Courts CP - Michigan 7 2024 BLP

Courts CP---BLP
Notes
Thank you to Aaron, Cayli, Dylan, Hanbo, Jack, Kate, Reyha, Rohan, Valeria, and Wendy! Y’all did great on the file!
Neg side of things. This counterplan is a courts CP that competes (and generates an internal net benefit) by not being statutory interpretation. Statutory law is law based off a specific legislative work, so like if the court cites an act, they are doing statutory interpretation. The counterplan, while it maybe has some remote basis in statutes, is primarily court-driven lawmaking, which here is called “common law.”
The internal net benefit is about why common law creates effective climate change regulations. Other, external net benefits to the counterplan are elections, politics, and maybe federalism, but I think the internal is probably a bit better.
Aff answers. I think perm do the counterplan should be the A strat, since the negative competition argument hinges on either A) the awful argument that “the” and “USFG” means 3 branches, and the counterplan is a pic (ew and not included in this file for moral reasons) or B) slightly better push of “IPR” is statutory, as opposed to common law (also in the T starter packet file).
Outside of that, the democracy solvency deficit is pretty good offense.
For questions, feel free to contact donpierc@umich.edu
Happy debating!
Don
Negative
1NCs
1NC---Courts CP---IPR
The federal judiciary should use common law to interpret [plan].
Counterplan solves better, competes, and establishes federal common law incrementalism in intellectual property---that’s fundamentally distinct from the AFF’s statutory policy, and tailors the law case-by-case.
Shyamkrishna Balganesh 10. [Assistant Professor of Law, University of Pennsylvania Law School. “The Pragmatic Incrementalism of Common Law Intellectual Property” Vanderbilt Law Review, volume 63, issue 6. November 2010. https://scholarship.law.upenn.edu/faculty_scholarship/305/]//dawn
Intellectual property is today thought to be principally of statutory origin. Discussions of the subject invariably revolve around a close scrutiny of the federal statutes involved. Indeed, the frequency with which Congress amends the patent and copyright statutes seems to leave little doubt that it alone determines intellectual property’s precise content and coverage.1 Nevertheless, there exists a rather robust body of state law that is almost entirely the creation of state courts and is directed at creating entitlements in information, ideas, expression, goodwill, one’s image, and other related intangibles. These rights regimes are in turn collectively referred to as “common law intellectual property.”2 Examples include the right of publicity, unfair competition, common law copyright, trade secrets, misappropriation, common law idea protection, and passing off.
While each of these regimes covers a distinct intangible, they all share the same structural characteristics.3 Each originates in a cause of action that is grounded in tort, contract, or unjust enrichment and is tailored to the circumstances under which protection is deemed necessary. Unlike the one-size-fits-all federal copyright and patent statutes, these regimes allow courts to adopt a far more nuanced approach to intellectual property protection. Instead of relying on a single overarching theory to justify protection, courts look to the practical needs of a particular area, recognize multiple values as relevant for consideration there, and then adopt a highly contextual approach to protection, one best described as “antifoundational.” Additionally, the common law method that they employ develops the law incrementally, recognizing the need for caution in a rapidly changing social and technological environment, and allowing future courts to extend, limit, or at times altogether deny protection when circumstance and context change. I call this method of adjudication and rule development “pragmatic incrementalism,” in that it exhibits the characteristics of both legal pragmatism and common law incrementalism.
Several of these common law regimes are almost as old as their statutory counterparts, if not older.4 Yet, for decades now, many have voiced their skepticism about the usefulness of these rights, especially in light of congressional activity in the area.5 Justice Louis Brandeis and Judge Learned Hand, both outspoken champions of the common law in other contexts, were well-known skeptics of common law intellectual property.6 They feared that allowing courts to create and develop intellectual property rights would result in the overprotection of information, thereby impeding free speech and allied interests. More recently, Douglas Baird has argued that, while common law intellectual property has done little to impede the free flow of information, its deep flaw nonetheless lies in having courts choose among competing analogies to develop the law.7 Since each analogy emphasizes a different value, Baird argues that courts are hardpressed to choose effectively among them.
On closer examination, however, these objections are myopic. In focusing entirely on the issue of judicial competence, they disregard the structural and substantive advantages that accompany common law rulemaking in intellectual property, all of which are borne out by the continuing vitality of these regimes. The method of pragmatic incrementalism that courts have come to employ emphasizes a cautionary, context-sensitive approach to intellectual property development. The extensive situational tailoring and modification that this incrementalism brings about adequately safeguards the process against the possibility of overprotection. Besides, recent developments in the federal arena have also cast serious doubt on claims of legislatures’ superior competence in intellectual property lawmaking. In particular, the federal copyright and patent systems are in a state of crisis. Congress has repeatedly extended the term and coverage of copyright protection, often bereft of any reason other than pure industry rent seeking, prompting calls for radical reform.8 So too, the patent system seems to be stifling rather than stimulating innovation in a variety of different areas.9 Unsurprisingly, scholars have begun calling for fundamental changes to the patent system as well.10 Despite all of this, reform efforts have met with little success as a consequence of the interest group gridlock that is endemic to most congressional efforts. Few, if any, have turned to courts and the common law for solutions in recent times.11
Baird’s concern that courts are hard-pressed to choose between different analogies also underappreciates the significance of antifoundational decisionmaking, a core feature of pragmatic incrementalism. Rather than relying on a single foundational theory for the regime, the process requires courts to balance several competing values as they relate to a particular context. In other words, the very selection of an “appropriate” analogy from among several options forces courts to confront and recognize as legitimate a multiplicity of goals and interests for the institution12—a strong virtue of analogical reasoning in the law.13
What exactly is intellectual property law trying to achieve? For decades now, courts, scholars, and legislators have struggled to articulate a coherent theory of intellectual property.14 These theoriesprincipally normative in orientationpropose a unifying principle for a regime and then explicate that principle in different parts of the law. They prize consistency and coherence across time and context. In the process though, they either classify deviations as anomalies or creatively reinterpret them as being driven indirectly by the same unifying principle. The diversity of scholarship that follows this pattern captures the pervasiveness of this phenomenon. To law and economics scholars, such as William Landes and Richard Posner, the entire field of intellectual property law is driven by a core concern for promoting economic efficiency, minimizing transaction costs, and providing creators with an incentive to create.15 To libertarians, such as Richard Epstein, intellectual property law is in the end about “property” and therefore imbued with classical liberal values.16 Others have made similar claims about specific types of intellectual property. Jane Ginsburg, for instance, has long argued that copyright law is about “authorship” and the centrality of authorial control over creative works.17 In a similar vein, Roberta Kwall has argued that copyright law should be understood as a mechanism to protect the intrinsic dimension of creativity—the morality of authorship.18 Regardless of ideology, the search for a grand theory continues to dominate the intellectual property landscape.19
Normative coherence, however, does not require a single overarching value, or indeed even a finite set of values. It can at once acknowledge the incommensurability of the various values involved and strive to accommodate them institutionally. For centuries now, the common law method has done just this, enabling it to accommodate and affirm a host of otherwise conflicting values through a process of practical reasoning. And indeed common law intellectual property regimes build on this basic feature of the common law, an attribute that its detractors ignore.
1NC---Courts CP---Trademark
Supreme Court can effectively strengthen trademark enforcement---recent cases prove.
Richard M. Assmus et. al. 23, Leader of Chicago Office Intellectual Property, “Supreme Court Decision Strengthens Brand Holders’ Ability to Protect Their Trademarks Against Alleged Parodies”, June 9, Mayer Brown, https://www.mayerbrown.com/en/insights/publications/2023/06/supreme-court-decision-strengthens-brand-holdersability-to-protect-their-trademarks-against-alleged-parodies//WS
In a unanimous decision, the Supreme Court issued an important ruling on June 8, 2023 that will strengthen brand holders’ ability to enforce their trademark rights against unauthorized commercial uses claiming protection under the First Amendment. Jack Daniel’s Properties v. VIP Products, No. 22-148. In particular, the Supreme Court reversed a 9th Circuit decision permitting an allegedly parodic dog toy sold as “Bad Spaniels”—a play on the whiskey brand “Jack Daniel’s”—to escape any Lanham Act liability under theories of infringement or dilution.
The Lanham Act creates causes of action for trademark infringement and dilution. In a typical infringement case, a court asks whether the defendant’s use of a mark is “likely to cause confusion, or to cause mistake, or to deceive.” 15 U. S. C. §§ 1114(1)(A), 1125(a)(1)(A). Where “expressive works” that use a trademark are involved, the Second Circuit created the “Rogers test” to protect First Amendment values of free speech. See Rogers v. Grimaldi, 875 F. 2d 994, 999 (2d. Cir. 1989) (Newman, J.).To apply the Rogers test, the court asks whether the trademark holder seeking to enjoin the trademark use can demonstrate (1) that the challenged use of a mark “has no artistic relevance to the underlying work” or (2) that it “explicitly misleads as to the source or the content of the work.” Id. at 999.
Trademark dilution generally exists where a party uses another’s famous trademark in a way that “harms the reputation” of the trademark via blurring and/or tarnishment. 15 U.S.C. §§ 1125(c)(2)(A), (C). However, the Lanham Act excluded “noncommercial use of a mark” from dilution liability. Id. at § 1125(c)(3)(C). This is a form of “fair use” that protects parody, criticism, and commentary on a famous trademark from dilution liability.
In the case of Jack Daniel’s Properties v. VIP Products, VIP Products (“VIP”) makes a squeaky, chewable dog toy designed to “parody” the look of a Jack Daniel’s-brand whiskey bottle. For example, the words “Jack Daniel’s” become “Bad Spaniels,” and “Old No. 7 Brand Tennessee Sour Mash Whiskey” turns into “The Old No. 2 On Your Tennessee Carpet.” Jack Daniel’s demanded VIP stop marketing the product.
[picture omitted] VIP responded to Jack Daniels’ demand by filing a declaratory judgment lawsuit, asking a court to declare that its “Bad Spaniels” dog toy did not infringe the famous Jack Daniel’s trademark. Jack Daniel’s counterclaimed, arguing that VIP’s use infringed and diluted its famous JACK DANIEL’S trademark. VIP argued that Jack Daniel’s infringement claim failed under the Rogers test and that its parodic use was protected fair use under the Lanham Act.
The District Court rejected VIP’s contentions because VIP used the Jack Daniel’s trademark to identify the source of VIP’s own products, not to parody, criticize, or comment on the JACK DANIEL’S brand or whiskey bottle. The District Court explained that when another’s trademark is used for “source identification,” Rogers and fair use do not apply. At trial, the District Court found that consumers were likely to be confused about the source of the Bad Spaniels toy and that the toy’s negative associations with dog excrement (e.g., “The Old No. 2”) would harm Jack Daniel’s reputation. The Ninth Circuit reversed, holding that since VIP’s use is “expressive,” the Rogers test is the threshold question. If Jack Daniel’s cannot satisfy the Rogers test, the trademark infringement claim fails. The Ninth Circuit also held that VIP’s use was protected under the Lanham Act’s “noncommercial use” exclusion to dilution liability.
The Ninth Circuit remanded the case to the District Court to decide whether Jack Daniel’s could satisfy the Rogers test. The District Court found that Jack Daniel’s could not, and granted summary judgment to VIP on infringement. The Court of Appeals affirmed. Jack Daniel’s appealed to the Supreme Court. The Supreme Court overturned the Ninth Circuit’s decision, and held that when an alleged infringer uses a trademark as a designation of source for the infringer’s own goods, the court should analyze whether the infringer’s use is likely to confuse consumers into believing the use is associated with the trademark holder. The Court explained that the Rogers test “is not appropriate when the accused infringer has used a trademark to designate the source of its own goods—in other words, has used a trademark as a trademark. That kind of use falls within the heartland of trademark law, and does not receive special First Amendment protection.”
Although the Supreme Court made it clear that it took no position on the propriety of the Rogers test, the Court explained that the Rogers test may be appropriate where a trademark is used solely to perform some other expressive function, not to designate a work’s source. See, e.g., Mattel, Inc. v. MCA Records, Inc., 296 F. 3d 894, 901 (2002) (use of the Barbie name in band’s song “Barbie Girl” was “not [as] a source identifier”). By contrast, the Court explained that the traditional likelihood-of-confusion analysis, not the Rogers test, should be applied in cases where trademarks are used as trademarks—i.e., to designate source. See, e.g., Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 412 (SDNY 2002) (Mukasey, J.)(parodic pet perfumes did not trigger Rogers because defendant’s use of Tommy Hilfiger’s mark was “at least in part” for “source identification”).
The Supreme Court also held that the Lanham Act’s exclusion from dilution liability for “noncommercial use of a mark” does not apply when an alleged diluter uses a mark as a source identifier for its own goods. The Court explained that the use of a mark “does not count as noncommercial just because it parodies, or otherwise comments on, another’s products.” The Lanham Act specifically states that the exclusion of liability for “noncommercial use” does not apply when the alleged diluter uses the trademark “as a designation of source for the person’s own goods or services.” 15 U.S.C. § 1125(c)(3)(A). The Court stated that “the Ninth Circuit’s holding to the contrary put the noncommercial exclusion in conflict with the statute’s fair-use exclusion.”
This decision has important takeaways for brand owners who wish to enforce their trademark rights against unauthorized commercial uses claiming protection under the First Amendment:
The holding provides brand holders more control over their trademarks. Using another’s trademark as a source identifier (e.g., on commercial goods) can infringe, despite having an expressive quality. Trademark owners will now have an easier time preventing unauthorized uses of their marks on consumer goods that parody or criticize their brand.
Businesses must be careful not to use another brand’s trademark in a way that may confuse consumers. Businesses that market goods in a way that suggests to consumers that their brand is affiliated with the trademark owner could infringe the trademark holder’s trademark. This is true even if the use is meant to poke fun at the trademark.
Content creators should be careful when parodying or commenting on another brand’s trademarks in a commercial way. A content creator that criticizes another’s trademark on a commercial product (e.g., posters or video games) can still be liable for dilution. The use of a mark does not count as noncommercial just because it parodies or otherwise comments on another’s products.
1NC---Courts CP---Patents
CP solves - current patent eligibilities contain too much uncertainty, but Federal and Circuit Court Judges show concern.
Kristen Osenga 2019 - Professor of Law, University of Richmond School of Law; Senior Scholar, Center for the Protection of Intellectual Property (“Institutional Design for Innovation: A Radical Proposal for Addressing § 101 Patent-Eligible Subject Matter”, American University Law Review [68:1191], 2019, https://aulawreview.org/blog/institutional-design-for-innovation-a-radical-proposal-for-addressing-%C2%A7-101-patent-eligible-subject-matter/, Accessed 7/26/24) // HS
The United States—the land of innovation—has an innovation problem. Two reports recently published announced that the country has fallen from its previous position as a leader in innovation. One report, the 2018 Bloomberg Innovation Index, stated that the United States dropped out of the top ten innovative countries for the first time in the six-year history of the index.1 The other report, the United States Chamber of Commerce’s Global IP Index for 2018, stated that the country remained atop the list generally but fell significantly with respect to patent protection.2 In fact, in the Chamber’s index, the United States dropped completely out of the top ten with respect to countries offering strong patent protection to innovators, falling to a tie for twelfth with Italy.3 Additional reports indicate innovative firms are leaving the United States and shifting their operations overseas to Europe and China.4
What is behind the collapse of the United States as an innovation leader? In part, it is due to the erosion of effective and reliable patent protection available to inventors and innovators.5 There is a strong correlation between effective patent rights and growing innovation economies, including investment in new ideas.6 One particular area of patent law that has contributed to the erosion of reliable patent rights is patent-eligible subject matter—or what types of inventions can be patented. Patent-eligible subject matter, as others have recognized, is a “real mess.”7 It is chaotic,8 “a foggy standard cloaked as a rule,”9 “rife with indeterminacy,”10 and in a “state of crisis.”11 Even U.S. Court of Appeals for the Federal Circuit (Federal Circuit) judges, who are partially responsible for the state of the doctrine, have expressed concern about the level of confusion surrounding the doctrine.12 Importantly, the issue of patent-eligible subject matter disproportionately affects two industries that represent a substantial sector of the United States economic and innovation base: biotechnology and computer-related inventions.13
The current chaos that is pate

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