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In Iancu v. Brunetti, the Supreme Court held that the Lanham Act 2(a) bars for "immoral" or "scandalous" marks are facially unconstitutional viewpoint discrimination, and thus violate a trademark owner's First Amendment rights. Brunetti, as well as its predecessor, Matal v. Tam, focused entirely on how the government might generate viewpoint discrimination at the point of trademark registration. The Court did not consider whether enforcement of trademarks—via courts of law, Customs and Border Protection, or the International Trade Commission—is government speech, and thus exempt from First Amendment free speech scrutiny. Yet the Court's seminal holding of Shelley v. Kraemer illustrates that once the judicial enforcement of a private right has been declared a government action, the court then determines what constitutional considerations are at issue. Analogously, enforcement of a mark should be deemed government speech, and the constitutional implications regarding the applicability of the First Amendment must be addressed from this position. This Author argues that, even if registration triggers First Amendment protections for the mark owner against viewpoint discrimination, the same does not hold true for the enforcement of a mark against alleged infringers. The surprising upshot is that offensive, vulgar, and scandalous marks could be denied enforcement in an infringement action, a Customs seizure, or an International Trade Commission proceeding, because enforcing them through these government actions would constitute government speech and not be subject to First Amendment protections. Moreover, if these enforcement actions of a private citizen's mark would constitute government speech, then any registration is meaningless if the mark is unenforceable. It would thus make sense for the court to hold that registration of that mark is government speech as well.

The ex parte seizure provision of the Defend Trade Secrets Act is another step in a long line of legislation that shifts the costs of private enforcement to the public, which already has a toehold in copyright and trademark law. The ex parte provision — which is not incorporated into any state trade secret law — relieves rights owners of two "burdens." First, it relieves the trade secret owner of the burden of actually having to compete in the marketplace. Second, it relieves the trade secret owner of the burden of the costs associated with the discovery process of a lawsuit. The effect of this cost shifting results in anticompetitive behavior, is ripe for abuse, and offers no added benefit to what is provided via state trade secret causes of action and remedies. This essay is based on Professor Yvette Joy Liebesman's presentation at the March 10, 2017 Symposium on "Implementing and Interpreting the Defend Trade Secrets Act of 2016," hosted by the University of Missouri School of Law's Center for Intellectual Property and Entrepreneurship and the School's Business, Entrepreneurship & Tax Law Review.

The advent of on-line music sales has been a boon to the recording industry as well as for musicians and the general public. Previously unknown artists have found new avenues to showcase their work, and consumers have easy access to an enormous variety of musical genres. Yet an unintended consequence of the ability to sell songs through internet downloads is a novel, and until now, unnoticed way to infringe on copyrights - which, unless remedied, could lead to new classes of defendants never contemplated or desired to be ensnared in the Copyright Act's protections for artists, musicians and authors. Unlike a brick-and-mortar transaction, the act of purchasing a song on the web requires that the purchaser "download" a digital file of the song - that is, make a copy of the song that is located on the vendor's website, and transfer that copy to the consumer's computer. In this on-line transaction, consumers are availing themselves of one of the rights of the copyright owner, namely the reproduction right. Of course, by making songs available for purchase via download, the copyright owner is authorizing such a reproduction. But if the downloaded song is in fact infringing on another's musical composition copyright rights, this new method of purchasing music turns ordinary consumers into unintentional infringers. When a consumer downloads a song from a legitimate music store such as iTunes, she tacitly assumes that the song is not infringing on the musical work of another. If, however, the song is infringing on the copyright of another musical composition, then the consumer has made an unauthorized copy and infringes on the infringed-upon musician's reproduction right. It is only a matter of time before members of the recording industry grab onto this form of infringement and demand compensation from unsuspecting consumers. Copyright infringement is a tort of strict liability and courts would thus be constrained in their ability to give relief to consumers who infringe in this manner. This article argues that rather than wait for litigation to commence, Congress should consider legislating an exception for consumer downstream infringement that was neither contemplated nor desired when the Copyright Act was passed.

The past four decades have been witness to the realization of ideas which, when first contemplated,seemed to resemble the prose of science fiction writers. Some seemingly far-fetched notions, such as robot pets, anti-sleeping pills, and ugly unisex jumpsuits, are now readily available. However, there are currently no colonies on the moon, and we are all still waiting to order our personal jetpacks from Amazon.com. Some are likely to remain in the realm of science fiction and will only be realized with the help of movie and television special effects artists. Yet through these entertaining glimpses into a potential future, we are left to wonder whether the law should be adapted to account for some of these anticipated technologies. At various times, Congress has chosen to wait and see if a scientific advancement adapts sufficiently under current law, and in other instances, it has tried to anticipate how technology will affect society and legislate accordingly. This article discusses whether it is better to legislate in contemplation of new technology or to wait and see how it develops. To avoid tangential considerations regarding the scope, influence, and mechanics of existing technology that are unrelated tothe policy concerns, the issues raised in this article are examined by exploring whether the underlying purpose of a current law, specifically the Copyright Act of 1976, could be satisfactorily applied to magically animated pictures and paintings developed in J.K. Rowlings' Harry Potter series. Using"magic" as the vehicle avoids these extraneous considerations, and the conclusions drawn can then be related back to unforeseen or developing scientific advances. As such, this article will discuss the application of aspects of the Copyright Act to a universe where the subjects of photographs and paintings are animated by magic, to determine if it is necessary to create legislation specific to this "technology" to address policy concerns regarding fixation and authorship. It asks whether current laws are adequate when applied to a world where magic exists, whether trying to legislate for future technologies is rational,and whether Congress should consider future potential technologies when contemplating or creating legislation, or whether such legislation stifles innovation. This article concludes that we should proceed with caution in allowing the potential effects of either technology in its infancy or future unrealized technology to influence our policy decisions before the science has had a chance to mature and develop, its effects on society better determined.

The past four decades have been witness to the realization of ideas which, when first contemplated,seemed to resemble the prose of science fiction writers. Some seemingly far-fetched notions, such as robot pets, anti-sleeping pills, and ugly unisex jumpsuits, are now readily available. However, there are currently no colonies on the moon, and we are all still waiting to order our personal jetpacks from Amazon.com. Some are likely to remain in the realm of science fiction and will only be realized with the help of movie and television special effects artists. Yet through these entertaining glimpses into a potential future, we are left to wonder whether the law should be adapted to account for some of these anticipated technologies. At various times, Congress has chosen to wait and see if a scientific advancement adapts sufficiently under current law, and in other instances, it has tried to anticipate how technology will affect society and legislate accordingly. This article discusses whether it is better to legislate in contemplation of new technology or to wait and see how it develops. To avoid tangential considerations regarding the scope, influence, and mechanics of existing technology that are unrelated tothe policy concerns, the issues raised in this article are examined by exploring whether the underlying purpose of a current law, specifically the Copyright Act of 1976, could be satisfactorily applied to magically animated pictures and paintings developed in J.K. Rowlings' Harry Potter series. Using"magic" as the vehicle avoids these extraneous considerations, and the conclusions drawn can then be related back to unforeseen or developing scientific advances. As such, this article will discuss the application of aspects of the Copyright Act to a universe where the subjects of photographs and paintings are animated by magic, to determine if it is necessary to create legislation specific to this "technology" to address policy concerns regarding fixation and authorship. It asks whether current laws are adequate when applied to a world where magic exists, whether trying to legislate for future technologies is rational,and whether Congress should consider future potential technologies when contemplating or creating legislation, or whether such legislation stifles innovation. This article concludes that we should proceed with caution in allowing the potential effects of either technology in its infancy or future unrealized technology to influence our policy decisions before the science has had a chance to mature and develop, its effects on society better determined.

The past four decades have been witness to the realization of ideas which, when first contemplated, seemed to resemble the prose of science fiction writers. Some seemingly far-fetched notions, such as robot pets, anti-sleeping pills, and ugly unisex jumpsuits, are now readily available. However, there are currently no colonies on the moon, and we are all still waiting to order our personal jetpacks from Amazon.com. Some are likely to remain in the realm of science fiction and will only be realized with the help of movie and television special effects artists. Yet through these entertaining glimpses into a potential future, we are left to wonder whether the law should be adapted to account for some of these anticipated technologies. At various times, Congress has chosen to wait and see if a scientific advancement adapts sufficiently under current law, and in other instances, it has tried to anticipate how technology will affect society and legislate accordingly. This article discusses whether it is better to legislate in contemplation of new technology or to wait and see how it develops. To avoid tangential considerations regarding the scope, influence, and mechanics of existing technology that are unrelated to the policy concerns, the issues raised in this article are examined by exploring whether the underlying purpose of a current law, specifically the Copyright Act of 1976, could be satisfactorily applied to magically animated pictures and paintings developed in J.K. Rowlings' Harry Potter series. Using "magic" as the vehicle avoids these extraneous considerations, and the conclusions drawn can then be related back to unforeseen or developing scientific advances. As such, this article will discuss the application of aspects of the Copyright Act to a universe where the subjects of photographs and paintings are animated by magic, to determine if it is necessary to create legislation specific to this "technology" to address policy concerns regarding fixation and authorship. It asks whether current laws are adequate when applied to a world where magic exists, whether trying to legislate for future technologies is rational, and whether Congress should consider future potential technologies when contemplating or creating legislation, or whether such legislation stifles innovation. This article concludes that we should proceed with caution in allowing the potential effects of either technology in its infancy or future unrealized technology to influence our policy decisions before the science has had a chance to mature and develop, its effects on society better determined.

Over the past ten years, the Internet has revolutionized the resale market ― casual resellers have migrated from garage sales, swap meets, and classified ads, to eBay and Craigslist, turning hobbies into lucrative businesses. This has affected the sales of new goods and troubled manufacturers, who seek to curtail the growth of this secondary market. Most of these on-line resales should be protected by the first-sale doctrine, a well-known defense to infringement claims that applies across patent, copyright, and trademark law. Simply stated, once a manufacturer sells a product, it may not interfere with secondary sales of that product. Yet in an effort to stifle independent resellers, manufacturers are increasingly relying on spurious claims of trademark infringement. Specifically, they claim the reseller is causing initial source or sponsorship confusion based on the distribution channel, even though there is no confusion as to the source of the genuine good. Small resellers are faced with either defending themselves in court or ceasing operations. We argue that courts are weakening of the first-sale doctrine's function of limiting manufacturers' power to control alternative distribution channels of genuine goods. We assert that, in the context of the Internet secondary market, whether the distributor is affiliated with the manufacturer is irrelevant, as long as the goods are genuine and the reseller disclaims any association with the mark owner. Courts should apply a presumption of no affiliation between the reseller and the manufacturer, and actual deception should be required for any Lanham Act claim. We also propose a legislative strengthening of the trademark first-sale doctrine as applied to on-line sales so that it more closely resembles the doctrine's application in a brick-and-mortar setting.