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Articles by Devlin Hartline
Disney Deal Shows the Way for Responsible AI Development
“Arts and entertainment are not luxuries; they are part of the cultural backbone of society. When incentives to create are eroded, everyone loses—including AI companies.” While artificial intelligence (AI) companies have long maintained that copyright law poses a significant barrier to innovation, it’s getting harder for them to make that argument with a straight face.
The IP Law Problem with California’s New Right to Repair Act
“Rather than acknowledge the obvious discrepancies, repair supporters appear to have adopted the view that federal IP law doesn’t matter when repair opportunities are at stake. And this view appears to have been driven home by several prominent IP professors.” California is poised to become the third state to enact a right to repair law aimed at making it easier for independent repair shops and consumers to repair electronic devices.
The Quixotic Battle Over Controlled Digital Lending Heats Up
“IA ridiculously claims that its Open Library causes no market harm to the Publishers because they have already been paid for the physical books that IA digitizes and distributes online….
State ‘right-to-repair’ laws can’t take away the rights of digital creators
Additional, potentially life-changing laws coming to the US in 2023 At this time of year, modifications generally come in the form of New Year's resolutions, but in 2023 especially, Americans will be obliged to comply with some fresh and even radical regulations that have been ratified by state assemblies, endorsed by governors or plebiscites accepted by electors.
State ‘right-to-repair’ laws can’t take away the rights of digital creators Original
Reports abound about farmers who can’t repair their tractors or iPhone owners who can’t replace their cracked screens have fueled a push in recent years for state “right-to-repair” legislation that would create more opportunities for consumers to repair their electronic devices. But what these narratives leave out is the important role that copyright law plays in bringing our electronic devices to life.
The Year in Copyright: 2022 Gives Creators Hope for the Future
“One of the more intriguing—and worrisome—copyright developments of the year comes from the use of artificial intelligence (AI) to generate creative works….
Conferences & Events
2022 Events Legal Workshop & Clinic: Copyright in the Metaverse Hosted by the Arts & Entertainment Advocacy Clinic and WALA November 15, 2022 Online 2022 Christopher A. Meyer Memorial Lecture by Professor Sandra Aistars Hosted by the Law Office of Michael R.
Overbroad State Right-to-Repair Bills Would Violate Federal Copyright Law
“These overbroad state right-to-repair bills are unconstitutional because federal law secures to copyright owners the right to determine for themselves whether and how they make their works available to others.” The right-to-repair movement has been making strides in recent years, as many states are now contemplating bills that would require electronic device manufacturers to make their parts, tools and know-how available to device owners and independent repair shops.
How the Copyright System Works for Musicians Today
This event will air on this page on Thursday, October 20, at 12:00 p.m. The copyright system is premised on the notion that the best way to promote the public interest is by empowering creators to pursue their own private interests. Copyright achieves this goal by granting exclusive rights—property rights—to creators so that they can profit from the exploitation of their works in the marketplace.
State Right-to-Repair Laws Need to Respect Federal Copyright Laws: A Constitutional, Legal, and Policy Assessment - by Devlin Hartline Adam Mossoff
View Full PDF Executive Summary Various states are considering laws that would mandate that producers of electronic devices provide consumers and repair shops with all the tools and know-how necessary to repair these devices. Proponents of these “right-to-repair laws” argue that consumers should be able to do whatever they want with their devices, whether a smartphone, a smart TV, or a gaming console. Right-to-repair advocates, however, ignore inconvenient facts.
Virtual Event | What the New Copyright Claims Board Means for Creators
This event will premiere on this page at 12:00 p.m. EDT, Thursday, June 30. Register for the event here. The Copyright Claims Board (CCB) is a newly established tribunal within the United States Copyright Office that offers a voluntary alternative to the federal district courts for certain low-value copyright disputes.
Amicus Brief of Harold Furchtgott-Roth and Kirk Arner in Support of Petition for Rehearing
View Full Brief Introduction and Summary of Argument In their short lifespan, the Internet and the broadband services that connect Americans to it have transformed how we live our lives. The Internet’s profound power comes from the fact that it is a single, unified national and international network that respects no boundaries—save for those of foreign autocrats. Thus, the very idea of an “intrastate” broadband service is a logical and practical nullity.
Virtual Event | Artificial Intelligence and Intellectual Property
A person gets checked by an automated AI temperature screening system outside a restaurant as the city continues Phase 4 of re-opening following restrictions imposed to slow the spread of coronavirus on August 22, 2020, in New York City. (Getty Images) A person gets checked by an automated AI temperature screening system outside a restaurant as the city continues Phase 4 of re-opening following restrictions imposed to slow the spread of coronavirus on August 22, 2020, in New York City.
Thank You, Senator Tillis, for Recognizing the Need for Evidence-Based Policymaking in Patent Law - by Adam Mossoff
Earlier this month, Senator Thom Tillis (R-NC) sent a letter to the U.S. Patent and Trademark Office (USPTO) and to the U.S. Food and Drug Administration (FDA), expressing concern about policymaking on drug patents and drug prices being driven by a narrative rooted more in policy goals than in actual data.
German Arrests Show Pakistani Support for Sikh Extremism in India - by Aparna Pande Sam Westrop
Heavy security arrangements deployed at the entrance of the Mini Secretariat on December 24, 2021 in Ludhiana, India, following a bomb attack by Sikh separatists. (Photo by Gurpreet Singh/Hindustan Times via Getty Images) Heavy security arrangements deployed at the entrance of the Mini Secretariat on December 24, 2021 in Ludhiana, India, following a bomb attack by Sikh separatists.
State Compulsory eBook and Audiobook Licensing Is Wrong on Law and Policy
“It is not surprising that publishers charge libraries more for the ability to provide digital access to others because they are getting more than regular consumers. Moreover, these complaints treat the rights of publishers to control the dissemination of their works as a bug of the copyright system when they are really its primary feature.” The ability of copyright owners to experiment with different marketing strategies is fundamental to copyright law.
State Compulsory eBook and Audiobook Licensing Is Wrong on Law and Policy
Books line the shelves of a public library. (Romans Drics / EyeEm via Getty Images) Books line the shelves of a public library. (Romans Drics / EyeEm via Getty Images) The ability of copyright owners to experiment with different marketing strategies is fundamental to copyright law. Indeed, the U.S. Copyright Act promotes the public good by granting exclusive rights to copyright owners that incentivize the creation and dissemination of new works on their own terms.
The Year in Copyright: From Google v. Oracle to the Takings Clause
“With a whirlwind of activity to kick off the new year, 2021 proved a hotbed of movement on the copyright front [and] 2022 promises to provide even more exciting copyright brainteasers to be unraveled.” One of the greatest attributes of copyright law is the never-ending abundance of exciting new developments, including those in Congress, the courts, and at the Copyright Office.
Virtual Event | Compensating Creators in the New Content Ecosystem
Optimistic influencer talking during broadcast. (Getty Images) Optimistic influencer talking during broadcast. (Getty Images) This event will premiere on this page at 12:00 p.m. EST, Thursday, December 16. Register for the event here. Join Hudson Institute Legal Fellow Devlin Hartline and expert panelists Amadea Choplin, Rodrigo Velloso, Abe Batshon, and Meng Kuok for a discussion on recent initiatives to ensure that creators are paid fairly for the content they produce.
Cloudflare Tests Limits of Contributory Copyright Infringement
By Devlin Hartline November 11, 2021 “While it is certainly disappointing to see Cloudflare score a victory here against Mon Cheri in the district court, its position ultimately is wrong: There is no Ninth Circuit loophole that allows service providers to knowingly host and distribute infringing content without incurring contributory liability.” One recurring thorn in the side of copyright owners is Cloudflare, the San Francisco-based web performance, optimization, and security company.
Virtual Event | IP Infringement and State Sovereign Immunity
Please be advised: This event will premiere on this page at 12:00 p.m. EDT, Monday, October 25. Register for the event here. Join Hudson Institute Legal Fellow Devlin Hartline and expert panelists Kristen Osenga, Kevin Madigan, and Rick Allen to discuss state sovereign immunity for intellectual property infringement.
Virtual Event | Copyright Protection in the Digital Age
Please be advised: This event will premiere on this page at 12:00 p.m. EDT, Friday, September 24. Register for the event here. Join Hudson Institute Legal Fellow Devlin Hartline and expert panelists Steven Tepp, Michael D. Smith, and Vance Ikezoye for a discussion on the use of filtering and site blocking to address online copyright infringement. The digital age has brought new challenges for copyright owners in the United States and abroad.
2020 Annual Report
View Report PDF Letter from the Chairman of the Board of Trustees and the President and CEO In the face of unique and dangerous threats in a year that tested our nation and the world, Hudson Institute launched an immediate effort to explain the implications of Covid-19 for U.S. foreign and domestic policy and present paths forward to promote American strength, leadership, and renewal. Hudson’s policy team quickly adapted to the new environment.
Controlled Digital Lending Thwarts Democratic Process and Rights of Authors
“There is a weird notion, particularly among copyright skeptics, that anything arguably supporting the public good should be legal. But these arguments downplay the inevitable harms that would result from CDL.” One of the latest controversies in copyright law concerns the practice of controlled digital lending (CDL) by libraries. The idea is simple: Libraries take the physical books on their shelves, digitize them, and then share the digital copies with members of the public.
Policy Centers - Forum for Intellectual Property - Hudson Institute
The Forum for Intellectual Property supports data-driven research and promotes evidence-based policy discussions about the key role of intellectual property in growing innovation economies and in flourishing societies. The U.S. innovation economy has been driven for over two centuries by intellectual property rights: patents, copyrights, trademarks, and trade secrets.
The Evolving Music Ecosystem
The Center for the Protection of Intellectual Property (CPIP) at Antonin Scalia Law School, George Mason University, invites you to an online music law conference.
Patents on Life: Diamond v. Chakrabarty at 40
The Smithsonian Institution’s Lemelson Center for the Study of Invention and Innovation and George Mason University’s Center for the Protection of Intellectual Property (CPIP) invite you to a panel and discussion. Patents on Life: Diamond v. Chakrabarty at 40 Wednesday, June 17, 2020 1:00 – 2:30 PM (EDT) CLICK HERE TO JOIN THE LIVE WEBCAST This program is free and open to the public. No advance registration is required. EVENT DESCRIPTION In June 1980, the U.S. Supreme Court ruling in Diamond v.
Members of Congress the Latest to Question ALI’s Restatement of Copyright
As copyright wonks are surely aware, the American Law Institute (ALI) has been busy with its first foray into restating a body of federal statutory law, the Restatement of Copyright. Restatements have traditionally state common-law topics, such as employment, property, trusts, and torts, which are primarily governed by some combination of state statutory and judge-made law.
How Rhetorical Epithets Have Led the FTC Astray in its Study of Patent Licensing Firms
We’ve all heard the narrative about patent licensing firms, often referred to pejoratively as “patent trolls.” These patent owners, who choose to license their innovations rather than build them, are the supposed poster-children of a “broken” patent system. It’s as if commercializing one’s property, just like a landlord leases his land for another to use, is suddenly a bad thing. Nevertheless, the power of this “troll” rhetoric cannot be denied.
Letter to Antitrust Chief Applauds DOJ’s New Evidence-Based Approach to IP Enforcement
A group of judges, former judges and government officials, law professors and economists with expertise in antitrust law and patent law sent a letter to Assistant Attorney General Makan Delrahim earlier today applauding his recent announcements that the Antitrust Division of the Department of Justice (DOJ) would now take a balanced, evidence-based approach in applying antitrust law to patent licensing, especially to patented innovations that have been contributed to technological standards.
Copyright Scholars: Courts Have Disrupted the DMCA’s Careful Balance of Interests
The U.S. Copyright Office is conducting a study of the safe harbors under Section 512 of the DMCA, and comments are due today. Working with Victor Morales and Danielle Ely from Mason Law’s Arts & Entertainment Advocacy Clinic, we drafted and submitted comments on behalf of several copyright law scholars.
Changes to Patent Venue Rules Risk Collateral Damage to Innovators
Advocates for changing the patent venue rules, which dictate where patent owners can sue alleged infringers, have been arguing that their remedy will cure the supposed disease of abusive “trolls” filing suit after suit in the Eastern District of Texas. This is certainly true, but it’s only true in the sense that cyanide cures the common cold.
Changes to Patent Venue Rules Risk Collateral Damage to Innovators
Advocates for changing the patent venue rules, which dictate where patent owners can sue alleged infringers, have been arguing that their remedy will cure the supposed disease of abusive “trolls” filing suit after suit in the Eastern District of Texas. This is certainly true, but it’s only true in the sense that cyanide cures the common cold.
#AliceStorm: When It Rains, It Pours…
The following guest post from Robert R. Sachs, Partner at Fenwick & West LLP, first appeared on the Bilski Blog, and it is reposted here with permission. Last year I christened the post-Alice impact on patents #Alicestorm, riffing on the hashtag #hellastorm used to refer to the Pineapple Express storms the drenched the Bay Area in December 2014. This year we have El Niño bringing day after day of rain, and so too we have Alice decisions coming down in sheets.
How Patents Help Startups Grow, Innovate, and Succeed
Many academic studies of the patent system focus on the negative, extrapolating from anecdotes about a few bad actors to make the case that our patent system is broken and to bolster cries for legislation weakening patent rights. Precious few studies focus on the countless honest and hardworking patent owners whose inventive labors benefit us all.
Protecting Authors and Artists by Closing the Streaming Loophole
We’ve released a new policy brief, Protecting Authors and Artists by Closing the Streaming Loophole, by Devlin Hartline & Matthew Barblan. They argue that in order to protect authors and artists from having their works repeatedly stolen on the internet, it is long past time to harmonize the remedies for criminal copyright infringement to reflect the ways that copyrighted works are commonly misappropriated these days. We’ve included the Introduction below.
Busting Smartphone Patent Licensing Myths
CPIP has released a new policy brief, Busting Smartphone Patent Licensing Myths, by Keith Mallinson, Founder of WiseHarbor. Mr. Mallinson is an expert with 25 years of experience in the wired and wireless telecommunications, media, and entertainment markets.
Ninth Circuit Gets Fair Use Wrong to the Detriment of Creators
The Ninth Circuit’s opinion in Lenz v. Universal is out, and it’s a doozy. The main issue in the case is whether a rightholder has to consider fair use before sending a DMCA takedown notice. Section 512 requires the sender to state that she “has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” Section 107 says that “the fair use of a copyrighted work . . .
Federal Circuit Should Reconsider Ariosa v. Sequenom: The Panel Decision Threatens Modern Innovation
In an amicus brief co-authored by Kevin Noonan of McDonnell Boehnen Hulbert & Berghoff LLP and Professor Adam Mossoff of George Mason University School of Law, twenty-three law professors urge the Federal Circuit to take a second look at the innovation-threatening panel decision in Ariosa v. Sequenom. They filed their amicus brief on Thursday, August 27, 2015, in support of Sequenom’s petition for rehearing en banc.
Countering Global Kleptocracy: A New US Strategy for Fighting Authoritarian Corruption
Full Report PDF Policy Recommendations In the most comprehensive kleptocracy policy study yet published, Nate Sibley and Ben Judah examine the pervasive threat to democracy, prosperity and security posed by globalized corruption and offer 70 recommendations for US policymakers. “The danger of countries that have fallen to authoritarian kleptocrats is real, and the danger extends beyond the country’s borders.
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