelsky, property theorist, points out that choosing a legal category gives us presumptions, what will require justifications, what norms will have to be argued against, what values will be taken as given. We need legal tools that won’t divert our energies and skew our perceptions by requiring us to rebut presumptions that were never appropriate in the first place.

South Africa: stated objectives to amend the apartheid-era Copyright Act to bring it into the constitutional era; align with digital/tech developments; cater to people w/disabilities, impoverished artists, researchers, educators, the creative industry. New hybrid fair use/fair dealing framework. Specific limitations & exceptions for education, libraries/similar institutions, people w/disabilities, plus fair use as a subordinate catchall clause. Provisions to limit contractual overrides of limitations & exceptions. Strengthening authors v. owners—royalty provisions.

Tortuous route to Constitutional Court; passed in 2017 originally. Constitutional Court will now opine on it. Q: does the bill permit an arbitrary deprivation of property by (1) retrospective effect of fair & equitable remuneration for authors; (2) new exceptions for users—fair use, educational institutions, libraries etc. Seems somewhat unlikely that will be struck down, but still it’s coming on 10 years. Disability rights exceptions were previously read into the act because Court said that it was unconstitutional discrimination against people w/disabilities not to have the exceptions.

More fundamental than the doctrinal Q: this whole thing is fundamentally a misdiagnosis of what’s happening in © reform. We don’t have to answer the Q of whether it’s property. Politically it’s probably not feasible to say it’s not property, but also it doesn’t necessarily matter—the issue is what damage the property label is causing, what misunderstandings of © are generated by property framing.

Exacerbated by the property label, 3 misunderstandings about ©: its object, its subject, and its scope. Copyright’s object: confusing the physical analogue w/intangibles of mind. ©’s “thing” is not immutable, predetermined, fixed, or stable in ways we expect from land. It’s a legal construct of the state, not prior to the state.

Subject: discounting the public domain as central to the © system. The nature of © is to draw distinctions b/t that which cannot be owned and that which can.

Scope: not just about owner’s rights. Users and authors also have rights.

W/o property label, easier to see other constitutional values involving economic and social relations; balancing rights both internal and external to ©. Requires contextual, dynamic recalibration rather than fundamental right.

Buccafusco: Is there anything distinctive about S Africa? Are there relative differences in valences and implications versus US, Europe, etc. or could this paper be about any nation? Cf. South Africa’s land redistribution efforts.