Information on Casebook
The syllabus will be posted shortly via the course landing page, which can be found at this link. For most of you, the only book you will need to purchase will be Fajan and Falks, Scholarly Writing for Law Students (Fifth Ed. West 2017). (Try the West discount code WASTU, let me know if it still works from last Fall). Either the paper or electronic editions are fine. You’ll also need the Bluebook, most recent edition, which I assume everyone has or has access to. Substantive readings will be posted to the syllabus and will be available online. This will be a research, writing, participation, and presentation-based class; you will have options as to the form of the writings, which I’ll discuss more in the syllabus. A Canvas site will be forthcoming as well.
CLASS 1 – JAN. 11: WHAT IS IP? WHY IS IP?
First, once the Syllabus is posted at the website, read the Syllabus.
Second, carefully read the materials contained in this packet in the pages that follow, or via the course website.
- Excerpts from John Locke, Two Treatises on Government
- U.S. Constitution, Article I, sec. 8, cl. 3, 8, and 18
- International News Assoc. v. Associated Press
Third, read my article The Procedural Foundations of Intellectual Property Information Regulation, 24 Lewis & Clark L. Rev. 109 (2020), reprinted in 2020 Intellectual Property Law Review (Thomson Reuters). Download it at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3590341.
Finally, prepare answers to the study questions.
CLASS 2 – JAN. 18: IP AND THE PUBLIC DOMAIN
We will continue last week’s discussion, picking up on the two questions arising my my article Procedural Foundations. See last week’s study questions and assignment.
Writing-related: Fajans & Falk, pp. 1-26. Also, start thinking about a potential topic and what formats (i.e., note, comment, blogs, amicus brief, something else) of paper(s) you’d like to write.
Background:
- Chart comparing copyright, patent, trademark, trade secret
- Chapter 1, Stephen McJohn, Examples & Explanations for Intellectual Property, Seventh Edition, Aspen Learning Library (oclc.org) (browser and STU login required)
Substantive readings:
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Warner Bros. Ent. v. X One X Prods., 644 F.3d 584 (8th Cir. 2011)
- Journal articles: James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. Probs. 33 (2003). You should download articles from Hein Online using the STU Digital Library. If you are logged into your email on a browser, this link should work. Otherwise go to the electronic library here and find the article on Hein. Download the full PDF.
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Finally, TPQ assignment: all students should post to Canvas at least one TPQ based on the substantive (non-Fajans) readings by 10AM Tuesday.
CLASS 3 – JAN. 25: SIMIAN PAPARAZZI AND ANDROID INVENTORS
Note – below are the substantive and Fajans readings; I will shortly post the TPQ leader.
Activity – If possible, create an OpenAI account so that you access both DALL·E 2 (AI image generation) and ChatGPT (AI-written responses to human prompts). Save some of the fun ones you create and be prepared to share them and discuss your thoughts on AI generated works and information.
- DALL·E 2: https://openai.com/dall-e-2/
- ChatGPT: https://chat.openai.com/auth/login
Readings:
- Fajans & Falk: chapter 3, pp. 27-63
- Case: Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).
- Case: Thaler v. Hirshfeld, 558 F. Supp. 3d 238 (E.D. Va. 2021), aff’d sub. nom Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022).
- Scholarship: Dennis David Crouch, Legal Fictions and the Corporation as an Inventive Artificial Intelligence Dennis Crouch, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4081569
- News articles:
- Kingsley Egbuonu, The latest news on the DABUS patent case, IP Stars, Nov. 17, 2022, https://www.ipstars.com/NewsAndAnalysis/The-latest-news-on-the-DABUS-patent-case/Index/7366
- James Vincent, The Scary Truth about AI Copyright is Nobody Knows What Will Happen Next, The Verge, Nov. 15, 2022, https://www.theverge.com/23444685/generative-ai-copyright-infringement-legal-fair-use-training-data
- Benj Edwards, Artist Receives First Known US Copyright Registration for Latent Diffusion AI Art, Ars Technica, Sept. 22, 2022, https://arstechnica.com/information-technology/2022/09/artist-receives-first-known-us-copyright-registration-for-generative-ai-art/
DUE DATE – FRI., JAN. 27: PROPOSED TOPICS AND PREFERRED FORMATS
- Submit your proposed topic and proposed format (if not a traditional seminar paper) by 11:59PM EST to this Canvas link
CLASS 4 – FEB. 1: IP and BORDERS
- TPQ leader: Professor
- Readings:
- Fajans & Falk, ch. 4, pp. 63-73
- Borders within: TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 121 S. Ct. 1255, 149 L. Ed. 2d 164 (2001)
- Borders without: Doeblers’ Pennsylvania Hybrids, Inc. v. Doebler, 442 F.3d 812 (3d Cir. 2006), as amended (May 5, 2006)
- Big picture view: Pamela Samuelson, Strategies for Discerning the Boundaries of Copyright and Patent Protections, 92 Notre Dame. L. Rev. 1493 (2017)
- Additionally: My plan is for each week of assigned readings, we cover some theme or topic that runs through multiple areas of IP or information law. What topics might you like to discuss?
CLASS 5 [CANCELLED] – FEB. 8: 3DP/IoT IS NOT A STAR WARS™ CHARACTER
- Update Feb. 7 – per email announcement this morning from Dean Clark, all classes that take place in part or in full between 11AM-2PM this day are cancelled for the renaming event. A make-up session will be scheduled TBD.
- Fajans & Falk, ch. 5, pp. 75-92
- Substantive readings:
- Deven R. Desai & Gerard N. Magliocca, Patents, Meet Napster: 3D Printing and the Digitization of Things, 102 Geo.L. J. 1691 (2014)
- Timothy R. Holbrook, Printing the Future: The Implications of 3D Printing, 4 Tex. A&M J. Prop. L. 15 (2017)
- Lidiya Mishchenko, Comment, The Internet of Things: Where Privacy and Copyright Collide, 33 Santa Clara High Tech. L.J. 90, 109 (2017)
CLASS 5 [RESCHEDULED] – FEB. 8: 3DP/IoT IS NOT A STAR WARS™ CHARACTER
- This is the assignment that was previously posted for last week. It has been moved to this week.
- Fajans & Falk, ch. 5, pp. 75-92
- Substantive readings:
- Deven R. Desai & Gerard N. Magliocca, Patents, Meet Napster: 3D Printing and the Digitization of Things, 102 Geo.L. J. 1691 (2014)
- Timothy R. Holbrook, Printing the Future: The Implications of 3D Printing, 4 Tex. A&M J. Prop. L. 15 (2017)
- Lidiya Mishchenko, Comment, The Internet of Things: Where Privacy and Copyright Collide, 33 Santa Clara High Tech. L.J. 90, 109 (2017)
CLASS 6 – FEB. 22: THAT OLD # 2
- Fajans & Falk. ch. 6, 93-118
- Substantive assignment: we will pick apart the issues in a case that was recently granted review by the Supreme Court, Jack Daniel’s Properties, Inc. v. VIP Products LLC (U.S. No. 22-148). Prepare for class as if you were writing a casenote about this dispute for a seminar. In particular, read and be prepared to discuss your thoughts on the merits of:
- The decisions below from the Ninth Circuit (2020) and subsequently by the District Court (2021).
- At least one Supreme Court-level brief by any party or amicus, which you can find at this link. Come to class also prepared to discuss the argument made by the briefing party or amici and to consider the merits of their position.
- I will bring the dog toys but not the whiskey.
CLASS 7 – FEB. 24: GROUP DISCUSSION OF TOPICS AND THESES
- This class will take place via Zoom on Friday, Feb. 24 from 945AM-1145AM. The link was sent Feb. 23 via STU email.
- First half of class:
- Fajans & Falk. ch. 7, 119-141 (we will also discuss Fajans ch. 6 from Wednesday).
- Everybody should be ready to talk for at least two minutes with a more detailed explanation of their topic and thesis. We will give each other comments and suggestions. We will also engage in a novel activity.
- Let’s be the Supreme Court for the second half of class:
- Read Question Presented in Gonzalez v. Google (U.S. No. 21-1333 arg. Feb. 21, 2023)
- Read oral argument transcript in Gonzalez v. Google (it’s not as long as it looks b/c of the font and spacing)
- Be prepared to answer the following questions:
- How do you think SCOTUS is likely to vote, Justice-by-Justice if possible.
- How do you think SCOTUS ought to vote as a group (or how would you vote)
- Is this an “IP” issue? “Internet law” issue? Information law issue? Does the distinction matter?
DUE DATE – FEB. 26: DETAILED THESIS, TOPIC, & PROPOSED READINGS
- Detailed topic/thesis statement + proposed readings due 11:59PM EST today; upload to this Canvas link
CLASS 8 – MAR. 1: 230 or NOT 230, THAT IS THE QUESTION PRESENTED
Required:
- We spent last class almost totally on discussing our papers, so I’m bumping last week’s Gonzalez v. Google assignment to this week. (The issue in this case is CDA immunity for Google, which would prevent it from being potentially liable under a terrorism aiding & abetting statute; the case is thus related to Twitter v. Taamneh, which was argued the next day. The Twitter case is not assigned though it is discussed by the Court in the transcript below.)
- Let’s be the Supreme Court (this repeats last week’s readings, with the addition of the statute):
- Here’s the text of Section 230
- Read Question Presented in Gonzalez v. Google (U.S. No. 21-1333 arg. Feb. 21, 2023)
- Read oral argument transcript in Gonzalez v. Google (it’s not as long as it looks b/c of the font and spacing)
- Be prepared to answer the following questions:
- How do you think SCOTUS is likely to vote, Justice-by-Justice if possible.
- How do you think SCOTUS ought to vote as a group (or how would you vote)
- Is this an “IP” issue? “Internet law” issue? Information law issue? Does the distinction matter?
Not required but helpful in your additional preparation:
- Fajans & Falk. ch. 8, 143-163
- Justice Thomas’ statement in Malwarebytes
- Justice Thomas’ statement in Biden v. Knight
- Questions that occurred to me in my preparation for last Friday’s class:
- Does court seem convinced by Gonzalez’ counsel?
- Congressional issue versus judicial competence
- Will court resolve on Twitter JASTA issue and punt on CDA?
- Distinction between immunity and non-liability
- Importance of early dispositions such as 12(b)(6)
- Relevance of “neutral” tools”
- Screenshots versus thumbnails
- Does “algorithm” argument prove too much? Don’t all sites use their own code or actions in presenting content? (page 39)
The hidden issue of VL for algorithmic choices - What about 230(f)(4)?
- Reposting on home page
- Algorithmic recommendations
- Search engine results
- User liability for likes and retweets
Not assigned for today but of potential interest to the group in light of recent classes:
- In light of our discussion of the “Bad Spaniels” case last week, you might be interest to see the Trademark Professors amicus brief filed just yesterday. Signers include Professor Catanzaro and me. Interestingly, the arguments raised are very similar to the ones we raised in class (and I did not read the brief before we did the class, so it’s cool to see that our thinking parallels what other scholars are arguing). You might also want to take a peek at the awesome and fun “connect the dots” brief filed by MSCHF Product Studio. (See for yourself, I ain’t gonna spoil it further for you.). There’s also a First Amendment Professors brief for those with a more Constitutional perspective on the issues in the case. (And I would totally give credit for a good and original connect-the-dots seminar paper.)
- In light of our prior deep dive into AI, you might be interested to see the transcript of a bizarre and chilling chat between a NYT reporter and Bing’s (limited release) AI chatbot. Commentary from reporter here, and podcast on topic here.
SPRING BREAK – MAR. 8: NO CLASS
- Spring Break this week, no class.
CLASS 9 – MAR. 15: THE FUTURE OF FAIR USE: FAIR OR FARED?
- We will also have our long-overdue discussion on Gonzalez v. Google. In addition, see below.
- Today will be our last substantive class, where we will discuss the future of fair use, focusing on the upcoming SCOTUS decision in Warhol Found. v. Goldsmith. For further information, see SCOTUSBlog.
- Rebecca Tushnet, Brief of Amici Curiae Copyright Law Professors in Support of Petitioner in Warhol Found v. Goldsmith (U.S. No. 21-869, arg. Oct. 12, 2022)
- Richard Epstein, Sequential Uses of Copyrighted Materials: Transforming the Transformative Use Doctrine In Andy Warhol Foundation v. Lynn Goldsmith, ___ Mich. St. L. Rev. ___ (2023)
DUE DATE – MAR. 19: First draft(s) due
- Submit your first draft via Canvas by 1159PM EST today, Sunday, Mar. 19. (Bumped from Mar. 12). Submit in Word format (DOC or DOCX). Please do not submit PDFs.
CLASS 10 – MAR. 22: Panels (trademark)
- GROUP C Panels:
- 2-3 students will be on a panel.
- Panelists are also written commentators for the other panelists’ drafts.
- Class members are discussants.
- Other student-selected readings:
- Nico’s paper:
- Draft: available via main page of Canvas site
- Dorothy R. Auth and John T. Augelli, Protecting Intellectual Property in the United States What to Know as an Entrepreneur Entering the U.S. Market
- Keith E. Maskus, Intellectual Property Rights and Foreign Direct Investment
- Irina’s paper:
- Draft: available via main page of Canvas site
- European Commission, Digital Services Act: EU’s landmark rules for online platforms enter into force, Nov. 16, 2022
- Folkert Wilman, The Digital Services Act (DSA): An Overview
- Nico’s paper:
FRIDAY SCHEDULE – MAR. 29: No class
- No class today, Friday schedule.
CLASS 11 – APR. 5: Panels (AI)
- GROUP A Panels:
- 2-3 students will be on a panel.
- Panelists are also written commentators for the other panelists’ drafts.
- Class members are discussants.
- Readings:
- Drafts from Lily, Michael, Jessica: available via main page of Canvas site
- Other student-selected readings:
- Lily:
- Complaint, Thaler v. Perlmutter, No. 1:22-cv-01564 (June 2, 2022 D.D.C.),
- Jane Recker, U.S. Copyright Office Rules A.I. Art Can’t Be Copyrighted, Smithsonian Mag., March 24, 2022
- Michael
- Thaler v. Vidal, No. 2021-2347 (Fed. Cir. Aug. 2, 2022)
- Jessica
- Veronica Acevedo, Original Works of “Authorship”: Artificial Intelligence as Authors of Copyright
- Anushka Verma & Rajakshmi R., Copyright Authorship to Artificial Intelligence: Who Owns It?, May 17, 2022
- Lily:
CLASS 12 – APR. 12: Panels (Misc.)
- GROUP E Panels:
- 2-3 students will be on a panel.
- Panelists are also written commentators for the other panelists’ drafts.
- Class members are discussants.
- Readings:
- Drafts from Alessandra, Caleb, Douglas: available via main page of Canvas site
- Other student-selected readings:
- Alessandra
- Eric Goldman, An Overview of the United States’ Section 230 Internet Immunity (2019)
- Danielle Keats Cintron & Benjamin Wittes, The Problem Isn’t Just Backpage: Revising Section 230 Immunity. 2 Geo. L. Tech Rev. 453 (2018).
- Caleb
- Lee Curtis & Rachel Platts, Trademark Law Playing Catch-up with Artificial Intelligence?, WIPO Mag., June 2020
- L’Oréal SA v. eBay International
- Douglas
- Lee Reiners, 10 Things Judges Should Know About Cryptocurrency
- Alessandra
CLASS 13 – APR. 19: Panels (NIL)
- GROUP B Panels:
- 2-3 students will be on a panel.
- Panelists are also written commentators for the other panelists’ drafts.
- Class members are discussants.
- Readings:
- Drafts from Joseph, Albert, Victor: available via main page of Canvas site
- Other student-selected readings:
- Joseph
- NCAA v. Alston, 141 S. Ct. 2141 (2022)
- 1006 Fla. Stat. 74 (Florida NIL statute)
- Albert
- Michelle Brutlag Hosick, DI Board of Directors Issues Name, Image and Likeness Guidance to Schools, NCAA, May 9, 2022
- Pete Nakos, Florida Governor Signs House Bill 7B, Amending State’s NIL Law, On3OS, Feb. 16, 2023
- Victor
- https://www.dacs.org.uk/knowledge-base/factsheets/moral-rights – A general background on Moral Rights, where they came from and why they exist.
- https://vocal.media/cleats/who-invented-the-bicycle-kick – An example of the type of attribution right issues my paper seeks to resolve.
- Removed from assignment but previously listed – Giuliana R. García, He Shoots, He Scores…and Receives Copyright Protection? How the Current State of Intellectual Property Law Fumbles with Sports
- Joseph
CLASS 14 – APR. 26: Panels (Patents, Fashion)
- GROUP D Panels:
- 2-3 students will be on a panel.
- Panelists are also written commentators for the other panelists’ drafts.
- Class members are discussants.
- Readings:
- Drafts from Vanessa, Gaia, Dong Soo: available via main page of Canvas site
- Other student-selected readings:
- Vanessa
- Shayne Longpre et al., Lethal Autonomous Weapons Systems & Artificial Intelligence: Trends, Challenges, and Policies, MIT Science Policy Rev., Aug. 29, 2022
- Gaia: TBA
- Dong Soo: Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93 (2016)
- Vanessa
DUE DATE – MAY 7 APR. 30: Final drafts due
- Submit via Canvas or other approved means by 11:59PM EST
Revised Apr. 24, 2023