Foreword: Fair Use in the Digital Age, and \u3ci\u3eCampbell v. Acuff-Rose\u3c/i\u3e at 21

If Campbell had remained a narrow pop-culture case—a doctrinal one-hit wonder—it would not have possessed the capacity to generate so much enthusiasm, and such heated debate, among scholars and practitioners of high caliber. Yet gathered at the University of Washington School of Law for two days in April 2015 were forty of the leading and emerging experts in copyright law in the United States, to discuss the impact the case has had and to speculate about the directions fair use law will take in light of this watershed opinion. It remains, by many accounts, one of the three most important fair use opinions in American law. Reflecting on Campbell’s wide and deep footprint in the case law over the twenty-one years since the case was handed down forms the purpose for our Symposium and for this collection of excellent scholarly papers in the Washington Law Review

Moral philosophy, information technology, and copyright: the Grokster case

Published in Information Technology and Moral Philosophy (2008)

The Supreme Court\u27s Quiet Revolution in Induced Patent Infringement

The Supreme Court over the last decade or so has reengaged with patent law. While much attention has been paid to the Court’s reworking of what constitutes patent-eligible subject matter and enhancing tools to combat “patent trolls,” what many have missed is the Court’s reworking of the contours of active inducement of patent infringement under 35 U.S.C. § 271(b). The Court has taken the same number of § 271(b) cases as subject matter eligibility cases—four. Yet this reworking has not garnered much attention in the literature. This Article offers the first comprehensive assessment of the Court’s efforts to define active inducement. In so doing, it identifies the surprising significance of the Court’s most recent case, Commil USA, LLC v. Cisco Systems, Inc., where the Court held that a good faith belief on the part of the accused inducer that the relevant patent is invalid cannot negate the mental state required for inducement—the intent to induce acts of infringement. In so doing, the Court moved away from its policy of encouraging challenges to patent validity as articulated in Lear, Inc. v. Adkins and its progeny. This step away from Lear is significant and surprising, particularly where critiques of the patent system suggest there are too many invalid patents creating issues for competition. This Article critiques these aspects of Commil and then addresses lingering, unanswered questions. In particular, this Article suggests that a good faith belief that the induced acts are not infringing, which remains as a defense, should only act as a shield against past damages and not against prospective relief such as injunctions or ongoing royalties. The courts so far have failed to appreciate this important temporal dynamic

The Supreme Court\u27s Quiet Revolution in Induced Patent Infringement

The Supreme Court over the last decade or so has reengaged with patent law. While much attention has been paid to the Court’s reworking of what constitutes patent-eligible subject matter and enhancing tools to combat “patent trolls,” what many have missed is the Court’s reworking of the contours of active inducement of patent infringement under 35 U.S.C. § 271(b). The Court has taken the same number of § 271(b) cases as subject matter eligibility cases—four. Yet this reworking has not garnered much attention in the literature. This Article offers the first comprehensive assessment of the Court’s efforts to define active inducement. In so doing, it identifies the surprising significance of the Court’s most recent case, Commil USA, LLC v. Cisco Systems, Inc., where the Court held that a good faith belief on the part of the accused inducer that the relevant patent is invalid cannot negate the mental state required for inducement—the intent to induce acts of infringement. In so doing, the Court moved away from its policy of encouraging challenges to patent validity as articulated in Lear, Inc. v. Adkins and its progeny. This step away from Lear is significant and surprising, particularly where critiques of the patent system suggest there are too many invalid patents creating issues for competition. This Article critiques these aspects of Commil and then addresses lingering, unanswered questions. In particular, this Article suggests that a good faith belief that the induced acts are not infringing, which remains as a defense, should only act as a shield against past damages and not against prospective relief such as injunctions or ongoing royalties. The courts so far have failed to appreciate this important temporal dynamic

The Supreme Court\u27s Quiet Revolution in Induced Patent Infringement

The Supreme Court over the last decade or so has reengaged with patent law. While much attention has been paid to the Court’s reworking of what constitutes patent-eligible subject matter and enhancing tools to combat “patent trolls,” what many have missed is the Court’s reworking of the contours of active inducement of patent infringement under 35 U.S.C. § 271(b). The Court has taken the same number of § 271(b) cases as subject matter eligibility cases—four. Yet this reworking has not garnered much attention in the literature. This Article offers the first comprehensive assessment of the Court’s efforts to define active inducement. In so doing, it identifies the surprising significance of the Court’s most recent case, Commil USA, LLC v. Cisco Systems, Inc., where the Court held that a good faith belief on the part of the accused inducer that the relevant patent is invalid cannot negate the mental state required for inducement—the intent to induce acts of infringement. In so doing, the Court moved away from its policy of encouraging challenges to patent validity as articulated in Lear, Inc. v. Adkins and its progeny. This step away from Lear is significant and surprising, particularly where critiques of the patent system suggest there are too many invalid patents creating issues for competition. This Article critiques these aspects of Commil and then addresses lingering, unanswered questions. In particular, this Article suggests that a good faith belief that the induced acts are not infringing, which remains as a defense, should only act as a shield against past damages and not against prospective relief such as injunctions or ongoing royalties. The courts so far have failed to appreciate this important temporal dynamic

Making the private public: Regulating content moderation under Chinese law

With the expansion of digital economy, tackling illegal online content is an increasingly challenging task. China implemented a dual-track legal mechanism on content moderation, whereby it exempts general monitoring obligations of intermediaries under private law while imposing monitoring obligations under public law. In recent years, major platforms exercise much stronger control over flow of information, regardless of more serious consequences that impact the fundamental rights of users. Meanwhile, a series of Chinese court rulings have shown that these divergent attitudes towards monitoring obligations under public and private law have given rise to legal conflicts that may deprive intermediaries of their legitimate immunity, undermining the stability and efficiency of the safe harbor rule. Furthermore, the lack of adequate legal safeguards against the risk of abusing automatic content filtering technology might transform the internet into a digital panopticon. To redraw boundaries between monitoring obligations under private and public law, future Chinese legislation should not only provide clearer clarification on the scope of monitoring, but also include a provision prohibiting general monitoring obligations in private law. To provide legal predictability for affected parties and flexibility for future technological developments, a Good Samaritan clause should be introduced in Cybersecurity Law by learning from the substance of Article 7 of the DSA

“Can I Post This?”: A Call for Nuanced Interpretation of DMCA Enforcement in the Age of Social Media

This Note advances recent scholarship critiquing the notice-and-takedown procedures used by online service providers (OSPs) under the safe-harbor provision of the Digital Millennium Copyright Act (DMCA)—specifically in the context of user-generated content (UGC) posted by end users on social media. Rights holders have increasingly put legal pressure on technology platforms to fortify their copyright protection mechanisms. Over the past decade, this imperative has manifested through an increased use of automated content recognition (ACR) technology to remove allegedly infringing UGC. ACR technology has gradually overtaken the manual, human review of UGC that the DMCA envisioned. However, reliance on mass automated takedowns of UGC creates a legal conflict. Lenz v. Universal Music Corp. established that rights holders must evaluate fair use before submitting a takedown notice to an OSP to avoid misrepresentation. Since automated takedowns remove the required review component, this Note questions their legality. This Note also examines recent litigation surrounding fair use and proposes to expand the definition of fair use to account for social media as one of many copyright battlefields of the 2020s. Such an expansion would fortify UGC creators’ rights on social media, thus ensuring equity between rights holders and users

Toward Non-Neutral First Principles of Private Law: Designing Secondary Liability Rules for New Technological Uses

A series of recent cases revisits secondary liability in intellectual property law, solving some particular problems but without providing completely specified rules that are predictable and principled. Prior law already includes several varieties of secondary liability with a rationale for each. Together, these old and new sources point the way towards a synthesis, which may allow for a designed solution that is more fully specified, at least in respect of new technological uses. When all is said, secondary liability in intellectual property law still turns on two essential questions: (1) is there someone who is liable for direct infringement, and if so (2) is it just to hold someone else accountable? Both of these inquiries contain embedded variables, which are to a surprising degree free and indeterminate with respect to users of new technologies in places created by code. These places created by code include the metaverse, virtual worlds, cypherspace, and cyberspace proper (the code world ). The code world and the new machines that enable it constitute new technological uses (NTUs) that have great economic and practical consequence. I propose legal rules purposely chosen to encourage a designed architecture for NTUs that will prefer hitchhikers, guides and ordinary users to predators, pirates and spoilers of the new machines and the code world. I propose both a short-term solution centered on interim safe harbors and a longer-term project to disintegrate liability-style rules from property-style rules. The solutions depend upon intentional design of liability rules (is there someone liable for direct infringement?), and of limited remedies intentionally fitted to the new technological uses for which they are designed (is it just to hold someone else accountable?)