Miller, IP Survey Outline, Spring 2016
Theories Behind IP Law
Small-scale tangible things vs. ideas
Information spreads: easy and cheap to replicate.
But if you give it away, you still have it for yourself.
Excludability: easiness to prevent someone else from having it if you aren’t given what you want for it.
Rivalrousness: if I’m consuming it, you can’t be consuming it at the same time.
Tangible things are highly rivalrous and excludable.
Property law backs this notion up.
Ideas, however, are not readily rivalrous or excludable at all.
How to give incentives to make more things?
Easy: highly decentralized, free market.
How to give incentives to make more things?
Using the same approach would be problematic: hard to exclude imitators once the information is out there.
Some people will still invest, but many others won’t.
Need to make ideas excludable with legal rules.
Can’t really make them rivalrous though.
The Constitution gives Congress power to make such rules.
Hot News Doctrine
International News Service v. Associated Press
INS banned from getting news from WWI Europe, so takes news from AP’s bulletin boards.
Everyone agrees that:
Trade secret won’t work.Bulletin board is for all to see.
Copyright won’t work: protects expression and not facts.
These are rights good against the world (as opposed to against just one person).
Court salves problem using unfair competition.
Isolate the two competitors and focus on their rights relative to each other.
Competition itself isn’t tortious.What makes this unfair?Why isn’t this like other types of competition?
Holmes (concurrence)
Palming off: selling your product as another’s product.
Reverse palming off: selling someone else’s product as your own.
This is an instance of reverse palming off.
The remedy is to give credit to AP.
But wouldn’t that just turn it into palming off?
What’s the factual basis for assuming people think about the source of what they’re reading?
Brandeis (dissent)
Bad idea to expand unfair competition law to stop this
Puts the news in a single set of hands and gives AP a monopoly.
Issues at stake are too complex.
Legislatures could decide this, but courts are not equipped to.
Pitney (majority)
INS is trying to reap where it hasn’t sown.
As a right between two parties, information is the merchandise.
Need to enforce rivalrousness by protecting AP’s investment in collecting news and keep INS from appropriating AP’s harvest.
Just delay INS’s ability to print the news.
How long to delay?
Let them print it once the news is cold?But if it’s cold why would they want to print it?
If they want to print it, it’s still hot, so it should therefore be protected.
Constitutional Limitations
Most enumerated powers in the Constitution only state the ends that Congress is empowered to reach, but the Progress Clause also gives you the means.
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Want to induce public good with a private reward.
Copyright
Patent
Science (knowledge)
Useful arts
Authors
Inventors
Writings
Discoveries
Secure exclusive rights
Limited times—not forever
Progress Clause vs. Commerce Clause
Trade-Mark Cases
Court holds that trademark statute is invalid.
Don’t fall under Progress Clause
Trademarks are related to considerable use, not invention.
Also aren’t writings, which require originality.
Writings come from intellectual labor, while trademark is the adoption of a preexisting symbol.
Does trademark then fall under the Commerce Clause?
Power of regulation limited to foreign nations and between states.
If trademark isn’t limited to interstate commerce and extends to commerce within the states, it’s unconstitutional.
Statute gives no indication that it is confined only to interstate commerce.
Trademarks challenged here weren’t interstate commerce.
Statute is unconstitutional.
Feist v. Rural Telephone Service
Facts aren’t copyrightable, but compilations of facts are.
To qualify for copyright, facts need to be original.
Originality: created independently by the author, with at least minimal creativity.
Creativity is very small, not necessarily novelty.
Compilations are original if their selection and arrangement of facts is at least minimally creative.
Protection may only extend to the original parts of the work.
Even if selection and arrangement are original, the corresponding facts still are not.
Phonebook information is factual, and the selection and arrangement are not original.
Selection of listings is obvious, just the subscriber information
Arrangement is also, just alphabetical.
United States v. Martignon
Congress exceeds power under Commerce Clause by exceeding limits of Progress Clause when law is exercise of the power granted by the Progress clause and the law violates specific limits of the Progress clause.
Is Congress using Progress Clause or Commerce Clause power to enact the anti-bootlegging statute?
Must be using the Commerce Clause since the law is not really like copyright law.
Unlike in copyright law, here the government can only vindicate the right.The artist gets no private right of exclusion.
Copyright must
to the USOC.
Private rather than public enforcement because the USOC is a private organization.
So the USOC can stop others from using the word.
Prohibiting is doesn’t stop others from conveying the message.
SFAA’s expressive use of the word can’t be separated from the commercial value the USOC has given it.
First Amendment not a barrier to the regulation because commercial speech is less protected, private actor and not government doing enforcement, and the government doesn’t trigger enforcement.
Dissent: actually is public enforcement, and there is a lot of noncommercial speech being regulated.Olympic represents social values, so the SFAA is making an important political assertion by using the expressive quality of the word.No other adequate way to express it.
Texas v. Johnson
D arrested for flag burning.
Did it as a form of political protest, using a symbolic gesture to convey a message.
This is clearly expressive (political) speech.
Court is more tolerant of regulation of commercial speech.
Interests in preserving expressive speech outweigh other interests.
Government can’t designate a symbol to have only a limited number of meanings.
Unconstitutional to prohibit flag burning.
Dissent: how is this any different from SFAA?
L.L. Bean v. Drake Publishers
D publishes parodic “LL Beam Sex Catalogue” in its magazine.
Trademark rights only extend to injurious commercial uses, not for communicating points of view.
Can’t prohibit use just because of the negative context.
TM owners can have harm redressed even if has residual impact on rights and expression of commercial actors.
But D used mark solely for noncommercial, parodic purposes.
Dallas Cowboy Cheerleaders v. Pussycat Cinema
Commercial-esque, but kind of artistic.
Not a parody, so no First Amendment Protection.
Plenty of other ways to convey message of “sexuality in athletics.”
Not government sponsorship, but private party enforcing property rights.
The uniform is instead used to make the film more appealing.
Want to capture some of what makes the Cowboys Cheerleader brand valuable.
Therefore, it is commercial speech which can be regulated.