Georgetown Law Faculty Blog

New Article by Rebecca Tushnet

It Depends on What the Meaning of "False" is: Falsity and Misleadingness in Commercial Speech Doctrine, a new article by Rebecca Tushnet to be published in an upcoming issue of the Loyola of Los Angeles Law Review, has just been posted to SSRN.

Abstract:

While scholarship regarding the Supreme Court's noncommercial speech doctrine has often focused on the level of protection for truthful, nonmisleading commercial speech, scholars have paid little attention to the exclusion of false or misleading commercial speech from all First Amendment protection. Examining the underpinnings of the false and misleading speech exclusion illuminates the practical difficulties that abolishing the commercial speech doctrine would pose. Through a series of fact patterns in trademark and false advertising cases, this piece demonstrates that defining what is false or misleading is often debatable. If commercial speech were given First Amendment protection, consumer protection and First Amendment protection would be at odds. Rebutting the idea that constitutionally protected commercial speech could effectively address consumer abuses through fraud statues and would not be offensive to the First Amendment, the piece explains that subjecting commercial speech to First Amendment scrutiny would almost completely contract the scope of false advertising law and erode consumer protection. The piece concludes that while excluding commercial speech from constitutional protection has real costs, we are better off in a system that regulates false and misleading commercial speech without heightened First Amendment scrutiny.

Credit, compensation and control: different ways to reward authors (Rebecca Tushnet)

One of the things copyright professors tell their classes is that copyright infringement isn’t plagiarism and that the common confusion of the two things is a mistake. This is true in some important senses – I could plagiarize John Stuart Mill but not infringe his copyrights; I could infringe Bruce Springsteen’s copyrights without doing anything to take credit for Born in the U.S.A. But I think copyright professionals may have been too hasty to discount the persistent connection laypeople make between infringement and plagiarism in ordinary cases of verbatim or very close copying.

Plagiarism is the wrong of getting credit for work one didn’t do; copyright infringement is the wrong of copying expression without paying the customary price. Both seem to be types of “stealing,” though their boundaries are hotly contested, since in both cases there are no physical objects that can be pocketed and spirited away.  

Sometimes, however, payment for use of copyrighted works can be given in credit. And credit, of course, is the thing that averts charges of plagiarism. In copyright, proper attribution shows up in proposals to immunize good-faith uses of orphan works, writing students’ concepts of copyright and fair use, artists’ concepts of copyright and fair use (see Chapter 2), other countries’ fair dealing doctrines, and basically everywhere people are trying to figure out when it’s legitimate – when it’s fair – to use other people’s creations. Control, compensation, and credit are sometimes substitutes and sometimes mutually reinforcing. Credit can sometimes be implicit, as when it’s obvious due to culturally shared knowledge that a person didn’t compose the movie dialogue he’s quoting, like “Use the Force, Luke!” But that does lead to occasional problems when the knowledge isn’t shared.

Though our jurisprudence of fair use and our rules governing exceptions could definitely use attribution as a way to address authors’ interests without giving copyright owners total control over all uses, plagiarism and infringement are still different. Idea plagiarism exists, at least in some fields, at least according to some people. But taking ideas is never copyright infringement, and it would be a terrible idea to let that type of plagiarism cross over into copyright. So when I say that we should acknowledge the close relationship between plagiarism and copyright infringement, especially when considering fair use, I don’t mean that they’re identical. But their areas of overlap are important when we’re considering academic and artistic copying, reference, and quoting practices.