Now, two months after the introduction of CAS, how has public access to the Internet already been affected? Where did this scheme come from – and where is it going?

CAS: An Origin Story

Large entertainment corporations have long complained about practical difficulties of enforcing copyright infringement. It is of course possible to either directly sue the actual entity violating copyright in court or to approach the intermediary service provider via the legal Notice and Takedown procedures of the Digital Millennium Copyright Act (DMCA). The infrastructure of the world-wide web – virtual environments based on code, not concrete — has enabled the quick, easy, and legal spread of digital media. But the web’s dynamic set-up also allows participants to spread such media further in often illegal ways: through file-hosting and file-sharing systems that are not actively inducing copyright infringement and thus largely immune under the Supreme Court’s seminal 2005 rule in Grokster. So call it a hydra or a game of “whack-a-mole”; forcing one infringer to cease his actions or disabling one site often sees the next one spring up to serve a – real or perceived – demand. In light of the narrow scope of precedent and the continued use of P2P in particular for disseminating content, rightholders began to focus on the consumers.

Private Action – Condoned and Coaxed

The 2011 memorandum of understanding (MOU) between representatives of the MPAA, RIAA, other content-owning corporations, and primary ISPs Verizon, AT&T, Time Warner, Cablevision, and Comcast set out to create CCI as a private regulatory body to enforce copyright against end users. The Obama Administration has backed CAS, adding to the considerable controversy. Among others, the EFF has sharply criticized CAS’ intransparent set-up and its one-sided “appeals” process called “Independent Review.” Focusing on the six strikes as such, Gizmodo explained the plan:

“When you’re caught downloading illegal materials from peer-to-peer networks the first time, you receive an email letting you know that you’re doing something illegal, and educating you on the laws of copyright. The second offense may be another email requiring you to acknowledge receipt, or an educational call from your ISP. From there, the ramifications step up. The second level of warnings (third and fourth emails) require you to watch a video before getting online (or a redirect from certain web sites to an education video). The final tier of warnings are for the fifth and sixth infraction. They range from throttling your bandwidth to redirection to a new landing page. Each ISP has a different policy with how they’ll tackle each offense.”

 

“Different” may be one way to describe policy and implementation.

While content creators hoped to stop infringements via CAS, other players feared monitoring and the privacy issues inherent in the system. Additionally, the system has been criticized for its constitutional shortcomings: by allowing law enforcement purely through private parties, the Due Process Clause is not so much violated as circumvented from the get-go. CAS has been considered one element of “a new wave of censorship”, not state action yet sanctioned by it due to informal pressure.

Hits and What’s Missing

In the time that has followed the activation of the program, few private parties came forward to tell of CAS enforcement. Even given the declared targeting of individuals alone, this seems at first glance a curious turn in the age of viral information and in an arena surrounded by highly interactive spectators. The usual suspects from A to Z, from Ars Technica to professor Jonathan Zittrain, could and would have gladly received intelligence from private recipients of Alert notifications. Instead, widely published screenshots of Comcast Alerts (four only, interestingly enough) were procured by asking the provider for them. Purposeful pirates seem to have failed to actually garner a response from the system after torrenting TV, movie, and music files, as per a study conducted and then reported upon by the Daily Dot at the end of April:

“[U]sers attempted to get caught [by MarkMonitor software as the CAS’ instrument] using the peer-to-peer filesharing program BitTorrent in a common, but illegal way. That means downloading torrents of popular movies, shows, and albums, and uploading them, piece by piece, for other users.

But damn if that thing isn’t hard to trigger.”

 

The Daily Dot is shy with details beyond the basics here. It gives the time-frame – three weeks immediately following CAS’ late February’s start – and the methods as well as targets (Game of Thrones, The Avengers, and Rihanna songs via Verizon as an ISP) but does not disclose who or how many test subjects were involved so that the representative nature of this trial remains unclear, admittedly so:

“The results of this study do not prove, by any means, that the CAS isn’t working. It just didn’t work in this instance, in a limited test of just one of the five participating ISPs.”

 

The early nature of the test run, which cannot have lasted longer than the third week of March by this account, adds to its inconclusiveness. It is possible that alerts are sent out in batches, that is, staggered and significantly delayed. The current lack of large numbers of complaints does not preclude CAS action. As commentators have noted and the Daily Dot repeated more recently, “users who have been flagged once or twice might not even know it; they might only be informed through their rarely-used Internet service provider email account, for instance.” Relatedly, the effects on Open Wireless that the EFF warned about may already be starting, only in an incremental fashion due to the several steps – not strikes – involved in alerts that target small businesses. The CCI’s private nature makes it impossible to petition it for actual statistics, which the consortium will have gathered from Day One.

Troll Tactics and the Bridges they may Build

Even beyond statistics, personally identifiable information (PII) is at stake, and its collection on part of the ISPs has already allowed for significant privacy problems. According to Torrentfreak with regard to CAS, copyright trolls are already seeking PII and related data in civil actions:

“The program specifically leaves the door open for the MPAA and RIAA to request a list of serial pirates for legal action. While this may never happen, new court documents reveal that copyright alerts data is already at stake in a lawsuit brought against an alleged BitTorrent user in Texas. The case, started by adult movie studio Malibu Media last year, is that of a typical copyright troll. It deals with copyright infringements via BitTorrent and after settlement attempts failed, Malibu is now gearing up to take one John Doe defendant to trial. To do so, Malibu has demanded more information on the accused subscriber from ISP Verizon.”

 

Verizon in this case refused to respond to the successfully court-obtained subpoena in order to protect its customers from “shakedown tactics”, but Malibu Media has motioned the court to enforce said subpoena, as Techdirt’s records reveal. Should the court decide to make key information – to prove a pattern of infringing behavior through the Alerts, for example – discoverable in a copyright infringement action, things could change very quickly. As the more recent Daily Dot post above mentioned, structures supposedly private and minimally intrusive would cease to be a parallel, extrajudicial system.

The CCI has claimed to merely want to “help consumers”; it has touted CAS to be blind on one eye, in that rightholders cannot receive an ISP subscriber’s information directly. If indirect yet immediate obtainment in court were possible, it would not just be eye-opening – CAS could open the floodgates for copyright infringement litigation against individuals.

USPTO Hosts Silicon Valley Round Table

Patent trolls, otherwise known as non-practicing entities (“NPEs”) or patent-assertion entities (“PAEs”), are often vilified in legal scholarship and, lately, in the mainstream media as well. Without the USPTO granting slews of software patents, however, there would be fewer patents for these non-practicing entities to assert. Some of the current hand wringing over the epic rise in patent litigation of late focuses, as a result, on the USPTO. Accordingly, many were delighted when, last November, the USPTO announced its new director for the soon-to-open Silicon Valley satellite office. Michelle Lee, formerly a lawyer at Google, had scribed publically about the need for patent reform and specifically called out trolls. Consequently, her hire prompted much rejoicing.

Following this heralded move, the USPTO announced a “software partnership” roundtable session in Silicon Valley—ground zero for software innovation. At the meeting, held on February 12, stakeholders shared thoughts on software patents. The audio, for those inclined, is available here, here, and here. Colleen Chien, author of many groundbreaking studies on PAEs, explored the possibility of utilizing heightened application of 35 U.S.C. § 112(f) to construe patents as functional. Professor Chien analyzed several arguably functional patents including U.S. 5,930,474, which GeoTag asserted against 435 defendants in 115 lawsuits. The scope of patents like GeoTag’s would likely be “limited to the technology the patentee actually designed and equivalents known at the time the patent issued” in litigation should 112(f) be so constrained. According to proponents, such a limitation could profoundly affect many patents currently asserted in troll litigation.  Horacio Gutierrez, Corporate Vice President and Deputy General Counsel at Microsoft, also presented some thoughts about potentially limiting § 112(f). He noted that more rigorous enforcement of § 112(f) is “one part of the solution.” However, according to Mr. Gutierrez, this solution would not address issues such as inadequate notice and excessive breadth.

The USPTO’s roundtable showcased presentations from other members of the software community as well, all of which may be found on the USPTO website. After a second roundtable at New York University, the USPTO issued a request for public input on software-related patent topics. The comment period closed just recently, on April 15, 2013, and over 50 comments are posted online discussing various aspects of software patent reform. It remains to be seen what action the USPTO takes in response to these roundtables and the public’s feedback. In November, USPTO Director David Kappos argued that the USPTO “ha[d] done, and [was] doing a lot” already “to address the challenges posed by problematic software patents.” Kappos’ entreaty that software patent system critics “give the AIA a chance to work” and “give it a rest already” may provide a clue as to the likely result of the USPTO’s recent Silicon Valley patent roundtable. Time will tell.

Congress and Obama Weigh In

First introduced in Congress last August, the Saving High-Tech Innovators from Egregious Legal Disputes (“SHIELD”) Act returned to the docket in late February. The act, introduced by Representatives Peter DeFazio (D-Oregon) and Jason Chaffetz (R-Utah), originally focused only on software patents. In its new iteration, however, the bill applies equally to all forms of patents. The SHIELD Act’s primary provision would require NPEs pay opponents’ legal fees depending on the litigation outcome. Multiple organizations, including the Consumer Electronics Association, National Retail Federation, National Association of Manufacturers, and companies including Microsoft, Google, Adobe, Cisco Systems, Intel, Oracle, and Verizon, have put their weight behind the bill.

While it remains to be seen whether this powerful coalition can overcome Congress’s “patent fatigue” after contentious debates over the AIA, a recent weigh in from President Obama himself might provide some much needed political capital. In his Google+ Hangout, held after the State of the Union speech, the President responded to a question about what the government could do to promote innovation and respond to patent trolls. Obama took the bait and set his sights directly on NPEs, saying that “they don’t actually produce anything” and noting that they are a “classic example” of a block on innovation. The President even went so far as to describe NPE conduct as “extort[ion]” and “hijack[ing].” Perhaps referring to the USPTO roundtable efforts, President Obama indicated that the government “need[s] to pull together additional stakeholders” and “build . . . consensus on smarter patent laws.”

On the heels of both President Obama’s Google+ Hangout and the SHIELD Act’s reintroduction, the Judiciary Committee held a hearing on “Abusive Patent Litigation: The Impact on American Innovation & Jobs, and Potential Solutions.” Bob Goodlatte, Judiciary Committee Chairman, lauded the AIA as the “most significant reform to the patent system in [a] lifetime.” Despite its positive effect, however, the AIA left the PAE issue “on the cutting room floor.” Goodlatte promised to pick the issue up off the floor and “continue to take . . . steps” curtailing abusive patent litigation. Representatives from the usual technology company suspects, Adobe and Cisco, testified alongside newcomers to the topic from traditional retail giants J.C. Penney and Johnson & Johnson. Janet Dhillon, General Counsel for J.C. Penney, testified that PAE litigation is spilling over beyond the software and technology industry. J.C. Penney, which had no patent cases four years prior, has defended or settled over two-dozen patent infringement lawsuits in the last several years. The other witness transcripts, echoing Dhillon’s concern, can be found on the judiciary’s site.  

Government interest in stemming the tide of patent trolls, like daily temperatures and sea levels, is rising. Since last winter’s patent troll round up, the USPTO has reached out to key stakeholders in its search to fashion solutions. President Obama, in January, put his hefty political weight behind the proposition that non-practicing entities are a drag on the nation’s economic recovery. With the judiciary committee hearing complaints from more than just technology companies, perhaps Congress will jump back on the patent reform bandwagon as well. Look out for more action, or at least posturing, on this issue moving forward into summer.

Bitcoin Genesis

Bitcoin’s origins are shrouded in mystery. Four years and twenty-five weeks ago, an entity named Satoshi Nakamoto posted a paper abstract to the Cryptogarphy Mailing List. Bitcoin: A Peer-to-Peer Electronic Cash System conceived of a currency that could be “sent directly from one party to another without going through a financial institution.” Instead of using a trusted third party to facilitate electronic transactions, Satoshi’s payment system would be based on the power of cryptography. Fraud would simply become “computationally impractical.” Through a process known as “mining,” anybody with a CPU powerful enough could generate, or discover, new bitcoins. Unlike centralized currencies where a central bank controlled the monetary base, bitcoin’s decentralized system algorithmically defined the number of bitcoins generated per block such that more than 21 million bitcoins would ever exist. On January 3rd, 2009 at 18:15 UTC, Satoshi Nakamoto—transforming his theoretical system into reality—created the first (genesis) block of bitcoins.

By spring 2012, bitcoin emerged onto the scene. The novel cryptographic currency system made a few rounds of blogosphere hype and spawned a variety of related services. Observers decried it as a failed experiment or, alternatively, a triumph of the web’s democratizing promise. In 2010, multiple bitcoin exchanges opened shop. User “laszlo” purchased the first pizza with 10,000 Bitcoins on May 21. November saw the overall market for Bitcoin surpass one million dollars. The electronic currency’s value reached parity with the U.S. dollar the following year. Next, the first sale of a car for bitcoins. Growth, however, brought attention from hackers and criminals. Heists and attacks on central bitcoin exchanges, such as Mt. Gox, became routine. Despite sporadic attacks and loss of confidence, however, bitcoin markets stayed open, value reached new highs, and CPUs cycled on to generate new BTCs.

FBI Leaks Assessment         

Criminals weren’t the only ones taking note of bitcoin’s realized potential. With increased popularity and adoption came increased scrutiny from government officials. The FBI spent considerable resources analyzing bitcoin to get a grasp on potential challenges. Its findings were leaked in May 2012, providing a glimpse into the bureau’s perspective on the virtual currency. At the time of the FBI’s analysis, estimated market size of the bitcoin economy was between $35 and $44 million. A few unique aspects of bitcoin concerned the FBI: (1) its popularity with criminals seeking to conduct illicit transfers or launder money, (2) the potential for anonymity, and (3) its decentralized nature precluding easy monitoring and reporting of suspicious activity.

The FBI documented several instances of bitcoins used to make illegal purchases and exploited to aid money laundering schemes. According to intelligence sources, multiple criminal groups—including LulzSec—purchased botnets with bitcoins in 2011. That year, LulzSec received close to twenty thousand dollars in bitcoin donations. On Silk Road, an online market for illegal drugs and other contraband, bitcoin was the only accepted payment form. Intelligence sources indicated various criminal groups had laundered money by using bitcoin combined with virtual in-game currencies. The rue extent of money laundering schemes, however, was difficult to ascertain. Due to bitcoin’s decentralized nature, no central authority existed for law enforcement to monitor suspicious activity, identify users, or obtain transaction records.

Outside of money laundering and illegal purchases, the leaked assessment also reviewed government intelligence on bitcoin theft.  The year 2011 saw multiple high profile bitcoin thefts along with development of the first malware software capable of transferring a user’s bitcoin wallet to a foreign server. The FBI reviewed the June 2011 attempt to sell seven million dollars worth of bitcoins on Mt. Gox—a hack leading to a suspension of trading after BTC value plummeted close to zero. Criminals weren’t just stealing bitcoins, they hacked unsuspecting computers into mining bitcoins as well. The FBI documented multiple ZeuS botnet attacks instructing hundreds of thousands of infected machines mining thousands of dollars worth of bitcoins per day.

In light of these assessments, the FBI predicted bitcoin would continue to draw cyber criminals to “transfer, launder, or steal funds as well as a means of making donations to [hacktivist] groups.” Of particular concern was the ease with which such groups could appropriate bitcoin for illegal conduct in the physical, rather than online, world. The leaked memo showed a focus on human traffickers, terrorists, and other types of agents who seek to skirt around traditional, regulated, financial systems. Despite these concerns, the FBI concluded with “medium confidence” that, over time, law enforcement could discern malicious actors’ identities, especially at the point of bitcoin conversion into traditional currency. Moreover, the FBI placed hope that eventual FinCEN regulations would require third-party services that met the definition for a “money transmitter” register with FinCEN and “implement an anti-money laundering program.”

FinCEN Guidance

While many, including the FBI, speculated about how FinCEN would treat bitcoin exchanges, the mystery ended in March of 2013. Under the Bank Secrecy Act legislative framework (“BSA”), FinCEN is authorized to regulate banks and “other financial institutions.”  FinCEN regulations require that such institutions keep records, file reports, and take other precautions against financial crime, money laundering, and terrorism. FinCEN had, until its March guidance, previously kept quiet about whether or not bitcoin exchanges fell under its purview. Although it did not declare users of virtual currency a money services business (“MSB”), FinCEN did include any virtual currency “administrator” or “exchanger” in the long list of MSBs subject to BSA regulation.

FinCEN’s guidance defines virtual currency users as “person[s] that obtain[] virtual currency to purchase goods or services.” Exchangers, under the regulatory guidance, are “person[s] engaged as . . . business[es] in the exchange of virtual currency for real currency, funds, or other virtual currency. Administrators are “person[s] engaged as . . . business[es] in issuing . . . a virtual currency, and who [have] the authority to redeem . . . such virtual currency.” Since users’ activities do not constitute “money transmission services,” FinCEN does not consider them subject to its “registration, reporting, and recordkeeping regulations.” Administrators and exchangers, on the other hand, perform functionally the same function as banks or money transmission services in the physical world. In the eyes of FinCEN regulators, convertible virtual currencies are no different from “real” currencies.

The guidance discussed both e-currencies and centralized currencies before turning to “de-centralized virtual currencies,” such as bitcoin. Decentralized convertible currencies, according to FinCEN, (1) have no central repository or single administrator and (2) can be obtained by people’s own computing efforts. Under this formulation, “miners” who use bitcoin to “purchase . . . goods and services” are considered “users” for the purposes of FinCEN regulation.  Anybody that creates virtual currency, however and then sells it to another for “real currency” is considered a money transmitter. This formulation appears to place bitcoin exchanges squarely within FinCEN’s authority, while leaving regular bitcoin users outside the scope of regulation.

Bitcoin stakeholders reacted, predictably, with some concern over FinCEN’s virtual currency guidance. The Bitcoin Foundation, which seeks to standardize, protect, and promote bitcoin, portrayed the guidance as less than “comprehensible” and an example of regulatory overreach.  The Bitcoin Foundation objected that FinCEN’s new framework would “widly expand the reach” of the BSA and “would be infeasible for many, if not most, members of the bitcoin community to comply with.” BitPay, a provider of bitcoin “business solutions,” considered itself safely within two exemptions to the definition of a money transmitter.

Mt. Gox, the largest bitcoin exchange, has partnered with the venture backed U.S. startup CoinLab to facilitate its business in North America. Cash flows from the partnership are underpinned by Silicon Valley Bank, which is already a registered FinCEN MSB. While no official response from Mt. Gox on FinCEN’s virtual currency guidance is available at this time, the CoinLab partnership illustrates the cryptographic currency shrouded in anonymity mixing with established financial institutions and the new regulatory framework.

With the FBI’s leaked assessment and FinCEN’s surprise guidance, bitcoin miners, users, and exchanges are on notice. What began as an anonymously posted paper on a cryptography listserv has matured into a billion dollar market. All eyes are on bitcoin, including those of regulators and law enforcement.

In contrast to an ordinary utility patent, a design patent is granted to an inventor of a new, original and ornamental design for an article of manufacture, and lasts for 14 years from the date of issuance. 35 U.S.C. 171, 173. A design patent contains only a single claim, and photographs or drawings that follow certain drafting conventions and applicable PTO rules. 37 CFR 1.84, 37 CFR 1.152.

Recent cases affirm the “ordinary observer” standard — but application in context of prior art is inconsistent

Design patents began to get increasing attention in 2008, when the Federal Circuit issued a game-changing decision in Egyptian Goddess v. Swisa, 435 F.3d 665 (Fed. Cir. 2008), holding that the “ordinary observer” test is the sole test for design patent infringement. The court looked back to the standard first stated in Gorham Mfg. Co. v. White, 81 U.S. 511 (1871), but clarified that the test is to be conducted in the context of the prior art. The ruling did away with the “point of novelty” test, freed district courts from issuing detailed verbal descriptions of the design claims if verbal elaboration would not be helpful, and placed the burden of production of prior art for any affirmative defenses on the accused infringer. This has made it much easier to prove design patent infringement, and consequently made design patents much more valuable, as Paris Hilton discovered in starting her own shoe line.  Experts now strongly recommend that inventors obtain design patent protection for any product with novel and unique visual appearance.

In litigation over the popular clog shoes, Int’l Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233 (Fed. Cir. 2009), the Federal Circuit affirmed that the “ordinary observer” standard also applies to anticipation and obviousness analyses.  The court held that designs must be compared in their entirety, ignoring minor or trivial differences; however, significant differences need not be limited to the exterior view alone, and may be seen in other views, such as the insoles of the shoe. The court further clarified that the only role for the perspective of one skilled in the art (or the “ordinary designer”) is in determining whether to combine earlier references to arrive at a single piece of prior art for obviousness comparison.

Conference panelists debated whether recent court decisions have been inconsistent in considering prior art in infringement analysis. Some recent opinions have relied on an initial assessments of whether the designs are “sufficiently distinct” or “plainly dissimilar” in determining whether prior art should be consulted at all. CompareMinka Lighting, Inc. v. Maxim Lighting Int’l, Inc. (N.D. Tex. Mar. 16, 2009) withFanimation, Inc. v. Dan’s Fan City, Inc., 2010, (S.D. Ind. Dec. 16, 2010) aff’d, 444 F. App’x 449 (Fed. Cir. 2011); see also Revision Military, Inc. v. Balboa Mfg. Co., 700 F.3d 524 (Fed. Cir. 2012). Panelists discussed research in psychology of shape perception, which suggests that the human visual system is attuned to spot differences, and that judgements about difference are greatly affected by the context and manner of presentation—and the implications of these findings for jury and bench trials. An Ohio court will soon have the opportunity to weigh in on the role of prior art in infringement analysis of cupcake batter separators in Kimber Cakeware v. Bradshaw Int’l (S.D. Ohio 2013).

Functionality doctrine, graphical user interfaces, and relationship to trade dress protection will require further clarification

Because design patents are granted for ornamental designs only, functional elements of the design are not subject to protection. For example, in Richardson v. Stanley Works, Inc., 597 F.3d 1288 (Fed. Cir. 2010), Federal Circuit upheld a finding of no infringement when the district court properly factored out functional elements of a multi-use tool, including the handle, hammerhead, jaw, and crowbar.  Questions of functionality become more nuanced, however, when considering ergonomic and usability design requirements. Panelists and attendees debated what weight courts should assign to requirements dictated by engineering analysis, which may limit dimensions and angles in a product, as well as production requirements that may rule out certain design alternatives.

The functionality debate gathered steam in a discussion of recent Apple v. Samsungdesign patent litigation and the developing area of protection for graphical user interfaces.  An argument could be made that certain aspects of icons are dictated by function – such as bright colors for visibility, image that signifies the app, and a shape that comfortably fits an average fingertip. The exclusion of certain elements, however, creates a tension with the often-stated maxim that the design must be considered in its entirety (reiterated in Int’l Seaway), and some attendees argued that a close focus on functionality may invalidate legitimate design innovations.

This debate led to a greater discussion of the goals of design protection, and whether another system, such as a registry, may be better suited to meet the needs of designers. Under the current system, the 14-year protection granted by a design patent could potentially be used by the owner to establish secondary meaning for the purpose of trade dress protection, which is unlimited in time. Panelists debated whether the Supreme Court’s holding in Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000), that product design is entitled to protection as unregistered trade dress when it has acquired secondary meaning was predicated on an understanding that a design cannot qualify for both trade dress and design patent protection. Comparative empirical research is needed to shed light on the benefits of different design protection regimes in use throughout the world. Nonetheless, the value of aesthetically pleasing products that bring an element of art into our everyday tasks is likely to continue to be recognized by the public.

WIPO, USPTO and in-house representatives discuss new application procedures and need for knowledgeable practitioners

The Patent Law Treaties Implementation Act of 2012, signed by President Obama, implemented both the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs and the Patent Law Treaty. A representative of WIPO, Mr. Alan Datri, described the new international application process. Under the Hague Agreement, separate industrial design patent filings will no longer be required for each jurisdiction.  Instead, a single English-language application can be filed directly with the World Intellectual Property Organization or indirectly with the USPTO, and can lead to protection in multiple designated member countries, including the European Union. The new process is expected to result in cost savings and to protect small and medium sized businesses that lack a global footprint by enabling them to easily acquire design protection in multiple markets. Asian countries are expected to join the agreement in the coming years.

The USPTO has recognized the increasing importance of industrial design in the global marketplace, noting that good design makes products “intuitive, aesthetically appealing, and comfortable to handle.” Mr. Brian Hanlon of the USPTO discussed the changes to design patents under the Leahy-Smith America Invents Act (AIA). Because design patents are not published, they will not be affected by third-party pre-issuance submissions, nor will design patents qualify for priority examination. However, design patents qualify for a “Rocket Docket” expedited examination under35 CFR 1.155. Mr. Hanlon discussed new fees, which include a substatial discount offered to micro-entities intended to stimulate innovation. Mr. Hanlon also stressed the importance of following the new application data sheet guidelines.

Ms. Katie Maksym, design patent counsel for Nike, which is among the top 5 design patent holders, discussed the fast pace of the industry. She emphasized the importance of the expedited application under the Rocket Docket in her practice, where an issuance may be obtained in as little as 3 months and a notice of allowance in just a few weeks. Design patents constitute a significant part of Nike’s intellectual property portfolio, which Ms. Maksym estimated to contain about 10,000 design patents, compared to 3,000-4,000 utility patents.  Ms. Maksym stressed the role of experts who are closely familiar with the meticulous drawing and applications requirements, and who have studied which design patent issues have been litigated and what can be gleaned from USPTO’s rejections.

A recent illustration of meticulousness needed in the application process can be seen in In re Owens, 710 F.3d 1362 (Fed. Cir. 2013) which addressed the written description requirement in the context of priority under § 120 for design patents, finding that that a new design region on a water bottle would not receive the benefit of the priority date because it was not adequately indicated to be in the inventor’s possession as of the original application. Panelists agreed that a knowledgeable practitioner is necessary to navigate the application process but delivers results in terms of costs savings and timely protection of valuable designs in the marketplace.

In this battle, however, theoretical copyright interests are secondary to networks’ central business concern: profit. The future of advertising in major network television could seriously impact the bottom line.  The ad-skipping and mobility features of Dish Network’s product “The Hopper” are a challenge to both advertising revenue as well as the revenue from services such as Hulu Plus, which, unlike The Hopper, provide the networks with licensing fees for mobile services.

The Hopper

In March 2012, Dish rolled out the hopper with a slate of entertaining (if not widely-played) ads.  It received largely positive reviews in the ensuing year.  Hopper users can record and watch their shows as played on live television, the critical difference from most digital recording devices being that the Hopper skips advertisements automatically.  The Sling feature, “Primetime Anytime”, enables customers to simply plug in the Sling device to view recorded content on iPads, iPhones, and the like: the service much easier to use than other versions of Sling which are not integrated into dvr devices, at least according to one review.

Some History

This is not the first time major networks and advertisers have taken to the courts, concerned that new technology would interfere with their business model.  In Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984), also known as the Betamax case, the Supreme Court held that the sale of Betamax video recording devices did not constitute contributory infringement because they were capable of substantial noninfringing uses, such as program time-shifting.

The current battle has another somewhat analogous legal predecessor.  In 2001, Replay TV attempted to implement a similar feature called AutoSkip to their DVR system, allowing viewers to skip ads.  Several major networks filed suit against SONICblue, emphasizing that the technology could negatively impact advertising revenue, which the plaintiffs called the “lifeblood of most television channels.” However, the case never fully resolved the issue. In 2003, the company entered bankruptcy, received a stay from the court, and sold ReplayTV to D&M holdings, which released subsequent versions of the DVR system without the Autoskip feature.

In the Courtroom

In May 2012, Dish Network filed suit in the Southern District of New York, seeking  declaratory judgment that the technology did not infringe any copyright or licensing agreements with American Broadcasting Companies and “several Fox entities” as well as to enjoin the Networks’ suit in California. However, the court granted CBS’s motion for dismissal.

Fox also filed suit in May 2012 in the Central District of California, alleging copyright infringement and breach of contract. Fox sought statutory damages as well as injunctive relief. Fox described the Primetime Anytime service as Dish’s “own bootleg broadcast video-on-demand service” that “makes an unauthorized copy of the entire primetime broadcast schedule for all major networks every night.”  According to Fox’s complaint, “DISH is undermining legitimate consumer choice by undercutting authorized on-demand services and by offering a service that, if not enjoined, will ultimately destroy the advertising-supported ecosystem.”  In addition, Fox stated that Dish’s Internet steaming and distribution services competed “unfairly with licensed providers such as iTunes and Amazon.”

The district court denied an injunction, finding that “Fox ha[d] failed to establish that it is likely to suffer irreparable harm in the absence of an injunction.” Fox appealed the decision to the U.S. Court of Appeals in San Francisco, which has yet to make a judgment. More recently, in February, Fox sought a preliminary injunction to block the “on-the-go” feature that Dish recently added to the Hopper, called “Dish Anywhere.”

A Very Public Fight

Ironically, CBS’s non-legal battles with Dish and the Hopper take the form of advertising, media and promotion—the very thing the Dish users can opt to do away with. In January, the Consumer Electronics Association (CEA) cut ties with CNET, a consumer electronics review site, after CBS, CNET’s parent corporation, prohibited the CNET editorial team from giving the Hopper a “Best in Show” award at the 2013 Consumer Electronics Show.  While CBS characterized the prohibition as a response to the illegality of the Hopper, the economic threat to network television’s advertising revenue seems a more likely culprit. In a USA Today column, Gary Shapiro, CEA President and CEO, pummeled the CBS intervention as an assault on CNET’s journalistic credibility. “CBS [was] destroying its reputation for editorial integrity in an attempt to eliminate a new market competitor” Shapiro concluded. As an interesting aside, Gannett Company, which owns USA Today, entered the lawsuit against Dish in September 2012.

In February, the New York Times’ Media Decoder blog captured a Twitter battle between Dish Network and CBS concerning the Hopper. Dish claims to have sponsored Kaley Cuoco, also known as Penny from “The Big Bang Theory,” to tweet “Amazing! Watching live TV anywhere on the #Hopper looks pretty awesome!” After Cuoco removed the tweet, Dish’s chief executive took to Twitter, writing, “It’s disappointing that CBS –once the exemplar of editorial independence and innovation—continues to hold back progress from consumers.” Several hours later, CBS responded via statement, “Once again, Joe Clayton demonstrates his dubious gift for hyperbole and hucksterism.  No demands were made, but it’s clear that Dish’s culture of fabrication is alive and well.” The author, Brian Stelter, observed, “This isn’t really about Ms. Cuoco, it’s about copyright and consumer rights.”  He pithily sums up the Hopper battle at the end of the post: “Just because people can skip ads doesn’t mean they always do.  But the Hopper makes it easy to skip ads automatically—and that’s what the networks fear.”

However, while Dish characterizes the Hopper as reasonable reaction to where, when and how consumers want to watch shows, CBS has refused to air advertisements featuring the Hopper, a move that will be irrelevant to Hopper customers.

The History

In 1999, there were over 250 websites accepting money bets from US players on card games, sporting events, and lottery tickets.  Was any of it legal?  There isn’t a clear answer to this question.  These websites frequently advised players to check the laws in their jurisdiction to ascertain the legality of participation.  As of 1999, only two states had statutes explicitly forbidding online gambling.  Roughly half of the remaining states had laws—usually passed sometime before the invention of the light bulb—making it a crime to place a bet.  The most pertinent federal legislation was the Federal Wire Act of 1961.  This act banned interstate and foreign wagering with the use of a wire device like the telephone.  It was passed primarily to prevent bookies from getting the results of horse races before bettors.  Many believed the government might use this act to punish online gambling operators.

Enter into this uncertain legal landscape the Unlawful Internet Gambling Enforcement Act (UIGEA).  In 2006, Congress passed the SAFE Port Act, an anti-terrorism bill regulating port security.  Thanks largely to the efforts of Tennessee Senator Bill Frist, an unrelated, last minute amendment was added to this bill: the UIGEA.  The UIGEA made it a federal crime to operate an Internet gambling business that accepted money for “unlawful” transactions.  However, because “unlawful” was defined as violating some other federal or state law, the UIGEA did little to clear up what forms of online gambling were actually prohibited.  The UIGEA was an enforcement statute—it didn’t make any gambling activity illegal by itself.  What it did was allow the government to bring additional felony charges against gambling businesses (but not players) that violated any other gambling law.  Following the passage of the UIGEA, every publicly owned online gambling provider left the US market.  The operators that remained were smaller, less reputable, and less regulated.

For the first five years of its life, the UIGEA was largely ignored by prosecutors.  Then, on April 15, 2011, in an event now known as “Black Friday” throughout the poker world, the Department of Justice unsealed an indictment against the chief executives of the three largest online poker providers in the US market.  The indictment set forth charges of violation of the UIGEA, conspiracy, bank and wire fraud, and money laundering.  Unsurprisingly, most of the charges were premised on the underlying activity, online poker, being illegal.  Since no federal statute expressly forbade online gambling, the government relied on a New York gambling misdemeanor to support the other charges.  Based on this underlying crime, prosecutors were able to bring felony charges under the UIGEA and a similar enforcement statute.  As a result of Black Friday, almost all online gambling providers stopped accepting US players.

Notably, the Black Friday indictment did not mention the Wire Act—the 1961 statute that many believed the government could use to punish online gambling operators.  A few months after Black Friday, the DOJ released a memorandum with its new interpretation of the statute.  The memorandum stated that the Wire Act only applied to wagers placed on a “sporting event or contest.”  This was an abrupt change from the DOJ’s long held position that Wire Act applied to all gambling information crossing state lines.

Recent Legalization

States interpreted the DOJ’s new position on the Wire Act as giving them a green light to legalize online gambling.  Facing substantial budget deficits, some states began to look to legalization and taxation of online gambling for a new source of revenue.  Three states—Delaware, Nevada, and New Jersey—have since legalized forms of online gambling within their borders.  Delaware and New Jersey authorized a full range of online casino-style gambling while Nevada only authorized poker.

While small states like Delaware can successfully operate games like blackjack and slots—where players bet against the house—they may not have the population necessary to sustain games like poker—where players compete against one another.  The number of Delaware players online at any given time may not be sufficient to provide the variety of games and stakes that poker players want.  However, this does not pose a problem because states are free to enter into pacts with other states and foreign countries to combine their player pools.  Thanks to the new interpretation of the Wire Act, nothing prevents a Delaware resident from sitting at a virtual poker table across from a Nevada resident, if the states so choose.  However, since the Wire Act still applies to sporting events, a Delaware resident can’t place an online bet on an event like the Super Bowl against a Nevada resident.  Indeed, even intrastate gambling on sporting events is only permitted in four states, although New Jersey is currently fighting this restriction in court.

Future of Online Gambling in America

Will online gambling spread outside of Delaware, Nevada, and New Jersey?  Almost certainly.

The success of online gambling in these three states may well determine whether legalization will occur elsewhere in the U.S.  But while some states will gauge the success of these programs before acting, others aren’t willing to wait.  At least five states are currently considering some sort of online gambling legislation.  The U.S. is still recovering from the financial crisis and politicians are anxious to find new ways to raise revenue.  Even though online gambling is not yet established in America, it is a $35 billion industry in the 85 countries where it is legal.  Furthermore, very few states are entirely opposed to gambling today—43 of them operate state-run lotteries.  The lure of added tax revenue has even spurred movement towards a federal bill legalizing online poker throughout the US.  It has been estimated that such a bill would create 10,000 new jobs and bring in $2 billion in tax revenue per year.

While proponents of online gambling are pointing to the benefits of legalization, opponents are fighting back.  In addition to attacking the job creation and revenue projections as inflated, opponents point to the addictive potential of gambling, the cost of lost work and study time, as well as moral and religious reasons for opposition.  Indeed, at least one recent opinion poll found that more Americans oppose legalization than support it.

Despite significant opposition, it seems probable that advocates for online gambling will eventually prevail.  Legal gambling, whether in the form of Indian casinos, card clubs, or state sponsored lotteries, is already within the reach of many.  And despite government opposition, Americans still engage in an estimated $4 billion of online gambling each year, of which $0 currently goes to the state.  The increased access that will accompany legalization will surely create new problems, but the promise of much needed tax revenue will entice many politicians to support it nonetheless.

This is a summary of Professor Ginsburg’s topic of discussion and forthcoming article:

Copyright formalities are back in fashion, but their acolytes have divergent objectives.  While some celebrate formalities’ confiscatory consequences and would enlist them to populate the public domain, others would rather populate the public record.  Declaratory obligations like notice, registration and recordation inform the public of the author’s claims and, by facilitating rights-clearance, help the author disseminate and derive compensation from her work.

This paper addresses the Berne Convention’s prohibition of imposing “formalities” on the “enjoyment or exercise” of copyright, and the compatibility with that cornerstone norm of declaratory measures to enhance title-searching. Voluntary provision of title-searching information on a public register of works and transfers of rights is fully consistent with Berne, and should be encouraged.  But may a member State impose sanctions or disabilities on foreign authors for failure to supply that information?

The first Part of this paper establishes that “formalities” prerequisite to the initial attachment or persistence of protection, or limiting the scope of minimum rights or the availability of minimum remedies, violate the norms of Berne and subsequent multilateral instruments.  And while it may be permissible to condition “Berne+” subject matter protection, rights, or remedies on compliance with declaratory measures, that path risks descending into controversies of characterization and line-drawing.

The second Part of this paper suggests imposing declaratory measures going to ownership of rights under copyright as an alternative approach.  Because the Berne Convention generally does not address questions of copyright ownership, conditions on who may enjoy or exercise rights—including sanctions for failing to provide information about transfers of rights—should be Berne-compatible.  Thus, the paper proposes making the validity of copyright transfer depend on the transferee’s recordation with the Copyright Office of “a note or memorandum of the transfer” containing sufficient information to permit third parties to ascertain who owns what rights in the work.  The paper concludes by identifying and attempting to resolve practical problems that such an obligation might engender.

This is a summary of Professor Van Houweling’s topic of discussion and forthcoming article:

Intellectual property scholars often contrast tangible and intangible property schemes on the basis of how much information is readily available about the identity of property owners and the nature of their rights.  Typically, the comparison holds up tangible property—real property in particular—as the model of successful information provision.  Physical signs can provide clues that a piece of land is owned by someone (often the person in possession).  Public records indicate exactly who that someone is and reveal details about the physical dimensions of the parcel, how its ownership has changed over time, and whether express encumbrances (liens, servitudes, etc.) complicate ownership.  These sources of information help to prevent inadvertent trespass by those who wish to avoid invading private land; they facilitate consensual transactions for those who seek permission to use or buy it.

Intellectual property rights, by contrast, do not so neatly correspond either to physical things in the world or to public records signifying ownership and identifying owners.  Of course physical objects can embody intellectual works—a book can embody a copyrighted story, for example.  But ownership of the physical object does not necessarily (or even usually) correspond to ownership of the intellectual property right or vice versa.

Indeed, readily observable indicia of ownership of physical objects (possession of books, for example) are more likely to mislead than to inform about ownership of the embedded intangible rights.  And although some such objects are marked with signs of copyright or patent ownership, a practice which is encouraged by the relevant federal statutes in the United States, marking is not a prerequisite for protection.  In many cases neither the physical object nor any record to which it is expressly tied provides much indication about whether the intellectual work is owned or by whom.  A story embodied in a book may be copyrighted or it may be in the public domain; the copyright may be held by the author or by an employer, heir, devisee, or transferee; some elements of the story may be free and others owned (by the author or by someone else from whom the author copied with or without permission); etc.  In the patent realm there is at least a centralized record of all issued patents.  There is no comprehensive list of copyrights.

Anxiety about the inadequacy of information about intellectual property rights has increased in recent years due to statutory changes that have made the situation worse (e.g. the elimination of registration and notice as prerequisites for copyright protection), and technological changes that have raised the stakes and thickened thickets of (often hidden) rights.  In the copyright context this anxiety is manifest—for example—in policy debates about the status of “orphan works” whose owners cannot be identified and located, and the (related) fate of the Google Book Search project.  In the patent context critics are alarmed when innovators’ investments are jeopardized by allegations that they have infringed unclear and thus difficult-to-avoid patent claims—especially in the new-fangled realms of software and Internet business methods.  In both the copyright and patent contexts, informational inadequacies can contribute to inadvertent infringement and then to surprising and costly disputes; or fear of potential infringement—combined with the inability to identify, locate, and negotiate with relevant rights-holders—can chill productive endeavors.

Critics of this current state of affairs lament what they see as unnecessarily faulty information provision and suggest that intellectual property should aspire to replicate the superior informativeness of real property.  For example, copyright reformers have called for statutory changes modeled on the centralized ownership information provided by land recording systems and the title-clearing function performed by marketable title acts.  As for patents, although the public availability of issued patents (and of most applications 18 months after they are filed) already provides a relatively comprehensive centralized source of information, critics complain that vague patent claims do too little to clarify inventions’ “metes and bounds.”

I have explored various aspects of the comparison between the information infrastructures supporting intellectual property versus land in other work.  In this essay I will focus in particular on what copyright reformers can learn from land recording systems established in U.S. states and elsewhere.  Solicitude for both original owners and innocent subsequent investors has shaped the land law for centuries.  These competing interests are managed in part by the establishment of property information infrastructures that allow prior and later investors to identify each other and understand their rights.  While critics of U.S. copyright law’s abandonment of mandatory formalities lament that the copyright information infrastructure is less reliable, they are sometimes inattentive to the fact that the land law has also eschewed mandatory formalities that would result in forfeiture of unrecorded interests.  Recording is not generally required to establish interests in land—just as registration and recording are not required to establish copyright ownership.  Instead, land recording systems prioritize competing interests in ways that powerfully incentivize recording by landowners.  What are arguably the best of these systems condition their protections for innocent subsequent investors on their recording as well, thus incentivizing all actors to contribute to a formal information system that can avoid the most difficult fact-specific inquiries into actual notice and the like.  The best of the current proposals for copyright reform share this feature, and a better understanding of land law helps us to appreciate their strengths.

This is a summary of Professor Gervais’s topic of discussion and forthcoming article:

The policy that copyright protection vests as soon as a work becomes fixed in a tangible medium has been a feature of American copyright jurisprudence for the past thirty-seven years. Nonetheless, there are many voices suggesting a return to a formalities-based copyright system. They make many valid points. First, there is little certainty regarding the ownership and terms-of-protection of creative works.  Second, formalities are required to ensure that only those works our system seeks to incentivize receive protection.  Third, in this digital age, compliance with formalities is needed more than ever due to the vast number of works being created and published. Fourth and finally, the ease of compliance in the digital environment (online registration, etc.) makes formalities much less burdensome.

Formality-free copyright was born out of necessity; it was required in order to assure global protection of copyrighted works in a time before the international harmonization of formalities was feasible. However, advocates of the current system point out that formality-free copyright was not only a means to this end. It has critical benefits. First, the message of incentivizing creativity is simplified.  Second, providing protection to all works prevents publishers and other content professionals from being able to sidestep professional creators by utilizing instead the unprotected works of amateurs, as American publishers had with English literature before copyright protection was extended to foreign works. Put differently, automatic copyright protection allows authors of all stations to create with confidence that their works will not be appropriated or exploited in a manner injurious to them.

International law also plays a role in determining the fate of formalities. Even if one were to conclude that the benefits of formality-free copyright are outweighed by the benefits of a copyright system with reinvigorated formalities, a rule prohibiting formalities as a condition on the existence or exercise of copyright is enshrined in both the Berne Convention and the TRIPS Agreement. Moreover, the re-introduction of formalities in the United States could have a disproportionate impact on authors in developing nations.

Is there a better way forward? To address the last point, one could reduce the complexity of the copyright registration process (possibly by eliminating the determination of copyrightability as a component of that process) and the related costs (to zero for authors in least-developed and a substantial discount for those in developing nations countries). However, the main suggestion of this paper is to focus on recordation of transfers as a pre-condition to a transferee’s entitlement to bring lawsuits and obtain an award of statutory damages.

RSC removed the brief from its website after less than 24 hours and promptly fired Khanna at the bequest of some Republican Congress members, but by then the post had garnered significant attention. Critics of copyright lauded the paper’s conclusion that the current system had overstepped its bounds, and Khanna’s Linkedin profile reveals an appearance on Fox News as well as positions with Yale Law School and the Department of Defense.

The brief also became a topic of discussion at CopyHype, Terry Hart’s blog devoted to an explanatory approach to copyright issues. Hart took on a fact-checking role regarding Khanna’s brief over the course of a blog post, as well as this statement about the role of evidence in copyright law.

In particular, Hart rebutted Khanna’s textualist reading of copyright’s purpose by focusing on legislative and judicial intent. Hart argues that, in fact, the purpose of copyright laws are the protection of artists and that intervention is in fact consistent with the government’s role in protecting personal property to support the existence of a free market.

THE BRIEF

In Khanna’s brief, he identifies three myths he believes undermine understanding of copyright law: “1. The purpose of copyright is to compensate the creator of the content…2. Copyright is free market capitalism at work…[and] 3. The current copyright legal regime leads to the greatest innovation and productivity.” All three myths are couched in terms of two underlying assumptions: the ideal market is laissez faire, and a textualist constitutional interpretation of copyright and patents’ purpose is both accurate and desirable.

Myth 1. The purpose of copyright is to compensate the creator of the content

Khanna attempts to debunk the first “myth,” regarding the purpose of copyright, through a narrow textualist interpretation of the constitution, focusing on the impetus that copyright “promote[s] the progress of science and useful arts.” Khanna asserts that, “because of the constitutional basis of copyright and patent,” reform must be based on maximizing “productivity and innovation” rather than awarding merit with financial compensation.

Myth 2. Copyright is free market capitalism at work

Khanna asserts that copyright is not free market capitalism, but rather “a guaranteed, government instituted, government subsidized content-monopoly.” Khanna considers strict statutory damages a source of excessive market intervention leading to disproportionate awards.

Myth 3. The current copyright legal regime leads to the greatest innovation and productivity

 Khanna considers the current copyright regime ill-crafted to maximize innovation and creativity because he believes copyright terms outlive the period necessary to create incentive. Additionally, he emphasizes that the expansive current regime promotes “rent-seeking” behavior that ultimately interferes with innovation.

The brief also summarizes the problem of excessive copyright protection as well as posits various solutions. Of course, the protection is cast as oppositional to the constitution’s mandate that protection be afforded for “limited times.” In the brief, the effects of excessive copyright protection include: slowing “the creation of a robust DJ/Remix industry….Hampering scientific inquiry…Stifling the creation of a public library…Discouraging added-value industries…[and] Penaliz[ing] legitimate journalism and oversight.” Khanna’s solutions to improve the copyright regime include reforming statutory damages to making infringement fines proportionate to harm caused and avoid harassing lawsuits. Additionally he suggests expanding fair use, punishing false infringement claims, significantly limiting the term of copyright protection, as well as the creation of copyright renewal disincentives.

COPYHYPE RESPONSE

Terry Hart, the Director of Legal Policy for the Copyright Alliance and creator of the legal blog CopyHype, used Khanna’s brief as a case study in fact-checking the copyright debate as well as a poster child in a broader post about the failures of discourse on copyright reform. In particular, Hart goes through the myths, one by one, addressing additional or alternative evidence regarding Khanna’s assertions.

Myth 1. The purpose of copyright is to compensate the creator of the content

According to Khanna, the constitution is the source of the inarguable fact that copyright is meant to protect innovation, rather than compensate innovators. However, Hart turns to “the Supreme Court, Congress, and numerous jurists, scholars, and writers” as sources of the view that copyright is in fact meant to protect artists, authors, and other creators. Hart includes multiple passages from James Madison as well as Justice Stevens who wrote “Nothing in the text of the Copyright Clause confines the ‘Progress of Science’ exclusively to ‘incentives for creation.’”

Myth 2. Copyright is free market capitalism at work

Khanna considers copyright a “government subsidized content-monopoly.” To contradict this, Hart first characterizes copyright as property, rather than a subsidy, citing Thomas Paine’s characterization of literature as legal property, Locke’s labor property theory, as well as Eaton Drone’s description of copyright as a property right.

“Khanna’s characterization of copyright as ‘government-subsidized’ is completely erroneous. The government offers nothing to creators except a functioning market to pursue their own ends….[copyright as subsidy] would make all property a government subsidy”

Hart refers to a 19^th century book on copyright to debunk the “monopoly” characterization, quoting excerpts that explain copyright cannot be a monopoly, because the goods are not being removed from public possession.

Myth 3. The current copyright legal regime leads to the greatest innovation and productivity.

Hart disagrees that there exists any significant viewpoint that fully supports the current copyright regime. He characterizes the term ‘innovation’ a vague “code word for increasing the bottom line of venture capital firms and the consumer electronics sector.” Hart considers this myth “little more than a strawman.”

Current status of Copyright Law?

In Khanna’s brief, he refers to the original term of copyright protection—14  years—as the likely term envisioned by the framers of the constitution. However, Hart points out that that term limit was borrowed from the Statute of Anne, which based the time period on the fact that two sets of apprentices could be trained in a new technique in 14 years. As a result, the arbitrary term is based on considerations that are no longer relevant.

Hart also demonstrates that Khanna’s most extreme allegation, that copyright is being indefinitely extended, is actually based on oft-repeated Lawrence Lessig rhetoric, stating that copyright has been extended “eleven times in the last 40 years”, and “every time Mickey [Mouse] is about to pass through the public domain, copyright terms are extended.” Hart points to a 2002 law review article by Scott Martin, stating Congress only altered the “appropriate duration” of copyright two times in the past forty years, in the 1976 Copyright Act, and the 1998 CTEA, while the other alterations to copyright were “short interim extensions.” Hart also quotes Edward Samuels, a law professor, as well as the Supreme Court stating that the infinite copyright is simply not the case.

COPYHYPE ON REALITY

In February, Hart wrote a post entitled “Bringing Reality Back to Copyright Debates,” in which he disagreed with the views of William Patry, the Electronic Frontier Foundation, Cory Doctorow, and others that copyright policy lacks an empirical basis. Hart’s argument relies on a paper authored by Michael Smith and Rahul Telang that survived empirically based papers and found that a majority of them identified piracy as a real source of harm. Hart also discusses the Khanna brief, characterizing it as a “cavalier revision of the historical record that is not uncommon among copyright skeptics.”

WHAT TO CONCLUDE

Which are the relevant facts, figures, and considerations to the debates surrounding the extent and limitations of copyright? After comparing Khanna’s brief and Hart exegesis, what emerges seems to be a disagreement about not only the direction copyright reform should take, but also the philosophical precepts that determine source of law, historical interpretation, and, in essence, reality.

Khanna’s brief is strictly textualist in interpreting the constitution, and perhaps narrow in interpreting intellectual property as a monopoly, rather than similar to other property rights. Hart, on the other hand, relies on Justice Stevens, the founding fathers, and various philosophers and legal scholars to elucidating effect. However, in some cases, it is not clear that he necessarily has the better source of law or policy, as opposed to simply a different one, depending on favored mode of legal interpretation. Additionally, he hardly addresses Khanna’s policy suggestions, perhaps because he agrees with them.  So, who is correct?  While it varies issue by issue, it seems Khanna and Hart embody different viewpoints and factions of the copyright debate, rather than a right or wrong answer to the complex questions of policy and law that emerge.