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.

IPSC: Comparative & International IP

Karen Sandrik, Marquette University Law School, Cultural Legacies and Innovation Barriers: Comparative Lessons from Post–Soviet Research Institutions for American Innovation Policy

Slovakia: Comenius U press release about first official patent sold/assigned by a Slovak university. They spent a year negotiating the deal. Have more than 10 tech transfer centers established in the past 15 years; partnerships w/ various institutions; EU membership has played a role. Despite actually staffing the tech transfer centers, didn’t see any interaction b/t gov’t or institutions or even w/in institutions, b/t industry and academia, b/t industry and gov’t—no real interest in collaboration. Therefore no contracts. What are the barriers? Contractual? IP? Something else?

Slovakia offers a cautionary tale of what happens when you don’t have what we have in the US. We prioritize partnerships, relationships with colleagues, synergies; we get annoyed by being asked to do things cross-campus or with other universities. When you don’t have trust and open science, you don’t have risk tolerance or the ability to withstand short-term bad outcomes for long-term investment/relationships. Rational survival strategies that were in place for good reasons can become hard-to-change embedded behaviors even after they lose their justification. Lesson: US is at risk of losing more than grants, but losing the culture that supports innovation.

Communist Party of Slovakia; Czechoslovak Academy of Sciences, established 1952, became centerpiece of scientific research. Universities were just for teaching. Publications were vetted; collaboration wasn’t allowed; you minimize dependencies on institutional promises and keep your head down. Good work still happens!

1989: Velvet Revolution. 1993: Velvet Divorce. 2004: EU membership. Stephen Kotkin & Mark Beissinger: Historical Legacies of Communism: An Empirical Agenda: Key concepts for her: parameter setting: past experiences limiting future options; cultural schemata: embedded ways of thinking that persist.

Ewa Morawska, Malleability Paradox: Communist-era copying strategies for temporary work/cross border trading thrived in Western capitalist markets. Why? “Beat the system” mentality: (1) circumventing official channels when they seem ineffective or risky; (2) prioritizing short-term opportunism over long-term institutional relationships; and (3) placing greater trust in personal networks than formal institutional processes—she saw that in her own research. This isn’t dysfunction or irrationality, but a rational learned response. But it makes collaboration and innovation in research labs hard. Materials sharing, personnel sharing etc. require formal contracting.

Interviewed people at tech transfer offices, gov’t officials, industry experts, and lawyers. They spoke of “protecting” researchers who had demands on their time; that wasn’t their job to work across institutions or fields; avoiding “free work.” People didn’t even know about IP Center on campus; tried to introduce people and they resisted—our job is to work for our students and respond only to our dean; the tech office would just want free work from us. What about visiting PhD students? Why would we do that? We are different scientists with different research.

Quasi-activity: you seem to be doing a lot of work but you’re not really engaging underneath. Putting out an article about a new relationship b/t university and patent center that doesn’t actually happen.

Are we creating the conditions for our own beat-the-system mentality? Researchers avoiding politically sensitive topics (Fulbright grants cancelled for 2025-2026 w/ informal advice to avoid certain topics in new applications). Increased isolation: prohibition on giving funds to foreign researchers.

Protecting innovation isn’t just about funding—it’s about culture legacies, safety, mindset.

How do we protect innovation culture during political tensions/disruptions? The quicker the disruption, the longer it tends to hang around.

Andrew Gilden: what is the actual compensation system and measures of career advancement in Slovakia? Do grants matter? If I don’t get rewards, then should I have to deal with some jerk in another department?

A: In Slovakia, one interviewee’s institution gives money for patents, but was going to take it away b/c people were gaming the system by getting useless patents. Practical implementation isn’t there. We need to get people thinking about downstream uses, not just immediate results.

Sean Pager: Institutions talk about wanting to promote interdisciplinary collaboration but rarely do much about it; some specifically targeted grants. Also teaching: can be hard to teach an interdisciplinary class, but that’s one way to reach people in other fields.

A: yes, and also in tenure we get credit; structure isn’t there. Also some react: we just got academic freedom, so don’t tell me what to do.

Peter Yu: is this a setback (more dangerous, as in Russia) or a legacy? Think about how other people are motivated in the same system, e.g. post office workers.

Felicia Caponigri: Italy as contrast: researchers/members of bureaucracy think of themselves as having one space for one person. To write/get credit you have to ID the part of a coauthored piece that you wrote, which is the opposite of coauthoring. Maybe it’s a civil law thing more than a post-communist thing?

RT: Patent example made me think of the accusations that China was rewarding US TM registrations with bonuses, leading to a bunch of junk; that wasn’t the whole story (Amazon might have been more important), but they stopped giving the bonuses. Maybe the solution can’t be internal to the field; maybe it has to be about the overall economic growth potential of the economy as well as the level of social trust.

Peter Yu, Texas A&M University School of Law, Twists and Turns in the TRIPS Journey

Before TRIPS, fewer rights were recognized internationally. Remedies/enforcement issues have not been as successful. Do developed countries have a comparative advantage? TRIPS sought to promote rule of law/dispute resolution mechanism. Hope was international rule of law. Still have WTO appeals and arbitration, but until we’re willing to support an independent body it won’t function again?

One position: TRIPS doesn’t result in mutual gain but rewards for multinational companies. Patent, TM registrations—developing countries have been doing quite well. PCT users—top is China; Madrid TM registrations, China is 3d. India is 9^th in patents, 22^nd in TM. Russia 25^th and 13^th respectively. China, Malaysia, India, Thailand, Brazil in top 50 of world innovation index. TRIPS boomerang (Jerome Reichmann): when you force countries to raise their own standards, they learn how to take advantage of the global system. Many developing countries want to protect their own IP and most of all to take down trade barriers, but the return of unilateral trade sanctions from the US means the agreements were not successful in preventing that. Even before Trump, Section 301 meant there wasn’t a full success. Transition periods keep getting extended for LDCs.

Investment requires imitative capacity + large enough market. If a developing country doesn’t have both of those, they won’t get investment no matter what the legal regime.

No denying good result that TRIPS put IP on a pedestal. When people make policy decisions, they now think about IP. Ordinary citizens might know something about IP. Second: Gone to more complex regimes: WIPO as well as WTO, and then a bunch of smaller regimes like ECPA. That will stay for a long while b/c one has a lot of technical expertise (WIPO) and one has dispute resolution mechanisms (WTO). TRIPS negotiators deliberately avoided tackling new technologies—internet/digital communications, emerging when negotiated; biotech—could have done more than just a single provision. TRIPS/WTO unlikely to tackle AI or genetic engineering, leaving room for WIPO.

Final questions: would TRIPS negotiators have anticipated current IP developments? No. So should we be historical or evolutionary in our approach? Panels like to follow the Vienna Convention on the law of treaties, but if questions weren’t anticipated, should we be historical?

Can TRIPS be amended? Wouldn’t be negotiated today. Not easy to amend, but there are some small possible tweaks like periodic review; more emphasis on innovation instead of IP; more regulatory coordination w/regional entities.

Can TRIPS withstand growing international rivalries? We’ve seen worse—wars, pandemic. TRIPS isn’t good at responding to those crises, but it can withstand it.

Q: say more about small tweaks. What is a small tweak?

A: TRIPS enshrined 90s standards, but the discourse of IP has changed a lot. Innovation focus rather than “IP” as such. Might need more provisions. More coordination with other regimes.

RT: Does future proofing mean more rules or fewer? I’m thinking of how fast TDM training exceptions were adopted across the globe, and then basically 2 years later “generative AI” emerged and lots of people said “no, not like that.”

A: more flexibilities, more policy space. More rules = more difficult for lots of countries. A lot of developing countries lack institutional capacity to handle complex rules. More opportunities for people to come in from MNCs or donor orgs or developed countries to deliver systems that get even further away from what IP rules are supposed to do.  

One scenario: US withdraws from WTO and China steps in to be leader. If that’s the case, resources will be given like Belt and Road initiative. That’s concerning for a lot of countries. Other possibilities: WTO suffers same fate as other UN orgs and has to pull back.

China: We are moving from patents and TMs to trade secrets as comparative advantage. Debate shifted from patents to confidential information—interesting for emerging countries.

Pager: more investor state dispute resolution as a model?

A: you can appeal WTO panel decision, but you have to set up the panel; most countries are not happy.

Dr. Gururaj Devarhubli & Dr. Taruna Jakhar (Zoom), Nirma University, Institute of Law, Ahmedabad, Analyzing Cross–border Regime for Enforcing Copyright in the Age of Digital Piracy: A Comparative Study of Music Piracy in India and China       

Focused on emerging economies/major content markets with contrasting enforcement landscapes. Focused on music piracy due to global reach, high revenue loss, and evolving modes (torrents, streaming, mobile apps, p2p platforms, Telegram, etc.). Shift from physical to digital; rise of private streaming leaks. Use of VPNs, mirror sites, cloud storage.

Cross-border enforcement issues: territoriality of ©; lack of unified takedown procedures; inadequate int’l coordination. Key cases in India allow dynamic injunctions (2019) and dynamic-plus (2023); super-injunction against piracy on websites and applications including Facebook etc. (2025). Challenges: slow litigation, ISP noncompliance, weak criminal enforcement.

China comparison: multiple enforcement agencies including IP courts. Administrative (faster) and judicial (more legal clarity). Challenges: over-reliance on administrative path; selective enforcement; trade tensions influence compliance.

Both are TRIPS compliant and WIPO signatories; both struggle w/online enforcement due to tech limitations; both involve private sector in enforcement; piracy persists due to affordability gaps and weak deterrence.

Tech/private actors: India relies on dynamic injunctions, court monitored takedown notices, w/poor enforcement. China: Tencent and NetEase have invested in AI-based piracy detection. Globally: YT Content ID, Spotify watermarking, Apple music anti-leak policies. Problems: inconsistent enforcement by platforms, small creators lack access to tech tools, and cross-platform leaks remain untraceable.

Who acts when content is hosted abroad? Pirates use VPNs and aliases; lack of global consensus on enforcement standards; while Indian dynamic injunctions have extended to foreign domains, Chinese takedown orders are not enforceable in India.

Recommendations: bilateral cooperation agreements; platform accountability standards; collective licensing expansion; cross-border evidence protocols, and harmonized safe harbor provisions. Need joint enforcement by streaming platforms/music labels; promotion of fair pricing models to reduce demand; strengthening int’l digital IP diplomacy through WIPO.

Yu: should you drop China from your paper? US Special 301 reports claims that legality of content online for China is 96%--a lot of content is licensed. The issue they still have is that the licensing rates are extremely low because Tencent has a monopoly. If you want to say there’s a big digital piracy problem on Chinese online platforms, the data will be from 5-10 years ago.

RT: how different is the practical legal situation from US or Europe? Here, Litigation isn’t super fast; companies still whine about playing whack a mole b/c of the DMCA notice and takedown process; overseas sources don’t comply with takedowns and the US is a big enough market that it’s worth overseas entities creating targeted sites, and we don’t have dynamic injunctions against third parties; litigation is expensive and if not as slow as India not very fast compared to pace of commercial life. Just saw Bechtold’s excellent paper on Content ID’s gaps—tech solutions are very limited. The key question seems to be whether licensed access can be simple and cheap enough to compete with piracy. 0% piracy would require the elimination of humankind; that’s not needed for sufficient incentives and a thriving industry.

A: Doing pay per view on general video platforms could be a game-changer.

IPSC: Copyright Enforcement

Thomas H. Rousse, Northwestern Pritzker School of Law, Open Licensing, Hidden Costs: Survey Experiment Insights On Creative Commons and Copyright Infringement

Pragmatist; experience as journalist with taking a photo, licensing it via CC, and seeing it widely reused without credit was part of the impetus. ShareAlike licensing is often misused. 3Ls had difficulty finding right license. Generating logo for CC license was busted on Chrome and another browser; it always said in rich text that it was just CC-BY no matter what you chose (he agitated and finally it seems like that will be fixed).

History of CC; decided not to use warranty-like system. Uneasy relationship b/t ideological goals of changing from permission-based society to more open, less transaction-cost based permission system. Copyright registration (for US works) needed to enforce. Version 4.0 infringement mulligan—allows cure w/in 30 days; most people won’t know this happened and 30 days of use is often the entire value of the use.

Surveyed 1299 US adults w/quotas for gender, race, ethnicity, age. Collected demographic info including political preferences. Asked about logo/brand recognition. Also scenarios: Control and two treatments given.

21% self-reported recognition of logo. But when you ask, only 7% correctly identified Creative Commons; Closed Captioning, Comedy Central, Chanel, Copyright were common mistaken answers. Also not much recognition of Creative Commons (nearly 60% were unfamiliar), though it does better than Mozilla.

Control: maximalist © notice w/author, year, all rights reserved

Treatment A: Abbreviated CC marking (BY)

Treatment B: Training and verbose CC marking (attribution)—people had to read for at least 10 seconds before proceeding.

7 vignettes: public domain (noninfringing gov’t work), personal use, commercial advertising use, large scale willful copying (selling lots of posters for profit), educational use, Wikipedia licensing error, and filesharing—the last 3 actual scenarios that have had controversies/litigation. 

Asked about likelihood of legal consequences. Asked if the reuser was sued, what consequences would they likely face, then asked what consequences should they face.

When you don’t tell people what the public domain is, they think it’s infringing, but when you explain a little they don’t. Commercial ad use: educating people on what CC is does change how they perceive risks. Surprising amount of support for finding various things done in breach of license to be infringing.

Conclusions: Respondents were slightly more supportive of CC licensors than regular © holders. [To me suggests a “fair is fair” mentality—by being reasonable about your rights, you’re entitled to more consideration than if you were being unreasonable.]

RT: Super interesting! Question about ShareAlike: when you use a CC ShareAlike photo to illustrate a story, is the accompanying story really governed by ShareAlike? I wouldn’t have considered the story an adaptation of the photo, and the story is definitely not a copy.

A: disagrees—the whole website should have been ShareAlike if they use one ShareAlike photo. [I think that’s completely wrong, but the fact that two © lawyers can disagree about that might be relevant to your argument. FWIW a Quora user reports that CC agrees with me.]

Q: what should we be doing differently?

A: Spend more time educating people about what CC means. But that does tend to increase their support for enforcement against violators. [Sounds fine to me.] The CC trolls are also doing some education! “Freely shared” as an assumption about CC is not right.

Stefan Bechtold, ETH Zurich, Out of Tune? Investigating YouTube’s Copyright Enforcement

Focus on music and Content ID. At least 50% of videos on YT include music, and almost all most popular videos do. System creates a “fingerprint” & claiming owner can decide whether to block or monetize. Mostly they monetize.

Scholarly concern: replace © law, affect/eradicate fair use? Including me.

Comprehensively audit Content ID: Uploaded more than 10,000 videos w/music either © protected or not, focusing on copyright term and on rights in compositions rather than sound recordings. All uploaded videos were set to private. Record Content ID’s response. For example, Content ID can’t distinguish b/t different recordings/performances by Bach. Classical compositions clearly out of ©; we also used snippets from Spotify where there was © in composition and in song recording, using classical and pop music. 793 recordings, 790 compositions, 49 composers.

45% of works on public domain compositions w/CC recordings were flagged as ©-infringing. One driving force: © trolls. LatinAutorPerf makes 3x as many claims as the next most frequent claimant, Universal. Users may not complain b/c it’s just revenue sharing; so the troll makes a lot of money claiming to own the compositions.

What about large v. small labels? 4000 tracks from Spotify stratified for popularity and publisher status. 45.4% were unclaimed, 54.6% claimed. Four players behind over half of all claims. Major labels enforce at 37.5% higher than smaller. Content ID is only available to © owners w/most complex © management needs. Smaller players can use takedowns or pay third-party distributors, but those usually take 20-30% of revenue.

Brussels Effect: exploiting different © terms for compositions in the US v. EU. Some compositions therefore out of © in US due to 95-year term but in © in EU. In 60% of cases, YT flags them globally, even when they are in the public domain in the US.

Findings: tech works well, but shortcomings of institutional arrangement governing system. 45% overenforcement for public domain works, often claimed by © trolls, and 45% underenforcement for smaller players; Brussels effect of longer European term.

Also finding that probing digital platforms w/algorithmic auditing tools is a promising approach to understand and optimize them.

Q: is the problem really about rightsholders in composition specifically? What are they uploading? It has to be a recording. Content ID can’t really just have the composition itself qua composition. It’s always analyzing a phonorecord.

A: correct. Fingerprinting tech tries to be robust and derive the underlying composition, but can it?

RT: Love it. One Q: any chance these weren’t real small labels? Spotify has a lot of wholly Spotify-owned music. It might be indifferent to the presence of the same music on YT b/c no one ever seeks that music out; Spotify just stuffs those into playlists so it can keep more revenue for itself. So there might be less true underenforcement than you thought.

Q: I think a © troll is overenforcing real rights. This seems like © fraudsters, not trolls.

Beebe: is there further YT could go?

A: given it’s been around for a long time and large players have been involved for 2 decades, this can’t be totally surprising. Perhaps it’s just the evolved equilibrium. Maybe it’s cost-prohibitive to do more things. But the more we move into an automated decision/compliance mechanism, we’re very far from near-perfect accuracy and we need to recognize that.

Sidne Gard & Elizabeth Townsend Gard, School of the Art Institute of Chicago; Tulane U. Law School The Economy of Cultural Accountability, or the Economic Role of Moral Rights in the YouTube Age

Lost artists: Internet folktales based on photos etc. (Slenderman, Cooper Family Falling Body Photo—no one really knows who made it, how it was taken, how the story got attached to it, etc.) Turns out the Cooper photo was art made by Richard Ramsdell. YT video investigated the story, found Ramsdell, and convinced him to put the other images of the series online as well as selling merch. An orphan work was reunited with its author, changing its trajectory. VARA wouldn’t apply for attribution, but shows how attribution is tied to economics.

Similar story: Disney Channel theme song, used for over two decades, but identity of creator unknown until YT documentary found Alex Lasarenko, a composer and classical pianist, through intense research, interviews, and use of archiving work by third parties of things like commercials on the Disney channel. He passed away two years before being found, but 8 million people listened to his work in the documentary.

Lessons: WFH doesn’t mean there isn’t an artist behind the work. Finding an author means finding more of their work. Can © even be attached to a 4-note jingle? What is big enough to be a work? Is TM also relevant?

Other side of the coin is plagiarism: Big video essayist posted video about YTers plagiarizing other smaller creators’, journalists’ and writers’ work. The back half of a 4-hour video is entirely about James Somerton, who did video essays about queer theory; he was also taking 10,000 words in hour-and-a-half video from 18 different authors who went uncredited or poorly credited. He’d credit the major players of queer theory, but not the more unknown ones. Effectively ended his career.

Mob mentality risks, but also restored attribution.

Minecraft Redstone Prison Door controversy: you can mine redstone to make complicated machines w/electricity. People get very into redstone creations; make tutorials about things they design. But larger creators may use redstone builds they find online with credit (fine) or without (not). Lack of credit has economic impact because credit is how they grow their channels and revenue.

YouTube doesn’t have a way to rectify false attribution—Content ID doesn’t work to do that.

RT: some of these things might have infringed © and some not. Is this relevant to whether attribution can ever be legally managed or has to be managed on a community basis?

Q: how much of this is US-specific since we lack moral rights?

Q: what about community notes/annotations as a model? YT comments are not known for being the most friendly place, but is there a building block there?

IPSC: Trademarks in Society

Jonathan Masur, University of Chicago Law School, Measuring the Value of Trademark Distinctiveness: Evidence from the Market for Bordeaux Wines

Branding is important; confusion is the core justification for TM to allow consumers to get what they want and firms to recoup quality investments. So we don’t want too much bunching of highly similar marks. At the same time, generic/descriptive names are close to the linguistic core and therefore powerful for marketing b/c of association w/product core. So you get bunching there: POLAR and ARCTIC coolers etc. There are also brand names that are hard to remember b/c they’re so far from the linguistic core—DAUSROOB coolers. Marketers think you want to pick something in the middle. But there isn’t a lot of empirical evidence, so we wanted to test whether distinctive brand names generate price premiums.

Testing hypotheses: distinctively named wines will command higher prices; holding wine quality constant, distinctively named wines will command higher prices; price differential will be greater for higher-quality wines b/c greater reward for good product (could imagine the alternate hypothesis, where wine market is segmented where best wines are purchased by most knowledgeable consumers who make finer distinctions).

Took out all the French articles, words like chateau, then computed similarity w/ten nearest neighbors. Result: highly similar wines (wines w/many near neighbors)—expected price $13.44; highly dissimilar, expected price 27.39—100% price premium. But control for wine quality. A wine rated 90: highly similar neighbors (0.83): expected price 21.68. Dissimilar: 25.02.

Interaction term b/t similarity and rating is negative and significant. Low rated (82), price premium 2.21; high rated (93), price premium for distinctiveness 9.59, which is slightly higher in percentage terms and also obviously absolutely higher. No meaningful distance costs for being too unique. Don’t see price benefit for low priced wines that might have gotten a boost for similarity to their high priced neighbors.

So why don’t they switch?

Congestion is a problem and TM should push brands apart.

RT: Are there any Amazon style GOTUFK names? Can you test this hypothesis with Amazon brands for coolers/gloves?

A: Red Bicyclette is probably one of the most distinctive Bordeaux names, aimed at American audiences. [That’s nowhere near as far away as GOTUFK.] The innovators generally have French names and designs on the bottles.

McKenna: you’re using brand and TM interchangeably; encourage you not to do that b/c marketing literature distinguishes b/t those for the reasons you just gave—packaging and icons matter. Uniqueness might be a better term than distinctiveness (or differential distinctiveness). Many Bordeaux wines are quite clustered in branding while having distinctive trademarks. If you switch, you might lose benefits of conveying you’re a Bordeaux wine.

A: yes, we’re using it to mean “distinctive from” not “TM distinctive.”

Stacey Dogan: congestion is a problem: for whom? For the wine seller who wants to charge a greater price premium that is not related to the relative quality of its neighbors. From a business perspective, sure, that’s a problem for the seller, but is it a problem from a social perspective?

A: the thesis is that the winery can charge more b/c people more easily remember that they liked it.

Dogan: a premium even after controlling for quality: what does that mean?

A: if you liked two wines a lot, and one of them was easier to remember, you could go for that first wine again, driving up the price, but that price is driven by consumer preference.

Felicia Caponigri, Marquette University Law School, Pantone's Color Monopoly?

Early stage project; wading into antitrust/IP interface. Pantone’s story: before 60s, color production was a mess—different printers would mix reds differently. Some color standardization systems existed, but Pantone really standardized. But why do Pantone’s colors cost so much? Pantone’s color books cost up to $9000; swatches $5. 15-25% more for a solid spot color than a dot color. Is Pantone color even a product? What services does Pantone provide (like color matching, color recipes) that enable it to corner the market?

April 2025: Pantone cancelled its agreement w/Adobe & created a separate digital platform at $15/month required to digitally communicate using Pantone colors.

Booklets are tangible products; but can also check color online. Pantone targets two demographics: fashion designers and graphic designers/product packaging designers w/two different systems. Fashion designers: materials like cotton. Product packaging: core Pantone matching.

Pantone uses ©, TM, a strange licensing system, and contract to cement the idea that they own the standardization of color.

Many © registrations for nondramatic literary works—matching system booklets. In 1968 successfully enjoined a company creating similar color sheets with bands of colors. Court allowed © in selection and rearrangement. There were differences b/t Pantone & D’s sheets—different numbers of colors and sheets—but still found substantial similarity. Pantone has been using this one case to assert © protection.

Trademarks: in the chip display (for printing ink/other forms of color generation), swatches design (for formula scales, bulletins, promoting the study of color), and PANTONE MATCHING SYSTEM. But it seems to offer licensing for specific colors (though in practice it might be color + word Pantone). Color matching: one on one contracts with brands like Valentino for a specific color, or color of the year.

Licensing agreements waive any contest of Pantone’s rights.

They say “we’ve created the best system.”

Legal questions: Originality? Is Pantone claiming © in the color matching process, not just the books? The one court said there was only © in the booklet, but what’s the difference. What value is there in Pantone (co)branding colors from the “real world”—finding Pantone matches for the ocean? Artists like Stuart Semple reverse engineer things like Tiffany Blue and then sell the paint. Are the licenses Pantone uses too restrictive? Is Pantone a monopolist or just an innovator? Is it possible to compete?

James Grimmelman: Pantone sells a children’s book which claims to have samples of different colors. The Pantone numbers are real but the names are made up, like “pickle green.”

RT: legal actions/registrations outside the US?

A: haven’t looked at that yet; EU requires you to cite to a color identifier for your EU registration and it offers Pantone as one of the options.

McKenna: Legitimate business interest in selling standardization that guarantees people they can recreate colors in the same way. So maybe sort among types of uses.

Masur: Is Pantone asserting rights against someone making a yellow or a purple? If Pantone says that purples too similar to its purples infringe, that’s a problem.

A: Not doing that, except that (maybe) printers can’t use the word Pantone w/o permission

Alex Roberts: use of licenses in literature more generally? [I was thinking about the tarot copyright presentation yesterday; the methods of claiming ownership seem very similar!]

Betsy Rosenblatt: is there a way to claim a taxonomy that isn’t dodgy under IP law?

A: maybe not!

Sari Mazzurco, Southern Methodist University Dedman School of Law, Source & Solidarity

Intersection of labor law and TM. Union marks are characteristically different than TMs and Congress knew it when it protected certification/collective marks under the Lanham Act. Aim: To improve coherence and legibility of union disputes.

Starbucks, Trader Joe’s, and Medieval Times sued their labor unions for TM infringement. TJ made a standard source confusion claim based on Trader Joe’s United sale of buttons, mugs and bags. Dct found no likely confusion, but TJ might bridge the gap and start selling mugs and buttons. The fact that it’s possible to navigate directly to TJ United’s shop which didn’t directly criticize TJ, and the similarity of logos might make that shaky. The court didn’t seem to give weight to the fact that TJ United was a union.

But unions are specifically about workers. Meant to achieve industrial democracy through worker participation in business decisionmaking. Goals are economic and political—working conditions, voice, and self-determination. Union names and labels mirror political/economic character, w/emphasis on political. Early names referred to the trade and to unionization. Crafted to be broad, cover the entire target constituency.

Union labels are a bit different. Original conception: physical labels applied by union member to product if and only if employer met union conditions. Signaled made w/union labor. Value to labor unions was different than the value of TMs—weapons deployed in warfare against employers to rally consumers to buy only union-made goods, putting pressure on employers to bargain. Distributed novelties and paraphernalia to consumers to promote this.

Courts don’t seem aware of these differences; they apply standard TM conventions and doctrines that don’t fit well and treat unions as profit-motivated transactors or speakers; treat union labels as source signals; evaluate sponsorship/affiliation confusion as if it’s possible for employers to sponsor unions, which is illegal in the US; and they treat confusion in a standard way.

Past precedents: inconsistent results based on fundamental incoherence: Save Brach’s case—barred labor union’s use of Brach’s logo in logo used to protest closure of Chicago plant b/c protest was a “service”; not much consumer confusion reasoning. Another court found that parody version of saloon logo used to protest management wasn’t a commercial use but an expressive one.

Courts don’t seem to recognize the different character of labor unions and their marks, but Congress did by recognizing collective/certification marks. Those don’t distinguish one manufacturer’s products from another; they are used to advance noncommercial objectives; union members could use them only as long as they were part of the union. Some courts held them categorically ineligible from TM protection; unions thus pressed for sui generis state law protection; all states adopted union label laws by 1900. Applied only to unions, protected against unauthorized use or counterfeiting; required registration; criminal and civil penalties.

Much debate in drafting of Lanham Act of where to put union marks; ultimately included in both collective and certification marks. Understood that union marks weren’t trademarks or service marks—didn’t consider unions as providing goods or services to members. Despite common practice of distributing merchandise to publicize the union label. Second, unions didn’t participate at all—ABA, Nat’l Ass’n of Manufacturers, and USAG did and talked about them. But Third, they’re the only institutions included specifically in the definitions of collective and certification marks. Other groups were understood to be covered by the loose “association.” Fourth, the Lanham Act was enacted in a period of hostility to labor unions—but Congress never questioned whether they should be covered.

Recovering labor solidarity as a purpose has potential to affect Lanham Act doctrine.

Fact that union marks aren’t source signals should support a presumption against likely confusion. Intent to deceive should be required. Plus employers shouldn’t be able to drag unions through litigation—courts should use NFU for unions or adopt a new Rogers-type labor use defense asking whether a union is a bona fide union and is the use explicitly misleading.

Jeanne Fromer: History is about union marks as sword rather than shield. How do you analytically make the leap to “when can unions use the employer’s mark”? Could TM use be part of that?

A: Congress understood that their marks don’t stand for source, but that ought to affect confusion analysis.

McKenna: a bunch of the reasons that early courts gave for not calling these marks are no longer true. That can explain why NAM would want them recognized—the understandings of what made something a mark were just too limited.

A: still requires squeezing/reorientation of understanding what unions are. Merchandizing for political/labor purposes is different than merchandizing for your company. [Donald Trump would disagree and even non-Trump judges are pretty likely to agree with him.]

Rosenblatt: Marks of all sorts do non-economic things. Union marks may do both collective/certification things, but they may also do service things. It would be weird under current doctrine to say that what unions do now would not qualify as a regular service.

A: and that’s a departure from labor unions’ understanding of what kind of organization they are. They’ve adapted. But that’s not what Congress intended, and leads to weird results in court. [But they aren’t distinctively weird—there are lots of bad TM cases.]

[RT: The history is great; should be front and center. But: History doesn’t show “labor solidarity” as a purpose of the Lanham Act; if anything, shows intent to assimilate unions into the larger economic scheme. Unions weren’t there to articulate a distinctive vision of why they were protected. Why should infringement of a TM by a union require separate analysis; why would it matter whether the union itself owns a TM versus a collective/certification mark?

The fall of sectoral bargaining and the rise of employer by employer bargaining also changes things in TM-relevant ways. What kind of mark is Amazon Labor Union? I think “highly descriptive” is the best answer, even though it incorporates and refers to a mark that is inherently distinctive for the relevant services. This might connect up with the idea that nominative fair use is actually a kind of descriptive fair use (as the 6th Circuit has sometimes held) where you are using the TM to talk about your relationship to the TM owner. It is a descriptive use b/c it is descriptive of the relationship existing between the two. That could let you say something really interesting about TM defenses more generally.]

Zaneta Robinson, Wake Forest University School of Law, Language Preservation with Trademark Registration

Early stage. At least 50% of world languages are in danger of extinction or serious endangerment by 2100. Pessimistic view: 90-95% will become extinct or seriously endangered. Roughly 7000 languages spoken now; could go to 300-600. That’s terribly alarming. More endangered languages spoken in/around NYC than have ever existed anywhere else, but likely never that many in any single place again.

Thesis: current TM examination process supports linguicide. Words are at the center of language and TM law. Forcibly lost when gov’t actors reject marks derived from minority languages through a registration process that quickly represses them. Doctrine of foreign equivalents is the bad guy. Creates inequities in registration. DFE: Common modern language that the ordinary American purchaser is likely to stop and translate. It is reflexively applied. There is no guidance as to when it should apply or not. TM examiners can use any internet/database evidence. End up with wild decisions based on newspaper articles or other random evidence. Nigerian immigrants wanted to use a name to pay homage to Ibo heritage; there was a prior English mark that was similar, and so Office Action was possible. There are references to how many people in the US that speak an “African” language, so purchasers would stop and translate. But what is a “common modern language”?

Office actions citing DFE and likely confusion: examples include endangered/potentially endangered languages like Inukitut, Sicilian, Western Frisian, Persian, Scottish Gaelic; also cited Latin, Afrikaans, Hindi, Japanese. Connotation is overused—translate to English, then compare English to translated mark. But that makes a similarity finding much easier, ignoring sight and sound.

What about registration as a tool for preserving languages or at least words from dwindling languages? There are minimal language protections in the US; SCt struck down the only provisions that protect culturally offensive uses. What has been successful with other communities? Hawaiian, Hebrew, Maori. Special rules for in-group members v. third parties like Disney (Hakuna Matata)? Dwindling language communities: notice, seek consent from community as from living individual, repository? PTO should consider having an endangered languages registry as it does for Native insignia.

Fromer: Is the lever to push on that the term would be understood? There’s a tension here between protecting language and encouraging its broader use. Protecting language shrinks the ability to use it. Not clear the solution is TM protection if you care about protecting vibrancy of language. Might want to look to computational linguistics—researchers have been working on developing corpora for underresourced languages to preserve them and make them usable with AI etc.

A: getting words into circulation is valuable. Has article on corpora coming out.

Rosenblatt: Matal, Commanders—a lot of discussion of reclaiming derogatory terms in the hope that would prevent others from using them—the opposite of what you’re talking about here. The response was: that won’t stop other people from using them b/c TM restrictions only do certain things. That’s also true on the flip side; you need goods & services to go with these marks. What pieces of the language are you preserving and who decides?

A: the relevant language community.

Q: Cf. patent space and traditional knowledge: is protection in the form of exclusivity what we want, or is it that we don’t want the wrong people to have exclusivity? TM corpus as a body that we could think of as preserving something, like we think of patents as a corpus preserving knowledge.

[RT: following Fromer: most TMs fail and don’t make an impact on the linguistic communities to which they’re directed, so not a good place to exercise leverage. More broadly: preserving languages and preserving words from them are different things; a word preserved as a TM would be commodified in a way that doesn’t seem like it’s part of a living language. Specifically, wouldn’t DFE point in a different direction for descriptiveness/genericness—encouraging applicants to disparage their own language as extinct or endangered—than it does for confusion? Maybe this is a congestion argument: seems like you agree that we should not consider most translations to be too similar—apply a culturally sensitive version of stop and translate that doesn’t just ask “do a lot of people know this language?”]

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.

IPSC: TM III/Music

Trademark III

Graeme B. Dinwoodie, Chicago–Kent College of Law – Illinois Institute of Technology, Not Just the Gutting of Rogers: A Window into Modern Trademark Challenges

Defenses developed much more seriously in the US than in Europe. Rogers was an exemplar of the way to develop defenses. Ensure speedy resolution of nuisance claims by weak confusion claims against Ds with strong speech interests. But then Gordon v. Drape made defense seem wobbly. This wasn’t a surprise given the Empire case—seemed much closer to the core of TMs/harder to treat as a Rogers/quick-kill case. But the whole point of having a rule is efficiency/certainty even w/ an occasional error. But common law means that courts are going to want to tweak the rule to deal with the situations they encounter. Ideally open questions can become more certain over time. Would rather have certainty develop through accretion of case law.

Must we accept the current reality of textualism and expect judges to read the Lanham Act like the tax code? Grynberg argued as far back as 2009 that TM wouldn’t be immune from the disease of textualism, especially w/r/t defenses, and he’s been proven right—courts think the Lanham Act is “comprehensive” which is laughably false. Gorsuch’s concurrence in JDI is textualism on steroids—the idea that the statute demands the application of Polaroid or Sleekcraft is bananas. How do we deal with this?

Go back to the TM Cases: essential character of the TM system as common law and merely supplementary nature of statutory law. Push common-law delegation statute characterization; there’s a robust literature on this outside of TM. Gorsuch hints at constitutional avoidance creating room for innovation.

TM needs to take on board the fact that it is a normative project as a component of the solution. But the best openings in JDI—Sotomayor’s survey skepticism, etc.—are framed by the Justices in empirical terms even though they could easily lend themselves to normative analysis. Myopic focus on consumer perception continues to infest the courts, despite that it’s incomplete and 1-dimensional. Need to broaden the lens of what TM is doing.

Rules v. standards debate—has always been a standards person b/c of the range of fact patterns. Pressure to create rules exist, but nebulousness of TM concepts make rules harder to generate, as w/TM use.

Should TM be understood as consumer protection or industrial property rights allocating rights among producers? Latter, more European, looks more formalistic in definition and scope of rights. That would provide more certainty. 9^th Circuit just said in Ryder Ripps that Rogers didn’t depend on intent.

McKenna: normative/empirical divide: Is formalism a middle lane between the two? Formalism lets you say what “use as a mark” is using formal characteristics about what things generally are uses and which aren’t, and use normativity to justify doing that analysis at a higher level of generality rather than case by case.

Discussion of Kagan’s empirical claim (parodies are unlikely to cause confusion) as having a normative component.

Linford: Consider US v. Alvarez and its implications dilution: one takeaway is that if Congress hasn’t buttoned down the harm story, that strengthens the case for unconstitutionality. Constitutional review: scrutiny is how good a job Congress did, and that’s sort of an empirical question.

A: it’s also normative, even if you’re asking about a means/ends nexus. But making courts articulate justifications has some disciplinary benefit.

Cynthia Ho, Loyola University, Chicago School of Law, Registered but Replaced

Gemini Data registered since 2021; Google files application for Gemini in 2023; refused but still kept using the term. Lawsuit resulted. But there are over 1000 Gemini registrations and over 50 just for software. When Gemini tried to get its own registrations, it got an Office Action about other uses, and so it had to admit that it was a weak, diluted mark.

Many Metas existed before Meta; one just sold its name. Meta has said the mark was diluted when trying to deal with preexisting Metas but also is willing to bring confusion cases against new Metas. Pump, a small band, lost a claim against Aerosmith’s Pump album. Dreamwerks v. Dreamworks studio; it got swamped even after the 9^th Circuit allowed its claim to proceed. A bigger company may swamp you even w/a reverse confusion claim.

So does registration really work? Presumption of validity doesn’t help if you can’t afford to litigate.

Dinwoodie: these are reverse confusion cases—small companies should get injunctions if they succeed, so what is it that allows big companies to proceed?

A: sometimes the small company loses; Dreamwerks they just paid money.

Dinwoodie: Maybe the paper is about what the harms of reverse confusion really are.

Lemley: Also articulate what the remedies should be. Money gets paid b/c injunctions are a terrible idea from a consumer protection perspective—making Meta abandon its new name causes confusion in the real world. [Weren’t we just talking about normativity and disregarding actual confusion?]

Amazon Women’s Bookstore in 1995 started having an Amazon problem. UTube (Universal Tube & Roll Co.) got a bunch of unwanted traffic. Those are harms, but maybe the remedy is “small company should change its name and get a bunch of money.” Bound up with registry crowding—there are a lot of things that shouldn’t be registered. And it’s not so easy to find a name that’s not registered by someone.

Rosenblatt: how do we deal with the fact that reverse confusion happens? Is it ok that Amazon took over the name of a bookstore? Do we think that small companies that sue should get payment or that they’re just gold-diggers? Strong enforcement might be worse for small companies under many circumstances.

Alex Roberts: look at bargaining under the shadow of the law—there are lots of things that are never attempted b/c of registrations. This as a kind of bullying invites comparison with the bullying literature.

Thomas Haley, University of Florida Levin College of Law, Copyright Disincentives

Blurred Lines case created concerns about chilling effects. Arguably broadened what was protectable subject matter for a musical work. If creating music risks getting you sued, maybe the incentive to create music will be decreased. A musician might see headlines, but how will that translate into creation decisions? Perceived likelihood of suit; cost of litigation; cost of damages; and norms all contribute to potential disincentive.

If no one hears your song, no one will ID infringement, so there’s mostly no reason to worry. Litigation cost is high, and statutory/actual damages can be too (actual can be much higher for a popular song), so those would be disincentives. Potential plaintiffs don’t have much incentive to sue unless the damages would be high.

Only the top of the market has much to worry about. Only 7 of well over 100 cases aren’t against one of the big 3 labels. Ds usually have songs that chart high or at least artists who have charted in the hot 100 (over 90%).

Spoke to several musicians about their understanding—basically everyone knew about Blurred Lines, thought it was wrong, and didn’t think it mattered to them at all.  

Q: are there differences b/t artists with their first big hit or trying to have their first big hit and those that are already established? Are you looking at artists who are trying to become commercially successful or those who aren’t playing the pop game?

A: the latter.

Joseph Fishman, Vanderbilt Law School, Revenue Streams Without Streaming Revenue

Book based on qualitative interviews w/35 Nashville songwriters. Chapter about how they make their money.  Punchline: they all describe earning majority of their revenue from FM radio, not streaming, even though streaming is a much bigger source of revenue for music publishers. Why?

Every rate paid is regulated one way or another. For radio play, the only right that is needed is public performance (PRO) money; streaming requires both public performance and reproduction, and Copyright Royalty Board combines that into an all-in rate that’s about 15% currently. Streaming is 45% of industry revenue and radio only 8%, so why do artists report things differently?

Why? Hypotheses:

PROs are reporting things weirdly. Nearly half of what they characterize as radio payments are bonuses for hit songs. Where do they get that money? Nearly half comes from general licensing revenue for venues. Nearly half of that money comes from physical performances/physical locations where music is played.

Maybe country is different—more radio listening, less digital streaming. Skeptical it can explain the magnitude, and pop writers say the same thing.

Recoupment hides $ from streaming but not from radio. Mechanical part of royalties is paid from publisher, which deducts advances. But some writers didn’t receive advances/were never recouped and report the same thing.

Smaller pie but bigger pieces for radio? It may be b/c of streaming’s long tail, revenue is being cut into so many smaller pieces that a big hit doesn’t represent much of a share.

Q: role of different PROs, some of which aren’t under antitrust decree, in contributing to opacity?

Buccafusco: is there any way to determine whether the types of songs earn different percentages of their income on radio v. streaming?

Q: what was the pie like prior to streaming?

A: lots of radio and a lot of revenue from physical media.

Q: was it less out of whack?

A: yes. As long as you made it onto the album you got a cut.