Sensible Agnosticism: An Updated Approach to Domain-Name Trademark Infringement

The Internet era has brought a new battlefield to U.S.-trademark-law disputes: domain names. Trademark owners have vigorously challenged the registration of domain names that consist of-or merely include-their trademarked terms, suing these domain-name registrants in U.S. courts for trademark infringement. During the early years of the Internet, courts often found consumer confusion-and thus trademark infringement-in these cases. As Internet use has developed, however, many courts have not recognized the growing sophistication of online consumers. This Note proposes that U.S. courts adapt their analyses to recognize evolving consumer behavior and expectations. This updated analysis, based on a 2010 Ninth Circuit opinion, will promote trademark law\u27s historical focus on accuracy by encouraging courts to recognize the right of domain-name registrants to engage in accurate, nonconfusing speech

Golan v. Holder: Copyright in the Image of the First Amendment

Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign works previously thought to belong to the public domain. The Tenth Circuit upheld the legislation, but not without noting that it appeared to raise important First Amendment concerns. The Supreme Court granted certiorari. This article addresses the issues in the Golan case, literally on the eve of oral argument before the Court. This article first considers the Copyright and Treaty Clauses, and then addresses the relationship between copyright and the First Amendment. The discussion endorses an understanding of that relationship in which the Amendment is newly seen as paramount, and copyright is newly seen in the image of the Amendment

Golan v. Holder: Copyright in the Image of the First Amendment, 11 J. Marshall Rev. Intell. Prop. L. 83 (2011)

Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign works previously thought to belong to the public domain. The Tenth Circuit upheld the legislation, but not without noting that it appeared to raise important First Amendment concerns. The Supreme Court granted certiorari. This article addresses the issues in the Golan case, literally on the eve of oral argument before the Court. This article first considers the Copyright and Treaty Clauses, and then addresses the relationship between copyright and the First Amendment. The discussion endorses an understanding of that relationship in which the Amendment is newly seen as paramount, and copyright is newly seen in the image of the Amendment

Golan v. Holder: Copyright in the Image of the First Amendment, 11 J. Marshall Rev. Intell. Prop. L. 83 (2011)

Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign works previously thought to belong to the public domain. The Tenth Circuit upheld the legislation, but not without noting that it appeared to raise important First Amendment concerns. The Supreme Court granted certiorari. This article addresses the issues in the Golan case, literally on the eve of oral argument before the Court. This article first considers the Copyright and Treaty Clauses, and then addresses the relationship between copyright and the First Amendment. The discussion endorses an understanding of that relationship in which the Amendment is newly seen as paramount, and copyright is newly seen in the image of the Amendment