Copyright (c) 2008 All rights reserved. http://works.bepress.com/lastowka Recent documents in Greg Lastowka en-us Thu, 03 Jan 2008 07:23:04 PST 3600 http://works.bepress.com/lastowka/4 http://works.bepress.com/lastowka/4 Thu, 27 Sep 2007 07:19:02 PDT Google has become, for the majority of Americans, the index of choice for online information. Through dynamically generated results pages keyed to a near-infinite variety of search terms, Google steers our thoughts and our learning online. It tells us what words mean, what things look like, where to buy things, and who and what is most important to us. Google's control over "results" constitutes an awesome ability to set the course of human knowledge.As this paper will explain, fortunes are won and lost based on Google's results pages, including the fortunes of Google itself. Because Google's results are so significant to e-commerce activities today, they have already been the subject of substantial litigation. Today's courtroom disputes over Google's results are based primarily, though not exclusively, in claims about the requirements of trademark law. This paper will argue that the most powerful trademark doctrines shaping these cases, "initial interest confusion" and "trademark use," are not up to the task they have been given, but that trademark law must continue to stay engaged with Google's results.The current application of "initial interest confusion" to search results represents a hyper-extension of trademark law past the point of its traditional basis in preventing consumer confusion. Courts should reject initial interest confusion doctrine due to its tendency to grant trademark owners rights over search results that could easily operate against the greater public interest. On the other hand, the recent innovation of "trademark use" doctrine improperly relieves trademark law of any role in the supervision of the shape of Google's search results. The absence of any state involvement in the shape Google's results will effectively cede the structure of our primary online index to "Google's law." Google may enjoy substantial public goodwill, but what is best for Google will not always be what is best for society.Part I of this article describes the history of Google and its business model. Google is not the only search engine today, but it is the leading search engine in terms of United States market share. Additionally, Google is playing the most important role today in search engine litigation. It is a unique search engine in many respects. During its evolution, Google followed a very different path than many of its competitors. Today its competitors are largely imitating its model, yet are unable to dethrone its centrality in search. Understanding how Google rose to prominence is essential to understanding its motives and how it might act in the future.Part II of this article sets forth the contemporary law pertaining to search results. It begins with a short discussion of recent (failed) attempts to regulate Google's results through laws other than trademark. It then describes current theories of trademark law. It concludes by summarizing how trademark law has been applied to search engines, starting with early "meta tag" cases and concluding with Google's current attempts to insulate itself from liability under an expanded doctrine of "trademark use."Part III criticizes the current application of trademark law to search engines. It argues that the judicial innovations of both "initial interest confusion" and "trademark use" are inconsistent with the traditional purpose of trademark law and the new realities of the e-commerce marketplace. It concludes that a simple focus on the "likelihood of confusion" standard, which some courts have already supported, is overdue. It concludes by explaining why, despite the fact that trademark law today will likely permit Google's current practices, Google's bid for the carte blanche freedom permitted by "trademark use" doctrine should be rejected by courts. In its relatively new role as a protector of the social value of indices, trademark law must retain the ability to curb potential abuses of the commercial power enjoyed by Google. Greg Lastowka Intellectual Property Law http://works.bepress.com/lastowka/3 http://works.bepress.com/lastowka/3 Fri, 13 Oct 2006 10:41:48 PDT The use of authorial marks in relation to the sale of creative works, like the use of business trademarks in relation to the sale of goods and services, creates social benefits that deserve legal protection. Authorial attribution acts as an incentive to authorial production, provides valuable information to consumers, and provides additional social benefits that go beyond issues of market efficiency. However, the use of authorial marks, like the use of trademarks, can create social harms. Just as counterfeiters place illegitimate trademarks on goods, exploiters of entertainment markets may be tempted to misattribute authorship. In the United States, such deceptive practices were traditionally subject to the remedial mechanisms of trademark and unfair competition laws. However, in a recent decision, Dastar Corp. v. Twentieth Century Fox Film Corp. (2003), the United States Supreme Court held that federal trademark law does not address the misattribution of authorship. The Dastar decision stated that trademark protections were designed to protect the creators of tangible products sold in the marketplace. The Court stated that trademark law was not designed to protect the interests of those who originate creative ideas or communications. This article explores society's interests in ascertaining the authorship of creative works and explains how those interests both resemble and diverge from standard trademark interests. It concludes that authorship marks are sufficiently analogous to trademarks that the Dastar approach is misguided. Consumers can and should be protected from misattributions of authorship where such misattributions can easily be remedied by law and where the failure to provide such remedies is likely to lead to significant consumer harms. Greg Lastowka Intellectual Property Law http://works.bepress.com/lastowka/2 http://works.bepress.com/lastowka/2 Fri, 13 Oct 2006 10:41:46 PDT In a 1951 article in Science magazine, librarian Ralph Shaw argued that copyright law paid insufficient attention to the attribution interests of authors. Shaw observed that the straightforward pecuniary interests of publishers diverged from the more complex reputation-based interests of authors. He noted how authors and publishers might have differing views regarding the benefits of providing thousands of copies of a work for "free distribution." Of course, since Shaw had pointed out that no sensible publisher would be interested in giving away such free works, the example he used was fanciful at the time. Today times have changed. The World Wide Web delivers a hyperlinked high-speed information environment that Shaw could not have imagined. Most importantly, just as Shaw predicted, authors are now giving away thousands--even millions--of free "reprints" and realizing what Shaw described as "a great additional profit in terms of professional credit." Copyright law, for various reasons, has largely ignored this fact. Shaw's "right to credit" is still as much a fantasy as the World Wide Web was half a century ago. This article takes up Ralph Shaw's call for a right to credit in a new era of networked information systems. Copyright law should be adjusted to take into account the growing importance of open access forms of copyright creation and reputation economies. Prioritizing the legal importance of attribution in copyright is a change that is long overdue. The contemporary digital environment provides an opportunity and an important additional reason to revisit Shaw's salient distinction between the motivations of authors and publishers. Francis G. Lastowka Intellectual Property Law http://works.bepress.com/lastowka/1 http://works.bepress.com/lastowka/1 Fri, 13 Oct 2006 10:41:45 PDT This article examines recent developments in both the doctrine and theory of legal cyberproperty rights. The first part of this article looks primarily at two seminal cases that might be considered bookends to the story of cyberproperty: Thrifty-Tel, Inc. v. Bezenek and Intel v. Hamidi. The second part of this article challenges two assumptions that act as theoretical and rhetorical engines driving arguments for cyberproperty. The first is the assumption that legal prohibitions against interactions with privately owned computing machinery are analogous, from a standpoint of law and policy, to traditional rights of exclusion from the use of or entry into personal or real property. The second is the assumption that the practical control of code can be understood as analogous to the social instrument of law. Both of these assumptions may be initially appealing, but they are largely misguided, as the article explains. The digital information present within computer networks is analogous to neither private property nor law. Francis G. Lastowka Intellectual Property Law