Whose Tattoo is it Anyway?

" Whose Tattoo is it Anyway? ," Los Angeles Times , Oct. 6, 2013 (with Kal Raustiala)

"Whose Tattoo is it Anyway?," *Los Angeles Times*, Oct. 6, 2013 (with Kal Raustiala)

Kal Raustiala & Christopher Jon Sprigman, Whose Tattoo is it Anyway?, Los Angeles Times (Oct. 6, 2013), https://www.latimes.com/opinion/op-ed/la-oe-raustiala-tattoo-copyright-20131006-story.html

Who owns a tattoo? The obvious answer is the wearer, who paid for the ink and is now permanently (more or less) attached to it. Yet recent disputes have called into question the easy idea that if you buy a tattoo, you also own it and can display it as you like. Tattoo artists are increasingly claiming that they, like other artists, own the copyright to the images they create. And when those images, attached to living people, appear on the silver screen — or a computer monitor — the artists want to get paid. Late last year, for example, Stephen Allen, a tattoo artist, sued video game maker Electronic Arts and former Miami Dolphins running back Ricky Williams over a tattoo Allen put on Williams’ bicep. The tattoo appeared on the cover of EA’s “NFL Street” video game. Allen claimed that the reproduction and display of the tattoo violated his copyright. That case was dismissed in April at the request of the plaintiff, but because so many NFL players have tattoos, it got the attention of the NFL Players Assn. NFLPA officials began advising players to get copyright waivers from their tattoo artists. George Atallah, an NFLPA official, told Bloomberg Businessweek that the union recently cautioned its players: We know you love your tattoo artists, but regardless of whether you trust them, regardless of whether there are legal merits to the lawsuits that we’ve seen, just protect yourself. Allen’s was not the first lawsuit. Others include a 2011 case brought by tattoo artist Victor Whitmill against Warner Bros. The suit was filed just weeks before the release of the hit film “The Hangover: Part II.” In the film, comedian Ed Helms wakes up with a copy of boxer Mike Tyson’s famous Maori-inspired facial tattoo. Whitmill claimed that Warner Bros. owed him for re-creating the Tyson tattoo. The case was settled for an undisclosed sum. At one level, the idea that one person owns an integral part of another person’s body seems hard to fathom. But as tattoos move ever more into the mainstream — more than one-third of Americans younger than 40 now have one — the issue is hardly as arcane as it may first appear. Yet there’s little doubt that tattoos are copyrightable under American law. In our intellectual property system, all that’s required is that they be minimally creative, “fixed in a tangible medium of expression” (which simply means written down in some way) and persist for more than a “transitory duration.” Given how hard tattoos are to remove, and that ink on skin is little different than ink on paper, tattoos clearly fit the bill. But if there’s little doubt that tattoo artists are entitled to copyright, it is far from clear what rights that should give them over their creations. Ordinarily, copyright owners have the exclusive right to authorize public displays of their work. This means that an artist can, for example, sell a painting to a collector, but for the artwork to appear in a film, the artist must either approve or have explicitly sold that right to the collector. In the case of a tattoo, does that mean that the tattoo artist copyright owner has the right to order his client to stay indoors — or off the movie set? Surely not. That would be a denial of the client’s personal freedom, and no court would or should allow it. But short of that, how much control should copyright law give a tattoo artist over the person whose skin bears the artist’s work? The best way to answer that question is for courts to establish a rule for what lawyers call an “implied license.” This would mean that, in the absence of a written contract providing otherwise, the tattoo artist waives any right to control public display or commercialization of the tattoo as it appears on the client’s body. Such a rule is fair for two reasons. First, tattoos are the only form of art that is indelibly fixed on a human body. To give a tattoo artist control over how the tattoo may appear in a film or other work inevitably means giving that artist some control over the body that bears it. Copyright law was never meant to give anyone control over someone’s freedom to move about in public, to have their picture taken or to commercialize their likeness. Second, the law should reflect what both inker and inked reasonably expect when the tattoo is purchased. Copyright disputes over tattoos will almost always involve celebrities. When a tattoo artist works on a public figure, whether an athlete or actor, he knows that his art will be going public as well. And of course the artist is free to demand a higher price for a tattoo that will get wide notice. There’s no guarantee, of course, that the artist will get it or even ask for it — having a tattoo displayed prominently on a popular athlete’s or movie star’s body is a great career-builder. But the point is that when a tattoo artist works on a celebrity, everyone expects that the tattoo will be displayed publicly, and that the celebrity may profit from images that include the tattoo. The artist and his client can certainly agree otherwise in a written contract. Absent such an explicit agreement, the legal rule should align with what everyone expects: that people with tattoos will move around, appear in public and maybe star in a video game. Copyright law should not provide a way for tattoo artists to restrain the freedom of their clients. Kal Raustiala and Christopher Sprigman are law professors at UCLA and NYU, respectively, and the coauthors of “The Knockoff Economy: How Imitation Sparks Innovation.”


" Why notice-and-takedown is a bit of copyright law worth saving ," Los Angeles Times , June 21, 2016 (with Mark Lemley)

"Why notice-and-takedown is a bit of copyright law worth saving," *Los Angeles Times*, June 21, 2016 (with Mark Lemley)

Christopher Jon Sprigman & Mark Lemley, Why notice-and-takedown is a bit of copyright law worth saving, Los Angeles Times (June 21, 2016), https://www.latimes.com/opinion/op-ed/la-oe-sprigman-lemley-notice-and-takedown-dmca-20160621-snap-story.html

The United States leads the world in both technology and cultural influence for many reasons — our individualism, our diversity, our leading universities and dedication to free expression. But one essential reason goes mostly unsung: Back when the Internet was just getting started, America got a vital bit of copyright law right. Specifically, the “notice and takedown” provisions in the Digital Millennium Copyright Act. The DMCA, which was incorporated into U.S. copyright law in 1998, established how copyright owners and Internet companies would share responsibility for dealing with online copyright infringement. That process has worked well for years, but now Hollywood and major record labels want Internet companies like Google and Facebook to bear a greater share of the burden of rooting out piracy. The result could be a broken Internet. Here’s how “notice and takedown” works today. If you hold the copyright on a work — a song, a movie, a book — and someone has uploaded it to YouTube or some other Internet service provider, you send a notice to that ISP. You must, however, point to a specific violation and identify the Internet address of the infringing material; a general complaint about piracy won’t do. Once the ISP receives the proper notice, it must take down the allegedly infringing material and tell the customer who put it online that it has done so. A customer can promptly file a “counter notification” if he believes in good faith that he has a legal right to publish the material online. Which he might. He could have licensed it, or the post may fall within the boundaries of copyright’s fair use doctrine. If there is a counter notification, the ISP puts the content back online unless ordered by a court to take it down. ISPs that follow these and other related procedures are immune from copyright liability for whatever content their customers post online. This policy offers a fair balance. ISPs cannot possibly prescreen every photo, blog post, song, video — or assess whether each is licensed or within the bounds of fair use. People view hundreds of millions of hours of videos every day on YouTube alone. The DMCA lets ISPs do business responsibly without the threat of ruinous copyright liability. At the same time, the notice-and-takedown system is a powerful tool against pirated content. Copyright owners sent more than 500 million takedown requests just to Google last year. In short, the DMCA makes the Internet as we know it today possible. Which is why it is so alarming that studios and record companies are now trying to undermine it. The genius of the DMCA is that it lets technology startups comply with the law without hiring a platoon of copyright lawyers. The genius of the DMCA is that it lets technology startups comply with the law without hiring a platoon of copyright lawyers. The U.S. Copyright Office — which has a history of favoring the interests of Hollywood and record companies over Silicon Valley technologists — recently solicited public comments and held hearings on the notice-and-takedown provisions. The Copyright Office is widely expected in the next year to recommend that Congress make changes to the DMCA, possibly adopting Hollywood’s preferred approach: “notice and staydown.” The idea of “notice and staydown” is that when an ISP receives a notice of copyright infringement it would then search out and delete all copies of that work and, more importantly, block that work from ever being uploaded again. That sounds good in theory. But consider it in just a bit of depth and its appeal quickly falls apart. First, just because one user is infringing on a copyright doesn’t mean that a second user who posts the same content is also infringing. The second person may be licensed or making a sort of use — for example, a non-profit educational use — that the law often treats as permissible. Notice and staydown would guarantee that such perfectly legitimate uses would get blocked. But there’s a worse problem. Notice and staydown effectively kills the chance of any startup or entrepreneur to compete with established players such as YouTube and Facebook. It’s impossible to enforce any “staydown” without technologies that mark and identify copyrighted material. And that sort of technology is extremely expensive. YouTube has what is considered the most sophisticated system out there, called Content ID. It takes digital “fingerprints” of copyrighted works and checks all new uploads against those fingerprints. Something even more elaborate than Content ID would be required to make notice and staydown work. Content ID cost Google more than $50 million to build. Not many startups can replicate that. The genius of the DMCA is that it lets technology startups comply with the law without hiring a platoon of copyright lawyers. It also enables entertainment companies to turn piracy into legitimate revenue. YouTube’s Content ID system, for instance, gives copyright owners the opportunity to “claim” their work and share in any advertising revenue rather than pull it off the site. Copyright holders, including record companies and TV and movie studios, already have collected more than $1 billion by monetizing formerly illegal content on YouTube under this system. A good political compromise leaves all sides slightly disappointed. The DMCA is just such a compromise. Technology companies remove pirated content by their users. Entertainment companies must proactively identify that pirated content. It’s not a perfect system, but it works — and because of it, the Internet works too. Chris Sprigman is a law professor at New York University and co-author of “The Knockoff Economy: How Imitation Sparks Innovation.” Mark Lemley is a law professor at Stanford and founding partner at the law firm Durie Tangri. Follow the Opinion section on Twitter @latimesopinion and Facebook

Op-Ed: Why notice-and-takedown is a bit of copyright law worth saving


Why Ripoffs Aren't All Bad

" Why Ripoffs Aren't All Bad ," Daily Beast , Sept. 8, 2012 (with Kal Raustiala)

"Why Ripoffs Aren't All Bad," *Daily Beast*, Sept. 8, 2012 (with Kal Raustiala)

Kal Raustiala & Christopher Jon Sprigman, Why Ripoffs Aren't All Bad, Daily Beast (Sept. 8, 2012), https://www.thedailybeast.com/in-the-knockoff-economy-the-upside-to-ripping-off-others-ideas?ref=author

Back in 2007, Ed McFarland opened a restaurant in downtown Manhattan called Ed’s Lobster Bar. For years, McFarland had been the sous chef at the popular Pearl Oyster Bar in Greenwich Village. Pearl’s chef and owner, Rebecca Charles, built a following based on her excellent seafood, elegant but spare New England coastal décor, and signature Caesar salad. Eventually McFarland sought to strike out on his own, and when he did, he took with him a lot of ideas from his years at Pearl. At least, so claimed Rebecca Charles. Shortly after Ed’s Lobster Bar opened, an angry Charles filed suit in federal court. She claimed McFarland had “pirated Pearl’s entire menu; copied all aspects of Pearl’s presentation of its dishes; [and] duplicated Pearl’s readily identifiable décor.” Ed’s Lobster Bar was “a total plagiarism.” Perhaps most galling to Charles was the Caesar salad. When she taught McFarland how to make her signature dish, she said she told him “you will never make this anywhere else.” Ed’s Lobster Bar nonetheless featured a Caesar salad somewhat tauntingly dubbed “Ed’s Caesar.” McFarland, of course, saw things differently. “I would say it’s a similar restaurant,” he told the press. “I would not say it’s a copy.” The suit between Charles and McFarland was settled out of court. But the issues it raised continue to vex chefs. What makes a dish original? And should copying a chef’s signature dish be against the law? The answers are unclear, but a lot of money is at stake. U.S. restaurants raked in more than $600 billion in 2011. And Americans increasingly care about creative flair in their food, obsessing over obscure ingredients on shows like Top Chef Masters and following the comings and goings of chefs in the dining pages of major newspapers. Surprisingly, however, chefs have almost no rights in their creations. Recipes, no matter how original, are not protected by copyright. While a cookbook cannot be copied as a whole, the individual recipes can be republished by anyone—as a brief tour of popular cooking websites makes clear. A dish ordered in a restaurant can be freely copied as well. Anyone can reverse-engineer a terrific dish , and recreate it elsewhere—whether they attribute it to the original chef or not. As any connoisseur of good food knows, this kind of copying happens all the time. Molten chocolate cake; miso-glazed black cod; fish in potato “scales” with a red wine and leek sauce—all of these and many more have been copied widely. Copying is everywhere in the world of cuisine. This kind of copying is supposed to kill creativity. The central idea behind our copyright and patent laws is that if copying is allowed, creativity will dry up as copyists flood the market with cheap knockoffs. The fight against copying is, as a result, a major focus in today’s information-based economy, and the federal government devotes a substantial effort to regulating copying. Just think of Napster and all the lawsuits—and new laws—aimed at stopping kids from downloading music. So too, increasingly, are rising levels of copying a bone of contention in our international relations, especially China. Yet copying has not killed creativity in the kitchen. In fact, the restaurant industry not only survives despite copying; it thrives due to copying. How can copying be beneficial? Because copying can enable as well as inhibit innovation. When we think of innovation, we usually picture the lonely genius toiling away until he finally has his “aha!” moment. But in fact, innovation is often an incremental, collective, and competitive process. The ability to build on existing creative work is critical to the creation of new and better innovations. Once we look, we see examples all around us. Apple took the idea of a mouse and an icon-based computer display from researchers at Xerox and tweaked it for home use. Disney’s Steamboat Willie, and by extension Mickey Mouse, was a sort of proto-remix of Buster Keaton’s Steamboat Bill. Thomas Edison’s lightbulb imitated elements from more than a dozen earlier bulbs. Shakespeare’s Romeo and Juliet borrowed from earlier writers—and West Side Story in turn drew heavily from Shakespeare. This kind of copying often leads to more choice—many variations on a theme—and so is great for consumers. It can serve as a powerful form of advertising for originators, one that carries weight because it is authentic (who would copy a bad Caesar salad?) and may even grow the overall market. Which brings us back to Rebecca Charles and Ed McFarland. Charles’s lawsuit was really about whether McFarland had copied the décor and overall look of her restaurant, not whether he could knock off her famous Caesar salad. (Recipes, recall, can be legally copied by anyone.) But what impact did Ed’s copying have? As it turns out, five years after Ed’s Lobster Bar opened, Pearl Oyster Bar is still doing a bang-up business. And no fewer than three other seafood/raw bars have opened in the neighborhood. Ed’s knockoff didn’t kill the golden goose—and may have started a trend. Trends like these can be very valuable to firms. Cuisine is not the only creative endeavor that has benefited from the freedom to copy. Consider a very different field: football. When football started more than a century ago, it was a brutal game of straight-ahead running plays. The results were sometimes disastrous in an age when players wore little protection. In the 1905 college season, 18 players were killed. After viewing a photo of a mutilated player, President Theodore Roosevelt demanded change. The forward pass was born. Passing changed football forever. The pass added a range of previously unimaginable complexities to the offense, which demanded new defensive countermeasures. The result has been a continuous wave of innovation. And a just-as-continuous wave of copying. A great example is the “no-huddle offense.” In 1989, Sam Wyche, then-coach of the Cincinnati Bengals, had the seemingly crazy idea of employing a “hurry-up” offense, typically used in a game’s waning minutes, during the entire game. The offense became known as the No Huddle, and it worked exactly as it sounds—Wyche’s Bengals ran a very quick series of pre-scripted plays without huddles, all with the object of confusing and tiring the opposing defense. The strategy worked brilliantly. So much so that it provoked anger among opposing coaches. In the days leading up to a playoff game against the Buffalo Bills, Bills Coach Marv Levy angrily asserted that the No Huddle was equivalent to cheating. But anger soon gave way to imitation. The following season, the Buffalo Bills knocked off the strategy and went on to play in four straight Super Bowls. Yet no one has ever been able to monopolize any of the innovations that have periodically roiled the game. So why do football coaches continue to innovate, even when they know that their rivals will imitate them? For football coaches, like chefs, copying is a central part of a process of incremental, cumulative innovation. Copying allows them to create better, more novel inventions. Of course, copying can sometimes cause real harm, which is why we have copyright and patent law. But in many other cases, the benefits of copying more than outweigh the harms. And this is good news in a world in which copying is ever easier. In the creative fields, from fashion to food to finance to font design, imitation co-exists with innovation. If the future is going to be one of more, rather than less, copying—and everything to date suggests that will be the case—this is good news. These industries show us the ways in which innovation can continue to thrive in a knockoff world. And this has implications for how we think about rules against copying in our increasingly ideas-based economy. Consider this: in the 1980s, Hollywood tried to eliminate a fearsome new copying technology—the VCR—that the industry’s chief lobbyist, the famed Jack Valenti, in a congressional hearing memorably likened to the Boston Strangler. Contrary to Valenti’s prediction, of course, the home-video market became a huge moneymaker,, one that poured many more dollars into the film studios’ coffers than piracy was ever able to steal away. As this history shows, getting policies right—or wrong—can have major economic effects. Copying is not always so benign—or lucrative. And rules about copying have an important, even essential role to play in our economy. But that role is much more nuanced than many believe. Major industries survive and even thrive in the face of copying, and in some cases copying makes them richer and more productive. If we can begin to unlock that paradox, we can learn a host of important lessons about the future of innovation. Reprinted from THE KNOCKOFF ECONOMY: How Imitation Sparks Innovation with permission from Oxford University Press, Inc. Copyright © 2012 by Oxford University Press.


" Why Universities Have Started Arresting Student Protestors ," New York Magazine- Intelligencer , May 23, 2024

"Why Universities Have Started Arresting Student Protestors," *New York Magazine- Intelligencer*, May 23, 2024

Christopher Jon Sprigman, Why Universities Have Started Arresting Student Protestors, New York Magazine- Intelligencer (May 23, 2024), https://nymag.com/intelligencer/article/real-reason-colleges-are-arresting-student-protesters.html

Over the past couple of months, more than 2,000 students have been arrested at colleges and universities around the U.S. for protesting Israel’s bombardment of Gaza. That’s more student protesters arrested than at any point since the massive anti–Vietnam War demonstrations of the late 1960s. Those protests, and the sometimes violent response of police invited onto campuses to quell them, shaped for a generation how universities have responded to student protests — generally with more negotiation and less force. So what explains the apparent willingness now of university administrators to abandon those lessons and have so many student pro-Palestinian protesters arrested? It isn’t because today’s pro-Palestinian student protesters are particularly violent or disruptive. According to one study, of 553 U.S. campus demonstrations between April 18 and May 3, fewer than 20 resulted in serious interpersonal violence or property damage. That’s about 3.6 percent, which isn’t zero, but in the context of student protests on an issue that divides the university community, it’s reasonable to see the number as a success. Which again raises the question of why so many universities have responded with a heavy hand. At NYU, where I teach, president Linda Mills and her staff have called in the NYPD to arrest students simply for protesting. Dozens of students and faculty were arrested at an April 22 demonstration at Gould Plaza (in front of NYU’s Stern School of Business) that was raucous but peaceful. The administration cited unspecified instances of “disorderly, disruptive, and antagonizing behavior” but pointed to no incidents of violence, threats of violence, or other lawbreaking. (The NYU student government and the NYU chapter of the American Association of University Professors have issued statements forcefully rejecting the administration’s account of disorder. In particular, the NYU AAUP, in a report based on testimony from faculty present at the event, accuses the administration of a “gross distortion of facts.”) Sometimes, the narrative is more complicated: The circumstances of arrests have varied between universities and even between different protests at the same university. For example, on April 18, immediately following Columbia president Minouche Shafik’s grilling in Congress over alleged campus antisemitism, her administration called in the NYPD to arrest more than a hundred students who had set up tents on school property. Columbia complained that these students were trespassing and disrupting university functions. But some have been accused of more serious misconduct. For example, the several dozen students arrested on April 30 after occupying and barricading themselves inside Columbia’s Hamilton Hall have been charged with criminal trespass. However, if press reports of breaking and entering are correct, at least some of them could also have been charged with burglary. But in the relatively recent past, even these kinds of disruptive protests haven’t always led to arrests. In 1985, anti-apartheid student protesters at Columbia occupied the same building for three weeks and erected an encampment at the entrance. Columbia administrators didn’t call the cops. They negotiated with the students and then filed a lawsuit asking a New York State court to order the protesters to leave. The court granted that request — but the judge also took care to balance the university’s interests with the students’ right to protest, designating an area on the steps of Hamilton Hall and in the adjoining quadrangle in which demonstrators would be free to peacefully assemble. By October 1985, Columbia essentially gave in to the students’ divestment demands, selling $39 million of South Africa–related holdings (including stock in companies like Coca-Cola, Chevron, Ford, and American Express), making it the first Ivy League school to do so. Much the same was true at the University of Pennsylvania, where I went to college in the mid-1980s. When I arrived at Penn in the fall of 1984, protests against South African apartheid were beginning to heat up. In late January 1985, students began a series of peaceful but disruptive sit-in demonstrations, culminating in the round-the-clock occupation of Penn president Sheldon Hackney’s office. A larger student group, the Penn Anti-Apartheid Coalition, conducted a 20-day sit-in occupying the centerpiece of Penn’s campus, College Hall. Penn students also set up an encampment, which they named “Millersville” after Paul F. Miller, then chairman of Penn’s board of trustees. The name was not meant as a compliment. As with Columbia, Penn did not respond by calling in police to make arrests. Rather, it threatened to apply ordinary university disciplinary measures, but Penn’s administration also negotiated with student leaders. By June 1986, Penn’s board of trustees established a timeline for divestment. All of which only sharpens the contrast with Penn’s decision earlier this month to call in police in full riot gear to arrest students in a peaceful (albeit disruptive) pro-Palestinian encampment on its campus. So why are universities cracking down so much harder on today’s pro-Palestinian student protesters relative to 1980s anti-apartheid student protesters? Some have argued that universities’ willingness to curtail their students’ speech rights has grown out of the academic left’s abandonment of free-speech principles. This argument maintains that the university’s commitment to free speech has waned as many on the academic left promote restrictions on right-wing speech designed to make campus life more welcoming for minorities and members of other historically marginalized groups. If speech can be restricted to protect the feelings of Black or transgender students on campus, the argument goes, then it’s more difficult to hold the line on protecting pro-Palestinian speech when some Jewish students feel threatened by it. There is some truth to that perspective. Anyone who spends time on an American campus today can’t avoid noticing how the academic left has adopted the rhetoric of “safety” — i.e., the idea that students from marginalized groups cannot thrive unless they are protected from regressive political ideas and speech. This view is inimical to the central purpose of the university, which is not to make people ideologically comfortable but rather the opposite — to expose them to all manner of ideas, even ideas that may offend or undermine them. And it is also tailor-made for abuse: Now, the concept of safety has been weaponized to suppress pro-Palestinian speech — like “From the river to the sea” — that is not explicitly hateful but that questions the legitimacy of the Jewish state and can be interpreted as a call for war against it. All of which understandably makes some supporters of Israel, Jewish and non-Jewish, deeply uncomfortable. I suspect, however, that universities would be cracking down even if no campus leftist had ever argued that some right-winger’s freedom of speech was less important than a minority student’s safety. The central reason for the crackdown on pro-Palestinian student protests is both simpler and sadder: America’s universities are, and long have been, only situationally committed to free speech. Specifically, universities are unable to adhere to their own avowed commitment to student free speech whenever an important part of their community disagrees with the message. It was relatively easy for universities to tolerate disruptive 1980s anti-apartheid protests because no one in the community was making the case for the racist South African government. (Although there were, predictably, a few apartheid sympathizers at Dartmouth.) In contrast, virtually every university community is deeply divided over the Gaza war, as they were over the Vietnam War back in the 1960s. And in both those instances, we saw universities engaged in repression. The pressure on universities today to crack down may be even greater than in the past. What with billionaire alums meddling in university decision-making and egging on New York’s mayor to send the NYPD into Columbia, Jewish students filing (risible) lawsuits alleging institutional antisemitism, and members of Congress agitating for the firing of university presidents and threatening inquisitions, powerful forces are lined up against the student protesters. In this environment, what university administrator would be brave — or foolish — enough to step forward and say, for example, that the Jewish state’s legitimacy or whether Zionism is a form of racism are fair topics for discussion at their school? Of course, blame does not lie all on one side, and it is true that some pro-Palestinian student protesters have said and done dumb and offensive things: for example, the reports that at some protests students barred “Zionists” from their encampments, or the Columbia student-protest leader who was captured on video saying, “Zionists don’t deserve to live,” and “Be grateful that I’m not just going out and murdering Zionists.” Given the history and continued presence of antisemitism and the heinous crimes committed against Jews in living memory, some students have employed edgier slogans and more provocative behavior than perhaps was wise. That said, I’m not indulging students when I note that their moral clarity is, as it is with most young people, at the same time their greatest strength and weakness. The students are less likely than us cynical oldsters to shrug their shoulders as Israel makes Gaza unlivable and wipes out tens of thousands of Gazan civilians, including women and children, who had nothing to do with Hamas’s October 7 atrocities. Yet the students are less likely to have the longer-term perspective needed to recognize the moral complexities of the long-running Israeli-Palestinian dispute and to allow those complexities to temper their actions and rhetoric. We usually understand this about the young. But on this issue, many of us are willing and even eager to point to actions and slogans we don’t like and use them to tar the protests as a whole. So what comes next? It may be that university administrators, having gotten through graduation and looking forward to a long summer with students off campus, think they have the situation under control. But it seems more likely that we are at the beginning, not the end, of an extended period of trouble on campus. The immediate causes of the protests — the Gaza war and Palestinian suffering and dispossession — aren’t likely to abate anytime soon. A January poll found that 94 percent of Jewish Israelis believe the extraordinary destruction the Israeli military has inflicted on Gaza was appropriate or even insufficient. In February, a poll found that most Jewish Israelis opposed providing relief supplies, including food and medicine, to Gaza’s civilians. The facts seem increasingly to fit the student protesters’ narrative: The barrier standing in the way of justice for Palestinians isn’t Benjamin Netanyahu but Israel. That is a message a big part of the university community simply will not tolerate. Can university administrators arrest enough student protesters to silence the message? I doubt it. But September isn’t too far off. We’ll soon know.


" With RBG’s Passing, Start Thinking About How to Rein in the Supreme Court ," JustSecurity , Sept. 20, 2020

"With RBG’s Passing, Start Thinking About How to Rein in the Supreme Court," *JustSecurity*, Sept. 20, 2020

Christopher Jon Sprigman, With RBG’s Passing, Start Thinking About How to Rein in the Supreme Court, JustSecurity (Sept. 20, 2020), https://www.justsecurity.org/72512/with-rbgs-passing-start-thinking-about-how-to-rein-in-the-supreme-court/

To mark the passing of Justice Ruth Bader Ginsburg, and in recognition of the fresh hell that RBG’s death is very likely to unleash, we should pause to do two necessary things. First, to give to a trailblazing woman the honors and proper period of national mourning that she deserves. And second, to carefully consider just how completely the Supreme Court has wrecked our constitutional democracy. Think for a moment about just how much depends now on who holds a single seat on the Supreme Court: the future of the Affordable Care Act (ACA) or “Obamacare” (the Court will hear yet another constitutional challenge to the ACA the week after the election), the survival of legal abortion, and, more immediately, who will occupy the White House this January, which may well end up being decided in a protracted legal battle over the validity of absentee and mail-in ballots. None of this is normal, or good. The framers never intended for the Supreme Court to play such a central role in our democracy. And, of much more practical importance—since I’m not an originalist and you shouldn’t be either—having the fate of the country determined one way or the other by the untimely death of an 87-year-old woman is just no way to run a constitutional democracy. We’ll know more soon, but absent the defection of four GOP senators, Donald Trump has a clear path to add yet another right-wing justice to the Court. There has been brave talk on left-Twitter about the prospect that a Democratic sweep in November will allow Democrats to pack the Supreme Court by adding as many as four new justices in response to Trump’s successfully replacing Ginsburg with a new justice in the last days of his administration. But all of those plans depend on former Vice President Joe Biden winning the election and the Democrats gaining a majority in the Senate—and neither is anything approaching a sure bet. Setting aside those uncertainties for a moment, it’s far from clear that Democrats would find 50 votes, even in a Democrat-majority Senate, to pack the Supreme Court. (It’s not even clear that a President Biden would sign a court-packing bill, an idea that he expressly opposed in the recent past.) Although the historical memory of most of today’s Democratic officeholders may not reach back so far, it is instructive that Franklin Roosevelt’s attempt in the early 1930s to pack the Court failed. That may be because it seems odd to try to fix politicized courts by even more explicitly politicizing them, as court packing does. Another problem with court packing is that we’re not playing one-move chess here: there will be a tit-for-tat response. When the GOP regains power, it could pass a law demoting a group of justices to the lower courts—a move which would very likely be constitutional. And then it could “re-pack” the Court with a new set of right-wing justices. If this is the game we end up playing, then we’ve only deepened our political dysfunction. (Indeed, that was Biden’s argument against the idea.) There is another, better, way to rein in partisan judges: by stripping the Supreme Court, and also the lower federal courts, of jurisdiction where Congress does not want partisan judges second-guessing particular decisions—especially where, as is so often true, the Constitution does not speak directly to an issue and courts are making political choices rather than legal judgments. That strategy, while perhaps a bit more difficult to reduce to a sound bite or a campaign slogan, gets directly at the problem of partisan judicial activism. It is also a more focused and less overtly politicized approach compared with court packing. Perhaps the most powerful argument for jurisdiction stripping is that the Constitution clearly permits it. Article III, section 1 of the Constitution gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, section 2, clause 2 explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—that is, to pick and choose for approximately 99 percent of the Supreme Court’s total docket what cases the Court has the power to hear. As I explain in a law review article, to be published in December in the New York University Law Review, under its Article III authority, Congress can remove the Supreme Court’s appellate jurisdiction over particular cases, or particular issues, largely without constraint. Congress also has the power to limit the jurisdiction of state courts to hear federal questions, including constitutional claims. But on a practical level, it would not matter much even if state courts still hear federal constitutional claims. State courts lack both the authority to enjoin federal officials and the practical institutional power to counter a determined federal government. The implications of Congress’s Article III power are potentially profound. Congress’s power over courts’ jurisdiction means that it can claim for itself authority to interpret the Constitution in particular cases. In the short term, it is a strategy that Democrats can use to rein in the partisan federal courts that the four-decade-long GOP obsession with appointing right-wing partisans to the federal bench has created. But the ultimate promise of jurisdiction stripping isn’t as a short-term stratagem to restore the courts’ partisan balance. It is a deeper remedy that can help put an end to the unhealthy situation in which Americans look to federal courts to resolve every important political question. What does that mean in practice? A couple of examples might help. Imagine that Democrats respond to America’s unconscionable level of inequality by enacting a wealth tax. That might be very popular; millions of Americans have been thrown out of work in this pandemic while America’s billionaires got over $400 billion dollars richer. But the Supreme Court would likely strike down the tax, holding that it fails to satisfy the Constitution’s requirement in Article I, section 9, clause 4 that so-called “direct” taxes must be apportioned among the states by population (a standard no wealth tax is ever likely to meet, as there are so many more rich people per capita in New York than in New Mexico). Or imagine that Democrats start the work of heading off a climate catastrophe by passing legislation that sets limits on CO2 emissions while providing the Environmental Protection Agency with expansive new powers to write rules aimed at achieving the limits at an acceptable cost. The Supreme Court might dismantle this law too, holding that the Constitution prohibits Congress from delegating its legislative power to administrative agencies. In both of these cases, Congress can use jurisdiction stripping to circumvent hostile courts. Congress could enact wealth tax legislation that includes a provision stripping the federal courts of jurisdiction to review the tax. In so doing, Congress would be advancing its own understanding of the meaning of the Constitution’s apportionment requirement—the exact scope of which is, in fact, subject to reasonable debate—and telling courts to stay out. If voters dislike what Congress has done (that is, if they disagree either with the tax itself or with Congress’s decision to limit judicial review), they can give their votes in the next election to candidates who oppose the tax, the jurisdiction-stripping provision, or both. Congress could take a similar route with respect to climate change legislation—include a provision stripping courts’ jurisdiction to review the legislation. In effect, Congress would be using its Article III power to state that it won’t tolerate politicized courts making up a non-delegation doctrine out of whole cloth. As with any substantial change in the direction of our constitutional democracy, there are reasons for caution. First is that Congress’s Article III power will be used—and misused—by Democrats and Republicans alike. So, for example, a Republican Congress might attempt use the tool to limit federal court review of state laws restricting abortion. But even that concern is not a particularly powerful argument against jurisdiction stripping. Indeed, the fact that jurisdiction stripping, unlike court packing, is not inherently political is part of my attraction to it. I’m a liberal Democrat, but my first attachment is to democracy, and not to any particular political position or outcome. (And that’s been my position long before Trump came to power.) I take a skeptical position toward judicial review partly because democracy has moral content—people are entitled, within limits, to govern themselves. But my preference for democratic decision-making is also grounded in history and practical reality. It’s far from clear that courts in the United States have, on balance, played much of a role in protecting our rights (including our right to equal treatment under law) when the democratic process has failed to do so. Consider the Supreme Court’s odious decision in Korematsu v. United States, upholding the WWII-era detention of U.S. citizens of Japanese ancestry. Or, more recently, the Court’s equally repulsive 5-4 decision in Trump v. Hawaii, upholding a presidential proclamation restricting travel into the United States by people from a group of mostly Muslim-majority countries. In these cases, and many others, the Supreme Court has just as often reinforced our worst democratic missteps as it has intervened to stop them. And sometimes, the Supreme Court has stood on the side with our national demons even when our better angels prevailed in the democratic debate. One particularly consequential example is the Court’s 1857 decision in Dred Scott v. Sanford, where the Supreme Court invalidated Congress’s attempt to prevent slavery from being extended into newly added U.S. territories. That appalling decision helped pitch the United States into a civil war in which more than 600,000 Americans lost their lives. The bottom line is Americans tend to overrate the role of courts in protecting us from the possibility of bad things happening. The best long-term guarantee of a decent, rights-respecting society is for Americans to take their obligations of citizenship seriously, and for all of us, Democrats and Republicans, to leaven our politics with decency. Our habit of turning our deepest political disagreements into legal disputes drains the energy out of our democracy. So does our over-reliance on the wisdom of nine lawyers in priestly robes chambered in a fake Greek temple on a hill in Washington, D.C. There is also the persistent worry that in using its Article III power to reduce the role of courts, Congress may be taking us down a road to “legislative tyranny.” But a quick look to our north suggests that matters aren’t that simple. Canada has long had a provision in its Charter, the so-called “Notwithstanding Clause,” that allows the national and even provincial legislatures to override court decisions on a wide range of topics. Canada has somehow avoided legislative tyranny, and there’s very good reason to think that jurisdiction stripping in the United States isn’t a slippery slope either. In the more than two centuries since Chief Justice John Marshall claimed for the Supreme Court in Marbury v. Madison the power to declare invalid laws duly enacted by the people’s elected representatives, Americans have grown to expect that the courts will review Congress’s work; indeed, Americans are deeply committed to judicial review as a talisman of lawfulness. For that reason, Congress can hope to succeed in asserting its Article III power only when a particular use of the power is backed with a broader argument that judicial review is likely to be politicized and that Congress should wield its override power as a democratic corrective. These are demanding conditions, and yet with Justice Ginsburg’s passing and the prospect of yet another GOP Supreme Court appointment—the third in Trump’s term—that is clearly aimed at delivering the Court and the Constitution to the Republican base, we may be entering a moment when the necessary pieces are falling into place. Finally, judicial resistance to Congress’s exercise of its Article III power is possible, and perhaps even likely, at least initially. What happens if the Supreme Court declares an act of jurisdiction stripping unconstitutional? Everything will depend upon how determined Congress is to have its way. I am reminded of a quip, attributed by Winston Churchill to Josef Stalin. When asked in 1935 by French Foreign Minister Pierre Laval whether Stalin could provide more lenient treatment to Russian Catholics to help convince the Pope to counter the rise of Nazism, Stalin supposedly replied “The Pope! How many divisions has he got?” In a conflict over Congress’s power to limit the courts’ jurisdiction, one might similarly ask how many divisions the courts have. The federal courts are, in fact, utterly dependent on the political branches. The courts are dependent on Congress in the very practical sense that they control neither their own budgets nor even their own facilities. Similarly, the courts are dependent on the executive for execution of their orders. Alexander Hamilton acknowledged the dependence of the courts quite plainly in Federalist 78: The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. A Congress determined to wield its power to control judicial jurisdiction is well-positioned to beat back any opposition by courts. The real question, then, is not whether courts will accept Congress’s use of its Article III power to change existing constitutional arrangements, but whether voters will. That all depends on how deftly Congress uses the tremendous power that Article III of the Constitution gives it. Congress’s use of the power would make sense only when political support for changing a particular constitutional arrangement is very strong (think: perhaps the overturning of Citizens United v. Federal Election Commission) and likely to be durable. Given how deeply entrenched the institution of judicial review is in our culture, convincing the public that a particular use of the Article III option is both permissible and necessary is going to take a good deal of skill and courage.


XOXO, Science

XOXO, Science , in 1996 219 (Matt Keegan and Svetlana Kitto, eds., Inventory Press, LLC/New York Consolidated, 2020)

XOXO, Science, in *1996* 219 (Matt Keegan and Svetlana Kitto, eds., Inventory Press, LLC/New York Consolidated, 2020)

Christopher J. Morten, XOXO, Science, in 1996 219 (Matt Keegan and Svetlana Kitto, eds., Inventory Press, LLC/New York Consolidated, 2020)

Sometime in 2019, an ad signed XOXO, SCIENCE started appearing around New York City: on bodega walls, on bus stops-just about everywhere, once you started to look for them. The ads are still everywhere as I write this in January 2020, and they seem to be concentrated in three places: low-income neighborhoods; neighborhoods where people of color live; and neighborhoods and public venues where gay men congregate. (I personally have seen the ads pop up in a bathroom in a gay bar [a poster over the toilet] and at the Metropolitan Opera [in Playbill].) Not coincidentally, poor people, people of color, and gay men are three of the groups most at risk of contracting HIV in the United States today. What exactly are these ads? They're not publicservice announcements, though they resemble PSAs, and they're often placed next to actual PSAs from the City of New York. As the small print at the bottom of the ads reveals, these promotions are paid for by Gilead Sciences, Inc., one of the world's largest and most profitable pharmaceutical companies. The ad copy also includes a web address, xoxoscience.com, which leads visitors to the homepage for Biktarvy, a brand-name HIV-treatment pill sold by Gilead. To me, these XOXO, SCIENCE ads represent cooption by Gilead of things that are not and should not be Gilead's. This essay is about why the ads infuriate and inspire me to fight back against Gilead and against corporate co-option, for public science and for an end to HIV. I'm a lawyer and a teacher. When I was young, I thought I would be a scientist. I got a PhD in chemistry before I turned to law. When Gilead claims the mantle of science for itself, the affront feels personal. One of my legal clients is the PrEP4All Collaboration, 1 a group of HIV/AIDS activists based in New York City. Most PrEP4All members are young queer people, but some are straight, some are older, and some are veterans of ACT UP and the Treatment Action Group (TAG). PrEP4All's core mission is to make PrEP and HIV treatment drugs cheap and accessible for everyone in the US, to do it within the next year or two, and to get new HIV transmissions in the US near zero by 2030. Peter Staley, a member of ACT UP and TAG and a cofounder of PrEP4All, wrote me this capsule summary of how he conceives PrEP4All's mission and its brand of activism: The story of AIDS activism during the plague years is one of triumph, of forcing the country to respond to the crisis and of a relentless push for treatments that now keep millions alive around the world. But after those drugs came out, our activism faded. Deaths went down, but infections didn't. Thankfully, a new generation of activists has stepped up to finish what we started, determined to write the last chapter of the AIDS crisis. They are inspired by the activism of the past, while creating their own playbook for lowering HIV infections, using the courts, Congress and targeted media to force change. There are many, but here I'll focus on one: Gilead Sciences, Inc. As of this writing, Gilead holds an absolute monopoly in the US on HIV-prevention therapy ("PrEP")-a Opposite: Confide HIV in-home testing ad, Rolling Stone, October 17, 1996. once-a-day pill that reduces the risk of sexually transmitted HIV by about 99 percent. 2 Gilead also holds about three-quarters of the US market for HIV treatment-that is, medicines for people living with HIV. 3 Gilead does not make HIV drugs cheap or universally accessible. Gilead's drugs are expensive, but not because they are particularly costly or difficult to manufacture-generic versions of Gilead's drugs are sold overseas for pennies a pill. 4 Instead, they are expensive (in the US) because Gilead uses patent rights to prevent generic competitors from selling cheaper versions of its drugs. Because it has no generic competitors, Gilead is able to charge over $20,000 per year for PrEP and even more for other pills-for example, about $40,000 per year for Biktarvy, the HIV treatment advertised in those XOXO, SCIENCE ads. 5 (As I explain below, Gilead charges these very high prices despite the fact that much of the research-that is, the science-embodied in these pills was done with public money, not Gilead's.) Many, many people before me have criticized Gilead for its high prices on other patented drugs. These prices strain public health budgets and keep drugs out of reach for the very people who need them. There are vastly more critiques than there is space to quote them here, but to cite just one, a bipartisan Senate committee report from 2015 concluded that Gilead's pricing strategy for Hepatitis C drugs "was focused on maximizing revenue-even as the company's analysis showed a lower price would allow more patients to be treated." 6 Doctors and epidemiologists have shown that Gilead's prices on HIV drugs, specifically, are limiting access and prolonging the HIV epidemic in America. 7 In Australia, for example, PrEP costs less than $400 per year, and HIV transmission and diagnosis rates there are falling as more and more people take it, 8 but in the US, fewer than one in six people at risk of HIV currently take PrEP. 9 And the epidemic rages on: HIV transmission rates are almost exactly as high today as they were in the mid-1990s; 10 about forty thousand Americans still get HIV every year, and more Americans live with HIV today than at any point in history. 11 In 2015, only about half of Americans with HIV (diagnosed and undiagnosed) had achieved viral suppressioni.e., had received effective treatment. 12 On this score, the US-the country that spends more, per capita and in aggregate, on health care than any nation on Earth-does slightly worse than Rwanda. 13 Americans do not bear the burden of the HIV epidemic equally; there are staggering and growing disparities and injustices in diagnosis and death rates. For example, an estimated 14 percent of trans women have HIV, 14 compared to about 0.3 percent of Americans overall, 15 and Black people account for about 12 percent of the US population but more than 40 percent of deaths and new diagnoses. 16 It is no coincidence that as of 2017, only 5.9 percent of Black people who met the indications for PrEP were receiving it, compared to 42.1 percent of white people. 17 Gilead's official mission statement is "to discover, develop and commercialize innovative therapeutics in the areas of unmet medical needs that improve patient care," but commercialization seems to have eclipsed the rest of that mission. 18 In 2017, Gilead recorded profits of about $5 billion on about $26 billion in revenue, 19 and, according to a recent study, it spent a smaller fraction of that revenue on research than any of the ten largest drug companies in the US. 20 Gilead spends billions on marketing every year. 21 In fact, it spends about as much on marketing as it does on research-that is, on science. 22 So back to those XOXO, SCIENCE ads. When I see them, I think of the dollars Gilead spent on them, dollars that could have been spent on actual science but weren't. And I see those ads everywhere, every time I walk to and from work, to the doctor, to see friends. The ads are maddening but also somehow familiar, and sometimes I'm grateful for their provocation. They remind me that the fight against HIV and against corporate power is urgent, and they make something invisible and incomprehensible-the wealth and power of Gilead specifically, and of the pharmaceutical industry more generally-feel concrete and measurable. Three Things That Gilead Has Co-opted I wrote above that the XOXO, SCIENCE ads represent co-option. What exactly has Gilead co-opted? Here are three specific things. The first thing is pop culture, maybe youth culture, or even "gay social media culture," if that is a thing. The tone of the ads is breezy, though the subject is deadly serious, a mash-up of styles that reminds me of Twitter. The ads seem to make other references to social media: large text in white and green on a deep cyan background appears above small black text on a white background, the format evoking an Instagram post. 23 The sign-off, XOXO, is one made famous by the TV show Gossip Girl and (says the Atlantic, finger on the pulse) particularly favored by young women and gay men. 24 I think that by channeling the look and tone of social media, the ads seek to weaken our wariness, to disarm us. The ads mimic messages from a friend. The second thing co-opted by the XOXO, SCIENCE ads is more serious: it's billions of public dollars invested in discovering and developing drugs to treat and prevent HIV. While Gilead's ads suggest that Gilead is doing all the science, much of the science embodied in Biktarvy and its other HIV drugs was done by government labs, or by universities working with government grant money. (This turns out to be very, very common across the pharmaceutical industry-for example, a recent paper showed that every single one of the 210 new prescription drugs approved Opposite: Gilead Sciences XOXO, SCIENCE ad, New York, 2020. Photo: Chris Morten. between 2010 and 2016 received funding from the leading federal biomedical research agency, the National Institutes of Health [NIH].) Here are three examples of Gilead co-opting public research on HIV: 25 Biktarvy, the lucrative drug that is the product being pushed in the XOXO, SCIENCE ads, is one pill that contains three active pharmaceutical ingredients-three chemical compounds that fight HIV. One of those compounds, emtricitabine, was invented not by Gilead but by chemists at Emory University, who did their research with grant money provided by the NIH. 26 After taking millions of dollars of grant money from the NIH-that is, from the American public-Emory sold its patent rights in emtricitabine to Gilead in an exclusive deal worth more than half a billion dollars, 27 thereby privatizing the profits from this publicly funded compound. While Gilead and Emory have reaped huge benefits from emtricitabine, the NIH has recouped nothing. The story of PrEP is one of co-option: it was not Gilead but scientists at US government labs-the NIH again, along with the Centers for Disease Control and Prevention-who first discovered and then proved that a once-a-day pill can prevent transmission of HIV. Dr. Robert Grant, a professor at UC San Francisco who was the lead investigator on the first clinical trial to prove that PrEP works, 28 testified before the House of Representatives that "the US government is by far the majority funder of PrEP research" and that "Gilead Sciences did not provide leadership, innovation, or funding for" scientific research on PrEP. 29 Yet Gilead has been able to use our nation's patent and regulatory systems to capture the entire market for PrEP in the United States, and it now earns more than $2 billion every year from sales of PrEP (at, again, a cost of more than $20,000 per patient per year). 30 In January 2020, Gilead announced that it had acquired from Rockefeller University in New York "exclusive global licenses to develop and commercialize" therapeutic "broadly neutralizing" anti-HIV antibodies, which "have potential for use in HIV long-acting therapies for treatment and prevention, as well as cure strategies." 31 Rockefeller's scientists invented the antibodies with grant money from, among others, the NIH. 32 Rockefeller and Gilead have not, to my knowledge, disclosed the terms of their licensing deal. The third thing co-opted by the XOXO, SCIENCE ads is related but distinct, I think. It is subtler but possibly more serious-more depressing even than co-option of public science. It is co-option of our collective will to care for people with HIV, to find a cure for HIV, to find cures for myriad other diseases, and, very broadly, to discover and distribute new technologies of every sort, medical and nonmedical. It is, perhaps, co-option of the idea of science itself. Gilead's ads purport to speak both for "we" and for "science," and as such, they quietly insist that science is fundamentally an enterprise for and by pharma companies. (Gilead not only owns the domain name xoxoscience .com, it has trademarked the phrase and claims an exclusive right to use it in the field of "promoting public awareness about HIV/AIDS and treatments for HIV/AIDS." 33 ) As such, these ads quietly insist on a neoliberal model of HIV drug development, and of health care and health science more broadly-a model under which we generally rely on for-profit corporations to sell us health care and generally permit those corporations to set prices and R&D agendas as they please. (I say neoliberal rather than liberal because there is no genuinely free market for medicines or health care in the United States; we instead have markets that are dominated by a relative handful of entrenched, spectacularly wealthy corporations and sheltered both from new competition and from democratic "interference." 34 ) The pharma industry spends a lot of money on lobbying-every year it spends much more than big tech, fossil fuels, insurance, finance, or any other industry-to keep it that way. 35 We Can Take Back the Things That Gilead Has Taken from Us We don't have to accept Gilead's ads, its co-option, or this entire state of affairs as natural, inevitable, or permanent. The first co-opted thing I identified was Gilead's co-option of youth culture, pop culture, gay culture. That kind of corporate co-option has been a fixture of American life for decades, and it was reviled at least as far back as my Adbusted and No Logo-ed early-millennial childhood, circa 1996. I leave the problem of reclaiming culture to artists and activists, though one small helpful legal step might be finding a way to ban direct-to-consumer pharmaceutical advertising, including these XOXO, SCIENCE ads. Direct-to-consumer pharma ads were nearly nonexistent in the US until the 1980s, and they are illegal in most countries. 36 It is not at all clear that we benefit from permitting pharma companies to talk directly to us. 37 (Unfortunately, banning direct-to-consumer pharma ads may require reinterpreting the First Amendment of the US Constitution first, as freedom of speech, too, has arguably been co-opted by corporate powers. 38 ) I know we can take back the second co-opted thingthose public science dollars spent discovering and developing drugs to treat and prevent HIV-or at least we can start to, through our elected leaders. We, the people, already hold all of the medical and legal tools we need to eliminate new HIV transmissions in the US. 39 Under existing US law, the federal government can recoup its investment in drugs that have been privatized by pharma, and it can break pharma's patent monopolies when high prices are preventing people from getting access to medicines they need. These legal rights work for patents somewhat like the eminent domain rights that permit governments to use privately owned land for public purposes, like building a public park. In 2018, PrEP4All published a national action plan for universal access to PrEP that explains how the federal government can use these rights to break Gilead's monopolies on HIV drugs, drive down their cost, and provide medicines to everyone in the US with and at risk of HIV. 40 We just need the political will to use these tools. Political leaders have lacked that will for decades, but as I write this in January 2020, two leading presidential contenders, Senators Bernie Sanders and Elizabeth Warren, have vowed to use them aggressively to fight big pharma's power and bring drug prices down. And perhaps some will is starting to gather even under President Trump: a recent patent-infringement lawsuit brought against Gilead by the Department of Health and Human Services (HHS), demanding compensation for the public's investment in HIV PrEP, 41 provides some basis for cautious optimism. The United States v. Gilead lawsuit is one that PrEP4All, academic colleagues, and I advocated for for months. 42 That the Trump administration actually filed suit against Gilead is remarkable, as the federal government has historically gone to court very rarely to enforce its patents, even when major corporations use and sell publicly generated technology without compensation to the public. As I've (co-)written elsewhere, "HHS's lawsuit suggests that we are in a new political era: the long-running status quo in which Americans pay twice for prescription drugs-first as their tax dollars fund research into new medicines and again as they pay for those medicines-may no longer be stable." 43 As the case goes forward, the key is to pressure HHS to commit to using any revenues collected from the lawsuit's judgment or settlement to fight the epidemic and expand access to HIV prevention and treatment in the communities hardest hit. It's on us to demand that our leaders use the laws we have to promote public health, over the objections of Gilead and the rest of the pharma lobby. And I know we can take back the third thing-"science" itself. Gilead may own the trademark on XOXO, SCIENCE, but it does not own science or the fight against HIV. We should take pride in the enormous achievements of public science-economist Mariana Mazzucato has documented that it is public investment in science and technology that has driven the success not just of pharma and biotech but of most innovative industries in the US. 44 We could, collectively, commit not just to celebrating public science in the US but to a longer-term project of expanding it. We could, for example, imagine reducing our reliance on private drug companies and shifting toward government-and nonprofitfunded development, manufacturing, and distribution of medicines. Nonprofits like the Drugs for Neglected Diseases Initiative (DNDi) 45 and TB Alliance, 46 among others, have shown that not-for-profit drug development works, as have nonprofit activist and patient groups. For example, activists from ACT UP and TAG deserve much credit for fostering the development of the first protease inhibitors (saquinavir, ritonavir, and indinavir), which helped convert HIV from a death sentence to a chronic disease when they reached the market in 1995 and 1996-at least for those with access to the drugs. 47 The NIH could expand beyond its current focusconducting and funding groundbreaking basic research-to partner with patient and nonprofit research organizations to conduct clinical trials and shepherd drugs through the FDA approval process. 48 Drug discovery and development could be focused on those areas where medical need is greatest, rather than on prospective profits. Government factories could manufacture medicines (Senator Warren has proposed a federal Office of Drug Manufacturing along these lines 49 ), and Medicare for All could ensure that every American gets the drugs and other care they need, regardless of their income and wealth, free at the point of care. To remake health care and corporate power in America is beyond the scope of this essay, but it's not beyond our collective reach. Currently, we as a nation spend tens of billions of dollars every year on HIV/AIDS-even as the epidemic shows little sign of slowing down. Most of these dollars go to industry-to drug companies, insurance companies, for-profit hospitals, and so on. I'm individually part of this conundrum: I'm gay, and I currently take Gilead's Truvada for PrEP to reduce my risk of getting HIV from sex (and to reduce my anxiety around sex). When I fill my prescription for Truvada every month, my insurance pays Gilead something like $1,800 for thirty pills. 50 (I've already said it, but I have to reiterate: holy shit! Sixty dollars apiece, for a pill that costs literally pennies to manufacture!) I'm grateful-and privileged-to have health insurance, but my insurance just spreads this outrageous cost over more people. It bothers me that to take PrEP, I must enrich Gilead at the expense of my coworkers and other fellow insured individuals. Imagine if we spent our national billions on HIV differently. HIV drugs can and should be cheap, and if they were, we could buy them for everyone who needs and wants them and still have billions left over to spend on all the other health care people need and deserve: a primary-care doctor, mental-health care, food and housing for those who don't currently have them, and so on. We could fund community sexual-health clinics in places like the rural Deep South that desperately need them. 51 We could concentrate more resources on the search for an HIV vaccine or cure. PrEP4All and the Technology Law and Policy Clinic at NYU Law (where I work and teach) are doing what we can to loosen Gilead's stranglehold on HIV drugs to spur competition and make the drugs cheaper and more accessible. In December 2019, we filed a petition with the US Patent and Trademark Office challenging Gilead's patent monopoly on Descovy-a pill approved as PrEP in late 2019, for which Gilead charges over $20,000 per year 52 -and a number of other important but high-priced HIV drugs that Gilead sells. 53 But I think most of the work of remaking pharma, health care, and science can't be done by individual activists or individual lawyers; it has to be done collectively, through broader organizing, through deep restructuring of political and economic power in the United States. 54 Perhaps it has always been true that it is lots of us working togetherqueers and trans people and sex workers and intravenous drug users and everyone who lives with HIV and its specter and shadow-that lead the fight against HIV, not the corporations who profit from it. In the next stage of that fight, it may be a grand coalition of people currently being exploited and underserved by drug companies and our health care system as a whole, not just people with HIV but those with hepatitis, diabetes, cancer, the afflictions of old age, and on and on, who come together to reimagine it. We can do more than repair and reinforce a broken system; we can demand and build a better one. Perhaps some of what I've sketched above-not just recouping but embracing and expanding public investment in medicine and in science more generally-will be part of the collective action we take. I don't have all the answers, but I know that now is the time to act, and I would like to be a part of that action. To return, one last time, to those XOXO, SCIENCE ads: if you see one, maybe you'll think about the ads as I do, aware that every dollar Gilead spent on them is a dollar not spent on science. Maybe you'll feel wary of this drug company's claim to speak on science's behalf. Science belongs to all of us, not to Gilead. Maybe the ads will irritate and inspire you, as they do me, and remind you not to give up. Opposite: Gilead Sciences XOXO, SCIENCE ad, New York, 2020. Photo: Chris Morten.

What barriers stand in the way of ending the AIDS crisis?