Month: March 2023

Categories
Copyright

Publishers prevail in lawsuit against Internet Archive

a gavel lying on a table in front of books on a shelfOn Friday the Federal Court for the Southern District of New York (SDNY) ruled in favor of Hachette and other major book publishers, and against Internet Archive (IA) in a lawsuit considering IA’s Controlled Digital Lending (CDL) program, under which IA scanned books and “loaned” digital copies of copyrighted works over the internet.  The court found that the activities were clearly infringing (PP. 14-15) and also that

Each enumerated fair use factor favors the Publishers, and although these factors are not exclusive, IA has identified no additional relevant considerations. At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction. (P. 45).

C-IP2’s Sr. Scholar & Senior Fellow for Copyright Research & Policy Prof. Sandra Aistars drafted and filed a successful amicus brief supporting the publishers in the case.  She was joined by twelve other scholars. You can read the court’s Order here and the Copyright Scholars’ brief here.

Considering the fair use factors in turn, on factor one — focusing in this instance on transformative use — the court noted that the HathiTrust and Google Books decisions had foreshadowed the ruling. (P. 19).  Those cases delineated the outside boundaries of the fair use/transformative use doctrine by allowing the scanning of entire databases of books in their entirety, but making them available only in limited ways and for limited purposes that added transformative purpose, meaning or message to the works. (PP. 19-20).  The court explained:

Importantly, the database did not “allow users to view any portion of the books they [were] searching” and therefore, unlike IA’s Website, “d[id] not add into circulation any new, human-readable copies of any books” or “merely repackage or republish the originals.” [Authors Guild v. HathiTrust, 755 F. 3d, 87, 97 (2d Cir. 2014)].

Google Books similarly found transformative use in Google’s scanning of copyrighted books to create a database that included a “snippet view” search function that allowed readers to view a few lines of text containing searched-for terms. [Authors Guild v. Google, Inc., 804 F.3d, 202, 208 (2d Cir. 2015)]. The snippet view showed the searcher “just enough context surrounding the searched term” to help the searcher evaluate whether the book fell within the scope of the searcher’s interest “without revealing so much as to threaten the author’s copyright interests.” Id. at 208, 216. But the Court of Appeals cautioned that “[i]f Plaintiffs’ claim were based on Google’s converting their books into a digitized form and making that digitized version accessible to the public,” precisely what the Publishers allege in this case, the “claim [for copyright infringement] would be strong.” Id. at 225. If HathiTrust and Google Books demarcated the boundaries of fair use, this case shows what conduct remains squarely beyond fair use. (P. 20).

The court likewise rejected arguments under the first fair use factor that IA expands the utility of the Works in Suit in any way recognized in the Second Circuit: e.g., by using technology to “improv[e] the efficiency of delivering content” to “one entitled to receive the content” in a way that does not “unreasonably encroach[] on the commercial entitlements of the rights holder.” [Capitol Recs., LLC v. ReDigi Inc., 910 F.3d 649, 661] (citing Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)); see also [Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169, 177 (2d Cir. 2018)].” (P. 22). The court noted that to accept IA’s expanded utility argument would be to “ignore the teachings of the Court of Appeals for the Second Circuit in Google Books that there would be a ‘strong’ claim for copyright infringement if Google had distributed digitized copies of complete books.” (P. 24).

The court also found unpersuasive IA’s suggestion that it is a non-commercial user. (P. 26).  It explained that the facts (including how “every single page of the Archive is monetized” (P. 27)) demonstrate how “IA stands to profit from its non-transformative exploitation of the Works in Suit.  The commercial-noncommercial distinction, like the transformativeness inquiry, therefore counsels against a finding of fair use.“ (P. 28).

The SDNY was utterly unconvinced by IA’s attempts to bootstrap its faulty first sale arguments into its equally faulty fair use arguments, hopeful that two wrongs might together make an exception. (PP. 29-31). The court saw through this charade and rightly pointed out that [i]n ReDigi, the Court of Appeals plainly held that the first sale doctrine has now been codified in Section 109(a), that it does not include a right of reproduction, and that any broader scope of the first sale doctrine should be sought from Congress, not the courts. Id.” (P. 31).  It is also worth noting that it did not escape the SDNY’s notice that the IA and its collaborators do not even follow the CDL lending rules they outline for themselves. (PP. 31-32).

The court found that since the works at issue were original works of authorship (including fiction and non-fiction works that were “far removed from the . . . factual or descriptive work more amenable to fair use” (Pg. 35)), the second factor favored the Publishers. (PP. 34-36). The third factor likewise favored the publishers because IA copied the works in their entirety without a transformative purpose and for a purpose that directly competed with licensed eBooks. (P. 37).

Regarding the fourth factor – marketplace harm – evidence that IA pitches its offerings to libraries to supplant licenses from publishers could not be denied. (P. 39).  IA offered weak arguments the court did not find persuasive that Publisher profits had increased during the time of the COVID lockdown while IA was pursuing its Emergency Digital Library initiative, but the metrics suggested by IA were at best weakly correlative in nature in the court’s opinion. (P. 43).

Finally, the court considered whether any other public benefits could flow from IA’s services. (PP. 44-45). It rejected the suggestion that any alleged public benefit created by easier access to works outweighed market harm to publishers. (P. 44).  While “any copyright infringer may claim to benefit the public by increasing public access to the copyrighted work,” the Works in Suit are already accessible by readers through libraries in a free library lending model supported by widespread legitimate commercial licensing models deploying a variety of lending/licensing options. (PP. 44-45).

While the court’s decision is a resounding indictment of IA’s business model and CDL programs, it should not be read in any way to tarnish the profile or work of libraries.  Libraries performed especially important work during the COVID-19 pandemic, and remain bastions of democracy by promoting free thought and learning.  It is important that libraries continue to disseminate works to communities that may otherwise lack easy access to them by using a variety of licensed tools and authorized exceptions under the Copyright Act. Should additional exceptions be needed they should be sought (as the court noted on page 31) from Congress, not the courts.

 

Thanks for C-IP2 Research Assistant Cala Coffman, a 2L at Scalia Law, for her editing assistance.

Categories
Communications

C-IP2 2023 Spring Progress Report (December 2022-February 2023)

Greetings from C-IP2 Faculty Director Seán O’Connor

With this Spring 2023 Progress Report, we’re pleased to provide you with updates on what C-IP2 and our friends and affiliates have been working on from December 2022 through February 2023, from academic roundtables and other events to publications and various engagements.

Before the new year, C-IP2 co-hosted an academic roundtable with the Sunwater Institute on The Future of Property: Autonomy, Prosperity, and Conflict Mitigation and hosted another academic roundtable virtually on Intellectual Property and Biopharmaceutical Policy. 2023 then started off with a webinar on Challenges & Opportunities with Intellectual Property & Technology Innovation in Muslim-Majority Countries, co-organized with C-IP2 Scholar Tabrez Ebrahim, and the final meeting of our 2022-2023 Thomas Edison Innovation Law and Policy Fellowship.

Of particular note, I am delighted to welcome Professor Kristen Osenga as our new Senior Fellow for Innovation Policy. Professor Osenga has been with C-IP2 and its predecessor organization since its earliest days, and most recently as a Senior Scholar. As Senior Fellow she will guide our projects in the high technology space.

Please also check out C-IP2‘s website and keep an eye on our email communications for information on upcoming events, such as our virtual conference on Culture & IP: Analogs to Intellectual Property in Different Cultures on April 27-28 and the annual WIPO-U.S. Summer School on Intellectual Property, which C-IP2 will host online from June 5-16.

C-IP2 Hosted & Co-Hosted Events

Roundtable
C-IP2 & the Sunwater Institute co-hosted a roundtable on The Future of Property: Autonomy, Prosperity, and Conflict Mitigation on December 9, led by Matthew Chervenak, Dr. Ari Harutyunyan, Professor Eric Claeys, and Joshua Kresh. Discussion sessions included “The Future of Property in Land, Air and Space,” “The Future of Intellectual Property (IP) Rights,” and “How Academic Arguments about Property Policy Pan Out in Real-Life Debates in Courts and Legislatures.”

Virtual Roundtable
C-IP2 hosted a virtual roundtable on Intellectual Property and Biopharmaceutical Policy on December 15, organized by Joshua Kresh and Professor Emily Michiko Morris. Discussion topics included “I-MAK,” “USPTO FDA Interactions,” and “USPTO request for comments, patent prosecution update,” as well as some discussion regarding future research in these areas.

2023-2024 Thomas Edison Innovation Law & Policy Fellowship
On December 16, C-IP2 announced the 2023-2024 Thomas Edison Innovation Law & Policy Fellowship. We welcome our Fellows for this cycle: Professor Melissa Eckhause, Michael Goodyear, David Hannon, Professor Aldona Kapačinskaitė, Joshua Kresh, David Moore, Fidelice Opany, Dr. Nicola Searle, and Professor David Simon. We are also pleased to welcome Professors John F. Duffy, Christopher Holman, Erika Lietzan, Michael Risch, and Mark F. Schultz as Distinguished Commentators.

Webinar
On January 12, C-IP2 hosted a live webinar on “Challenges & Opportunities with Intellectual Property & Technology Innovation in Muslim-Majority Countries,” which was organized and moderated by Lewis & Clark Law School and C-IP2 Scholar Tabrez Ebrahim and featured Saad Hasan (Principal, Sturgeon Capital), Kevin Tamm (Senior Intellectual Property Counsel, SI Group), and Jeffrey Whittle (Global Head of Womble Bond Dickinson’s Energy and Natural Resources Industry Sector) as panelists. As experts and leaders involved with intellectual property (IP) and technology innovation in Muslim-majority countries, they took part in a discussion about challenges and opportunities in countries with varying degrees of religious laws and developing interests in economic development. This webinar included perspectives from an international law firm, a legal department of the government of the Emirate of Dubai, a technology investment fund, and a chemicals manufacturer. The panelists spoke about their IP-related experiences and technology innovation perspectives from different vantage points in various Muslim-majority countries. A recording of the webinar is available on C-IP2‘s YouTube channel.

2022-2023 Thomas Edison Innovation Law & Policy Fellowship
On January 19-20, C-IP2 hosted the third and final meeting of the 2022-2023 Thomas Edison Innovation Law and Policy Fellowship in Scottsdale, Arizona. The Edison Fellows presented substantially revised drafts of their research papers and received feedback from Distinguished Commentators and other Fellows before their planned submission to journals in early 2023.

News and Speaking Engagements

We are excited to announce Professor Kristen Osenga as C-IP2‘s new Senior Fellow for Innovation Policy! Professor Osenga is also a C-IP2 Senior Scholar, as well as Associate Dean of Academic Affairs and the Austin E. Owen Research Scholar and Professor of Law at the University of Richmond School of Law, where she teaches and writes in the areas of intellectual property, patent law, law and language, and legislation and regulation. We are thrilled to be working more closely with Professor Osenga and drawing on her expertise in all areas where high tech and innovation policy meet intellectual property.

This December, C-IP2 Practitioner in Residence Eric Solovy published a new policy brief with C-IP2 entitled The TRIPS Waiver for COVID-19 Vaccines, and Its Potential Expansion: Assessing the Impact on Global IP Protection and Public Health.

In October 2022, 2023-2024 Edison Fellow Dr. Nicola Searle testified before Parliament’s Communications and Digital Select Committee on current technology and intellectual property issues—specifically, UK government interventions into AI datamining, technology, and copyright—with her testimony “indirectly informed by previous work funded by [C-IP2],” as Dr. Searle states. In January 2023, the Select Committee produced a report that covered the session and cited Dr. Searle (see especially the direct quotation on p. 16). Goldsmiths, University of London published a January 17 press release on the hearing, and a recording is also available online. In addition, Dr. Searle published a December 14, 2022, article describing the experience and offering practical presentation advice for other academics.

December saw the release of Dr. Ryan Abbott’s Research Handbook on Intellectual Property and Artificial Intelligence, which includes contributions from thought leaders including C-IP2 Faculty Director Professor Seán M. O’Connor and C-IP2 Senior Scholar Professor Daryl Lim. The Handbook was also featured as part C-IP2’s 2021 Annual Fall Conference on Artificial Intelligence and Intellectual Property.

Incoming C-IP2 2023-2024 Edison Fellow Professor Melissa Eckhause‘s paper Fighting Image Piracy or Copyright Trolling? An Empirical Study of Photography Copyright Infringement Lawsuits (86 Albany L.R., forthcoming) was cited in a December 15, 2022, petition for writ of certiorari to the Supreme Court in Victor Elias Photography, LLC v. Ice Portal, Inc., A Division of Shiji (US), Inc.

In January, the Baroni Center for Government Contracting at George Mason University Business School released its latest report completed in response to the FY 2020 NDAA requirement for an independent assessment of Defense Advanced Research Projects Agency and defense laboratories’ contracting and intellectual property management policies and their effects on the commercialization of and innovation in dual-use technology. The study was conducted in partnership with C-IP2, George Mason University Antonin Scalia Law School, and more.

In February, along with C-IP2 Senior Scholar Mark F. Schultz and Managing Director Joshua Kresh, Senior Fellow for Life Sciences and Scholar Emily Michiko Morris submitted a response to the USPTO’s Request for Comments on USPTO Initiatives to Ensure the Robustness and Reliability of Patent Rights (PTO-P-2022-0025). Professor Morris discussed “Thickets,” Continuations, and Obviousness-Type Patenting and Terminal Disclaimers. For each area she laid out the potential concerns, explained what the data currently show, and described the questions that should be asked and data that would need to be gathered to show if any of the three areas is an actual problem in BioPharma patents. Further, she suggested caution, pointing out that changing a system, which at least seems to be working, without evidence and a clear plan can cause substantial harm, and before any such changes are made, it must be ascertained whether or not there is anything that needs to be fixed.

In February, C-IP2 affiliates Professor Emily Michiko Morris, Dean Kristen Osenga, Senior Scholar Mark F. Schultz, Senior Scholar Ted Sichelman, and Managing Director Joshua Kresh signed onto an amicus brief in favor of Novartis for Novartis Pharmaceuticals Corporation, v. HEC Pharm Co., Ltd. Professor Morris, C-IP2 Senior Fellow for Life Sciences, was heavily involved in drafting the brief.

In March, C-IP2 Jurist in Residence Judge Susan G. Braden (Ret.), Senior Scholar Dan Cahoy, Senior Scholar Adam MacLeod, Advisory Board Member Judge Paul Michel, Professor Emily Michiko Morris, and Dean Kristen Osenga signed on as amici curiae to a letter to the Honorable Mitchell S. Goldberg about U.S.C. § 1498(a).

2022-2023 Edison Fellow Yao Zhou‘s Fellowship paper, Dynamic Governance of Microbiome Innovation, has been submitted to SSRN (linked above) and is in the peer-review process with the Journal of Law and the Biosciences.

* * *

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)

    • In December, presented a manuscript at the 2022 Akron IP Scholars Forum. The article, Visualizing Copyright Law: Lessons from Conceptual Artists, will be posted on SSRN shortly and will appear in the Akron Law Review.
    • On January 19-20, participated as an Edison Fellow at the final meeting of the 2022-2023 Fellowship in Scottsdale, Arizona. Professor Aistars participated in the winter journal submission cycle and has publication offers for her article Copyright’s Lost Art of Substantial Similarity. She will be finalizing publication arrangements and posting to SSRN soon; an update with a full citation will follow.

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

    • Was mentioned in IP Watchdog’s December 5 post “This Week in Washington IP: Marking Up the American Music Fairness Act, Licensing Patents in the Internet of Things, and Exploring Chinse Patent Licensing and Enforcement Policies”
    • Participated in the December 9 CSIS event “The China Innovation Challenge: A Conversation with Jonathan Barnett,” for which he was interviewed by Andrei Iancu, former director of the USPTO. A video of highlights from the interview is also available for viewing.
    • Was quoted in the January 31 India Education Diary article “University Of Southern California’s MET Program Offers Real-Life Exposure To The Transactional Elements Of Entertainment Law”

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

    • On December 9, participated in an academic roundtable on The Future of Property: Autonomy, Prosperity, and Conflict Mitigation, which was co-hosted by C-IP2 and the Sunwater Institute
    • On Dec. 9, attended the Bayh-Dole Coalition Planning Session
    • With Joshua Kresh, published an article entitled Section 1498(A) is Not a Rx to Reduce Drug Prices for Food and Drug Law Institute (FDLI)
    • On December 11, attended the U.S. Administrative Conference Annual Meeting
    • On December 13, participated in USPTO International Session
    • On December 15, attended and participated in the C-IP2 virtual academic roundtable on Intellectual Property and Biopharmaceutical Policy
    • On January 6, was named by the President of the American Bar Association to the seven-person Task Force on Law, Society, and the Judiciary along with Senator Kay Bailey Hutchinson (Ret.) (TX-R). “We’re thrilled to announce that Judge Susan G. Braden (Ret.) was named to the American Bar Association‘s #PresidentialTaskForce on Law, Society, and the Judiciary along with former Senator #KayBaileyHutchison. The Task Force’s mission is “to evaluate the Nation’s state of the Judiciary” and “identify and recommend steps to educate the Nation on what courts do and why judicial independence is critical to the rights and institutions of government.”” [LinkedIn link & quote from FedArb, Inc.]
    • On January 16, served as a panelist for the 2023 Institute of Advanced Patent Studies’ Naples Roundtable, Phoenix Issue II, “Proposals to Ensure that All Litigants Obtain Just, Speedy, and Inexpensive Determinations,” with CAFC Circuit Judge Kathleen O’Malley (Ret.) and USD NJ Judge Faith Hochberg (Ret.)
    • On January 17, participated in the Administrative Conference of the U. S. Consultative Session on the Congressional Small Patent Claims Study
    • Signed on as an amicus curiae to a March letter to the Honorable Mitchell S. Goldberg about U.S.C. § 1498(a)

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)

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

    • On February 1, spoke on a panel about the Copyright Claims Board. According to the Copyright Alliance’s February newsletter, “the Copyright Alliance—in partnership with 15 Volunteer Lawyers for the Arts (VLA) organizations across the U.S.—hosted a webinar on the Copyright Claims Board (CCB), titled The Copyright Claims Board—What We Know About the CCB So Far. Panelists took an in-depth look at how things are working with the CCB seven months after its launch by the U.S. Copyright Office. Speakers included Terrica [Carrington]; Maya Burchette, Attorney-Advisor for the CCB; and Thomas Maddrey, Chief Legal Officer & Head of National Content and Education for the American Society of Media Photographers (ASMP).” A recording on the panel is now available for viewing online.

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

    • On December 1, served on the faculty of the ABA Dispute Resolution Section’s 19thAnnual Advanced Mediation and Advocacy Skills Institute on the topic of using analytical tools to assist with managing impasse during a mediation
    • On January 4, presented before the Arbitration Committee of the ABA Dispute Resolution Section on “Considerations for Drafting an Enforceable Reasoned Award”
    • On January 7, served on the faculty for the Civil Mediation Training Course sponsored by the New Jersey Institute for Continuing Legal Education on the topic of “Remote Mediations Using Zoom”
    • On January 10, was a panelist on a program sponsored by the Domestic Arbitration Committee of the New York State Bar Association Dispute Resolution Section entitled “How Do you Start and Maintain an Arbitration Practice – Learn from Successful Arbitrators and Experts”
    • On February 2, presented before the ADR Practice Group of the law firm of Ruskin Moscou Faltischek, P.C. on “Marketing Your ADR Practice”
    • On February 17, was a speaker at the ABA Labor & Employment Law Section’s Federal Labor Standards Legislation Committee Midwinter Meeting in Puerto Vallarta, Mexico on “Ethics for Employment Attorneys”

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

    • On December 9, participated in an academic roundtable on The Future of Property: Autonomy, Prosperity, and Conflict Mitigation, which was co-hosted by C-IP2 and the Sunwater Institute
    • On January 19-20, participated at the final meeting of the 2022-2023 Edison Fellowship in Scottsdale, Arizona
    • On February 28, spoke on LEC’s panel “Johnson v. M’Intosh: Reflections on the 200th Anniversary of a Foundational Case on Property Law and Indigenous Rights in the United States”

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

    • On December 9, was mentioned in a USPTO article as being named as a new member of the Patent Public Advisory Council (“PPAC”). Prof. Darden is also joined by new members Henry Hadad (Bristol Myers Squibb) and Olivia Tsai (Cruise). Darden says, “I look forward to doing great things to continue to improve our patent system for all.”
    • On January 3, mentioned in WilmerHale’s “PTAB/USPTO Update – January 2023” article as becoming a new member of the USPTO’s Patent Public Advisory Committee (PPAC)

John F. Duffy (C-IP2 Senior Scholar; Samuel H. McCoy II Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law)

    • On December 9, participated in an academic roundtable on The Future of Property: Autonomy, Prosperity, and Conflict Mitigation, which was co-hosted by C-IP2 and the Sunwater Institute
    • On January 20, participated as a Distinguished Commentator at the final meeting of the 2022-2023 Edison Fellowship on Scottsdale, Arizona

Gregory Dolin (C-IP2 Senior Scholar; Associate Professor of Law, University of Baltimore School of Law)

    • Was cited in January 26 Law360 article “RFK Jr.-Repped Doc Wins Halt Of COVID Misinformation Law” by Craig Clough
    • Was quoted in January 26 Reuters article “California law aiming to curb COVID misinformation blocked by judge” by Brendan Pierson (cross-posted on January 27 by Kalkine Media)
    • Was mentioned and cited in January 26 Northern California Record article “Judge blocks state from using new law to go after doctors who may disagree with ‘scientific consensus’ on Covid” by Jonathan Bilyk
    • Was quoted in January 26 Daily Wire article “District Judge Blocks California’s COVID ‘Misinformation’ Law” by Dillon Burroughs

Tabrez Ebrahim (C-IP2 Scholar; Associate Professor, California Western School of Law)

    • In January, presented on Islamic Intellectual Property for the Junior IP Scholars Association (JIPSA) at the UCLA School of Law
    • On January 4, presented on Legal Ethics & Professional Responsibility on Digital Platforms at a session on “New Voices in Internet and Computer Law” at the AALS 2023 Annual Meeting in San Diego, CA
    • On January 6, presented on Hacking the Board at “Business Associations Works-in-Progress Roundtable” at the AALS 2023 Annual Meeting in San Diego, CA
    • Coordinated and moderated the January 12 webinar “Challenges & Opportunities with Intellectual Property & Technology Innovation in Muslim-Majority Countries,” hosted by C-IP2
    • On February 13, presented on “Islamic Intellectual Property” at the Muslim Educational Trust (MET) Educational and Cultural Center in Tigard, Oregon

Joseph Fishman (C-IP2 Senior Scholar; Professor of Law, Vanderbilt University Law School)

    • Was quoted in December 6 Bloomberg Law article “TikTok Music Lawsuits Fire Warning Shots to Brands, Influencers”

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)

    • Was mentioned in Columbia Law School’s December 1 post “From Voting Rights to Farming’s Future: The Year in Alumni Books”
    • In December, presented “The Most Dangerous Game: Inferential Surveillance of Patients and the Implications of Constitutional Limits on Health Information Regulation” at the Center for Intellectual Property Law & Technology‘s Annual IP Scholars Forum at the University of Akron School of Law
    • In December, was appointed as Chairperson Academic Advisory Board for the Copyright Alliance
    • As of December, is Chairperson Elect and Executive Board Member for the Association of American Law Schools (AALS), Section of Technology, Law and Legal Education
    • In February, presented on “Emerging Technology and the Media – Ethical and Legal Dilemmas” for the American Bar Association, Business Law Section Cyberspace Law Committee, Cyberspace Law Institute
    • In February, presented Teaching and Learning in the Metaverse: Using Online Platforms, Games, NFTs and Blockchain in Education, Association of American Law Schools
    • In February, presented Developing Self-assessing Learners: Techniques for Flipping First Year Courses to Build Equity, Engagement, Awareness, and Understanding, Association of American Law Schools
    • In February, was interviewed by the Social Sciences in China Press. A summary of the interview (Chinese) was published by the China Social Science Network on March 1

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

    • In December, attended the Bahrain Innovation & Technology Transfer Center Workshop

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

    • On December 5, participated in the virtual event “Licensing and the Internet of Things” hosted by the Hudson Institute
    • On February 16, participated in 4iP Council’s webinar and Q&A on “Patent Holdout and Small(er) Technology Firms” 

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

    • On December 9, participated in an academic roundtable on The Future of Property: Autonomy, Prosperity, and Conflict Mitigation, which was co-hosted by C-IP2 and the Sunwater Institute 

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

Joshua Kresh (C-IP2 Managing Director)

    • Co-organized and participated in C-IP2‘s December 15 virtual academic roundtable on Intellectual Property and Biopharmaceutical Policy
    • On December 9, participated in an academic roundtable on The Future of Property: Autonomy, Prosperity, and Conflict Mitigation, which was co-hosted by C-IP2 and the Sunwater Institute
    • With Judge Susan G. Braden, published an article entitled Section 1498(A) is Not a Rx to Reduce Drug Prices for Food and Drug Law Institute (FDLI)
    • On January 19-20, participated at the final meeting of the 2022-2023 Edison Fellowship in Scottsdale, Arizona
    • In February, along with C-IP2 Senior Fellow for Life Sciences and Scholar Emily Michiko Morris and Senior Scholar Mark Schultz, submitted a response to the USPTO’s Request for Comments on USPTO Initiatives to Ensure the Robustness and Reliability of Patent Rights (PTO-P-2022-0025)
    • In February, signed onto an amicus brief in favor of Novartis for Novartis Pharmaceuticals Corporation, v. HEC Pharm Co., Ltd.

Dale Lazar (C-IP2 Practitioner in Residence; Director, Patent Program, Innovation Law Clinic)

    • Co-taught the Innovation Law Clinic at Antonin Scalia Law School as part of the Fall 2022 and Spring 2023 semesters

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

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

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 University)

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)

    • Signed on as an amicus curiae to a March letter to the Honorable Mitchell S. Goldberg about U.S.C. § 1498(a)

Hina Mehta (C-IP2 Practitioner in Residence; Director, Office of Technology Transfer, George Mason University)

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)

    • Co-organized and participated in C-IP2‘s December 15 virtual academic roundtable on Intellectual Property and Biopharmaceutical Policy
    • In February, along with C-IP2 Senior Scholar Mark F. Schultz and Managing Director Joshua Kresh, submitted a response to the USPTO’s Request for Comments on USPTO Initiatives to Ensure the Robustness and Reliability of Patent Rights (PTO-P-2022-0025), discussing “Thickets,” Continuations, and Obviousness-Type Patenting and Terminal Disclaimers. For each area, Professor Morris laid out the potential concerns, explained what the data currently show, and described the questions that should be asked and data that would need to be gathered to show if any of the three areas is an actual problem in BioPharma patents. She cautioned that changing a system, which at least seems to be working, without evidence and a clear plan can cause substantial harm, and before any such changes are made, it must be ascertained whether there is anything that needs to be fixed.
    • On February 23, was mentioned in IPWatchdog post “Amici Urge Justices to Grant Novartis’ Petition on CAFC’s Approach to Reconstituting Panels”
    • In February, signed onto an amicus brief in favor of Novartis for Novartis Pharmaceuticals Corporation, v. HEC Pharm Co., Ltd. Professor Morris was also heavily involved in drafting the brief.
    • Signed on as an amicus curiae to a March letter to the Honorable Mitchell S. Goldberg about U.S.C. § 1498(a)

Loren Mulraine (C-IP2 Senior Scholar; Professor of Law, Director of Music and Entertainment Law Studies, Belmont University – College of Law)

    • Was mentioned by law firm Spencer Fane in a December 2 news piece on his participation in the California Copyright Conference’s October 19 Annual Music Legal Update Panel
    • In January, was a featured speaker on Copyright for Radio Broadcasters at the Adventist Radio Convention held in Greensboro, North Carolina
    • In February, spoke on a CLE panel at the Copyright Society (CSUSA) 2023 Midwinter Meeting in Rancho Mirage, California, entitled “The Great Debate: North v. South” and featured four attorneys, two from the United States and two from Canada debating some of the differences between the two countries’ copyright laws

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 Fellow for Innovation Policy & Senior Scholar; Associate Dean of Academic Affairs, Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)

    • On December 9, participated in an academic roundtable on The Future of Property: Autonomy, Prosperity, and Conflict Mitigation, which was co-hosted by C-IP2 and the Sunwater Institute
    • On January 15-17, participated in The Naples Roundtable in Naples, Florida, and moderated the session “Patent Eligibility- After More Than a Decade since Bilski v. Kappos, Where and How Do We Find the Talisman for Fixing the ‘Validity Goulash’?”
    • On February 23, was mentioned in IPWatchdog post “AmiciUrge Justices to Grant Novartis’ Petition on CAFC’s Approach to Reconstituting Panels”
    • On February 23-24, participated in the Berkeley–NYU Symposium on the Impact of the Patent System on Markets for Technology, presenting “Hit the Road Jack: The Auto Industry as the Next Vehicle for Predatory Infringement”
    • In February, filed a statement with Professor Adam Mossoff of Scalia Law and the Hudson Institute on public interest and specifically the public’s interest in reliable and effective patent rights (Law360 article “ITC Gets An Earful On Impact of Possible Apple Watch Ban” discusses responses received by the ITC)
    • In February, signed onto an amicus brief in favor of Novartis for Novartis Pharmaceuticals Corporation, v. HEC Pharm Co., Ltd.

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

    • On January 19-20, participated as a Distinguished Commentator at the final meeting of the 2022-2023 Edison Fellowship in Scottsdale, Arizona

Alexandra Jane Roberts (C-IP2 Senior Fellow for Trademarks; Professor of Law and Media, Northeastern University School of Law)

    • Was quoted in a December 2 article in News @ Northwestern entitled “How Far Can British Street Artist Banksy Take His Anonymity?” by Jessica Taylor Price
    • Participated in a December 5 panel discussion entitled “Chokepoint Capitalism: A Conversation” in which, along with fellow Northeastern University colleagues, Professor Roberts interviewed Cory Doctorow, co-author of the book Chokepoint Capitalism: How Big Tech and Big Content Captured Creative Labor Markets and How We’ll Win Them Back
    • In January, co-hosted and participated in the International Trademark Association (INTA) Scholarship Symposium
    • On January 18, was quoted in Sportico article “Under Armour Scores Trademark Win Against Women’s Wear Brand” by Michael McCann [read on Sportico or Yahoo]
    • On January 23, was quoted in Bloomberg Law article “Adidas’ Recent Trial Loss Unlikely to Deter Brand Enforcement” by Isaiah Poritz
    • In early February, presented “Multi-Level Lies” at the Suffolk Law IP Center’s 20th Annual Works in Progress in Intellectual Property Scholars Colloquium (WIPIP)
    • Was quoted in the February 15 Northeastern Global News article “It’s Just Another Marketing Scheme. ‘De-influencers’ Tell You What To Buy by Telling You What Not To Buy”
    • Was quoted in the February 24 Daily Beast article “How a Dubious Parasite Cleanse Keeps Taking Over TikTok”

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

    • Was interviewed as an Artificial Intelligence expert for a February 7 Pace article “Who Legally Owns Art Created with Artificial Intelligence?” by Neil Marion

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

    • In December, was featured on Nebraska’s Governance and Technology Center’s Tech Refactored Podcast Show for an episode on “Copyright Law and Computer Software,” hosted by Professor Justin (Gus) Hurwitz
    • In early February, presented “Who Framed Mickey Mouse” at the Suffolk Law IP Center’s 20th Annual Works in Progress in Intellectual Property Scholars Colloquium (WIPIP)

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)

    • On January 19-20, participated as a Distinguished Commentator at the final meeting of the 2022-2023 Edison Fellowship in Scottsdale, Arizona
    • In February, along with C-IP2 Senior Fellow for Life Sciences and Scholar Emily Michiko Morris and Managing Director Joshua Kresh, submitted a response to the USPTO’s Request for Comments on USPTO Initiatives to Ensure the Robustness and Reliability of Patent Rights (PTO-P-2022-0025)
    • In February, signed onto an amicus brief in favor of Novartis for Novartis Pharmaceuticals Corporation, v. HEC Pharm Co., Ltd.

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)

    • Was quoted in a January 5 NBC News piece by Eli M. Rosenberg on how the “FTC says proposed ban of noncompete clauses would strengthen workers’ hand.” As cited in the article, Professor Sichelman expressed his opposition to the FTC’s proposal to ban noncompetes, although he is not opposed to a ban solely for low-wage workers 
    • In February, signed onto an amicus brief in favor of Novartis for Novartis Pharmaceuticals Corporation, v. HEC Pharm Co., Ltd.

Eric M. Solovy (C-IP2 Practitioner in Residence; Partner, Sidley Austin LLP)

    • In December, published a policy brief with C-IP2 entitled The TRIPS Waiver for COVID-19 Vaccines, and Its Potential Expansion: Assessing the Impact on Global IP Protection and Public Health

Dr. Bhamati Viswanathan (C-IP2 Scholar; Faculty Fellow, New England Law | Boston)

Scholarship & Other Writings

Jonathan Barnett, Fragile Giants: Reassessing Market Power in Platform Ecosystems, Competition Policy International (January 18, 2023)

Jonathan M. Barnett, “Pop goes the antitrust bubble,” The Hill (December 10, 2022)

Susan G. Braden and Joshua Kresh, Section 1498(A) is Not a Rx to Reduce Drug Prices, 77 Food and Drug Law Journal 3 (December 2022)

Daniel R. Cahoy, “The Techno-Optimist Case for Addressing Sustainability and its Grounding in Capitalist (Market) Incentives” (January 4, 2023)

Charles Delmotte, Different Economic Models of Innovation and Their Relation to the Law, in Artificial Intelligence and the Law 23 (Jan De Bruyne & Cedric Vanleenhove eds., 2023)

Gregory Dolin, “Next COVID-19 battle will be wages in court,” The Washington Times (January 25, 2023)

Jon M. Garon, Legal Considerations for Offering Metaverse-Based Education (January 12, 2023)

Jon M. Garon, Legal Implications of a Ubiquitous Metaverse and a Web3 Future, 106 Marq. L. Rev. 163 (2022).

Jon M. Garon, When AI Goes to War: Corporate Accountability for Virtual Mass Disinformation, Algorithmic Atrocities, and Synthetic Propaganda (March 26, 2022). Northern Kentucky Law Review, Vol. 49, No. 2, 2022 (49 N. Ky. L. Rev. 181 (2022))

Chris Holman, “Federal Circuit Gives Stare Decisis Effect to a Judgment of Claim Validity,” Patently-O (February 23, 2023)

Chris Holman, Genentech v. Sandoz: Patents claiming methods of managing side effects found invalid or not infringed, Patently-O (December 24, 2022)

Camilla A. Hrdy and Daniel H. Brean, “Guest Post by Prof. Hrdy & Dan Brean: The Patent Law Origins of Science Fiction,” Patently-O (January 20, 2023)

Camilla Alexandra Hrdy and Daniel Harris Brean, The Patent Law Origins of Science Fiction (December 1, 2022)

Camilla Alexandra Hrdy and Christopher B. Seaman, Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes (March 11, 2023). Yale Law Journal, Vol. 133

David Kappos and Jonathan Barnett, Enhanced Damages Necessary In No-Injunction Patent System, Law360 (February 2, 2023)

Johnathon Liddicoat, “New insights into the amount of R&D for new uses of generic drugs” (2022) Generics and Biosimilar Initiative (Online)

Daryl Lim, Trademark Confusion Simplified: A New Framework for Multifactor Tests, Berkeley Technology Law Journal (Jan. 2023)

Daryl Lim, “Computational Trademark Infringement and Adjudication,” in Research Handbook on Intellectual Property and Artificial Intelligence, ed. Ryan Abbott (Massachusetts: Edward Elgar Publishing, Inc., 2022), from p. 290

Irina Manta, “‘Strangers on the Internet’ Podcast Ep. 18: Exclusive Interview with Bestselling Author Nancy Jo Sales,” The Volokh Conspiracy (January 2, 2023)

Irina Manta, “‘Strangers on the Internet’ Podcast Ep. 20: AI Dating Advice,” The Volokh Conspiracy (January 16, 2023)

Irina Manta, “Do Hospitals That Drop Mask Requirements Risk Liability?“, The Volokh Conspiracy (February 20, 2023)

Seán M. O’Connor, “AI Replication of Musical Styles Points the Way to An Exclusive Rights Regime,” in Research Handbook on Intellectual Property and Artificial Intelligence, ed. Ryan Abbott (Massachusetts: Edward Elgar Publishing, Inc., 2022), from p. 65

Kristen Osenga, Are ‘patent thickets’ to blame for high drug prices? Gulf Breeze News (December 15, 2022)

Kristen Osenga, ‘Patent thickets’ to blame for high drug prices? The Daily Star (Dec 16, 2022

Alexandra J. Roberts, Getting a Handle on Handles, Communications of the Association for Computing Machinery, ed. James Grimmelmann (Jan. 2023)

Eric M. Solovy, The TRIPS Waiver for COVID-19 Vaccines, and Its Potential Expansion: Assessing the Impact on Global IP Protection and Public, (Ctr. For Intell. Prop. x Innov. Pol. Dec. 2022)