Rebecca Tushnet's 43(B)log

State barber board wins battle against "Barber Shop" bar

2026-04-23T11:13:00.023-04:00

Really wanted a Sweeney Todd reference here but couldn't figure it out.

Osteria Segreto, LLC v. Hilgers, No. 8:26-cv-00065-BCB-MDN (D. Neb. Apr. 20, 2026)

Osteria Segreto, formerly “an Italian speakeasy” in a space that had once been a hair salon, restyled itself as “a barber shop themed bar” named “The Barber Shop Blackstone.” It was surprised to discover the Nebraska Barber Act, which among other things prohibits businesses from using the title of “barber” or “barber shop” or displaying a “barber pole” without a state-issued license to practice barbering. The court refused to enjoin enforcement of the law, finding that this was a regulation of deceptive commercial speech.

The Bar’s logo is a monochromatic barber pole with the name “The Barber Shop” and the tag line, “Where the Buzz is Real.” It’s accessed “through a back-alley door tucked between a wall and a wood fence that is adorned with a small [red, white, and blue] barber pole.”

entrance

logo

Patrons enter a small anteroom, where they “see a lone vintage barber chair, a barber pole, and small television that displays a history of barbering,” and “[a] bouncer greets customers, checks their IDs, and allows them through a hidden door into the bar.” According to the plaintiff, “[t]he walls are filled with historical pictures of barbers and barbering tools. The bar is dimly lit, but at the end of the narrow space is a small seating area next to a floor-to-ceiling light installation designed to mimic the banded lights of a barber pole.” The menu includes drinks called “the ‘Scotch and [Scissors],’ the ‘Classic Cut Old Fashioned,’ and the ‘Barber’s Flight.’”

grand opening ad showing entrance and promising guest barbers

more social media

The bar advertised for a grand opening that mentioned “5 cabinet giveways [sic], secret menu, drink specials, and special guest barbers!”

The Board claimed rights in a “mark” registered with the state in barber poles, defined as “spiral stripes, red, white, and blue or any combination of them.” A state AG pointed out in earlier correspondence:

While the barber pole which you seek to use for the collective mark has been associated with barbers since the Fifth Century, A.D., there still may be some problems with enforcement of the logo exclusively for licensed barbers in this State. When a word or symbol has been in the public domain for a period of time, it is no longer susceptible to exclusive appropriation.

But, the AG continued, maybe it could still serve as a collective mark. The Board doesn’t charge a licensing fee for use of the “mark,” but has issued express consent for approved barber schools to use its barber pole “registered service mark.”

A licensed barber in the State of Nebraska who worked in the Blackstone District (nearby) complained to the Board: “I’m not sure if they are going to be actually cutting hair but they mentioned guest barbers. The whole theme of this place is so disrespectful to the trade I wish people would stop making money off of it because it’s a cool idea.” Then the Board started going back and forth with the bar, claiming both “trademark” rights and exclusivity according to the Barber Act. The bar disavowed any intent to provide barber services, but wanted to use the name and barber pole.

First, the court declined to address any trademark claim by the Board for purposes of the motion. JDI didn’t hold, as the Board argued, that trademark law always “prevails” over the First Amendment, particularly “where, as here, a state actor attempts to regulate commercial speech by asserting a trademark.” Not only were there some pretty serious doubts over the validity of the putative “mark,” but “when the Supreme Court has addressed regulation of commercial speech by governmental entities, it has applied the intermediate scrutiny test from Central Hudson.” (As for those doubts—the Board registered a service mark, not a certification mark, and it never registered “barber shop” as any kind of mark. And there was a reasonable argument that any claim in “barber shop” or “barber pole” was invalid for genericity or descriptiveness.)

Fortunately for the Board, its regulation survived Central Hudson. The state regulated barbers for public health/safety reasons and required them to be licensed as barbers before offering barbering services or holding themselves out as barbers. The law specifically barred the “display [of] a barber pole or use [of] a barber pole or the image of a barber pole in … advertising” without a license.

If commercial speech is inherently misleading, it gets no First Amendment protection. That was likely the case here, the court found. At plaintiff’s bar, “patrons first encounter a fully equipped barber service station with a service mirror, tools, and capes used in barbering.” The name “The Barber Shop Blackstone” was inherently misleading, “carrying no indication that the business is a bar not a barbershop, and using a logo with a barber pole that is exclusively associated with barbering.” The slogan “Where the Buzz is Real” didn’t help; nor did the reference to “special guest barbers” in the grand opening advertisement.

Osteria Segreto relied on the (bad) decision in Express Oil Change, L.L.C. v. Mississippi Bd. of Licensure for Pro. Eng’rs & Surveyors, 916 F.3d 483 (5th Cir. 2019), in which the court ruled that automotive service centers operating under the name “Tire Engineers” couldn’t constitutionally be held liable under state law restricting the use of the term “engineer.” The Fifth Circuit found that, because “engineer” “can mean many things in different contexts,” it was not inherently misleading, despite the state’s survey finding a very high percentage of consumers were deceived.

Somewhat in contradiction to the idea of arbitrary trademarks, the court here ruled that “nothing suggests that ‘barber’ or ‘barber shop’ can mean many things in different contexts,” so the terms could only mean licensed professionals. (And Apple can only mean fruit?) State law defines “barber shop” “expressly—and narrowly”—as “an establishment or place of business properly licensed as required by the act where one or more persons properly licensed are engaged in the practice of barbering.” And the contextual factors here reinforced that, including the logo, so the name and logo “inevitably will be misleading” as to the services available to customers:

The Court would not hesitate to hold that calling a bar “The Hospital Blackstone,” “The Doctor’s Office Blackstone,” “The Law Office Blackstone,” or “The Department of Motor Vehicles Blackstone” would be inherently misleading.

The remaining context didn’t help, as noted above. “There is an inevitably misleading inference that ‘The Barber Shop Blackstone’ provides barbering services although it may also provide alcoholic beverages—even if there is no evidence that anyone was actually deceived about the services or goods provided. The parties do not dispute that there are barber shops that also have liquor licenses.”

Although technically Central Hudson analysis can simply end if the regulated commercial speech is inherently misleading, the court considered the other prongs. The only serious challenge was to the regulation’s tailoring. Central Hudson requires a restriction to “directly advance” a “substantial” governmental interest. “Restricting unlicensed entities from using ‘barber shop’ and a ‘barber pole’ in their advertising plainly provides effective support for and directly advances the government’s purposes of protecting both ‘the interest of public health, public safety, and the general welfare’ and ‘the skilled trade of barbering and the operation of barber shops [that are] affected with a public interest.’” Although the existence of less restrictive alternatives is relevant, intermediate scrutiny doesn’t require a perfect fit, and the fit here was reasonable.

compounding pharmacies lose a round with Lilly on personalized medicine and GLP-1 comparison claims

2026-04-22T15:22:00.001-04:00

Eli Lilly & Co. v. Mochi Health Corp., 2026 WL 1076831, No. 25-cv-03534-JSC (N.D. Cal. Apr. 20, 2026)

Eli Lilly’s claims were previously dismissed, and Lilly tried again with claims under California’s UCL, Lanham Act false advertising, and civil conspiracy. Civil conspiracy failed but Lilly was allowed to proceed with the advertising claims.

Lilly makes two FDA-approved weight-loss medications containing tirzepatide. “Mochi Health is a telehealth company that connects consumers with physicians who can prescribe weight-loss medications, including compounded versions of tirzepatide.”

Lilly’s first UCL claim arose from Mochi Health’s alleged corporate practice of medicine. It allegedly changed patient doses en masse without consulting patients or receiving a clinical indication from a physician—several times over the course of a year. The changes were allegedly based Mochi’s developing business relationships with various pharmacies: whether compounded medications included niacinamide, glycine, and pyridoxine depended on the pharmacy. Lilly alleged that these additives were not meant to achieve a therapeutic effect, but rather reflected Mochi’s financial considerations. Thus, Mochi allegedly made medical decisions for patients based on profit motives rather than clinical need. It also allegedly “steer[s] its patients to compounded products over Lilly’s FDA-approved tirzepatide medicines” through its hiring of Mochi physicians, its development of obesity treatment protocols, and training of Mochi medical staff.

Lanham Act: Lilly alleged that Mochi misrepresented its compounded tirzepatide medications as safe and effective based on studies conducted of Lilly’s products; misrepresented its products as FDA-approved; and misrepresented its tirzepatide drugs as “personalized.”

Along with lost sales, Lilly alleged reputational harm because Mochi compared an inferior, compounded product to Lilly’s FDA-approved medicine, causing consumers to conflate the higher incidence of adverse events found in compounded medications with Lilly’s drugs. Lilly cited studies indicating a higher risk of adverse events from utilizing compounded versions of tirzepatide, such as “abdominal pain, diarrhea, nausea, suicidality, and cholecystitis.”

Mochi once again challenged Article III standing. But this time Lilly successfully alleged both sales diversion and reputational harm. “Coupled with Mochi Health’s alleged unilateral ability to modify existing compounded medication doses for customers, Lilly asserts Mochi Health exercises control over the Mochi Medical practice to reduce patients’ ability to choose MOUNJARO® or ZEPBOUND® over a compounded option.” Its ads about the safety and personalization of compounded tirzepatide also plausibly steered consumers in the market for weight-loss medication away from Lilly’s products.

As for reputational injury, Lilly connected its allegation about higher side effects for compounded medications to research findings from the National Consumers League that show consumer confusion about the difference between compounded medications and FDA-approved medications, and conflation of the two. “Combined, these allegations permit a reasonable inference of harm to Lilly’s reputation through public perception that FDA-approved tirzepatide medications have similar rates of adverse side effects compared to compounded medications.”

Defendants argued that consumers of compounded tirzepatide were different from consumers of MOUNJARO or ZEPBOUND, relying on statements Lilly made in a separate case involving the FDA’s determination that there was no longer a nation-wide “shortage” of tirzepatide-based drugs, where Lilly said that “there were good reasons to think much of the market for compounded tirzepatide would not translate to future demand for Lilly’s FDA-approved products. Compounded products are often promoted for uses different from the indications FDA has approved, including by affiliated telehealth providers, so patients may be less likely to get a prescription from a physician for FDA-approved medicine. There also might not be insurance coverage for those off-label uses, and some compounded products use a different formulation than Lilly’s products.”

This didn’t estop Lilly from alleging harm here. Lilly did not make any claims about Mochi Health’s marketing and customer base. And its prior statement that “much of the market for compounded tirzepatide” may not overlap was consistent with its allegations in this case of some consumers being diverted.

Even though they operated in different market strata and Mochi doesn’t prescribe, manufacture, or sell the compounded tirzepatide medications, Lilly still plausibly alleged that misleading advertisements about the safety and personalization of Mochi’s medicines attracted customers in the market for weight-loss medication that may have otherwise purchased a Lilly medication and that Mochi patients were steered away from Lilly’s products. “It is not necessary that Mochi Health personally profited from the diverted sales; the relevant inquiry is whether Lilly has plausibly alleged it suffered an economic injury caused by Mochi Health’s conduct. Accordingly, Lilly’s and Mochi Health’s relative positions in the market are not dispositive of the economic injury question here.”

Mochi further argued that the causal chain was interrupted by the requirement that any consumer receive a valid prescription from a treating physician before purchasing compounded tirzepatide. But a single third-party’s actions do not necessarily upend traceability given the requirement is “less demanding than proximate causation.” And Lilly alleged that Mochi influenced the prescription process, including by changing the formulation of compounded tirzepatide medications for all patients en masse without advanced notice or a clinical indication. That was plausible traceability.

As for redressability, Mochi argued that an injunction could not force physicians—who are not parties to this case—to prescribe Lilly’s products instead of a compounded drug. But damages are available, and any equitable relief would redress Mochi’s alleged false advertising practices and corporate intervention in the practice of medicine.

UCL claim: Lilly plausibly alleged that it was injured as a result of the allegedly unlawful corporate practice of medicine. The California Medical Practice Act is violated if a “non-physician exercises ‘control or discretion’ over a medical practice.” And that was sufficiently alleged.

Lanham Act: Statutory standing was present both through sales diversion and reputational damage.

Indeed, Mochi Health allegedly deployed search-engine optimization to show Mochi Health’s compounded tirzepatide medication advertisements to consumers searching for Lilly products. Moreover, Mochi Health directly compares its own compounded medications to Lilly’s products in social media advertising. These allegations permit a reasonable inference that any alleged misrepresentations by Mochi Health put Lilly at a competitive disadvantage in the market—either by losing customers or suffering damage to its reputation. So, Lilly’s allegations permit a reasonable inference that any misrepresentation by Mochi Health proximately caused its injuries.

Reputational injury doesn’t require direct competition, and diverted sales also counted even without a supposed 1:1 relationship of lost sales. Lexmark found the 1:1 relationship important because “Lexmark’s anticompetitive actions primarily targeted remanufacturers, not [plaintiff] Static Control.” Here, Mochi allegedly operates in the weight-loss market by advertising directly to those consumers. “The relevant allegations here permit a plausible inference that any false or misleading statements issued by Mochi Health injured Lilly because they targeted the same segment of the market from which Lilly stood to profit.”

What about the intervening cause of a doctor’s prescription? Not intervening enough to defeat proximate cause. Eli Lilly & Co. v. Willow Health Servs., Inc., No. 2:25-CV-03570-AB-MAR, 2025 WL 2631620, at *6 (C.D. Cal. Aug. 29, 2025), found the prescriber’s conduct to defeat proximate cause. The court here disagreed. First, Lilly here alleged direct interference with patient prescriptions. “Second, drawing inferences in Lilly’s favor, that a medication requires a prescription does not prevent a consumer from relying on advertising to request one product over another from their physician. Since both products at issue contain tirzepatide, it is a reasonable inference that a consumer would have some basis for asking her physician to prescribe a specific medication.”

Falsity: Mochi allegedly misled consumers by (1) citing to Lilly’s clinical trials to support its claims and (2) advertising that “tirzepatide is a safe medication that has been approved by FDA.” The court agreed that these were plausibly misleading, accepting Lilly’s allegation that “the FDA does not approve an active pharmaceutical ingredient for treatment of patients, but rather approves specific formulations of that ingredient that have been subjected to rigorous study.” Mochi cited the Lilly studies to tout “tirzepatide,” then connected that to “compounded tirzepatide,” and didn’t mention the difference between compounded and FDA-approved formulations, but instead suggested the medicines were interchangeable.

Mochi argued that was a mere lack of substantiation theory. While some district courts have agreed, the court reasoned that it was plausible that Mochi’s statements misled consumers into believing that the Lilly studies actually considered compounded medication. “The issue is not whether Mochi Health had a basis for its statements, but rather, whether Mochi Health misrepresented the contents of the studies.” That’s a workable theory.

Likewise, Mochi’s statements could be reasonably understood to indicate that compounded tirzepatide medications are FDA-approved: “Tirzepatide is a safe medication that has been approved by the FDA” followed by a representation that Mochi’s compounded medication is “safe,” citing only the Lilly studies and the FDA approval of Lilly’s drugs.

“Personalized” medicine claims: Mochi offered “much more accessible alternatives to brand-name medications that are customized to the medical needs of the patient” and claimed that “[c]ompounded medications are custom-prepared to meet an individual patient’s specific needs.” But Lilly alleged that’s not what happened. If Mochi changes the formulation and dosage of its compounded medication en masse based on its business relationships with pharmacies, not medical indication, that would directly contradict the ad claims. Mochi’s interpretation that all it advertised was “customized” or “personalized” care plans was meritless.

Nor did the court apply FDCA preclusion. The “personalized” theory didn’t conflict with the FDCA’s regulatory scheme. Mochi argued that the FDCA allows compounding; that compounded medications are “personalized” by definition; and that Lilly’s theory contradicts a permissible practice of creating “batches of compounded medications for subsequent dispensing.” But Lilly’s falsity theory was about advertising that Mochi “personalized” medications but then did not tailor changes in dosage or formulation of the compounded drug to individual patients’ medical needs. “Whether Mochi Health or Aequita Pharmacy prepared the medication in “batches” is ultimately beside the point: the falsity derives from Lilly’s allegations that Mochi Health changed the formulation of patients’ medications based on business interests and evolving relationships with certain pharmacies rather than patient needs. Defendants have not identified any FDCA provision or FDA policy directly in conflict with this misrepresentation theory.”

What about safety claims: better left to the FDA? The court won’t have to determine the scientific validity of citing the Lilly studies to support safety claims about compounded medications. It would only have to determine whether Mochi misled consumers into believing that the Lilly studies tested the effects of compounded tirzepatide medications. “This misrepresentation theory presents a binary question of whether the studies considered any compounded tirzepatide formulation.” Nor would resolving the claim about misrepresentation of FDA approval impinge on the FDA’s policy choices. Defendants could renew their preclusion argument if discovery warranted it.

Bayer can't enjoin J&J's cancer superiority claims by showing methodological disputes

2026-04-22T14:44:00.003-04:00

Bayer Healthcare LLC v. Johnson & Johnson, Inc., 2026 WL 1045917, No. 26 Civ. 1479 (DEH) (S.D.N.Y. Apr. 17, 2026)

The court denied Bayer’s request for a preliminary injunction against its competitor J&J’s advertising of a drug used in the treatment of metastatic castration-sensitive prostate cancer. In a presentation and a press release, J&J described a retrospective observational study that purportedly showed a roughly 50% reduction in the risk of death for patients prescribed its drug, apalutamide (ERLEADA), compared to Bayer’s drug, darolutamide (NUBEQUA). Bayer alleged severe methodological flaws rendering J&J’s claims literally false or false by necessary implication in violation of the Lanham Act and NY state law.

The court found that Bayer failed to show methodological errors substantial enough to render J&J’s claims literally false or even misleading. Instead, J&J accurately described the results, the methodology, and the study’s limitations.

Super interesting methodological questions (but possibly much more appropriate for doctors to debate than courts): Bayer argued that studied patients receiving its drug were mostly prescribed it off-label (given the study period); that such patients would generally only get an off-label prescription when patient-specific issues warranted avoidance of the on-label options (J&J’s) already on the market; and that J&J’s product’s side effects made it risk for patients with seizure history, fall and fracture risk, independent treatment with anticoagulants, general frailty, or other comorbidities, whereas Bayer’s product wasn’t associated with those side effects and thus the uncertainty of off-label use was justified for them. Thus, patients prescribed Bayer’s drug would disproportionately have these other conditions, which were already associated with higher mortality, confounding any association based on the drugs themselves.

Likewise, Bayer offered testimony that its drug was prescribed to patients who were seen as possibly needing chemotherapy at some point because at least some doctors thought it was the better treatment option for patients receiving chemotherapy. But, Bayer argued, such patients were likely to be suffering from a more advanced disease or otherwise more frail, thus introducing further bias in the respective study populations.

J&J had responses, including that the off-label prescription of Bayer’s drug was “ubiquitous[],” in Bayer’s own words, at the relevant time; and that patients must have a baseline level of health to receive chemotherapy, so possible chemotherapy was not a sign of significant frailty. J&J also presented testimony that its statistical controls adequately accounted for any potential bias from differences in the treatment cohorts by controlling for age and other comorbidities. “Bayer’s experts admitted that their criticisms regarding the treatment cohorts were essentially hypothetical, because they had no empirical data showing that off-label darolutamide doublet patients were sicker, more frail, or more likely to have non-cancer comorbidities than on-label apalutamide patients.” At this stage, Bayer failed to show that study patients who received its drug were sicker than patients who received J&J’s.

Bayer’s attacks on the control methodology also failed. J&J’s expert testified that the necessary magnitude of an unmeasured confounder “to explain away the [51%] observed difference found in the study” would be “enormous”: to “explain away” the observed difference across cohorts, unmeasured confounders would have to simultaneously make a patient 350% more likely to receive darolutamide and 350% more likely to die. That would be a stronger relationship than that between heart disease and smoking. Bayer didn’t rebut this.

Bayer also criticized the underlying data sources of the study. “For example, in one Bayer study, as many as 40% of patients that initially appeared to be eligible to be included in the study based on [the data source used] were, in reality, ineligible once researchers examined the patients’ underlying charts.” But Bayer has used the same datasets in the same way in their own retrospective studies on multiple occasions. In addition, both the conclusions slide of the PowerPoint and the overview slide of J&J’s presentation acknowledged the possibility of data errors, acknowledging possible “misclassification bias” and “that not all death or treatment data [were] captured” and that, because “the study used clinical records, some information may be missing or incorrect.”

Nor did Bayer’s attack on the “overall hazard ratio” reported by J&J succeed. “A hazard ratio is generally accepted as the standard method of reporting comparative survival results for oncology studies. The measured ratio here is 0.49, meaning a patient being treated with apalutamide was 0.49x as likely to die during the observed period as a patient receiving darolutamide. Thus, the Study’s top line result stated a 51% reduction in the risk of death between the cohorts, ‘another way of saying the same thing.’” Bayer argued that it was inappropriate to calculate a hazard ratio calculated over the 24-month study period. “Because a hazard ratio presents a single measurement for the entire period, where outcomes may differ over time, a hazard ratio may over- or understate the likelihood of an event at a given moment.” But this was “a generally-accepted method for reporting retrospective comparative study,” Bayer had used the same reporting methodology in its own research. Bayer presented no statistical analysis to estimate varying hazard ratios using different time periods.

So much for the challenges to the study itself. Did J&J’s statements misrepresent the methodology and results? There were no consumer-facing advertisements at issue, but Bayer argued that the press release was picked up by search engines and AI-generated results to answer general public questions, and offered evidence that patients can often influence prescribing decisions.

But J&J’s evidence suggested that only doctors, not patients, were the target audience for the challenged communications. Two treating physicians testified that they were not aware of a single instance of a patient identifying either drug during an appointment, and in this particular context, it was highly unlikely that a patient would be driving a treatment decision.

51% risk of death reduction: Study patients receiving Bayer’s product had a roughly 86% survival rate, while those receiving J&J’s apalutamide had a roughly 92% survival rate—statistics that are disclosed in the overview slide. Bayer argued that the public seeing “92.1 percent for J&J’s product and a ‘51 percent reduction in risk of death’ would plausibly infer that Bayer’s product has a survival rate of approximately 60 percent.” (Why not 46%?) But failure to include the 86% absolute survival measure didn’t misrepresent the results, and J&J used sufficient disclaimers. “It would be obvious to any medical practitioner that a hazard ratio reflects a relative, rather than absolute, difference.”

Bayer also challenged the use of the claim that J&J’s product “reduces” mortality risk rather than merely being “associated with” decreased mortality. This was closer: “associated with a reduction in X” would be a more apt description of the results of a retrospective, observational study like the one here, whereas the causation implied by “reduces” generally can be shown only through a randomized trial. But the word wasn’t literally false for the target audience. “Bayer failed to present any evidence that doctors would not understand the press release’s headline claim in light of the release’s repeated references to the real-world and observational nature of the Study.” And J&J’s witnesses “repeatedly emphasized that doctors would look closely at the underlying study rather than relying just on one word in a headline.”

Bayer also challenged the use of the phrase “through 24 months.” Many patients were “in” the study for only a portion of that time and therefore were tracked for a shorter duration. But “through 24 months” accurately (and literally) describes the period in which patients were included in the study, and there was testimony that a reasonable doctor would recognize that it was impossible that every patient in the study was followed for a full 24-month period. For example, patients died during the period. “Readers familiar with health outcomes studies understand that the stated follow-up period is not universal.”

Bayer also challenged a press release’s statement that the study “replicat[ed] the conditions of a randomized clinical trial.” True, retrospective observational studies are generally inferior to randomized trials. In isolation, this statement could be misleading, but not in the full context. Disclosure of the underlying methodological approach, including noting that the study was a “real-world” study rather than a randomized clinical trial at least 14 times throughout the press release sufficed. While “no observational study can actually duplicate the effect of a randomized trial,” “the audience of medical professionals to whom the communications were targeted would know that.”

The court also referred to the Second Circuit’s decision in ONY, which held on relevantly similar facts that, “to the extent a speaker or author draws conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement, those statements are not grounds for a claim of false advertising under the Lanham Act.”

J&J argued that, under ONY, Bayer had to prove that the study was based on fraudulent or false data, or that J&J had falsely described the underlying methodology, but the court wasn’t quite willing to go that far. ONY dealt with statements made “in a scientific article reporting research results,” and also in “a press release touting [the article’s] conclusions.” Other courts have declined to grant broad immunity to “statements made outside of an academic context.” The court also pointed to a series of opinions standing for the proposition that “statements about a study’s results may still be challenged as false under the Lanham Act if the underlying study can be shown to suffer from severe methodological defects such that the study cannot be said to support the statements in question.”

The court didn’t need to resolve the issue, because Bayer couldn’t win under either standard: fraud or showing that the study compared apples to oranges. (It did comment that ONY involved not just a paper but a press release, and that it wasn’t clear that “the extent of First Amendment protections for statements of scientific research deemed applicable by the Second Circuit in ONY could properly be limited to academic fora.”)

"higher standard of safety" is puffery even as to child car seats

2026-04-20T12:34:08.998-04:00

ElSayed v. Columbus Trading Partners USA Inc., No. 25-cv-01347 (FB) (TAM), 2026 WL 1042209 (E.D.N.Y. Apr. 17, 2026)

ElSayed alleged that CTP’s infant car seat were faulty and defective in violation of NY consumer protection law. The court dismissed the complaint because “safety” claims were too vague to be actionable.

CTP advertised that its car seat conforms to a “higher standard of safety” because it was “engineered in Germany—where safety standards are among the highest in the world,” among other claims. But it was voluntarily recalled because one of the harness system anchor pins tended to break. It also offered a free remedy kit, though that wasn’t available when the complaint was filed, at which time CTP advised consumers that they should check the anchor pins for damage before every use until the remedy kits became available.

CTP argued that “New York law requires a manifested defect for a plaintiff to recover on any claim.” But unlike the products described in the cited cases, the car seat didn’t perform satisfactorily:

The recall explicitly instructs caregivers to check the Aton G’s harness pins before every use, because they were prone to bend or break. This is not a situation of theoretical harm caused by a potential defect; at issue here is an actual defect manifested in every Aton G subject to the recall. Accordingly, Plaintiff did not get the benefit of her bargain, instead finding herself saddled with a faulty and dangerous CRS which she could not use as expected and which she had to manually examine before every use. This is not how a car seat is supposed to be used, and it is therefore defective by definition.

However, the false advertising claims failed because they were too vague. Along with the phrases above, CTP also said that the car seat had “advanced safety features;” “combines advanced technologies with luxurious details to deliver an exceptional first car seat for your child”; “marries the highest standard of safety with a focus on child comfort”; and “[o]ffer[s] maximum convenience and safety without comprising on design.”

But general statements about a product’s safety “do not create an enforceable promise.” The court pointed to judicial divisions over whether Uber’s claims to have “the strictest safety standards possible” and “the safest rides on the road” were puffery—some said they were actionable because superiority over other methods was verifiable and others said they were “too boastful, self-congratulatory, aspirational, or vague to amount to misrepresentation.” Under this “vague and inexact” standard, the plaintiff failed to state a claim. CTP’s “highest standards of safety” claim was not paired with any superlative statements and stayed general and vague statements. The court also found a “meaningful difference between a company claiming that they offer the safest product and claiming that they set the highest safety standards. Standards in the abstract are necessarily aspirational, as they describe a policy or plan and not the actual outcome or product.” [Requiring consumers to read like lawyers always goes well!]

phthalates could be "ingredient" for purposes of falsifying "only natural ingredients"

2026-04-20T12:33:22.914-04:00

Wysocki v. Chobani, LLC, --- F.Supp.3d ----, 25-cv-00907-JES-VET, 2026 WL 926713 (S.D. Cal. Apr. 6, 2026)

Wysocki alleged that Chobani’s Greek Yogurt had dangerous phthalates in it. Phthalates are “a group of chemicals [the U.S. Food and Drug Administration (“FDA”) has deemed to be used safely] in hundreds of products, such as ... food packaging, pharmaceuticals, blood bags and tubing, and personal care products.” But plaintiffs alleged that they were bad for people.

The court rejected various challenges to the pleadings, including that the cited testing didn’t show that the actual product Wysocki purchased actually contained phthalates because the tested products differed in size (32 oz vs. 5.3 oz), which could reasonably affect phthalate levels, as each size container calls for a different amount of #5 plastic. That is, under Wysocki’s leaching theory, phthalate levels in the 5.3 oz product would likely be lower than those detected in the 32 oz product. Moreover, half of the cited tests detected no phthalates and the testing entity’s own caveat was that results “may not be representative of actual product contents.” These were all factual disputes, and plaintiff pled enough to get past Rule 9(b), with the exception of one phthalate that was not specifically mentioned in the allegations about testing. Allegations that phthalates readily leach into surrounding surfaces and food and are commonly used as a catalyst to make the # 5 plastic container that Chobani predominately uses for its products also helped.

The court rejected the argument that Chobani’s “only natural ingredients” claims weren’t misleading because there was no allegation that phthalates are used, or act, as ingredients in the products. But Wysocki plausibly alleged that allegations of “only natural ingredients,” while affirmatively disclaiming the presence of any “artificial flavors,” “artificial sweeteners,” or “preservatives”, represented to her and other reasonable consumers that the product is free of unsafe, unnatural, toxic substances, such as phthalates. At the motion to dismiss stage, a reasonable consumer could understand representations that use terms such as “100% natural” or “natural,” modified by other terms connoting that it is “all natural,” to mean “that a product does not contain any non-natural ingredients.” And “only” was just such a modifier.

A reasonable consumer was also likely to interpret the meaning of the term, “ingredient,” by its ordinary definition: “something that enters into a compound or is a component part of any combination or mixture.” If phthalates’ presence in the yogurt was shown, that would plausibly lead a reasonable consumer to find that the yogurt’s ingredients include phthalates, rendering “only natural ingredients” false.

It didn’t matter that phthalates aren’t on the ingredient list; reasonable consumers don’t have to cross-check the ingredients list when a claim is clear on the face of the product. (And here, the ingredient list wouldn’t help!) Given the “only” representation, “even trace amounts of a non-natural substance, like phthalates, would exponentially alter the previously stated percentages, which in turn results in a misleading ‘natural’ claim.”

Chobani also argued that Wysocki failed to allege that the levels of phthalates in the products render them unhealthy or unsafe to consume. While some courts have required plaintiffs to allege the presence of the alleged harmful substance, at a particular level, to support a misrepresentation claim, that was a question of fact. Wysocki alleged that “natural ingredients are one of the most important aspects of healthy food,” and that, when food packaging does not contain the word “natural,” over half of reasonable consumers assume the product must contain chemicals.” And she alleged a risk of “unsafe levels” of phthalates, and that disruptions of the endocrine, respiratory, and nervous systems can result from both high and low dose exposure.

However, Wysocki’s partial omission theory failed: she alleged literal falsity, not that a representation was misleading absent further disclosure.

Chobani’s argument that it was insulated by Proposition 65’s warning thresholds was premature. Prop. 65 provides that “no person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual where the amount exceeds the [agency-established] no significant risk level.” But, pursuant to a statutory safe harbor, this duty to warn does not apply to business operators when Prop. 65-regulated chemicals exposure levels are equal to or less than the “no significant risk level.” And private plaintiffs who sue to enforce its private right of action have to give pre-suit notice, an unwaivable requirement.

But Wysocki argued that she wasn’t bringing claims under Prop. 65, even though two of the alleged phthalates in the products are on the Prop. 65 chemical list. Though Prop. 65 is concerned with cancer or “reproductive toxicity,” she alleged endocrine disruption, developmental harm, immunological and renal harm, and hormone disruption, “outside the scope of Proposition 65.” Resolving this would require more factfinding than appropriate at this stage.

However, equitable relief and express warranty claims were dismissed.

Brita's clearly qualified filtration claims couldn't mislead reasonable consumers as to lack of qualification

2026-04-20T12:32:00.004-04:00

Brown v. Brita Products Company, --- F.4th ----, 2026 WL 1028347 No. 24-6678 (9^th Cir. Apr. 16, 2026)

Unlike 800-thread count sheets (see previous post), a reasonable consumer would not expect a fifteen-dollar water filter to “remove or reduce to below lab detectable limits common contaminants hazardous to health” in tap water, notwithstanding clear disclosures to the contrary. Brown brought the usual California claims against Brita.

The Standard Filter, Brita’s lowest cost filter, is certified to reduce five contaminants—copper, mercury, cadmium, chlorine, and zinc—to below the levels recommended by the NSF and EPA. [At least, for now; I assume those recommendations will soon be lifted.] The Elite Filter, a more expensive model, reduces more than a dozen other contaminants to less than or equal to NSF/EPA recommended levels.

The package advertises that the filter “reduces” certain harmful contaminants. The Brita Everyday Water Pitcher, which includes the Standard Filter, claims: “Reduces Chlorine (taste & odor), Mercury, Copper and more” and directs consumers to “see back panel for details.” The back label likewise claims to “reduce” “Copper,” “Mercury,” “Cadmium,” “Chlorine (taste and odor),” and “Zinc (metallic taste).” The product labels offer links to additional sources of information known as “Performance Data Sheets,” which provide more information. Performance Data Sheets contain more detailed information on exactly which contaminants are filtered by Brita’s Products, and to what extent. For example, the Standard Filter’s Performance Data Sheet discloses the following information:

Brown bought the Brita Everyday Water Pitcher with the Standard Filter and alleged that he received the misleading message that the product “removes or reduce[s] common contaminants hazardous to health ... to below lab detectable limits.” He pointed to the claims: “BRITA WATER FILTRATION SYSTEM”; “Cleaner, Great-Tasting Water”; “Healthier, Great-Tasting Water”; “The #1 FILTER”; “REDUCES Chlorine (taste and odor) and more!”; “REDUCES Chlorine (taste and odor), Mercury, Copper and more”; and “Reduces 3X Contaminants.” He alleged that the filter didn’t reduce to below lab detectable levels various hazardous contaminants, including arsenic, chromium-6, nitrate and nitrites, perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), radium, total trihalomethanes (TTHMs), and uranium.

Material omission claims: Absent a contrary misrepresentation, a duty to disclose arises under California law if either (1) a product contains a defect that poses an unreasonable safety risk; or (2) a product contains a defect that defeats its central function. The omission must also be material. The reasonable consumer standard is not satisfied where plaintiffs allege only “a mere possibility that [the] label might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” Even if there was an unreasonable safety hazard or defect in central function, Brita lacked a duty to disclose that its filters didn’t completely remove or reduce to below lab detectable levels all of the alleged contaminants. “Such a disclosure would not be important to a reasonable consumer in light of Brita’s other disclosures on its Products’ packaging and the objective unreasonableness of such an expectation.”

“As a matter of law, no reasonable consumer would expect Brita’s low-cost filters to completely remove or reduce to below lab detectable levels all contaminants present in tap water, particularly in light of Brita’s extensive disclosures to the contrary.” Brita discloses that its filters “reduce” contaminants from tap water, not that they remove contaminants entirely, and specifically discloses the contaminants that are reduced. It also provided “easily accessible information” (the Performance Data Sheets) about the extent of the reductions. Thus, “[b]ecause a reasonable consumer has been made aware of the Products’ limitations, we cannot say that a reasonable consumer would have been misled by Brita’s omission of these limitations on its Products’ packaging.

an impossible claim is literally false and actionable if believing it is reasonable

2026-04-20T12:30:00.001-04:00

Panelli v. Target Corp., --- F.4th ----, 2026 WL 1042441, No. 24-6640 (9th Cir. Apr. 17, 2026)

Something that I don’t yet have a full handle on is happening in 9^th Circuit consumer protection cases around literal falsity v. ambiguity. It could be good, but I’m nervous about the potential for weird Lanham Act interactions since “literal falsity” and “ambiguity” sound like the Lanham Act concepts but currently have important differences. FWIW, the emerging consumer protection approach has some things going for it—and if Lanham Act cases started to recognize that consumer surveys shouldn’t rigidly be required in cases of “ambiguity,” that would be a very good thing indeed.

Anyway, Panelli alleged that Target sells some of its “100% cotton” bedsheets with claimed thread counts of 600 or greater, but that it is impossible to achieve that high of level of thread counts with 100% cotton textile. The court of appeals held that the district court erroneously concluded that Panelli could not be deceived as a matter of law by an impossible claim under the usual California consumer protection laws.

Panelli alleged that independent testing showed the sheets he purchased had a thread count of only 288—not 800, as claimed on the sheet’s label. Indeed, he alleged, “it is physically impossible for cotton threads to be fine enough to allow for 600 or more threads in a single square inch of 100% cotton fabric.” The district court relied on Moore v. Trader Joe’s Co., 4 F.4th 874 (9th Cir. 2021), a badly reasoned case holding, in this opinion’s words, that “a reasonable consumer would be dissuaded by contextual information from reaching an implausible interpretation of the claims on the front label of the challenged product.” If it was physically impossible to achieve 800 thread count, the district court reasoned, then no reasonable consumer would interpret the ad as promising an impossibility.

The court of appeals distinguished Moore because there, “100% New Zealand Manuka Honey” was ambiguous: it didn’t necessarily mean that the bees making the honey fed only on the manuka flower. (This is not the poorly reasoned part, which is the stuff the court says a reasonable consumer should know about honey grading and pricing.) As a result, “reasonable consumers would necessarily require more information before they could reasonably conclude Trader Joe’s label promised a honey that was 100% derived from a single, floral source.” And “(1) the impossibility of making a honey that is 100% derived from one floral source, (2) the low price of Trader Joe’s Manuka Honey, and (3) the presence of the ‘10+’ on the label [which apparently signifies a relatively low manuka content] … would quickly dissuade a reasonable consumer from the belief that Trader Joe’s Manuka Honey was derived from 100% Manuka flower nectar.”

Here, the district court “skipped a step by not analyzing whether the label was ambiguous and therefore required the reasonable consumer to account for outside information to interpret the label’s claim.” The challenged claim here was not ambiguous. It “purports to communicate an objective measurement of a physical aspect of the product.”

Target argued that there are multiple possible measures of thread count—but it doesn’t produce consumer protection law ambiguity, which asks only whether a substantial number of reasonable consumers could think their questions about the feature had been answered without further information, not whether all reasonable consumers would necessarily think that. Note that the multiple possible measures of thread count would produce Lanham Act ambiguity, if the non-false possibilities are reasonable. Here, “it is unlikely that a reasonable consumer would know there are multiple thread-counting methodologies.” Indeed, consumers are not “expected to look beyond misleading representations on the front of the box” to discover the truth of the representations being asserted, and are “likely to exhibit a low degree of care when purchasing low-priced, everyday items,” “like bed sheets sold by a mass-market retailer.”

A reasonable consumer is “unlikely to be familiar with the intricacies of textile manufacturing.” [Moore said that reasonable consumers know how honey is made; its error was to assume that knowledge “bees collect pollen” would somehow translate to “and therefore they’d likely collect lots of different kinds of pollen” when people generally don’t give that much thought to that kind of background information.] “Realistically, a reasonable consumer’s knowledge of textile manufacturing is likely limited to the fact that a higher thread count listed on packaging indicates a higher quality sheet.”

The court added: “Allegations of literal falsity are the most actionable variety of consumer protection claims on California’s spectrum of actionability.” True, some claims can be so clearly false as to avoid deception. But Panelli’s claims weren’t unreasonable or fanciful:

While a vast majority of consumers are, for instance, familiar with the biological nature of bees so that it would be unreasonable for a consumer to think honey was sourced from a single type of flower, they likely would not have that same kind of baseline knowledge about textile manufacturing. Neither common knowledge nor common sense would cause a Target shopper to question the veracity of the claim on the bed sheet’s label that the product was of 800 thread count.

The court declined to create a situation where “manufacturers would face no liability for false advertising so long as the claims were wholly false—regardless of whether this falsity is generally knowable to consumers.”

Panel 6: Unanticipated Consequences of New Technologies and Practices

2026-04-17T17:47:00.002-04:00

29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976 Copyright Act

Jennifer Urban, UC Berkeley Law (Speaker and Moderator)

Daniel Gervais, Vanderbilt Law: Copyright act as undergirding licensing architectures for AI. © rights are inert without exchange. A reproduction right is sterile if the transaction costs of licensing exceed the value of any license. Ghost architecture of the statute: the licensing machinery built around it by antitrust enforcement/courts, and extended by subsequent legislative initiative. Why a mix of compulsory licenses, court-supervised blanket licenses, CMOs, and congressionally sponsored organizations? Reflects judgments about when markets will work to create licensing regimes on their own and when they won’t.

Congress understood that certain uses would produce market failures if left entirely to the private system—difficulty of advance licensing millions of daily transactions, supervising individual uses. Compulsory licenses are not concessions to users at the expense of rightsholders; they are a mechanism to have market activities occur when otherwise they’d be unlikely to occur at all—tech would be frozen out of the market or rightsowners would be uncompensated. ASCAP, BMI, SESAC allowed for licensing without compulsory licensing.

The initial compulsory license was created to prevent monopolization, not to subsidize record companies. The streaming eras revealed some weaknesses, including “address unknown” filings to the Copyright Office, demonstrating a systemic breakdown. The MMA in 2018 tried to address that failure with a mandatory administrator of a blanket license, reducing the loophole and creating a matching database to find authors & deal with unclaimed royalties.

SoundExchange is neither voluntary nor a traditional intermediary—does not require opt-in. The compulsory license is one half of the architecture. The other is voluntary licensing in text & images, showing judicial calibration of licensing market. This played out with the CCC and fair use litigation—the early fortunes of CCC were modest without a judicial determination that licensing was important. Texaco (2d Cir. 1994) changed that landscape by holding that systematic copying of journal articles was not fair use.

AI is a stress test b/c of the scale of reproduction beyond any existing licensing system. International system: no national licensing scheme can avoid the possibility of arbitrage. The licensing system is starting to respond for high-value sources like NYT. CCC has expanded to cover AI uses. Other countries are introducing AI specific licenses. Voluntary arrangements can try to fill that space even before legislation.

History in US: incremental expansion of compulsory license as scale increases. American experience counsels against using a levy to respond: AHRA’s statutory royalty on digital audio recording devices and blank media seemed designed well but the tech passed through the market like a comet.

How can a system built on territoriality deal with cross-border content? Reciprocal agreements, through voluntary licensing. Each adaptation is slower and imperfect but it does happen. AI: most demanding test b/c of scale, speed, and international complexity.

Matthew Sag, Emory Law: Nonconsumptive uses. © is built on the metaphor of the printing press. Copyright provides incentives to authors whose works would otherwise be reely copied on first publication. Thus, reproduction is the locus of exchange b/t reader and author, where the toll can be imposed. But what if there are no readers?

We have seen a series of copy-reliant technologies—search engines, plagiarism detection, machine learning, generative AI. They necessarily copy works but usually don’t deliver prior original expression to any human reader. This issue wasn’t anticipated in 1976, even if AI authorship clearly was.

Should hidden intermediate copies be permissible if no one ever reads them? Tension b/t 2 intuitions—copying (the technical act) is infringement versus copyright’s purpose is to protect expression communicated to audiences—consider how we judge substantial similarity, or give rights over public performance.

His solution: nonexpressive use is fair use. When he started, he mostly had software reverse engineering in mind, then plagiarism detection and Google Books. Gen AI produces outputs that might compete with human-made expressive works, which changes the politics entirely, if not the law.

Courts have generally held that technical copying is fair use when the copying isn’t communicating to the public. Bartz & Kadrey both found model training to be highly transformative fair use; Ross Intelligence disagreed and currently under review by 3d Circuit. If that case goes the other way, it may be on narrow grounds related to the 4^th factor.

Where is this heading? Courts have done a pretty reasonable job with the nonexpressive use cases. But we don’t have to rely on courts. Netcom: an analogous issue; court did a great job recognizing insanity of holding infrastructure providers liable for passive passthrough, and articulated volitional conduct requirement. Congress also stepped in and gave us 512, modeled on Netcom but more predictable than the volitional/nonvolitional conduct line. A functional Congress could provide additional clarity.

To that end: proposes revising 107 to recognize that copying works to extract unprotected information or enable nonexpressive computational functions is highly transformative—not fair use b/c there should be room for courts to evaluate the whole picture.

Lots of people perceive licensing as a solution for LLM training. ASCAP is amazing, efficient, but they don’t pay anyone a check for less than $100 or direct deposit for less than $1. It works b/c the authors w/ works of negligible value don’t get paid. But we have no way of tracing which individual works are important to the system. We’d have to divide revenues among a lot of people, not just songwriters, book authors, but everyone who ever posted on social media or commented on Stack Overflow. That’s billions—a very large sum of money divided by billions turns into a lot of transaction costs. You could still send checks to large content owners, but those are precisely the folks who can do deals w/large companies. This would just be a tax system. If you want to tax LLMs and redistribute $ for worthy causes, that’s a great idea, but tax!

Rebecca Tushnet, Harvard Law School: And now for something completely different!

When I started my career writing about fan fiction, which involves fans writing, for example, the further adventures of Kirk and Spock from Star Trek or Mulder and Scully from the X-Files, people in the legal community were often surprised that I cared—wasn’t this a bunch of infringing derivative works? Now, when I talk about fan fiction, people in the legal community are often surprised that I care because noncommercial fanworks seem obviously transformative and fair, or at least obviously not going to come under legal threat. Chloe Zhao directs movies for Marvel and talks about her fan fiction; the actress who plays Dr. Javadi on The Pitt says that her character is a regular girl and gives as a key example that she’s on AO3, which she expects you to know means the Archive of Our Own. My students have never known a world in which fan fiction was hard to find. I’m more pleased to be in the latter situation, but it does make me feel a bit old! And given that noncommercial fanworks were not on the radar of the drafters of the Copyright Act—even if some of them almost certainly knew about science fiction fan culture—my placement on this panel makes sense.

A bit about my relationship with fanworks: a founder and presently co-chair legal committee of the Organization for Transformative Works, or OTW. Mission, to support and defend noncommercial fanworks, explicitly framed as transformative both in the legal copyright sense and in the broader sense of being different in exciting ways. One of the ideas was that we’d try to show up in the rooms where it happens to give fans a voice in policy and legal discussions as creators, the way the EFF does for general internet freedom.

Today, the OTW’s Archive of Our Own hosts over seventeen million fanworks—works based on existing media. We’re a Library of Congress American heritage site. The OTW also supports a wiki, Fanlore, dedicated to fan-related topics; a peer-reviewed open-access journal named Transformative Works and Cultures; and a legal advocacy project to help protect and defend fan works from legal challenge and commercial exploitation. The OTW routinely submits amicus briefs and policy comments to courts, legislatures, and regulators regarding copyright, trademark, and right-of-publicity issues.

One of our most longstanding projects has been seeking and obtaining exemptions from 1201 for noncommercial remix videomakers—vidders or fan editors. Our exemption currently allows noncommercial remixers to rip clips of video from DVDs, Blu-Ray and streaming video in order to make their own transformative works. In the 1201 exemption process the Copyright Office perceives its job to be narrowing your requested exemption as much as possible. Still, we showed that noncommercial fan videos were regularly fair use and that 1201 hampered fans’ ability to make those fair uses. We’ve obtained renewal of those exemptions several times.

Some lessons:

First, there is no substitute in the modern state for organizations that can speak the language of regulation. Citizens must organize or they will be ignored. But a small group of people can effectively do that! Very few of the more radical anti-copyright, anti-capitalist people who think the OTW is a liberal (derogatory) organization are in this room, but I think we’ve had a productive effect on the overall conversation that includes them.

Second: It is not good for everyday practices to get fundamentally out of sync with formal law. If the everyday practices are acceptable and even good, the formal law ought to recognize that, and we can use fair use to do so.

There are those who say that fanworks are tolerated infringement. Some of those people are probably in this room. This is at best an argument that the formal law sweeps way too broadly under any justification you want to give for copyright rights—yes, the main “tolerators” are big conglomerates, simply because as we heard yesterday they’re the source of most of the widely disseminated for-profit copyrighted works we have today, but there’s a reason that even the individual authors who say they oppose fanworks haven’t actually sued over noncommercial fanworks.

In addition, the “tolerated infringement” argument is a profound indictment of statutory damages specifically. If damage to the exclusivity in a copyrighted work is both infringed by a noncommercial, nonreproductive work and subject to up to $150,000 in damages, that damage ought to be bad, not just an annoyance. Pam Samuelson has always had the right of it and we heard yesterday various forms of agreement with her position that statutory damages have been harmful to the rest of the copyright scheme.

Third and More broadly, noncommercial fanworks are good because they offer a distinct field for creative endeavors, separate from the copyright-enabled commercial system. They are both artisanal and widely distributed, making them an important alternative form of expression. Noncommercial works are fundamentally different in the aggregate from commercial works. They can be Poetry; 100-word drabbles; short stories; 20,000 word stories; million-word stories; other things there’s not much commercial market for. This is part of what makes fanworks worth preserving and protecting: they are part of the background of a thriving modern creative ecosystem.

Noncommerciality complicates questions around blanket licensing: don’t want money, don’t want to participate in the commercial system.

In addition and relatedly, fan cultures have a long connection to queer writing: fan fiction is inherently about difference/the fact that the story could be different/possibility—encourages both repetition with difference and experimentation, which allows some people to open themselves to various possibilities in the rest of their lives. If you want to cry about the power of creativity, read the stories we collected for our submission to the NTIA’s inquiry into the legal framework for remixes: the power of making stories and other creative works within a community that is excited to hear everyone speak has literally saved lives.

Beyond its transformative effects on people, noncommercial fandom is a huge boon to creativity generally. Professors Andrew Torrance and Eric von Hippel have identified “innovation wetlands”: largely noncommercial spaces in which individuals innovate that can easily be destroyed by laws aimed at large, commercial entities, unless those individuals are specifically considered in the process of legal reform. Their description fits remix cultures well:

The practice of innovation by individuals prominently involves factors important to “human flourishing,” such as exercise of competence, meaningful engagement, and self-expression. In addition, the innovations individuals create often diffuse to peers who gain value from them ….

Innovation requires that individuals have rights to make, use, and share their new creations, collaborating with others to improve them, as remix authors do. Given the small scale and limited resources of most individuals, “[a]nything that raises their innovation costs can therefore have a major deterrent effect.”

Things I have personally been around for: the adoption of curated folksonomy/AO3-style tags in publishing. New story types and tropes: five things that never happened for exploring different scenarios for characters that together illustrate something about the fan author’s view of the characters; the fan-invented “omegaverse” tropes about humans with certain animalistic characteristics.

If you forget about noncommercial works in your creativity policy, you enable the destruction of vital diversity and seed corn for the next generation.

Finally, a coda with another view of internationalism: The US was at the time of the OTW’s founding, nearly twenty years ago, the only place we could count on a strong and flexible fair use defense. This has somewhat changed, including by adoption of fair use in several other jurisdictions, Canada’s noncommercial user-generated content exception, and most recently by greater European flexibility on pastiche, but fair use’s impact is still really notable. American hegemony meant that we didn’t even need a term like “the Brussels effect” for the effect of American fair use and safe harbor laws, but it really did seem like the internet was another American territory. That’s changing, more every day, but we are probably going to miss it when it’s gone.

Jennifer Urban: In-formalization, term extension, and orphan works. Although there was a near-consensus and energy to address it, c2004-2015, efforts were ultimately not a rousing success.

Orphan works: policy questions are related to your sense of who is an author & what authors generally want. Orphan=owner can’t be identified and someone wants to make use of a work in a manner that requires the owner’s permission. 76 Act increased the number of orphan works by removing the formalities. Widespread agreement thus on the definition and scope of the problem

Solution space: limitations on remedies of injunctive relief, especially when a significant amount of original expression was added; limitations on damage remedies (US proposals); statutory exceptions (EU directive w/r/t making available and reproduction rights); compensation to later-appearing © owners (reasonable compensation, extended collective licensing).

Conditions on relief: proposed: reasonably diligent search; identify use as orphan work on the use itself (notice requirement); register use, potentially with waiting period before use; takedown/stop use upon appearance of © owners; pay compensation to later-appearing owner; provide attribution to later-appearing owner; categorical limitation on type of users (e.g., EU © Directive: educational, library, & public heritage institutions & public broadcasters).

Why so complicated? Different uses are different: archive/library digitization are sensitive to search costs; takedown on notice is more feasible; licensing fees may be prohibitive at scale. Derivative works/smaller scale: more extensive search may be more feasible but takedown/removal not feasible and injunctive relief is prohibitive. Where you were willing to compromise depends on where you sit.

Similarly for copyright owners, © owners like photographers/illustrators were worried they’d be hard to find & usually don’t need to use orphan works themselves. Filmmakers are easier to find and more likely to want to use orphan works.

Limited effectiveness: administrative/centralized licensing adopted in Canada, Japan, Korea, Hungary, UK—fewer than 1000 licenses total by 2015 since 1999. Expensive, not productive. [CASE Act looks better than that!]

2021 EU directive followup found very limited use of EUIPO database and very limited use overall by most eligible organization. 70% of entries in database registered by British Library, and number dropped hugely after Brexit. Lots of complaints about strict search requirements.

Fair use case law also developed to allow a lot of the big data uses; a risk management question. People worried about orphan works protection cabining fair use, even with a savings clause, and that slowed momentum.

Where are we now? Substantial strides in digitization of Office records, which is helpful. But records remaining are in the “sour” spot of 1945-1978. Later-appearing © owner can still register and then sue. Risk aversion is still an issue. Gatekeepers for small creators, libraries—people making decisions about risk aren’t necessarily fully economically rational but have practical effects. Same things with fair use. Occasionally, courts have considered market unavailability in the fair use analysis, but that brings in gatekeepers/risk aversion, leading to “clearance required” policies. And the definition of an orphan work is that it can’t be cleared.

AI raises similar but maybe harder problems.

Urban to RT: how does AI training compensation come into this?

A: it’s incommensurable. It’s like offering me payment after I had you over for dinner at my house. There’s nothing immoral about restaurants but that’s not the kind of relationship I was seeking.

Q about 103(b) and fanworks: if they're fair use, then 103(b) doesn't come into it. Fan authors sometimes worry about commercial misappropriation: they have a copyright in their fair use fanworks, so they can try to shut down unauthorized commercial uses, and they also aren't responsible for such unauthorized uses. Goldsmith even makes this a bit clearer by establishing that the analysis goes use by use; a fanwork created for noncommercial purposes is fair regardless of whether deliberate monetization by the creator would be unfair.

Urban to Sag: how does international nature of training affect this?

Sag: the international scene is quite complicated. Peter Yu & Sag survey the global scene—different jurisdictions take very different approaches, but each trying to (1) make a pathway for legal text data mining, (2) have some protections for © owners. What you see is difference in regulatory style. EU is far more prescriptive in DSM directive. There’s clarity there; some others go further than fair use, but may require, e.g., not just noncommerciality but affiliation w/a library or university. People who think we can put the genie back in the bottle are likely wrong, but even if that’s what you wanted to do, a lot of this activity is portable—you can go to other jurisdictions to train. And that fact of int’l competition should be recognized. Hard to see how a licensing system or tax & redistribution system could work on an int’l basis. We don’t have the political competence to do it here on a national basis, but they might be able to do it in the EU. Only a handful of jurisdictions have TDM protections, but it’s 52% of the world’s GDP. The fact that we allow it in the US isn’t an outlier among our peers.

Gervais: voluntary licensing can deal with crossborder issues. Collective or individual licenses can say something like “parties don’t agree on current scope of fair use” but contracts can manage that risk up to a point, waiting until there’s more coherence in the courts.

RT: maybe we should bring Kalshi in and just use prediction markets. [joke!]

Urban: if there’s nobody to pay, then the orphan works schemes involving collection don’t support the © system.

Q: about licenses b/t major copyright owners and AI companies: will they narrow the scope of fair use?

Sag: I don’t think those licenses should narrow the scope of fair use, though the editor of the Atlantic did say that he entered into one such license to prove the existence/validity of the licensing market. A few notes: most of the licenses, as far as he can tell, are not just for AI training but for retrieval-augmented generation—the economics and copyright implications of sending an AI agent onto the web and assemble them into a report are quite different from the AI training cases and it makes sense to license that activity. Mostly they’re licensing access, which you can see most easily with Reddit, which doesn’t own © in content but charges $60 million/year for firehose access. That’s fine, though it shows need to update robot.txt protocol, but they don’t prove that licensing is a general training solution. We’ll see more of those licensing deals and they’re good, but hopes courts don’t jump to “market for training.”

Litman to Sag: instead of amending fair use to presume training highly transformative, consider moving away from fair use and avoid “transformative,” which attracts additional political, emotional, religious opposition that you don’t need.

Panel 5: Copyrightable Subject Matter and the Special Problem of Software

2026-04-17T13:25:00.001-04:00

29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976 Copyright Act

Pamela Samuelson, UC Berkeley Law (Moderator and Speaker): discusses history (in which she was intimately involved as an intellectual powerhouse). From uncertainty over whether software was protectable to Whelan which gave very broad protection; took 6 years for the Second Circuit to respond and start with Baker v. Selden to keep functional elements out of © protection. Merger, scenes a faire, 102(b), fair use—doctrinal cocktails, in the words of Molly van Houweling.

Samuelson initially thought sui generis protection for software would be better, but admits error: © did a really good job and gave an international standard that’s enabled some stability.

Jule Sigall, former Microsoft: CONTU was doing its work as Microsoft was just getting started. Trade secrets, patents, and copyrights do different work at different eras of software. 1980: PC era—rapid rise of copyright’s relevance. Business model: product licenses. Practical control: EULA, shrinkwrap, key disc/dongle. Copyright’s salience for executives was high for how they were going to recover fixed cost investment. This was the model CONTU had in mind when it decided to embrace software ©: you make a product & send it out through distribution channels not unlike books.

1990s: WWW. Easier to send software as bits. Business model if people won’t necessarily pay for copies: hardware bundling (Apple; PC with independent OEMs); ad supported. Practical control: B2B contracts. Copyright salience: medium.

2000s: cloud and OSS: business model: subscription/SaaS/consulting. Practical control: server access control/OSS license; not much a pirate copy will do for you. Copyright salience: medium. Antipiracy efforts shifted to antifraud—scammers would purport to sell subscriptions. Open source was a different path—add consulting services to OS or build services using OS. That does depend on © but the most prevalent ©-based model was making software as accessible as possible and using © to ensure it was only used/redistributed in certain ways.

2010s: mobile era/app ecosystem. Business model: app store sales/subscriptions—you can, as in the 80s, get paid for a copy. Practical control: platform control/cloud services. © salience: low.

2020s: AI. Business model: ?? Practical control: ?? Copyright salience: None? [Real underpants gnomes vibes.] More software will be developed by more people than ever before. The tools allow people of all kinds to make software, and they allow software to make software. Maybe we are back where we started before CONTU with unclear © coverage.

Clark Asay, BYU Law: reasons for concern, but countervailing forces/reasons for optimism. FOSS licenses presuppose copyrightable code: copyleft, attribution, etc. W/o © the governance architecture becomes much less reliable. In the context of other developments that threaten open source—MongoDB and Elastisearch have abandoned OS; monetization has always been a question for companies that can’t directly monetize software. AI agents: those agents are creating tons of software and making pull requests/contributions to OS products w/o human review, which are being overwhelmed in some cases. Some projects are closing off in response. Open collaboration norms may be eroding from multiple directions simultaneously.

Might push us more in direction of trade secrecy and possibly patents. A more closed, fragmented software ecosystem and possibly AI system. But developers desire to influence the AI stack, which is likely to keep the ecosystem at least partially open.

A. Feder Cooper, Yale University (co-author Mark Lemley, Stanford Law School): Model weights that give a possibility but not a certainty of generating infringing output: is that a “copy”? Relates to memorization debate. It’s common to describe models as learning statistical correlations or patterns: that’s not wrong but it oversimplifies how info is represented. Another important part: how the LLM is used. Some methods of selecting outputs are deterministic—same input, same output; many are stochastic. Variability in outputs doesn’t derive from model but how the model is used in decoding.

Memorization is, when based on training, the model produces really high concentration of probability on particular sequences. The model is still probabilistic, but the distribution is so sharply peaked that one sequence (or small number of sequences) dominates. This is related to compression: memorization means that Ted Chiang’s “blurry jpg of the web” is sometimes not blurry at all for certain chunks. Memorization is pretty mysterious still—keeps giving new insights about LLM behavior. Not a bug; it’s far too interesting and complicated.

What is a copy? The statute’s answer is pretty incoherent: copies are material objects in which a work is fixed. (The “by or under the authority of the © owner” can’t be taken seriously for infringement by copying. We used the same definitions for protectability and infringement, so courts just ignore that part for infringement.) In litigation, parties take extreme positions—no memorization, or models are just a collage. Neither of these are right and sometimes not even partially right.

We can extract a near reproduction of Harry Potter from a short prompt from Meta’s Llama: that prompt is deterministic. That’s an extreme result—extraction is possible from some models for some works and not others. Most of our experiments measure whether verbatim memorization is occurring; we can get more if we accept small changes like extra spaces or commas in place of semicolons. Sometimes we needed adversarial strategies but sometimes not. None of that work changes model weights, but you can also do that to extract more works.

Jane Ginsburg et al. have shown that fine-tuning on public domain works can reveal memorization from previously-trained-on © works.

So is a model a copy fixed in a tangible medium of expression? That’s still complicated! You can make a copy by storing parts in ones & zeros. But you can’t say that Microsoft Word encodes War & Peace. Models aren’t like either of those things. Some of the memorization isn’t deterministic—you might only get a memorized copy one in 1000 times. Are the other 999 “stored” in the model? That would involve more copies stored than there are atoms in the universe.

Closest examples in existing law: Kelly v. Chicago Park District—garden isn’t fixed b/c it isn’t deterministic; video games where content is generated from a number of fixed options. Micro Star: the new levels aren’t really “in the game.” Nor would we say that all the possibilities currently exist. So maybe the answer is predictability: if the model weights can easily generate the work, functionally there’s a copy in the model. If it’s merely possible to extract the work through effort, it’s not a copy. Why it matters: if there’s a copy in the model, then copying the model is making a copy of the work. Maybe that’s fair use (via intermediate use) but we’d have to figure it out.

Doesn’t love the conclusion, but this is where the empirical evidence leads.

Samuelson for Sigall: you didn’t say much about patents—Whelan might be affected by the idea that patents weren’t available; then patents started becoming available, making thick © less attractive.

Sigall: late 90s was a marriage of two historical trends: if you want to go the IP route for software, patents might be more efficient/useful b/c there’s also a risk with seeking ©. Patents and © come with embedded strategic choices about your business. Book: Capitalism w/o Capital: many of the most successful companies today have intangible assets, not tangible assets—a lot of the benefit is taking advantage of synergies and spillovers in intangible assets. IP can interrupt and interfere w/those synergies & spillovers so it might not be optimal—businesses can capitalize on other aspects instead of IP.

Samuelson for Asay: what do you do w/the Office’s policy requiring you to ID the parts that are AI-generated and disclaim authorship? Will people do that or just pretend that they authored the whole thing?

Asay: Unworkable! Possible that developers will just continue as usual and ignore © complications, slapping license on even if code is AI-generated; that’s somebody else’s problem.

Sag: how do you deal with misuse of your work as evidence that LLMs don’t learn, they copy?

Cooper: Not great feeling! The research I do is careful and the papers are long; that’s not an accurate gloss of what models are doing. But it’s important to do the work to show information about model behavior that we didn’t know before.

Q: is Harry Potter an outlier given how many copies there are online?

A: It’s astonishing still to get a book from a fragmentary prompt; not all models do this and certainly not all the time, but other books can be derived; it’s hard to connect the dots from training data. Tried to do it with Coates’ “The Case for Reparations”—also got that from the same model—it’s very famous but not HP famous.

Cathy Gellis: isn’t © a background assumption for these business models even if you aren’t “relying” on it? If © didn’t exist, would these business models work?

Sigall: it’s a behavioral Q—what behavior is © shaping and it’s certainly possible that affects what businesses do with particular software. It’s there, but the Q is how do you use that fact as a business in your strategic choices? Microsoft housed its antipiracy department in the marketing department, not legal, because the goal wasn’t really to stop piracy but to get them to use Microsoft software. Other industries put antipiracy efforts in legal. Trying to understand actual behavior of users of their works and adapt to that. [This may also be relevant to the shift to streaming video/music!]

Brauneis: suggests that Office’s disclosure form isn’t onerous; doesn’t require you to ID which lines are AI-generated, so you should disclose and figure it out later.

Asay: may be true, but issue in the industry is norms/perceptions about copyrightability—that’s more important to behavior than technicalities of registration. [So what he’s saying is that coders have … always gone on vibes?]

Samuelson: A bit of an old problem with SaaS. Oracle started with a PD work and then made a derivative work from it; trying to sort which parts were protected from which weren’t was already a task.

Bracha: you said that you were wrong about sui generis protection for software because after that didn’t happen, courts rolled up their sleeves and did their job of developing relevant principles. Do you think that courts would do the same thing today?

Samuelson: good point—we sort of got sui generis protection w/in copyright.

Nimmer: works that incorporate works from the USG should in theory disclose that, even if it’s a paragraph quote; they don’t and it’s been a nonissue. So it could also work for AI.

Copyright Act Panel 4: The Shifting Line Between Federal and State Protection

2026-04-16T20:53:22.708-04:00

29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976

R. Anthony Reese, UCI School of Law

Fundamental change: eliminating common-law copyright for unpublished works and unifying the regime at creation. Contemporaries like Ralph Sharp Brown saw it as a huge, pivotal change. Now we take it as easy background principle.

Federal law did provide a cause of action before 1909 for unpublished copying of unpublished manuscripts. But it was a procedural door, not substantive. More significantly, 1909 Act dropped that but did allow certain types of unpublished works to obtain federal © by registration. Categories where works were commonly performed/exhibited rather than being published. Most people think of this as a footnote, but this new option turned out to mark a significant shift in the state/federal protection divide: for lecture, dramatic/musical composition, motion picture, photograph, work of art, drawing.

Registration data 1929-77: 25% of total nonrenewal registrations were for unpublished works. That’s a big deal! Understates importance because of the limit on classes of eligible works. 28% of all registrations were musical works, and 83% of those were unpublished works by 1977 though it took many years to get there. Similar story with drama registrations (88% of those were unpublished). For other classes it was less significant (except for lectures, at 100%); 46% of scientific drawings and 29% of photographs from 1954-1977 that were registered were unpublished.

Office turned down lots of requests to register unpublished books. There was also uncertainty about what constituted publication. And perpetual state law protection through broadcast, performance, and even potentially distributing phonorecords was a worry: owners could economically exploit their works in front of millions w/o a © bargain/any duration endpoint.

Considered alternatives: extend voluntary registration to all classes; make public dissemination not publication the dividing line (“communicating a work to the public visually by any acoustically by any method and in any form); or eliminate state protection for unpublished works and provide federal © from creation. There were various views. Learned Hand favored the middle alternative for undisseminated works, provided there was some time limit on state law protection. Concern w/infinite duration was supplemented w/concern that there was no fair use under state law (which no case ever held but there was speculation), and concerns about evading the compulsory mechanical license.

When they chose the final option, they did not apply any national origin rules; 105 was adjusted to extend to both published and unpublished works of the US gov’t. And of course duration rules had to change; added to the push for life+50 once dissemination could no longer serve as the universal starting point for a fixed term. Had to figure out what to do with pre-1972 sound recordings too; didn’t get taken up into federal © then b/c of larger lack of certainty about the topic.

Unchanged substantive law: © attached automatically on creation, w/o formalities, but publication would enter public domain unless formalities were complied with. Transfers also changed: divisible, writing required, recordation, subject to termination. Improved nonmonetary remedies. Every unpublished work by every person who died long enough ago now enters the public domain—the initial group in 2002 was the largest ever expansion of the public domain. All the statutory limits now apply to unpublished works. Statutory damages and attorneys’ fees for post-infringement registration too. The rights are 106 rights despite suggestions in common law that “any use” would infringe; idea/expression applies despite suggestion in English law that describing the Queen’s unpublished drawings would infringe; transferring the only copy would no longer transfer the ©.

There are still a lot of registrations of unpublished works: 38% of all registrations from 1978-2022. Mostly monographs, 27%; 65% of performing arts, 38% for visual arts; 64% for sound recordings. These registrations are no longer necessary but provide the advantages of registration.

Subsequent developments: clarified that fair use covered unpublished works; resolved split about whether sale of pre-1972 phonographs was publication, for musical works first and then literary/dramatic works. Finally brought pre-1972 sound recordings into sui generis protection, closing the circle/finally removing the last bit of rubble from the 76 Act’s destruction of the wall between published/unpublished works—nothing left for common law copyright to protect in fixed works.

Marketa Trimble, UNLV William S. Boyd School of Law: Would we expect state law diversity? Legislative laboratory?

Some preempted, often after a long time: Cal resale royalties enacted 76, held preempted 2018. NY standardized testing act; PA Feature Motion Picture Fair Business Practices Law. State statutes protecting rights to unfixed performances ok. Also, gov’t edicts doctrine matters to state law—state can’t claim © of materials produced in course of duties of judges and legislatures.

State laws are very outdated. Typically often list “copyrighting,” “causing to be copyrighted,” “acquiring copyright,” or “securing copyright” as distinct acts, rather than “registering.” Plenty of state laws assert “copyright” to state laws, and other types of works such as works developed by a county board of education (CA), data processing software created by gov’t agencies; and geological/topological surveys of PA. Also an Arkansas history textbook; official insignia for MD farm products; highway maps of Ohio; and the Oregon Blue Book—insight into what legislators feel a need to claim.

Since Ga v. Public.Resource.Org, some states have eliminated their provisions—NY, MD, ME, and Montana and OK already didn’t. VA authorizes releasee of all potentially ©able materials under a CC or Open Source Initiative license.

17 USC 1401 specifies that the person who has the exclusive right to reproduce a sound recording under the laws of any State as of the date before the date of enactment is the federal owner of pre-1972 sound recording rights. Recognizes that state laws varied on ownership. But what if the state laws conflict? There is no choice of law provision, and state laws do vary. Mostly it’s the label, whether framed that way in state decisions (CA) or statutes (AZ). WV has a different rule: label unless there’s no written contract, in which case it’s performers.

State law can also enhance protection of authors: Cal law purports to require generative AI developers to post a summary of the datasets used to develop a system, including sources/owners. MD bill prohibits inclusion in contract for state public art a requirement that artist waive moral rights under VARA. Another bill limits admissibility in criminal/juvenile proceedings of uses of “creative expression of a defendant or respondent.” Court is supposed to figure out whether expression was literal or fictional. Not admissible for mens rea, but could be used to decide on referral to mental health services/diversion programs.

Could protect users too, for example by preventing © as means to prevent access to public records: a series of new state bills require, e.g., public access to “learning materials.” Digital lending of e-books; MD’s bill was invalidated as preempted, but CT adopted a new bill prohibiting libraries from entering into contracts or license agreements for ebooks and digital audiobooks that contain certain restrictions.

Some states have considered laws on what demand letters should look like—abuse of rights provisions. And NV has an act creating a requirement for law enforcement agencies to adopt written policies and procedures governing performance of © works by peace officers while on duty. (B/c of a bizarre technique used where cops blasted music in the false belief that this would cause videos of their behavior to be unpostable online.)

Generative AI legislation: owners of the model training/generated content by the person who provides input; NY’s AI transparency for journalism act: disclosure obligation for content accessed by AI developer crawlers, for identity of crawlers.

Last example: help enforcing copyright outside of the US. Wash, LA, Utah—not clear how they fare after recent SCt decisions.

Are state legislators becoming more ambitious? Public becoming more attuned to ©

Guy Rub, Temple University School of Law: Contracts—“breach of contract” was removed from the text of 301, which now needs interpretation. Leg. History says that “equivalent to ©” was intended to be “the clearest and most unequivocal language possible, so as to foreclose any conceivable misinterpretation.” Whoops.

What is so hard about “equivalent”? © is entangled w/state commercial law. Contracts can ignore subject matter, rights, and defenses. Also depends on view of purpose of ©: delicate balance of competing interests of society and authors, v. exclusive right for benefit of authors.

Most common litigated pattern is idea submission; others are B2B transactions. After that there’s a lot of variety—contracting around fair use is extremely rare and mostly limited to reverse engineering. Is a promise an extra element? It’s a formalistic test. Courts also say that not every technical difference will suffice—must create meaningful distinction. Has to be about the nature of the cause of action.

Two approaches: majority: contracts are bilateral and thus not equivalent to property rights; versus minority approach: no, contracts can’t regulate actions that are exclusive rights under ©. ProCD is the most famous majority approach case, but not the first. Most appellate courts adopt it one way or another; only the 6^th Circuit explicitly rejected until recently.

Why so popular? It’s easy to apply and there are no great alternatives. But then the Second Circuit decided the Genius/Google case where Genius had browsewrap saying you can’t scrape; Google won. The contract limits reproduction/public display and is thus equivalent to © and preempted. When Genius sought cert, the SG argued that browsewrap was different (implicitly, not real consent).

Why does it matter? B/c of plenty of other attempts to limit scraping with browsewrap.

Conflict preemption might be the answer! Section 301(a) might ask the wrong question; interference w/the (c) system/obstacle to the goals of Congress. In re Jackson (2d Cir. 2020) (citing yours truly and Jennifer Rothman). Look at what the state is trying to promote: privacy or creativity/commercialization of information? Look at whether there’s harm to (c) law.

X Corp v. Bright Data (ND Cal 2024) found claims based on mining and sale of data are conflict preempted, b/c the interest is monetization, which is the same as ©; the harm is clear b/c it prevents users from commercializing their posts and b/c it circumvents fair use.

Conflict preemption is better than formalism: you can ask whether the contract was individually negotiated; you can ask about market power; you can ask about the purposes of the contract and of the alleged breacher.

Shyamkrishna Balganesh, Columbia Law School (Speaker and Moderator): Hot news had an outsized influence on 301. A misleading account continues to influence how courts talk about misappropriation to this day.

Misappropriation falls into disfavor after INS v. AP: effect of Brandeis’s dissent/Learned Hand’s refusal to expand or adopt the decision along with Erie v. Tompkin’s rejection of general federal common law. But states either through statute or common law began to absorb it. Legislative history suggests that misappropriation is structurally different from © and would allow equity to go down new paths. But the enacted version of the Act doesn’t contain the list containing misappropriation referred to in the legislative history.

Register’s 1965 report saw misappropriation as “the virtual equivalent of ©.” So proposed exclusions for contract, breach of trust, privacy, defamation, and deceptive trade practices, but not misappropriation. Then the Dep’t of Commerce intervened, in the form of a PTO rep, and said misappropriation was important b/c it allows courts to anticipate new areas for development and retain equitable flexibility. But Commerce hadn’t consulted w/other departments. “we have the Dep’t of State disagreeing w/everybody except on the manufacturing clause and now we have the Dep’t of Commerce that takes a different view. Does anyone purport to speak for the administration?” A staffer asks the DOJ to weigh in, and the DOJ is firmly opposed to misappropriation. It would neutralize the logic behind preemption. He says DOJ misrepresented misappropriation as creating antitrust concerns, simulating property rights, and too vague. [Honestly I don’t see that as a misrepresentation!]

Striking the provision’s list in full then eliminates the record of the logic.

There is a fundamental mismatch b/t the House Report and the actual law. Different courts of appeal seeking to resurrect INS in the 80s and 90s unfortunately rely on the old House Report saying that “based on legislative history, it is generally agreed that hot news survives preemption.” NBA v. Motorola. Only corrected in 2011 in Flyonthewall, but it moved to other jurisdictions like Ohio in the meantime, without being corrected there.

If I’d had time, I had a Q for Trimble: what are your thoughts about criminal anti-camcording and anti-copying rules for people who don’t own the masters, including laws making it illegal not to put the name of the actual copy maker on the copies? OCGA § 16-8-60 prohibits transferring “any sounds or visual images … onto any other … article without the consent of the person who owns the master” and separately makes it unlawful to sell any article on which sounds or visual images have been transferred “unless such … article bears the actual name and address of the transferor of the sounds or visual images in a prominent place on its outside face or package.”

Panel 3: The Scope of Exclusive Rights and Modes of Enforcement

2026-04-16T19:24:38.259-04:00

29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976 Copyright Act

Erik Stallman, UC Berkeley Law (Moderator)

Christopher Sprigman, NYU Law: Restatement of ©: assumes perspective of common law court, attentive to and respectful of precedent but not bound by precedents that conflict w/the law as a whole. Reporter is supposed not just to go w/greater numbers of cases but with the better principle, with explanations.

Statute in many central provisions is far from clear or fully prescriptive—Congress left ample room for judicial interpretation: 102(b), 107, rules of secondary liability, standard by which infringement is judged: these are not peripheral, but Congress said next to nothing or even nothing about them. Courts have built an intricate architecture of common law doctrines around the skeleton of the statute over the past 50 years.

It’s ©’s hybrid nature, enabled by spaces left open by Congress, that has kept © vital through huge changes.

Restatement makes use of legislative history as a window on the meaning of statutory language, principally where courts have disagreed. The window can be clouded, and we approach the enterprise w/caution—not the same as rejecting legislative history. Fair use is a good example: commercial/nonprofit distinction is just one facet of analysis of purpose and character, inviting judicial development.

Fair use is “not an infringement of copyright.” What’s the burden? Legislative history: Statutory presumptions/burdens of proof are not justified—the intention was to allow the courts to make individualized decisions. The courts have uniformly held, w/o analysis, that the BOP on fair use is on the defendant. Seems inconsistent w/ statutory language and expectations. Personal view: Reconsideration of this is overdue. Fair use is a scope doctrine about the © owner’s rights in the first instance. It’s ordinarily, for good practical reasons, the defendant’s burden to raise the issue, just as with idea/expression. But the scope issue should then be decided by the court as a matter of law.

Claim about fair use tension w/derivative works have always seemed to him to prove too much. © owner’s exclusive right to prepare derivative works is subject to fair use. Goldsmith: They aren’t mutually exclusive, but neither do they always overlap. To reconcile the statutory provisions, the Court held that the degree of transformation must go beyond that required to create a derivative works, noting that some transformations occur in purpose w/o physical alterations to content of work. Goldsmith: W/transformations that do alter content, to qualify as “transformative” for fair use, the D’s use must involve more than distinguishable variation but must rise to a level to distinguish its purpose & character from that of the purpose & character of the original. Broadly correct.

Oren Bracha, University of Texas at Austin, School of Law: For 40 years, the infringement test has been eroded and dilution, vacated of most of its substantive content, most importantly its central conception that supplied coherence, which existed beforehand. That was the idea of substitution: to infringe, a defendant’s work had to expressively substitute for the plaintiff’s work. Of course there were hard cases but this was an organizing principle that provided meaning.

Courts hollowed out the test from that notion of substitution, leaving us w/a nebulous, frictionless idea of substantial similarity that means very little. Once that happened, the test became unpredictable, arbitrary, etc. It is us, meaning the case law, that did this, and therein lies the problem.

Once that happened, additional unfortunate developments: (1) the very confused and unfortunately more widespread tendency of some courts to describe the infringement test as having an exception for de minimis uses. A confusion of relevant concepts. Once that happened, other courts very quickly understood this as a criterion of unrecognizability: no substantial similarity when it’s de minimis, and it’s de minimis when one can’t recognize the P’s work—a race to the bottom. (2) Alternative infringement tests develop: the quality/quantity 2d Circuit test that applies when the regular test is inapt, that is, when it doesn’t produce the outcome “infringement.”

After we hollow out the meaning of the infringement test, what steps into the vacuum is the fair use doctrine. The idea is simple: if infringement means very little/subjective, you don’t need to worry about it, b/c we can always fix it w/fair use. Don’t even have to do the infringement test! The back end becomes the front end. Warhol v. Goldsmith: substantial similarity became a footnote—ignored by the dct, a sentence at the 2d Circuit, abandoned at the Supreme Court.

Not an enemy of fair use, but this is abnormal and ungood. We’re putting too much burden on the too-narrow shoulders of fair use. We’ve shifted a lot of the burden of scope analysis to fair use. Basic mismatch between its concept and the burden we’re making it bear—at the end it won’t work very well.

Relatedly, courts ignore the difference b/t reproduction & derivative works and don’t bother to tell us which is which. Derivative works is a freewheeling concept—any secondary valuable use of the work—so the boundary is unclear.

Fixes: meaningful infringement test. His would be along the lines of expressive substitution. Once we’ve done that but only once we’ve done that, we should cut fair use down to size. And we should fix the derivative work/reproduction situation: the derivative work right should be a right of making adaptations, not a freewheeling boundaryless idea.

Justin Hughes, Loyola Law School: Contributory liability after Cox: What the hell?

Assumptions inherited from 1909 Act & FRCP—many secondarily liable parties should only be liable for damages. That has produced a major divergence b/t US and other developed economies w/sophisticated © schemes. W/exposure to damages in mind, there were 2 distinct branches of secondary liability—vicarious & contributory. 2d Circuit’s 1963 Shapiro Bernstein case crystallized the vicarious standards outside the employer/employee context: right and ability to supervise plus obvious and direct financial interest in the exploitation of copyrighted materials, even in the absence of knowledge. The House Report added “indirect” to its description of vicarious liability. Meanwhile, contributory liability came from a case about a preparer of a motion picture held liable for the exhibitors’ public performances.

Cox v. Sony: ignored previous case law; contributory liability requires intent that can be shown only by inducement or that the provided service is tailored to the infringement. [FWIW I think that a court could easily find that continuing to host a particular piece of content is tailored to the infringement once there’s been notice of a claim. I think it’s fundamentally different to deal with a series of possibly continuing infringements versus one ongoing infringement.]

Legislative history: used “to authorize” in 106 to avoid any questions about liability of contributory infringers. For example: A person who lawfully acquires an authorized copy of a motion picture could infringe if they engage in the business of renting it to others for unauthorized public performance.

Litman is right: Statutory damages for single infringement is not palatable applied to contributory infringers, and that’s a problem for our system. Big mistake either in the Act or our understanding of it. Other systems permit injunctions against third parties w/o holding them financially responsible.

Fascinated by SCt’s obsession w/making patent & © into kissing cousins. But what about TM and Inwood? [I think it’s bigger than that—the Court wants a trans-substantive rule about equitable doctrines including contributory liability, which is why everyone in Cox was citing Taamneh.]

Laura Heymann, William & Mary Law School: Dividing lines b/t doctrines: Dastar and Star Athletica both don’t give great guides to distinguishing ©/TM and ©/design patent respectively. Maybe that’s the result of unusual facts. Wal-Mart specifically invited rightsowners to use © and design protection while building up secondary meaning required for trade dress rights. Doesn’t favor election, but use of doctrines on back end to deal with end-runs around limits on other rights and use of remedies, such as the apparently revived interest in disclaimers.

Congress could also try a more intentional positive description of the public domain to tell us how that interacts w/other IP doctrines. Another way: Court’s own reasoning when it borrows from patent law. Is Court looking at purposes behind the doctrines it borrows from? We call the field “IP” and try to generate unifying themes, but not clear that Court or Congress keeps those in mind. Is “staple article of commerce” a phrase used to indicate a core doctrinal concept or just a convenient borrowing? Sony v. Universal took pains to distinguish Inwood, rejecting kinship b/t © and TM. Blackmun’s dissent disagreed with the comparison to patent. Path dependence: that borrowing in Sony now goes unexamined in Cox. Not every member of the Court is committed to the project of legal explanation. [That’s one way to say it!]

Q: re burden of proof.

Sprigman: Law is clearly established until it isn’t. We have to prepare the world for what might come next. Our Court is not respectful of precedent and very bound by text. They’re unashamed to disrupt settled expectations [of certain kinds].

Bracha: it would be an improvement; fair use started life as part of the infringement test. It still wouldn’t be a good fit to have fair use as the central mediator of scope.

Discussion of Cox/AI. Heymann points out that questions of who is responsible for infringing outputs will be key, and the Court’s opinion isn’t helpful in categorizing responsibility for direct infringement.

Sprigman: © should stay in its lane (even if Congress is dysfunctional); we’re testing the limits of what courts can do. Maybe labor law, products liability, tax law are more important for AI.

Stallman: maybe patent & © were more convergent before 1976 Act which gave protection on fixation; before that both regimes were oriented around disclosure.

Pam Samuelson: we’re in a bit of a muddle b/c inducement is a separate doctrine in patent law but the Court said, in order to rule as it did in Grokster, that inducement was part of contributory infringement.

Cathy Gellis: Secondary liability is related to the architecture of the internet, where we depend heavily on intermediaries for speech—the First Amendment is therefore quite relevant. Fear of secondary liability has important deterrent effects. If that’s right about underlying concerns, a switch to TM will not change the dynamics.

Panel 2: The Role of the Author and the Acquisition and Duration of Their Rights

2026-04-16T16:06:00.002-04:00

29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976 Copyright Act

Panel 2: The Role of the Author and the Acquisition and Duration of Their Rights

Molly Van Houweling, UC Berkeley Law (Moderator)

Tyler Ochoa, Santa Clara School of Law: why do we have formalities? Path dependence is one big explanation for registration, notice, deposit. If © is designed to incentivize exploitation, then formalities make sense—if you’re willing to create the work regardless, no point in ©; you should do something to claim that © was important to the creation (or distribution). Utilitarian view expressed in 1909 Act. Deposit and registration required for lawsuit in 1909, not pre-publication as in early republic. Domestic manufacturing clause.

1976 Act didn’t make huge changes in its initial form: notice was required for all copies published anywhere in the world, not just in the US, to avoid public domain: an expansion of the notice rule. UCC: notice substituted for other formalities. Failure to affix proper notice placed work in PD, subject to a cure provision. Manufacturing clause was kept, but sunsetted. Deposit/registration required to sue. Biggest single change in 1976 Act was duration. 85% of registered works went into public domain after 28 years, though musical works and motion pictures were heavily renewed (about 2/3). Books: 7%.

No works that received life+75 under the 76 Act have expired. The only works to enter the PD under the Act are pre-76 works that hadn’t yet been published or registered and were still unpublished as of 2002. And there’s still 45 years to go b/c of term extension.

Post-76 change gets most rid of the formalities that were preserved. BCIA: mandatory notice eliminated Mar. 1, 1989. Manufacturing clause expired; registration no longer required for foreign works to sue, though statutory damages/attorneys’ fees still require registration but there’s no technical violation of Berne b/c neither of those are required. VARA gives us something couched in the language of moral rights for the first time, but it requires single/limited edition (requires it to be signed/consecutively numbered, which is a formality). Automatic renewal; copyright restoration; CTEA term extension.

David Nimmer, UCLA School of Law: we have never known which works will still be popular several decades from now. Congress wanted to eliminate the Fred Fisher doctrine allowing assignment in advance of renewal rights. But it wanted to handle contributions to collective/joint works. That required more drafting.

How did that work? Winnie the Pooh termination: The current owner did a recission and regrant, all in one transaction. Nimmer argued that, before they got into that room, there was a termination right, and the agreement was an “agreement to the contrary” that was ineffective to override that termination right. He lost (but thinks he was right, and I definitely see his point). Congress could have allowed this, but the statute is categorical (w/the slight exception of renegotiating with the current owner once the termination notice has been sent). It’s not that he didn’t have authority to sign a contract. But the Supremacy Clause says that termination may be effected notwithstanding any agreement to the contrary. Fred Fisher has been resurrected.

What should we do? All we need are 2 changes: (1) voluntary nature of termination/all of the hoops to jump through make it practically impossible without counsel, and not easy even then. Termination should become automatic. (2) Congress should re-pass the provision about “any agreement” and say it really means it.

Robert Brauneis, GW Law: When does creative work get recognized as authorship? Most obvious exclusion doctrine is WFH; direction of 76 Act is really complicated there. It could be read as author-friendly only in relationship to the “instance and expense” test developed after the grand bargain was penned.

Other doctrines about recognizing creative work as central: fixation; derivative work authorship; joint/co-authorship. Under 1909 Act, phonorecord wasn’t fixation b/c not human perceptible, nor was choreographic work fixed in a visual record. The Office then adopted that requirement for deposit—registration had to be by visual notation and that forms the boundaries of the registered work. Many composers who don’t notate end up never being recognized as authors of the musical works they composed, especially in blues and folk genres.

That changes in terms of using recordings for fixation. But recordings are easier to pass back and forth b/t coauthors; it’s still possible for composers to lose out, but the average number of composers credited has grown a lot—Glynn Lunney says it’s more than doubled in a few decades; Emma Perot said it starts taking off in the 1990s and picks up speed. Possibly some is performers added as a condition of performance; others added because of fears of liability; sampling may also have added composers. Lunney suggests that each songwriter is becoming less productive.

More optimistic possibility: when he investigated “A Little Bird Told Me” from 1949, there was a composer of basic melody/lyrics, there was a lot of collaboration—singer Paula Watson and backup singers went over to his house and worked up new lyrics, a new bassline, a new arrangement & hummed introduction. But the “composer” was singly credited, leaving nothing but session payments for the other collaborators. Today, the others who contributed might have gotten a composition credit. A vanishingly small percentage of revenues today comes from sheet music; the authorship of the recorded version is much more collaborative; the rise in credits may not be less productive songwriters or overreaching of performers, but at least partly that more of the creative contributors are being recognized as authors, and the musical work recognized is “thicker” in that it contains more of the elements that make the work a hit.

1978 is when the legal change of the Act takes effect, and then there’s a change in form of deposit: by the 80s, 80% of applications are accompanied by phonorecord deposits. [What an interesting story!]

Copyright in unauthorized derivative works: the creators are doing something that authors do, but may not be recognized as authors. Protection doesn’t extend to unlawfully used material, and arrangements made for cover version can’t be ©d without permission of original © owner. Melville Nimmer argued that the first provision was inherited from 1909 Act; current edition of treatise says that the statute was ambiguous and the decisions contradictory, and Silbey/Samuelson argue that the text didn’t provide for forfeiture of © in newly added content, making the 76 Act an innovation.

Joint work: Intent to combine is required; designed to overrule precedents allowing music publishers to create joint works by combining music and lyrics written independently, but read much more broadly. Comment in legislative materials: Desirable to reduce as far as possible the situations in which a work is a joint work. Courts seem to have taken that to heart, including both in the 9^th and 2^nd circuits. Resulting problem: dominant creator gets sole ownership when other creators were consciously and intentionally creatively involved—denying authorship status to the creative work that authors do. Litman: courts erase the contributions of “inconvenient” co-creators.

Is the 76 Act to blame, or the courts resisting something outlined in the statute? More of the blame is on judges than on the language in his view.

Peter DiCola, Northwestern Pritzker School of Law: Reforms of the Act did not, and could not, meaningfully help authors given what else was about to happen, that is, consolidation, here in the music industry. Most conversations he has, people think he’s talking about Taylor Swift. But he thinks of the bell curve: a distribution of musicians—Swift is not representative. The industry has literally made sure that some things she’s done will never be possible for any other musician again.

Market demand determines copyright payout. But market demand is also shaped by concentration among companies that deliver content; in the US 4 have 97% of market share in streaming music. 3 major publishers and 3 labels, down from 7 even in past decades. Independent sector claims are often misleading (Spotify claims to send a lot of revenue to them) b/c an artist’s vanity label can be claimed as an indie but distributed by a major. And they’re parts of larger conglomerates. Composers and songwriters/recording artists face very large entities with lots of bargaining power. Recording contracts have become more structurally exploitative—shift to 360 deals where labels “participate” in revenue of artist in other endeavors like tours & t-shirts. Labels have moved to contractual agreement against re-recording, so Swift will be the last unless we restrict those contracts.

Biggest story now: consolidation of entities that retail or deliver music. Wal-Mart used its power to control both pricing and content. Now big companies are negotiating with big companies: oligopolies selling through oligopolies. That’s why Spotify, YouTube, Apple and Amazon are subject to increasing scrutiny and discontent by musicians. © can only deliver economic benefits based on structure of markets into which authors sell. Demand isn’t enough: the market structure is categorically different now from the market structure in 1976: twin oligarchies; tech companies may be willing to sell music at a loss to keep people on the platforms, which hasn’t happened before; Act wasn’t designed w/that kind of music in mind.

Along with antitrust, you could have more default rules prohibiting contracting around. Draft legislation: allowing sectoral bargaining for musicians against streaming companies. Could create authors’ rights to access data about how their works are exploited; transparency in accounting practices.

Biggest new hole in authors’ rights: Spotify’s policy starting 2023 is that they don’t pay royalties on tracks that get less than 1000 streams in the last 12 months. Perlmutter referred to streaming as a huge success compared to the litigation against filesharing, but now we see what happens: having music on Spotify means agreeing that your less successful tracks won’t get any royalties. How do we know what’s happened to the © system? It’s opaque! Don’t take Spotify’s word for it.

Q: are these mostly music-specific?

Brauneis: On coauthorship, there are field-specific practices and many are affected by the law/not in line with the caselaw.

Nimmer: ProCD v. Zeidenberg was bad—circumvented © law; contracts prohibiting soundalikes are systematically trying to defeat the right to make soundalikes, and we should also be hostile to them.

DiCola: we could elevate the negative space of 114(b) into the right of the public.

Ginsburg: who deserves the blame for the exclusion of inconvenient co-authors? It’s the judges! The statute only says intent to merge contributions, not intent to be co-authors. Master mind reasoning is nonsensical! Doctrinally, this is wrong, but it does have the merit of getting rid of the inconvenient co-contributors. If you apply the statute as written, how do you decide who is enough of a contributor to be an author? Should ideas be enough? [I think editing is the classic difficult case unless you bring in reasoning about the social meaning of various roles, and that just helps you with the editor, not with the dramaturg in the next case.]

Brauneis: the courts don’t feel competent to modify the rule that co-authors get equal shares to allocate ownership, so they need to find a rule to prevent people like Jefri Aalmuhammed from being authors. We would have to confront unequal shares—or say that if you didn’t plan for the situation you have to live with the default rule. Both Aalmuhammed & the Second Circuit case are about motion picture companies refusing to do things that they should have done (getting WFH agreements in place).

Ochoa: could have said that everyone in the credits is a co-author, but everyone else signed a WFH agreement, so Aalmuhammed only gets a 1/1000 share, but it made no sense for the Second Circuit to say that the director isn’t a coauthor.

29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976 Copyright Act: Origins of the Copyright Act

2026-04-16T14:16:00.005-04:00

29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976 Copyright Act

[apologies—seriously delayed flight means my notetaking will be bad.]

Panel 1: Origins of the 1976 Copyright Act

Peter Menell, UC Berkeley Law (Speaker and Moderator): Copyright revision was extensive process of negotiation, occurring alongside movement for racial equality. Some view this as a product of back rooms (shows a picture with only white guys in it). 60s and 70s weren’t the kind of “swamp” we have now. Many studies on historical, philosophical, comparative, economic, and other aspects of ©. Recommendations for broad rights in order to deal with the possibility that “a particular use which may seem to have little or no economic impact on the author’s rights today can assume tremendous importance in times to come.” Importantly, removed general limits on nonprofit uses despite concerns of librarians and educators.

Hollywood didn’t “run the table”—there was some movement to protect authors. Work made for hire renegotiated, and termination of transfers made inalienable, but not a huge shift in favor of authors. What about device manufacturers, users, and consumers? Complex interactions, during which computer software emerged. Not overbearing powerful interest groups running the show so much as carefully constructed balances that didn’t substantively favor content owners as much as we might think—no public performance right for sound recordings, because user groups—radio stations and cover artists—got the better of them. Likewise, the glass is half full for device manufacturers, libraries, scholars and teachers on fair use. Scientific publishers were able to block more generous photocopying rules. Jukebox manufacturers got a favorable rule on device royalties—a dying industry, which was part of their argument. 601: printers/organized labor got the manufacturing clause, though it sunsetted. And on cable, cable operators did pretty well. [This is pretty much Jessica Litman’s account in Digital Copyright, framed differently: interest groups that were organized and showed up got exceptions for themselves, but the “balance” was only for those groups; if they didn’t show up then their rights/interests weren’t considered.]

1976 Act was built for a gatekeeper/clearance ecosystem that was quickly disrupted by the Betamax and then the internet. Sometimes the system worked, sometimes not.

Jessica Litman, Michigan Law: Menell describes a continuous sequence of Copyright Office research and review, and then 9 years in Congress during which its proposal mostly survives. She sees more discontinuity. Office sought to do initial drafting relatively insulated from pressure from copyright bar and came up with what it believed would be wise; the © bar hated it and the Office pushed the restart button, encouraging negotiation between groups on the substance and in many instances the language of the revised proposal. The Office kept pretty good control of the drafting pen most of the time during the initial years, and the records of that process, including meetings hosted by LoC, are extremely useful for figuring out what the language was supposed to mean at the time.

Beyond academic interest, what does the intended meaning have to do with the meaning now? There are lots of reasons why that intended meaning might not be much help. Legislative history was seen in the 60s and 70s, and even 80s, as a crucial statutory interpretation tool, and now that’s not the case. Even ignoring that: Congress has made more than 70 amendments over the past 50 years; the crafters of those amendments paid little heed to what the earlier language meant/was intended to mean. And the malleable meaning of particular words is important: “copy” means something in 2026 than in 1966.

What we learn about original intended meaning of the words is of limited use if we’re trying to figure out what the statute means today. These explorations are useful especially for illustrating legislative process, and the history/structure of music, publishing, and consumer electronic businesses as well as teaching in schools and churches, but they don’t necessarily yield citable authority on what the statute “really” means.

Argument: the drafting process is hostile to outsiders who weren’t invited (sometimes b/c they didn’t exist yet). More recently interested in what happened among insiders and whether they got what they wanted. Assumptions about how the law and the world worked that didn’t necessarily hold: future-proofing did require assumptions. There were assumptions about how the parties would treat each other going forward; broken expectations can radically change the balance of what the insiders believed they were agreeing to do.

There were assumptions about law & world that didn’t prove out. They assumed the future would not be sharply distinct—didn’t anticipate breathtaking consolidation of entertainment industry; assumed that computers would continue to be niche devices used by scientists/students; didn’t anticipate consequences of networked computing. Even though they talked about the terrible danger of unlicensed personal uses, they figured they’d be a continuing annoyance rather than existential threat. Thus they didn’t have a statutory instruction on contributory infringement. One reason Sony came out the way it did was the prospect of making Sony pay statutory damages for every third-party infringement.

Unanticipated change in law: the definition of WFH and details of terminations of transfer were settled in April 1965 as the result of hard bargaining among book publishers, music publishers, songwriters, and author group. At the time, courts didn’t treat independent contractors’ works as WFH; creation of work was subject to implied agreement to transfer © to commissioning party. Didn’t need a signed writing b/c federal © had not yet attached on creation. Only significance was then that after the original 28 years applied, the creator could apply for renewal; but since most works weren’t renewed, this wasn’t all that important. The grand compromise on termination and WFH definition was negotiated against this background, adding categories of WFH made by independent contractors to definition. They insisted that any change by Congress would require renegotiation from the ground up, so very little changed.

But then the 9^th and 2^nd Circuit decided cases about independent contractors and found they should be WFH by confusing or conflating the line of cases holding that employers were the legal authors w/the line of cases holding that independent contractors implicitly agreed to copyright transfers. Implicitly, publishers promised that if authors gave initial period of exclusivity and waited and jumped through all the hoops they’d get their rights back. But the promises made in negotiations were never binding or enforceable—no legal authority to bind publishing companies years later. So if statutory language was susceptible of more than one interpretation, it’s hard to blame a publisher from exploiting that ambiguity. So they did! When served a termination notice, publishing companies asserted that they could keep collecting royalties for all previous versions of a song using the derivative works exception to termination. And the Supreme Court agreed. Publishers then argued, against proposed amendment, that the statute had created vested rights from the beginning that couldn’t constitutionally be taken.

It’s hard to think about moral enforceability when the individuals who need to keep the promises are different from the individuals who made the promises. In practice, an author who wants to exercise her termination rights has to jump through hoops and then be prepared to engage in litigation.

Other examples of broken promises exist. What’s the point? We can find out how various interests believed the statute would work, and compare that to our current world, but it’s hard to leverage our understanding of intended application to persuade courts to agree with it today given all the amendments and broken promises.

Useful process lessons: Even when it was new, the 76 Act looked better on paper than it turned out to work in the world. Latent assumptions/promises were weak points that could be and were exploited. Authors aren’t doing well: earning less and fewer choices than they once had. It may be that the late 1970s/early 1980s was a halcyon era, but things have changed. If we want authors to have a stronger hand to play, that’s a really difficult problem. EU takes this seriously and has made unsuccessful efforts in that direction; it’s definitely not a fix it and forget it problem.

The negotiations that gave rise to the revision bill were intense but respectful—trying together to build a workable © act even as they sought advantage. Hard to recognize that world now in the viper pit that is the current © bar.

It turns out to be really important who the Register is. True even though we don’t have much control over who that will be. Barbara Ringer: it’s important for the Register to be able to stand up to all the copyright lawyers for the various interests.

Jane Ginsburg, Columbia Law School

Influence of international law: American exceptionalism was the pre-history, but international norms pervaded the drafting of the 76 Act—Barbara Ringer was very proud of this—shifting from publisher to author as focus.

Universal Copyright Convention/formalities. We made our own international order allowing our 28 year initial term and formalities, but agreeing to reciprocal protection and restricting manufacturing clause so it didn’t preclude copyright for foreign authors’ works. Remaining outside Berne was annoying though.

Comparative law/duration/formalities. Each step made it easier to move toward compliance with the broader Berne regime. UCC revised: Registration, deposit, and domestic manufacturer were no longer required as long as the foreign proprietor complied w/a simplified notice requirement—a two-tier system allowed draconian formalities at home so long as foreign works had the easier system. But that’s unstable: why restrict domestic authors that way while the burden on foreign authors was much lighter? Rule of shorter term also created grumbling: foreign reciprocity was limited by our shorter term.

Misunderstanding about foreign law might have affected WFH status. Claim was that movie studios needed status of author to own all rights abroad. Assumed that foreign nations would accept this divestment of individuals; but France’s highest court spurned our characterization of film producers as authors and gave indefeasible rights to directors against colorization. s

Persistence of American exceptionalism: jukebox exemption; mechanical rights; moral rights; formalities; works made for hire.

Menell: how do we incorporate interests of people who weren’t in the room b/c their industries didn’t exist/how do we have a rule of law without a rule of interpretation? Judges who aren’t experts will struggle w/©.

Litman: in the 70s and 80s judges found legislative history useful. To the extent it wasn’t read by legislators voting, it’s a bit odd to consider it, but we now have a statute that very clearly wasn’t written by legislators—maybe that’s the result of delegation to the Office; doesn’t matter for this purpose. Judges today figure that their job is to look at the text and judicial decisions construing the text. That’s a rule of interpretation; she may not think it’s the wisest rule, but that’s up for debate.

Ginsburg: The rule was that you looked at legislative history when the statute was unclear; the statutory text was never irrelevant! Even aware of its corruptibility/process issues, the text isn’t always clear and judges need help; one place to find that help is the rich legislative history of the Act, possibly less corrupt than some others. But the legislative history of subsequent amendments might be a bit dodgy.

Menell: even strict textualists say that they interpret the statute as of the time the words were put into law, so understanding context remains important. Cox will cause more confusion, but that goes to how our democracy is evolving. Strict textualism is being used by judges who weren’t that sympathetic to the project in the first place.

Tyler Ochoa: © is not the best tool to make up for the near-complete lack of enforcement of antitrust law in the entertainment industry. What were the assumptions about competition and antitrust in the 70s?

Litman: we had many record labels, publishers, studios competing with each other. Black was on the Court and antitrust was almost a constitutional imperative. That’s all changed, so the power dynamics aren’t what they expected.

Menell: network economic theory wasn’t yet developed. Concentration today has benefits to consumers through network effects that weren’t perceived at the time: Spotify is concentrated but has big benefits to consumers.

Litman (in response to Q): International compliance is an excuse. If we’d wanted harmonization, we’d have reduced the term of WFH rather than doing what we did.

Ginsburg: it’s true that the rule of the shorter term kept the 20 years from US authors in Europe, but Litman is right that our term for WFH (75 from publication) was already as long as the extended term in Europe. There were plausible int’l trade reasons for the extension, but zero copyright reasons.

FTC mostly succeeds in avoiding dismissal of claims against Uber; states must replead

2026-04-15T12:19:00.002-04:00

Federal Trade Comm’n v. Uber Technol., Inc., 2026 WL 976077, No. 25-cv-03477-JST (N.D. Cal. Apr. 10, 2026)

Since November 2021, Uber has offered a subscription plan called Uber One, typically $9.99 a month or $96 annually with automatic charging and renewal. The Uber One subscription promises a “$0 Delivery Fee on eligible food, groceries, and more,” other benefits, and the option to “[c]ancel anytime without fees or penalties.” Other marketing claims include that consumers in the United States “[s]ave $25 every month” on average. “Uber uses consumers’ payment information to charge for Uber One, for which some consumers report they never signed up and have no idea why they were charged.”

The FTC alleged that members seeking to cancel their Uber One subscriptions must “take at least 12 to 32 actions,” including sometimes “calling [Uber’s] customer support to cancel, where they experience long wait times and significant delays.”

After navigating through several different screens in the app, consumers encounter a button called “End membership.” Members who click the button must answer a survey about why they seek to cancel, with follow-up questions that vary according to their stated reason. Throughout the process, the button to continue towards cancellation is black with gray or white font (in contrast to the button for keeping Uber One, which is white), and its position relative to other options changes, potentially misleading consumers who might tap the same position on the screen in an unsuccessful attempt to continue cancellation.

“For a significant part of the relevant time period, [the] End Membership button was not visible to any consumers in the final 48 hours of their billing cycle.” Even when they could see it, the app made it more difficult for them to cancel, offering a screen stating that they can keep their memberships active in exchange for savings of “$25 each month.” “[M]any” consumers who tried to decline were looped back to a cancellation survey even when they pressed the button that should have worked and didn’t succeed in cancelling.

The $25 savings screen, presented to consumers attempting to cancel within 48 hours of a new billing period, notifies consumers that their “next scheduled payment may be in process” and directs them to contact support. The FTC alleged that, “[i]n fact, Uber always charged consumers before the supposed billing date and never processed cancellations concluded via the in-app cancellation flow in the final 48-hour window.”

Moreover, “Uber did not provide any contact information for ‘support’ or give any guidance on where to navigate within the app to find ‘support’ for the vast majority of the relevant time period, and only offered the information after receiving notice of the FTC’s investigation.”

Finding where to contact “support” in the app requires navigating to and scrolling to the bottom of several more screens. Members must navigate to a support page, enter a complaint, and then re-navigate to the same page from an earlier screen to view the chat window through which a customer service representative may respond to the cancellation request. However, “even consumers who have found their way to the cancellation support queue have often been unable to promptly cancel or avoid being charged due to excessively long hold times: consumers often report waiting hours or up to a full day to receive a response from Uber, and that they were already billed for the next payment in the interim.” For consumers who reach customer service and cancel during this 48-hour window, Uber confirms cancellation and states that the consumer will not be charged after cancelling, but in fact, Uber always charges these users for one additional month.

Enact click-to-cancel now!

Also, while some materials note that cancellation is “with no additional fees” or “without fees or penalties,” elsewhere Uber discloses in fine print that members must cancel up to 48 hours before the membership renewal date “[t]o avoid charges.”

The FTC sued, along with 22 states, alleging violations of Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. § 45(a), and numerous state laws; violation of the Restore Online Shoppers’ Confidence Act, including failure to provide disclosures of required terms and failure to obtain express informed consent before charges, and failure to provide simple mechanisms for stopping recurring charges. The court mostly upheld the federal claims but wanted more detail on the state law claims, dismissing them without prejudice.

FTC Act: First, the court didn’t resolve whether Rule 9(b) applied because even if it did, the FTC pled with sufficient particularity.

The FTC alleged that Uber’s representation “that consumers may cancel their subscription services at any time with no additional fees” was false because cancellation within 48 hours of the next billing period causes consumers to incur “additional fees” of $9.99 a month or $96 a year. That is, “Uber forces consumers who wish to cancel their subscription to resubscribe for a billing period that has not yet begun and whose benefits they have not yet begun to enjoy. Plaintiff’s theory that advance payment for a subscription that is no longer desired constitutes an ‘additional fee’ is intuitively colorable and Uber provides no authority to the contrary.”

That Uber occasionally, in fine print, warns consumers to cancel before the final 48 hours of the billing period didn’t prevent misleadingness. First, those disclaimers didn’t appear until, at the earliest, the checkout screen for Uber One; earlier in the enrollment flow Uber promises not to charge “additional fees” at cancellation. And fine-print 48-hour-window disclosure was plausibly insufficient to alter the “net impression” created by Uber’s statements that no additional fees are charged. This was additionally supported by allegations that, for trial period subscriptions, Uber bills consumers before the stated billing date—the end of the trial period; that some consumers who were told their subscriptions had been cancelled continued to receive charges for additional months; and that the 48-hour window is expressed in hours, but the billing “date” isn’t, “obfuscating the cutoff for consumers to cancel without incurring a fee.”

However, the FTC didn’t entirely allege the falsity of the claim that Uber One members would “save $25 every month” even though many members do not do so. It was not sufficient that “Uber’s savings claim assumes that the subscription is free; the purported savings does not subtract any costs.” The complaint didn’t allege that $25 was not in fact the average savings enjoyed by Uber One members, even though it alleged several categories of members whose savings fall significantly below $25 a month. And one of the savings representations in the cancellation flow used “could,” which “communicates a possible but uncertain outcome,” along with clarifying that “[e]stimated savings do not include membership price.”

The FTC alleged that the $25 savings representation in the enrollment flow was misleading because it didn’t account for the cost of the subscription and didn’t disclose that; the enrollment flow was plausibly more significant than the cancellation flow. “Because it is possible that reasonable consumers would assume that projected savings account for the subscription cost and Uber has not shown otherwise, the Court will not dismiss this claim.”

The FTC also failed to plausibly allege the falsity/misleadingness of the claim that Uber One members receive “$0 delivery fees.” Uber plainly advertised $0 delivery fees on eligible orders. True, it was apparently “somewhat difficult to ascertain” which orders are in fact “eligible,” requiring a geographic radius, a participating store, and an order minimum that might vary based on the storefront, but “eligible” was “a clear qualifier signaling that only orders meeting certain criteria will qualify for $0 delivery fees. Even if a reasonable consumer may not know which orders will qualify, no reasonable consumer would assume that all orders do so.” Unless no orders were deemed “eligible,” that’s not deceptive.

ROSCA: ROSCA applies to “transaction[s] effected on the Internet through a negative option feature.” A “[n]egative option feature” is “a provision under which the customer’s silence or failure to take an affirmative action to reject goods or services or to cancel the agreement is interpreted by the seller as acceptance of the offer.” Uber’s briefing omitted the key phrase “or to cancel the agreement” in quoting the law, damaging its credibility and refuting its argument that ROSCA didn’t apply because users do not sign up for Uber One through silence or failure to take action.

The complaint alleged that a number of consumers were enrolled in Uber One without their knowledge or consent, which would “unquestionably” constitute a negative option feature.

But even for the others, the ROSCA violations were plausible. The negative option feature arose after sign-up, when consumers in free trials were “automatically enrolled in and charged for an Uber One subscription’ before the end of their free trial period.” There was also automatic renewal by default, a “textbook example of a negative option feature.” “Indeed, a free-to-pay conversion like Uber’s is explicitly identified in ROSCA as employing a negative option feature.”

It was plausible that Uber violated ROSCA by “fail[ing] to clearly and conspicuously disclose before obtaining consumers’ billing information all material transaction terms,” including (1) the recurring nature of Uber One; (2) the “true benefits and savings of an Uber subscription,” (3) the timing of charges; and (4) the method of cancellation.

ROSCA requires disclosure of “all material terms of the transaction before obtaining the consumer’s billing information.” But, in all or nearly all cases, consumers sign up for Uber One after providing billing information to use Uber for a single ride or delivery. The FTC’s argument that there was a per se violation of ROSCA in the timing of the disclosures, regardless of their sufficiency, was plausible. Even if companies can give consumers the option to autofill billing information on file, “ROSCA requires that consumers be given that choice after the disclosures.” In the current purchase flow, the terms show on the same screen that says Uber will charge their preexisting payment method. “Consumers consent to the use of that billing information only in the limited sense that they decline to select the ‘switch’ option to input different billing information.” The result here “might be different if Uber were to give consumers the option to autofill their existing payment information or otherwise affirmatively opt-in to its use.”

Failure to disclose material terms: Although each enrollment method had some kind of notice that Uber One members will incur recurring monthly charges, the FTC alleged that these notices are “in much smaller, lighter, and less prominent font than any other claims on” the same screens. ROSCA requires clear and conspicuous disclosures based both on “visual aspects” of the purported disclosure and the “context” of the transaction. The claim was plausible given the font, and the court was also sympathetic to the FTC’s argument that the “context” of the transaction weighs against the clarity and conspicuousness of the disclosures “because many plaintiffs are enrolled via unsolicited push notifications, pop-ups, and advertisements that appear when they are trying to secure a ride or place a delivery. Courts have observed that consumers do not expect to be enrolled in a subscription when making a one-time purchase, and therefore have little reason to look for fine print notifying them of the subscription.”

Some marketing materials also apparently “obfuscate[d] Uber One’s nature as a recurring subscription service.” E.g., “Love Uber One? Get 50% off 1 year / Save on your Uber One membership” “could mislead a consumer into believing they are already subscribed to Uber One and are merely being offered the chance to continue using Uber at a lower rate.” So too when the app directed a consumer attempting to book a ride to a popup asking them to sign up for Uber One or to “cancel”: “a consumer might believe they must sign up for Uber One or risk cancelling the ride request.”

It was also plausible that Uber failed to clearly and conspicuously disclose the timing of subscription fee charges. Its disclosures were (1) in fine print and (2) plausibly inaccurate, because, as Uber admitted, it charges consumers 48 hours prior to the stated billing date. Thus, “Uber’s disclosure of such dates is not only unhelpful but actively deceptive.” The court also found the timing disclosures “potentially difficult to read given the small size of a smartphone screen.”

And it was plausible that Uber failed to disclose the separate and more onerous method of cancellation consumers seeking to cancel their subscriptions within 48 hours of their renewal date had to use. Uber argued that it always said that users should cancel “in the app.” But, the court noted, “in the app” “provides little guidance given how thoroughly the cancellation button is buried within the app.” Also, “users within the 48-hour window actually cannot cancel within the app, but must instead contact customer service (although that process can be initiated through the app).” “Thus, Uber’s only purported attempt to disclose the cancellation method does not in fact tell users how to cancel.”

The FTC further alleged that Uber didn’t disclose the true benefits and savings: “save $25” could be misleading “insofar as a reasonable consumer believes it to include the subscription price.”

ROSCA also requires that a seller obtain a consumer’s “express informed consent” before charging the consumer. A consumer provides express informed consent if “(1) the website provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms.”

The complaint alleged that some consumers who were charged never signed up at all, and that “others took action to revoke their consent and were charged again anyway, either because of the unreasonably long wait times in the support chat queue or despite the fact that they appeared to have successfully cancelled their subscription.” The FTC wasn’t required to affirmatively plead the precise number of consumers affected by each issue. And Uber’s alleged failure to sufficiently disclose material information would also defeat informed consent. In addition, the FTC alleged that consumers consented to free trial terms under which they will not be charged until the trial ended, only to be charged before that time.

The FTC wasn’t seeking civil penalties under the FTC Act, only under ROSCA, and that’s ok. “[B]efore commencing” any civil action seeking civil penalties, the FTC must provide written notification to and undertake consultation with the Attorney General. Although the complaint didn’t allege that this consultation had occurred, it wasn’t required to plead that; a presumption of regularity applied. (FWIW, though the DOJ has lost the benefit of that presumption, my guess is that the FTC lawyers knew what they were doing.) “If Uber believes that the FTC has failed to comply with [this requirement], it can seek that information during discovery.”

Uber also argued that the plaintiffs failed to plead the requisite knowledge under ROSCA or state statutes, but they did. Under ROSCA, “a business can be liable only if it either knew that the act was unlawful or if it should have known the act was unlawful.”

The allegations were sufficient, including the existence of “more than a dozen actions against other companies under the FTC Act and ROSCA, including for failing to have simple cancellation mechanisms and charging consumers without authorization,” “a public outpouring of complaints about unauthorized charges and difficulty cancelling Uber’s subscription services,”; internal testing conducted by Uber reflecting significant customer confusion regarding the cancellation process; “employee discussions of the problems with Uber’s disclosures,”; and even Uber’s “receipt of a letter from the FTC in September 2024 probing about Uber’s subscription programs, including enrollment and cancellation mechanisms and compliance with ROSCA.” Uber didn’t provide an interpretation of the statute and then explain why its conduct complied with that interpretation or otherwise defeat the plausibility of its knowledge.

The state plaintiffs had Article III standing for some claims, but needed more specific description of the elements of the state law claims.

“When a state sues to vindicate its own direct sovereign or proprietary interests, it need only meet Article III’s standing requirements.” When they assert parens patriae standing, they must also “[1] ‘allege injury to a sufficiently substantial segment of its population,’ [2] ‘articulate an interest apart from the interests of particular private parties,’ and ‘express[es] a quasi-sovereign interest.’ ”

Uber’s alleged violations of the FTC Act, ROSCA, and state statutes didn’t itself interfere with states’ sovereign “power to create and enforce a legal code.” But states also have a sovereign interest “in protecting their marketplaces” from deceptive practices, because “[f]raudulent market conduct has the capacity to degrade faith in the state, chill economic activity, and deter participation in the market.” The complaint sufficiently alleged the latter harm, describing “a public outpouring of complaints” and “significant customer confusion” and explaining that “[c]onsumer confidence is essential to the growth of online commerce” and that “the Internet must provide consumers with clear, accurate information.”

For parens patriae standing, one “helpful indication” was whether the injury to citizens “is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers.” Given that the plaintiff states “have in fact addressed the alleged injury by enacting the consumer protection statutes under which they sue,” they had an interest in the economic well-being of state citizenry, apart from private parties. But it was disputed whether they alleged injury to sufficiently substantial segments of their populations. Allegations that Uber has enrolled more than 28.7 million consumers into Uber One subscriptions weren’t enough without knowing how many lived in the plaintiff states. Thus, they failed to allege parens patriae standing.

Still, they had authority to sue, and to sue in federal court. But the relevant counts didn’t plead the elements of any state law claim. “A cursory listing of [several] states’ statutes is insufficient to satisfy Twombly and Iqbal’s pleading requirements.”

A thin record prevents ruling on a thin copyright

2026-04-10T15:40:00.000-04:00

Viann’K Mansur LLC v. Estiloisabella LLC, 2026 WL 952416, No. H-23-2914 (S.D. Tex. Feb. 26, 2026)

“The parties in this case sell elaborate ball gowns for quinceanera parties, the celebration of a Latin American girl’s fifteenth birthday.” Defendant Etilolsabella LLC, formed by a former employee of plaintiff, allegedly began advertising and selling copies of its “Leonora Dress” (a light blue gown with pink floral surface designs) and “Golden Train Dress” (a crimson gown with gold sequin appliques). Defendant Etilolsabella LLC’s social media accounts featured posts depicting allegedly infringing dresses advertised with various derivatives of “#viannkmansurexclusive.” Defendants argued that they acted in the reasonable belief that they had authority to use the mark due to various permissions plaintiff had previously given.

Copyright: “[W]hen comparators are not overwhelmingly identical or exact matches or the differences edge beyond the superficial, summary judgment is not appropriate because a reasonable juror could find no infringement.” Here, the parties agreed that the only protectable elements of plaintiff’s dresses were the surface design elements—the placement and shape of the sequin or floral appliques that adorn the dresses. The record didn’t show the Leonora dress and the accused dress with enough clarity to enable a substantial similarity analysis. An individual defendant expressly testified that “[i]t’s not exactly the same dress” and that the differences related to the floral appliques, which were the only protectable elements of the Leonora Dress.

plaintiff's Leonora dress

accused use

Meanwhile, the Golden Train dress and the accused dress designs were

far from identical. The Golden Train Dress has single-pointed crenelated edging with deep negative space and additional sequinning on the flounce layers on the sides of the dress. The allegedly infringing dress, on the other hand, has much thicker double-pointed edging with wide scalloped edges and while there is additional sequinning on the train itself, the layered flounces appear unadorned. In other words, these dresses are not “so overwhelmingly identical that no reasonable juror could reach a different conclusion.”

Plaintiff's Golden Train closeup

Plaintiff's Golden Train

Defendant's accused dress

On likely confusion, there were factual issues despite the use of a similar hashtag to an inherently distinctive mark. On intent, given that “[d]efendants paid taxes, rent, and electricity bills on behalf of the Viann’K Mansur brand, … there is a genuine dispute as to whether Defendants had a good faith belief, even if mistaken, that they had permission to use the Viann’K Mansur name.” And there was no evidence of actual confusion. One of defendant’s customers testified that, although she considered making an appointment with Plaintiff, she decided instead to purchase a dress from Defendants after viewing Defendants’ social media post,” but her “conscious choice of Defendants’ brand over Plaintiff’s brand implies her actual awareness of two distinct brands.” And these were “relatively expensive items of custom clothing and purchasing one requires making an in-person appointment with the seller.”

The court didn’t discuss the false advertising claims separately.

Reading list: The Vanishing Enforcer: Consumer Protection in an Era of Dual Retrenchment

2026-04-09T11:07:00.008-04:00

Alisher Juzgenbayev, The Vanishing Enforcer: Consumer Protection in an Era of Dual Retrenchment, 120 Nw. U. L. Rev. 1449 (2026).

Abstract

Recent developments, including reductions in the federal workforce, effective suspension of certain enforcement activities, and attempted centralization of independent agency rulemaking in the White House, have significantly weakened administrative agencies. This administrative retrenchment is concerning as private enforcement of a number of consumer protection statutes has been simultaneously curtailed through the Supreme Court’s decisions in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez, which dramatically narrowed plaintiffs’ standing. These decisions rely in part on a vision of strong executive authority, positing that broad private standing conflicts with an Article II framework where a politically accountable President faithfully implements laws and exercises coordinated enforcement discretion. When the Executive interprets this discretion so expansively as to effectively nullify enforcement of federal statutory schemes, Congress retains few tools to engage in meaningful lawmaking to advance policies across different domains. The Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Bureau (CFPB) offer a telling case study: as courts have systematically restricted private enforcement, particularly class actions, they have channeled enforcement toward the CFPB—theoretically positioning the agency to address systemic violations through enforcement, monitoring, and information gathering. While individual consumers may still access state courts or raise FDCPA violations defensively, addressing systemic violations requires robust administrative enforcement if the Article II justification for restricting private standing is to remain coherent. The possibility for such enforcement now faces mounting challenges from increased politicization of enforcement, executive disempowerment of agencies, and growing judicial skepticism about the propriety of independent agencies and their investigative and interpretative authority. The risk is that some consumer protection statutes will become effectively unenforceable as neither private litigation nor state alternatives can adequately fill the resulting enforcement gap.

court allows Lanham Act claims about allegedly deceptive Amazon product page grouping to proceed

2026-04-09T08:30:00.003-04:00

Corsair Gaming, Inc. v. Choice Electronics Inc., 2025 WL 2822691, No. 5:25-cv-00045-BLF (N.D. Cal. Oct. 3, 2025)

There seem to be a couple of these cases out there. Corsair sells computer and gaming products under the “CORSAIR” brand; subsidiary Corsair Memory is the trademark registrant for “CORSAIR” for its products. US products are protected by a limited warranty, which by its terms is restricted to Corsair products purchased either directly through Corsair or an authorized t reseller. Both Corsair and Choice sell the products on Amazon through their respective Amazon storefronts.

Amazon allegedly permits vendors and third-party sellers to create “variation” relationships between substantially similar products that differ only in specific, narrow ways. A product detail page will display each product in the variation relationship as an alternative. “Owing to the close similarity of products within a variation relationship, the product detail page displays the total number of ratings and the average star rating for all products in a given variation relationship. For example, a product detail page for a shirt may offer for sale the same shirt design in various colors and sizes, displaying the total number of ratings and average star rating for the shirt across the range of colors and sizes offered.” To avoid consumer confusion, Amazon allegedly prohibits vendors from grouping together fundamentally different products within the same variation relationship.

Corsair initially sued Choice for violations of the Lanham Act and the California UCL, alleging that, though Choice isn’t an authorized reseller, it represented “that the Corsair products it offers for sale on Amazon are ‘new’ despite the fact that they are used, closed out, liquidated, counterfeit, and/or non-genuine product of unknown origin.” This opinion dealt only with the counterclaims for trademark invalidity and false advertising.

Choice sufficiently alleged that Corsair Memory abandoned the CORSAIR Mark because its “naked licensing and/or uncontrolled acquiescence of Corsair Gaming’s use of the CORSAIR trademarks has caused the marks to lose trademark significance, and as a consequence, the public no longer associates these marks with a single source of goods or services.” Corsair argued that this claim failed because Corsair and Corsair Memory are related entities. “While it is of course true that use by a trademark registrant’s related company inures to the benefit of the trademark registrant (and thus does not result in abandonment), the term ‘related company’ is specifically defined as ‘any person whose use of a mark is controlled by the owner of the mark with respect to the nature and quality of the goods or services on or in connection with which the mark is used.’” Thus, the corporate relationship alone was insufficient on its own to preclude abandonment; discovery would bear out the facts.

Lanham Act false advertising counterclaims: Choice alleged that Corsair “knowingly manipulates Amazon listings in order to show inflated and unwarranted reviews for its products by misleadingly listing new products as ‘variations’ of pre-existing products, instead of creating new listings for new products,” causing consumers to be “deceived and confused into believing that Corsair Products have amassed significant amounts of positive reviews and high ratings, when, in fact, such reviews and ratings merely relate to a prior product.”

This was plausible on a motion to dismiss. Choice alleged standing through direct competition in the sale of Corsair products. It further alleged that customers wrongly believe the accumulated reviews for the older products belong to, or otherwise endorse, a substantially different product. That sufficed to allege harm. Corsair argued that there was no redressability because Amazon controls the product pages, but the counterclaims specifically alleged that vendors like Corsair Gaming exert control over the variation relationships. And, even assuming that Rule 9(b) applied, the counterclaim sufficiently specified “how Corsair has allegedly created a variation relationship between three different computer monitors despite substantial technological differences.”

UCL unfair competition/NY GBL deceptive business practices: Sufficiently pled with respect to the same conduct covered by the Lanham Act, but not for Corsair’s allegedly unlawful warranty restrictions because Choice didn’t explain how the warranty harmed it. The allegations that “the purportedly unenforceable Corsair Warranty misleads consumers by creating the false impression that Corsair Products purchased through Choice’s Amazon storefront are not subject to the same protections and thus has ‘discouraged and dissuaded consumers from purchasing genuine Corsair Products from Choice Electronics’” were conclusory and wholly speculative.

Likewise, while Choice could refer to state and federal law for its UCL claims, it couldn’t use a violation of section 369-b of the New York GBL as the predicate violation for an “unlawful” UCL claim, because New York wanted only the NY AG to be able to enforce that law. That provision makes unlawful certain warranty restrictions such as those allegedly at issue here.

prefacing statements with "allegedly" or calling them "estimates" doesn't make them nonfalsifiable opinion

2026-04-09T08:16:00.000-04:00

V Shred, LLC v. Kramer, 2026 WL 895614, No. 2:25-cv-01341-CDS-DJA (D. Nev. Apr. 1, 2026)

V Shred is a health and wellness company specializing in “online exercise training programs, exercise apparel, and nutritional supplements.”

Kramer is a social media influencer with millions of followers who promotes “online exercise training programs, exercise apparel, and nutritional supplements” and allegedly directly competes with V Shred.

V Shred sued for Lanham Act false advertising, alleging among other things that Kramer uses the catch phrase “Fuck V Shred” on his social media profiles as “a discount code consumers can use” for products promoted by Kramer.

The court found that the complaint alleged some provably false statements, while others weren’t identified specifically enough (though the court granted leave to amend).

As to a video titled “Mini Golf With V Shred in Las Vegas,” it was not enough to allege that this was false because V Shred was not present or in any way associated with the video. “Here, there was no unauthorized use of an image, but rather there was merely a tagline reference to V Shred. The leap from using a tagline to arguing that it equates to promoting the defendant’s products is not plausible. Here, as alleged, there were no products offered for sale and V Shred was not even discussed in the video.” Dismissed with prejudice.

As to an appearance on the “TSL Time” podcast, Kramer allegedly falsely stated “the company of V Shred isn’t owned by a health and wellness company. It’s owned by a marketing agency. Just a bunch of marketing dudes”; he also allegedly stated that V Shred “is a ‘cancer,’ ” “sells ‘crash diets,’ ” that “[principal] Sant is an ‘actor’ who ‘doesn’t know what the fuck he’s talk about,’ ” and that he plans to “knock the legs out from under [V Shred] because they are a garbage company.” He also allegedly falsely stated that V Shred has “1,200 or 1,300 complaints filed with the Better Business Bureau this past year alone.”

Kramer argued that his statements about ownership were nonfalsifiable opinion, and that his claims about the BBB complaints were an estimate “based on memory.” The court found that both statements were falsifiable, and because he allegedly promoted his own products instead, they could be a commercial advertisement. The “estimate” defense “is essentially an admission that the BBB statements were indeed demonstrably false.”

Finally, Kramer allegedly posted a video stating that “they only pay their coaches $9 per client.” V Shred alleged this statement was false because they pay their coaches different amounts for different types of plans. The qualifier “allegedly” did not save this statement from falsifiability. This was also plausibly an ad; Kramer spent 58 of the 93-second video criticizing V Shred before promoting his own company and attempting to recruit customers, including that he will pay his coaches “double the market standard.”

two cases reach opposite results over whether "health" claims are misleading if products are lead-contaminated

2026-04-08T10:50:00.001-04:00

Lopez v. Mead Johnson Nutrition Co., 2026 WL 788492, No. 24-cv-03573-HSG (N.D. Cal. Mar. 20, 2026)

Lopez alleged that Mead infant formulas’ packaging contains deceptive statements that imply that they are generally nutritious and have “no detrimental, harmful, or genetically engineered ingredients.” For example, the challenged labels state that the formulas are “brain building” or “support[ ] brain... development,” and are “recommended” or “trusted” by experts and pediatricians. Others contain statements that the formulas promote immune health, bone health; eye health; were inspired by breast milk; and do not contain artificial colors, flavors, sweeteners, or growth hormones. But independent testing allegedly revealed a presence of arsenic, cadmium, or lead in each of the formulas, and that other infant formulas may be manufactured without detectable levels of heavy metals. She also alleged that consumer surveys revealed that people would expect a company to test for those substances and disclose whether “detectable levels” were found, and that consumers would understand the formulas’ packaging to imply there were no heavy metals.

The court disagreed, although it rejected Mead’s primary jurisdiction argument and arguments that Lopez couldn’t sue over products with different ingredients from those she purchased (there are milk-based, soy-based or amino-based options), because they were substantially similar in the relevant characteristics to the products she did purchase.

Lopez did fail to plead that damages would insufficiently compensate her for the alleged overpayment, so her restitution and disgorgement claims failed.

More importantly, her UCL, FAL, and CLRA claims failed. She didn’t allege that any of Mead’s claims were literally false, but rather that “each challenged statement speaks directly to the quality and nutritional benefits of the Products” without mentioning the potential presence of heavy metals. “[T]his argument is based on implausible assertions about what a reasonable consumer would understand the challenged representation to say about the Products…. There is nothing that logically connects an expert’s recommendation or the presence of certain substances in an infant formula with the absence of some other substance.” [Would an expert really recommend feeding a baby cadmium and lead?]

The survey didn’t help. Over 91 percent of a subset of parents answered “yes” to the questions “Do you expect a company to test for arsenic, cadmium, lead, and/or mercury in infant formula that will be fed to infants?” and “Would you expect a company to disclose if there were detectible levels, or risk, of arsenic, cadmium, lead, and/or mercury in an infant formula?” And 77 percent of consumers would not “expect arsenic, cadmium, lead, and/or mercury in the infant formula” after seeing the label. “But these generalized questions to an undisclosed number of people, detached from any legal standard, fail to support the plausibility of Plaintiff’s reasonable consumer allegation.”

Nor did Lopez plead that Mead has a “duty to disclose” because the suppressed facts are “contrary to a representation actually made by the defendant.” The challenged statements read together didn’t represent that the products didn’t contain any detectable levels of heavy metals. “It is not enough for the disclosure to only provide more information about the product.” This defeated all the claims.

Meanwhile: The Court directed defense counsel to show cause why they should not be sanctioned for including a non-existent quotation from Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225 (9th Cir. 2019). The required response indicated that the quote was actually from a district court case that cited Becerra whose citation was inadvertently deleted. The filing included a screenshot purporting to show that counsel had previously accessed that district court case on Westlaw and specifically disavowed any generative AI use, which was clearly part of the court’s suspicions. “Counsel for Mead Johnson apologizes for the mistake and has informed Mead Johnson of both this error and the Court’s Order.”

Pellegrino v. Procter & Gamble Co., 2026 WL 880573, No. 23-CV-10631 (KMK) (S.D.N.Y. Mar. 31, 2026)

Plaintiffs brought claims under New York General Business Law §§ 349 and 350, New York Agriculture and Markets Law § 199-a, and negligence per se based on P&G’s marketing of Metamucil, a psyllium fiber supplement.

Plaintiffs alleged that “[t]he labels on the Products suggest ... that [they] are generally healthy and safe for consumption and provide specific health benefits ....” and that they “have been inspected and sealed to ensure each is safe for human consumption” and free from tampering. P&G’s website has a dedicated “Product Safety” section, which discusses the “rigorous safety process” it uses “to analyze every ingredient” used in its products and claims to “go beyond regulatory compliance to ensure every ingredient’s safety through a four-step, science-based process” used by various regulatory agencies, including “US FDA, [the] EPA, the EU, the WHO, and others.” P&G “reassures consumers it ‘define[s] the safe range of every ingredient’ by ‘apply[ing] the same science-based approach as regulatory agencies around the world.’ ” The website specifically states that it does not use “[h]eavy metals” such as “[a]rsenic, [l]ead, [and] [c]hromium” as ingredients in its products.

But the products allegedly “contain dangerous amounts of the heavy metal lead[,]” supported by the results of “[i]ndependent laboratory testing completed in July 2023 by an ISO-accredited laboratory.” P&G allegedly knew this since 2021, when “Consumer Lab published a report concerning the lead content of various psyllium fiber supplements, showing up to 14.6 μg of lead per serving in Metamucil Sugar Free Orange Flavored.”

P&G argued that plaintiffs didn’t allege facts sufficient to show that the products they purchased actually contained dangerous amounts of lead. The court agreed in part; it didn’t think there was enough detail in most of the independent testing allegations.

“To validly assert an injury under a price-premium theory, a plaintiff must ‘allege[ ] facts demonstrating it is at least plausible that a plaintiff purchased a misbranded product.’ ” Plaintiffs can test the products they personally purchased, but “[c]aselaw in this Circuit recognizes ... that it may not always be possible to test the actual product purchased by a plaintiff.”

John v. Whole Foods Mktg. Grp., 858 F.3d 732 (2d Cir. 2017), accepted the results of a third-party investigation, which found the defendant’s pre-packaged foods were mislabeled 89% of the time. “[T]he samples in the independent investigation included the particular type of products that the plaintiff bought from the two store locations where he bought the products during the same time period in which the plaintiff made his purchases.” John requires plaintiffs to “meaningfully link the results of their independent testing to the product actually purchased.” This can be done, for example, “by showing that the mislabeling was systematic and routine.” Relevant factors include temporal proximity, geographic proximity of the testing to the plaintiff’s purchases, the number of samples tested, and the name and testing methodology of the tester. “The pleading also should disclose the number of samples tested, and the testing should involve more than a small number.”

Only one plaintiff’s claims survived this inquiry. The court declined to dismiss those claims on the grounds that plaintiffs didn’t show that the amount of lead was dangerous: what constitutes too much lead is a fact question, and plaintiffs alleged that “[t]here is no level of exposure to lead that is known to be without harmful effects” and “[t]here is no known safe blood lead concentration.”

P&G argued that “[s]everal of the representations Plaintiffs challenge are structure/function claims that are authorized by the [Federal Food, Drug, and Cosmetics Act (the “FDCA”),]” which “expressly preempts Plaintiffs’ attempt to attack these structure/function claims as deceptive under state law.” The Second Circuit hasn’t weighed in on the relevant preemption provision, but the court here applied the rule that “there are two ways plaintiffs may escape preemption under that provision: (1) if their claims seek to impose requirements that are identical to those imposed by the FDCA; or (2) if the requirements plaintiffs seek to impose are not with respect to the sort described in [that part of the statute].”

Plaintiffs do not assert that Defendant failed to adhere to the labeling requirements posed by the FDCA, nor do they quarrel with the effectiveness of the Products or the primary ingredients that are in the Products. Instead, Plaintiffs claim that the representations Defendant made about the Products are false and misleading because the Products contain undisclosed amounts of lead…. Because “Plaintiffs’ argument is that the representations Defendant has made about its Products are false and misleading, ... Plaintiffs do not attempt to impose any additional requirements on Defendant other than those already imposed by the [FDCA].”

The issue wasn’t whether the structure/function claims were false in the abstract, but whether these products were contaminated with lead.

Stating a claim under GBL §§ 349 and 350: Plaintiffs alleged that various statements on the Products’ packaging “suggest to reasonable consumers that the Products are generally healthy and safe for consumption[ ] and provide specific health benefits,” but these “statements and suggestions ... are false and misleading because the Products’ high lead content means the Products are, in fact, neither healthy nor safe for regular consumption.”

P&G argued that the challenged statements didn’t explicitly say the Products are healthy and safe for consumption and “courts have rejected efforts like Plaintiffs’ to ‘allege[ ] that a consumer will read a true statement on a package and will then ... assume things about the products other than what the statement actually says.’ ”

But the reasonable consumer test is usually a question of fact unless a plaintiff’s proposed reading is “patently implausible and unrealistic.” So the court proceeded to evaluate specific package statements.

“#1 Doctor Recommended Brand”: Bates v. Abbott Lab’ys, 727 F. Supp. 3d 194 (N.D.N.Y. 2024), aff’d, No. 24-CV-919, 2025 WL 65668 (2d Cir. Jan. 10, 2025) (summary order), rejected an argument “#1 Doctor Recommended Brand” was actionable under the GBL because the product—a nutrition drink—had added sugar. But “[a] consumer who agrees that any added sugar in a nutrition drink undermines its health benefits can obtain that information from the label,” which listed sugar as an ingredient, so “#1 Doctor Recommended Brand” was not misleading. But “the deception alleged here is different in kind than that alleged in Bates, both in terms of the scope of the omission (some disclosure about the sugar versus none about the lead) and the danger presented by the ingredient at issue (lead versus sugar). And, this difference is dispositive because the complete failure to mention the presence of a harmful substance such as lead makes any claim about the Products’ brand being doctor recommended plausibly misleading since it suggests that ‘the Products have been evaluated and approved by doctors as healthy and safe when taken as directed.’”

However, it was not plausible that claims that the packaging was tamper-evident misled reasonable consumers by “reassur[ing] [them] that a product is free from toxic adulterants like lead.” This wasn’t a case about tampering.

So too with the “Better Choices for Life” statement that appears as part of the American Diabetes Association seal on the packaging. When viewed in context of the logo in which it appears, no reasonable consumer could read “Better Choices for Life” as anything other than an endorsement by the American Diabetes Association.

“Helps Support: Appetite Control* ... [and] Digestive Health*”: Even though the challenged statement refers to “the specific effects of consuming fiber” and not the overall ingredients, deceptiveness was a fact question.

Omission: P&G argued that, because a March 2021 Consumer Lab report revealed that lead was found in various Metamucil products, plaintiffs couldn’t allege that its presence was “material information” that was exclusively within P&G’s control. Some courts interpreting NY law have gone so far as to require plaintiffs to plausibly allege they “could not ‘reasonably have obtained the [omitted] information[,]’ ” with “[o]ne example—though not the only example—of how to meet that standard is if the defendant ‘alone possesses [the omitted] information.’ ” Figuring out whether the information was discoverable by a reasonable consumer would require factual development.

"carbon neutral" not plausibly misleading where D bought offsets from 3d-party certifiers, despite methodological disputes

2026-04-08T08:51:00.000-04:00

Bell v. R.J. Reynolds Vapor Co., 2026 WL 915295, No. 25-cv-04521-TLT (N.D. Cal. Feb. 20, 2026)

Bell brought the usual California claims based on RJR’s alleged misrepresentation of its products’ carbon neutrality. The court dismissed the complaint.

RJR labeled its Vuse as the “first carbon neutral vape brand,” based on the purchase of carbon-offset credits created from projects that aimed to reduce their carbon emissions. RJR purchased credits through certification by third-party organizations such as Verra and Vertis, mostly reforestation and forest protection projects between 2021 and 2024. Bell alleged that these projects “do not provide genuine, additional carbon reductions” because “forestry activities that would have occurred anyway” or lands were “already at minimal risk of deforestation.” The complaint alleged both consumer surveys and confirmation of the lack of impact through publicly available data, news reports, project documentation, satellite imagery, and third-party evaluations.

Bell’s price premium theory properly alleged standing, but that was it. There’s no statutory definition of “carbon neutrality.” “Merriam-Webster provides a dual definition for the term as (1) having or resulting in no net addition of carbon dioxide to the atmosphere; or (2) counterbalancing the emission of carbon dioxide with carbon-offsets.” And plaintiffs failed to plausibly allege that a reasonable consumer would adopt an interpretation that carbon neutrality must mean no additional carbon emissions to the atmosphere and that RJR must have conducted an independent, primary-source verification of the carbon-offset project. RJR truthfully disclosed its reliance on the third-party verification. “The third parties are allegedly independent organizations that have operated for decades and manage leading standards in the global carbon market.” Though Bell disagreed, disagreements over “statistical methodology and study design” are generally insufficient to allege a materially false statement. Although Bell alleged consumer surveys and studies showing that a significant portion of consumers prefer carbon-neutral products, the complaint failed to plausibly allege how these consumers would reject third-party certifications. “Given the complexity of carbon emission and the fact that Defendants explicitly described achieving carbon neutrality through third-party certifications that further described how underlying projects achieve offsetting carbon emission, the Court finds that a reasonable consumer would not view Defendants’ conduct as inherently counterfactual nor unreasonable.”

the continuing merger of TM and the right of publicity: court can't tell the defenses apart

2026-04-08T08:42:00.003-04:00

Upper Deck Co. v. Pixels.com LLC, No. 3:24-cv-00923-BAS-DEB, 2026 WL 776227 (S.D. Cal. March 19, 2026)

Eric Goldman’s discussion. Upper Deck makes sports memorabilia (including sports player trading cards), and has exclusive licensing agreements with various athletes, including famous basketball player Michael Jordan, to use their names, images, and likenesses. Pixels is an online company, selling print-on-demand décor, photographs, wall art, prints, and other similar products. Pixel allows people to upload images and to sell physical prints of those images on its sites. Those included framed prints of Upper Deck’s trading cards featuring Jordan, and other prints displaying Jordan’s likeness. Upper Deck sued for false affiliation/endorsement, false advertising, and unfair competition; trademark dilution; trademark infringement; and right of publicity claims. The court mostly allowed the claims to proceed, with some subtractions.

Those subtractions included the dilution claim: Upper Deck’s registered hologram mark was not sufficiently famous among the general consuming public. However, trademark infringement claims based on the use of (non-hologram) reproductions of the hologram mark survived, despite Pixels’ argument that the one product containing the Upper Deck Hologram Mark listed on its website was never actually sold. Also, a copy of the 1986-87 Fleer Michael Jordan Rookie Card was sold at an auction for $840,000, while the framed print of that card offered for sale on Pixels’ website was priced at $70.

The same result occurred for Lanham Act false advertising and false affiliation claims based on Pixels’ advertisement and sale of products displaying Jordan’s trademarks on its website.

False advertising: The court found that Upper Deck identified a “false statement of fact” by Pixels in a “commercial advertisement about its own or another’s product,” via Pixels’ advertising of products containing Jordan’s trademarks on its website. The court analogized to the use of a kosher certification mark, which doesn’t seem to be analogous in materiality terms. Also, “the fact that some of the images are accompanied by the names of the persons uploading the images on Pixels website does not undermine the misleading nature of Pixels’ use of Jordan’s trademarks in advertising its products.” No further explanation.

False association: “To establish proximate cause for false association claims, it is sufficient to demonstrate misuse of the relevant mark is likely to cause consumer confusion.” No materiality or harm requirement.

Upper Deck, as licensee for Jordan’s publicity rights, was also able to bring its publicity rights claims, including a publicity rights violation as a predicate violation for UCL claims (if there was no adequate remedy at law).

There were statute of limitations issues. The analogous limitations period for Lanham Act violations in California is four years; two years for the common law right of publicity; and four years for the statutory right of publicity, statutory unfair competition, and common law unfair competition. The specific images that fall within those time frames could be addressed by motions in limine.

I often tell my students that courts interpret the federal and state dilution laws as closely together as they can (with the partial exception of fame) because no one wants to do two dilution analyses, no matter whether the laws are written differently. I predicted that this would also become true of post-JDI Rogers/right of publicity defenses and here I am proven right: Apparently unable to recognize that, in theory, Rogers is the Ninth Circuit test for First Amendment limits on trademark and transformativeness is the Ninth Circuit test for First Amendment limits on the right of publicity, the court here rejects them both because Pixels is supposedly making trademark use of Upper Deck’s marks (that is, the basis recognized by JDI, but until now not part of transformativeness). And it does so because … Upper Deck’s trademarks, including Michael Jordan’s likeness, appear in the images and are thus serving as source indicators. “The pictures and photographs of Jordan displayed in Pixels’ products at issue in this action are source-identifying insofar as they contain Jordan’s Marks.” Bad reasoning all around. Pixels could still argue expressive use “insofar as it is relevant to the likelihood of confusion analysis at trial.” But ROP violations don’t require confusion—so I guess Pixels just loses?

CDA 230: Pixels is a “publisher or speaker” for advertising and curating content on its websites, but not for selling and distributing physical products. “Pixels does not create the illicit images of products uploaded and displayed on its site, and Pixels’ website search engine and content filtering tools do not contribute to the creation of those products.” This gets rid of display-only ROP and other state law violations (because the Ninth Circuit says state-law ROP claims aren’t exempted IP claims), but keeps the rest (e.g., claims based on Pixels’ contracting with vendors to manufacture and ship products, facilitating product returns, and offering a money-back guarantee).

Washington Supreme Court rejects private standing for discount misrepresentations

2026-04-08T08:06:00.000-04:00

Montes v. Sparc Group LLC, 2026 WL 900481, No. 104162-4, --- P.3d ----, 2026 WL 900481 (Wash. Apr. 2, 2026)

Interpreting the Washington Consumer Protection Act, the state supreme court held, over a dissent, that buying products that are falsely advertised as discounted doesn’t cause actionable injury if the products aren’t worth less than was paid for them. This answered a question certified by the 9^th Circuit. (California law is otherwise.)

“Any person who is injured in his or her business or property” may sue to enforce the CPA. Only economic losses count as injuries to “business or property” under the CPA—noneconomic losses, such as “personal injury, ‘mental distress, embarrassment, and inconvenience,’ ” do not count.

Montes alleged that she purchased $6.00 leggings at their advertised $6.00 price because they were discounted from the advertised regular price of $12.50; but in fact the leggings had rarely sold for $12.50. Since she received the product she sought to obtain, and didn’t allege that its non-price qualities differed from those advertised, she had no claim even if the reason for her purchase was that the seller misrepresented the product’s price history.

The court rejected three theories of injury: (1) the class “would not have purchased the items at the prices they paid had they known the items had not been regularly offered at the higher list price” (the “purchase price” theory); (2) they didn’t receive the benefit of the bargain: they “did not enjoy the actual discounts Aéropostale represented and promised them”; and (3) the deceptive pricing scheme inflated demand, which in turn inflated prices: “[b]ut for the false advertising scheme, Aéropostale would have had to charge less money for its products in order to enjoy the same level of demand for its products.” These were just disappointed expectations. “Without more, the mere fact of a retail transaction does not imply economic loss.”

The majority followed the New Jersey Supreme Court: “even though Aéropostale’s alleged practices violated the state’s CFA, even though those practices violated a specific state regulation barring false discount advertising, and even though New Jersey consumer protection law recognizes the purchase price and benefit of the bargain theories of loss, plaintiffs failed to establish that the violation caused an ascertainable loss under either of those theories.” The AG could act, but not a private plaintiff.

And the complaint’s allegations didn’t support the theory that the deceptive pricing scheme inflated the market price of the leggings she bought. Plaintiff conceded the leggings had the monetary value that she paid for them: “the Leggings that Ms. Montes received had an actual value of between $5.00 and $6.00—the price range Aéropostale regularly offered them for sale.”

The dissent would have read the CPA more broadly. Montes could establish injury through a “price premium” theory by proving that the deceptive or misleading price history artificially increased demand for the leggings, causing an increase in the product’s market price. “The Ninth Circuit does not ask us whether Montes will prevail in her CPA claim, specifically whether she can quantify and prove damages. The majority imports a requirement for such proof into its injury analysis and in doing so narrows the scope of cognizable injuries under the CPA”:

Taking the allegations in the complaint as true, Montes would not have spent $6 on this pair of leggings if she had known the product’s true price history. To view this as a pure causation question would “render absurd conclusions” because it is Aéropostale’s affirmative misrepresentation that led Montes to purchase the leggings, and it is the purchase itself that constitutes a cognizable injury in these circumstances. Stated differently, Montes’s property interest was diminished because Aéropostale’s misrepresentation prevented her from, for instance, spending $6 elsewhere on another item; she is not required to prove that the leggings are not worth $6.

Beyond the Dog's tactics in employment dispute may have been beyond the pale

2026-04-07T10:49:00.000-04:00

Beyond The Dog, LLC v. Salzer, 2026 WL 884140, No. 3:24-cv-1439 (VAB) (D. Conn. Mar. 31, 2026)

Plaintiffs (BTD) sued defendants Salzer and Canine Behavioral Blueprints, LLC over a failed working relationship, resulting in claims for trade secret misappropriation, breach of contract, unjust enrichment, unfair competition, and related counterclaims. I’m going to focus on the advertising-related claims, but some breach of contract claims survive for trial.

Beyond the Dog is a Missouri dog-training business. Dr. Salzer signed its Trainer Non-Compete Agreement /Employment Agreement, which contained restrictive covenants, confidentiality provisions, and a carveout for “[a]ctivities solely for academic purposes and not-for-profit.” During her employment, plaintiff Echterling-Savage supervised Salzer and worked with her on dissertation-related research. The dissertation was published through the University of Kansas. The relationship deteriorated after Salzer moved to Connecticut, started working with a local SPCA and a business called Our Companions, and opened Canine Behavioral Blueprints (CBB).

Plaintiffs took steps to protect contractual and confidentiality interests they believed remained in effect, including sending a letter to the MSPCA, communicating with a third party about CBB, and attending a public Our Companions seminar presented by Salzer. This allegedly interfered with Salzer’s professional opportunities and contributed to the cancellation of her lecture series and the end of her work with Our Companions.

If you want to know how this litigation is going: Previously, the court granted a preliminary injunction against plaintiffs’ use of agents to pretend to be potential clients of defendants in order to obtain defendants’ business documents, or any other covert corporate espionage activities; communication with the MSPCA and Our Companions or with any other of Salzer’s employers or business relationships regarding Dr. Salzer or the claims of this litigation except for the purposes of discovery; or following, or engaging agents to follow, Salzer, park outside her house, places of employment, or at her clients’ houses, or otherwise communicating or speaking with Salzer; telling any third party that Salzer breached her contract with Beyond the Dog or misappropriated trade secrets or confidential information; and “initiating or otherwise promoting further proceedings with the University of Kansas regarding the issues of this litigation.”

Common-law unfair competition under Missouri law: This requires passing off. Here the allegations were, in essence, reverse passing off, and Dastar has much to say. [Although Dastar was federal law specifically interpreting the word “origin” in the Lanham Act, its rationale supports the idea that state laws are preempted by copyright if they don’t follow Dastar.]

Beyond the Dog argued that its unfair competition claim “targets deceptive marketplace conduct non-attribution in credentialing and promotion,” because “CBB’s intake process mirrors BTD’s distinctive two-part system (front-end prompts and non-public back-end scoring that generates a protocol-oriented report), reinforcing a false impression of origin and distinctiveness in the services Defendants sell.” That did not get the job done. “The Supreme Court foreclosed this type of non-attribution or methodology-based claim … in Dastar.”

CUTPA counterclaims: The Connecticut Unfair Trade Practices Act provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” and gives a private right of action to a person who suffers an “ascertainable loss of money or property, real or personal.” Defendants argued that their acts targeting Salzer arose from “employment-relationship enforcement, not marketplace conduct.” They also argued that there was no actionable harm because their letter to the MSPCA “did not accuse Dr. Salzer of any wrongdoing,” that it was sent “to ensure non-disclosure, not to interfere with her employment,” and that MSPCA “has continued to employ Dr. Salzer and has even given her a raise.”

Although an employment relationship doesn’t constitute trade or commerce under CUTPA, a jury could find that the acts of which plaintiffs are accused didn’t arise solely from an employment relationship. After all, Salzer’s non-profit work was “specifically excluded from the scope of her Agreement with BTD,” but they targeted the MSPCA anyway. Likewise, plaintiffs allegedly attended Salzer’s seminar, sought access to her presentation materials, and attempted to interfere with Dr. Salzer’s teaching activities and her relationship with Our Companions. Repeatedly dangling the prospect of a recommendation letter, then refusing to provide it unless she agreed to relocate and work for them in Dallas, Texas, allegedly harmed Salzer’s ability to obtain certification and referrals in Connecticut. And the “mystery shopper” activity could be justified pre-suit investigation or instead conduct that a reasonable factfinder could deem deceptive or unfair under CUTPA. In addition, sending a takedown notice to the University of Kansas could be part of the counterclaim, given that the dissertation was allegedly “used ‘solely for academic purposes’ and thus ‘exempt’ from Dr. Salzer’s non-disclosure agreement with BTD,” and allegations that “BTD made demonstrably false allegations to protect non-existent legal rights knowing that an academic misconduct investigation into Dr. Salzer’s dissertation could be reputationally ruinous.”

For similar reasons, the tortious interference counterclaims survived, as did defamation per se (accusations of theft can be per se defamatory), subject of course to proof and potential defenses like truth or privilege. Connecticut common-law unfair competition is narrower than CUTPA, but that claim also survived. A reasonable jury could find “justified, limited enforcement conduct,” or “fraud, misrepresentation, intimidation or molestation, or that the defendant acted maliciously, in interfering with the plaintiff’s business prospects.” Similarly, negligent infliction of emotional distress survived because it targeted conduct “beyond an ordinary employment-termination dispute or distress arising solely from litigation.”

Netflix's promotion of fictional team does not constitute trademark use

2026-04-07T10:47:00.000-04:00

Pepperdine University v. Netflix, Inc., No. 2:25-cv-01429-CV (ADSx) (C.D. Cal. Mar. 31, 2026)

After denying the motion for preliminary injunction, the court finally tosses Pepperdine’s lawsuit based on use of a fictional Waves team in a Netflix show. Rogers applies to content, even prominent content, in a TV show.

Pepperdine claimed, and the court assumed, its rights in “Waves” for its athletic teams, along with a blue and orange color scheme “in conjunction with athletic programs and athletic merchandise, and/or in conjunction with other symbols that are associated with and identify the university—including the ‘Waves’ team name and the number ‘37.’”

Defendants made and distributed Running Point, “a series about a woman who is unexpectedly appointed president of a basketball franchise named the Los Angeles Waves.” The LA Waves allegedly use a mark similar to Pepperdine’s Waves trademark and similar colors to Pepperdine’s colors: a similar font, the color orange for the lettering, white outlining, a blue border, and the use of the word “Waves” in a similar context—on athletic-style clothing.

Pepperdine alleged that the use of the Waves marks is “pervasive” in the series, and appears throughout the series—on jerseys, shirts, stadiums, etc., including a logo that is similar to Pepperdine’s Waves mark, with a blue and white wave next to the orange “WAVES” text. “The show also includes a framed jersey in a conference room with the number 37 on it.”

Pepperdine alleged that defendants (or others) promoted Running Point with Waves references: Actors have posted pictures of themselves in “Waves” jerseys, with the caption “SIGNED to the Los Angeles Waves! . . . Check out my dunks on Running Point now on Netflix.” Another actor posted an image which prominently states “Los Angeles WAVES.” Defendant Kaling International’s official Instagram profile previously showed its founder, Mindy Kaling, wearing a “WAVES” shirt, and included a biography reading “Home of the Los Angeles WAVES.”

Pepperdine alleged that the team name is thus “essentially synonymous with the show’s identity and its source.” Also, third parties are allegedly now selling variations of Waves-branded merchandise under the description “Running Point.”

The court looked to the cases discussed in JDI to identify the appropriate situations to use the Rogers test: the “Barbie Girl” case, University of Alabama Board of Trustees v. New Life Art, Inc., 683 F.3d 1266 (2012) and Louis Vuitton Malletier S. A. v. Warner Bros. Entertainment Inc., 868 F. Supp. 2d 172 (S.D.N.Y. 2012). The court also pointed to the Rogers-based dismissals in Haas Automation, Inc. v. Steiner, No. 24-CV-03682-AB-JC, 2024 WL 4440914 (C.D. Cal. Sept. 25, 2024) and JTH Tax LLC d/b/a Liberty Tax v. AMC Networks Inc., 694 F. Supp. 3d 315 (S.D.N.Y. 2023). In the former, a book included plaintiff’s mark on its front cover, back cover, and on several pages, but the mark was “not used to tell the consumer who published the book or the source of the book.” Rather, the mark told the consumer what the book was about and who the author worked for. In the latter, the defendant’s TV series included a fictional tax preparation business called “Sweet Liberty Tax Services.” In both cases, defendants had not used the marks “as their own identifying trademark.”

By contrast, post-JDI, courts have rejected Rogers as applied to the name of a news website and the title of a film.

Netflix argued that its uses were not source-identifying and that defendants were clearly identifying themselves as the source of the TV series.

The court agreed. It was insufficient to allege “extensive use of the Waves mark in the show, Defendants’ use of the Waves mark to market the show, consumers’ connection of the Waves mark with the show, and Defendants’ previous pattern of obtaining trademarks for fictional entities within their television series.” That’s because the question is whether defendants “used the Waves mark as a designation of source for their own product—Running Point.”

Just as “Barbie Girl” repeated Barbie’s name and imitated her voice, pervasive use of the Waves “mark” “does not explicitly mislead as to the source of the work,” and does not “explicitly or otherwise, suggest that it was produced by [Pepperdine].” That didn’t change with allegations that the use in the content was so pervasive as to be “essentially synonymous with the show’s identity.” Nor did the court accept conclusory allegations that the use was source identifying.

At most, Pepperdine alleged that the Waves mark is “immediately recognized” to identify the Running Point series, and that its use is synonymous with the series. But use to “identify the show” is not itself use “as a designation of source.” Identifying the show can include content! An actor who posts themselves in a “Waves” jersey saying “Check out my dunks on Running Point now on Netflix” is pretty clearly identifying Netflix as the source of the show. Use in marketing wasn’t inherently trademark use, nor was it relevant that “Defendants have obtained trademarks in fictional businesses central to their shows in the past.”

The use was artistically relevant and not explicitly misleading. The court noted that the parties did not, as alleged, use the Waves marks for the same “purpose”; while you could call both “sports-related entertainment,” Pepperdine uses the Waves mark to identify its collegiate sports teams, and defendants use it in a TV series for a fictional sports team.

Although Pepperdine alleged that third parties sell Running Point Waves merchandise, they didn’t explain how defendants could be liable for the acts of these third parties.

Nor did statements like “home of the Los Angeles WAVES,” equate to claims like “‘Nimmer on Copyright,’ ‘Jane Fonda’s Workout Book,’ or ‘an authorized biography’” as a statement that misstates who authored or endorsed the series. The question was whether defendants were misleading consumers as to the source of the Running Point series. To the contrary, they were explicitly claiming to be the source of the series, rather than claiming “brought to you by Pepperdine,” or even “brought to you by the WAVES.” A fictional professional sports team “can clearly be distinguished by consumers from the Pepperdine Waves—a real collegiate sports team.”

naked licensing could constitute false advertising of origin

2026-04-07T10:46:00.000-04:00

Epson America, Inc. v. Global Aiptek Inc., 2025 WL 4631973, No. 8:23-cv-00222-FWS-DFM (C.D. Cal. Dec. 17, 2025)

Epson alleged that defendant GAI purposefully and deceptively inflated the lumen and brand specifications of its projectors in violation of the Lanham Act and California’s UCL. The court mostly granted Epson’s motion for summary judgment.

As alleged: “Within a particular projector category, such as portable consumer projectors, the quality and corresponding price of a specific projector are largely determined by its resolution and light output.” Lumen rating is a key product feature; more is more expensive and lumen ratings are prominently advertised and displayed on packages. Online, sellers list a projector’s lumen rating in the product description, title, and even in the product name.

GAI purportedly entered into a trademark agreement with HP in 2017 to “use, reproduce and display the HP Trademarks” on “the HP Branded Products” including LED based projectors. It allegedly used the HP mark on packaging and advertising, and on GAI’s employee business cards. “HP has not manufactured projectors for sale under its own brand since at least 2011.” “GAI desired to use the HP name because HP has a ‘huge global presence and track record.’ ”

ISO sets the internationally recognized standard for scientific measurement of white brightness in a laboratory setting.” GAI advertised its projectors with various lumen values. For example, it advertised its HP BP5000 model as having various light output specifications, including “6000 Laser Lms (2500 ANSI);” “4500-Lumen; “2000 ANSI Lm;” “2000-lumen;” and “200 ANSI Lumens; 6000 Laser Source lumens.”

However, “GAI does not conduct any testing to confirm the brightness specifications of its projectors.” A principal “claims that he uses his own ‘personal perception’ and ‘instinct’ to look at the projectors with the naked eye and determine whether it is ‘fitting [his] expectation’ and ‘whether this is a match to the data sheet or not.’ ” “GAI has no internal definition of ‘laser lumen’ and cannot distinguish it from a ‘lumen.’ ”

Epson had two false advertising claims: (1) GAI inflates the lumen values of the projectors, and (2) GAI misrepresents who manufactures its projectors, which I find a much more interesting argument!

Epson’s evidence demonstrates that the lumen claims were literally false, based on its independent testing. Each of the models tested produced results evidencing light output significantly below the brightness values claimed by GAI, e.g., the HP BP5000 model produced “an average light output of 1655 lumens, testing as low as 1598 lumens, and nothing above 1732 lumens.” “That each projector is advertised so far above its highest tested output demonstrates literal falsity.”

Although GAI relied on test reports commissioned from Shenzen Circle Testing Certification Co., it did not produce an expert witness to opine on the veracity of these test reports. “Without expert corroboration, the test reports do not create a battle of the experts on the truth of GAI’s advertisements.”

GAI also argued that ISO standards “account for normal manufacturing variances” and that projectors can comply with that standard “as long as its measured light output at the time of shipment is no less than 80% of the value stated on its specification sheet.” But Epson’s unrebutted testing shows that GAI’s projectors produce lumen values at well below 80% of their advertised values. Independently, GAI didn’t show why compliance with ISO standards “would somehow allow an entity to avoid liability under the Lanham Act.”

GAI then argued that it uses the term “ANSI lumens” or “LED lumens” to notify consumers that GAI is describing the internal brightness of the projector rather than the light that exits the projector. “GAI’s explanation, when viewed in context, does not make sense,” given that “GAI has no internal definition of ‘laser lumen’ and cannot distinguish it from a ‘lumen.’ ” “Moreover, there is no reason to believe a consumer would understand GAI’s advertisements to be referring to the internal brightness of a projector.”

HP manufacture: Epson argued that a “trademark license does not permit a licensee to represent itself as the brand owner or to trade on the licensor’s goodwill as if the products originated from that licensor.” It cited mainly naked licensing cases like Barcamerica Int’l USA Tr. v. Tyfield Importers, Inc., which said that it was “inherently deceptive” for a licensor to fail “to exercise adequate quality control over the licensee.”

The court decided that this question was for the jury. A naked license might not show literal falsity, and, given the Ninth Circuit’s caution that it is “difficult, if not impossible” to define “how much control and inspection” the licensor need exercise, whether there was a naked license was ill-suited to summary judgment. “That is especially true here where GAI provides at least some evidence that HP has not completely abdicated oversight of manufacturing and quality control.”

But GAI didn’t contest the materiality of lumens or direct competition between the parties. Online “retailers often create their own comparison of the specifications of the specifications of competing brands’ models, with the lumen rating at or near the top of the list.” GAI argued that there was no injury because GAI’s most popular projector retails for $150 while Epson’s cheapest model starts at $300. That didn’t let GAI createa triable issue as to injury. “That one projector might differ from another in price to some degree does not mean that those projectors do not compete at all because consumers evaluate other factors such as performance and brand when purchasing projectors. GAI’s argument is better suited for the damages phase, where a difference in price could demonstrate the degree to which sales were diverted from Epson to GAI.” Epson was still entitled to summary judgment on liability.