Intellectual Property Seminar Assignments, Spring 2023

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.

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:

Substantive readings:

    • 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.

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.

Readings:

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

CLASS 5 [CANCELLED] – FEB. 8: 3DP/IoT IS NOT A STAR WARS™ CHARACTER

CLASS 5 [RESCHEDULED] – FEB. 8: 3DP/IoT IS NOT A STAR WARS™ CHARACTER

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

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?

 

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.

SCHEDULE OF PRESENTATIONS

Below are panelists and dates for the panelists, as determined in class on March 1 by group ballot. Students may not change dates unilaterally. Each panelist will present and each panelist will provide written and oral commentary on one co-panelist’s paper. As a start, I will give 15 minutes to each presenter, ten minutes to each commentator, and reserve 20 minutes for further discussion. If a student wants to use powerpoint or other AV, they can either email me the presentation or use their own device (if it has an HDMI or USB-C video output.) Note that powerpoint or AV are not required, and I will be more than happy to share my reasons as to why somebody should or should not use AV, and if so, how to do so effectively. If you do use AV, please send me a copy (even if you use your own device.)

Papers will be posted to Canvas for you to download after first drafts are submitted (due Mar. 19). Those presenting later in the semester may upload subsequent versions for class reading (this does not affect your grade but allows you to get feedback on your most updated version.)

Each person on a panel is also a commentator for their assigned paper. Thus, Irina will speak about her own paper, and provide written and oral commentary on Nico’s paper, and vice-versa. Comments should be uploaded prior to class in a Word document only to this link on Canvas.

Draft papers are posted for you to download on the Canvas site. There is a link on the first page that takes you to the downloads.

GROUP

Date

Topics

Presenters/Commentators

GROUP C

3/22

Trademarks

Nico (I), Irina (N)

GROUP A

4/5

AI

Lily (M), Michael (J), Jessica (L)

GROUP E

4/12

Misc

Alessandra (C), Caleb (D), Douglas (A)

GROUP B

4/19

NIL

Joseph (A), Albert (V), Victor (J)

GROUP D

4/26

Patent, fashion

Vanessa (G), Gaia (V), Dong Soo (V)

CLASS 10 – MAR. 22: Panels (trademark)

FRIDAY SCHEDULE – MAR. 29: No class

  • No class today, Friday schedule.

CLASS 11 – APR. 5: Panels (AI)

CLASS 12 – APR. 12: Panels (Misc.)

CLASS 13 – APR. 19: Panels (NIL)

CLASS 14 – APR. 26: Panels (Patents, Fashion)

DUE DATE – MAY 7 APR. 30: Final drafts due

  • Submit via Canvas or other approved means by 11:59PM EST

Revised Apr. 24, 2023