Brief of the R Street Institute, the Wikimedia Foundation, and Public Knowledge as Amici Curiae in Support of Respondent

Twenty-five centuries of history reject the foundation of Petitioners’ case. In contending that it may assert federal copyright law against its citizens to block distribution of the Official Code of Georgia Annotated, the State of Georgia contemplates a bright line between its uncopyrightable statutes and all other edicts of government that “lack the force of law.” No such line exists. On the contrary, sovereigns since antiquity have promulgated not only statutes but also proclamations, explanations, commentaries, and even annotations, all of which, even lacking “force of law,” carry great weight for the rule of law and the functioning of government. History reveals not a binary divide between statutes and all else, but a spectrum of edicts of government

Hacking Antitrust: Competition Policy and the Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act, a federal computer trespass statute that prohibits accessing a computer without authorization or exceeding authorized access, has often been criticized for clashing with online norms, over-criminalizing common behavior, and infringing freedom-of-expression interests. These controversies over the CFAA have raised difficult questions about how the statute is to be interpreted, with courts of appeals split on the proper construction and the Supreme Courtset to consider the law in its current October Term 2020. This article considers the CFAA in a new light, namely its effects on competition. Rather than merely preventing injurious trespass upon computers, the CFAA has become a favorite legal tool for dominant firms in the computer services industry to suppress competition, expand their market control, and impose transaction costs that limit consumer choice. To explore how the CFAA implicates competition, two novel approaches are used. First, this article compares prior uses of the CFAA to competition issues identified in the computer industry and other fields. This comparison reveals that the CFAA has the ability to insulate from legal scrutiny activity that at a minimum raises serious questions about negative effects on competition. Second, the article draws upon the theory and law of intellectual property, in particular trade secrets and copyright. Because it protects information but lacks the competition-protective features of copyrights and trade secrets, the CFAA essentially creates an ad hoc intellectual property regime that enables the improper suppression of competition. The legislative history of the CFAA suggests that Congress did not intend the computer intrusion statute to supplant intellectual property law or to be a tool for suppressing competition. To ensure consistency with this legislative intent, then, this article posits that the CFAA should be narrowly construed such that access without authorization does not include violations of restrictions on how accessed data is subsequently used. At least from a competition policy perspective, a narrow construction is favorable over the broad one

Internet Freedom with Teeth

You make the very salient statement that we shouldn\u27t lose sight of the fact that this is a case about teeth. Well, Markman was a case about dry cleaning. But nobody thinks of Markman as standing for anything about dry cleaning. So went what was Chief Judge Prost\u27s perhaps most striking question to the attorney for the International Trade Commission at oral argument in ClearCorrect Operating, LLC v. International Trade Commission, which is the focus of Professor Sapna Kumar\u27s recent article Regulating Digital Trade. Yet this is what remains so fascinating about ClearCorrect: an administrative agency decision about idiosyncratic facts and perhaps the driest issue of statutory construction that one could imagine could have captivated both the legal community and the public press to have spawned, beyond Professor Kumar\u27s article, pages upon pages of legal briefing, high-visibility news reports, and even a comparison by the chief judge of the U.S. Court of Appeals for the Federal Circuit to one of the most important decisions of patent law

Brief for the R Street Institute and Engine Advocacy as Amici Curiae in Support of Respondents

Under 35 U.S.C. § 102, an inventor may not obtain a patent on an invention that has been “on sale” for more than a year. The question is whether, from this so-called on-sale bar, certain classes of sales should be exempted— sales under a confidentiality agreement, in Petitioner’s view; and sales to those other than the ultimate customers, according to the government

Mandatory Infringement

In 2005, the Food and Drug Administration required the use of chlorofluorocarbon-free propellants in albuterol inhalers. But 3M held patents on the only U.S.-approved chlorofluorocarbon-free inhaler. The agency’s regulations forced multiple generic albuterol manufacturers to choose between infringing 3M’s patents or exiting the market. This state of affairs was lucrative for 3M, perhaps good for the environment, bad for competition, and terrible for patients faced with high costs for essential medical devices. This is an example of a general phenomenon: mandatory infringement. Intellectual property prohibits certain activities, but sometimes the government also mandates these very same activities. Such situations arise surprisingly frequently in fields including environmental protection, pharmaceutical labeling, information technology, and access to justice. The manifest injustice of regulatory law requiring what intellectual property law disallows has sparked vigorous debates over individual cases in all these fields. Yet there has been no unified treatment of how the law should address mandatory infringement. Courts and scholars have taken approaches that are scattershot, idiosyncratic, and even inconsistent with each other. The key to fixing mandatory infringement is understanding why it is a problem in the first place: competition. Mandatory infringement creates outsized market power due to an inverse relationship between the effect of regulations and intellectual property rights on competition. It further enables passing the buck between regulators and courts, encourages rent-seeking rather than innovation, and induces government offloading of licensing costs onto regulated entities that produces a principal–agent disconnect. These phenomena explain why regulators and courts applying antitrust or intellectual property laws have difficulties resolving mandatory infringement. Although they try hard to reach fair outcomes, and often succeed, the distinctive aspects of mandatory infringement and authorities’ failure to recognize them frequently have left unjustified market dominance intact. A new approach is required: a trans-substantive doctrine that excuses mandatory infringement, not tied to specific legal regimes but broadly encompassing matters of competitive markets and public welfare

Brief for the R Street Institute and Engine Advocacy as Amici Curiae in Support of Respondents

Under 35 U.S.C. § 102, an inventor may not obtain a patent on an invention that has been “on sale” for more than a year. The question is whether, from this so-called on-sale bar, certain classes of sales should be exempted— sales under a confidentiality agreement, in Petitioner’s view; and sales to those other than the ultimate customers, according to the government

OF MONOPOLIES AND MONOCULTURES: THE INTERSECTION OF PATENTS AND NATIONAL SECURITY

OF MONOPOLIES AND MONOCULTURES: THE INTERSECTION OF PATENTS AND NATIONAL SECURIT

Copyright in the Texts of the Law: Historical Perspectives

Recently, state governments have begun to claim a copyright interest in their official published codes of law, in particular arguing that ancillary materials such as annotations to the statutory text are subject to state-held copyright protection because those materials are not binding commands that carry the force of law. Litigation over this issue and a vigorous policy debate are ongoing. This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law but not pure statutory text, from Rome and China to England and America. These historical episodes reveal three lessons of relevance to the debate. First, there is consistent recognition that the law is not limited to binding statutory language. Second, exclusivity over nonbinding legal texts such as annotations, whether through copyright or other means, confers undue power on government and the legal profession over the public. Third, annotations and other nonbinding legal texts are historically distinguishable from case reports or private treatises, contrary to the arguments generally proffered by the copyright-claiming states. These lessons militate toward broad-exclusion from copyright of state-authored informative legal texts, whether binding or not

On the Appeal of Drug Patent Challenges

Administrative patent challenge proceedings, the most prominent form of which is inter partes review, have attracted much controversy. In particular, the pharmaceutical industry and its supporters have criticized the proceedings as unfairly biased toward canceling valuable drug patents. Yet there has been little study of the real-world, practical impact of these administrative proceedings on drug patents or pharmaceutical markets. This Article reviews the universe of administrative challenges on drug patents that have proceeded through appeal to the Federal Circuit. The majority of patents challenged this way are deemed unpatentable at both the agency and appellate levels, and that administrative cancellation of drug patents is regularly followed by subsequent generic drug competition and reduced drug prices—over 97% savings in some cases, on blockbuster prostate cancer and heart disease drugs. The reviewed cases suggest that these effects are not due to bias against patents, but rather because of the expertise of administrative adjudicators and the remarkably low quality of the drug patents challenged. Indeed, nuanced aspects of these administrative proceedings, particularly at the appellate level, in fact are biased in the opposite direction—against patent challengers. These findings suggest that inter partes review and other administrative challenge proceedings likely serve an important purpose for lowering the costs of medicines, and those proceedings could potentially be improved