Month: November 2017

Categories
Copyright

Debunking Criticism of the Copyright Small Claims Act

Cross-posted from the Mister Copyright blog.

the word "copyright" typed on a typewriterIt’s been six weeks since the Copyright Alternative in Small Claims Enforcement (CASE) Act (H.R.3945) was introduced to Congress by a bipartisan coalition of Representatives, and while there’s an abundance of support among politicians, creators, artists’ rights organizations, and the Copyright Office, some have been critical of the legislation. Although much of the pushback can be chalked up to certain groups who seemingly resist any effort to hold infringers accountable for misappropriation, it’s worth addressing some of the criticisms to show that they’re largely baseless.

The CASE Act would create a Copyright Claims Board (CCB) within the Copyright Office to hear claims brought by individual creators and copyright owners. It aims to provide a venue for these often frustrated parties to address rampant infringement online, empowering a class of rights holders who have limited means and few opportunities for recourse. But some have argued that this system will be tilted in favor of claimants and unfairly burden respondents, and these critics are calling for the bill’s defeat.

One supposed problem with the CCB, according to its critics, is that the three-officer panels overseeing cases will be biased and favor the claimants and copyright owners. It’s a bold assumption, but unfortunately not surprising coming from organizations that routinely accuse the Copyright Office of being “pro-content” or “anti-user”—accusations that remain completely unsubstantiated.

Perhaps anticipating such charges, the CASE Act calls for a panel in which two of the three claims officers must have diverse copyright experience which includes representing the interests of both creators and content users. As Section 1401(b)(3)(A) on officer qualifications explicitly states:

Each Copyright Claims Officer shall be an attorney with no less than 7 years of legal experience. Two of the Copyright Claims Officers shall have substantial experience in the evaluation, litigation, or adjudication of copyright infringement claims and, between them, shall have represented or presided over a diversity of copyright interests, including those of both owners and users of copyrighted works.

The third claims officer is required to be an expert in alternative dispute resolution who also has substantial copyright law experience. Any fear that these officers will render decisions unfairly in favor of claimants is likely a reaction to the realization that the small claims system will finally hold accountable a large number of infringers who have previously flown under the radar.

Another criticism of the CASE Act is that due to appearance requirements and allegedly unfair notice procedures, the Copyright Claims Board will issue a disproportionate amount of default judgments against respondents and thereby violate due process and personal jurisdiction. However, Section 1405(g) establishes clear notice obligations of claimants, including proof of service within 90 days of receiving notice to proceed. Furthermore, there is no rule requiring parties to appear in-person before the Board in Washington, D.C. It’s anticipated that smaller claims will be electronically resolved, while larger disputes will be handled via video conferencing. Section 1405(c) clearly explains:

Proceedings before the Copyright Claims Board shall be conducted at the offices of the Copyright Claims Board without the requirement of in-person appearances by parties or others, and shall take place by means of written submissions and hearings and conferences accomplished via Internet-based applications and other telecommunications facilities.

Critics also claim default judgments would be difficult to overturn, despite section 1407(c) explicitly providing an opportunity to appeal determinations to the District Court of the District of Columbia. Additionally, Section 1407(c)(1)(c) allows for respondents to challenge default determinations “where it is established that the default or failure was due to excusable neglect.”

There have also been arguments that, at $30,000, the damages available to claimants are too high. But while it may seem like a big number compared to what’s available in other small claims courts, it is the absolute ceiling of available damages. The CCB has discretion to award up to $30,000, and that limit is much lower than what an infringer might be on the hook for in federal court.

Making these criticisms of the small claims initiative seem even more absurd is the fact that the proceeding will be completely voluntary, allowing respondents to opt out of the entire system if preferred. While it’s hoped that respondents will choose to resolve claims before the CCB—rather than risk a potentially worse fate in federal court—there is no obligation to participate if they see the process as unfair or burdensome.

The reality is that the notice requirements and damages available represent a system that is no more skewed towards claimants than any other adjudicatory proceeding. Arguments to the contrary reflect a resistance to a system that will finally hold accountable infringing behavior that, because of past difficulty to address it, has become routine in the digital age. It’s time to give small creators and copyright owners a realistic shot at protecting their works, and making the CASE Act law would lead the way in this long-overdue and worthy endeavor.

Categories
Copyright Patents

CPIP Fall Conference Papers Highlight How Intellectual Property Rights Promote Global Prosperity

2016 Fall Conference flyerBy Alex Summerton

The George Mason Law Review has just published the papers from our Fourth Annual Fall Conference, Intellectual Property & Global Prosperity, which was held at Antonin Scalia Law School, George Mason University, in Arlington, Virginia, on October 6-7, 2016. The conference highlighted the importance of IP rights in the global marketplace and discussed how countries that leverage the availability of such protections enjoy creative, technological, and economic benefits far surpassing those that place less value on IP.

The newly-published papers are outlined below:

Kristina M. L. Acri, née Lybecker, Economic Growth and Prosperity Stem from Effective Intellectual Property Rights, 24 Geo. Mason L. Rev. 865 (2017)

Professor Kristina Acri of Colorado College discusses the importance of IP in incentivizing innovation by enabling firms to recuperate development expenditures. She explains how the static loss resulting from the patent system is far offset by the dynamic gains resulting from both increased innovation and public disclosure of knowledge. Acri identifies how countries employing strong IP regimes realize greater benefits in pharmaceutical innovations in the form of more available treatments and earlier implementation than countries with weaker protections. Furthermore, she highlights how robust IP systems encourage both revolutionary and incremental technology developments, promote domestic technology industries, and foster new employment opportunities for domestic labor forces.Key to this analysis are the fundamental economic forces that drive patented innovation. Acri discusses the importance of patents to innovator companies that must bear substantial fixed costs in the form of research and development, while generic competitors need only compete on negligible marginal costs with the innovators. She further explores how countries employing strong patent protections attract innovation businesses, as well as develop investment industries and educated workforces to support such innovation. Finally, Acri analyzes the positive correlation between a country’s rank as an innovative hot spot and the relative strength of its IP protections.

Walter G. Park, Averting a “Tripsxit” From the Global Intellectual Property System, 24 Geo. Mason L. Rev. 883 (2017)

Professor Walter Park of American University examines the benefits that developing countries can realize by implementing stronger IP right systems in the context of the globalized marketplace. He considers the effect the TRIPS Agreement has had on the relationship between developed and developing countries as a function of the grant rates for technologies originating from various countries and the balance of technology imports and exports. Park seeks to explain why certain countries have developed into technological powerhouses in the last few decades, while others have remained behind and lagged in technological production.Park looks at various factors that could have influenced, and in turn have been influenced by, these divergent development paths, such as trade practices, legal and sociological structure, and the flexibility that TRIPS gives member states to set their own schedules. He concludes that countries seeking to move themselves into modern economies can benefit greatly by examining and adjusting their IP regimes to encourage both domestic and foreign innovations and investment in the local territory.

Stan Liebowitz, The Case for Copyright, 24 Geo. Mason L. Rev. 907 (2017)

Professor Stan Liebowitz of the University of Texas explores several rationales for copyright, commenting on both economic and moralistic perspectives and discussing how, as a common misconception, many people fail to recognize that the property rights imparted by copyright truly enable economic returns. He focuses heavily on the economic case for copyright, seeking to dispel the myth that copyright is an economic monopoly. Liebowitz notes that popular works enjoy unusually high monopoly-like rents because they are uncommon and disproportionately successful as compared to unpopular works, not because they benefit from any economic monopoly imparted by copyright.Liebowitz discusses the concept of market-determined values of works in contrast to alternative systems such as centralized markets and patronage systems, and he concludes that these alternative systems lack the ability to incentivize the production of either high quality or high quantities of works. Finally, he explores the moral justifications for the remuneration of authors of successful works and discusses several alternative, although morally absurd, repugnant, or questionable, systems for securing payments for authors. Liebowitz posits that copyright enables markets to efficiently set the price of works and facilitates the determination of what society does and does not want produced.

Brett Danaher & Michael D. Smith, Digital Piracy, Film Quality, and Social Welfare, 24 Geo. Mason L. Rev. 923 (2017)

Professors Brett Danaher of Chapman University and Michael Smith of Carnegie Mellon University assess the impact of piracy of copyrighted works on the production, in terms of both quantity and quality, of artistic works, particularly films. They discuss the trade-offs of copyright enforcement versus piracy for consumers and producers, and they outline the expected welfare transfers that occur for both users who would and would not otherwise purchase the consumed media in the absence of piracy. Danaher and Smith also delve into the hidden impact that piracy and the non-enforcement of copyright laws have on markets that traditionally have relied on copyright.Danaher and Smith analyze the origination of high-quality works and examine how the rise of online piracy has caused a depression in the production of award-winning films in countries where copyright is laxly enforced. They further identify the collateral negative effects of the lack of copyright enforcement, including the frustration of attempts to secure funding for riskier projects. Danaher and Smith explain how this potentially robs the world of artistically meritorious, but financially unsafe, projects, thereby decreasing overall social welfare.

Kevin Madigan & Adam Mossoff, Turning Gold Into Lead: How Patent Eligibility Doctrine is Undermining U.S. Leadership in Innovation, 24 Geo. Mason L. Rev. 939 (2017)

CPIP Legal Fellow Kevin Madigan and Professor Adam Mossoff of George Mason University focus on recent developments at the Supreme Court that have made patenting high-technology inventions, particularly in the computer and biotechnology disciplines, more difficult and the consequential danger this poses to the United States’ position as a global innovation leader. They begin by reviewing the late-20th century jurisprudence that placed the U.S. in a position to be a technological force in the new millennium, especially with respect to the patentability of biotech and computer technology. Madigan and Mossoff then review more recent Supreme Court precedents that have led to a recession from a pro-patentability position while providing very little guidance on what could be patentable.Madigan and Mossoff go on to assess how this change in jurisprudence has resulted in a retreat from America’s position as a patent powerhouse. They point to cases where applications were rejected as unpatentable subject matter in the U.S. while the corresponding technologies were found to be patentable in Europe and China. Madigan and Mossoff also discuss the general trend of rejecting applications and invalidating patents with scant actual justification for why those applications and patents were patent ineligible. They conclude that data available from the last few years shows that the U.S. may be receding as a technological center since its patent laws have become unreliable for inventors and investors seeking protection.

Jiarui Liu, The Predatory Effects of Copyright Piracy, 24 Geo. Mason L. Rev. 961 (2017)

Professor Jiarui Liu of the University of San Francisco analyzes strategic behavior in copyright enforcement, particularly in countries that have not yet developed robust copyright industries and that have lessened incentive to invest in effective copyright policy. He discusses the phenomenon in China, where large copyright entities sometimes prefer pirating of their works to enforcement when they cannot expect any return for their work. As Liu explains, expecting the ability to develop a market and later determine how to recover payments for pirated copies, this lax enforcement of copyright policy results in a suppression of domestic industries that would compete with large entities.Liu outlines the reality of copyright enforcement in China, a lackluster effort on the part of the Chinese government that has led to rampant piracy of a wide range of copyrighted works. He explains how the piracy of software products, such as Microsoft Office, has stunted the development of new and competing technologies, a result implicitly approved by the market-dominant copyright owners. Liu compares this behavior of strategic non-enforcement to predatory pricing practices traditionally viewed as part of antitrust law, since it places the product into consumer hands at an initial loss in order to establish market dominance that will later enable the firm to exert monopoly power once its product has become the dominant force. Finally, Liu discusses possible mechanisms of corrective actions, both private and public, to combat non-enforcement as strategic behavior.

Categories
Innovate4Health Innovation

Innovate4Health: Miriam Bridges the Gap Between Developing-World Infrastructure and Cancer Detection

This post is one of a series in the #Innovate4Health policy research initiative.

Innovate4HealthBy Alex Summerton

Originally a disease diagnosed only in developed countries, cancer is now a leading cause of death in the developing world with over half of all new cases annually. The rise in cancer in the developing world is attributed to improving technological, medical, and socioeconomic conditions. People are living longer due to reducing other causes of mortality such as infectious disease, unsanitary conditions, and maternal and infant mortality. The result is populations living long enough to begin seeing end of life diseases like cancer.

However, the advances leading to the higher prevalence of cancer in the developing world have not been accompanied by the advances to fight it. Treatment costs remain prohibitively high. Detection occurs late during the disease’s progression, generally after symptoms begin to present and chances of survival decrease. Underdeveloped infrastructure makes accessibility to screening and treatment difficult. Doctors’ offices can be remote and crowded, and trained oncologists are few and far between, leaving necessary expertise inaccessible to patients.

The overall effect is a developed-world disease outstripping developing-world technology and infrastructure.

Miroculus aims to combat the challenges of cancer screening, in both the developed and developing world, by providing accurate, low-cost, and accessible technologies that can be easily deployed at the earliest stages when treatment is cheaper and more effective. Founded by Alejandro Tocigl, Foteini Christodoulou, and Jorge Soto, Miroculus is developing a method of screening for cancers via microRNA.

The flagship product of Miroculus is Miriam, a cancer detection platform enabling accurate, early screening of cancer. Debuted at TEDGlobal in 2014, Miriam is a non-invasive tool that can rapidly screen for a wide range of cancers. Its design means it can be deployed during routine health examinations, rather than as part of cancer testing once symptoms have presented. Miriam works by assaying blood for the presence of microRNAs. Miroculus’s team has shown that certain microRNAs in a patient’s blood are correlated with specific types of cancer. So far, Miroculus has proven the concept of enabling Miriam to detect pancreatic, lung, breast, and hepatic cancer.

gloved hand holding screening toolMiriam achieves its goals through a simple yet elegant construction, requiring only a camera, computer, and testing substrate in a standard well plate. Each well contains a reactant keyed to a specific microRNA. A patient’s sample is added to each well and tested for the presence of microRNA. When the particular microRNA in the well is present in the patient’s sample, the reaction produces a luminescent effect. Miriam’s camera monitors these reactions by recording the change in luminosity of the wells during testing, sending these images via Miriam’s computer to Miroculus’s cloud computer. Miroculus then analyzes the pattern to determine which microRNAs are present and whether the patient has cancer.

Miriam’s advantageous three piece construction provides low-cost implementation while remaining clinically effective. Driven by Miroculus’s objective to democratize cancer screening technology, a Miriam testing platform can be created using cheap and readily available technologies in the developing world. During Miriam’s first debut, one of the founders showed the technology being deployed via a 3D-printed test chamber and a smartphone. Both 3D printing and smartphones are viewed as platforms for bringing developed-world medical technologies to the developing world. Combining innovative biological science and versatile technology such as 3D printing and smartphones allows Miriam to substitute for complex specialized equipment requiring far more training and resources to implement.

Miroculus is employing a blend of IP protections in the distribution of Miriam. It is combining an open source release of how to construct the Miriam platform, including copyrighted design plans for making the 3D printed device, with patent protection over its microRNA based testing method. Choosing to use this dual IP protection allows Miroculus to ensure a quality product in real world use with sufficient income to both run the company and develop the next generation of technologies.

To test the deployment and efficacy of Miriam, Miroculus has elected to employ open source distribution of Miriam. Instructions for building a fully functional Miriam are currently available on GitHub, including 3D printing instructions and software, firmware, and hardware instructions for a testing computer implemented on Arduino. These documents and code are published under open source licenses. This owner-driven free exercise of rights provides Miroculus with two major advantages. First, Miroculus can enjoy open collaboration and improvement on Miriam’s design and software. Second, making Miriam open source can encourage the adoption of the technology leading to additional economies of scale and providing Miroculus reputational benefits in the marketplace.

Miroculus is also utilizing patent protection for aspects of Miriam that require technical sophistication beyond having access to a 3D printer. It is globally seeking patents for testing wells and the detection system. By patenting the disposable wells, Miroculus can secure a return on its research and investment into Miriam. Because Miroculus views supplying the testing wells as the best income strategy for the technology, with revenue from supplying platforms being only incidental, Miroculus will be able to leverage the low-cost adoption of Miriam afforded by delivering an open source platform.

Miriam is a story of modern technology being used to bridge the gap between the developed and the developing world. Miroculus has a goal of enabling cheap, routine screenings for a wide range of cancers to lower the costs, both economic and human, of the disease. By making its testing device easily available, Miroculus aims to reach its goal of accessibility. And by securing patent protection for its testing wells, Miroculus will be able to ensure a return on its technology. This will allow further development and democratization of the necessary technology for combating the world’s most pressing diseases.

#Innovate4Health is a joint research project by the Center for the Protection of Intellectual Property (CPIP) and the Information Technology & Innovation Foundation (ITIF). This project highlights how intellectual property-driven innovation can address global health challenges. If you have questions, comments, or a suggestion for a story we should highlight, we’d love to hear from you. Please contact Devlin Hartline at jhartli2@gmu.edu.