Authors Alliance Amicus Briefs: Defending Free Expression from Trademark, Social Media, and Copyright Law Challenges

Posted December 8, 2023
Photo by Claire Anderson on Unsplash

The cases that threaten authors’ rights aren’t always obvious. You might have noticed in the last year that we’ve filed amicus briefs in some unusual ones—for example, a trademark lawsuit about squishy dog toys, or a case about YouTube recommendation algorithms. It’s often true that cases like these raise legal questions that extend well beyond their facts, and decisions in these cases can have unintended consequences for authors. As part of our mission of speaking up on behalf of authors for the public interest, we file amicus briefs in these cases to help courts craft better, more informed decisions that account for the interests of authors. 

In the last few weeks Authors Alliance has joined with several other organizations to file amicus briefs in three cases like these: 

Hermès v. Rothschild: Free Expression and Trademarks

The first is an amicus brief we joined in Hermès International v. Rothschild. Our brief is in support of Mason Rothschild, a digital artist who was sued by Hermès, creator of the famous “Birkin bag,” for allegedly infringing Hermès’s trademark. Rothschild created a series of NFT’s mimicking the bag that he called “metaBirkins,”which, he argues, comments on the brand, consumerism, luxury goods and so on. Rothschild lost at the court below and the case is currently before the Second Circuit Court of Appeals. 

Our amicus brief—drafted by the Harvard Cyberlaw Clinic and joined by Authors Alliance, MSCHF, CTHDRL, Alfred Steiner, and Jack Butcher—argues that such uses are protected by the test announced in Rogers v. Grimaldi, a threshold test designed to protect First Amendment interests in the trademark context, allowing courts to quickly resolve trademark litigation when trademarks are used in expressive works unless there is “no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the [second work] explicitly misleads as to the source or the content of the work.” Our brief argues that Rogers remains good law after the United States Supreme Court’s recent decision in Jack Daniel’s Props. v. VIP Products and that a creator’s intent to sell their work (in this case selling NFTs) is not relevant when balancing trademark owners’ and creators’ rights. The amici we joined with represent artists, creators, and organizations that are concerned that a ruling in favor of Hermès will stifle creators’ ability to comment on popular brands and companies. 

Warner Chappell v. Nealy: Copyright damages 

This is a case before the U.S. Supreme court raising questions about how far back courts can look when calculating monetary damages in copyright infringement lawsuits. The dispute in this case arose between Nealy, owner of an independent record label that released a number of albums in the 1980s, and Warner Chappell, who Nealy claims engaged in unauthorized reproduction and distribution of his works for years. Nealy claims he didn’t learn of the violation until 2016. He filed suit in 2018 and sought monetary damages for uses going back to 2008. Warner Chappell argues that the Copyright Act’s statute of limitations bars Nealy from recovering for damages going that far back. 

The legal question in this case is whether under the Copyright Act’s “discovery accrual” statute of limitations rule, a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit. Lower courts have held that for actually filing a lawsuit, the statute of limitations clock starts to run based on when a plaintiff discovers the alleged infringement. This case raises a related question of how far back courts should look when assessing damages—just three years from the date of filing the suit, or an indeterminate period of time as long as it was within three years of the plaintiff discovering the harm? 

We joined  an amicus brief with EFF, the American Library, and the Association of Research Libraries in support of Warner Chappell. EFF did most of the heavy lifting for this brief (thank you!), making the case that a damages regime that extends indeterminately into the past will stifle creativity and encourage copyright trolls. A three-year lookback period is enough. 

We’ve long argued that the copyright’s damages regime needs to be reformed for authors. With statutory damage awards of up to $150,000 per work infringed,  the specter of such crippling liability can chill even non-infringing and socially beneficial acts of authorship, dissemination, archiving, and curation. For authors, it takes little imagination to see how problematic it would be if opportunistic copyright litigants with flimsy claims could leverage a decades old acts—e.g., an image reproduced in a blog post or article or book pursuant to fair use—to extract large damage awards spanning many years. If the court were to allow damages to reach back indeterminately, we argue that copyright trolls would be emboldened, hampering creativity and harming creators while providing them little forward-looking benefit for protection of their own works. 

NetChoice v. Paxton and Moody v. NetChoice: First Amendment and Online Platform Regulation

This case has received a ton of attention, in part because it is so politically charged. The basis of the suit is a challenge brought by NetChoice and CCIA, two internet and technology industry groups, against  laws passed in Texas and Florida that attempt to regulate how large social media websites moderate speech on their platforms. Each of those laws are ostensibly designed to protect the speech of users by limiting how platforms can remove or otherwise moderate their posts and each were passed in response to accusations of political bias.

On their faces these laws sound appealing—authors along with many other users are frustrated with opaque decision making on platforms about why their posts may be taken down, demonetized, or deprioritized by platform algorithms. These are real problems, but in our view, the right solution is not government-dictated content moderation rules. Authors use a wide variety of online platforms and rely heavily on content moderation to ensure that their views are not drowned out by spam, lies, or trolls. 

For our amicus brief, we joined EFF along with the National Coalition Against Censorship, Woodhull Freedom Foundation, Fight for the Future, and the First Amendment Coalition. We argue as follows: The First Amendment right of social media publishers to curate and edit the user speech they publish, free from government mandates, results in a diverse array of forums for users, with unique editorial views and community norms. Although some internet users are understandably frustrated and perplexed by the process of “content moderation,” by which sites decide which users’ posts to publish, recommend, or amplify, it’s on the whole far best for internet users when the First Amendment protects the sites’ rights to make those curatorial decisions. This First Amendment right to be editorially diverse does not evaporate the moment a site reaches a certain state-determined level of popularity. But both Texas House Bill 20 (HB 20) and Florida Senate Bill 7072 (SB 7072) take those protections away and force popular sites to ignore their own rules and publish speech inconsistent with their editorial vision, distorting the marketplace of ideas.

Content moderation by online intermediaries is an already fraught process, and government interjection of itself into that process raises serious practical and First Amendment concerns. Inconsistent and opaque private content moderation is a problem for users. But it is one best addressed through self-regulation and regulation that doesn’t retaliate against the editorial process.