Striking a Balance Between Privacy and Online Commerce

It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework for assessing the tradeoff between speech and privacy, important values will be shortchanged by courts assessing the constitutionality of commercial data regulation. By themselves, the three perspectives articulated by Professor Ghosh do not pinpoint how to balance data commercialization and online privacy. Courts deciding data privacy cases will need to go further, building doctrinal structures that specifically take these policy interests into account. This does not mean, however, that courts will need to reinvent the wheel. In this Response, I explore an already existing doctrinal structure for considering rights in information. I identify one intellectual property regime — right of publicity — and two of its particular doctrinal innovations — the “transformativeness” test and the “newsworthiness” test. These tests are used by courts to determine when an entity’s First Amendment right to speak should trump a celebrity’s property interest in her name, likeness, or other information surrounding her persona. The tests are not perfect, but they may prove useful to future courts struggling to reconcile new privacy regulations with the expressive interests of commercial speakers

Copyright, Trademark and Secondary Liability after \u3cem\u3eGrokster\u3c/em\u3e

Even though secondary infringement doctrine in both copyright and trademark stems from the same common law starting points, the doctrines have moved in very different directions, particularly in the last decade. As copyright litigants expanded their litigation strategy to include online intermediaries, secondary copyright liability was stretched to encompass a wider array of defendants with increasingly tangential relationships to the direct infringer. Meanwhile, even though similar online threats jeopardized the ability of trademark holders to safeguard their brands\u27 goodwill, courts refused to implement a similar expansion for secondary trademark liability. Although courts are aware of this doctrinal double standard, they offer no explanation for it. This article tries to provide that explanation by chronicling the case law in this area since the Supreme Court\u27s decision in MGM Studios v. Grokster (a previous article traced the case law up to the Grokster decision) and comparing it to traditional rationales for imposing liability on indirect actors. The article speculates that the divergence in secondary liability standards owes more to the litigation and public relations strategies of copyright interests than obeisance to deep rooted common law principles

Advertising and the Transformation of Trademark Law

Despite the presence of a vigorous debate over the proper scope of trademark protection, scholars have largely ignored study of trademark law\u27s origins. It would be a mistake, however, to ignore the history behind trademark law. Scrutiny of the formative era in American trademark law yields two important conclusions. First, courts granted robust legal protection to trademark holders in the early twentieth century because they accepted the benign view of advertising presented to them by advertisers. As advertising became linked to cultural progress and social cohesion, courts adopted doctrinal revisions to protect advertising\u27s value that remain embedded in modern trademark law. Second, judges adopted a specific construction of the consumer mind in the early 1900s to reconcile the tension between legal protection for trademark goodwill and belief in free competition. They concluded that although advertising successfully generates positive thoughts in consumers\u27 heads, consumers will switch their trademark allegiances when presented with a better quality product from a competitor. In other words, the mark left by advertising is not permanent. Recent research in cognitive psychology suggests, however, that advertising does leave a permanent mark on its audience. Based on new insights into the involuntary functioning of the consumer mind, the Article suggests that trademark doctrine should be altered to avoid privileging marks that are already popular with consumers and are unlikely to ever lose their luster in our subconscious

Academic Brands and Cognitive Dissonance

Published as Chapter 7 in Academic Brands: Distinction in Global Higher Education (Mario Biagioli & Madhavi Sunder, eds., Cambridge University Press, 2022). It is hard to reconcile the research university’s supposed reason for being – the reasoned pursuit of knowledge – with its methods for building brand awareness and equity. Just like pitches for other luxury goods, the selling of higher education depends on irrational appeals devoid of information and marketing missives meant to hug the line between legally protected puffery and outright fraud. Although universities have always borrowed from the selling strategies of the commercial sphere, in recent years, there has been a sea change in the prevalence and degree of less-than-truthful content in higher educational self-promotion. How do university constituents – administrators, professors, students – interpret this gap between their institutions’ traditionally understood role and the logic of today’s academic branding strategies? The chapter chronicles the main rationalizations these actors deploy to reduce the tension between academic mission and academic marketing. By telling themselves that their school’s advertising efforts can be quarantined from the university’s larger purpose or actually provide tangible and truthful information to outside audiences or are a necessary evil, university constituents reduce their internal dissonance but fail to confront the realities of academic branding.https://digitalcommons.law.buffalo.edu/book_sections/1424/thumbnail.jp

The Political Economy of Celebrity Rights

This essay discusses how the right of publicity became such a robust property right — much more far-reaching than analogous rights in copyright or trademark. One cannot explain the accretion of celebrity publicity rights as a matter of legal logic or simple reaction to the growing economic value of celebrity endorsements. Instead, the essay explains the right\u27s expansion from the perspective of political economy. Critical innovations to the right of publicity occurred in the particular political environment of the 1980s and 1990s. Despite some groups\u27 resistance to new, specialized entitlements for celebrities, the conditions were right for a particular coalition of interest groups to push through new vigorous interpretations of the right of publicity. I also discuss the right\u27s expansion from the perspective of a different political actor: judges. At the end of the twentieth century, the political optics of celebrity changed in a way that provided more comfort for judges who were once hostile to the anti-democratic implications of publicity rights. Judges confronted a changing social definition of celebrity that was no longer linked to merit or inner greatness. Anyone, it was now argued, had the potential to become famous. This change in the meaning of fame made celebrity legal protections seem less like a perk for a rare few and more like a fundamental right available to all

Striking a Balance Between Privacy and Online Commerce

It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment, Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework for assessing the tradeoff between speech and privacy, important values will be shortchanged by courts assessing the constitutionality of commercial data regulation. As Professor Ghosh points out, a judicial response that simply argues for the marketplace to sort all this out on its own is undertheorized and insufficient

Neuromarks

This Article predicts trademark law’s impending neural turn. A growing legal literature debates the proper role of neuroscientific evidence. Yet outside of criminal law, analysis of neuroscientific evidence in the courtroom has been lacking. This is a mistake given that most of the applied research into brain function focuses on building better brands, not studies of criminal defendants’ grey matter. Judges have long searched for a way to measure advertising’s psychological hold over consumers. Advertisers already use brain imaging to analyze a trademark’s ability to stimulate consumer attention, emotion, and memory. In the near future, businesses will offer a neural map unique to each well-known brand—a “neuromark ”—into evidence. With the neuromark at their disposal, courts could potentially abandon the crude proxies for consumer perception that guide modern trademark doctrine. The current tests for trademark distinctiveness, likelihood of confusion, and dilution will all change, but will these changes be good for trademark law? By itself, measurement of consumer perception does not reveal how courts resolving trademark disputes should account for that measurement. New insights into the functioning of the consuming mind make a searching interrogation of the rationales behind trademark law more imperative than ever

Cops, Robbers, and Search Engines: The Questionable Role of Criminal Law in Contributory Infringement Doctrine

Online technologies have created a new litigation locus for intellectual property rights holders, one that targets intermediaries, not direct infringers. This unprecedented litigation strategy has put sudden pressure on the courts to evaluate the liability of indirect infringers. Without a developed body of precedent at their disposal, judges have resorted to analogies from the criminal law of accomplice liability to set the boundaries of contributory infringement. Does it make sense for intellectual property regulation to depend on the same principles that animate criminal law? This Article maintains that it would be a mistake to remake contributory infringement law in criminal law\u27s image. Application of the rules of criminal accomplice liability to intellectual property disputes would dramatically alter the way contributory infringement claims are currently decided, upsetting the delicate balance between rights holders and downstream users. Criminal law\u27s focus on moral culpability does not match the utilitarian theory behind infringement law. A better and more intuitive way to assess the liability of intermediaries for the infringing acts others is to apply causal principles. Although causation is not a part of criminal contributory liability doctrine, it is employed to determine contributory liability in a variety of civil contexts and appeals to our intuitive sense of when it is appropriate for one person to be responsible for the misdeeds of another