Month: October 2022

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Conferences Copyright

C-IP2 2022 Fall Conference Panel Discusses Copyright Under Pressure

The following post comes from Cala Coffman, a 2L at Scalia Law and Research Assistant at C-IP2.

At the recent C-IP2 conference entitled IP on the Wane: IP on the Wane: Examining the Impacts as IP Rights Are Reduced, one panel discussed the current state of copyright law, the pressures it has come under in recent years, and their differing perspectives on how the digital world is shaping copyright. Topics of discussion included enforcement techniques, trends in fair use, and the impact of evolving technology on copyright.

Panelists were Clark Asay (Professor of Law at Brigham Young University J. Reuben Clark Law School), Orit Fischman-Afori (Professor of Law at The Haim Striks School of Law, College of Management Academic Studies (COLMAN)), Terry Hart (General Counsel, Association of American Publishers (AAP)), and Karyn A. Temple (Senior Executive Vice President & Global General Counsel, (Motion Picture Association)), and the session was moderated by Sandra Aistars (Clinical Professor, George Mason University, Antonin Scalia Law School; Senior Fellow for Copyright Research and Policy; and Senior Scholar at C-IP2).

Professor Fischman opened the panel by proposing a reconsideration of criminal enforcement for copyright claims. After reviewing current avenues for civil copyright enforcement, including the newly established Copyright Claims Board in the Copyright Office, Digital Millennium Copyright Act, and civil enforcement in federal court including the opportunity for statutory damages, Professor Fischman suggested that criminal copyright enforcement actions seem to be on the decline and should not be a focus of enforcement efforts. Rather, greater attention should be devoted to civil enforcement. Recently, the U.S. Sentencing Commission reported that criminal Copyright and Trademark cases have dropped from 475 cases in 2015 to 137 cases in 2021.

Over the past two decades, several enforcement mechanisms have been introduced to address the challenges authors face enforcing their copyrights in the digital world. These include the Digital Millennium Copyright Act in 1998, the Digital Theft Deterrence Act of 1999, and the Copyright Alternatives in Small-Claims Enforcement Act of 2020, which improved access to enforcement for small creators by creating a new administrative forum with simplified proceedings in the Copyright Office. Small copyright claims can be pursued there with or without the assistance of counsel. While these civil enforcement mechanisms are effective, they have not been without criticism.

Ultimately, Professor Fischman argued that the combination of civil and criminal enforcement frameworks creates a powerful enforcement mechanism for author’s rights. As we consider the current state of IP rights, criminal enforcement is becoming less meaningful overall, in her opinion.

Next, Professor Asay presented three recent empirical studies examining trends in copyright litigation.

The first study indexed fair use cases from 1991 to 2017. In this study, Professor Asay examines the scope of fair use analysis in copyright infringement cases and finds a “steady progression of both appellate and district courts adopting the transformative use paradigm, with modern courts relying on it nearly ninety percent of the time.” The study finds that at the Federal Circuit Court level, in cases where transformative use was asserted, 48% were found to be transformative, and 91% of transformative uses were found to be fair use. Professor Asay states that “fair use is copyright law’s most important defense to claims of copyright infringement,” but as courts increasingly apply transformative use doctrine, he finds that “it is, in fact, eating the world of fair use.”

The second study Professor Asay presented analyzed over 1000 court opinions from between 1978 and 2020 that used a substantial similarity analysis. In this study, Professor Asay finds first that courts rely on opinions from the Second and Ninth circuits “more than any other source in interpreting and applying the substantial similarity standard.” The study also breaks down trends within the two-step substantial similarity analysis. On the first step, Professor Asay finds that “courts mostly decide this first prong . . . as a matter of whether defendant’s had access to the plaintiff’s work, and they mostly favor plaintiffs.” On the second step, he finds “significant heterogeneity” in analyzing improper appropriation of a plaintiff’s work. He states that “no dominant means exist for resolving this question” and “the data also suggest that one of the keys to winning, for either defendants or plaintiffs, is the extent to which the court engages with and discusses copyright limitations.”

The third study, which is forthcoming, examines DMCA Section 1201 litigation. DMCA Section 1201 prohibits attempts to circumvent technological measures used to control access to a copyrighted work.17 U.S.C. § 1201. This study encompasses 205 cases and 209 opinions, and Professor Asay said during the panel that “the most interesting finding in this study is that there’s not much section 1201 litigation.” Although the DMCA has been in force for nearly twenty-five years, less than one appellate decision is made per year on average. The study also finds that “the most litigated subject matter” (over every other subject matter the study coded for) is software.

Ms. Temple discussed how new technologies, techniques, and distribution methods are constantly requiring courts to re-evaluate how authorship rights function in a digital landscape. She likewise commented on the challenges courts seem to face in appropriately drawing distinctions between derivative uses of copyrighted works that should require a license from the author, and transformative uses that are permissible under the affirmative defense of fair use.

Ms. Temple cited the numerous briefs in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (including the Motion Picture Association’s) that note that the transformative use test is becoming the sole criteria courts use to determine fair use. Indeed, the MPA’s brief cited to Professor Asay’s study on transformative use (Is Transformative Use Eating the World?) to support the petitioner’s assertion that “in practice, the transformativeness inquiry is virtually always dispositive of the fair use question.” In closing, Ms. Temple stated that although we may be “waning” in how courts see fair use, Warhol presents a chance to correct the fair use analysis and steer it away from infringing on the derivative work rights of authors.

Finally, Mr. Hart presented on potential threats to authorship rights and the concomitant harms to consumer interests in the e-book arena. Mr. Hart’s perspective was that as businesses, copyright industries legitimately have profit-motivated goals, but happily, their ability to meet these goals is directly tied to the “ultimate goal” of promoting science and the useful arts and thus is beneficial to society as a whole. Mr. Hart stated that “the good news, if we think copyright [protections are] waxing, is that . . . the legal framework both in the United States and internationally recognizes [the] principles” that allow copyright owners to take advantage of and divide their exclusive rights. However, digitization may pose a threat to the ability to license rights as the copyright owner desires, as digital copying and transmission greatly increases risk of infringement of e-books.

The e-book market is unique, according to Mr. Hart, in that authors may be particularly vulnerable to digital threats when “digital copies are completely indistinguishable from the originals, and so they would be competing directly with the copyright owner’s primary markets.” Furthermore, he stated that “threats to the ability of copyright owners . . . to pursue rational choices in how they market and distribute their works can be just as harmful as straight up piracy.”

Mr. Hart characterized the e-book market as a thriving, sustainable economy. E-books have been popular for over a decade now, and there are a “variety of licensing models [available] . . . that continue to evolve to meet both the needs of publishers and libraries.” Mr. Hart stated, “the evidence shows that this is a well-functioning market.” He said that “Overdrive, which is the largest e-book aggregator, reported that in 2021 there was over half a billion check-outs of library e-books worldwide, and the pricing is, in my view, fair and sustainable.” Additionally, Mr. Hart said, “Overdrive also reported . . .  that the average cost per title for libraries declined in 2021, and libraries have been able to significantly grow their e-book collections . . . with collection budgets that, when you’ve adjusted for inflation, have essentially been flat the entire time.”

One of the major threats to authorship rights in the e-book market, in Mr. Hart’s view, is the rise of Controlled Digital Lending (CDL). While this theory is currently being litigated in Hachette Book Group v. Internet Archive, Mr. Hart posits that we are only a few steps from a full-blown digital first-sale doctrine, which could have widespread harms throughout copyright for many types of authors. Many amicus briefs in the Internet Archive case have identified this potential harm, as well. According to Hart, the Copyright Alliance brief, for example, stated that a ruling in favor of CDL would have extremely widespread economic harms for authors.

The second threat Mr. Hart identified comes from recent propositions at the state level that would introduce compulsory licenses for e-books. These proposed laws would outlaw limitations on e-book licenses offered to libraries and allow states to dictate what states believe are “reasonable” pricing for e-book licenses. A flaw in both the arguments for CDL and for compulsory e-book licensing, as Mr. Hart sees it, is that both approaches treat the mere exercise of a copyright owner’s exclusive right as unfair and, if accepted, would be dangerous encroachments on authorship rights.

Ultimately, while the panelists identified significant concerns in the existing copyright regime, they were hopeful about the future of authorship rights, reflecting that even if the protections for copyright law had “waned” in certain respects in recent years, and certain rights remain in peril, there are opportunities for education as courts confront the significant changes that accompany an increasingly digital landscape.

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C-IP2 2022 Fall Progress Report (June-August 2022)

Sean O'ConnorGreetings from C-IP2 Faculty Director Seán O’Connor

As our fall season of programming is underway, we are pleased to report on summer (June-August) programming and scholarship at C-IP2. Here are some highlights:

    • Fifth annual exclusive WIPO-U.S. Summer School on Intellectual Property virtually hosted about fifty students from around the world, taught by renowned experts from the academy and industry
    • Fourteen new Senior Scholars and Scholars (several of whom are former CPIP/C-IP2 Edison Fellows)
    • Professor Alexandra Roberts of Northeastern University joins in our new position of Senior Fellow for Trademarks
    • Three amicus briefs in major IP cases drafted and filed by C-IP2 staff and affiliates

We also organized the 2022-2023 Thomas Edison Innovation Law and Policy Fellowship and C-IP2’s 2022 Annual Fall Conference during this period—both of which were successfully held in person and will be included in next quarter’s Progress Report. Finally, please note that our 2023-2024 Thomas Edison Innovation Law & Policy Fellowship Call for Applications was posted last week; details can be viewed here.

C-IP2 Hosted & Co-Hosted Events

Academic Program
From June 6-17, C-IP2 hosted the prestigious WIPO-U.S. Summer School on Intellectual Property for the fifth year. The virtual Summer School included 50 students representing 19 countries including Azerbaijan, Brazil, Canada, China, Columbia, Ethiopia, Hungary, India, Indonesia, Japan, Nigeria, Peru, Philippines, Republic of Korea, Romania, South Africa, the United States of America, Ukraine, and Vietnam. Among the instructors this year were C-IP2 directors Sean O’Connor and Joshua Kresh; C-IP2 Senior Fellows Sandra Aistars, Jonathan Barnett, and Emily Michiko Morris; and several C-IP2 Affiliates: David Grossman, Steve Jamar, Lateef Mtima, Kristen Osenga, Eric Priest, and Mark Schultz. The Summer School was also taught by retired judges: the Honorable Judge Paul Michel (Ret.), U.S. Court of Appeals for the Federal Circuit, and the Chief Judge Susan Braden (Ret.), and by speakers from such government organizations as the U.S. Patent and Trademark Office and the U.S. Copyright Office.

News and Speaking Engagements

The Institute for Digital Innovation (IDIA)—which has partnered with the Innovation Law Clinic, founded by C-IP2 Faculty Director Seán O’Connor—was mentioned in a June 14 Free Lance Star article by Michael Martz (Richmond Times-Dispatch).

This summer, we were honored and delighted to welcome to our team of C-IP2 affiliates a number of academics we admire and with whom we look forward to working!

    • Senior Fellow for Trademarks: Professor Alexandra Jane Roberts
    • Senior Scholars: Professor Daniel Cahoy, Professor Justin (Gus) Hurwitz, Professor Steven Jamar, Professor Adam MacLeod, Professor Lateef Mtima, Professor Michael Risch, Professor Keith Robinson, Professor Brenda Simon, and Professor Saurabh Vishnubhakat
    • Scholars: Professor Lolita Darden, Dr. Charles Delmotte, Professor Gerardo Con Díaz, Professor Laura Ford, Professor Zvi Rosen

C-IP2 was mentioned on Newswire’s article “National Vaccine Law Conference to Discuss & Debate Legal Aspects of Vaccines & Immunization in Virginia September 15-16″ as a co-host and partner of the conference.

C-IP2 Scholar Lolita Darden & Senior Scholar Lateef Mtima served as Additional Counsel for the following amicus brief: The Andy Warhol Foundation for the Visual Arts, Inc., v. Lynn Goldsmith and Lynn Goldsmith, Ltd., Brief of Amici Curiae Institute for Intellectual Property and Social Justice and Intellectual-Property Professors in Support of Respondent (U.S. August 15, 2022). The brief was also signed by Faculty Director Sean O’Connor, Senior Scholar Steven Jamar, and Edison Distinguished Commentator Justin Hughes.

C-IP2 Managing Director Joshua Kresh and Senior Fellow for Life Sciences and Scholar Emily Michiko Morris organized and signed following brief: Novartis Pharmaceuticals Corporation v. Accord Healthcare Inc., etc., Brief of Amici Curiae Intellectual Property Law Professors in Support of Novartis Pharmaceuticals Corporation’s Petition for Panel and En Banc Rehearing (U.S. August 4, 2022). The brief was also signed by Senior Scholars Kristen Osenga, Mark Schultz, and Ted Sichelman.

C-IP2 Senior Fellow for Copyright Research and Policy and Senior Scholar Sandra Aistars organized and signed the following brief: Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC, Brief of Amici Curiae Professors and Scholars of Copyright Law in Support of Plaintiffs and in Opposition to Internet Archive (U.S. August 5, 2022). The brief was also signed by Faculty Director Sean O’Connor; Managing Director Joshua Kresh; Senior Fellow for Innovation Policy & Senior Scholar Jonathan Barnett; Senior Scholars Jon Garon, Eric Priest, and Mark Schultz; and Scholars Christopher Newman and Zvi Rosen.

C-IP2 Senior Fellow for Life Sciences Emily Michiko Morris has provided an analysis of Senator Tillis’s Patent Eligibility Restoration Act of 2022 bill, an important amendment to § 101 that would create valuable certainty in an area that has been murky for more than a decade.

Sandra Aistars (C-IP2 Senior Fellow for Copyright Research and Policy & Senior Scholar; Founding Director, Arts & Entertainment Advocacy Clinic; Clinical Professor of Law, George Mason University Antonin Scalia Law School)

    • On June 13, taught “Fundamentals of Copyright” and moderated the panel “Copyright in the Creative Industries” during the virtual WIPO-U.S. Summer School on Intellectual Property, hosted by C-IP2
    • On June 14, spoke with Suzanne Wilson, General Counsel and Associate Register of Copyrights at the U.S. Copyright Office, in a Fireside Chat as part of the WIPO-U.S. Summer School on IP
    • On June 21, participated in a virtual Copyright Claims Board Roundtable event
    • Organized and signed Brief of Amici Curiae Professors and Scholars of Copyright Law in Support of Plaintiffs and in Opposition to Internet Archive (U.S. August 5, 2022)

Jonathan Barnett (C-IP2 Senior Fellow for Innovation Policy & Senior Scholar; Torrey H. Webb Professor of Law, USC Gould School of Law)

    • On June 6, taught “Overview and Economics of Intellectual Property” at the virtual WIPO-U.S. Summer School on Intellectual Property, hosted by C-IP2
    • On June 15, spoke on the virtual panel “The U.S. Innovation System in a Changing World,” which was co-hosted by C-IP2 and the Smithsonian’s Lemelson Center for the Study of Invention and Innovation
    • On June 22, spoke on “How Patents Drive Innovation and Growth: Insights from the Route 128 Tech Ecosystem” at a virtual Legislative Committee event hosted by the Boston Patent Law Association
    • On June 27, spoke on “Regulatory Rents: An Agency-Cost Analysis of the FTC Rulemaking Initiative” at a symposium on the Rulemaking Authority of the Federal Trade Commission in Washington, D.C.
    • Signed Brief of Amici Curiae Professors and Scholars of Copyright Law in Support of Plaintiffs and in Opposition to Internet Archive (U.S. August 5, 2022)
    • On August 15, appeared on Information Technology and Innovation Foundation’s podcast Innovation Files in the episode “What Happens to the Economy When Patent Protections Are Weakened, With Jonathan Barnett”
    • On August 18, was mentioned in a CBR (Comic Book Resources) article “Warner Bros. Discovery’s Batgirl Cancellation Raises Antitrust Concerns, Warns Law Professor”

Chief Judge Susan G. Braden (Court of Federal Claims (Ret.); C-IP2 Jurist in Residence)

    • On June 3, attended USPTO Public Patent Advisory Committee (PPAC) Meeting with Undersecretary of Commerce for Intellectual Property and Director USPTO
    • On June 7, co-taught “Enforcing Rights: U.S. Patent Litigation” with Joshua Kresh at the virtual WIPO-U.S. Summer School on Intellectual Property, hosted by C-IP2
    • On June 9, attended United Inventors Association Board of Director Meeting
    • On June 13, attended USPTO PPAC Meeting with Chief Policy Officer and Director for International Affairs and Director of Government Affairs and Oversight and attended PPAC Executive Meeting on Patent Quality
    • On June 14, attended Public Session of USPTO PPAC and Meeting with USPTO’s Chief Information Officer
    • On June 15-18, attended Federal Circuit Bar Association Meeting in Sea Island, Georgia
    • On June 29, attended inaugural AI & Emerging Technology Partnership Meeting
    • On July 28, met with the USPTO CIO regarding the agenda for the August 9 public USPTO PPAC Meeting
    • On July 26, taught Civil Trial Litigation and Management (Including Patent Infringement Cases) to Community Court of Justice (ECOWAS), International Law Institute, Georgetown
    • On July 31, hosted a dinner party for the Ambassador to the United States from Niger to discuss IP law and enforcement in Niger
    • On August 1, attended a PPAC Executive Meeting
    • On August 4, ABA IP Section Council Dinner, Chicago
    • On August 5, PPAC Finance Subcommittee Meeting
    • On August 8, attended a PPAC Executive Meeting
    • On August 9, attended a PPAC Public Meeting (Presenter IT/AI Subcommittee)

Daniel R. Cahoy (C-IP2 Senior Scholar; Robert G. and Caroline Schwartz Professor, The Pennsylvania State University’s Smeal College of Business; Research Director, Center for the Business of Sustainability)

    • In August, joined C-IP2 as a Senior Scholar

Terrica Carrington (C-IP2 Practitioner in Residence; VP, Legal Policy and Copyright Counsel, Copyright Alliance)

    • On June 16, participated in a discussion hosted by the Recording Academy/GRAMMY Advocacy, entitled “What You Need To Know About The Copyright Claims Board”
    • On June 30, spoke on a panel hosted by the Hudson Institute, entitled “What the Copyright Claims Board Means for Creators” (a recording of the panel is available here)
    • On July 12, spoke on a panel hosted by the Authors Guild on the “Copyright Claims Board: What Authors & Agents Should Know” (recording available here)

Theo Cheng (C-IP2 Practitioner in Residence; Arbitrator and Mediator, ADR Office of Theo Cheng LLC; Adjunct Professor, New York Law School)

    • On June 1-3, served on the faculty of the 15th Annual ABA Arbitration Training Institute at Loyola University Chicago School of Law
    • In June, was invited by the College of Commercial Arbitratorsto join the College as a Fellow: “Established in 2001, the CCA is the world’s most prestigious ADR professional organization, defining and promoting the highest standards of arbitrator ethics, standards of conduct, and best practices. The CCA is an invitation-only organization that provides a meaningful contribution to the profession, the public, the legal sector, and to the businesses that implement commercial arbitration as a means of dispute resolution. The Fellows of the CCA are the elite within the profession. They have the professional training, judgment, and years of experience to undertake the most complex and difficult commercial arbitration assignments.”
    • Between June 1-3, 2022, served on the faculty of the ABA’s Arbitration Practice Development Program & 15th Annual Arbitration Training Institute, which was held at Loyola University Chicago School of Law. Specifically, Mr. Cheng spoke on programs relating to developing an arbitration practice, initiating arbitration proceedings, conducting preliminary hearings, and arbitration award-writing and post-award issues. Agenda at this link.
    • On June 23, 2022, spoke at the meeting of the Regional CCA Fellows Meeting on the topic of “Managing Virtual Hearing Exhibits”
    • On June 29, 2022, was a speaker on a panel hosted by Consolidated Edison entitled “Negotiating a Settlement in Mediation”
    • In July, Mr. Cheng’s latest column in his Resolution Alleyseries was published in the New York State Bar Association’s Entertainment, Arts & Sports Law Journal entitled, “‘The Slap’ and Emotions in Conflicts and Disputes.”
    • On July 13, 2022, gave a presentation to the ABA Dispute Resolution Section’s Mediation Committee entitled “A Refreshed Way to Deliver the Mediator’s Proposal”
    • On July 13, 2022, also participated in two panel programs that were a part of the New York State Bar Association’s Comprehensive Commercial Arbitration Training For Arbitrators And Counsel. The first panel addressed “Arbitration Ethics,” and the second panel addressed “Perspectives on Practice Development in the Arbitration World.” Program details at this link.
    • On July 19, 2022, was a co-speaker on a program presented to the New York State Office of the Attorney General entitled “Using Alternative Dispute Resolution to Address Intellectual Property Rights in the Employment Context”
    • On July 27, 2022, was a panelist on a program sponsored by the ABA Dispute Resolution Section’s ADR Practice Management, Business and Skills Development Committee entitled “Captivating Conversations that Connect and Convert: Best Practices for Marketing Your ADR Practice Online.” More details at this link.
    • On August 2, 2022, gave a presentation to the Asian Pacific American Lawyers Association of New Jersey on “The Roles and Responsibilities of a Nonprofit Board and its Members”
    • On August 26, 2022, gave an orientation to arbitration presentation to the New York Law School Dispute Resolution Team, and will be giving a longer training session to the team on September 30th

Eric Claeys (C-IP2 Senior Fellow for Scholarly Initiatives & Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)

    • On August 29, was mentioned on the American Law Institute’s website as being a speaker at the upcoming 19th Annual Brigham-Kanner Property Rights Conference on September 29-30

Lolita Darden (C-IP2 Scholar; Visiting Associate Clinical Professor; Director of Intellectual Property and Technology Clinic, The George Washington University Law School)

Dr. Charles Delmotte (C-IP2 Scholar; Assistant Professor, Michigan State University College of Law; Affiliate Fellow, New York University School of Law Classical Liberal Institute)

    • In July, joined C-IP2 as a Scholar
    • In August, was interviewed for the Detroit Legal News article “NYU tax scholar joins faculty at Michigan State law school”

Gerardo Con Diaz (C-IP2 Scholar; Associate Professor, Science and Technology Studies, UC Davis College of Letters and Science

    • In July, joined C-IP2 as a Scholar

Tabrez Ebrahim (C-IP2 Scholar; Associate Professor of Law, Lewis & Clark Law School)

    • Participated as a discussant at the University of Houston Law Center’s Institute for Intellectual Property & Information Law’s National Conference
    • Co-organized a June 17 Symposium on Data in Cyber-Physical Systems, for the Center for Legal & Court Technology at William & Mary
    • On July 22, participated in a workshop for Digital Platforms as Enabling Access & Delivery of Legal Services during the virtual First Annual Olivas Writing Institute
    • On July 31, presented on Quantum Standards Development Organizations and their Patent Policies during a panel on “Intellectual Property and Web3” as part of the 2022 Southeastern Association of Law Schools (SEALS) Conference in Miramar Beach, Florida
    • In August, spoke on “Quantum Standards Development Organizations and their Patent Policies” at the 19th Annual IP Scholars Conference (IPSC), Stanford Law School, and at the Junior IP Scholars Association (JIPSA), Univ. of California, Berkeley School of Law

Laura Ford (C-IP2 Scholar; Associate Professor of Law, Faulkner University’s Thomas Goode Jones School of Law)

    • In July, joined C-IP2 as a Scholar

Jon M. Garon (C-IP2 Senior Scholar; Professor of Law and Director of the Intellectual Property, Cybersecurity, and Technology Law program, Nova Southeastern University Shepard Broad College of Law)

    • Participated in the University of New Hampshire Franklin Pierce Law School, Intellectual Property Summer Institute, creating and teaching a new course entitled “Regulatory and Contractual Aspects of Web3 and the Metaverse”
    • In July, offered an all-day intellectual property training program for Blue Ridge University entitled Understanding Intellectual Property for the Emerging Business
    • In July and August, presented and moderated a series of panels at the Southeastern Association of Law Schools, including the following:
      • Intellectual Property, NFTs, and Collective Creation
      • Rethinking the Scholarship Submission Process and the Role for Law School Scholarship
      • Workshop on Advancement: Effective Development and Management of Advisory Boards
      • Workshop on Online Education: Online & Hybrid Learning Pedagogy Best Practices and Standards Development
      • Workshop on Online Education: The Changing Online Landscape
      • Constitutional Law Workshop: Is the U.S. Democratic System in Trouble?
      • Workshop on Online Education: Lessons from the Research on Online Legal Education
      • Is Section 230 Unconstitutional? Should it be modified?
    • Signed Brief of Amici Curiae Professors and Scholars of Copyright Law in Support of Plaintiffs and in Opposition to Internet Archive (U.S. August 5, 2022)

David Grossman (C-IP2 Practitioner in Residence; Senior Director of Technology Transfer & Industry Collaboration, Office of Technology Transfer, George Mason University)

    • On June 9, taught a Simulation Exercise on “Transfer of Technology and Licensing” at the virtual WIPO-U.S. Summer School on Intellectual Property, hosted by C-IP2

Dr. Bowman Heiden (C-IP2 Scholar; Co-Director, Center for Intellectual Property (CIP), University of Gothenburg, Visiting Professor, University of California, Berkeley)

Christopher Holman (C-IP2 Senior Fellow for Life Sciences & Senior Scholar; Professor of Law, University of Missouri-Kansas City School of Law)

    • On July 29, was mentioned in a Patently-O blog post, “The Sound of Silence and the Inherency Doctrine for Written Description”
    • On August 9, was mentioned in the Patently-O post, “Novartis En Banc and Amicus Support”
    • On August 25, was mentioned in the Patently-O post, “Decisions by the Court as an Institution; or by the Judge as a Human?”

Camilla A. Hrdy (C-IP2 Scholar; Professor of Intellectual Property Law, University of Akron School of Law)

    • Congratulations to Camilla Hrdy, who—as of August 2022—is now Professor of Intellectual Property Law at the University of Akron School of Law!

Justin (Gus) Hurwitz (C-IP2 Senior Scholar; Professor of Law, The Menard Director of the Nebraska Governance and Technology Center and the Co-Director of the Space, Cyber, and Telecommunications Law Program, University of Nebraska-Lincoln College of Law)

    • Joined C-IP2 as a Senior Scholar in July 2022

Steven D. Jamar (C-IP2 Senior Scholar; Associate Director, Institute for Intellectual Property and Social Justice (IIPSJ); Professor Emeritus, Howard University School of Law)

Hon. Prof. F. Scott Kieff (C-IP2 Senior Scholar; Fred C. Stevenson Research Professor, The George Washington University Law School)

    • In June 23, was mentioned in a Harvard Law School Forum on Corporate Governance post “Proposal on Climate-Related Disclosures for Investors”
    • On July 19, was mentioned in the Blog of the European Journal of International Law’s post “ISDS reform and air guitar: A response to Grant and Kieff”
    • On July 31, was mentioned in the Blog of the European Journal of International Law’s post “Two Weeks in Review, 18 July – 31 July”

Joshua Kresh (C-IP2 Managing Director)

Dr. John Liddicoat (C-IP2 Scholar; Senior Research Associate and Affiliated Lecturer, Faculty of Law, University of Cambridge)

    • On June 10, gave a presentation entitled ‘Repositioning Generic Drugs: Empirical Realities’ at the Munich Summer Institute (Bavarian Academy of Sciences and Humanities, Munich, Germany)
    • On June 20, gave a presentation entitled ‘Our repurposing story’ at the CeBIL Retreat at the University of Copenhagen in Denmark
    • With colleagues, was cited and quoted in the USPTO’s Report to Congress entitled “Patent eligible subject matter: Public views on the current jurisprudence in the United States”

Erika Lietzan (C-IP2 Senior Scholar; William H. Pittman Professor of Law & Timothy J. Heinsz Professor of Law, University of Missouri School of Law)

    • On June 15, spoke on the panel “Top Cases in Food and Drug Law” at the Food and Drug Law Institute’s 2022 Annual Conference in Washington, D.C.
    • In August 2022, released the fifth edition of the book Food and Drug Law with co-authors Peter Barton Hutt, Richard A. Merrill, Lewis A. Grossman, Nathan Cortez, and Patricia J. Zettler.

Daryl Lim (C-IP2 Senior Scholar; H. Laddie Montague Jr. Chair in Law; Associate Dean for Research and Innovation; Founding Director, Intellectual Property Law and Innovation Initiative; and co-hire, Institute for Computational and Data Sciences, Penn State Dickinson Law)

    • Congratulations to Professor Lim, who has accepted a new position at The Pennsylvania State University’s Dickinson Law School!
    • Spoke at the Artificial Intelligence and Intellectual Property Rights Conference, which was hosted in Switzerland from June 9-11 by the Swiss Federal Institute of Intellectual Property (IPI) and the University of Zurich Center for Intellectual Property and Competition Law (CIPCO)
    • Spoke on “IP and Tech: Is Past Prologue?” and served as a panelist for “Future Policy at the United States Patent and Trademark Office – Transformation or Status Quo” at the 37th marcus evans IP Law Summit, which was held from June 26-28 in Chicago, Illinois
    • Spoke on “Semiconductor M&A and IP Protection under the Epidemic” at the 2022 Jiwei Semiconductor Summit, which was held from July 15-16 in Xiamen, China 

Adam MacLeod (C-IP2 Senior Scholar; Professor of Law, Faulkner University, Thomas Goode Jones School of Law; Research Fellow, Center for Religion, Culture, and Democracy)

    • Joined C-IP2 as a Senior Scholar in July 2022

Emily Michiko Morris (C-IP2 Senior for Life Sciences and Scholar; C-IP2 2021-2022 Edison Fellow; David L. Brennan Endowed Chair, Associate Professor, and Associate Director of the Center for Intellectual Property Law & Technology, University of Akron School of Law)

Lateef Mtima (C-IP2 Senior Scholar; Professor of Law, Howard University School of Law; Founder and Director, Institute for Intellectual Property and Social Justice (IIPSJ))

Christopher M. Newman (C-IP2 Scholar; Associate Professor of Law, George Mason University Antonin Scalia Law School)

Seán M. O’Connor (C-IP2 Faculty Director; Faculty Advisor, Innovation Law Clinic; Professor of Law, George Mason University Antonin Scalia Law School)

Kristen Jakobsen Osenga (C-IP2 Senior Scholar; Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)

Eric Priest (C-IP2 Senior Scholar; Associate Professor, University of Oregon School of Law)

Michael Risch (C-IP2 Senior Scholar; Vice Dean and Professor of Law, Villanova University Charles Widger School of Law)

    • Joined C-IP2 as a Senior Scholar in July 2022
    • On August 11, spoke on “Growth of Trade Secrets in Patent Cases” at the IP Scholars Conference at Stanford Law School

Alexandra Jane Roberts (C-IP2 Senior Fellow for Trademarks; Professor of Law and Media, School of Law and Department of Music, College of Arts, Media and Design (CAMD), Northeastern University)

    • Joined C-IP2 as Senior Fellow for Trademarks in August 2022
    • Was quoted in the August 3 Protocol article “What’s in a name? If the name is Meta, a lawsuit.” by Issie Lapowsky
    • Was quoted in the August 24 Fast Company article “Is that shirt a Gucci . . . or a Cuggl?” by Elizabeth Segran
    • Was quoted in the August 30 Bloomberg Law article “Trump’s ‘Truth Social’ Trademark Loss More Detour Than Roadblock” by Riddhi Setty

W. Keith Robinson (C-IP2 Senior Scholar; Professor of Law, Wake Forest University School of Law)

    • Joined C-IP2 as a Senior Scholar in July 2022
    • Organized and moderated a July 31 panel on IP and Web 3 at the 2022 SEALS conference
    • On August 5, was quoted in the Raleigh News & Observer paper on a patent infringement case

Zvi S. Rosen (C-IP2 Scholar; Assistant Professor of Law, Southern Illinois University School of Law)

Mark F. Schultz (C-IP2 Senior Scholar; Goodyear Tire & Rubber Company Chair in Intellectual Property Law, University of Akron School of Law; Director, Center for Intellectual Property Law and Technology)

Amy Semet (C-IP2 Scholar; Associate Professor, University at Buffalo School of Law)

    • In July, presented an article on immigration at the Global Meeting on Law and Society in Lisbon, Portugal
    • The week of August 8, presented own Edison Fellowship article at the Junior IP Scholars Conference at Berkeley Law, and presented an article on an empirical examination of patent law and venue at the 2022 Intellectual Property Scholars Conference at Stanford Law
    • Is participating on the consultative group to the Administrative Conference of the United States (ACUS) for the project they are undertaking on the U.S. Patent Small Claims Court

Ted Sichelman (C-IP2 Senior Scholar; Professor of Law, University of San Diego School of Law; Director, Center for Intellectual Property Law & Markets; Founder & Director, Center for Computation, Mathematics, and the Law; Founder & Director, Technology Entrepreneurship and Intellectual Property Clinic)

Brenda Simon (C-IP2 Senior Scholar; Professor of Law, California Western School of Law)

    • Joined C-IP2 as a Senior Scholar in July 2022
    • In August, was appointed the “ProFlowers Professor of Internet Studies” at California Western School of Law

Saurabh Vishnubhakat (C-IP2 Senior Scholar; Professor of Law and Director, Intellectual Property and Innovation Law Program, Yeshiva University Benjamin N. Cardozo School of Law)

    • Joined C-IP2 as a Senior Scholar in July 2022
Scholarship & Other Writings

Jonathan M. Barnett, Antitrust populism would shift US from free market to managed economy, The Hill (June 15, 2022)

Jonathan Barnett, Antitrust Populism Would Shift Us From Market to Managed, Real Clear Markets (June 16, 2022)

Jonathan Barnett, Market Drops Show Tech Antitrust Reform Isn’t Needed, Law360 (August 5, 2022)

Jonathan M. Barnett, How patents facilitate market entry and promote competition, IAM (July 6, 2022)

Jonathan Barnett, Intellectual Property and Transactional Choice: Rethinking the IP/Antitrust Dichotomy, CPI Antitrust Chronicle (July 2022)

Jonathan Barnett, “Regulatory Rents: An Agency-Cost Analysis of the FTC Rulemaking Initiative,” in Rulemaking Authority of the Federal Trade Commission (ed. Daniel Crane, Concurrences 2022)

Jonathan Barnett and David J. Teece, Is the West Giving Away the Game?, Network Law Review (July 21, 2022)

Gustav Brismark and Bowman Heiden, Licensing 2.0: How to Incentivise around the Prisoner’s Dilemma in SEP Licensing (July 22, 2022) [published by IAM on July 20, 2022 (link)]

Charles Delmotte and Daniel Nientiedt (2022). “Classical Liberalism: Market-Supporting Institutions and Public Goods Funded by Limited Taxation.” In Political Philosophy and Taxation, R.F. van Brederode (ed). Springer, Singapore.

Bowman Heiden and Caroline Pamp, Textiles For The Extreme (EPO tech transfer case study published in Les Nouvelles, June 2022)

Bowman Heiden and Thomas Bereuter, Licensing-Based Business Models (article in Les Nouvelles, June 2022)

Bowman Heiden and Lew Zaretzki, Why it’s time to create transparency around 5G SEPs, IAM (29 June 2022)

Chris Holman, Federal Circuit Flips “Negative Claim Limitation” Decision after Change in Panel Composition, Patently-O (June 23, 2022)

Kristen Osenga, Our National Security Depends on SEP Policy, LeadershIP (June 14, 2022)

Yogesh Pai and Prashant Reddy T, The TRIPs waiver and India: A misadventure and a compromise in Geneva by the government, Scroll.in (June 29, 2022)

Philip Stevens and Mark Schultz, Building a Predictable, Stable Patent System in Brazil, Geneva Network (June 20, 2022)

Prashant Reddy T. and Yogesh Pai, Crime and copyright infringement, The Hindu (June 8, 2022)

Thomas D. Grant and F. Scott Kieff, Chinese courts are deciding key patent cases — the US and its allies should be wary, The Hill (July 28, 2022)

Chris Holman, CareDx v. Natera: Some Further Thoughts on the Patent Eligibility of Molecular Diagnostics, Patently-O (July 20, 2022)

Peter Barton Hutt, Richard A. Merrill, Lewis A. Grossman, Nathan Cortez, Erika Fisher Lietzan, and Patricia J. Zettler, Food and Drug Law, 5th ed. (Foundation Press 2022)

F. Scott Kieff and Thomas Grant, UK Rulings Give Chinese Courts Wide Powers in IP Disputes, Law360 (August 12, 2022)

Adam MacLeod, Vested Patents and Equal Justice (July 21, 2022). Catholic University Law Review, Forthcoming

Irina Manta, Announcing “Strangers on the Internet” Podcast, The Volokh Conspiracy (August 3, 2022)

Irina Manta and Cassandra Burke Robertson, Constitutional Citizenship in the U.S. Territories, LawFare (July 27, 2022)

Emily Michiko Morris, A Response to ‘Another Legislative Attempt to Revive Gene Patenting,’ Harvard Law Petrie-Flom Center (August 26, 2022)

Kristen Osenga, Friendly Fire: How the Biden Administration’s Innovation Policy Is Undermining U.S. National Security (July 13, 2022). CPI Antitrust Chronicle (July 2022) (SSRN | CPI)

Jack Ring, FTC Chair and Commissioners Weigh in on SEP Litigation at the ITC, C-IP2 Blog (August 24, 2022)

Jack Ring, Philips and Thales’ Standard Essential Patent Fight at the Federal Circuit, District Court, and ITC, C-IP2 Blog (August 18, 2022)

Alexandra J. Roberts, A Poetics of Trademark Law (March 31, 2022). Berkeley Technology Law Journal, Vol. 38, No. 1, 2023

Brenda M. Simon, Preserving the Fruits of Labor: Impediments to University Inventor Mobility (May 17, 2021). Tennessee Law Review, Forthcoming

Brenda M. Simon, Using Artificial Intelligence in the Law Review Submissions Process (May 19, 2022). UC Davis Law Review, Forthcoming

Tuan Tran, From Great Ideas to Global Impact – A Talk with Andrew Byrnes, C-IP2 Blog (July 28, 2022)

Shine (Sean) Tu and Paul R. Gugliuzza and Amy Semet, Overqualified and Underrepresented: Gender Inequality in Pharmaceutical Patent Law (November 3, 2021). Brigham Young University Law Review, Vol. 48, forthcoming, Temple University Legal Studies Research Paper No. 2021-44, WVU College of Law Research Paper No. 2022-001