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CPIP Roundup

CPIP Roundup – September 30, 2020

 

Greetings from CPIP Executive Director Sean O’ConnorSean O'Connor

As we move through our busy fall season here at CPIP, we are grateful for the efforts of everyone in the George Mason University community keeping us safe and healthy. We are fortunate that in these highly uncertain times, we are still able to focus on what we do best: bringing you the research, impact policy pieces, and programming that you have come to expect.

In the copyright sphere, we were gratified by the success of our postponed—and ultimately virtual—conference, The Evolving Music Ecosystem. Highlighted by an informative and moving fireside chat between singer, songwriter, and author Rosanne Cash and CPIP’s Sandra Aistars, the conference also featured seven panels of academics, industry specialists, and artists who provided invaluable insight into copyright law and the music business, especially in light of 2020’s challenges to the industry. Thank you to all who participated and attended! Videos of the keynote address and panel presentations can be watched here.

CPIP also congratulates Shira Perlmutter on her appointment to Register of Copyrights and Director of the U.S. Copyright Office by Librarian of Congress Carla Hayden. We very much look forward to Ms. Perlmutter’s continued positive impact on the copyright community in her new role.

In the patent sphere, CPIP Senior Fellow for Innovation Policy Jonathan Barnett led our roundtable, Measuring the Value of Patent Licensing. Leading legal scholars, economists, and industry representatives focused on the data collection and methodological approaches to quantifying the full economic benefits of commercializing new innovation through patent licensing models.

Congratulations to CPIP Senior Scholar Erika Lietzan on becoming the William H. Pittman Professor of Law & Timothy J. Heinsz Professor of Law at University of Missouri School of Law and for being named a “Best Lawyer in America” for 2020! We are proud of the many accomplishments of our Scholars!

In the coming month, we are excited to host our Eighth Annual Fall Conference on October 7-8. We are partnering with the National Security Institute (NSI) at Scalia Law School to focus on 5G at the Nexus of IP, Antitrust, and Technology Leadership. We hope you’ll be able to join us! You can see the conference program, confirmed speakers, and register for the virtual event here.

Last, but certainly not least, we are proud of the academic and policy publications of our Scholars, Fellows, and other affiliates. Keep reading to learn about work by Sandra Aistars, Jonathan Barnett, Stuart N. Brotman, Ross E. Davies, H. Tomás Gómez-Arostegui, Devlin Hartline, Chris Holman, Erika Lietzan, and Kristen Osenga.

CPIP Eighth Annual Fall Conference with USPTO Director Andrei Iancu on October 7-8

2021 5G Conference image

CPIP’s Eighth Annual Fall Conference will be hosted virtually from George Mason University Antonin Scalia Law School in Arlington, Virginia, on October 7-8, 2020. The theme this year is 5G at the Nexus of IP, Antitrust, and Technology Leadership. The conference is being co-hosted by the National Security Institute (NSI), and it features a keynote address by USPTO Director Andrei Iancu.

This conference addresses fast-emerging intellectual property (IP), antitrust, and technology leadership issues in the 5G and “Internet of Things” innovation ecosystem. Coverage includes standard-essential patents (SEPs) along with established and emerging markets on a regional and global basis. Speakers are 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.

Registration closes on Monday, October 5, 2020, at Noon ET, so please register soon! We have 4 hours of Virginia CLE credit pending!

To visit our conference website and to register, please click here.

CPIP Hosts Academic Roundtable on Patent Licensing Valuation

hand under lightbulbs drawn on a blackboard

On September 17, 2020, CPIP hosted an academic roundtable entitled Measuring the Value of Patent Licensing online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The roundtable, which was moderated by CPIP Senior Fellow for Innovation Policy Jonathan Barnett, included leading scholars, economists, and industry representatives.

The sessions focused on the existing methodologies developed to measure IP transactions, the insights achieved so far using those methodologies, and the possibilities for developing more precise methodologies to measure licensing and related transactional activities in the IP marketplace. They also examined the mechanics of IP licensing and transactional markets, how IP transactions generate social value, and the extent to which existing IP legal regimes may impede IP markets.

The Evolving Music Ecosystem Conference with Rosanne Cash

Rosanne Cash

On September 9-11, 2020, 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, and coverage included news articles at Billboard and Mason News. CPIP Senior Scholars Sandra Aistars, Sean O’Connor, and Mark Schultz also participated in the event. We’ve posted a synopsis of each day of the conference here, here, and here.

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.

To visit our conference website and to watch the videos, please click here.

Spotlight on Scholarship

a pair of glasses, an apple, and a stack of books

Tomás Gómez-Arostegui & Sean Bottomley, The Traditional Burdens for Final Injunctions in Patent Cases C.1789 and Some Modern Implications, 71 Case W. Res. L. Rev. ___ (forthcoming 2020)

CPIP Edison Fellow Tomás Gómez-Arostegui of Lewis & Clark Law School and co-author Sean Bottomley have published a draft of their law review article that will be published in the Case Western Reserve Law Review. The article takes an historical look at the first two permanent injunction factors from eBay v. MercExchange, namely, irreparable injury and inadequate legal remedies. The article concludes that equitable principles dictate that the Federal Circuit should recognize that: “(1) an injury it seeks to redress with a final injunction is future infringement itself, not just follow-on harms caused by future infringement; (2) it can presume future infringement from past infringement; (3) it can presume that legal remedies are inadequate to remedy future infringement; and (4) it need not require a plaintiff to show that alternative equitable remedies, like ongoing royalties, would inadequately redress future infringement.”

To read the article, please click here.

Stuart N. Brotman, Intersecting Points in Parallel Lines: Toward Better Harmonization of Copyright Law and Communications Law Through Statutory and Institutional Balance, 26 Rich. J.L. & Tech., no. 3, 1 (2020)

The Richmond Journal of Law and Technology (JOLT) has just published a new article by Professor Stuart Brotman, the inaugural Howard Distinguished Endowed Professor of Media Management and Law and Beaman Professor of Journalism and Electronic Media at the University of Tennessee, Knoxville. The article was supported by a Leonardo da Vinci Fellowship Research Grant from CPIP and the research assistance of recent Scalia Law graduate Samantha Levin. The article traverses the history and development of copyright and communications law, which have historically followed separate paths, and offers potential ways that they can be harmonized to match the current realities of the media marketplace.

To read the article, please click here.

Activities, News, & Events

a lit lightbulb hanging next to unlit bulbs

CPIP Director of Copyright Research and Policy Sandra Aistars has written an article at Law360 (also available on the CPIP blog) about Justice Ginsburg’s copyright legacy, especially as it will affect the impending Google v. Oracle decision. Prof. Aistars has also published her latest Copyright Notebook series post, The Importance of Artists’ Agency, on the CPIP blog. Additionally, the Arts & Entertainment Law Clinic—directed by Prof. Aistars—has continued its academic partnership with the U.S. Copyright Office for the fifth year. This semester, they are supporting the Office’s public meetings to investigate standard technical measures (STMs) that could be adopted to aid and identify copyrighted works and to potentially reduce infringement on digital platforms as envisioned in Section 512(i) of the DMCA. Prof. Aistars and the Clinic students will also co-host an online copyright clinic with WALA and the Copyright Alliance that will feature a live performance by the Rock Creek Kings.

CPIP has published a new policy brief by Professor Ross E. Davies entitled Ebb and Flow in Safe Harbors: Some Exemplary Experiences Under One Old Statute and One New. Prof. Davies teaches administrative law, civil procedure, comparative criminal law, contracts, employment discrimination, legal history, legal profession, and torts at George Mason University Antonin Scalia Law School in Arlington, Virginia, and the policy brief is the product of our two Safe Harbors and Private Ordering in the Creative Industries research symposia that were held in 2019. In the policy brief, Prof. Davies compares and contrasts two seemingly unrelated statutory provisions that are often referred to as “safe harbors”—despite that term not appearing in either statute: the National Labor Relations Act (NLRA) as codified in Title 29, and the Online Copyright Infringement Liability Limitation Act (OCILLA)—otherwise known as Title II of the Digital Millennium Copyright Act (DMCA)—as codified in Title 17.

CPIP Scholars have participated in several speaking engagements this past month. CPIP Senior Fellow of Innovation Policy Jonathan Barnett spoke at the Innovation Alliance’s Recognizing the Growing Economic Impact of Patent Licensing webinar. CPIP Senior Fellow for Life Sciences Chris Holman participated in the Regnier Institute for Entrepreneurship and Innovation Kansas City Region’s Bio-Medical and Healthcare Technology Entrepreneurship Certificate Program. CPIP Senior Scholar Erika Lietzan spoke at IPWatchdog’s The Race for a Coronavirus Vaccine: The Intersection of Science and IP Policy webinar. CPIP Senior Scholar Kristen Osenga presented a draft paper at the Gray Center’s Public Health: Regulation, Innovation, and Preparation research roundtable. And CPIP Director of Communications Devlin Hartline participated in the Music Biz Entertainment & Technology Law Conference.

CPIP Scholars have also written op-eds defending the importance of robust patent protection, particularly for biopharmaceutical inventions in light of the COVID-19 pandemic. At the Huntsville Item, CPIP Senior Fellow for Life Sciences Chris Holman argues that the seizure of patents will only hamper the development of a vaccine to combat the coronavirus: “Eliminating intellectual property protections would not only reduce incentives to develop coronavirus treatments as quickly as possible; they will also destroy the domestic industrial base that could be the key to stopping the next pandemic.” Likewise, CPIP Senior Scholar Kristen Osenga argues at the Nashua Telegraph that taxpayers are getting a great deal with biomedical research: “When new treatments are successful, drug companies make money because we, through insurance, buy those drugs to keep us, or make us, healthy. The government then taxes those profits and invests some of that tax money into new research. Far from ‘paying twice,’ we are getting a great bargain from government spending on basic research.”

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Copyright

RBG’s Legacy Can Guide High Court In Oracle Copyright Case

This post first appeared on Law360.

U.S. Supreme Court buildingAs America mourns the passing of one of its great civil rights icons and judicial pathmakers — Justice Ruth Bader Ginsburg — stakeholders and other observers must not only contemplate what her absence means for the upcoming election but also next month’s start of oral arguments at the U.S. Supreme Court.

Among other cases on the docket, the Supreme Court will hear oral arguments in the watershed copyright case Google LLC v. Oracle America Inc. on Oct. 7.

Justice Ginsburg’s Legacy

Justice Ginsburg inspired documentaries and Oscar-nominated, full-length feature films and made cameo appearances in three operas: twice with Justice Antonin Scalia in Richard Strauss’ “Ariadne auf Naxos” and also in Johann Strauss’ “Die Fledermaus,” where she, Justice Anthony Kennedy and Justice Stephen Breyer entered Prince Orlofsky’s ball in the second act of Fledermaus billed as “the Supremes.”

The justice had a deep appreciation for the arts that went beyond her love of opera. Two Mark Rothkos, a Josef Albers and a Max Weber — some on loan from the National Gallery of Art — hung in her chambers, and she took a literature class at Cornell University under Vladimir Nabokov, which she sometimes referred to in interviews and lectures, noting that law should also be a literary profession.

Given her love for the arts, it’s not surprising, then, that Justice Ginsburg was a knowledgeable justice in copyright matters. The justice authored numerous important opinions affecting creators’ rights and was highly respected for her ability to offer clear, concise judgments that were understandable even to ordinary readers.

Some of her most notable opinions in copyright law include: New York Times Co. v. Tasini — upholding protections for freelance authors in the digital age; Eldred v. Ashcroft — upholding Congress’ extension of the duration of copyright for existing and future works as consistent with both the copyright clause and the First Amendment; and Petrella v. Metro-Goldwyn-Mayer Inc. — articulating that the equitable defense of laches cannot be used to bar a claim of copyright infringement brought within the three-year statute of limitations window.

By the end of her career, she had earned the respect of arts and technology lawyers alike. For instance, in 2015 Justice Ginsburg was inducted into the Chiefs in Intellectual Property Hall of Fame for her commitment to the advancement of women in IP and technology careers. ChIPs was started by seven female chief counsels of patents and intellectual property at Silicon Valley companies to promote women in the high-tech industry.

Google v. Oracle: The First IP Case to Be Heard Without Justice Ginsburg

Now, with a momentous, tech-centered copyright case again making its way to the court, there’s a sad irony that one of the most thoughtful justices, able to cut to the heart of a matter and make it readily understandable, is no longer with us. But while Justice Ginsburg’s thoughtful scholarship and legal acumen will no doubt be missed by her colleagues in every case they consider, they’ll have her legacy to guide them in Google v. Oracle.

Google v. Oracle is a relatively straightforward case. Google committed an obvious act of copyright infringement for business convenience. Oracle Corp. owned Java, a creative and intricately crafted work of software, widely popular among device manufacturers and application designers.

Google wanted to compete but didn’t want to invest the time and resources needed to develop its own platform, nor did it wish to take any of the multiple licenses offered by Oracle, which would have required Google to make its platform interoperable with Java. So, Google copied over 11,000 key portions of code, along with the organizational structure and began competing with Oracle — earning billions of dollars in revenue using the code and structure it had copied.[1]

While Google doesn’t dispute that it took the code, it argues that the portions of Java in question are not copyrightable, that fair use justifies its unlicensed usage, and that the Seventh Amendment right to a jury trial prevents an appellate court from overturning a jury’s decision on fair use.[2] All of Google’s arguments are wrong.

Software is copyrightable.

Congress has protected computer code as a literary work under the Copyright Act since 1980, and it has never sought to limit protections applicable to software, despite the many opportunities it has had to do so.

As copyright scholars noted in an amicus brief to the court:

Even [in 1980,] at that relatively early stage in the development of the computer software industry, Congress considered versions of many of the arguments and issues present in this litigation, including whether computer code should be protected as a literary work, the degree to which computer programs can be considered “functional” or necessary “machine-controlled elements” (as opposed to expressive works protectable under the Copyright Act), and the interests of protecting and incentivizing innovation. After careful analysis and debate … Congress legislated that computer programs are protected under the Copyright Act with no qualifications that would differentiate software from any other type of literary work under the statute.

Since 1980, software development has grown exponentially, and its application continues to expand into new industries. Congress has amended the Copyright Act to address issues raised by technological advances in particular industries — by enacting, for example, the Computer Software Rental Amendments Act in 1990, the Digital Millennium Copyright Act in 1998, and the Music Modernization Act in 2018. Congress has not, however, amended the Copyright Act to decrease the scope of protection for computer programs. Because the statutory protections for computer software remain the same as for all other creative works, adopting Google’s position would amount to a judicially created software-specific amendment. It would also result in singling-out the protections afforded to computer programs, which contradicts the plain text of the Copyright Act.[3]

Google’s copying of Java doesn’t qualify as fair use.

Google’s arguments that its theft of Oracle’s code should be excused as fair use — a defense to copyright infringement intended to excuse limited uses of works, especially for noncommercial purposes, where the use does not compete with the original work — also fall flat.

There is no business convenience exception under the fair use doctrine. As the copyright scholars’ amicus brief noted:

Google and its amici try to characterize [their infringement] as “efficient infringement,” or “permission-less innovation.” Yet its conduct is entirely contrary to the goals of copyright law as expressed in the Copyright Act or the Constitution.[4]

In her 2018 opinion for the U.S. Court of Appeals for the Federal Circuit, in favor of Oracle, U.S. Circuit Judge Kathleen O’Malley said as much, writing, “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”[5]

While there is an essential role for fair use in copyright law, Congress and the courts have set reasonable parameters, which do not include business convenience or efficient infringement.

The Supreme Court can rule on fair use.

Having failed to convince past judges of the merits of its position, Google has now raised the argument that neither the appellate courts below, nor the high court’s justices can reverse the jury trial’s previous findings on fair use. Google made a last-ditch Seventh Amendment procedural argument challenging the standard of review applied by the courts, which the court will also consider.

That decision is also straightforward: The fair use issue was put before the court because of Oracle’s successful motion for judgment as a matter of law. A party is always entitled to a judgment as a matter of law if no reasonable jury could find for the nonmoving party.[6]

The Federal Circuit correctly found that only one finding is reasonable — that it is not fair use to infringe many thousands of lines of creative and intricately designed literary computer code for business convenience and to use it for the identical purpose in direct competition with Oracle.

Or, as Judge O’Malley put it: “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.” Hence, Oracle was entitled to a judgment as a matter of law regardless of the standard by which fair use is determined.

There are of course other, more nuanced, reasons to find for Oracle on this procedural issue as well. On a motion for judgment as a matter of law, the court determines matters of law de novo and assumes that all matters of fact have been found by the jury consistent with the verdict.

In applying the law to the facts, the court determines de novo any mixed questions of law and fact, especially where it is required to “expound on the law, particularly by amplifying or elaborating on a broad legal standard.”[7] Whether a use is a fair use is exactly the kind of determination that presents a mixed question of law and facts to be determined by a judge de novo.[8]

In making fair use rulings, judges routinely are called upon to balance the interests of property owners and the public, to ensure that the intent of the framers of the constitution are upheld by enforcing both the copyright clause and the First Amendment and to apply each of the four fair use factors in a manner that ensures the body of law develops in a stable fashion that the public can rely on. De novo standard of review for such an examination is thus entirely appropriate.

Conclusion 

While debates over who will replace Justice Ginsburg are focused on the political makeup of the court, for this case, as well as for many other IP-related matters, decisions are rarely influenced by a justice’s political leanings. The court of course aspires to politically unbiased justice in all matters, but copyright law in particular has always been an area where decisions are rendered without a view to whether one’s politics are progressive or conservative.

Nevertheless, the stakes in Google v. Oracle are high, and a strong opinion from the court is needed to ensure a company cannot blithely assert business convenience when it wishes to appropriate the creative work of another.

Although unlikely, it would be alarming if the court should be split 4-4 in its decision, but were that the case, the Federal Circuit’s ruling in favor of Oracle would stand, and the Supreme Court would not issue an opinion. Such a result, while technically correct, would be anticlimactic for copyright scholars and a missed opportunity for the court to once and for all time do away with the outlandish notion of efficient infringement.

[1] Brief of Respondent Oracle America Inc., Google v. Oracle, https://www.supremecourt.gov/DocketPDF/18/18-956/93436/20190327160337558_190311%20for%20E-Filing.pdf.

[2] Brief of Petitioner Google LLC, https://www.supremecourt.gov/DocketPDF/18/18-956/127663/20200106172508533_18-956%20ts.pdf.

[3] Brief of Amici Curiae Nine Professors and Scholars of Intellectual Property Law In Support of Respondent, Google v. Oracle, https://www.supremecourt.gov/DocketPDF/18/18-956/133538/20200219155838307_18-956%20bsac%20Nine%20Professors%20and%20Scholars%20on%20Intellectual%20Property%20Law.pdf.

[4] Id.

[5] United Sates Court of Appeals, Google v. Oracle (2017), http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1118.Opinion.3-26-2018.1.PDF.

[6] Federal Rules of Civil Procedure Rule 50 https://www.federalrulesofcivilprocedure.org/frcp/title-vi-trials/rule-50-judgment-as-a-matter-of-law-in-a-jury-trial-related-motion-for-a-new-trial-conditional-ruling/.

[7] U.S. Bank National Ass’n v. Village of Lakeridge LLC , 138 S Ct 960, 967-68 (2018).

[8] See Harper & Row Publishers Inc v Nation Enters , 471 U.S. 539, 560 (1985) ([w]here the district court has found facts sufficient to evaluate each of the statutory factors, an appellate court ‘need not remand for further factfinding but may conclude as a matter of law that the challenged use does not qualify as a fair use of the copyrighted work.).