There's not enough recognition of the fundamental difference between Trademark and the other forms of intellectual property--whereas copyrights and patents grant protection to creations, new things that didn't exist before, trademark takes things that already exist out of the public domain and hands them over to private entities.
So even if the public ultimately benefits from some trademarks, it is initially made poorer. That should support different balancing tests.
Which leads us to another problem--strong protection. Trademarks are supposed to distinguish between competitors. So if you're buying a Pepsi cola, you should be getting a cola made by the Pepsi Company--it should be the only soda bearing that name. But if you made shoes, you're not in competition with Pepsi, you should be able to use that name.
But you can't because Pepsi has strong protection--it can stop anyone from using that name no matter what they make. In today's environment, that makes some sense--trademark law being what it is, I would expect anything branded "Pepsi" to be a product of the Pepsi Company. But that expectation was created by the judges who gave Pepsi too much protection in the first place. Take away that protection and you take away the expectation that is used to justify the protection.
It was annoying when the banner ad on my browser announced to the office that I put a new toilet in my bathroom, but I'd already bought it. What's the likelihood I'd be buying another?
And it was embarrassing when the banner ad on my browser made it look like I'd joined the Michigan Militia because I'd bought a tactical pen and a monocular for camping. Does that really indicate I might need an armored sleeve for knife fights?
As clumsy as it might be right now, the system knows plenty about me even if advertisers do not. And that information is accessible to parties unknown to me.
is the lowest level, not the highest. I don't see the court identified on the decision you post so I can't tell where the mistake lies, but if this is a Supreme Court decision, then the next stop is the court of appeals.
The key, as you point out early on, is truth in advertising laws. All of these fees are fraudulent unless they are optional. If the consumer cannot purchase the product for the advertised price, then the advertised price is consumer fraud. It's not even a close quesiotn.
"The whole idea that someone's feelings getting hurt is defamation is completely antithetical to any reasonable support of a regime of freedom of expression."
It's more than that, it's antithetical to the definition of defamation.
Defamation is not concerned with someone's feelings being hurt--their feelings about themselves--it's concerned with other people's feelings--reputation. If people think or even might think less of you for this statement, then you have been defamed. If you think less of yourself, you've been harmed, I suppose, but it's not defamation.
I was thinking the same thing--this isn't a case of a professor photocopying some excerpts to hand out to the class to save students from having to buy a book that will be 99.5% unused. Especially given the outrageous pricing of textbooks. No, this is a business that copies textbooks and then sells the copies (according to the excerpt).
Ideally, there would be a compulsory license like in music so that professors could build their own textbooks affordably. This decision appears to have some significant risk built into it.
I don't know that I've heard the double-dipping explanation anywhere other than on Techdirt. Which is too bad because it's the best, most understandable, explanation I've come across as to what Net Neutrality is all about and why it's important.