It was my pleasure to participate in a panel session on “SEP Current & Proposed Regulations” last month at the George Mason University Antonin Scalia Law School Center for Intellectual Property x Innovation Policy (C-IP2) Annual Fall Conference entitled “The Importance of Exclusive Rights.” The other panelists were Angela Barr, Mark Cohen, and David Kappos. Our moderator was Kristen Osenga.
We compared SEP policies and developments in various jurisdictions including the United States, China, the EU, Germany and the UK. Discussion encompassed many aspects of SEP licensing including availability of injunctions, patent pooling, use of international arbitration, what constitutes discriminatory licensing, and rate setting such as that using the top-down approach.
I started by describing the European Commission’s audacious proposed new SEP regulation. I said this is bold, risky, reckless, and will be counter-productive to the Commission’s new industrial policy to slash red tape, promote innovation and improve global competitiveness. With the purported objective of increasing transparency and predictability in SEP licensing, the proposed legislation requires registration of patents, subjecting these to essentiality checking and rate regulation with the setting of an aggregate royalty and the apportionment of that based on patent counting using the top-down approach. The proposed rate setting is non-binding but introduces a 9-month delay, for example, before SEP owners can pursue litigation for infringement and unwillingness to pay FRAND royalties.
The proposed regulation — still in the works also with the European Parliament and Council — is contentious because the SEP licensing business model that prevails in smartphone licensing is in fundamental and major conflict to the way use of patented intellectual property has been licensed, indemnified, and monetized (or not) elsewhere, such as in the automotive industry.
David Kappos highlighted the global ramifications for the proposed EU regulation, reiterated that the EU’s impact assessment found no harm to rectify, and he questioned whether political support for the policy would be sustained with changing leadership in Europe. He identified fundamental deficiency in what is being proposed, including disregard for patent validity in proposed valuation assessments.
The United States has withdrawn from having an SEP policy — having wandered from side to side like the crab, according to Kappos. Proposed rate setting regulation has not been pursued in the United States. He also had much to say about the need for injunction availability — “the importance of exclusive rights,” as is the title of this conference. For example, availability in Germany versus the United States where it is difficult for SEP owners to obtain FRAND licenses.
Mark Cohen said that China, with its judicial-made civil law “sets its own course,” has no disclosed SEP policy and has been very unpredictable. For example, its pursuit of anti-suit injunctions a couple of years ago was a surprise. But these stopped after the EU filed a complaint against China at the WTO. China even interprets the meaning for FRAND in its own way. It is “highly experimental” there regarding SEPs. Once highly territorial, China acts with global considerations now. China is favoring the top-down approach in SEP valuation. If the EU adopts its proposed regulation, that will accelerate what China is doing. On the other hand, he noted that as Chinese companies such as Huawei become increasingly SEP licensors, rather than mostly licensees, China might well reconsider the generally low SEP valuations it derives.
Angela Barr explained InterDigital’s focus on standardized technologies and position as major a global licensor. She emphasised extensive work and long timescales in the technical developments, standard development and patent prosecution, with financial returns from licensing coming much later. She voiced concern about prospective price fixing with proposed SEP regulation. She believes that Europe is leading in SEP policy setting, but it is doing that in the wrong direction. There is a strong ecosystem in standard development and SEP licensing — things are not broken and don’t need fixing.
Here is some additional support to what was said in this panel session.
In September 2024, I co-authored an op-ed about the proposed EU regulation, how it is a solution absent a problem to fix, and how it is in conflict with the new Commission’s industrial strategy, as previously explained. Despite the European Commission’s own Impact Assessment finding no harm, the Commission is in the throes of outsourcing the task of identifying which standards and applications to regulate based on a new blanket test and the contractor’s opinion of where “severe distortion of internal market due to inefficiencies in licensing” has occurred or is expected to occur. This will be a very bureaucratic, burdensome, and contentious demand on SEP owners.
I recently had the pleasure of participating in a panel on third-party litigation funding (TPLF), which was part of the Annual Fall Conference at George Mason University’s Center for Intellectual Property x Innovation Policy.
The panel included experts from both industry and academia, highlighted the growing debate around TPLF, and crystallized why this financing tool is so crucial for America’s innovators and inventors.
At its core, TPLF enables outside investors to fund litigation, and in return receive a portion of any money recovered. While this practice has applications across many areas of law, its impact has been especially notable in patent litigation, where it helps put small startups on a level playing field with much larger companies.
Without outside funds, small companies with unique inventions are at the mercy of big businesses that copy their products.[1] Large tech companies engage in this so-called “efficient infringement” deliberately, knowing that the smaller competitors can’t afford to pursue them in court. TPLF helps inventors protect their intellectual property rights.
During our panel, opponents of TPLF raised concerns that the practice has national-security implications and leads to frivolous lawsuits. They suggested that foreign adversaries, particularly China, might fund litigation, either to access sensitive information or burden American companies with legal costs driven by frivolous litigation.
However, these arguments don’t withstand scrutiny.
First of all, the notion that foreign entities would fund patent litigation to access confidential information is far-fetched and impractical if not impossible. As we discussed on the panel, courts enforce rigorous protections to make sure information on disputed intellectual property isn’t shared. Violations carry severe consequences.[2]
It’s true that sovereign wealth funds — which are owned by governments — sometimes invest in litigation funding. But they do so as passive investors, with no control over cases (or the law firms hired) or access to information. They’re simply seeking returns, just like any other institutional investor. If foreign adversaries want to steal American IP, they have far more direct methods at their disposal, including cyber penetration and traditional corporate espionage.[3]
Second, the argument that TPLF leads to frivolous litigation isn’t supported by the data. Patent litigation has decreased by nearly 50% over the past decade, even as TPLF has grown.[4] This shouldn’t be surprising, as litigation funders only succeed when their cases have merit. They conduct extensive due diligence and reject the vast majority of potential cases. In fact, a panelist who worked at a major TPLF funder noted that his firm rejected 95.5% of potential cases. Put simply, no one makes money funding frivolous lawsuits.
The most telling moment in our discussion came when we explored the real dynamics at play. Opponents of TPLF, often large corporations, push for mandatory disclosure requirements that would expose funding arrangements, including investors’ identities.[5] This might sound reasonable on the surface, but it’s actually a tactical move designed to disadvantage patent owners. Such disclosures would allow the infringing companies to gauge their opponents’ resources and adjust litigation strategies accordingly — often by attempting to outspend and outlast smaller inventors. Disclosure of investor identities would enable investor harassment, driving investment away from third party funding. This is what opponents of TPLF really want.
The reality is that TPLF isn’t just about money, but about access to justice. Patents grant the exclusive right to make and profit from one’s invention. But if a startup can’t enforce that right because it can’t afford litigation, the patent is worthless. Without TPLF, we’d be left with a two-tiered system in which large corporations could enforce their rights while smaller inventors could not; and large corporations could misappropriate without consequence.
This would have real consequences for innovation. “Efficient infringement” doesn’t just hurt individual inventors, but undermines the entire patent system. It discourages inventors from starting companies, and small companies from putting time and resources into innovation. TPLF helps maintain the incentives that drive technological progress.
As our panel discussion wrapped up, it became clear that the debate over TPLF isn’t really about national security or frivolous litigation. It’s about whether we want our patent system to work for everyone — or just for those who can afford to participate.
If you’re interested in learning more about these issues, I encourage you to watch the full panel discussion, where we delve deep into the role of TPLF in our intellectual-property landscape.
The following post comes from Jake L. Bryant, a student in the Intellectual Property Law LL.M. program at Scalia Law and a Research Assistant at C-IP2.
On October 12th and 13th, the Center for Intellectual Property x Innovation Policy (C-IP2) hosted its 2023 Annual Fall Conference, this year titled First Sale: The Role of IP Rights in Markets. One topic that attracted significant attention was the role of copyright law in generative artificial intelligence. A discussion on Generative AI & Human Authorship, was highlighted in one of the key copyright panels of the event. The discussion included a number of distinguished speakers: John Tehranian, the Paul W. Wildman Chair and Professor of Law at Southwestern Law School; Van Lindberg, a partner at Taylor English Duma LLP specializing in IP law; Molly Torsen Stech, General Counsel for the International Association of Scientific, Technical, and Medical Publishers and an adjunct professor at American University School of Law; and Keith Kupferschmid, CEO of the Copyright Alliance. The panel was moderated by Sandra Aistars, a professor at the Antonin Scalia Law School at George Mason University and the Senior Fellow for Copyright Research & Policy at C-IP2. Speakers addressed how copyright law fits with generative AI technology.
According to Tehranian, the copyright issues raised by generative AI are not new but are based on law that has been developing for decades, if not centuries. Notably, the Copyright Act of 1976 does not define the word “author.” Cases like the Ninth Circuit’s Naruto v. Slater (2018) and the D.C. District Court’s Thaler v. Perlmutter (2023), as well as guidelines from the Copyright Office have each analogized to earlier case law to hold that only human beings can be authors for copyright purposes. Nevertheless. answering the question of whether human AI developers and prompt engineers can be authors of the outputs of generative AI models is an open question in determining AI’s place within copyright law.
Approaches vary in shaping AI’s place in copyright jurisprudence, and, as the panelists acknowledged, no definitive right answer has been established. Generative AI has seen IP scholars and practitioners return to the old forge of jurisprudence, one where the exchange of opposing ideas sharpens the tools necessary to develop a viable solution for protecting the rights of all copyright interests involved. Protection of creative expression and room for innovation in copyright was the guiding star for each panelist, addressing the rights of AI developers, existing copyright owners, and any rights to be found for users of AI systems. As Tehranian stated, one should not be quick to deem existing copyright law and its protections inadequate for new technologies. Among other interests, the discussion addressed the importance of hearing the voices of the creators whose rights would be affected by new developments. Touching on seminal cases like Burrow-Giles Lithographic Co. v. Sarony (1884) and Andy Warhol Foundation for the Visual Arts v. Goldsmith (2023), the panelists discussed a host of issues, including the role of authorship related to photographers and prompt engineers, subject rights in photographs and other visual works, and the application of the fair use doctrine to the use of copyrightable works in training AI models.
Kupferschmid discussed the ingestion process in training artificial intelligence and the effects on different industries, staking out five key principles. First, he stated that the rights of creatives and copyright owners must be respected in formulating new legislation. Second, longstanding copyright laws must not be cast aside to subsidize new AI technologies. Third, the ingestion of copyrighted works by AI systems implicates the right of reproduction described in 17 U.S.C. § 106. Fourth, Kupferschmid argued that the ingestion of copyrighted materials is not categorically fair use. Rather, he contended that fair use analysis requires a fact-intensive inquiry and will likely show that ingestion by AI is rarely fair use. Finally, he posited that AI developers must obtain a license from copyright owners of works used to train their models. Kupferschmid also asserted that the ability of copyright owners to license their works to AI developers is a market that would be usurped by deeming AI ingestion a fair use.
Lindberg also acknowledged that fair use analysis requires a fact-intensive inquiry but contended that the ingestion of copyrighted works in training AI systems is likely to be and should be considered a fair use. While a copy is created in the ingestion of a work by an AI, Lindberg analogized the training process of AI systems to a hypothetical where a person takes a book and creates a statistical table calculating the number of nouns, verbs, adjectives, and other parts of speech and the probability of their ordering. He claimed that this is both transformative and outside the scope of the copyright owner’s market. Lindberg likewise suggested that, in most cases, there is no translation from any specific ingested material to the outputs generated by a given prompt. Thus, there is no likelihood of substantial similarity between works ingested and outputs created by using an AI system. Kupferschmid replied that Lindberg’s description of the data used in training the AI is the essence of copyrightable expression—the words chosen by the author, and the order in which they are placed. That an AI system translates this function into computer code makes it no less protectable expression than if a human were to translate an author’s protected work from English into French. Lindberg partially conceded the point but contended that any substantial similarity that resulted on outputs would occur as a result of overtraining or overfitting AI models a result that most proponents of generative AI do not seek to encourage and one that he conceded is unlikely to fall within the scope of fair use. The panelists cited the Books3 data set, which has been used to train various large language AI models, as an example of a problematic example of training sets that could result in a variety of undesirable outcomes.
Tehranian agreed with Lindberg, stating that existing precedent could deem AI training a fair use. Acknowledging that the recent Supreme Court case Andy Warhol Foundation for the Visual Arts v. Goldsmith cut back on the weight afforded to certain transformative uses in fair use determinations, he distinguished that the Court did not reduce the weight of trans-purpose uses, where the copyrighted material is not used to create a new work but instead used for a purpose beyond the scope of an author’s market. While Tehranian stated that he did not necessarily agree that ingestion during AI training should be fair use, he concluded that the existing law creates a likelihood that it will be so.
The panel also discussed the NO FAKES Act, introduced that week by senators from both major parties. See Chris Coons et al., Draft Copy of the NO FAKES Act of 2023, Chris Coons (Nov. 28, 2023), https://www.coons.senate.gov/imo/media/doc/no_fakes_act_draft_text.pdf. Tehranian noted that this proposed legislation would help protect against unauthorized uses of a person’s name, image, or likeness by creating a federal right of publicity, explaining that federal trademark law and state rights of publicity are currently inadequately equipped to handle these issues clearly and consistently.
Stech agreed with each of the five points described by Kupferschmid. Specifically, she argued that the quality of data ingested by AI weighs against a finding of fair use. She also argued in favor of granting copyright over images to the subjects of photographs. She stated that “there are two humans contributing creativity in a photograph,” and that photographers may not be the only authors of photographs including a human subject. Professor Aistars reminded the panel of a case involving model Emily Ratajkowski posting on social media a photograph taken of her by paparazzi in which she had covered her face with a bouquet of flowers. She was then sued for copyright infringement by the photographer. Stech, Tehranian, and Aistars all suggested that this serves as an example where subjects may deserve some rights in photographs taken of them.
Abstract questions surrounding the meaning and value of art and creation continue to force copyright law to tread carefully in providing legal protection to creative expression without becoming a deterministic judge of artistic value. Whether prompt engineers will be considered authors of AI-generated works, whether the ingestion of copyrighted material in training AI models is fair use, and whether the subjects of visual works are entitled to some rights in the images taken of them are all questions at the forefront of IP law in the 21st Century. How Congress and higher courts will address them is not yet known, leaving open the discussion for creatives and lawyers alike to help discern the proper scope of protection for generative AI, its outputs, and the visual arts. As the panelists acknowledged, predictions for the state of policymaking regarding AI are unclear, but there is one certainty. Protecting the rights of artists and their creative expressions must be the driving force behind the application of copyright law to works generated with new technologies.
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.
The following post comes from Terence Yen, a 4E at Scalia Law and a Research Assistant at CPIP. This is the first of two posts (see day two recap) summarizing our two-day 5G at the Nexus of IP, Antitrust, and Technology Leadership conference that was held online from George Mason University Antonin Scalia Law School on October 7-8, 2020.
By Terence Yen
On October 7-8, 2020, CPIP hosted its Eighth Annual Fall Conference, 5G at the Nexus of IP, Antitrust, and Technology Leadership, online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by the Honorable Andrei Iancu, and it was co-hosted by Scalia Law’s National Security Institute (NSI).
This conference addressed fast-emerging intellectual property (IP), antitrust, and technology leadership issues in the 5G and “Internet of Things” innovation ecosystem. Coverage included standard-essential patents (SEPs) along with established and emerging markets on a regional and global basis. Speakers were drawn from the academic, industry, and policymaking communities, with an emphasis on using objective fact-based analysis to explore points of convergence among legal, economic, and geopolitical perspectives on the IP and regulatory infrastructures that underlie these critical industries.
OPENING REMARKS & INTRODUCTIONS
CPIP Executive Director Sean O’Connor opened the conference by welcoming everyone to this year’s event and explaining that the conference was limited to a few hours each day to avoid “Zoom burnout.” Prof. O’Connor discussed the developing technologies of 5G and Internet of Things (IOT), which represents the systems that connect everyday objects and allow them to communicate with each other in real time. This technology increases the capability of a wide variety of industries, including automotives, home appliances, healthcare systems, and more.
CPIP Deputy Director Joshua Kresh then highlighted the various topics that would be covered during the four panel sessions and the keynote address and fireside chat by USPTO Director Andrei Iancu. Mr. Kresh also thanked the CPIP team, including Kristina Pietro, Devlin Hartline, and Mary Clare Durel, and the conference sponsors for making the conference possible.
SESSION 1: USING DATA TO INFORM POLICY: EMPIRICAL EVIDENCE ON SEPS, SSOS AND FRAND ROYALTIES
The first panel focused on the use of data to inform policy, compared with the use of theoretical models for standard-essential patents (SEPs), standard setting organizations (SSOs), and fair reasonable and non-discriminatory (FRAND) commitments. The panelists included Dr. Anne Layne-Farrar of Charles River Associates, Prof. Stephen Haber of Stanford University, and Prof. Daniel Spulber of Northwestern University, and the panel was moderated by Ted Essex of Hogan Lovells.
The panelists discussed how one of the biggest issues in this field is the setting up of royalty rates for industries such as the automotive sector, which utilize 5G and IOT. In the past, economists have warned the public about the looming problem of royalty stacking. Royalty stacking is a theory about industry collapse, wherein market power is exercised excessively and repeatedly. The theory is based on the concept that one monopoly is bad, two monopolies is worse, three monopolies is even worse, and so on. The fundamental concept is that each monopolist sets its price without taking into consideration the prices charged by other monopolists, leading to a situation where, as the number of patent owners increases, the aggregate royalty grows unsustainably and output collapses.
Despite the fears generated by royalty stacking models, however, this issue has not seemed to materialize in the real world. For example, the actual cumulative royalty yield on a smartphone is less than one-twentieth of that predicted by royalty stacking models. The reason we don’t observe this in the real world is that the theory is built on the notion of “one-time” play, meaning the people setting royalties do so independently of each other. As the data shows, this is an inaccurate portrayal of how royalty rates are set up.
The panel then went on to explain that it is important to check theories against data and real results. At the beginning of FRAND litigation, courts worried that implementers were being anticompetitively harmed by high royalty prices. As such, decisions were issued with the policy goal of protecting implementers. Over time, however, we have begun to see more balance from the courts and a higher demand for data prior to the acceptance of theoretical models.
Courts have now recognized that there is a very real problem of people using products without licenses, and that strategic or opportunistic behaviors can happen on either side of the bargaining table. As such, they are now more willing to act as gatekeepers to enforce good faith on both sides, often falling back to comparable licenses as a basic standard.
With this new emphasis on fair play from the courts, most royalty decisions are now being settled through out-of-court negotiations. Evidence shows that practically all SEP licenses are now subject to negotiation. While patent pools are often cited as the main exception, even they generally still have the option of negotiation. Evidence also suggests that SSOs develop standards through consensus decisions that are procompetitive, and most SEP licenses are mostly negotiated and enforced with contract law, making litigation rare. FRAND commitments have generally been found to be clear and effective, and it is believed that excessive regulation and antitrust intervention would impede standardization. Data shows that FRAND commitments encourage the adoption of standards, do not generate market power, and are consistent with invention and innovation.
The increase in negotiation eliminates many predicted outcomes for theories, which makes data even more important. Accurate real-life data informs public policy, and research in this field is shifting towards new techniques for gathering and analyzing big data, as well as increased use of AI and big data.
This trend helps to avoid policy decisions based on guesswork and provides evidence-based analysis helpful to courts and agencies.
KEYNOTE ADDRESS & FIRESIDE CHAT
“IP controls the destiny of virtually every industry.” Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the USPTO, started his keynote address with this bold statement. Advanced digital technologies are transforming virtually every product, manufacturing process, and logistical system, and protecting the IP rights to those technologies is not only a right mentioned in the Constitution, but is the foundation of wealth creation for our nation.
As Director Iancu explained, the advancement of 5G and IOT technology will form the backbone of a new system of autonomous vehicles, smart cities, intelligent appliances, telerobotic surgeries, precision agriculture, and much more. However, our nation faces the reality that the United States is falling behind in the intellectual property arms race.
Twenty years ago, the number of patent applications being filed by Chinese citizens was practically zero. By 2018, however, that number reached almost 1.5 million per year, approximately three times the number of American applications. Chinese applications have increased at an average rate of 26% each year, as opposed to a 2-3% annual increase for the U.S. While some may call into question the quality of these Chinese patent applications, Director Iancu noted that the sheer magnitude indicates that China is at minimum attending diligently to its intellectual property portfolios in areas critical to the next technological revolution. This remarkable trend can in part be attributed to China’s extensive system of government incentives for IP, which include tax incentives, subsidies for patents, and other monetary and nonmonetary rewards. As foreign nations like China continue to outperform the U.S. in amassing a rich depth of technological patents, U.S. companies may end up paying billions in royalties as those patents become increasingly vital to the upcoming technological revolution.
Director Iancu went on the explain that the U.S. must take steps to ensure that American technology is able to keep up with foreign technological development. To do so, we must have a robust system of predictable patent rights to maintain the incentives to innovate. If we are forced to use only technologies that are in the public domain, standards will inevitably be stunted.
Recognizing that private sector inventions are the primary source of SEPs, Director Iancu explained the need for a market-driven licensing system and the role of the government in the transition to 5G. He emphasized that it is the Patent Office’s goal to maintain balance between licensors and licensees, and he ended his presentation with the promise that the “USPTO will be steadfast in ensuring that we have a fair and balanced licensing system driven by the needs of the industry.”
Director Iancu then went on to have a fireside chat with CPIP Executive Director Sean O’Connor, taking questions from the audience at the end.
SESSION 2: IP MEETS ANTITRUST AROUND THE GLOBE: POLICY DEVELOPMENTS IN THE LEGAL TREATMENT OF SEPS AND FRAND
The final session of the day included panelists Maureen Ohlhausen of Baker Botts, Dr. Urška Petrovčič of the Hudson Institute, Prof. Daniel Sokol of the University of Florida, and Prof. John Yun of Scalia Law. The panel was moderated by Prof. Henry Butler, Dean of Scalia Law and Executive Director of the law school’s Law & Economics Center.
The panelists discussed how innovation is crucial to the U.S. economy and how IP has been one of the primary drivers of the economy for the last 60 years. Throughout that time, IP and antitrust law have consistently been found to be complementary fields, as both are aimed at encouraging innovation, industry, and competition.
FRAND issues arise in the context of standards setting, as SDOs commonly adopt patent policies to promote access after a standard is adopted. In tech areas especially, hundreds of patents are often necessary to create a working product. This requires standards for fair and reasonable licensing policies, though there is some dispute as to whether the breach of FRAND commitments is an antitrust concern. Blanket licensing policies can offer higher efficiencies related to reduced transaction costs and patent peace, but the concern is that it may be a form of tying arrangement. However, it should be noted that U.S. antitrust agencies have long acknowledged that blanket licensing does not always raise antitrust concerns.
One issue of contention is the topic of injunctions. The confusions raised on the subject have drawn the attentions of the DOJ and FTC, most recently with their post-Madison approach. The DOJ holds that patent holdup is not an antitrust problem and that SSOs should better protect against holdout to ensure maximum incentives to innovate. It believes that patent owner injunction rights should be protected, not persecuted, and that a unilateral and unconditional refusal to license a valid patent should be per se legal. The FTC agrees with some of that approach, with the opinion that breach of FRAND alone is not an antitrust problem, but both hold-out and hold-up can raise serious concerns.
As a general trend, U.S. courts have begun to move away from the idea that IP owners are very constrained by antitrust and must license. However, the advent of 5G is sure to raise a whole new slew of issues, and the 5G battle will be a very different conflict from what we have seen before. Up until now, many of the most politically connected companies around the world have not played a significant role in this debate. With 5G being the future of IOT, however, many more elements of the supply chain will be involved on this issue, and many previously uninvolved players will want to shake up the case law in their favor.
Thus far, European courts have also moved towards the trend of acknowledging that FRAND compliance may make injunctions more difficult, but there are no rules specifically barring injunctions, so the option remains on the table. European courts have generally put forth the opinion that they want to protect the interests of both implementers and SEP owners, and they are currently less willing to adopt conclusions based on categorical rules or abstract theories, preferring evidence-based analysis instead.
At the center of this multisided issue is SSOs. SSOs balance the interests of two competing groups with different incentives: the innovators and the implementers. By design, SSOs are avoiding cracking down on the issue with bold decisions so as not to disrupt the balance between two sides.
The panelists agreed that, as of right now, nothing is set in stone. Antitrust, especially in combination with IP and contract law, remains in a state of flux. This has led to a lot of uncertainty in investments, which may impact our ability to innovate. Amongst its concluding thoughts on the issue, the panel noted that there are titanic conflicts yet to come, and as far as this field is concerned, “winter is coming.”
The following post comes from Bradfield Biggers, a graduate of Boston College Law School and Founder & CEO of Timshel Inc., a music fintech company that provides data-driven cashflow solutions to musical artists in Los Angeles, California. This is the third of three posts (see day one recap and day two recap) summarizing our three-day The Evolving Music Ecosystem conference that was held online from George Mason University Antonin Scalia Law School on September 9-11, 2020.
By Bradfield Biggers
On September 9-11, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.
This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.
SESSION 5: THE POWER OF DATA OWNERSHIP & ANALYTICS
Access to consumer data and the ability to process and respond to it is perhaps the most valuable component of our digital global ecosystems—no matter the industry. In the music business, collecting and analyzing data about listeners and their habits is occurring on a massive scale, and it’s informing the development of new business models and platforms. But questions of ownership and data sharing loom large, as musicians increasingly realize the value of knowing more about their fans. This panel discussed the current state of data collection and analytics in the music industry and explored ways that big data can foster creative ecosystems for all stakeholders. The panel was moderated by Prof. Sean Pager of Michigan State University College of Law.
Prof. Serona Elton from the University of Miami Frost School of Music kicked off the panel by describing the various places where artist data is aggregated, such as Spotify for Artists, Apple Music for Artists, Soundcharts, and collective management organizations (CMOs). Prof. Elton emphasized that while the number of data sources and quantity of data is extraordinary, the quality of data and specificity of the sources vary drastically. Moreover, while that data is accessible to everyone, the utility and granularity of the data will vary depending on who you are and how you want to use it.
Joshua Friedlander from the Recording Industry Association of America (RIAA) then described the history of data tracking in the music industry. Data analytics became prominent in the 1990s when the RIAA was tracking roughly a billion point-of-sale transactions for recorded music annually. Nevertheless, those billion transactions have been dwarfed by the 1.5 trillion datapoints the RIAA now tracks annually in the U.S. alone. Moreover, where the data of the 1990s merely tracked when and where a record was sold, music industry data today is infinitely more complex. The music data we collect now includes the demographics of the consumer, how long they consumed the song, how often they consume it, and many more analytics that continue past the point of sale or download. As a result, record labels and marketing plans are so intricately related to data that few will approve a marketing campaign without data-backed guidance. Finally, Mr. Friedlander advised artists to retain only representatives who understand and use music data. Without looking at this data to understand the disposition of fans, contemporary artists will have a more difficult time achieving success in this data-driven music business.
Prof. Jake Linford from Florida University School of Law followed Mr. Friedlander’s discussion of the endless potential of artist data with a critical discussion of the safety and usefulness of current data collection and analytics efforts. Prof. Linford agrees that this extraordinarily granular data has unlimited potential, but he also thinks that not all aspects of its potential are positive. For example, the data technology companies collecting from your online consumption habits may be able to help artists and record labels understand what style of music is likely to create the next big pop song. Nevertheless, such data collection can also reveal potentially sensitive information about users, such as political affiliation and sexual orientation. Prof. Linford went on to discuss how this data can also allow AI-driven robots to create compositions without human intervention. While many are excited about the prospect of robot artists, this does create an interesting philosophical debate of what constitutes a creator.
Prof. Tonya Evans then led the panel into a discussion of disintermediation in the music industry. Prof. Evans explained how too many gatekeeper intermediaries in music needlessly create friction. She recommended that blockchain can streamline music distribution and remove many of these costly friction points, which would leave more money for artists. However, despite the promise of modern internet technologies, she recognized that the effectiveness of streamlining music distribution with current blockchain technology is curbed by the pervasiveness of piracy. Prof. Evans then suggested that a solution to music piracy—which could pave the way for efficient music licensing—could be through a disaggregated, decentralized network of blockchain payment and smart contracts. She anticipates that this sort of technological framework could provide the certainty and trust that music stakeholders need to distribute music securely and efficiently.
Finally, Will Page, the former Chief Economist of Spotify, began his presentation by rehashing and analyzing some of the main points made by the prior panelists. Particularly, he found blockchain to be a less capable solution in the music industry because of the issue of conflicting song metadata. Instead, he suggested the creation of a global repertoire database that would provide needed clarity in the music rights environment that regularly misattributes—or outright fails to attribute—artists to particular songs. Mr. Page later suggested that a country’s best solution to straightening out its broken song attribution status quo would be to create a natural monopoly to act as a central copyright depositor to coordinate with licensees. He then went on to stress the importance of music’s big data conversation, which he suggested should drive music innovation over longstanding industry customs. For example, the music industry continues to rely on country-level data for identifying fans because of longstanding touring customs, rather than the city-level data we have access to that is vastly superior due to its granularity.
SESSION 6: ARTIST MANAGEMENT & THE BUSINESS OF MUSIC
In today’s music business, when artists can act as their own producers, promoters, booking agents, managers, etc., is there still a need for traditional representation? What is the role of an artist manager? How has it evolved as the internet and interconnectivity have grown? This panel, moderated by Prof. Robert Heverly of Albany Law School, brought together artists, managers, lawyers, and venue owners to discuss the constant evolution of artist representation and the business of music.
Prof. Olufunmilayo Arewa from Temple University Beasley School of Law opened the panel by explaining how marginalized groups have been short-changed by record agreements in the past. Prof. Arewa described the financial discrimination and general injustice that has been felt by African American musicians for generations. For example, African American R&B artists between the 1960s and 1980s received royalty contract rates worth 20-60% of what were considered standard rates. Moreover, she noted that an additional consequence of failing to compensate African Americans and other groups fairly is that they cannot receive union sponsored health insurance. Finally, Prof. Arewa highlighted that considering the Black Lives Matter movement, there have been various proposals on how to make amends for past royalty rate inequities.
Attorney Lita Rosario carried on Prof. Arewa’s conversation about the injustices felt by marginalized groups by discussing her personal experience litigating unfair royalty agreements on behalf of African American artists. She then outlined her work in striking the down the “sharecropping” agreements between artists and record labels in favor of joint venture arrangements. Ms. Rosario noted that in the traditional sharecropping model, an artist’s royalties must recoup the recording costs before she is given any share of her royalties. In her proposed joint venture agreement, the artist would instead begin to earn royalties on the day the album breaks even. Also, Ms. Rosario noted, while it is a positive that major record labels have committed around $225 million to promote anti-racism, this gives little solace to those who continue to suffer from the chains of inequitable contracts.
Simon Tam of the award-winning band The Slants then brought home the conversation about systemic racism and marginalization in the music industry by speaking about his personal experience navigating injustice. He recalled an incident when a record executive offered his band a substantial record deal, so long as they replaced their Asian lead singer for a white person. The executive said this was because “Asians don’t sell.” Mr. Tam confronted the executive about the racism and walked out on the deal. Since then Mr. Tam and his band have leveraged online independent distribution platforms to release their music, which has allowed them to create a successful career without label involvement. However, he explained that artists who forgo record label agreements will generally need to find the right group of representatives to champion their careers. The music industry is full of complex arrangements and niches, which is extremely difficult to navigate on one’s own.
Ralph Jaccodine, who is an artist manager and a professor at the Berklee College of Music, then rounded out the panel by providing the perspectives of the record label and artist manager. Prof. Jaccodine emphasized that modern artists can no longer confine their activities just to creating music. Prof. Jaccodine believes that artists need to be able to wear a bunch of different hats in the music industry so they can delegate aspects of their business to effective representatives. Artists need to educate themselves about their business and understand how activities from concert promoting to publishing function so that they can hire the right representatives to drive their careers. Without a knowledge of their business, artists can be taken advantage of and will not know if a particular manager or agent is worth hiring. Prof. Jaccodine encourages artists that they don’t need record labels to be successful—just knowledge and a good team.
SESSION 7: SUPPORTING ARTISTS & COMMUNITIES
Recognition of and support for local artists and musicians is vital to the preservation of creative and culturally diverse communities. Whether full-time professional musicians or part-time hobbyists, creative individuals’ contributions to their communities are invaluable and difficult to measure. But like many who make a living through artistic endeavors, musicians often struggle to find steady work and lack the benefits that many of us take for granted. Musicians also often encounter mental health and substance abuse issues at a greater rate than non-artists. This panel discussed ways a vibrant music scene can benefit a community, ways that communities can give back, and resources available to musicians in need. The panel was moderated by John Good of the Washington Area Lawyers for the Arts.
Prof. Ying Zhen of Wesleyan College kicked off the panel by discussing her 2018 survey concerning the wellbeing of modern musical artists. This survey was an in-depth, multidimensional study involving 1,000 artists who identified as full-time musicians with sustainable careers and those who were transitioning into such careers. From this data, Prof. Zhen and her team were able to uncover interesting information about the modern working artist. For instance, Prof. Zhen identified that the median income from music for these artists was $35,000 per year, the median artist has around 3.5 different music income streams, and that one-third of their yearly income came from non-music sources. And while much of her research concerned the financial wellbeing of artists, Prof. Zhen also collected data on their general wellbeing. Unfortunately, this research tended to show that artists found the financial instability of music challenging, drug usage by artists in this survey was higher than the national average, and that 76% of women in music reported experiencing sexual harassment. Although these figures did not paint the rosiest portrait of artist wellbeing, Prof. Zhen hopes this survey will bring about social and financial change by educating artists and policymakers on the everyday struggles of artists.
Jennifer Leff from MusiCares then followed Prof. Zhen’s presentation by discussing the resources that MusiCares, one of the largest artist resource organizations in the world, offers to artists. Specifically, Ms. Leff spoke about MusiCare’s grant program that helps artists who are struggling financially due to the global COVID-19 crisis. To qualify for this program, artists must have five years of music industry experience or be able to show proof of six commercially released tracks. Qualifying artists can request small-quantity grants to pay personal expenses, such as rent, medical care, and other necessities. So far, MusiCare’s grant program has supported over 18,000 artists during the COVID-19 pandemic and distributed $20 million in grant relief. In addition to this grant program, Ms. Leff spoke about how MusiCares looks out for the broader music community by offering educational seminars ranging from money management and tax tips for musicians to addiction and recover information.
Yudu Gray Jr., the co-founder of House Studio, then transitioned the panel from discussing overarching artist support organizations to how artists are handling the state of the music industry today. Through his music production company, House Studio, Mr. Gray has not only helped artists create masterful music productions, but he also concedes that he has helped artists with the “boring stuff” such as LLC registrations and accounting practices. However, this more holistic approach to providing foundational artistic and business services has allowed his artists to achieve global notoriety, as in the case of the Gramm–winning artist Logic. Mr. Gray then discussed his firsthand account of watching artists he works with struggle to pay rent and access other necessities because of the COVID-19 global pandemic. He sees that technology and the music industry are trying to pivot to stay alive, which ends up leaving individual artists behind. Recognizing this inequity, Mr. Gray began to look for ways to help artists get money to finance their projects. This search resulted in House Studio connecting with technology companies like Apple and Amazon to help artists’ projects get funded. For example, Mr. Gray spoke generally of an upcoming project where artists could pitch music video ideas to an undisclosed technology company that would fund the project without demanding rights. The only catch is that the content the technology company funded would be exclusive on its platform for a period of time.
Erik Philbrook from the performing rights organization American Society of Composers, Authors and Publishers (ASCAP) rounded off the panel by providing artists with tips on how they can get compensated for their work. First, Mr. Philbrook emphasized that artists need to register their music properly so that ASCAP and other royalty distributors can identify and compensate artists for their works. Second, he noted that many artists are not collecting their full amount of performance royalties because they only register with performing rights organizations as writers. Mr. Philbrook explained that unless an artist has a relationship with a publisher, the artist herself needs to register as both a writer and publisher with her performing rights organization so that she can receive all of the performance royalties she is due. Finally, Mr. Philbrook wanted to publicize that ASCAP also supports artists with educational materials, seminars, and conferences to teach artists on how to navigate the nuances of the music industry.
CLOSING REMARKS
CPIP Executive Director Sean O’Connor closed the conference by expressing how pleased he was with how smoothly the conference operated and thanking everyone involved in making this conference possible. Prof. O’Connor provided special thanks to the CPIP team, including Prof. Sandra Aistars, Prof. Devlin Hartline, CPIP Deputy Director Joshua Kresh, Kristina Pietro, and Mary Clare Durel, for their phenomenal work behind the scenes. Additionally, Prof. O’Connor acknowledged the financial and general support of the conference’s sponsors, in particular the Recording Industry Association of America (RIAA) and Mitchell Silberberg & Knupp LLP.
Prof. O’Connor then invited artists, academics, and anyone else to join CPIP next year in a follow-up conference that he anticipates will be themed “Rebuilding the Music Ecosystem.”
The following post comes from Bradfield Biggers, a graduate of Boston College Law School and Founder & CEO of Timshel Inc., a music fintech company that provides data-driven cashflow solutions to musical artists in Los Angeles, California. This is the second of three posts (see day one recap and day three recap) summarizing our three-day The Evolving Music Ecosystem conference that was held online from George Mason University Antonin Scalia Law School on September 9-11, 2020.
By Bradfield Biggers
On September 9-11, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.
This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.
SESSION 3: WHAT IS THE SCOPE OF A MUSICAL COMPOSITION?
Music copyright is unusual in that it can consist of two separate kinds of registered works. Musical compositions are the underlying song, most easily thought of in terms of notated sheet music. Sound recordings are particular performances captured in a recording. This panel focused on current hot topics in the composition rights. Panelists considered: how to determine the scope of composition for composers not fluent in written notation (including social justice aspects); whether and how juries should be used in assessing substantial similarity between works; new distribution and licensing models; whether it makes sense to distinguish compositions from sound recordings in today’s beats-forward studio-based composition approach for pop music; and AI compositions.
The panel included Prof. Robert Brauneis from the George Washington University Law School, Richard S. Busch of King & Ballow, Robert Clarida of Reitler Kailas & Rosenblatt, and Prof. Joseph Fishman from Vanderbilt University. The panel was moderated by CPIP Executive Director Sean O’Connor.
Robert Brauneis started the panel by clarifying that unlike the modern U.S. copyright landscape, the Copyright Act of 1909 required artists to deposit their compositions with the U.S. Copyright Office in the form of music notation to receive federal protection. If the artist submitted only a “lead sheet” with the lyrics and melody, the federal copyright protection was limited to what was in the lead sheet. However, after the passing the 1976 update to the U.S. Copyright Act, artists could deposit sound recordings instead of lead sheets, thereby providing protection for any musical elements in the entire recording. Prof. Brauneis then noted that the courts have regularly identified that the 1976 Copyright Act is retroactive. This means that artists with sound recordings made before 1972 could deposit their sound recordings and receive broad federal copyright protections in their work. This had a big implication because it allowed portions of a sound recording that may not have been notated in a lead sheet to receive copyright protection. This offered artists a broader set of rights in their music, which he argues is much more representative of how we perceive music rather than by the limited notations of lead sheets.
Richard Busch then used Prof. Brauneis’ presentation on the implications of offering copyright protections to sound recording instead of limited lead sheets to transition into a conversation about the notorious Williams v. Gaye lawsuit. Also known as the “Blurred Lines” case, it concerned whether Pharrell Williams and Robin Thicke’s “Blurred Lines” infringed the classic Marvin Gaye song, “Got To Give It Up.” The Blurred Lines case, which Mr. Busch litigated on behalf of the Gaye estate, furthered copyright jurisprudence by cementing that some combination of musical elements—even a unique combination of uncopyrightable elements—can maintain an infringement action. And to provide clarity and closure for those in the audience who did not follow the case, Mr. Busch explained how a similarly placed parlando present in both songs may have brought about the victory for the Gaye estate.
Robert Clarida then returned the conversation to the implication of allowing a sound recording to be deposited with the U.S. Copyright Office. Mr. Clarida noted that lead sheet deposit copies generally leave out many of the characteristic elements of songs, such as the guitar solo in “Hotel California” by the Eagles. To emphasize the importance of allowing copyright protection to exceed the lead sheet, Mr. Clarida highlighted how the strict observation of a lead sheet affected the Skidmore v. Led Zeppelin lawsuit. There, Led Zeppelin was sued for copyright infringement due to a piece that allegedly had similar elements to their megahit “Stairway to Heaven.” However, since Led Zeppelin had only deposited a lead sheet instead of the sound recording, the court remained ignorant about the true aspects of the song embodied in the sound recording. Consequently, the court did not consider the “undeposited authorship,” as Mr. Clarida put it, which could have resulted in an entirely different ruling.
Prof. Joseph Fishman turned the panel towards defining the scope of actionable similarity in copyright infringement cases. He recognized that this was a particularly interesting issue in the Blurred Lines case because it did not concern the top-line melody. Prof. Fishman explained that the earliest infringement lawsuits focused almost exclusively on whether there was a misappropriation of the top-line melody. However, there has been a modern trend of expanding protection to any combination of identifiable musical elements, as evinced by the Blurred Lines court. Prof. Fishman then went on to note that this modern shift in copyright jurisprudence increases the cost and complexity of litigating infringement cases because now they require expert testimony and jury verdicts.
KEYNOTE LUNCH / FIRESIDE CHAT
Singer, songwriter, Grammy winner, and best-selling author Rosanne Cash gave the keynote fireside chat from her home in New York. Ms. Cash is a devout artist advocate and a friend of CPIP, and she has testified to the U.S. House of Representatives on behalf of artists. She is also a major proponent of the Artist Rights Alliance organization.
Prof. Aistars opened the conversation by asking Ms. Cash about her personal music ecosystem. “I don’t ever think about it being all about me,” she responded. Ms. Cash believes the music ecosystem is about “provid[ing] work for each other” and that it relies on flight attendants, audio engineers, bus drivers, background vocalists, and all other tangential participants to function. She finds that everyone in the music ecosystem is family because they all speak the same language and inspire one another. As for her personal music ecosystem, Ms. Cash expressed her gratitude for all of her support—from road crews to studio assistants—and for the devotion of her fan base. However, her music ecosystem’s nucleus centers around her “in-house” producer, co-writer, sound engineer, and husband, John Leventhal.
Highlighting the expanse of Ms. Cash’s definition of what the music ecosystem includes, Prof. Aistars then queried Ms. Cash about what she thinks is the most important element for building a thriving creative community. Ms. Cash emphasized that “support for the arts is key.” She expressed her frustration with how quickly public schools have cut funding for the arts, thus demolishing the foundational support system of creative young students. Ms. Cash’s concern is that while schools are willing to provide support for students who are inclined to pursue math and science, there is a lack of educational support and nourishment for those with creative dispositions. This disparity contributes to a discounting of the arts in the public’s mind and stifles innovation in the American arts.
Ms. Cash also noted that a thriving creative community cannot survive if that community does not support its venues for showcasing the arts as well as those who create it. As small music venues continue to close due to COVID-19’s effective moratorium on in-person live music, Ms. Cash believes the creative communities that rely on those venues will disappear with them. She then stressed the importance of the Artist Rights Alliance and other nonprofit artists’ organizations that provide financial support and health care to artists. She also said that federal and state funding is crucial if artists are to survive this global pandemic. Ms. Cash brought attention to France’s recent budget allocation of $2 billion for supporting artists during the pandemic. She is disappointed that while U.S. legislators have supported other service industries, they are unwilling to put the same level of support towards protecting those who enrich and drive our American culture. As Ms. Cash put it, “We are in the service industry–we serve the heart and soul.”
Prof. Aistars then transitioned the conversation to the lighter subject of Ms. Cash’s creative process—specifically, as a songwriter and best-selling author, if her process varies depending on whether she’s writing prose or lyrics. Ms. Cash prefers to create lyrics in the comfort of her kitchen, which is supplied with a guitar, microphone, and digital audio workstation. Also, she finds that regular breaks are necessary for her creative process when writing songs. Ms. Cash notices that many times, after she’s taken a break to go to the store or run an errand, the song has found a way of finishing itself when she picks the guitar back up.
In contrast to the loose framework of Ms. Cash’s songwriting, she admitted that when writing prose, she appreciates having a word count, a defined topic, and a due date. She believes that song structure is like a house with blueprints: the rhyme scheme and each verse are built together in an existing structure. However, when writing prose, the piece’s blueprint is not as apparent, so she finds it easier to get lost. Consequently, Ms. Cash finds subtle comfort in the certainty of having defined parameters to guide her construction of the prose.
Prof. Aistars then recounted when Ms. Cash testified in front of the House Judiciary Committee on behalf of artists in 2014, which reference gave way to a discussion on Ms. Cash’s further artist advocacy work with the Artist Rights Alliance (ARA). The ARA seeks to achieve fair treatment and compensation for working musicians, performers, and songwriters online through advocacy work and by promoting its “Artists’ Bill of Rights.” Ms. Cash, who sits on the organization’s board, feels passionately about getting the voice of the ordinary musician heard. Although, she readily admits that she is “planting a garden I will never see bloom.” Ms. Cash discussed how she is particularly passionate about having the Artist Rights Alliance help artists receive attribution for their work, prevent politicians and other groups from using an artist’s work to promote their ideologies, and achieve just compensation.
In line with Ms. Cash’s conversation about politics, Prof. Aistars then asked her about how important the First Amendment is to her. Ms. Cash said that as a person who is loudly anti-gun violence and a regular public commentator on politics, she thinks the First Amendment is a crucial part of being an American. Ironically, she mentioned how many people expect musicians to not be involved in political discourse and instead “shut up and sing.” And while pointing out that this request is “anatomically impossible,” Ms. Cash emphasized—referring to a statement by American musician Tom Morello—that she “did not set down my First Amendment rights when I picked up my guitar.” She believes art is supposed to make the audience uncomfortable and arouse feelings, so artists should be encouraged to voice opinions that challenge the political beliefs of others.
Finally, Prof. Aistars concluded the keynote by asking about how Ms. Cash has been affected by the COVID-19 crisis and what others can do to help artists during these difficult times. Ms. Cash reflected on how interesting it is that COVID-19 shutdowns have made her “miss what I wanted to lose.” She discussed how before the pandemic she regularly missed home while touring because the road can be quite taxing. Also, her first true love is songwriting, which she finds difficult to do on tour. However, her long absence from touring due to the global pandemic has made her realize how much she misses connecting with her fans, working with the tour crew, and performing.
Ms. Cash encouraged everyone listening to the fireside chat to not take the message of this conference lightly. She stressed that music communities and ecosystems around the nation and the world are hurting, but there are certainly things people can do about it. She encourages people to donate to organizations that support independent artists directly, such as MusiCares and the Artist Rights Alliance. Also, to support music communities themselves, people need to donate to independent creative venues so that artists have a place to feature their work once people can return to public spaces and concerts. Finally, and most importantly—buy music! Ms. Cash says that if we are going to build a sustainable music industry for everyone, people need to move away from the free tiers of streaming platforms.
Ms. Cash ended the fireside chat with humbling words of appreciation for everyone involved in The Music Evolving Ecosystem conference and by showing a music video of her song “We’re All in This Together.” John Paul White and Ms. Cash wrote this song and made this video during the pandemic shutdowns, and all proceeds from the video go to the Music Health Alliance to help artists receive health care.
SESSION 4: THE NEW ROLE OF RECORD LABELS & PLATFORMS
From MP3s to YouTube to Spotify, the way we listen to music in the digital age has changed considerably over the past twenty years. At a time when physical copy records and full-length albums have been replaced by the streaming single, what role does a record label play? And as traditional lines between creator, copyright owner, and distributor continue to blur, how will labels and streaming services work together to ensure that artists are appropriately compensated and incentivized? This panel, moderated by Prof. Loren Mulraine of Belmont University College of Law, explored recent developments in copyright law as they apply to the music industry and looked ahead to how music ecosystems will evolve in the coming years.
Mitch Glazier of the Recording Industry Association of America (RIAA) began the panel by highlighting that while the COVID-19 crisis has created a sudden shift in the performance and monetization of music, this is not the first time record labels have met the challenges of a seemingly overnight evolution of the music industry. Mr. Glazier explained that over the last twenty years there have been five major inflection points marking evolutionary bursts of the music industry. It began with a Supreme Court victory in MGM Studios v. Grokster that brought certainty to the prospect of legal recourse for rights owners in the lawless landscape of peer-to-peer music piracy of the early 2000s. This was followed by Apple’s iTunes, the first secure, consumer-friendly online music distribution platform. Then, as the 4G internet revolution made mobile music streaming feasible, record labels introduced an entirely new catalog licensing dynamic when they brought Spotify to the United States. Finally, Mr. Glazier identified that the music industry is in the midst of establishing its most recent inflection point, which involves social media. To achieve this inflection point, record labels will need to create a licensing regime with social media platforms that is beneficial to technology companies and profitable for artists.
Mark Baker from Warner Music Group (WMG) then discussed how modern record labels are evolving to fit the contours of this rapidly expanding music landscape. Baker identified that record labels have always amplified the creativity of artists by providing the marketing, licensing, and career development expertise of their staff. And while modern artists have unprecedented access to online distribution and licensing opportunities, putting together a comparable artist development team piecemeal to service an artist’s career is no easy feat. Mr. Baker finds that traditional full-service record label agreements remain essential for many artists, but the needs for other artists have evolved with music technologies. WMG recognized this a number of years ago, which caused the label to create the a la carte artist service company, Alternative Distribution Alliance (ADA). Unlike a full-service record agreement, ADA allows independent record labels and artists to select individual creative services to leverage WMG’s global infrastructure. Mr. Baker suggested that ADA’s a la carte model shows WMG’s commitment to keeping pace with music technology.
Garrett Levin of Digital Media Association (DiMA) then expanded the scope of the conversation from how labels are evolving to digital technology to how artists’ careers can shift to utilize the power of streaming technology. Mr. Levin explained that while record income has dropped dramatically since the late 1990s, streaming revenue and subscriber numbers have been increasing at a promising rate. In addition to the prospect of increased record income, artists receive a multitude of other benefits when they embrace streaming technologies. Specifically, artists have more access to fans and granular consumption behavior data that will change how artists create and operate their business. Mr. Levin went on to suggest that artist-to-fan relations will become closer than ever through this technology’s ability to create custom music programming and connect with fans through their mobile devices.
In contrast to Mr. Levin’s unbridled enthusiasm for digital technologies, Prof. Larry Miller from NYU Steinhardt painted a more cautious picture of streaming. Prof. Miller highlighted that streaming technology’s ability to give consumers access to millions of artists only makes it more difficult to rise above the noise. He insisted that theoretical discoverability in a vast pool of artists is not the same as practical discoverability that will allow artists to create sustainable music careers. Additionally, Prof. Miller suggested that the low royalty rates of streaming have converted music into a consumption business plagued by sales plateaus. These sales plateaus occur because low revenue rates, coupled with the physical consumption limitations of fans, require artists simultaneously to pursue a variety of revenue sources, such as streaming, merchandise, and vinyl. Prof. Miller notes that this is where the expertise, infrastructure, and connections of record labels provide the most value to artists. Finally, he emphasized the importance for music industry participants and students to have a basic understanding of data science to survive in our data-driven music industry.
The following post comes from Bradfield Biggers, a graduate of Boston College Law School and Founder & CEO of Timshel Inc., a music fintech company that provides data-driven cashflow solutions to musical artists in Los Angeles, California. This is the first of three posts (see day two recap and day three recap) summarizing our three-day The Evolving Music Ecosystem conference that was held online from George Mason University Antonin Scalia Law School on September 9-11, 2020.
By Bradfield Biggers
On September 9-11, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.
The past year has seen major changes to the music ecosystem and the laws and policies integral to its viability. For example, while the Music Modernization Act (MMA) provided a much-needed update to the way artists’ creative contributions are recognized and supported in the digital age, debates over royalties, infringement, piracy, and new distribution models remain. Diverse issues surrounding ownership and control of data, music festival arrangements, and the nature of artists’ roles in the gig economy have also made headlines. Despite encouraging steps forward and seemingly unlikely partnerships, arriving at a place of balance in music—where respect for artists and others on the music production side is just as important as facilitating innovative models for listener access—requires more work and cooperation.
This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.
OPENING REMARKS & INTRODUCTIONS
CPIP Director of Copyright Research and Policy Sandra Aistars opened the conference by noting the aptness of coming together (albeit online) for music during a time when the global COVID-19 crisis has shut down much of the world. Prof. Aistars highlighted how music is a tool for eliciting solidarity during difficult times, and our current global pandemic is no exception. Prof. Aistars described how earlier this year, Italians banded together to play with and for each other from the balconies of their homes during the peak of their COVID-19 national lockdown. She found this brought home the importance of nourishing the music ecosystems that, in turn, nourish our communities.
Prof. O’Connor also wanted to emphasize that The Evolving Music Ecosystem would not be your garden-variety music law and policy conference. Where many music conferences fall into the mold of offering panel after panel of esoteric copyright infringement discussions, Prof. O’Connor wanted this conference to take a holistic approach that covered the entire music ecosystem. And while admitting there would be panels covering the copyright infringement landscape, his intention for this conference was to delve deep into pressing issues for working songwriters, performers, musicians, and other music stakeholders. By aligning with the broader music ecosystem, he hoped this conference would empower not just citywide music ecosystems, but also those spanning the national and the globe.
SESSION 1: IMPLEMENTING THE MUSIC MODERNIZATION ACT
The Music Modernization Act (MMA) is a revolutionary legislative bill that was the result of complex negotiations and compromises among songwriters, publishers, record labels, digital service providers (DSPs), and other music industry stakeholders. The MMA, among other things, set the framework for a new composition database and blanket mechanical licensing system, and designated the Mechanical Licensing Collective, Inc. (MLC) to administer it. Although the MMA was enacted in 2018, discussions of how this licensing system will be implemented continue to be prominent in music industry and academic circles alike. With the MLC beginning to administer blanket licenses under this new licensing regime on January 1, 2021, there is no better time to discuss the implementation of this legislation.
The panel included Danielle Aguirre from the National Music Publishers Association, Adam Gorgoni from the Songwriters of North America, Lisa Selden from Spotify, and Regan Smith of the United States Copyright Office. The panel was moderated by Prof. Mark Schultz of the University of Akron School of Law.
Danielle Aguirre set the stage for the panel by offering background information about how the MLC will administer mechanical licenses as a blanket license and how revolutionary this is in light of the old system of individual licensing. Ms. Aguirre explained that while digital service providers (DSPs), such as Spotify and Google, will fund the MLC, it will be the publishers and songwriters that will actually govern the administration of their royalties. She hopes this separation of funding and administration will align the incentives of DSPs and creators, as well as offer trust and transparency for all music stakeholders. Ms. Aguirre believes that the data quality initiatives and software the MLC is developing internally will allow the MLC licensing system to run as smoothly as possible when it launches at the end of this year.
Regan Smith then offered her perspective from the U.S. Copyright Office. Ms. Smith explained that the MMA created criteria for the MLC to operate, but it also went on to grant the Office discretion to regulate issues or schemes that may arise during the MLC’s implementation that were not contemplated by the MMA drafters. Consequently, the Office has been working with all music industry stakeholders to ensure the MLC comes together smoothly. In addition to the regulatory function, Ms. Smith said that the Office focuses on providing educational programs and materials to educate artists and the public about the MLC.
Ms. Smith was followed by songwriter and Songwriters of North America (SONA) founder Adam Gorgoni, who discussed how the previous licensing regime was unsustainable for artists, spoke on the importance of educating artists about music metadata, and provided insight into how SONA represented artists in the MMA negotiations. Reflecting on the MMA negotiations, Mr. Gorgoni recognized that the legislation was not perfect and that tradeoffs were made, but he was confident that the most important points for artists were included. Ultimately, Mr. Gorgoni found one phrase regarding the creation and negotiation of the MLC to be the most applicable: “Don’t make the perfect be the enemy of the good.” This mantra resonated with rest of the panelists.
Lisa Selden then offered her opinion about the negotiations and implementation of the MMA through the perspective of the licensees. In addition to her work at Spotify, Ms. Selden represents Spotify on the board of directors of the Digital Licensee Coordinator (DLC), which is a nonprofit entity that coordinates and represents the interests of DSPs. The DLC board members include representatives from other prominent DSPs, such as Apple, Amazon, Google, and Pandora. Ms. Selden emphasized the importance of the DLC in relation to the MLC, but she also discussed the challenges of creating a single voice from the diverse motivations of each individual digital DSP.
SESSION 2: THE CHANGING NATURE OF SOUND RECORDING RIGHTS
The sound recording category of music copyrights has been more limited in some ways than the composition category. Sound recordings received no federal protection before 1972 and then afterwards that protection did not apply to terrestrial radio broadcasts. The recent Music Modernization Act (MMA) extended a measure of protection to pre-1972 sound recordings, while proposed legislation would allow sound recording owners to seek compensation from terrestrial radio stations for public performances of their works similar to the system for digital webcasters and streaming. The panel, moderated by Prof. Steven Jamar of Howard University School of Law, discussed the current state of sound recordings, their curious history under U.S. law, and their future in the digital streaming age.
Producer Mikael “Count” Eldridge of Vertebrae Productions opened the panel with a sobering call for an artist-first focus to music industry discourse. He explained how the media and music industry often marginalizes the financial struggles of individual creators when it focuses purely on the macroeconomics of the touring and recording businesses. He believes this flaunting of aggregate music statistics—driven by the top 1% of artists—misleads the public as to the status of artists’ livelihoods and that this in turn perpetuates the myth that the artists on streaming services could earn a living by simply selling t-shirts and touring. Mr. Eldridge stressed that if we cannot increase streaming subscription fees to increase royalty rates for artists, we will lose the music and voices of thousands of independent artists who provide invaluable political and cultural contributions. He concluded by highlighting that many of these issues for independent artists are tackled in his forthcoming documentary Unsound, for which he is currently curating a lecture circuit tour.
Agreeing with Mr. Eldridge’s push for artist-first discourse, SoundExchange’s Brieanne Jackson gave a brief history of how her organization is empowering the lives of artists with its collection and distribution of digital performance royalties. Ms. Jackson then emphasized how SoundExchange not only fuels the lives of modern artists but was also instrumental in getting legacy artists compensation for their pre-1972 sound recordings. Before the MMA was enacted in 2018, artists prior to 1972 received no federal copyright protection or statutory compensation for their sound recordings. However, due in part to SoundExchange’s advocacy, pre-1972 sound recordings now receive protections under the MMA. Today, SoundExchange continues to push for artist sound recording rights in the U.S. by advocating for the Ask Musicians for Music Act (AM-FM Act), which was introduced to the U.S. House of Representatives in late 2019. Ms. Jackson explained that the AM-FM Act would finally provide sound recording rights owners with compensation when their music is played over terrestrial radio.
Attorney Eric Schwartz of Mitchell Silberberg & Knupp carried forward Ms. Jackson’s conversation of pre-1972 sound recordings by diving into how Congress came to include federal protections in the MMA for pre-1972 recordings, as well as its implications for artists. Mr. Schwartz explained that before the MMA, pre-1972 sound recordings were only protected by state and common law instead of federal law. This meant that while pre-1972 sound recordings did not generate digital performance royalties from streaming companies, rights owners had hoped they could use their state rights to pursue more effective infringement actions for online piracy directly, rather than through the broken notice-and-takedown and safe harbors regime of the Digital Millennium Copyright Act (DMCA). However, once the Second Circuit held that the DMCA safe harbors applied to pre-1972 recordings, artists and policymakers began to pursue a digital performance right for rightsholders, which manifested in the MMA.
Mr. Schwartz next highlighted that recent legislation in Canada, as a result of the United States-Mexico-Canada Agreement (USMCA), and a judgment by the European Court of Justice will provide U.S.-based artists the same rights (e.g., national treatment) that Canadians and EU citizens enjoy in their own territories resulting in significant new payments to American producers and performers from these territories. Lastly, he mentioned that the U.S. Copyright Office has proposed a new rule to allow certain artists to register entire albums of up to twenty songs at once, which will greatly cut down the expense and headache of registering copyrights for multiple works.
The final panelist was Todd Dupler of the Recording Academy, who discussed the implications of the MMA’s new “willing-buyer-willing-seller” standard for rate court proceedings and the introduction of the AM-FM Act. Mr. Dupler explained that before the MMA, the standard used to set the statutory royalty prohibited judges from considering what a licensee might pay for a license in the open market. As a result, this standard prevented artists from receiving just compensation for their work. However, with the MMA’s new standard, judges can consider how the fast-paced technology market values music and what a potential licensee may be willing to pay for using music. Mr. Dupler concluded with highlighting the Recording Academy’s advocacy of the pending AM-FM Act, which would provide artists with an additional source of revenue by creating a performance right in sound recordings for terrestrial broadcasts. Importantly, this sound recording performance right would require the radio industry to finally compensate recording artists for their music. However, Mr. Dupler stressed that if artists are going to pass this transformative legislation, they and the public need to “speak out and speak up.”
On February 16, 2017, CPIP hosted a panel discussion, America as a Place of Innovation: Great Inventors and the Patent System, at the Smithsonian National Museum of American History in Washington, D.C. The event was co-hosted by the Lemelson Center for the Study of Invention and Innovation at the Smithsonian Institution and the U.S. Patent and Trademark Office (USPTO). The video of the event is available here, and the event program is available here.
The panel featured three professors who have written extensively on the role of innovation and patenting in American history. Professor Ernest Freeberg, University of Tennessee, discussed Thomas Edison’s invention of electric light and its effects on American life and culture. Professor Christopher Beauchamp, Brooklyn Law School, discussed Alexander Graham Bell and his fight to secure patent rights in the telephone. Professor Adam Mossoff, Antonin Scalia Law School, George Mason University, discussed the centrality of patents to early American innovations by Charles Goodyear, Samuel Morse, and Joseph Singer. Arthur Daemmrich, Director of the Lemelson Center, moderated the discussion. Alan Marco, Chief Economist at the USPTO, delivered the closing remarks.
The theme of the panel was twofold. First, the late-nineteenth to early-twentieth era was marked by extraordinary innovation and progress. Second, patent rights both spurred and supported American innovation at every critical juncture: from invention and discovery to commercialization, and then to the delivery of life-changing products and services to the American people.
The panel highlighted a broad and rapidly-paced array of contributions that innovators made throughout the late-nineteenth and early-twentieth centuries, enriching and transforming American lives in the process. Several panelists emphasized the enthusiasm that Americans evinced for the inventions of their day. Electric lights, telephones, labor-saving devices, and gadgets were all welcomed by the scientific press and the populace as exciting hallmarks of progress. As Professor Freeberg emphasized, everyone agreed at the turn-of-the-century that American innovation was a deeply democratic act.
Central to the growth of innovative progress was the consolidated strength and support of the American patent system. Professor Beauchamp emphasized the multiple roles that patents play in a strong innovative economy. First, they secure rights that motivate inventors to create and commercialize their work. Second, they are an asset around which companies are organized and in which investors are eager to invest. Third, they are a business tool that enables transactions, contracts, licensing, and the exchange of rights to occur. And fourth, they are a means for disseminating and furthering public knowledge.
Patents were the bedrock of American innovation, but they were frequently also controversial. Professor Mossoff observed that today’s “patent wars” are nothing new, but instead are part of a lineage of disputes over ownership of new inventions, technologies, and commercial products. Historically, however, there is a much more important constant than litigiousness: the unique approach that America took toward patents.
As Professor Mossoff underscored, the commitment to patents is an integral and enduring part of American exceptionalism. Patents were created and protected as property rights of the innovators who created them. This has many important dimensions. Patents were from the start protected through the rule of law. They were granted to inventors not just as an abstract concept, but as a concrete grant of secure and effective rights. And they were a way for people to structure their lives.
Professor Mossoff observed that patents as property ensured that patent owners could use and deploy their inventions however they wanted. Ownership and control over patents were features of the system from its inception. This institutionalization of the patent system was central to the democratization of American innovation. It allowed Americans to invent, commercialize, and in a larger sense to innovate: to take technology and turn it into a commercial, viable product that consumers could actually use and benefit from in the marketplace.
The conversation among the panelists was centered on innovation and its longstanding role in generating disruptive innovation that changes lives as dramatically then as it does now. But an equally powerful theme was that innovation needs patents to make progress commercially viable and to bring products and services to people. It was, and has always been, the exceptional nature of the American patent system that has indeed enabled America to be the place of innovation.
Tomorrow is the last chance to register for the Copyright and Technology NYC 2016 Conference. The conference will be held next Tuesday, January 19th, at New York University’s Kimmel Center.
In addition to Matthew Barblan and Devlin Hartline from CPIP, participants will come from the following organizations:
On October 12th and 13th, the Center for Intellectual Property x Innovation Policy (C-IP2) hosted its 
At the recent 
By Terence Yen
By Bradfield Biggers
On February 16, 2017, CPIP hosted a panel discussion,