Real Intellectual Property Reform – See What We Did There
by: Patrick Anderson | October 12, 2013
Sub-titled “Real Intellectual Property Reform,” the Center for the Protection of Intellectual Property (“CPIP”) Fifth Annual Fall Conference kicked off October 12, 2017 with a panel discussing how to put the “property” back into Intellectual Property. Moderated by CPIP Assistant Director Devin Hartline, and headlined by practicing entertainment lawyer Dina LaPolt, and a trio of academics including Professors Ryan Holte (University of Akron School of Law), Sean O’Connor (University of Washington School of Law), and Joshua Sarnoff (DePaul University College of Law), the panel discussed both theoretical and practical issues related to the growing disregard of property rights with respect to IP.
Naturally, the seminal case of eBay v Mercexchange took center stage as Professor Holte walked through the dramatic impact of the decade-old Supreme Court case. Not surprisingly, injunction rates dropped after eBayfrom nearly 100% to 72.5% overall. However, eBay’s impact on so-called “non-practicing” patent owners was far more severe, as this now-maligned class of patent owners is awarded injunctions only 16% of the time. Holte, and the panel at large, expressed particular concern on this last statistic in view of the fact that Justice Thomas’s opinion in eBay confirmed a 100+ year old case that upheld the right of a patent owner to obtain an injunction even when it had “declined to use the patent.”
Beyond eBay, Professor O’Connor focused on what he describes as the “levels” of property within IP rights in an attempt to stop utilitarian IP “minimalists” and natural rights IP “maximalists” from “talking past each other.” In one of the more theoretical aspects of the conference, O’Connor suggested that, rather than incentivizing creation, property rights actually incentivize disclosure of creation.
Historically, creative activity predates protection of rights in those creations. Thus, beyond labor theory, O’Connor suggests that intellectual property developed to prevent unjust enrichment and free-riding on the part of the public who gains the knowledge of the creator, once inventions are disclosed.
As the only full-time practitioner on the panel, Dina LaPolt did not mince words. While imploring the academics in the room to focus on practical research that helps front-line lawyers represent their clients, LaPolt reminded everyone of the stakes, saying, “We are in a war. We may win certain battles, but, overall, we are losing.” LaPolt stated that 75% of songwriter income is regulated by a 70 year-old consent decree, leaving it largely inadequate. She also explained how infringers share hundreds of copies of musical recordings in a matter of minutes, yet attorneys attempting to take down infringing copies must engage in a fair use analysis in each instance. Thus, while it may be considered “good” in the abstract that fair use analysis precede take downs, appellate outcomes dramatically affect artists by introducing enormous costs.
Overall, the panelists agreed that the best way forward is to continue an open dialogue to set policy goals and then enact changes that work toward reaching those goals, all with an eye toward ensuring that IP protection is effective in securing rights to encourage creation, investment and commercialization.