A Preliminary First Amendment Analysis of Leglisation Treating News Aggregation as Copyright Infringement

The newspaper industry has recently experienced economic difficulty. Profits have declined because fewer people read printed versions of newspapers, preferring instead to get their news through so-called news aggregators who compile newspaper headlines and provide links to storied posted on newspaper websites. This harms newspaper revenue because news aggregators collect advertising revenue that newspapers used to enjoy. Some have responded to this problem by advocating the use of copyright to give newspapers the ability to control the use of their stories and headlines by news aggregators. This proposal is controversial, for news aggregators often do not commit copyright infringement. Accordingly, the use of copyright to help the newspaper industry would likely require amendment of the existing statute. This Article analyzes the constitutionality of such potential legislation under the First Amendment. As the Article will show, legislation that treats news aggregation as copyright infringement changes the traditional contours of copyright in ways that expose copyright to serious First Amendment scrutiny. This analysis will show that Congress does not have a completely free hand in choosing how, if at all, to help the newspaper industry. In fact, Congress must be careful not to unduly restrict the practice of news aggregation

Intent and Trademark Infringement

This Article describes how and why the use of intent in trademark infringement cases has become unintelligible. It does so by first identifying the supposed relevance of intent to trademark infringement. Leading cases state that a defendant’s intent matters because defendants who deliberately try to confuse consumers must believe that consumers are susceptible to confusion. Accordingly, a defendant’s intent to infringe functions like an implied assertion that the defendant’s behavior is likely to cause the desired confusion. This Article then explains how problems have arisen because courts do not use intent in this specific manner. Instead, courts use intent to portray innocent defendants as faulty actors who deserve liability for infringement. Such use of intent may make intuitive sense, but it is inconsistent with the reasons given for intent’s relevance in the first place. This Article describes how such improper use of intent makes the law unintelligible, and it argues that the law can be improved by paying proper attention to the given reasons for intent’s importance to trademark infringement cases