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There is a curious anomaly at the intersection of copyright and free speech. In cases like Citizens United v. Federal Election Commission, the United States Supreme Court has exhibited a profound distaste for tailoring free speech rights and restrictions based on the identity of the speaker. The Copyright Act, however, is full of such tailoring, extending special rights to some classes of copyright owners and special defenses to some classes of users. A Supreme Court serious about maintaining speaker neutrality would be appalled. A set of compromises at the heart of the Copyright Act reflects interest-group lobbying rather than a careful consideration of what kinds of institutions best realize the goal of the Progress Clause--the provision that expressly empowers Congress to provide copyright protection. Assuming the democratic process is flawed for predictable public-choice reasons, how might the Court address these problems in the Copyright Act? The answer is institutional analysis. First Amendment scholars have for some years used institutions as analytical and normative tools. That framework considers how different social institutions may serve First Amendment goals--like creating a robust marketplace of ideas--through their structure and function. This Article is the first to explore how the Progress Clause can serve a similar role and provides a framework to consider whether certain institutions are particularly well-suited to enable the creation, dissemination, or preservation of valuable expression. Inasmuch as Congress has granted special privileges to institutions that serve Progress Clause values, the speaker-based tailoring is constitutionally acceptable--even if the process by which it occurs is suspect. Applying this institutional framework can help clarify not only the extent to which the current Copyright Act achieves the constitutional goals it was crafted to reach, but also when Congress should adopt or reject amendments and extensions to the Copyright Act.

Trademark law recognizes that the same word can mean different things in different commercial contexts. Legal protection might extend to two or more owners who use the same symbol (like Delta) to indicate different sources of disparate goods or services, such as airlines and faucets. Generally, only those uses that threaten to confuse consumers—the use of similar symbols on identical or related goods—are subject to legal sanction. But the law extends special protection to famous trademarks, not only against confusing use, but also against dilution: non-confusing use that blurs or tarnishes the distinctiveness of the famous mark. The result of protection against blurring is that the law treats the famous mark as if the sole proper use of the term in the commercial context is to designate goods and services from the famous mark's owner. Protection against dilution extends only to famous marks, but courts and scholars apply differing standards for assessing fame. Nonetheless, the trend over time has been to treat fame as a threshold requiring both sufficient renown—the famous mark must be a household name—and relatively singular use. This article argues that corpus linguistic analysis can provide evidence of whether a mark is sufficiently prominent and singular to qualify for anti-dilution protection. Corpus linguistics detects language patterns and meaning from analyzing actual language use. This article draws data primarily from two large, publicly accessible databases (corpora) to investigate whether litigated trademarks are both prominent and unique. Courts and parties can consider frequency evidence to establish or refute prominence, and contextual evidence like concordance and collocation to establish relative singularity. Corpus evidence has some advantages over standard methods of assessing fame. Corpus evidence is cheaper to generate than survey evidence but may be equally probative. Corpus analysis can help right-size dilution litigation: A litigant could estimate the prominence and singularity of an allegedly famous mark using corpus evidence prior to discovery and better predict whether the mark should qualify for anti-dilution protection. Judges should be able to rely on the results of corpus analysis with reasonable confidence. Additionally, corpus evidence can show use of a mark over time, providing courts with tools to assess when a mark first became famous, a question that a survey generated for litigation cannot readily answer.