Saturday, April 30, 2016

FESC: Hate Speech, Political Conversations, and Citizenship

Brian Hutler    Hate Speech, Political Conversations, and Citizenship        
Maggie McKinley: Tension b/t speech and protection of minorities.  Integration of distinctive communities and institutions leads to conversations, especially b/c most integrations are by force.  Exposed for some scholars the failures of liberalism in resolving historical injustice/structural inequality. Cf. MacKinnon’s critiques of sexual harassment and pornography as destructive of community—excluding women through semiotics of power.
Hutler argues for regulation of hate speech as inclusivity measure, but tries to do that through more democratic theories: Meiklejohnian theories and political science scholarship on deliberative democracy growing out of Habermas. Empirical depth to deliberative democracy through the use of ordinary language philosophy/Grice: argues for a new ideal model of speech, the conversation, rather than the “marketplace of ideas.”  That alone is a contribution to law & political science.
Suggestions: Normative components of argument.  Conversational model: speech has more to it than just dialogue and conversation, enacted in part right here with the commentary.  Nothing conversational about this part.  Some of our free speech doctrines already protect conversational aspects of speech, but that doesn’t mean we should keep doing it or make it an explicit goal.  Potential normative justifications—e.g., deliberation is great; it’s its own justification.  But: What does it mean to put majority and minority in a room?—may homogenize through majoritarian decisions.  Votes allow the minority to continue to hold its views.  Does valuing conversation silence other methods of communication, like Fuck the Draft?  Is it exclusion from the marketplace of ideas that we’re concerned with, or exclusion from educational environments, workplace environments, civil discourse/social life through microaggressions?  Internet versus student speech—a lot of the hate speech conversation there is about participating in educational opportunities. 
Finally, are we doing this because protecting conversations protects minorities, and our aim is to protect participation of minorities/improve their lives?  Is hate speech the beginning of a solution or is the same argument leading us to things like affirmative diversity training as the next step of a conversational model?  Example: Rising intonation as a sign of lack of leadership but also as a sign of being female: should we train students during mock oral arguments to not gesture, not have female affect, etc.?  If you have a stigmatized affect, should we train people out of that to improve the conversational approach?
Microaggressions as hate speech: when Easterners casually throw around “off the reservation,” should that be regulated? Whose norms will be chosen? Conversational norms vary widely.
Structural suggestion: combining internet and schools may not help—disguises some tensions in your argument.  Distinction b/t hate speech and harassment may be important.
Hutler: agree about difficulty of defining norms, but at higher theoretical level there is an overarching norm of what Grice calls cooperation—the goal of conversation is to reach some kind of mutual understanding. The goal of having that kind of conversation, even if we don’t achieve it, has a kind of moral value.  It’s valuable for individuals to be able to express themselves in a context where someone else cares; there’s also a value in forming a relationship, even if fleeting, which is designed to achieve mutual understanding even if it doesn’t occur.  Playing w/ idea of individual freedoms understood as protecting relationships/relationship formation, not just individual activities. 
As citizens, we use conversations to structure our interactions at the ground level.  In the workplace: legal standards are applied in the office, and there it matters that minorities get to have their say and get and adequate/equal level of representation, but more to the point in an interpersonal context it’s about ideally us coming together to agree on some way of interacting. That’s why focusing on universities is useful.  It’s a place where people live and interact on a small scale as citizens. 
RT: The press and the relationship to the ideal of conversation: asynchronous?  But it’s also one to many.  Images as counterexamples to the ideal of conversation—think of the little pamphlet mentioned by Justice Scalia in the abortion protest case, which is going to be a picture.  Other complicating factors in how we interact: memes—can you engage in dialogue with a meme?  Can you argue with a meme? Stories: George Lakoff and the metaphors we live by: what does it mean to be in conversation with a story? Persuasion: is it the opposite of deliberation?  Is it incorporated into deliberation but also capable of occurring in a non-deliberative way? People have projects in conversations; that matters to the kind of conversations they have.  The university of your ideal: in US, people don’t live on campus together, except at the elite colleges—they go home or to work.  What does that mean for your account?  Perhaps just that we don’t show by behavior that we as a society value what democratic deliberation theory asks us to value.
Hutler: In terms of the press: Speech that isn’t directly conversational is still deserving of protection. For him, the value of those things comes through either trying to understand what the artist/speaker meant—they may or may not care what I think—or talking about it with some third party.  Think of discussion forums on newspaper websites.  Starting points for conversations—and it was always that way: newspapers contributed to public discourse not just by creating a public record but by creating the nexus for a conversation w/others.
The goal is mutual understanding; it doesn’t always work out.  Persuasion isn’t necessarily relevant; he’s not sure it counts as mutual understanding.  If you browbeat someone into agreeing w/your position you haven’t achieved mutual understanding.  Lots of valuable conversations might not result in any kind of agreement or shared viewpoint.  Sometimes it’s bad faith to go into a conversation aiming to get the others to agree.  (Which to me implies that this theory should give zero protection to commercial speech.)
Q: in a democracy, the purpose is at some level to persuade, right? Isn’t that a value we want in a democracy?
A: If what happens is that I come to understand what you’re saying and think it’s right, that’s wonderful.
Q: Problems of hate speech regulation often come at the level of definition of what counts as hate speech.  By improving the conversation, you mean shutting up certain speakers, which contradicts the justification for free speech.
A: definition may have to be tailored to contexts.
Q: there are many settings not dedicated to public discourse and democracy. The classroom, the workplace, the dorm room?  The theory is very hard to implement.
Q: conversations have projects; sometimes there are conversations about non-conversational statements/speech that others perceive as hateful. How do we get speech about that if we shut down the hateful remarks?
Q: do people need to contribute valuable ideas to have a right to participate?  The Westboro Baptist Church doesn’t have anything to offer, but their presence contributed to a conversation by others and didn’t slow the progress towards sexual equality.  Maybe you need hate speakers on campus to have a conversation about hate speech.  [While I’m sympathetic to this argument in the abstract—or at least as justification for not removing certain groups who’ve shown up in public spaces—you don’t need slavery advocates on campus to have a conversation about slavery, or Holocaust deniers to have a conversation about the Holocaust.  Especially since speech always crowds out other speech, if only by taking your attention away from speech you might otherwise be encountering, the “your bad speech sparked good speech” argument doesn’t seem to me to justify any speech in particular.]

Q: Reminder that people are forced out of conversations by certain speech: including some people means excluding others, and so you can't get the hate speech in the conversation for "free."  This is an empirical point that matters.  [The libertarian response is often to those forced out "toughen up"--that is, change who you are and how you think about speech that hurts you, and come back.  But it is at least reasonable to ask whether we should tell the hateful speaker to change who they are and come back.]

A: Yes, also wants to maintain the possibility of conversation with the hateful speaker.

Q: Habermas may work better for the college sphere than elsewhere: it is a place where democratic conversation is the/a key goal.  Recognition of our common humanity.  If you say to someone "you're not human like I'm human," the example of conservatives who won't talk about their views about Obergefeld is not appropriate.  The conservative students don't think that liberals don't think they're fully human.  The swastika etc. are signals that people who were previously excluded should still be excluded because they don't merit treatment as people.  [Not sure I agree about how conservative students perceive the situation, but ok.]

Freedom of Expression Scholars Conference at Yale: Search Engines and Free Speech

Heather M. Whitney & Robert Mark Simpson: Search Engines and Free Speech Coverage
Discussant: Heidi Kitrosser: Are search engine results covered by the 1A? Larger question of how we decide what’s salient is part of the paper.  Survey relevant 1A case law about algorithms & results.  Of the handful of cases to be decided, courts basically have accepted a rather simple analogy between the algorithms that pop out results and the type of editorial judgments at issue in cases like Tornillo and Hurley.  Issue has mainly come up in unevenly matched cases—pro se or poorly resourced litigants against tech giants.
There’s a long temporal and intellectual chain between the initial creation of an algorithm and the spitting out of results—a disconnect in a way that makes it not at all clear that the programmers are the “authors” of the output in the way one puts together a parade/editorial page. Some algorithmically mediated content might be analogous—for example, Stuart Benjamin says, a giant digital billboard calculating the national debt; the calculation is algorithmic but the message overall is expression.  It’s just not always the case that algorithmic results are the product of editorial judgment. Demonstrates weakness of analogical reasoning generally in determining 1A coverage. Point is to get at the core Q: what are the values, reasons, normative concerns that lead us to accord special protection to speech (or other things).
Speech/conduct distinction doesn’t resolve the problem; go back to free speech theory for coverage of new tech outputs.  Pluralistic/democratic participation values: Consumer protection laws and antitrust laws might appropriately cover algorithms; algorithms themselves may repress speech if they submerge certain perspectives.
Reflections: push them to consider more of a defense of democratic participation as a focus, and/or run through other theories and explain how those would work.  Are you applying theory to determine protection, or to determine coverage?  If you use your theory to determine protection, then aren’t you collapsing coverage and protection?
Simpson: More difficult to make decisions here than the courts/some of the scholarship would have you believe. There should be no ready conclusions w/r/t coverage.  Algorithms are neither inherently dissimilar or inherently similar to editorial judgments.
Whitney: Analogies by themselves aren’t doing the work because you need to figure out what makes the analogy relevant.  Theory can help figure out if we’re ever going to have limits on the deregulatory turn.  That is a view that one can take of the 1A, but then you have given everything 1A protection (or coverage).
Jim Weinstein: Courts have intuitive, unarticulated theories they use when they analogize; good to bring them to the surface.  You suggest possible fairness doctrine, but even if something isn’t covered, the justifications themselves can trigger 1A concerns: chocolate isn’t speech, but if the gov’t wanted to regulate chocolate because consuming it made people more likely to oppose the gov’t, that would be a problem. Gov’t intent to avoid an echo chamber online: same Q.   [Note that this position may imply that federal mortgage insurance is a violation of the First Amendment; the justifications at least included that being a homeowner increases people’s involvement in the community, self-regard, and motivation to work—cf. the more recent discussions of the “ownership society.”]
Deven Desai: if the NYT started to use algorithms to take on Google News—would it lose protection?  Facebook, Yelp—is there a search engine difference or not?  TripAdvisor and Yelp v. Google—you can’t get around Red Lion that easily. If there’s not a scarcity, then people can choose something else.
Simpson: Algorithms on their own don’t determine anything about coverage.  Making a claim about how courts shouldn’t be thinking about algorithms, not about how they should be.
Enrique Armijo: When you accuse Google of inconsistency on net neutrality. The ISP argument is that they want to reserve the right to edit; Google’s position is that they edit all the time, so he thinks there’s a fair difference.  Regulating GM more easily than Google: but what about Target?  When I go to Google, I’m looking for speech, but when I go to Target I’m looking for avocados.  (Hmm. Many times when I go to Google I’m looking for, well, avocado-colored suits at least.)
Jim Tsetsis: What about the Press Clause?  If we treated it as having a separate meaning, as the SCt has not, then we wouldn’t have to sweat so hard about the difference b/t GM and the NYT, and could think better about Google. 
Whitney: Hurley line is an issue; not traditional Press. Would require quite an intervention from the SCt; would Hurley come out differently even if we separated out the press?  And the search engines would be fine saying that they were like the press, and only use editorial judgment argument as a backup. The issue is still analogical: what makes something a “press.”
Robert Corn-Revere: it’s the organization of information, so what about that isn’t protected by the First Amendment?
Whitney: The outcome might be coverage/protection; there are coherent accounts that would include search engines, but also coherent accounts that wouldn’t in certain circumstances.  We need a course correction or everything becomes speech and there’s nothing special about a bookstore v. Target.  Result of very expansive theory: The things that people sell, like search results, are the result of expressive decisions; if those choices are expressive/organizing information, then that product is speech—which goes off the rails.
Q: Millian harm principle: w/o the 1A, the constraint is rational basis, which doesn’t require the harm principle. One way of understanding the 1A is as demanding something more than the harm principle (a certain kind of harm), or given the baseline of rational basis you could just demand the harm principle be satisfied.  Even if credit ratings are speech, you might have a harm-based justification to override it, in which case the Q about what justifies regulation of search engines would be based on protection, not just on coverage.  Compare the 4th Amendment context: analogies the SCt used fairly easily to justify things—video surveillance is like looking at people—are now at risk of abandonment (cellphone isn’t like other stuff in your pocket).  Disanalogies can also be recognized—leap in scope.
Whitney: The 4th Amendment comparison is a good one—resort to principles rather than analogies.
Simpson: true, might be covered but not protected.  For our purposes here, want to remain agnostic on the result of a protection decision within the scope of covered speech, because coverage decisions also have important implications for litigation.
Balkin: what search engines do more than anything else is serve democratic competence (Meiklejohn)—Meiklejohnian version of 1A would clearly lead to coverage for Google, leaving only protection remaining as the decision.  Many other algorithms would also pass Meikeljohn’s test for coverage.  Only an autonomy theory would say that only humans are bearers of speech, and distinguish between humans and their tools.
Simpson: we don’t think it’s as clear as that.  When I go to a search engine, what I think I’m seeing is a purely mechanically generated result.  In cases against search engines, the claim is a consciously gerrymandered result that is not that.  If Meikeljohn’s theory is about members of the demos having access to information they’d need in order to be participators, then the claim is that search engines, at least some of the time, distort exactly that information.
Balkin: Meiklejohn would never have said that b/c info you get is distorted, info is not protected. You need access so as to make your own judgments. Lots of information cooks the books. You’d have to argue that search engines have a different relationship to the public different to everyone else’s: information fiduciaries, with special duties to the public.  Grimmelmann, search engines as advisors.  Special duty by nature of service = ability to regulate in public interest; otherwise they’re in the same boat as any other info providers who cook the books (to mix a metaphor).  If a newspaper gives you a bunch of biased headlines, Meiklejohn has no problem with that. Only if an entity had a special duty to the public could it be regulated.
Corn-Revere: You’d have to reverse Tornillo for that.
Whitney: another possible move is new conceptions of autonomy/libertarian paternalism. Things that distort autonomy should not be unproblematically approved.
Balkin: they don’t try to apply nudges to First Amendment values.  Imagine a nudge to register all 18 year olds as Democrats.
Whitney: Democratic competence can have multiple meanings: people cannot always detect falsity/misleadingness. 
Balkin: but then you’re taking out a huge swatch of 1A doctrine.
Whitney: Accept that, though we are not arguing for that here.
Simpson: info fiduciary argument is worth pursuing: we’re trying to do more to theorize the special role that search engines have.
Sandy Baron: Q of responsibility for output in tort law.  Google doesn’t want to be responsible in that sense; can  you distinguish them in 1A protection/responsibility?
Whitney: It does seem there’s a tension for 1A protection for antitrust plus §230 protection because it’s not their speech. They’re neutral intermediary!  100% agree there’s an issue here. Identifying as a speaker is useful in some cases, harmful in others.
Q: Facebook isn’t the same as a search engine: trying to be objective/universal, presenting information as relevant. FB is more of a community; very different waters for the tech community.
Andrea Matwyshyn: Not everyone would agree w/that. 
Q: but FB will remove hate speech/terrorist content.

Friday, April 29, 2016

FTC rules don't explain excessive redactions in FTC v. Amazon

F.T.C. v., Inc., NO. C14-1038-JCC (W.D. Wash. Apr. 26, 2016)


Amazon made it really easy for kids to make in-app purchases in “free” apps; the court agreed with the FTC that this was bad, denying the FTC’s request for an injunction and holding the question of damages for further briefing.


In some ways the biggest story here is how Amazon convinced a judge to redact embarrassing, but highly relevant and non-trade-secret, information about Amazon’s business practices here, despite the grant of summary judgment on liability for §5 violations.  The willingness to let parties choose what the court makes public is even more disturbing than the willingness to seal documents apparently willy-nilly.  Here’s a story focusing on that.


15 U.S.C. § 57b–2 covers “any document, tangible thing, or transcript of oral testimony received by the Commission pursuant to compulsory process in an investigation” and requires confidentiality of documents produced pursuant to a civil investigative demand.  However, this provision doesn’t prevent disclosure of relevant information in judicial proceedings to which the Commission is a party.  16 C.F.R. § 4.10(g), et seq., provides FTC Rules of Practice for Adjudicative Proceedings.  This regulation allows disclosure of information obtained from a CID, subject to the submitter’s ability to seek a protective or in camera order.  Nothing in the (accidentally unredacted) opinion of the court discloses a trade secret, as far as I can tell, and at least some of what was redacted—specifically, the FTC’s request for a 20-year monitoring requirement as part of its request for injunctive relief—didn’t come from Amazon in the first place, so the statute can’t really explain what happened here.  What did?

Empirical analysis of chilling effects

Wednesday, April 27, 2016

Website can use DMCA safe harbor for acts of its independent contractors

BWP Media USA, Inc v. Clarity Digital Group, LLC, No. 15-1154 (10th Cir. Apr. 25, 2016)  
BWP owns the copyrights to various celebrity photos, and its business model appears to be lawsuit-based, at least in part.  It sued defendant (AXS) for infringing 75 photos on the website.  BWP’s July 2013 letter notifying AXS of the alleged infringements (note: not a DMCA notice) prompted AXS to remove the photos, as it told BWP, but BWP sued anyway. The district court granted summary judgment based on AXS’s DMCA safe harbor defense, and BWP appealed. characterizes itself as a “dynamic entertainment, news and  lifestyle network that serves more than 20 million monthly readers across the U.S.  and around the world.” Independent  contractors, called “Examiners,” create its content. Prospective examiners must fill out an application including a proposed topic and a short writing  sample. evaluates the writing sample and conducts a background  check.  The contract between AXS and its Examiners provides that they’re independent contractors and that copyright infringement is prohibited.
BWP argued that, because of the contractual relationship between AXS and the Examiners who posted the infringing photos, the photos didn’t qualify as having been stored “at the direction of a user.”  BWP argued that Examiners weren’t users, and that, even if they were, AXS directed them to post the infringing content.  The court of appeals concluded instead that the DMCA provision should be construed as a whole, rather than by isolating particular words.  “User” was straightforward and unambiguous: for DMCA purposes, a “‘user’ describes a person  or entity who avails itself of the service provider’s system or network to store  material.”  
BWP, without legal authority, argued that “user” should exclude an ISP’s owners, employees, and  agents, or that it should exclude anyone who entered  into a contract and received compensation from an ISP.  BWP contended that, otherwise, every ISP would be protected from liability. The court of appeals disagreed.  Safe harbor protection was conditioned on various factors, including user-directed storage, lack of actual or red flag knowledge, and expeditiou action to remove or disable access to the  infringing material.
BWP further argued that Examiners were agents of AXS, not “users.” There was no evidence supporting the agency argument, which was “contrary to the language of the contract, our interpretation of the  term ‘user,’ and agency principles generally.”  A “user “is  anyone who uses a website — no class of individuals is inherently excluded.”  The contract made Examiners independent contractors, and nothing in CCNV v. Reid counseled to the contrary; even if, against the evidence, Examiners had apparent authority to act for AXS, that didn’t make them employees—even if employees couldn’t also be “users” under §512.
Nor was the infringing material stored at the direction of AXS.  Key to the question of who directed the storage of the material was control.  “[I]f the infringing content has merely gone through a screening or automated process, the ISP will generally benefit from the safe  harbor’s protection.”  BWP argued that AXS directed Examiners to post the infringing content by instructing them on the general topics to cover and suggesting that Examiners include slide shows or pictures to accompany articles. 
BWP, however, fails to explain how this evidence crosses the chasm between  encouraging the Examiners to post pictures with articles and encouraging  Examiners to post infringing content. Not only did AXS make clear copyright  infringement was prohibited, it also provided Examiners with licensed  photographs to accompany their articles. No reasonable trier of fact could find  that the infringement was at the direction of AXS.
Finally,  AXS did not have actual or circumstantial knowledge of the  copyright infringement.  Mere knowledge that celebrity photos are typically protected by copyright was insufficient. AXS encouraged the use of photos, but also provided Examiners access to a photo bank of licensed images.  “Prior  cases also clearly establish that ‘merely hosting a category of copyrightable  content, such as music videos, with the general knowledge that one’s services could be used to share infringing material, is insufficient to meet the actual  knowledge requirement under § 512(c)(1)(A)(i).’”
Agency principles couldn’t be used to impute Examiners’ knowledge to AXS; BWP didn’t raise this argument until the appeal.

Monday, April 25, 2016

Two right of publicity possibilities in the news

Corvette: Baby, that was much too fast. 1958-2016
How well would this ad fare if challenged under Jordan v. Jewel? It does inherently promote the Corvette brand, it seems to me.
Mexican food so authentic Donald Trump would build a wall around it

What principle would a court have to create to exempt this ad from Trump's right of publicity?

Friday, April 22, 2016

Cal. court sensibly rejects Fourth Circuit's GNC rule on consumer protection claims

Mullins v. Premier Nutrition Corp., 2016 WL 1534784, No. 13-cv-01271 (N.D. Cal. Apr. 15, 2016)

This case revisits an issue with which courts have struggled: when consumer plaintiffs plead that a product advertised as clinically proven isn’t, is that a mere “lack of substantiation” claim unavailable to private parties?  I think the answer is no—plaintiffs are pleading that they can show that a specific claim made by the defendant is false—and so does the court here.  Along the way, the court also deals with the hot mess that is the Fourth Circuit’s In re GNC holding, drawing its teeth in a way that should benefit future California plaintiffs, at least.

Plaintiff Kathie Sonner (a replacement plaintiff) argued that Premier sold “what amounts to worthless snake oil”: Joint Juice, a liquid dietary supplement containing glucosamine and chondroitin.  The ads claim that the product will “help keep joints flexible and lubricated.” The bottles used the slogan, “A bottle a day keeps your joints in play,” and also used the logo and contact information of the Arthritis Foundation.
Example of happy joints ad

Joe Montana endorsement

Premier chose to target consumers who suffered from joint pain and arthritis.  Its ads suggested pain relief by showing exclamations of joy by people performing ordinary activities that can be painful for people with joint pain.  Premier bid on AdWords for, among others, “arthritis treatments,” “how to stop arthritis,” “supplement for arthritis,” and “arthritis cures,” and bought ad space in Arthritis Today, the Arthritis Foundation’s magazine. Premier research and internal customer data generally shows that more than 90% of Joint Juice users suffer joint pain and are interested in pain relief.
By contrast, Premier had Hal Poret conduct a survey for this litigation, demonstrating why litigation surveys are not particularly reliable.  200 respondents had bought Joint Juice before, and 200 had purchased a product containing glucosamine, but not Joint Juice. The survey began with an open-ended question: “[T]ell us why you decided to purchase Joint Juice,” with spaces for up to twenty possible responses and an “I don’t know” option.
Then Poret asked respondents to select from a list of choices the “reasons or factors that influenced your decision to purchase Joint Juice” (or the other product).  Choices included: “I had generally heard about or read about the benefits of glucosamine”; “Statements or information I read on the Joint Juice bottle or packaging”; “The product is vegetarian” ‘ “Price/less expensive”; “Liked the taste”; “Endorsed by Joe Montana”; “Orange packaging[.]”  There were two false “control choices” (1) “Statements or information I read/heard in promotions on a home shopping channel or website, such as HSN or QVC”; and (2) “Endorsed on the Dr. Oz show or website.”  (Note that “source” statements like this are incredibly unreliable, because people’s memory for source is much weaker than their memory for content.  Getting these “wrong” wouldn’t serve as a good control for beliefs about product characteristics.)
You may notice that Poret didn’t ask whether consumers believed that Joint Juice would relieve pain or other arthritis symptoms.  Instead, he asked respondents who referred to the packaging to identify the specific statements that made an impression.  He concluded that consumers purchase Joint Juice for myriad reasons, and only 5.5% chose to buy the product because of the statements on the label. Poret concluded that “roughly 75% of respondents answered that they were not influenced by statements on the package and roughly 75% answered that they were not influenced by statements in advertising.” Instead, recommendations from friends and family members had primary weight.  Which of course explains the detailed marketing studies Premier commissioned about how to target its marketing.
Sonner’s expert disagreed, concluding that, despite serious design flaws and coding errors, the survey confirmed that most Joint Juice users bought with the hope that it will provide joint health benefits or relieve joint pain. As an example of a coding problem, Poret did not treat as motivated by joint health concerns those who tried the product to see if “it would work.” Sonner’s expert’s coding indicated that 91% of those surveyed identified joint health and pain concerns influenced the decision to buy Joint Juice.  The expert also noted that many of the offered reasons didn’t mention joint pain or health, but instead were reasons why the consumer might choose one glucosamine product over another, and thus were poor options.
Sonner alleged that, in fact, glucosamine and chondroitin do not and cannot palliate arthritic joints or improve the function of healthy joints, and brought the usual California claims.  An invalid substantiation-based claim demands that a defendant either “put up or shut up.”  By contrast, Sonner submitted evidence directly supporting her claims of falsity and misleadingness, including a lot of double-blinded studies, clinical protocols, and meta-analyses, as well as three experts, including one who testified about a medical consensus against the joint claims. This evidence raised triable issues of fact. Premier had evidence suggesting that the research was equivocal, but Sonner offered “principled” critiques of each submitted study favoring Premier.  “If a jury agrees with those criticisms, then it may also logically decide that it is misleading to claim Joint Juice can provide benefit in the face of substantial evidence to the contrary.”
Sonner alleged both falsity and misleadingness.  As to falsity, she argued that the glucosamine and chondroitin in Joint Juice were not bioavailable in sufficiently high quantities to produce any positive effect, meaning the express messages—that Joint Juice would help keep joints flexible and lubricated—were false or misleading. In addition, she argued that the packaging and ads falsely implied that Joint Juice could relieve joint pain and stiffness in arthritic joints.  Premier argued that its ads made only general health benefits and that the disclaimer on the back of the package would disabuse users of any notion that Joint Juice treats or provides relief for arthritis. Premier further challenged Sonner’s ability to prove the existence of any implied message in the absence of a consumer survey.
To prevail, Sonner needed to show that “a significant portion of the consuming public or of targeted consumers acting reasonably under the circumstances, could be misled” by the statements on Joint Juice packages.  While Lanham Act cases require survey evidence for implied falsity claims, California courts have expressly rejected the “view that a plaintiff must produce a consumer survey or similar extrinsic evidence to prevail on a claim that the public is likely to be misled by a representation.”  Sonner offered three types of evidence: the ads themselves, her experiences, and Premier’s marketing research surveys.
The court thought that this was sufficient to create a factual issue:
The name alone implies that the whole point to drinking the product is to receive joint health benefits. Sonner testified that she believed Joint Juice, like ibuprofen, would provide pain relief. While an isolated anecdotal incident is likely insufficient to show that the reasonable consumer understands this implied pain message, Sonner’s account is some evidence of Premier’s unspoken message.
Further, Premier’s own research showed that its customers “cited joint pain as the principal reason they tried and continued to use Joint Juice,” which could persuade a reasonable jury that Premier’s ads “subliminally encouraged people to buy the product to relieve joint pain.”  Sonner didn’t need her own survey when sufficient evidence could be found in Premier’s own files.
The disclaimer on the back wasn’t sufficient to prevent misleadingness.  The Gerber case rejected the assertion that “reasonable consumers should be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box.”  In the 9th Circuit, “courts cannot hold as a matter of law that disclaimers vitiate claims for misleading representations.”  The jury should review the package as a whole, especially given the evidence in the record that the disclaimer didn’t change consumers’ views about the use of Joint Juice for treating joint pain and stiffness.
Premier argued that all Sonner had was a battle of the experts, and therefore she had to lose because UCL and CLRA claims fail if the plaintiffs do not aver “that all scientists agree that glucosamine and chondroitin are ineffective at providing the promised joint health benefits.” In re GNC Corp., 789 F.3d 505, 515 (4th Cir. 2015) (emphasis in original).  In re GNC reasoned that, even if “the vast weight of competent clinical evidence” cuts against a purported health claim, the UCL claim for literal falsity failed as long as “a reasonable difference of scientific opinion exists.”
The court had noted above that California doesn’t use the explicit/implicit divide when it discussed surveys; starting with the GNC court’s error in understanding the Lanham Act standard (explicit means stated outright; it’s not a standard looking to the quantum of evidence proving the falsity), that decision is rotten all the way down.  Speaking with great restraint, the court here commented that “[t]here is cause to believe the Fourth Circuit’s characterization of California law is flawed.”  In re GNC didn’t analyze California law to predict what the California Supreme Court would do, “as district courts in this circuit must.”  Instead, it used Lanham Act precedent, which doesn’t apply. 
Moreover, the court continued, In re GNC only addressed whether a plaintiff could allege literal falsity, not whether it could use evidence of a solid scientific consensus to prove that a claim was misleading.  Given the intentional breadth of California consumer protection law, and its recognition that even technically accurate claims may mislead or deceive, “a manufacturer may not hold out the opinion of a minority of scientists as if it reflected broad scientific consensus.” Thus, “even if a reasonable expert testifies that the scientific literature is equivocal, a plaintiff may prevail under the UCL and CLRA if she proves that the expert is nevertheless incorrect.”
Sonner could therefore win in two ways.  She could prove literal falsity “if a reasonable jury concludes all reasonable scientists agree that drinking glucosamine and chondroitin do not relieve joint pain or stiffness associated with [arthritis] and that Joint Juice does not provide any general joint health benefits.”  She could do this by showing that Premier’s expert’s opinions were unreasonable.  (It is silly to call this literal falsity and not the next path also literal falsity, but at least the court gets everything else right.)  Or, she could show that “the vast weight of the competent evidence establishes that those health claims are false.” This second theory would allow her to “concede the existence of scientific studies substantiating a representation, but argue that those studies are poorly designed, incredible, or represent the view of a minority of scientists.”
There was a genuine dispute both about whether Premier’s expert’s opinions were reasonable in light of the scientific evidence and whether “the totality of the evidence” supports the conclusion that Joint Juice does not relieve joint pain or stiffness in arthritic joints or improve joint health, in general.  (Note the move, correct in my opinion, from “vast weight” to “totality of the evidence”—the standard is usually proof by a preponderance of the evidence, and there is no reason to depart from that here.)
Furthermore, even if a jury found that Premier didn’t make any implied claims directed at arthritis sufferers, there was sufficient evidence that the amount of glucosamine and chondroitin in Joint Juice could have no positive impact on general joint health.
Premier argued that, because Joint Juice is a supplement, not a drug, studies proving that it didn’t work were irrelevant, because the FDCA allows supplements to be sold even without randomized, placebo-controlled, double-blind clinical trials supporting their efficacy.  Um, no.  “That the FTC permits supplement manufacturers to make claims unsupported by randomized clinical trials is not a reason to reject the use of such studies to prove supplement claims are false or misleading.”
Remedy: The UCL allows restitution, while the CLRA allows restitution, actual damages, punitive damages, and “[a]ny other relief that the court deems proper.”  Sonner sought a full refund, and the court agreed that this could be appropriate if the product was shown to have no value.  In other cases rejecting the full refund model, consumers received a product with other benefits aside from the allegedly false claim.  But Sonner claimed that she and other Joint Juice consumers wouldn’t have bought it absent its joint-related claims—that it was nothing more than a liquid pill.  “Unlike juice, which consumers purchase for hydration, or cigarettes, which smokers purchase for flavor and to assuage nicotine cravings, Joint Juice is for all intents and purposes a liquid pill.”  Premier even stated that the only reason to buy Joint Joice was “the medicinal value of the glucosamine and chondroitin it contains.”  Given the evidence of why consumers bought Joint Juice, there was at least enough evidence to survive summary judgment as to full-value restitution.
The court did refuse to exclude Hal Poret’s testimony and survey. Poret never asked consumers whether they purchased Joint Juice because of its purported joint health benefits or how they understood the messages on Joint Juice labels and ads.  “[A]s long as [the survey] is conducted according to accepted principles and is relevant,” the “technical inadequacies in a survey, including the format of the questions or the manner in which it was taken, bear on the weight of the evidence, not its admissibility.”  The court found that the survey questions “cre[pt]  close to the general rule’s outer boundaries,” but didn’t cross them.  Sonner could address the coding and the questions on cross-examination. Indeed, her expert’s recoding offered opinions favorable to Sonner’s claims based on these data—“a fact that undermines her contention that the survey is unreliable, irrelevant, or unduly prejudicial.”

Flagging supplement case revived

ThermoLife Intern., LLC v. Gaspari Nutrition Inc., --- Fed.Appx. ----, 2016 WL 1460171, No. 14–15180 (9th Cir.  Apr. 14, 2016)
ThermoLife sued Gaspari (GNI) false advertising under the Lanham Act and unfair competition under Arizona common law, based on GNI’s allegedly false advertising of its testosterone boosters as “safe,” “natural,” “legal” and compliant with the FDCA.  The court of appeals vacated the long-suffering district court’s grant of summary judgment and remanded, given that its preemption analysis was based on now-overturned 9th Circuit precedent. 
The court of appeals first reversed the exclusion of two experts’ opinions, and upheld the exclusion of two others.  The first wrongly excluded expert opined that the dietary supplement industry would not have deemed GNI’s products “safe,” which was relevant even if it didn’t offer a definitive opinion on safety, and also provided a usable standard for determining “safety”—the industry standard.  The expert’s “presumption that GNI’s ingredients were not safe was sufficiently valid in light of the industry’s strict reliance on establishing safety through certain procedures GNI had not used.” 
Another expert’s survey, which asked consumers of testosterone boosters whether they would have continued using GNI’s products (or switched to another testosterone booster) after learning GNI’s advertisements were false, was relevant to materiality.  “Although the district court faulted the survey’s biased questions and unrepresentative sample, neither defect was so serious as to preclude the survey’s admissibility.”  The sample at least included consumers both of GNI’s products and of other testosterone boosters. “Nor was the survey unreliable simply because it was not validated. Berger reasonably explained why the survey could not be validated and concluded it was nevertheless a ‘good survey’ based on respondents’ ‘consistent, across-the-board answers.’”
With that out of the way: “Pom Wonderful established that the FDCA generally does not preclude Lanham Act claims for false labeling of food.”  And its rationale applied to ThermoLife’s claim as well: neither the FDCA nor the Lanham Act expressly barred ThermoLife’s claims, and the FDCA’s public health-protective aim was not inconsistent with the Lanham Act’s protection of commercial interests “by relying on the market expertise of competitors.”
GNI argued that Pom Wonderful could be distinguished because ThermoLife’s claims “require litigation of the alleged underlying FDCA violation ... where the FDA has not itself concluded that there was such a violation.” But ThermoLife’s claims that GNI falsely advertised its products as “safe” and “natural” required no interpretation of the FDCA, nor did ThermoLife need to demonstrate a FDCA violation to prevail on its claims that GNI falsely advertised its products as “legal” or “DSHEA-compliant.”  
Usually, claims about legality are generally inactionable opinion because they “purport to interpret the meaning of a statute or regulation.” But there is a “well-established exception” that an opinion “by a speaker who lacks a good faith belief in the truth of the statement” is actionable. Because every opinion “explicitly affirms ... that the speaker actually holds the stated belief,” a CEO’s statement about legal compliance “would falsely describe her own state of mind if she thought her company was breaking the law.” ThermoLife pointed to numerous emails indicating GNI was aware its products were not DSHEA-compliant, creating a triable issue of falsity about legality.
Safety statements were also factual claims.  GNI argued that its products were presumed safe until the FDA proved otherwise. But the statutory provision on which GNI relied didn’t mention a presumption of safety.  It defined when a supplement is safe enough that it wouldn’t be an “adulterated food.” A reasonable jury could find GNI’s products were not safe, based on the evidence about recalls and the expert’s report. There was also a triable issue of falsity on GNI’s claim that a product was “natural” and that its ingredients were “naturally occurring and are found in natural foodstuffs,” which were factual claims.
The district court also erred in its analysis of materiality.  Survey results and internet message board posts “indicated that the safety, legality and natural ingredients of GNI’s products were—to varying degrees—important factors in consumer purchasing decisions.”  
And there was also a triable issue on injury.  There is a presumption of commercial injury when the parties directly compete and the defendant’s ad tends to mislead: when competitors vie for the same customers, “a misleading ad can upset their relative competitive positions” and thereby cause injury. There needs to be evidence of causality, but evidence of direct competition provides a causal link between likely deception and injury.   
There was also no preemption of the state unfair competition law claim.  Although the FDCA expressly preempts state-law requirements that conflict with certain FDCA provisions, that didn’t include § 343(a), which governs the misbranding of food through false or misleading labeling. Moreover, there was a general “presumption against pre-emption,” and there was no preemption given that “the state-law duty ‘parallels’ the federal-law duty.”

When is confusion unlikely for purposes of a motion to dismiss?

Nutter's IP Law Bulletin covers Southgate v. Soundspark, Inc., No. 14-CV-13861-ADB, 2016 WL 1268253 (D. Mass. Mar. 31, 2016), in which the court found confusion implausible on the pleadings based on a description of the parties' businesses.  Although Southgate had a valid registration for a design mark for "Sound Spark Studios,"
Southgate did not sufficiently plead how his company was similar to and competed with defendants’; the court said that the complaint offered little evidence of similarity aside from the fact that “both companies are involved in the music industry.” The court also explained that the complaint said nothing of the companies’ respective “channels of trade, advertising, or consumer base.” And the defendants’ apparent good faith in rebranding to “TapTape” mattered, too.

Thursday, April 21, 2016

District court still rejects contribution/contributory false advertising for supplier

Nestlé Purina Petcare Co. v. Blue Buffalo Co., No. 4:14 CV 859, 2016 WL 1579195 (E.D. Mo. Apr. 19, 2016)
Previous ruling on ad agency’s potential liability for helping create allegedly false ads.  Blue Buffalo also sought contribution from Wilbur-Ellis, one of its suppliers (since the ads involved claims about the contents of Blue Buffalo’s pet food).  “For a right to contribution to exist under Missouri law, defendants must be jointly and severally liable to the plaintiff for the same indivisible harm.”  However, Blue Buffalo didn’t sufficiently allege that Wilbur-Ellis was potentially liable to Purina for the same, indivisible injury it is alleged to have caused. Rather, Blue Buffalo alleged that it lost customer goodwill and paid above market-price for the by-product meal it bought from Wilbur-Ellis, and that it was exposed by Wilbur-Ellis’s conduct to liability in this case and others.
Purina alleged that Blue Buffalo harmed Purina by disparaging its pet food and making false claims about Blue Buffalo’s own pet food. Although Duty Free Americas, Inc. v. Estee Lauder Cos., 797 F.3d 1248 (11th Cir. 2015), held that a claim of contributory false advertising could be maintained under the Lanham Act, the plaintiff has to show that the relevant defendant “contributed to that conduct either by knowingly inducing or causing the conduct, or by materially participating in it.”   The court had previously concluded that there was no federal common law right to contribution under the Lanham Act, nor is there an express right of contribution under the Lanham Act.  “While the Eleventh Circuit’s reasoning in support of recognizing a right to contributory false advertising is sound, it is not persuasive enough to compel me to reconsider my previous ruling or to reject the line of cases holding that no such right exists.”
Thus, Blue Buffalo’s only hope was to seek contribution from Wilbur-Ellis based on Purina’s unjust enrichment claim. But there was no allegation that Purina conferred a benefit on Wilbur-Ellis. Purina’s claim for unjust enrichment alleged that it conferred a benefit on Blue Buffalo: Blue Buffalo’s profits from sales to consumers who chose it because of the false advertising.  (Still don’t see how that’s Purina conferring a benefit on Blue Buffalo.)  Purina’s injuries from this unjust enrichment aren’t the same as the injuries Wilbur-Ellis allegedly caused, and Purina couldn’t have sued Wilbur-Ellis.  “As a supplier, Wilbur-Ellis could not be found liable for Purina’s claims that Blue Buffalo knowingly and in bad faith engaged in false advertising or that it made false comparative statements.”

Wednesday, April 20, 2016

All transformative from here: 2013 case about music in reality film

Threshold Media Corp. v. Relativity Media, LLC, No. CV 10-09318, 2013 WL 11287701 (C.D. Cal. Mar. 15, 2013)
Older case that just popped up in my Westclip search; blogging because it’s still interesting after three years.  Threshold sued Relativity for infringing its copyright in two sound recordings by using portions in Relativity’s film Catfish.  The recordings were of the same song, “All Downhill from Here,” as a duet by Amy Kuney and Tim Myers.  The studio version is 3:29 in length, and the acoustic version is 3:09.  Catfish was a “reality thriller” filmed in documentary style.  It followed Yaniv Schulman, a 24–year–old photographer who lives in New York City, as he developed an online friendship with Abby, an eight-year-old girl in Ishpeming, Michigan, her mother Angela, and several of their family and friends, especially Abby’s 19–year–old half-sister, Megan. Yaniv’s brother, Ariel, and their friend Henry Joost filmed Catfish.
The film begins as Abby and Yaniv have been corresponding because of paintings Abby created based on Yaniv’s photos, which she saw in a newspaper article.  Yaniv thinks that Megan “has a big crush” on him; she writes and records a song for Yaniv, which is played while Yaniv discusses it.  They flirt online. 

In the first use, Megan (using IM) says she’ll take requests and record a song.  Yaniv asks for “Tennessee Stud.” She emails Yaniv an acoustic recording, which Yaniv plays while he, Ariel, and Henry discuss how impressed they are with her talent.  Angela also posted copies of songs purportedly recorded by her and Megan. “Yaniv clicks on a song entitled ‘Downhill,’ and the Acoustic Recording is heard playing from his computer for approximately 19 seconds–from the beginning of the song until partway through the third line of the introductory verse.”  With the music in the background, “Ariel and Henry tell Yaniv to let Megan know how much they love her songs, and Yaniv is shown typing this into an instant message.”
In the second use, “Ariel begins singing along with the music before it cuts out, continuing for a few seconds afterward, for a total of approximately 16 seconds.”  The third use is ominous: Ariel googles “ ‘its [sic] all downhill from here’ song” and the film cuts to a shot of an audio player playing “All Downhill From Here / BY Amy Kuney [featuring] Tim Myers / ON One Tree Hill.”  The studio recording plays for 28 seconds total; after 8 seconds, Yaniv and Ariel discuss the similarities, but Ariel says that Angela’s is better. Yaniv and Ariel discuss Megan’s failure to attribute the source:
Ariel: All right. Listen, you can’t hold it against her. She didn’t say, “Hey, I wrote this song.”
Yaniv: It doesn’t matter, it’s just still–yeah.
Ariel: Yeah. And still, her voice is ten times better than this girl. And she’s clearly an artist because that came from a deep– from deep expression and feeling.
Yaniv: And she found a song, kind of obscure.
Ariel: She covered a song, yeah. People make careers out of that.
Yaniv: Yeah.
The fourth use is the full reveal: we hear a track entitled “Amy Kuney ‘All Downhill From Here’ (Original) from One Tree Hill,” the acoustic recording.  The friends discuss whether this is the same recording; Yaniv realizes that he’s been deceived and becomes agitated, condemning Megan for accepting his compliments on her singing.  They discover that she also copied “Tennessee Stud,” which was actually performed by Suzanna Choffel.  The rest of the film chronicles their journey to confront Megan and Angela, which leads to the discovery that Megan—and most of the rest of Abby’s friends and family—were merely Angela’s creations.
The court found that the uses of the recordings were highly transformative, adding new expressive content and using the original expression for an entirely different purpose.  The music comprised only part of the scenes, which had video footage, original dialogue, and other sounds.  The men comment on the quality of the music, albeit not in “erudite” terms (“[t]his one’s sick”; the acoustic recording is “better” than the studio recording), and discuss whether the recording attributed to Amy Kuney is the same recording Angela posted on her Facebook page.  “This critical commentary and analysis falls squarely within the category of new expressive content that transforms the copyrighted expression into something different.”  Criticism and review are broad concepts, applicable here.  “Nor is it relevant that their commentary was presented as part of a work of entertainment”; entertainment can include critical commentary.
The use also served a completely different purpose than the original, a consideration that can allow “wholesale copying of an entire work.” The original’s purpose was to entertain listeners. “The purpose of including Kuney’s song in Catfish was not to entertain using Kuney’s music and lyrics or even to evoke a similar story line” of a person who withdrew from the world after a failed relationship. Instead, it was to show Angela’s deception and to document the pivotal moment in which the deception was discovered.  Only comparison allowed Yaniv to determine that Megan had falsely claimed the song as her own; by playing the song, the filmmakers invited the audience to make the same comparison to reach its own conclusion.  “This critical analysis is entirely different than the song’s original entertainment purpose.”  SOFA Entm’t v. Dodger Prods., 709 F.3d 1273 (9th Cir. 2013), accepted a similar use of a music clim in a play for historical purposes, and Lennon v. Premise Media Corp., 556 F. Supp. 2d 310 (S.D.N.Y.2008), found fair use the movie Expelled’s use of a clip of Lennon’s “Imagine” to critique the scientific theory of evolution and, by implication, Lennon’s naivet√©.  Catfish is even more transformative than Expelled, which used the copyrighted song and its lyrics to convey the song’s original message–albeit in a critical manner. In contrast, Catfish uses Kuney’s song as a plot device–in an entirely different story–to identify (or, more accurately, misidentify and then clarify) the song’s author.”  The explicit attribution to Kuney as the real author also weighed in favor of fair use.  (Note that the court didn’t find that lack of attribution to the copyright owner was relevant.)
“Defendants recorded and published clips of Kuney’s song not to retransmit its message in a different medium, but because the song played an integral role in the plot of an unfolding story about the reality and unreality of online relationships.”  Catfish was, in some sense, designed to entertain, but it didn’t entertain in the same way as “All Downhill from Here,” and was therefore transformative. 
Threshold argued that Relativity could have used an alternative storytelling device to reveal Angela’s lies without “gratuitously” playing the song again and again.  Nope: first, the song wasn’t repeated gratuitously.  Second, the filmmakers didn’t choose the song.  The uncontroverted evidence was that the film documented “the real-life relationship between Yaniv and Angela,” although it may have distorted reality in other respects; thus, a reviewer’s conclusion that the film was “slipshod in its adherence to basic ethical norms” was irrelevant. There was just no evidence that the filmmakers had any control over the songs Angela chose.  “Whether certain members of the general public doubt that the events depicted in the film are real is irrelevant.”  The only critical fact, confirmed by Threshold’s citation of off-camera evidence, was that “Yaniv did not realize before the scene at issue that Angela had copied the songs from somewhere else and was genuinely surprised to find out the truth.” 
Thus, the fact that Catfish was commercial had minimal relevance, as did the expressive nature of Kuney’s original work (factor two).  The amount of the work used—about 22% of the acoustic recording and 12% of the studio recording—was also okay in light of the purpose.  Catfish used no more than necessary to document the critical events. The first use was “enough to give the audience a sense of the song but no more”; similarly, the second use was no longer than necessary “to give the audience a sense of what he is doing.”  The third use basically repeated the first use, now attributed correctly, and used “long enough for Yaniv and the filmmakers to comment on and for the audience to grasp the two versions’ similarity. The fourth use … is somewhat longer because Yaniv, Ariel, and Henry are commenting on the track more actively as it continues to play in the background.”  By the time the chorus comes on, “the scene’s focus is on the realization that Angela has lied rather than on presenting the music for its own inherent entertainment value.

Threshold argued that Relativity could have used an alternative plot device to reveal the deception, though it didn’t explain how.  Though the filmmakers could have reenacted the scene with different music or replaced the scene with an interview of Yaniv narrating the key events. “But such alternatives artificially impinge upon the creative process. They would force the filmmakers to sacrifice the film’s verisimilitude, its drama, or both. The descriptive term ‘reality thriller’ would no longer apply.”  Though “one might quibble whether the filmmakers could have cut a second or two from their uses,” the overall amount used was reasonable in light of the purpose, and thus factor three favored Relativity.
Finally, market effect: Catfish wouldn’t substitute for a purchase of the song.  Digital music stores typically allow prospective purchasers to hear at least 30-second samples; [i]t is inconceivable that hearing a similarly timed clip of Kuney’s song in Catfish would dissuade a listener from purchasing it if the listener were otherwise predisposed to do so,” especially since the audio quality of the song in the film is low because it’s played through laptop speakers and captured as ambient sound instead of being recorded directly into the audio track—“or at least the film is engineered to sound that way.”
Nor was there any harm to potential synch licenses.  Even if the onetime use of the song on a TV show in the past showed a market demand for future synch licenses, which was doubtful, Catfish wouldn’t affect that demand.  Market demand for synch licenses for TV and movies “inevitably tapers off over time as the song falls out of people’s favor or memories,” and creators of audiovisual works may prefer recently released songs.  Some songs are more enduring than others, but this song was published on May 18, 2008, and licensed the next day for use in a One Tree Hill episode. More than two years passed before Catfish came out, with no further licensing of the studio recording, and the acoustic recording had never been licensed.  “These facts are inconsistent with Plaintiff’s assertion that a synchronization market exists.”  If anything suppressed demand for synch licenses, it was far more likely that it was the use in One Tree Hill.  “The creators of other television shows and movies, wanting their works to appear fresh, may not want to synchronize a song that has already been heard on television.”  There was no evidence that any of Kuney’s other songs had been licensed more than once.
Balancing the factors, the court noted that the filmmakers didn’t have a choice about which song to use in the story to document the critical moment that Yaniv first realized that Megan and Angela were lying to him.  This was not an ordinary synchronization context, “where the filmmakers or studio can bargain with various artists for the use of their songs in a film, television show, or commercial. If one artist presents a holdout problem, … there is a sufficiently large market that the filmmaker or studio can decide how to balance the economic and artistic tradeoffs.”  Catfish couldn’t turn to that market. “To hold that their use of Amy Kuney’s music was not fair would be to grant Plaintiff not just a copyright but–in effect–a veto over a new, transformative work.”  So, fair use.

Tuesday, April 19, 2016

Minimal pleading of responsibility suffices to evade 230 dismissal

Congoo, LLC v. Revcontent LLC, 2016 WL 1547171, No. 16-401 (D.N.J. Apr. 15, 2016)
The parties compete in the market for native advertising.  Congoo alleged that Revcontent caused false/misleading native advertising to be published.  Revcontent asserted §230 immunity.  The court found the following allegations sufficient to avoid dismissal based on the idea that Revcontent is an “information content provider” for purposes of the false advertising claims:
• Defendants have published or caused to be published many impressions of native advertising unit ads (“Defendants Ads”) with various Published Websites, including Publisher Websites that were previous clients of Plaintiff.
• Many, if not most of Defendants’ Ads and the Advertisement Websites to which the Ads redirect unsuspecting consumers, employ false and misleading advertising intended to deceive innocent consumers out of the significant monies by charging their debit cards or credit cards.
• Defendants have employed the above stated false and misleading representative in advertising to generate greater income from their Ads and those of Defendants’ Advertisers, (emphasis added).)
This sufficiently pled that Revcontent was responsible in part for the development of the subject advertisements.   Eric Goldman will not be pleased.  Nothing about contribution to the content in any way?
Revcontent also challenged whether Congoo adequately pled falsity or standing under §43(a)(1)(B).  However, the complaint alleged “false and misleading representations in advertising” in which Revcontent participated, which was enough for falsity.  As for standing, Congoo alleged that Revcontent’s false and misleading statements in advertising allowed it to generate greater income from ads and therefore to offer more attractive rates to publishers than Congoo could. This was “an injury to a commercial interest in sales or business reputation proximately caused by [Revcontent’s] misrepresentations.”

Student IP writing competition from the Virginia Bar

Intellectual Property Section Intellectual Property Law Student Writing Competition

For more than 40 years, the Intellectual Property Section of the Virginia State Bar has striven to advance the quality of intellectual law practice in the Commonwealth of Virginia. The Intellectual Property Law Student Writing Competition (the “Competition”) seeks to promote academic debate and the dissemination of ideas and scholarly writing in the field of intellectual property. The Competition is sponsored by the Intellectual Property Section of the Virginia State Bar. All articles submitted will receive consideration for publication by the Section to its membership. Student authors entering the competition thereby authorize such publication. The Section publication’s editors reserve the right to make editorial revisions to the author’s article prior to publication on the Section’s website. Prize $5,000 and publication on the Section’s website.

If the Section determines that a second article is of sufficient quality, it may award a second prize of $2,500 for that article, as well. Eligibility The Competition is open to all students enrolled and in good standing during the 2015-16 academic year (including December 2015 graduates) at (i) any Virginia law school, or (ii) a law school outside Virginia as a resident of Virginia (with proof of residency). Articles must have been written solely by the entrant while enrolled in law school. Topic & Format Articles must relate to an intellectual property law issue or the practice of intellectual property law. Preference may be given to topics demonstrating particular relevance to contemporary events, addressing unsettled issues of law, or presenting novel and unique perspectives. Articles should be approximately 25 to 40 typed pages (including footnotes) in length. Entries must be double-spaced, in at least 12-point font, with one-inch margins and numbered pages. Citations should conform to the Bluebook. Entries must be submitted electronically in WordPerfect or Microsoft Word format.

Entries should also include the student’s name, address, telephone number, law school, expected graduation date, and the following signed statement: “I declare that during the 2015-16 academic year, I was enrolled and in good standing (i) at a Virginia law school, or (ii) at a law school outside Virginia as a Virginia resident. I further declare that this entry was written solely by me while enrolled and in good standing in law school.” The student author’s inclusion of this statement in the transmittal email, together with his or her typed name between two forward slashes (i.e. /Jane M. Doe/) shall constitute a signature for the purpose of the signed statement requirement. Deadline All entries must be sent by email to and must be received no later than 4:00 P.M. Eastern Daylight Time on Friday, May 20, 2016. For problems with transmission, please contact Tara A. Branscom at 540-777-3459. Judging Entries will initially be judged by members of the Section, in their sole discretion, who will select no more than five finalists.

The final judge will be the Honorable Richard Linn of the U.S. Court of Appeals for the Federal Circuit. Judge Linn will select the winner, in his sole discretion, from among the finalists. Criteria for judging include: • Subject matter originality • Relevance to intellectual property practice • Quality of topic development • Analysis of the subject matter • Quality of writing • Proper reliance on cited authorities • Clarity of expression • Grammar, spelling and vocabulary

The winner will be announced no earlier than August 12, 2016 and no later than September 16, 2016. Presentation of Award The winner will be notified by telephone and electronic mail and will be invited to the Section’s 28th Annual Fall Weekend Seminar, for an award presentation ceremony. Hotel accommodations for that evening will be provided to the winner by the Section.

Other Terms & Conditions No article submitted as an entry in this competition may be published in any other forum until the competition has ended and the winner has been announced. After that time, articles submitted but not selected as the winning article may be published without limitation. The author of the winning article grants the Section a non-exclusive license to publish the article at the Section’s discretion. Other publications of the article by the author must include a footnote acknowledging the award from the Section. By submitting an article in this competition, the student author agrees to be bound by the rules, terms and conditions governing the competition and the award of any prizes therein. The Section reserves the right not to make an award in this competition if no entries of acceptable quality are received.