Rethinking Trademark Fair Use

The ever-expanding scope and strength of trademark rights has caused justifiable fears of a threat to free expression. Until now, however, concerned scholars generally focused on perfecting the substance of legal rules that balance free speech against other goals. This effort is misplaced because most cases raising these issues in recent years ended in judicial decisions that favored speech. The real danger arises from the procedural structure of trademark law\u27s various fair use doctrines, which generate excessive ambiguity and prolong litigation before ever reaching such positive outcomes. Resulting administrative costs discourage speakers from using trademarks expressively in the first place, creating a classic chilling effect. This Article is the first to analyze these problems with trademark fair use comprehensively and recommend pragmatic reform to address the problems. Instead of adding more bells and whistles to already complex law, we should craft simpler affirmative defenses that reduce uncertainty and allow for quick adjudication. trademark, free speech, First Amendment, intellectual propert

The Imaginary Trademark Parody Crisis (and the Real One)

In the two decades since the Supreme Court protected a crude rap spoof from copyright liability in Campbell v. Acuff-Rose Music, Inc., courts have grown to understand the great value of parodic expression in trademark cases as well. Today, plausible claims of parody almost always prevail over trademark rights in judicial rulings. This Article demonstrates that it is simply wrong to suggest, as commentators often do, that we face a crisis in the results of trademark parody cases. That distortion is harmful because it distracts reform efforts and it lends credence to overbroad assertions of trademarks against parody and other speech. Demand letters and other pre-litigation maneuvering by markholders exemplify the real crisis in the law of trademark parody. Reform should concentrate on making excessive threats against speech less effective. I argue that fast-lane defensive doctrines that reduce the burden of litigating parody cases, such as safe harbors and a broad artistic relevance test, are more important than perfecting substantive parody doctrine. Meanwhile, we should shout the truth from the rooftops: Markholders who sue legitimate parodies lose. Their threats are empty

The Trademark Fair Use Reform Act

Sweeping assertions of exclusive trademark rights in brand names and images have a pernicious chilling effect on free expression, including fictional portrayals, commentary, political speech, parody, and comparative advertising. Some disputes lead to lawsuits. More often, speakers capitulate to litigation threats, even when the substance of the legal claims they face is very weak. As demonstrated in the author’s previous work, existing trademark “fair use” doctrines are not simple defenses that end suits quickly and cheaply, and many defendants cannot bear the resulting costs of protracted litigation.Observers have proposed a variety of improvements to trademark fair use, but this Article focuses intensively on the decision-making structure of trademark law and ways to reduce its burdensome effects. The analysis draws on theoretical and doctrinal literature about administrative and error costs, rules and standards, and the design of independent defenses. Building on this foundation, the Article argues that reform of trademark fair use should emphasize the reduction of administrative costs and the risk of erroneous findings of liability for speech; should favor clear ex ante rules over more complex ex post standards; and should strive to separate consideration of fair use from the adjudication of the prima facie likelihood of confusion case. It then proposes categorical safe harbors for certain uses of trademarks as a central innovation, complemented by other broader standards. An Appendix contains draft language meant to start the discussion about such defenses.Traditionally, trademark law has eschewed per se exceptions. Much of its design assumes that avoidance of consumer confusion is imperative, even if high administrative costs and unpredictability result. However, this Article shows that trademark law can reduce administrative costs and improve protection of free speech without an unacceptable increase in the likelihood of consumer confusion. While safe harbors alone cannot resolve every case involving speech interests, at least they prevent the easy cases from contributing to the chilling effect. More generally, the analysis here demonstrates that categorical defenses deserve a greater role in the adjudication of trademark disputes. Trademark, fair use, nominative use, First Amendment, free speech, safe harbors, affirmative defense

The Law of Friction

“Frictionless sharing” became a Silicon Valley catchphrase in 2011. It refers to platforms such as Spotify or the Washington Post Social Reader that automatically publicize users’ activities in social networks like Facebook, rather than waiting for approval of each individual disclosure. This article carefully analyzes the benefits and drawbacks of frictionless sharing. Social media confers considerable advantages on individuals, their friends, and of course intermediaries like Spotify and Facebook. But many implementations of frictionless architecture have gone too far, potentially invading privacy and drowning useful information in a tide of meaningless spam. The article also dismantles the rhetoric of frictionless sharing. Because sharing is a volitional act, “frictionless sharing” is a contradiction in terms. In the physical world, too much friction can impede movement or even start fires, but too little would cause objects to slide off tables and cars off roads. The key to online disclosures also turns out to be the correct amount of friction, not its elimination. privacy, internet, computer, consumer, social networks, social media, Facebook, Netflix, frictionless sharin

Friending the Privacy Regulators

According to conventional wisdom, data privacy regulators in the European Union are unreasonably demanding, while their American counterparts are laughably lax. Many observers further assume that any privacy enforcement without monetary fines or other punishment is an ineffective “slap on the wrist.” This Article demonstrates that both of these assumptions are wrong. It uses the simultaneous 2011 investigation of Facebook’s privacy practices by regulators in the United States and Ireland as a case study. These two agencies reached broadly similar conclusions, and neither imposed a traditional penalty. Instead, they utilized “responsive regulation,” where the government emphasizes less adversarial techniques and considers formal enforcement actions more of a last resort. When regulators in different jurisdictions employ this same responsive regulatory strategy, they blur the supposedly sharp distinctions between them, whatever may be written in their respective constitutional proclamations or statute books. Moreover, “regulatory friending” techniques work effectively in the privacy context. Responsive regulation encourages companies to improve their practices continually, it retains flexibility to deal with changing technology, and it discharges oversight duties cost-efficiently, thus improving real-world data practices