Aaron K. Perzanowski

Relative Access to Corrective Speech: A New Test for Requiring Actual Malice

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment. The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Courts understanding of the means of communicating with mass audiences. As a result, the public figure doctrine looks only to the status of the plaintiff in determining the appropriate degree of fault. But the development of many-to-many media, like the internet, challenges the assumptions that underlie the public figure doctrine. Many-to-many media increase access to the means of mass communication, creating variety among speakers that Court neither considered nor predicted in constructing the public figure doctrine. In such a heterogeneous and dynamic communications environment, the uniform treatment of defamation defendants should be questioned. This Article suggests that in determining whether the actual malice standard should apply, courts should consider not only variations among plaintiffs, but they should also demonstrate sensitivity to the increased diversity among defamation defendants. By considering a plaintiffs ability to avail herself of corrective counter speech not in isolation, but in light of the reach of the defendants publication, courts can more usefully apply the actual malice standard in the contemporary communications environment.

Clown Eggs, Creative Norms, and the Social Value of Property Registers

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the clown egg register and its surrounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller derby skaters, tattoo artists, and other subcultures—have developed an elaborate informal scheme in lieu of state- created copyright or trademark law to regulate their creative production. Second, this Article explores a rarer phenomenon in the norm-based IP context: formalized registration related to norm-based ownership rules. It shows that the Register exists not only to support those rules, but also serves a host of non- exclusion functions, including expressing members’ professionalism, conferring a sense of prestige, and creating a historical record. Finally, this Article shows how its analysis of the Clown Egg Register offers lessons for the study of registers in the context of tangible and intellectual property alike.

Legislating Digital Exhaustion

The digital shift in distribution, from markets premised on disposing of physical artifacts to markets defined by data flows, is among the most important changes in the copyright landscape since the enactment of the 1976 Copyright Act. The disconnect between this new reality and our current statutory rules is particularly evident when it comes to the question of exhaustion. The first sale doctrine embodied within Section 109 was constructed around a mode of dispossession that is rapidly becoming obsolete. As a result, the benefits and functions it has long served in the copyright system are at risk. Building on our earlier work, this Article will argue that a meaningful exhaustion doctrine should survive the digital transition. After explaining the two primary hurdles to digital exhaustion under the existing statutory regime, we outline two possible approaches to legislating digital exhaustion, concluding that a flexible standards-based approach that vests considerable authority with the courts is the better solution.