America Unfinished: book announcement

America Unfinished

250 Years of Law and Governance

Edited by Alexandra Natapoff and Guy-Uriel E. Charles

From the publisher:

An engaging and timely essay collection on the challenges, risks, and opportunities of this historic moment in American law and governance.

1,000-word essays from the country’s leading legal scholars and experts.

It is the 250th anniversary of the Declaration of Independence, and the U.S. is grappling with foundational challenges to its laws, institutions of governance, and civic culture. Longstanding values of pluralism are being challenged. The nation is beset by deep political polarization, a fear that the economic order is no longer providing opportunities for all, and a technology revolution that may unsettle what it means to be uniquely human. America Unfinished brings together more than 50 legal scholars on the Harvard Law School faculty to analyze this historic moment in American law and governance.

Edited by Alexandra Natapoff and Guy-Uriel Charles, the book coheres around the dramatic experiment in American legal governance that began in 1776, still highly contested after 250 years. Some essays explore the modern expansion of executive power, including its recent and dramatic willingness to use violence, both domestically and internationally. Other essays examine longstanding divides between workers, consumers, and markets, and the hard questions they raise about democratic accountability in our market-driven economy. And finally, some contributors address the future of our knowledge and governance institutions under pressure from the disruptions caused by technological and informational revolution.

Dynamic and engaging, the collection does nothing less than advance the core conversations necessary for a thriving polity, both at this historic moment and for decades to come.

Contributors: Bill Alford, Sabrineh Ardalan, Yochai Benkler, Sharon Block, Nikolas Bowie, Maureen Brady, Scott Brewer, Stephen Breyer, Emily Broad Leib, Tomiko Brown-Nagin, Guy-Uriel E. Charles, John Coates, I. Glenn Cohen, Andrew Manuel Crespo, Christine Desan, Kristen E. Eichensehr, Benjamin Eidelson, Jared Ellias, Susan H. Farbstein, Noah Feldman, Jody Freeman, D. James Greiner, John Goldberg, Annette Gordon-Reed, Sheila Heen, Howell Jackson, Elizabeth Papp Kamali, Randall Kennedy, Michael Klarman, Adriaan Lanni, Eloise Lawrence, Richard Lazarus, Jill Lepore, Lawrence Lessig, Kenneth W. Mack, Bruce H. Mann, Martha Minow, Daniel Nagin, Alexandra Natapoff, Charles Nesson, Gerald L. Neuman, Ruth L. Okediji, Mariana Pargendler, Intisar A. Rabb, Richard M. Re, Daphna Renan, Mark J. Roe, Benjamin Sachs, Stephen E. Sachs, Larry Schwartztol, Joseph William Singer, Carol Steiker, Nicholas Stephanopoulos, Kristen A. Stilt, Ronald Sullivan, Cass R. Sunstein, Philip Torrey, Rebecca Tushnet, Dehlia Umunna, Rachel A. Viscomi, Laura Weinrib, Alex Whiting, David Wilkins, and Jonathan Zittrain.

“A thoughtful, insightful, and informed collection of essays addressing some of the most urgent issues facing our nation today.  A valuable contribution to understanding America at a critical moment.” 

—Bryan Stevenson, Founder and Executive Director of the Equal Justice Initiative; author of Just Mercy

 

“This thought-provoking collection of 62 short essays — some of them odd, some provocative, some insightful, and some even beautiful — is a remarkable gift to the nation on its 250th birthday.” 

--Michael W. McConnell, Richard & Frances Mallery Professor, Stanford Law School, Director, Stanford Constitutional Law Center, Senior Fellow, Hoover Institution

 

 “A must-read collection. These essays show myriad ways that American law has secured, betrayed, and threatened American liberty as the Declaration of Independence turns 250. They indict and inspire—at once dark, practical, brilliant, and deeply moving.” 

         --Reva Siegel, Nicholas deB. Katzenbach Professor, Yale Law School

  

“An astonishingly wide array of reflections on the condition of America today. An irreplaceable book.”

 --William Baude, Harry Kalven, Jr. Professor of Law, University of Chicago Law School  

  

"A timely and provocative collection of essays from some of the nation's most thoughtful and prolific scholars, America Unfinished is a crucial step toward a more perfect union.” 

--Melissa Murray, Frederick I. and Grace Stokes Professor of Law, New York University

New article: History and Tradition in First Amendment Intellectual Property Cases: A Critique

 Preprint available here.

Abstract

There are indications that the "history and tradition" approach the Supreme Court applied to gun rights and abortion restrictions may be coming for First Amendment doctrine. In intellectual property cases, it already has, with the Court using historical analogies for the right of publicity, copyright, and trademark. 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.   

One lesson is that the history and tradition approach does not meaningfully constrain Justices even in low-political-salience areas like copyright and trademark, outside highly politicized contexts. The manipulability of levels of generality in making historical analogies has been justly criticized, but the IP cases provide a particularly clear contrast in outcomes from those in the Second Amendment cases, despite putatively using the same method of looking to historical models before—and even in place of—applying a means-ends test or other non-analogic scrutiny.

I write letters

To Alan Garber & John Manning:

As a member of the law faculty (and, not for nothing, a professor of the First Amendment), I am writing you to express my strong opposition to any "settlement" with the Trump Administration. Harvard has been a beacon for academic freedom, and that means that even if Harvard's administration believes that it is getting a "good" deal, any "deal" will be used to extort more concessions and destroy academic freedom elsewhere. This is not how the leading US university should behave.

Moreover, as every trade partner has seen—as Columbia University has seen—as the recission package passed by Congress despite promises to the contrary has shown--there are no "deals" with authoritarians of this stripe. This administration is both unwilling and unable to keep its word. Russ Vought and his ilk are not going to release money, and even if the money previously owed is released without a court order, there will be more demands and less money next time.

Instead, the administration's acts against George Mason's faculty suggests that individual professors are next, and our students are already at risk. Protecting Harvard requires protecting its faculty and students from government thought control. This cannot be accomplished merely by saying in a statement that the university has retained academic freedom, if it is accompanied by concessions to people who hate higher education and want to destroy it. If you sign an agreement with these people, will appointments and admissions be actually free to follow the pursuit of academic excellence according to the law on the books? Or will a threat hang over every decision? If you sign an agreement, will it still be likely that you'll wake up to find that we can't have international students any more until we do just one more thing to root out whatever they've decided is too "woke"?

I understand you must be under a huge amount of pressure. If the US does not retain its democratic institutions, let it be without your consent and with your resistance. If the US does survive as a democracy, we will all remember what side Harvard was on.

New book chapter on advertising, TM, and antitrust

Misleading advertising as a matter of unfair competition law 

Graeme B Dinwoodie and Ansgar Ohly (eds), Research Handbook on Unfair Competition and Passing Off (Edward Elgar, forthcoming 2026)

Abstract

The prohibition of false and misleading advertising should be the prototypical example of unfair competition law. False and misleading advertising, after all, is generally held to be unequivocally bad, even if punishing every instance would be more costly than it’s worth. But most of modern unfair competition law, at least in the United States, is focused on different things—more in the realm of trademark law (and sometimes antitrust), and I think to its detriment. As trademark’s scope has ballooned, and as the law has tolerated more and more monopoly power, it has also tolerated more and more false advertising. A rebalancing towards false advertising could strengthen the field of unfair competition as a whole.

Two recent amicus briefs: Santos v. Kimmel and Sedlik v. Von Drachtenberg

 In the Second Circuit, supporting fair use on a motion to dismiss in Santos v. Kimmel, and in the Ninth Circuit, supporting the jury's verdict of lack of substantial similarity in Sedlik v. Von Drachtenberg. 

Engagement rings in the news

 I'm quoted in this story about a dispute in front of the Massachusetts Supreme Judicial Court this week. In the courts of talking to the reporter, I learned that there have been a couple more state supreme court cases since I last looked, including one, Cummins v. Goolsby, 255 So.3d 1257 (Miss. 2018), in which the court refused to follow the no-fault, man always gets the ring back rule, but only because he was still married to someone else when he gave her the ring. (You can read my student note on the topic, of which I'm still very proud, here.)

Announcing the Seventh Edition of Advertising & Marketing Law Casebook by Goldman & Tushnet

Eric Goldman and I are pleased to announce the seventh edition of our casebook, Advertising & Marketing Law: Cases & Materials. It is available for purchase in the following formats:

* DRM-free PDF file. Price: $12
* Kindle. Price: $9.99
* Print-on-demand paperback from Amazon. Price: $30 + shipping and tax. Paperback buyers can get a free PDF file by emailing me a copy of their receipt showing which edition they bought.

If you are a professor, or are hoping to teach the course, and would like a free evaluation copy, please email Eric (egoldman@gmail.com).

A sample chapter, Chapter 14 (on publicity rights and endorsements), is available as a free download. We also have two online-only chapters on housing discrimination (Chapter 20) and political advertising (Chapter 21), both also freely downloadable.

We’ve discussed the book’s background and our goals as authors in this essay.

What Does the Book Cover?

Preface
Chapter 1: Overview
Chapter 2: What is an Advertisement?
Chapter 3: False Advertising Overview
Chapter 4: Deception
Chapter 5: Which Facts Matter? Reasonable Consumers and Materiality
Chapter 6: Omissions and Disclosures
Chapter 7: Special Topics in Competitor Lawsuits
Chapter 8: Consumer Class Actions
Chapter 9: False Advertising Practice and Remedies
Chapter 10: Other Business Torts
Chapter 11: Copyrights
Chapter 12: Brand Protection and Usage
Chapter 13: Competitive Restrictions
Chapter 14: Featuring People in Ads
Chapter 15: Privacy
Chapter 16: Promotions
Chapter 17: The Advertising Industry Ecosystem–Intermediaries and Their Regulation
Chapter 18: Case Study: Food, Drugs, and Supplements
Chapter 19: Case Study: Organic and “Green” Claims
Chapter 20 (online only): Case Study: Regulation of Discriminatory Advertising (Mostly Housing)
Chapter 21 (online only): Case Study: Regulation of Political Advertising

What Changed from the Sixth to the Seventh Editions?

We didn’t make many major changes in this edition. Most minor changes are standard updates. Some hot areas include courts’ treatment of reasonable consumers, online discrimination in ad targeting, and Section 230’s application to scammy online ads.

If You Are Teaching (Or Want to Teach) Advertising Law

For reasons why you should consider teaching an advertising law course, see this post. In addition to a complimentary book copy, we can provide (1) access to the Georgetown Intellectual Property Teaching Resources database, with digitized props galore; and (2) our PowerPoint slide decks, lecture notes, and other materials. If you are creating a new course, we can provide feedback on your draft syllabus and course proposal. Email me or Eric! You can see his old syllabi and exams on his Advertising Law course page.

Podcast on Bass Notes and Base Rates

 I'm on Excited Utterance with Ed Cheng discussing my article with Chris Buccafusco.

New article: Three Sizes Fit Some: Why Content Regulation Needs Test Suites

 At the Berkeley Tech LJ: 

ABSTRACT

The European Union’s Digital Services Act (DSA) offers a new model for regulating online services that allow users to post things. It uses size-based tiers to delineate the different levels of obligation imposed on various services. Despite the tiers of regulation in the DSA, and very much in its copyright-specific companion Article 17, it’s evident that the broad contours of the new rules were written with insufficient attention to variation. Instead, regulators assumed that “the internet” largely behaved like YouTube and Facebook. Using three examples of how that model is likely to be bad for a thriving online ecosystem—counting users, providing due process, and implementing copyright-specific rules—this Article concludes that, to improve policymaking, regulators should use test suites of differently situated services to ensure that they are at least considering existing diversity and properly identifying their targets.

new article w/Mark Lemley: First Amendment Neglect in SCOTUS IP Cases

First Amendment Neglect in Supreme Court Intellectual Property Cases

Mark A. Lemley & Rebecca Tushnet (forthcoming, Supreme Court Review)

Abstract

The Supreme Court decided two cases of central importance to free speech during the 2022 term – in both cases without addressing the First Amendment implications. In Andy Warhol Foundation v. Goldsmith, the Court upheld a ruling that Andy Warhol’s reworkings of Lynn Goldsmith’s photograph of the artist Prince into highly stylized silkscreens and drawings were not transformative, and thus were unfair, at least when images of the artworks were licensed to illustrate articles about Prince. In Jack Daniel’s v. VIP Products, the court found that a parody dog toy in the general shape of a Jack Daniel’s bottle, with the label “Bad Spaniels,” deserved no special protection for its parody against Jack Daniel’s trademark claim. The Court reached these results using ideas about the lesser status of profitable speech that it flatly rejected in other cases the same term, and with rationales that seem directly at odds with its First Amendment jurisprudence.

 In this article, we show that the Court’s decisions cannot be reconciled with its approach to any other area of speech, and that they are already having pernicious effects in the lower courts. We consider some possible explanations for the inconsistency: the possibility that the Court just doesn’t see First Amendment issues in IP cases; the possibility that a political realignment has left conservative justices less enchanted with speech in the marketplace; and the possibility that this is part of a broader trend away from holding courts to the same constitutional standard as the other branches of government, combined with statutes that leave room for substantial judicial discretion in individual cases. Whatever the explanation or explanations, the decisions in Warhol and Jack Daniel’s to cut back dramatically on judicially-created speech-protective rules may have the ironic effect of forcing the Court to confront directly the constitutional fragility of much modern IP law.

 

Of Bass Notes and Base Rates: Avoiding Mistaken Inferences about Copying

 New article with Chris Buccafusco:

Houston Law Review, Vol. 61, 2023

Abstract

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity level x to another, earlier song was created without copying from the earlier song. Until the state of the underlying art changes, it is reasonable for experts to testify about the existence of similarities between works, but it is unsupported and unreasonable for them to testify about the likelihood that those similarities came about from copying. We don’t know that likelihood in the absence of evidence about base rates: how common is it for a song to have similarity level x with some other song in the corpus of existing songs, and how common it is for that similarity to come from copying or from independent creation (or from both copying a shared antecedent). Until that knowledge is available, testimony about the probability of copying should be deemed inadmissible under Federal Rule of Evidence 702.

New comment on a paper about YouTube and music

 Here.

Abstract

This useful article about the effects of music on YouTube on consumption of the same music elsewhere should be understood for what it is: An empirical investigation of YouTube’s effects. It allows no conclusions about “safe harbors” both because YouTube was not relying on the safe harbor regime either before or after the relevant policy change and because, as YouTube’s lack of reliance shows, the safe harbor regime primarily protects thousands of websites that don’t behave like YouTube. Under the European Union’s new Article 17, sites like YouTube are now required to negotiate with copyright owners to license works uploaded by users who do not own the copyright thereto. YouTube, however, was already doing this. The article [Wlömert N, Papies D, Clement M, Spann M (2023) Frontiers: The interplay of user-generated content, content industry revenues, and platform regulation: Quasi-experimental evidence from YouTube. Marketing Sci., ePub ahead of print October 27, https://doi.org/10.1287/mksc.2022.0080] has implications for what music companies should ask for in these negotiations. However, it would be a mistake to generalize from YouTube to the Internet as a whole.

RT: This was kind of frustrating! The authors seem to think that, with a licensing/filtering requirement, there wouldn't be much music on a given site, whereas with a notice and takedown regime, there would be a lot. (You know, the way there is on Wikipedia and Ravelry and all those other DMCA-compliant sites.) So they insist that their evidence--which is about music consumption on other sites before and after YouTube cut a deal with GEMA--shows something about the effects of "safe harbors" generally. But since YouTube was not relying on safe harbors before the change--when it just blocked GEMA music in Germany--or after--when it licensed--their evidence cannot stand for the proposition they claim it stands for. If anything, it shows the opposite, that licensing leads to more reliable availability (and thus makes YouTube a better substitute for other sources of music). 

Free Speech Challenges to the Inflation Reduction Act

 With Sean Tu, at JAMA. Given how short the piece had to be, we had to cut out some other examples, but the claim is still a good example of the metastasizing First Amendment.

New paper: Bad Spaniels, Counterfeit Methodists, and Lying Birds: How Trademark Law Reinvented Strict Scrutiny

On SSRN, in advance of the JDI v. VIP case:

Bad Spaniels, Counterfeit Methodists, and Lying Birds: How Trademark Law Reinvented Strict Scrutiny

Abstract:

Does trademark law cover noncommercial speech, defined as it is in First Amendment doctrine as speech that does more than merely propose a commercial transaction? This basic question has three different answers, all regularly used in any given jurisdiction. The answers are yes, no, and sometimes, a list both comprehensive and dismaying. The Supreme Court is presently considering a case that may require it to choose—or may leave the field more confused than ever.

In response to the massive expansion of trademark’s scope over the last century, lower courts have implicitly devised a compromise by which trademark is pulled back to a more traditional anti-fraud-like scope when it is applied to noncommercial speech sold in the marketplace, such as movies, newspapers, songs, and visual art, or used as the name of an organization with dues-paying members, such as a political party or congregation. This compromise explains an otherwise surprising feature of the cases: Political speakers and religious speakers can expect worse outcomes than “commercial” publishers engaged in noncommercial speech, given the kinds of cases brought against them.  Of particular note, churches can be prohibited from using names that their worshipers sincerely believe are accurate descriptions of their faith. Although the doctrines articulated by courts are confused and sometimes directly contradictory, the results approximate what would happen if First Amendment strict scrutiny were applied to trademark claims brought against noncommercial speech—as long as material deception, not consciousness of wrongdoing, is the standard for liability.

We would be better positioned to understand the law and to decide future cases if courts were honest about their uses of the commercial/noncommercial line to police whether trademark law can be used for more than anti-fraud purposes. Understanding the relationship of noncommercial speech to trademark law also offers broader insights into the relevance of scienter and actual deception for speech regulation.

Amicus of copyright law professors in Warhol Foundation v. Goldsmith

 Available here. Thanks to all who participated!

Summary of argument:

If the meaning of artistic works were objective, an art appreciation class would be like a standard math class: It would have only right and wrong answers. But the skills of interpretation are not calculation skills. Much art would be at risk if fair use inquiries ignored reasonable audiences’ views about when a new creation based on an existing work has a new meaning and message. 

This Court held in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), and reaffirmed in Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021), that an inquiry into whether a work is a fair use requires evaluation of whether a second work has a different message, meaning, or purpose. Without such an evaluation, the presence of substantial similarity—a predicate question before fair use is relevant—turns into a rejection of fair use despite the statutory command. 

Because meaning matters, substantial similarity and transformativeness are not mutually exclusive. In some cases, some reasonable audiences will see new meaning, while others will not. The solution is not to reject one reasonable view in favor of another—that would be the very aesthetic discrimination the law has long rejected. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903) (explaining that treating the reaction of the general public as dispositive would “miss some works of genius,” and also that, at the same time, “the taste of any public is not to be treated with contempt”). Instead, the Court should recognize the common existence of varying interpretations of artistic works. Where a reasonable, identifiable audience recognizes new message and meaning, the transformativeness factor favors fair use. The existence of that audience further bears on the market effect factor because it shows that the accused and accusing works are not pure substitutes. 

By reaffirming Campbell and Google, the Court can correct three key errors of the opinion below. The primary error was in refusing to consider whether Warhol transformed the meaning of the original photograph. As this Court has emphasized, the factors interrelate. See, e.g., Campbell, 510 U.S. at 586-87 (“[T]he [factor three] enquiry will harken back to the first of the statutory factors, for, as in prior cases, we recognize 3 that the extent of permissible copying varies with the purpose and character of the use.”); id. at 591 (same for factor four, market effect). The error on factor one therefore generated other, inherently related mistakes: The court below refused to consider, in factor three, how much of what Warhol took from the photo was original expression and how much was unprotectable. Likewise, the court below erred in treating the accused and accusing works as market substitutes for purposes of factor four (market effect) because it refused to consider that the works appealed to different markets for different reasons. 

Amicus in Apple v. Corellium

 I filed this brief on behalf of IP Law Professors today in the Apple v. Corellium security research dispute. Summary of argument:

The constitutional goal of copyright protection is to “promote the progress of science and useful arts,” Art. I, sec. 1, cl. 8, and the first copyright law was “an act for the encouragement of learning,” Cambridge University Press v. Patton, 769 F.3d 1232, 1256 (11th Cir. 2014). This case provides an opportunity for this Court to affirm that vision. 

Apple begins its brief by claiming that “Corellium sells Apple’s copyrighted software to its customers for money.” Apple Br. at 1. This characterization is puzzling, because Apple invites the public to download its software, including the graphical interface, for free. Id. at 7. Corellium and its customers get iOS from Apple’s servers. So, what are Corellium’s customers buying? Corellium makes specialized software, CORSEC, that enables new and useful interactions with iOS that allow researchers to learn more about how the system behaves, including potential vulnerabilities. It is that functionality, and not the copying, to which Apple truly objects. 

But fair use protects precisely this kind of analysis. Opening software to information gathering and vulnerability testing is transformative, just as gathering information about and criticizing other types of works are classic transformative fair uses. To this point, Apple responds that it would rather control the market for security research on its products. But copyright law has correctly refused copyright owners the right to control markets for transformative uses, especially uses that expose them to criticism and thus to potential losses not related to substitution of the demand for the expressive qualities of their works. The risks of security research are not copyright risks. The public benefits when copyright owners do not have a monopoly on information about the potential flaws in their works. The Supreme Court made clear in Google LLC v. Oracle America, Inc., 141 S.Ct. 1183 (2021), that software copyrights should not be used to control subsequent independent creative work by software developers writing independent programs that operate on software platforms, and Apple’s argument that it should control the market for developer analysis directly conflicts with that holding. 

Separately, Apple’s free dissemination of iOS strongly favors fair use here. Importantly, there is no Apple code in CORSEC itself, and there is also no infringement when someone downloads a copy of iOS from Apple’s site. Although Apple lists things one can do with CORSEC as if they were infringing acts under §106, it does not take into account the implications of its own free dissemination, which produced the legally relevant copies here. For example, Apple did not attempt to explain how slowing down the execution of its code using CORSEC created an infringing derivative work or unauthorized copy, any more than slowing down video playback would. Likewise, although Apple refers to CORSEC’s ability to allow users to alter the kernel, Apple does not own the kernel, which is open source. Uploading a “custom kernel” to use with a copy of iOS downloaded from Apple does not create a derivative work of iOS any more than adding a spellchecker to a word processing program creates a derivative work. Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 969 (9th Cir. 1992). Similarly, Apple refers to CORSEC’s ability to change entries in the trust cache in a copy of iOS, but the trust cache is a record of binary codes that are deemed “trusted,” represented by a hash value—a number mechanically calculated from the initial input.   Changing hashes in the trust cache of a copy downloaded from Apple for the functional purpose of changing what binary code is “trusted” does not create a derivative work, which requires the addition of copyrightable creativity. See 17 U.S.C. § 101 (derivative works “represent an original work of authorship”); L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 492 (2d Cir. 1976). Apple freely disseminates copies to Corellium, its customers, and the world, and Corellium’s subsequent acts do not change the relevance of this fact to the fair use analysis. 

Summary judgment for Corellium was appropriate, as in many other cases in which fair use has been found on summary judgment, since the issues here are primarily legal: the overriding transformative nature of the use; Apple’s lack of entitlement to control transformative markets; and the relevance of Apple’s invitation to the world to download iOS freely. See Oracle, 141 S.Ct. at 1199-1200.

 

Amicus in ASU v. Doe

ASU sued Doe over a dumb Instagram account, "asu_covid_parties," and correctly lost its TM claims despite Doe's default. Undeterred, ASU appealed. Eugene Volokh and his students have filed an amicus supporting the result below and one of the students will argue the case--an excellent opportunity. Mark Lemley, Mark McKenna, James Weinstein, and I also filed an amicus brief pointing out that, even if there had been a party (there wasn't), it still wouldn't have infringed ASU's trademarks. Although doctrines like Rogers v. Grimaldi and nominative fair use support this result, the deeper core is that the Lanham Act shouldn't be read to cover noncommercial speech in the first place.

Amicus in support of cert in Andy Warhol Foundation v. Goldsmith

 On behalf of a number of IP professors, here.

Self-Regulation Through Sui-Genericide: When the Law Stands in the Way

Now online at Rebecca Tushnet, 106 Iowa L. Rev. Online 164 (2021) 

A brief response to Jorge Contreras, Sui-Genericide, 106 Iowa L. Rev. 1041 (2021), centering on genericity as normative construct.

An Antitrust Framework for False Advertising, out now

Michael A. Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising, 106 Iowa L. Rev. 1841 (2021)

From the introduction:

 

Federal law presumes that false advertising harms competition. Federal law also presumes that false advertising is harmless or even helpful to competition. Contradiction is not unknown to the law, of course. This contradiction, though, is acute. For not only are both the regimes at issue designed to protect competition, but they are both enforced by the same agency: the Federal Trade Commission (“FTC”), which targets “unfair competition” through antitrust and consumer protection enforcement.

Anticompetitive conduct, the focus of antitrust law, increases price and reduces quality. False advertising, the focus of much consumer protection law, deceives consumers and distorts markets. Both types of conduct harm consumers. Despite this overlap, nearly all courts have dismissed private antitrust claims based on false advertising. They have concluded that the conduct cannot violate antitrust law. Or they have presumed that the harm is de minimis. This makes no sense. As the Supreme Court has long established, “false or misleading advertising has an anticompetitive effect.”

Courts’ concerns stem from the reasonable notion that not every instance of false advertising violates antitrust law. And (usually implicitly) they have worried about applying antitrust’s robust remedies of treble damages and attorneys’ fees. These courts fear that antitrust liability will disincentivize companies from engaging in advertising that is merely questionable and that might provide useful information to some consumers. But false advertising law preserves a robust space for puffery and debatable opinions; overdeterrence concerns don’t justify analysis that is inconsistent with both the economics and psychology of advertising and that, at a minimum, essentially makes it impossible to bring a successful antitrust case based on false advertising. Nor do the Lanham Act’s remedies for false advertising fully address harms to competition. Reasoning that conduct that is already illegal on other grounds need not concern antitrust law ignores the multiple other contexts in which breaches of non-antitrust laws are considered to be potential antitrust violations.

We begin by introducing the laws of antitrust and false advertising, explaining the regimes’ objectives and methods. We then survey the antitrust caselaw, critiquing three approaches courts considering false advertising claims have taken. Finally, we introduce our antitrust framework for false advertising claims. At the heart of the framework is a presumption that monopolists engaging in false advertising violate antitrust law, with that presumption rebuttable if the defendant can show that the false advertising was ineffective. The framework also applies to cases of attempted monopolization by incorporating factors (falsity, materiality, and harm) inherent in false advertising law, along with competition-centered issues on targeting new market entrants and entrenching barriers to entry. To illustrate how our framework should work, we apply it to an important area: advertising for biosimilars, which are pharmaceutical products with a substantial and growing role in treating numerous diseases.

False advertising that exacerbates monopoly power has been dismissed by antitrust law for too long. This Essay seeks to resolve the contradiction in the law by showing how false advertising threatens the proper functioning of markets.