The Future of Today’s Legal Scholarship, Part 3

Panel 2: Blogs and Reliability

Tom Goldstein, Akin Gump: Startup costs matter: you don’t need to find a publisher to get your words out. Incentive system: blogs are widely linked to and content behind walls is not, which means this form is here to stay for people concerned with distribution.

Goldstein is committed to blogging, and thinks you should regard them as utterly unreliable, and not a reasonable, permanent source for tracking information and materials. He spends $100,000 a year on SCOTUSblog, whose staff includes a 40-year veteran Supreme Court reporter. Our reputations and livelihood depend on the accuracy of the blog. Yet he has very little interest in determining the underlying accuracy of the facts in the documents he puts up, and it’s in the nature of blogging to write quickly.

Blogging is valuable. If you were to take away blogs associated with news organizations, like the blog of the Legal Times, there isn’t a better blog than ours journalistically—we have journalistic independence and other editorial measures. And yet if we don’t verify that a document really is “the opinion” in a case or “the record” in the case, that should strike fear in the heart of anyone concerned with long-term historical accuracy—he finds these on Google or Wikipedia. If he doesn’t verify the document, he promises you that no one else does either.

A blogger is not pursuing library goals. A blogger is pursuing the (utterly misguided) impression that other people care about what s/he has to say—that’s why s/he gets up and writes day after day. Many blogs are abandoned: people think they will have a lot to say but run out of energy. The mindset that gets past that is an egomaniacal belief that you have something to contribute, or the equally misguided view that there are positive business implications. (SCOTUSblog has brought in possibly 2 cases over 6 years.) The motivations behind blogging don’t generally correspond with the value set of having a permanent, accurate archive in which the accuracy of the underlying materials cited is also of concern. Whether or not that’s Barak Obama’s birth certificate is beside the point; some bloggers are convinced it isn’t.

Comment: Is this a library concern? It’s a scholarly concern, but how many librarians routinely investigate whether the books they buy verify the accuracy of the underlying materials? Well, we take scholarly publishers as filters for that sort of thing, though of course they aren’t because they don’t cite check the way law reviews do—rant about what law reviews think is cite checking excluded—and it’s fair to say that libraries treat books as independent objects without worrying too much about the sources unless a specific controversy develops. (And of course this is tied to linking culture: we wouldn’t expect a book on law to contain entire copies of the underlying legal cases the way we expect links to the full text of court decisions online.) On the other hand, there is something to be said for relying on publishers and academics to internalize their own norms of verifiability, so I agree that verifiability is implicit in book culture; Goldstein is pointing to something that may be a more salient concern now (though I’m not sure how often anybody fakes a district court opinion, or even fakes a document that appears on TMZ) given the collapse of gatekeeping.

SCOTUSWiki: unlike the blog, doesn’t expire in 12 hours—the mentality of a blog post is that in a week the post is less valuable even if it is about a case that won’t be argued until 6 months from now. A sense of permanent value comes from a law review, or possibly from a non-blog internet source. The scroll function denigrates the longterm value of a blog post.

“Permanent” in internet terms means “it will probably be there tomorrow.” He hosts the briefs and other documents in upcoming cases, but he has no idea where those bits really are or what would happen if the server crashed. Somebody representing themselves as being from the Library of Congress asked to save a copy of his site, so you can find the early days of SCOTUSblog at archive.org and the LoC. But he doesn’t know anything about archive.org; he cares about the blog and about accuracy, but he’s still pathologically clueless about preservation.

Toby McIntosh, Director of Editorial Quality Review, BNA

He’s a traditional media guy, used to responding to criticisms of traditional media. (Did you know there was a Furniture Law Blog?) Reliability of documents: most blogs don’t bother to link to documents at all. We almost never take documents from blogs, but do quote from blogs. Different courts correct opinions different ways, which means we have to verify links—don’t want to link to an opinion that was subsequently amended. We may have to write a new story about a new deadline for comments in an administrative proceeding: trying to be a publisher of record, doing stories on technical correction amendments to laws.

Draft bills: when they get draft bills, they have to make sure that the source is reliable and up-to-date.

Blogs don’t tend to have corrections policies. SCOTUSblog does; it’s a sign of integrity that you acknowledge mistakes.

Unlike blogs, we have a mission to be comprehensive. And neutral. We’re trying to get into the area of shorter-than-law-review articles. Have trouble dealing with things like anonymous commenters (among which he includes pseudonymous, which I would not—if someone consistently posts under a particular pseudonym, that person has an identity; could you pick me out of a lineup just because I post under a particular name).

The democratization of legal analysis: at what point do we say that a person’s viewpoint isn’t worth reporting because of lack of credibility/credentials? Editors troll for quotes, ideas and concepts, trying to find useful/relevant materials. University of Montana law students did hour-by-hour coverage of an important environmental case: no for-profit publisher could ever do that. We try to verify blog facts—many editors don’t want to quote blogs but want to call the blogger and talk. Some BNA publications are trying columns about what’s going on in the blogs, but that hasn’t been very successful yet (we read so you don’t have to model). We’re looking for experts, whether they’re blogging or not, and plenty of experts wouldn’t touch a blog.

Mike Wash, CIO, US GPO

The challenges of blogs have been present from the beginning of the internet. Authenticity (including proper versioning), permanency, public access and availability for printing/copying are key principles. The same principles can be applied to blogs, as well as audio and video.

FDsys: a content management system, controling digital content throughout its lifecycle. They do know where their bits are, unlike Goldstein. It’s a preservation repository, following archival standards—preserves signature blocks on legislation, creating a trail for each actual document. It’s also an advanced search engine using extensive metadata. Increased preservation and search capacity planned for the future.

Given the rate of change of tech, many concepts of preservation used for federal documents weren’t even being considered 15 years ago—blogs may be in that state today. Maybe there could be signatures that could travel with a blog post, providing a chain of custody.

Goldstein: Bloggers, as distinct from other publishers, have less time/willingness to invest time, less money/willingness to invest money, and are interested in boldface instead of subtle. Wash’s work is timeconsuming, expensive, and subtle. The importance of a permanent archive is transcendant for the nation as a whole, but not immediately apparent to the ordinary blogger. Sounds great to librarians, but not of much concern to average nonacademic bloggers.

McIntosh: Ordinary people won’t care until someone distorts a document to scam them.

Goldstein: Importance of reaching out to blogging culture and transmitting these values.

Q: are blogs considered federal documents that need permanence?

Wash: blogs are not government documents under our current rules.

Goldstein: A different reliability question: bloggers blog about things they’re interested in; we don’t tend to be comprehensive (though SCOTUSblog is now)—they might stop and take a break. Collectively the group is likely to be more comprehensive than more permanent journalistic institutions, but individually they are much less reliable. An accurate, well-vetted historical repository is a scary prospect, just because of the finances. Is not sure institutions that care about integrity are going to be able to survive (thinks law reviews are ultimately unsustainable).

Q: A CC license would help preservation.

Goldstein: He’s never asserted copyright over SCOTUSblog—the idea that someone feels a need to license it is one of those things he’s never thought about.

Q: As the person responsible for a preservation effort, being advised by Stanford lawyers she trusts, she doesn’t collect material for preservation without explicit permission, which is their interpretation of the DMCA. If you wanted to do something really simple to allow people who do care about preservation to do so, a CC license would be the thing. (This exchange reminds me of Niva Elkin-Koren’s criticisms of the CC license as feeding into a permission culture.)

Goldstein: His point in being hyperbolic about the unreliability of blogs is to emphasize that many bloggers don’t think about these things, even though SCOTUSblog values its reputation.

The Future of Today's Legal Scholarship part 2

Panel 1: The Future Research Value of Blogs

Chris Borgen, St. John’s University School of Law (Opinio Juris): he wasn’t thinking about creating an authoritative site. He was thinking: I’ve been working on this article for 5 months and if I have to read one more case on the subject I’m going to drill a hole in my skull, so I want to write about something else. A blog sounded like fun. “Let’s put on a show!” Now we have document retention issues, contracts with third parties, guest bloggers from the State Department, management issues (platform, reliability, etc.). Keep in mind: blogs have already evolved very quickly.

At the outset, blogs were basically journals, like Facebook now. Less-networked social networks. Some blogs are like newspapers, reporting on a particular area. Blogs can also be like law reviews, posting longer analysis, ideally somewhat neutral. This is an area of convergence with blogs & law reviews, like the Yale Pocket Part. Opinio Juris has agreements with Virginia and Yale international law journals—the blog does symposia on each issue of the journals as they come out. Blogs can also be bully pulpits. They can be like TV.

Blogs are good at news, and at issue-spotting: pointing out interesting stuff within a particular field. Also good at publicizing: Larry Solum does a great job of getting info out about articles of note on SSRN. And good at community-building, which is drastically different from law reviews—he knows his commenters quite well. Feedback and discussion.

Blogs are not so great at deep writing and deep reading—readers generally assume that they won’t be reading for a long time. The outside length: 7 paragraphs. (Whoops.) Average reader time on site for a post: 3 minutes. Larry Solum’s blog is an outlier.

Where blogs, including legal blogs, made a difference: Guantanamo, torture, Abu Ghraib, and related issues. Did a better job than mainstream media and law reviews because of blog-specific advantages: blogs were able to get to the issues very quickly; without editorial boards there was less need to worry about political contentiousness; these were legal academics with deep expertise—didn’t have to educate a reporter about what the Geneva Conventions were, so people could write quickly and with a great deal of precision; multiple bloggers and commenters allowed access to the wisdom of many minds.

Lee Peoples, Oklahoma City U. School of Law: Scholars may want to use blogs to influence courts: instead of writing a law review article that may take a while and may be missed by a court, you can wait for an issue to come along and then write about it at just the right time. We know that courts are reading and citing blogs. Attorneys blog about their cases: potential ethical issues.

Kennedy v. Louisiana: both majority and dissent said there was no federal death penalty for raping a child, but a blogger pointed out that there was a military law authorizing that penalty. Linda Greenhouse broke the story the next day in the NYT; the state petitioned for rehearing, and the Court ultimately amended the opinions.

July 2007-May 2009, 29 opinions cite blogs, mainly to support the court’s reasoning or analysis. 17: citing to support facts. Doug Berman’s Sentencing Law & Policy retains its predominance. Goal of citation: give the future researcher/lawyer/judge enough information to view the post as it was when the court looked at it. Bluebook rule has room for improvement; hangs its hat on date/time stamp. If everyone followed this, and assuming that the blog wasn’t changed or deleted, it could work, but courts aren’t following the Bluebook rule. Only 1 of 29 opinions followed the rule. 23 out of 29 included direct links—better approach than alternative generic link.

How do links get put into Lexis or Westlaw? Westlaw adds in spaces so the link doesn’t work. That’s a problem.

1 of 29 citations: blog deleted. Some bloggers change posts, not always signalled: 3 out of 29 had been changed in his survey. Best practice for courts (11 out of 29): include a direct quotation. That still leaves you looking for context/surrounding posts.

Need a federal/state rule about citation, not just Bluebook.

Unanswered legal questions: ethics, including ethics of blogging a pending case you’re involved in. What about judges using blogs as independent legal research? Not different from reading a law review article/treatise; if it’s by a true expert, it will have up-to-date information. But what about judges doing independent factual research? Citing blogs for facts seems to violate the prohibition on judges doing factual research on their own. Reversible error found in citing Wikipedia for facts.

What about judicial notice? No one’s asked a court to do this yet, though it’s come up with Wikipedia and courts are split. Also creates extra information for experts to look at: is it okay for experts to rely on blogs? Should courts look at experts’ blogs in evaluating what they say?

Margaret Schilt, Chicago Law: People don’t agree whether blogging is scholarship, teaching, or service, but it fits in there somewhere. Blogging is a medium; content determines whether it’s scholarship, and that’s judged by readers. If it meets normal standards for legal scholarship, then it is, and the question is whether it’s good or not. Howard Wasserman got tenure including his blog in his scholarship: as a complement and alternative to core legal scholarship.

Functions: testing ground for new ideas. Collaboration; commentary on recent events. Discussions that could have taken place in symposia or in letters columns. Related perhaps to the move towards the shorter form of legal scholarship—50 pages instead of 120. And law reviews have moved to occupy a niche between the law review and the blog: response pieces that are solicited/submitted, edited, and cited as part of the law review, but is more informal in tone. New collaboration of 7 journals, including Georgetown’s: “legal workshop” for a general audience that is screened and edited.

Cite checking is easier, because the blog is probably there shortly after the article is written. But what about 20 years later? Law reviews haven’t taken responsibility for archiving—“unpublished paper” is probably on file with the author, or thrown out because of lack of space. This may need to change.

Do libraries have an obligation to archive blogs? If they’re legal scholarship, and our mission is to archive legal scholarship, then syllogistically we do. But one could argue that what is scholarly about blogs eventually makes its way into published articles. Blogs test ideas/get feedback in the writing process. If that’s how blogs are being used, then what is good will end up in traditional scholarship and will be preserved. Is this good enough? There’s historical precedent: workshops and symposia were held for the same purpose.

Problems: sometimes the ideas never make it to publication, simply because of the pace of scholarly discussions. Also: variety of types of posting within blogs. Few blogs are 100% legal scholarship. Volokh Conspiracy/Balnkinization—do we want to put our resources into Ilya Somin’s Monday Sloth Bear blogging? Deleted blogs—the material won’t be available to other scholars if the writer decides to “stop clogging up the blogosphere.” How will the historians of the 2050s talk about public policy debates in the 2000s? We have newspaper records from 1900s; someone has to take charge of preservation issues.

Borgen: when he started, it was play; now there’s a big payoff if you do it right and a big risk if you do it wrong. His message: try out blogging in pretenure years, but don’t spend a lot of time on it. Doug Berman argued that pretenure profs should blog more, and a third person on a recent panel argued tht pretenure profs shouldn’t blog at all. Blogging is a medium, not one single thing. Many different styles. Blogs are like print media: there are journals, newsletters, etc.

Social networking will be a big change: Facebook has taken over what used to be part of the blogosphere. Twitter: Opinio Juris is talking about using Twitter. (Note: I automatically crosspost to Twitter, thence to Facebook.) People who approach blogs like law reviews tend to write bad blog posts. As we start to use new things like embedded video, we’ll have to learn new skills: being good on camera is completely different from writing a good essay.

Peoples: He is particularly concerned when courts cite blogs—the justification for preservation is much stronger.

Schilt: Blogs filled a niche that was previously unfilled: that demand is not going to go away, whatever the ultimate structure.

New note on puffery and images

Owen Weaver, Everything You Will Ever Want To Know About Puffery and How the Second Circuit Wrongly Applied It in Time Warner Cable, Inc. v. DIRECTV, Inc., 43 New Eng. L. Rev. 357 (2009)

Abstract:

In Time Warner Cable, Inc. v. DIRECTV, Time Warner Cable alleged that DIRECTV's “Source Matters” advertising campaign, which consisted of television commercials and Internet banner advertisements, constituted false advertising under the Lanham Act. DIRECTV argued in defense that both forms of advertisements constituted puffery and therefore were not false advertising. The United States Court of Appeals for the Second Circuit agreed in part, finding that only the Internet banner advertisements constituted puffery. But in order to come to this conclusion the Second Circuit adopted a definition of puffery, with respect to image advertisements, that it had never applied before. This Comment analyzes the Second Circuit's ad hoc use of the Puffery Doctrine and ultimately concludes that the Second Circuit's application was wrong for two reasons. First, the court's formalistic approach created a legal dichotomy between images and words that fosters inconsistent application of the Puffery Doctrine. Second, the court's reliance on the English common law understanding of puffery caused it to ignore the modern understanding that false advertising greatly affects consumer behavior. Consequently, Time Warner Cable, Inc. v. DIRECTV illustrates the need for reform and in particular the need for a uniform definition of puffery. As a solution, this Comment proposes an amendment to the Lanham Act codifying the definition of puffery.

The Future of Today's Legal Scholarship

The Future of Today’s Legal Scholarship, a symposium at Georgetown Law in honor of Robert L. Oakley

Opening Remarks: Bob Berring, Berkeley Law

Students speak a different information language. They are no longer speaking the language of books, indexes, double lookups—an entire structure of authority/trust is no longer part of their world. They don’t look at authority in the same way—they use what is available to them. (As we did in the world of books and indexes.)

“I shepardized it” used to be a way to invoke authority and security: if you did that, you were secure, you’d done what you were supposed to do, even if you missed something. Certain periodicals represented intellectual power. Enormous thought given to library classification (the difference between Scientific American and Mad Magazine), to what books were in the reference room: what books were easiest to use. The most valuable books were there, but also tightly controlled so that they couldn’t be monopolized by particular users.

That authority system is gone. Encyclopedia Britannica doesn’t have the same power, much less success. Some of those sources are disappearing—no published catalogs of baseball statistics, for example. Instead, we get unfiltered information--Wikipedia isn’t completely unfiltered—banned Scientology edits on Scientology, for example—but it’s user-produced. Even if you take it with a grain of salt, it’s undeniable that Wikipedia is a great place to start.

Recommended: David Post’s In Search of Jefferson’s Moose: the most important question about an information source is not “is it accurate” but “does it work?” (Aside: Rachel Maines has the best anecdote ever about this question, highlighting an important truth about technology and culture that is actually relevant to Berring’s talk. See below.) Still, we haven’t replaced the old standards: the university press, peer review, the editorial process, names you can rely on without thinking—those names exist, but they aren’t settled. (Query: Did everybody rely on Walter Cronkite thirty years ago? Or did we actually consider the opinions of everybody, or only everybody who counted? I don’t have of an answer for that, but—and I don’t think Berring is doing this—I distrust invocations of an idealized information past of quality and trustworthiness. That’s also the past where James Tiptree was well advised to use a man’s name to publish, and so on.)

Treatise writers used to promise to read every case and condense them, holding it all in their own minds. This used to be possible, but is not any more—the end of the treatise tradition. But we still need someplace to go. The shift went to academic law reviews. (In IP, treatises are still pretty powerful. It’s at least possible for a small group of people or maybe even one person to monitor most of the decided cases, and decide whether or not to include them.)

So, when will someone get tenure for legal blogging? The top universities haven’t been able to look beyond academic law reviews. Yet judges aren’t reading law reviews; with Lexis and Westlaw you can tear articles apart looking for their footnotes, which is often what you’re more interested in anyway. What will replace it? Auxiliary blogs like the Yale Pocket Part? Institutional problem: law review staff turns over too fast.

Blogs form a new kind of discussion. Samuel Johnson published his own newspaper every couple of weeks, every word his own—I.F. Stone did the same thing. Information ripple effect: small number of readers, but the right readers, who pass it on if it’s of larger interest. This used to be true of a select number of authority sources, like The New England Journal of Medicine, which could filter into the NYT, which could filter into the TV news, which could become general knowledge. Now SCOTUSblog can do the same thing.

Blogs are good for hot documents, but will those documents remain available? Library orientation towards preservation creates a conflict: blogs have authority without the archival function (both physical and the cognitive effort of holding things together in the mind) that used to go along with authority when authority was collected in physical objects.

There are access issues in the new world as well. Oceans of information can be exclusionary: who can understand a thousand-page health care bill? Nobody reads the budget.

Libraries remain the place where information can be preserved. Blogs are immediate, replicating the feeling of being in a room with Samuel Johnson, talking to the most brilliant people. But blogs are going to be outrun in the end, too.

Here’s the Rachel Maines anecdote:

The curator and I were down in collection storage examining the vibrator collection …. The curator … was taking the opportunity … to expand and update the information on his catalog cards. Since I had museum training, I was permitted to write (in pencil, of course) on the cards the new information, such as weight, measurements, number of vibratodes (attachments), and so on. We came to … an early twentieth-century medical vibrator with a selection of about half a dozen vibratodes. I asked the curator if the device was still operational. Looking into the box, Al unerringly selected the most appropriate of the attachments, plugged the cord into a wall outlet, and flipped the switch. No response. Unplugging the device, he pulled a small screwdriver from his pocket, made several mysterious adjustments, and again plugged in the instrument, which then buzzed vigorously when turned on…. Thanking Al, who began putting away the artifact, I wrote “runs” in the “remarks” suggestion of the catalog card…. About half an hour later the museum’s director came down and asked how we were getting along. I told him we had just plugged in one of the vibrators and tried it out. “And did it work?” he asked. “We don’t know if it works,” Al replied solemnly. “We only know that it runs.”

(I highly recommend the book, The Technology of Orgasm—see Zach Schrag’s layperson’s reading list in American history, which points out that “Americans are people who believe that if something is worth doing, it’s worth doing with power tools.” Which also draws a connective line between Johnson’s newspaper and Tom Goldstein’s blog, now that I think about it.)

Geocities Rescue Project

Slightly off-topic, but I know there are fans reading this, so:

When I was a semi-wee fan, Geocities was where the action was, so here's an announcement: Do you or anyone you know have fic or other fandom resources on Geocities? Geocities is shutting down in October, and the OTW/Archive of Our Own has created a Geocities Rescue Project to save our stories.

The short version: if your fanfiction page is on GeoCities, which is going down for good on October 26, they'll give you an AO3 account (beta!); if you have other kinds of fannish pages there, they'll help you document those pages in Fanlore. Contact the Geocities Rescue Project! And pass on the news if you know people who might be interested.

Joining the Pom squad

Pom Wonderful LLC v. Ocean Spray Cranberries, Inc., 2009 WL 2151355 (C.D. Cal.)

Pom Wonderful, that punning advertiser and occasional false advertising plaintiff, sued Ocean Spray for false advertising of its pomegranate and cranberry juice blend. Cran-Pomegranate is allegedly comprised almost entirely of apple and grape juice, with cranberry the third-ranking juice and pomegranate fifth. Further, Ocean Spray allegedly falsely markets its product as high in antioxidants, like pomegranate juice, and made other similar misrepresentations. As a result, Pom Wonderful alleged, Ocean Spray can compete at lower prices, tricking consumers into switching.

Ocean Spray argued FDA preclusion. The court distinguished between private causes of action attempting to determine preemptively how the FDA will interpret and enforce its own regulations and falsity claims that merely touch on an area dealt with by the FDA. The key is whether truth can be “easily verified” without an FDA determination. In a sister case against Coca-Cola, the district court granted in part Coca-Cola’s motion to dismiss, but stated that it was largely unpersuaded by FDA preclusion arguments because the Lanham Act claims extended beyond name and packaging to advertising and marketing, where the FDA doesn’t regulate. The court here, however, found that the essential claim—that Ocean Spray’s label misrepresents its primary ingredients—didn’t rely on an interpretation of FDA regulations or on FDA determinations.

Determining the primary ingredients, and whether Ocean Spray’s representations are misleading, would not be contingent on FDA factfinding or enforcing FDA regulations. Indeed, the FDA regulations don’t define “misleading.” It’s possible for a product to be both mislabeled and falsely advertised, as for example when a party misrepresents FDA approval where there is none. Moreover, an FDA-compliant label may be subverted, and the Lanham Act violated, through advertising.

The FDA has a bunch of requirements for multi-juice beverages; where the named juice isn’t predominant, the common/usual name for the product has to say that the named juice is a flavor or flavoring. And if the juice’s “organoleptic properties” aren’t recognizable, or its “nutrient profile” is diminished below the normal range, the source fruits can’t be depicted on the label pictorially. But the complaint doesn’t try to enforce those requirements. Instead, the argument is that the name and the pictures of the fruit constitute false advertising. It’s theoretically possible that a court decision might conflict with FDA regulations, but on its face the complaint doesn’t. Ocean Spray can bring up any conflict with FDA regulations or the FDCA that develops later.

Likewise, the state law claims were not preempted by the FDCA’s express preemption provision as long as they didn’t attempt to establish requirements for labeling that weren’t identical to federal regulations. Nor was field preemption applicable. There was no indication that the FDCA and the FDA regulations intend to occupy the field of beverage labeling. Consumer protection, after all, is historically a state power.

Next, the court rejected Ocean Spray’s primary jurisdiction argument that the FDA should handle the problem in the first instance. This case didn’t require technical expertise in food product labeling or implicate uniformity in administration. And there was no evidence the FDA has taken any interest in investigating the claims or issues presented.

And finally, Ocean Spray argued that Pom Wonderful hadn’t satisfied Rule 9(b)’s heightened pleading standards. The 9^th Circuit hasn’t applied 9(b) to Lanham Act claims, though some district courts have done so, and the court agreed that false advertising claims are “grounded in fraud” (even though the Lanham Act imposes strict liability). “All of Plaintiff’s allegations deal with the same underlying issue, which is Defendant’s intent to mislead consumers by mischaracterizing the primary ingredients of the Beverage.” Interestingly, the portions of the complaint quoted don’t go to intent: Ocean Spray “has confused and misled consumers” and the ads are “false and misleading,” which is a description of result and not intent—a claim can be false without being intentionally false. But anyway, the court required pleading with particularity, and found the 9(b) standard satisfied.

Update to Barton Beebe's empirical study of TM

Kevin Blum, Ariel Fox, Christina J. Hayes, & James (Hanjun) Xu, Empirical Analysis of Multifactor Tests for Trademark Infringement

Interesting data from 15 years of SDNY trademark cases, coded and written up by four Harvard Law students. Singling out the bit on survey evidence:

Plaintiffs presented survey evidence in 24 of 139 preliminary injunction and bench trial opinions (17.3%), but this evidence was favorably credited by the court in only one-quarter, or six of these opinions. When the survey was credited, however, the court always found that the actual confusion factor favored the plaintiff and always ultimately found a likelihood of confusion (a plaintiff win rate of 100%). In the 18 opinions where the survey was not credited, none of the plaintiffs were able to win the actual confusion factor and only three were nevertheless able to obtain a finding of likelihood of confusion (a plaintiff win rate of 16.7%).

Despite the overall infrequency of opinions in which plaintiffs actually presented survey evidence, the court drew an adverse inference against the plaintiff for failure to submit survey evidence showing actual confusion in 13 opinions of our set of 139 preliminary injunction and bench trial opinions.. . . These data are particularly remarkable given that five of these 13 opinions were preliminary injunction opinions, when one would be less likely to expect the parties to be able to have had the time to prepare credible survey evidence.

Of the 13 cases in which the adverse inference was drawn, only one resulted in a finding that this factor favored a likelihood of confusion (7.7%), and only two opinions resulted in an overall finding of likelihood of confusion (a plaintiff win rate of 15.4%).

Defendants presented survey evidence in 13 of 139 preliminary injunction and bench trial opinions (9.4%), and the court favorably credited this evidence in six of the 13 opinions (46.2%). Defendants who presented credited survey evidence enjoyed a much higher likelihood of a finding of no likelihood of confusion, with only one of the six facing a finding of likelihood of confusion (a defendant win rate of 83%). Of the seven opinions that did not credit the defendants’ survey evidence, four resulted in a finding of likelihood of confusion (a defendant win rate of 57.1%).

My take: clients who can afford a survey are probably well advised to have one; though the risk of disregard is high, the payoff is substantial.

Recent reading: Trade Marks and Brands: An Interdisciplinary Critique

Editors: Lionel Bently, Jennifer Davis, and Jane C. Ginsburg. This 2008 European-tilting collection makes a good complement to Graeme Dinwoodie & Mark Janis's Trademark Law and Theory: A Handbook of Contemporary Research (in which I have a chapter). It features some helpful UK history as well as debates over the role of linguistics, marketing, sociology, law & economics, philosophy, and anthropology in trademark law, and a final bit on GIs. As you'd expect, dilution is a heavy hitter here; while almost every contributor in the theory sections takes trademark confusion as a fairly easy concept to justify (Mark McKenna would have something to say about that as to noncompeting goods), almost every one also feels that it's important to take a position on whether, or how, dilution is to be justified, either with theories of branding or theories of protection from forced expression.

The Daily Show covers trademark!

Or at least the dispute between the Pull My Finger iPhone app and the iFart iPhone app:

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
iFeud
www.thedailyshow.com
Daily Show Full Episodes Political Humor Joke of the Day

Due to the good offices of the plaintiff's counsel and eBay, I myself possess both a Pull My Finger Fred and a Fartman, subjects of a different fart-based IP case--that one copyright. Here, the apparently unrelated Pull My Finger app creator complains that the iFart relied on ads with "pull my finger" as the link text. If that's a protectable trademark, then that's dangerous behavior. Assume the term is descriptive but has secondary meaning: can using the term as link text be a descriptive fair use? If not, what would suffice? "A pull my finger app"? If that won't do it, what's left for descriptive fair use in short ads?

Products liability question of the day

From the NYT story on distraction by electronic devices as a cause of driving accidents: "A recent ad from Audible.com, which sells audio books, says, 'you just might miss your exit on the turnpike.'” So, in the resulting lawsuit by someone injured by a book-listening driver, does this establish Audible's knowledge and intent? What if we treated products liability like copyright infringement: inducement?

Family Guy pratfall

Arthur Metrano sued Fox over a Family Guy episode that had Jesus imitating his comedy act. David Fagundes posts on Prawfsblog about the dubious analysis in the recent opinion rejecting a 12(b)(6) motion to dismiss based on fair use. David nails it:

the Family Guy clip in Burnett actually depicted Carol Burnett, while the clip in Metrano showed someone else (Jesus) performing Metrano’s act. This probably made the reference to Burnett more obvious, and one can certainly imagine that many viewers did not understand or know about Art Metrano’s act when they saw the Jesus scene in Stewie. Nevertheless, this strikes me as a distinction without a difference. The district court concludes that the only mockery at issue in the scene was the creators’ poking fun at Jesus’ ability to work miracles. But the scene could not have effectively communicated the message that Jesus was "overrated" unless what He was doing was lame and unimpressive (hence the vacant expressions of the audience members who watch Jesus perform the act), and that means that the scene also had to communicate that Metrano’s act was subpar.

The real problem here, of course, is that some courts misread Campbell to elevate parody over all other forms of transformativeness. (It's invited error: sorry, Justice Souter, but that satire/parody distinction is way more trouble than it's worth.) The Second Circuit, in Blanch v. Koons and Dorling Kindersley, went a long way towards fixing that problem, but unfortunately not everyone has caught up. The Ninth Circuit cases that should establish the same principle in the Hollywood Circuit are search engine-based, finding transformativeness in large-scale copying, and thus courts assessing individual reuses can overlook their importance.

Thanks to David for the heads-up.

Pearls of Wisdom: Tampax claims allowed to continue

Playtex Products, Inc. v. Procter & Gamble Co., 2009 WL 2043897 (S.D.N.Y.)

The court styled this “the latest skirmish in the tampon advertising wars,” concerning Playtex’s allegations that P&G’s claims of superior protection for Tampax Pearl were false.

Tampax Pearl is the leader in the plastic applicator tampon market, followed by Playtex’s Gentle Glide. Playtex sued P&G in 2002 over ads claiming better leakage protection and comfort than Gentle Glide, and won a jury verdict. The resulting injunction barred P&G from: “communicating or stating that (a) Tampax Pearl tampons are superior in wearing comfort or protection to Playtex Gentle Glide tampons; and (b) Tampax Pearl tampons are superior in absorbency to or have an absorbent braid for better protection than Playtex Gentle Glide tampons, either explicitly or implicitly by reference to ‘the leading plastic’ applicator tampon, and without limitation of reference to the use of comparative words such as ‘super,’ ‘better,’ or ‘more’....”

P&G developed a new version of Tampax Pearl and moved in 2007 to vacate or modify the injnction. The court did so, allowing a superior protection/absorbency claim, based on evidence that P&G had made a number of changes to its manufacturing process that improved Tampax Pearl’s performance. Playtex had developed a new version of Gentle Glide and was ready to market it, but no evidence about it was presented at the hearing. Playtex told P&G that, because of the new version, any claims of superiority would be false, and Playtex would sue.

P&G sued for declaratory relief to preclude any such lawsuit on res judicata grounds, and began running ads in which it asserted that Tampax Pearl protected “even better than the next leading brand.” The court denied P&G’s motion, because the current dispute concerned two products that didn’t exist in 2002. Playtex then sued for false advertising, alleging that claims of (1) superior leakage protection, (2) “more leak-free periods,” and (3) a leak-stopping braid were false. P&G subsequently abandoned claim (2). It’s now advertising that “Tampax Pearl stops leaks better than the next leading brand.”

Playtex ran an in vivo study comparing the tampons in each available absorbency (regular, super, and super-plus). Its study concluded that there was no difference in leakage rates across all absorbencies of both brands. However, the study was flawed in that half of the participants used all the test tampons, but less than half reported using that number, and the number used would match or exceed the average number used per period, except that most women use multiple absorbencies during their periods, so there was something unusual going on with the test uses—it seems that many women didn’t follow the instruction to use the test tampons only when they’d normally use that absorbency. (I’m not sure this last makes reported leaks unreliable, but it does seem that it was difficult to get accurate reporting from users.) Because the used tampons weren’t collected, there was no way to cross-check accuracy, and consumers have varying definitions of “leakage.”

Playtex and P&G also had competing in vitro tests of the braid.

Given the flaws in the Playtex in vivo study, Playtex didn’t meet its burden to show falsity, and the competing results from the in vitro studies likewise prevented Playtex from showing likely success on the merits.

NYT on Indian "knockoffs"

The article (with pictures) is interesting, but doesn't mention the background principle of territoriality (it does nod at the well-known marks doctrine, which India follows), and it takes a fairly protectionist stance by basically equating pure copying with similarity. I'm not saying I'd advise a shoemaker to use the name Woodland with a tree mark, but to call out Cocoberry as an example of Indian borrowing of popular brands from elsewhere is a bit misleading, as Pinkberry faces plenty of US competitors who have also adopted tradenames and dresses with some obvious similarities to Pinkberry. And, returning to territoriality, if there's been a Financial Times in India since 1984, I'm not sure why it's so obvious that the London FT deserves to be able to enter the Indian market under that (descriptive) name.

What standards govern the FTC in the courts?

Federal Trade Commission v. National Urological Group, --- F.Supp.2d ----, 2008 WL 2414317 (N.D. Ga.)

Westlaw just coughed up this case, and since I’ve been thinking a lot about commercial speech doctrine and false advertising law, I thought it worth an entry. The FTC sued the defendants for marketing weight loss and erectile performance dietary supplements under the names Thermalean, Lipodrene (which I could have sworn was a drug from the Colbert Report’s Prescott Pharmaceuticals), and Spontane-ES.

The defendants argued that the FTC’s standards for deceptiveness were unconstitutional under Central Hudson and unconstitutionally vague. The Central Hudson test allows regulation of truthful commercial speech concerning lawful activity if there’s a substantial government interest directly advanced by the regulation, and the regulation isn’t more extensive than necessary (though this isn’t a least restrictive means test). As you may have noticed, it appears that false and misleading commercial speech is outside this test from the beginning, and therefore may simply be banned; nonetheless, the defendants argued that the FTC violated these standards by (1) not considering intent to deceive or allowing a good faith defense; (2) relying on its own analysis of an ad, rather than extrinsic evidence of consumer perception; (3) not promulgating rules specifying what product claims or descriptions are misleading, particularly for ads with specific ingredients for which substantiation exists; and (4) requiring all supplement ad claims relating to health benefits to be substantiated by “competent and reliable scientific evidence,” but not defining that term.

The court concluded that the defendants “misapplied” Central Hudson, which was designed to determine whether a regulation that limits protected commercial speech is constitutional. Here, the FTC’s guidelines concern whether speech is protected at all. It would be circular to use Central Hudson to determine whether or not speech is protected. The court found this “confusing and illogical.”

Interlude: It is plainly a mistake to say that Central Hudson of its own terms has anything to say about FTC standards. However, the reasons for protecting truthful commercial speech definitely have relevance to the questions of who should be entitled to determine truth and what standards they should use, for the same general reasons that we scrutinize fact-finding and apply certain procedural protections in defamation cases. I don’t think defamation standards should apply to advertising law—far from it, I’m a supporter of strict liability and think an intent requirement would be a disaster for American consumers—but the basic argument is sound: if you have a sharp distinction in the standards applied to suppressing untruthful speech versus suppressing truthful speech, then it is also quite important to assess how “untruthful” is defined.

Anyway, the court held that whether ads are deceptive and thus unprotected is in “the sound discretion of the court.” Bottom line: The Constitution no more enacts the FJC’s manual on surveys than it does Mr. Herbert Spencer’s Social Statics.

The vagueness and overbreadth challenges also failed. Precedent squarely holds that overbreadth doctrine doesn’t apply to commercial speech regulation. On vagueness, defendants argued that the FTC’s criteria for scientific support were insufficient and didn’t define the necessary size, duration, or protocols of supporting studies. But the criteria neither failed to provide people of ordinary intelligence a reasonable opportunity to understand what conduct was prohibited nor authorized arbitrary and discriminatory enforcement, the two keystones of unconstitutional vagueness. “Competent and reliable scientific evidence” was sufficiently well-defined, and was also appropriately context-specific depending on what the relevant professionals would require for a particular claim. Difficult factual questions don’t make a statute void for vagueness.

On to the FTC’s side: the FTC asserted three categories of violation of the FTC Act: (1) false claims about the supplements, (2) unsubstantiated claims about the supplements, and (3) false claims about research and medical facilities. It also argued that one defendant, Dr. Wright, made false and unsubstantiated claims as an expert endorser.

Where claims are explicit or clearly and conspicuously implied, there’s no need for extrinsic evidence. If an ad only “faintly implies” a claim, however, a court “may” decline to find the claim made without extrinsic evidence of consumer perception. Only at the far end of the continuum from express to implicit, where claims are “barely discernable,” is extrinsic evidence “necessary.” The FTC didn’t present extrinsic evidence, so the court required that any actionable claims must be clear and conspicuous from the face of the ads. (Note that this description of the standard is at best confusing: “may” suggests that a court is authorized to find deception/defer to the FTC at the far end of the spectrum in the absence of extrinsic evidence. But more significantly, the spectrum surely has space in between “clear and conspicuous” and “faint implication”/“barely discernable”—what’s the role of extrinsic evidence in such cases? The court’s statement of the law suggests such evidence is helpful but unnecessary, but see below).

Claims that are likely to mislead can either be false or lack a reasonable basis (substantiation). Materiality, the final requirement, is readily found where claims are express or where they involve health and safety. Indeed, the court found it “hard to imagine” that any reasonable consumer would find health or safety claims immaterial, and particularly presumed that any nutritional supplement claims about health benefits and safety were material.

Applying the standards, the court found that the ads clearly implied that Thermalean was an effective treatment for obesity, but did not “clearly and conspicuously” imply that Thermalean was “clinically proven” to treat obesity, but only “heavily impl[ied]” that it was clinically proven to cause weight loss. The defendants presented evidence that obseity is a disease, different from weight loss, so the court refused to presume that a consumer would infer that Thermalean is clinically proven to treat obesity. Thus, the FTC’s obesity claims failed. I think the court got lost and sliced the salami a bit too fine in terms of what the FTC had to show.

The court then found that the ads represented, among other things, that Thermalean caused rapid and substantial weight loss, including as much as 30 pounds in 2 months; that it was clinically proven to do so; that it was safe; and that it was superior to several named prescription weight-loss drugs. Defendants argued that their substantiation was based on evidence about their “proprietary ingredients,” and yet the claims were made about the Thermalean product.

Defendants made similar claims about Lipodrene, including that it was clinically proven to be safe and effective. And they claimed clinically proven safety and efficacy (of a different sort) for Spontan-ES, their erectile dysfunction supplement.

The FTC alleged that these claims for clinical support lacked a reasonable basis. The FTC’s expert testified about the characteristics of well-designed, randomized, double-blind, etc. studies that would be needed for substantiation of claims of this type; among other things, one would need to test the product itself, not its ingredients, especially not if the dosages in the studies varied from the dose in the final product. Because defendants had no studies at all on the products themselves, the claims were unsubstantiated and likely to mislead.

Likewise, the (clearly and conspicuously implied) ad claims that the products had been clinically tested were false, because the products hadn’t been clinically tested, only the individual ingredients. In addition, the specific claims that Thermalean and Lipodrene could cause substantial weight loss (30 pounds in 2 months/up to 125 pounds) were false because the only evidence was that the active ingredients could generate 2 pounds per month weight loss.

The defendants were left trying to contest materiality. Courts generally presume materiality in these types of cases, but are rarely confronted with any evidence purporting to rebut the presumption. (Indeed, I don’t offhand recall another court indicating that the presumption is rebuttable, since it just doesn’t come up.) Here, the defendants submitted two surveys on the Thermalean and Lipodrene ads. The surveys concluded that the ads as a whole were ineffective in promoting the products, and that most of the claims wouldn’t significantly impact a purchasing decision.

The court found this evidence insufficient to create an issue of fact. The ads at issue in this case generated over $10 million in sales between 2001 and 2004. Clearly, the ads worked on enough people. Moreover, the survey didn’t test the ad claims at issue in the case; it tested small portions, misstatements, or irrelevant claims. Example: participants mildly agreed with the following statements: (1) “I am able to think systematically about information that is given to me about a product, and make my own judgments about the effectiveness of a product”; and (2) “I believe that information about the components of a product is useful to me when deciding whether or not to purchase the product.”

Finally, the FTC alleged that defendants falsely represented that its facilities, “Warner Laboratories” and “National Institute for Clinical Weight Loss,” were bona fide research/medical facilities that engaged in scientific medical research and product testing at on-site facilities. Not only did the names imply this, but the ads used phrases such as “At the National Institute for Clinical Weight Loss, [o]ur research and development team has developed a non-prescription formulation .…”; “With five years worth of research and development in each component going into Spontane-ES by the pharmacological staff at WARNER LABORATORIES we have not experienced any harmful side effects to date”; and “the professional staff and Medical Board at WARNER Laboratories aligned with one of the nation's largest manufacturing facilities to begin Phase I testing of Lipodrene ….” Even without the implications of the names, the court found, the ads represented that NICWL and Warner were research facilities. And, the court further concluded, these claims are false; they didn’t perform any clinical tests themselves or conduct independent research. Because these claims “convey[ed]” that the products were safe, the court also presumed materiality.

The defendants argued that most of the claims were puffery. The court noted that the ads at issue were “indisputably riddled with puffery,” but the proper focus was on the claims derived from the ads as a whole. All the claims the FTC challenged were phrased as verifiable factual statements; even puffing language supporting those claims did not take away their factual nature.

Dr. Wright was held individually liable both for his participation in the marketing and for false expert endorsement. FTC guidelines require that an expert endorsement must be supported by actual exercise of the relevant expertise, including examination or testing at least as extensive as someone with the same degree of expertise would normally require. The FTC presented evidence that a physician would require scientific evidence regarding a product itself, not its individual components, before making the claims Dr. Wright made; he admitted that he didn’t rely on scientific studies of Thermalean when making his endorsement.

The court found injunctive relief and consumer redress appropriate. Defendants made $15 million in sales. Defendants argued, among other things, that they should get to reduce this amount by sales to customers who reordered the product, who were obviously motivated by actual experience with the product. The court disagreed. There was no evidence of what motivated reordering decisions, and the fact that experience may have played some role doesn’t mean that the ads weren’t also material.

Finally, defendants proposed to pay redress directly to purchasers, contacting customers and providing or offering a complete refund. The FTC wanted redress to be deposited into a fund in its name; after consumers were redressed, the FTC would use remaining funds for further equitable relief or pay them into the Treasury as disgorgement. The court had “ample discretion” to go the FTC’s way, and saw no reason to charge “the purveyors of the deception” with competently and honestly reimbursing consumers.

Trek to Madworld

Portland actors perform Amok Time in the park, apparently unworried by the public performance right--but extremely concerned that they not be mistaken for unwashed, basement-living "Trekkies." I'd love this story more if the actors didn't feel the need to make the Geek Hierarchy move of assuring everyone that they aren't the kind of fan you ought to make fun of, who knows trivia and collects action figures and can make accurate costumes (that was one's mother's job); this is real acting! I really wish more fans would realize that, culturally, we're in this together: you won't get highbrow respect by throwing the fan next to you under the bus. You won't get it at all, most likely, but looking for it that way is a sucker's game.

Anyway, the copyright hook is obvious, but I doubt Paramount has any interest in suppressing free theater in the park.