Copyright Scholarship Roundtable

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The First Copyright Scholarship Roundtable will begin tomorrow at the University of Pennsylvania Law School. The event is sponsored by U. Penn’s Center for Technology, Innovation & Competition and was organized by Shyam Balganesh and myself (but mostly by Shyam).

I am the assigned commentator for two of the excellent papers: Ben Depoorter’s, Enforcing Against Norms and Kristelia Garcia’s, Facilitating Competition by Remedial Regulation. My slides for Enforcing Against Norms are posted here.

Second Circuit clears the last hurdle for Google Book Search

The Second Circuit ruled today that, in its present form, the library digitization that Google began over ten years ago does not infringe US copyright law. This decision was entirely predictable given the court’s ruling in the related Hathitrust litigation, it is nonetheless momentous. Judge Leval’s cogent explanation of the law and the facts is an exemplary piece of legal writing. The decision is available here (AG v Google October 16, 2015) and merits careful reading.

This is great win for Google, but more importantly, it confirms a balanced approach to copyright law that will ultimately benefit authors, researchers, the reading public and the developers of new forms of information technology.

I have written several law review articles on the issues raised in this case — Orphan Works as Grist for the Data Mill, 27 Berkeley Technology Law Journal 2012, The Google Book Settlement and the Fair Use Counter-factual, and Copyright and Copy-Reliant Technology 103 Northwestern University Law Review 1607–1682 (2009). However, I believe that it was only when I teamed up with Matthew Jockers (a professor of English literature) and Jason Schultz (a law professor with deep experience in public interest litigation in addition to expertise in copyright) to write the amicus Brief Amicus Curiae of Digital Humanities and Law Scholars that my work truly became influential. The court did not cite the any amicus briefs in the case, but they were cited in the district court case and the related Hathitrust cases. Reading Judge Leval’s decision, I think it is clear that the excellent briefing by Google’s lawyers and the many public interest groups who contributed was helpful and influential.

This case is great victory for the public interest, it is also a great illustration of how a deep commitment to scholarship complements law school clinical programs and helps us serve the public interest.

Some cool graphs from my paper on IP litigation in US district courts

I have just revised my article, IP Litigation in US District Courts: 1994 to 2014, which will be published in Volume 101 of the Iowa Law Review next year.  (You can download the article from ssrn now.) This post does not attempt to summarize the full article; it focuses instead on explaining some of the more interesting graphs and data visualizations in the article.

Copyright, Patent and Trademark Filings as a percentage of all IP 1994-2014

This data is presented as a 12 month moving average.

Copyright, Patent and Trademark Filings 1994—2014 (Percent)


Copyright, Patent and Trademark Filings (number of cases) 1994—2014

Again, this data is presented as a 12 month moving average. The difference between the dashed redline and the solid red line clearly shows the impact of lawsuits against anonymous internet file sharers.

Copyright, Patent and Trademark Filings 1994—2014 (Cases)


Copyright Cases 1994—2014, RIAA End-User Litigation, BitTorrent Monetization and Copyright Trolling

The impact of the current wave of copyright trolling is pretty clear.

Copyright Cases Filed in U.S. District Courts (1994—2014)


9 out of 10 of ‘copyright trolling’ cases are about pornography

As you can see from the table, the number of john does per suit has declined because courts have been far more skeptical of mass-joinder, but that has just led to more suits being filed.

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One pornography company accounts for 80% of Copyright John Doe lawsuits filed in 2014 #CopyrightTrolling

In fact, the pornography producer, Malibu Media is such a prolific litigant that in 2014 it was the plaintiff in over 41.5% of all copyright suits nationwide. John Doe litigation is not a general response to Internet piracy; it is a niche entrepreneurial activity in and of itself.

[Edited at 4:17pm. The missing * for AF Holdings has been added]


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1/2 The patent litigation explosion is not exactly as it appears, compare suits filed to #defendants.

At first glance it looks like the annual volume of patent litigation in the United States doubled in the 16 years from 1994 until 2010. In the three years from 2010 to 2013 it doubled again.

US Patent Litigation Filings, 1994–2014


2/2 The patent litigation explosion is not exactly as it appears, compare suits filed to #defendants.

The real trend in patent litigation over the past two decades can be seen in the number of defendants filed against. The bar chart at the bottom of the next figure shows the same filing data as in the figure above. The scatter plot in the figure below shows the estimated number of defendants. Although it appears that the number of patent cases filed exploded after 2010, looking at the estimated number of defendants, it becomes clear that the period from 2010 to 2013 was more or less a continuation of the existing trend.

Patent Cases Filed and Estimated Number of Defendants, 1994—2014

There is something wrong with the ED of Texas. Average Number of Patent Defendants per Filing 1994—2014

This figure shows the estimated number of defendants per suit for the nine most popular federal districts from 1994 to 2014 and also for an aggregation of all other districts. The vertical dashed line is set to 2011 to mark the passage of the America Invents Act. It is starkly apparent that the trend toward more defendants is greatest in the Eastern District of Texas. The estimated number of defendants in Eastern District of Texas climbs steeply from 1.66 in 1994 to 12.37 in 2010 and then drops precipitously down to 1.99 in 2014

Average Number of Patent Defendants per Filing 1994—2014


What does all this mean? To me, it suggests that there was not exactly a “Troll Fueled Patent Litigation Explosion” between 2010 and 2012. Once you take into account the procedural changes brought into effect in 2011 by the AIA and focus on the number of defendants rather the the number of suits it seem that there was a significant troll fueled increase in the rate of patent litigation; it is just that this increase started earlier and proceeded more smoothly than the simple case filing data suggests. I refer to this revised narrative as the Troll Fueled Patent Litigation Inflation.

District Rankings, Copyright Compared to Trademark (2010-2014)

This figure focuses your attention on the outliers, but the general story is that copyright and trademark litigation are highly correlated at a district court level.

District Rankings, Copyright Compared to Trademark (2010-2014)

Regional Variation in Patent Litigation – Evidence of Forum Selling

The popularity of the Eastern District of Texas as a forum for patent litigation is a well-known phenomenon. However, the data and analysis presented in this study provides a new way of looking at the astonishing ascendancy of this district and the problem of form shopping in patent law more generally. The extent of forum shopping in patent law can be seen by comparing the geographic distribution of patent litigation to that of copyright and trademark. This figure illustrates District rank in terms of patent versus a combined copyright and trademark ranking for cases filed between 2010 and 2014.

District Rank in terms of Patent versus Copyright and Trademark Combined (2010-2014)

District Court Ranks for Patent Litigation 1994-2014

This is crazy!

My paper explains how we got here and summarizes the excellent work of Jonas Anderson in a new paper titled ‘Court Competition for Patent Cases, and Daniel Klerman and Greg Reilly in ‘Forum Selling’ each of which go into even more detail.

District Court Ranks for Patent Litigation 1994-2014


The first thing to note about this figure is that, but for the Eastern District of Texas and Delaware, the geographic distribution of patent litigation over the past two decades would look remarkably stable. For most of this period, the Central District of California was the most important venue for patent litigation over the last 21 years, followed by the Northern District of California. The Northern District of Illinois has also ranked consistently somewhere between second and sixth over the same period. This relative stability contrasts markedly with the steady gains made by Delaware and the remarkable ascendancy of the Eastern District of Texas between 1994 and 2014. Notice that, were it not for the Eastern District of Texas, the scale on Figure 11 would range from 10 to 1, rather than 50 to 1. Framed accordingly, the steady ascent of Delaware from 9th in 1994 to 2nd from 2011 to the present day would be more noteworthy. However, the rise of the Eastern District of Texas from literal obscurity—it only saw 8 patent cases in 1994—to preeminence over the same period dwarfs all other changes.

Slides for my presentation on empirical studies of copyright litigation

Empirical Studies of Copyright Litigation. This presentation was part of the conference for the forthcoming Research Handbook – Economics of Intellectual Property Rights –
Volume II Empirical Studies. Northwestern University (August 5, 2015).

I hope to have a draft chapter posted to SSRN soon.

The literature surveyed is summarized below. As far as I know, this is all there is.

  • Barnes, Jeffrey Edward. “Comment: Attorney’s Fee Awards in Federal Copyright Litigation after Fogerty v. Fantasy: Defendants Are Winning Fees More Often, but the New Standard Still Favors Prevailing Plaintiffs.” In 47 UCLA L. Rev. 1381, 2000.
  • Beebe, Barton. “An Empirical Study of the Multifactor Tests for Trademark Infringement”, 94 CALIF. L. REV. 1581, 2006.
  • Beebe, Barton. “An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005”, 156 U. Penn. L. Rev. 549, 2008.
  • Cotropia, Christopher A. and James Gibson. “Copyright’s Topography: An Empirical Study of Copyright Litigation.” 92 Texas Law Review 1981, 2014.
  • Ford, William K. “Judging Expertise in Copyright Law.” 14 J. Intell. Prop. L. 1, 2006.
  • Gerhardt, Deborah R. “Copyright Publication: An Empirical Study.” 87 Notre Dame L. Rev. 135, 2011.
  • Rogers, Eric. “Substantially Unfair: An Empirical Examination of Copyright Substantial Similarity Analysis among the Federal Circuits.” 2013 Mich. St. L. Rev. 893, 2013.
  • Landes, William M. “An Empirical Analysis of Intellectual Property Litigation: Some Preliminary Results.” 41 HOUS. L. REV. 749, 2004.
  • Lippman, Katherine. “The Beginning of the End: Preliminary Results of an Empirical Study of Copyright Substantial Similarity Opinions in the U.S. Circuit Courts”, 2013 Mich. St. L. Rev. 513, 2013.
  • Liu, Jiarui. “Copyright Injunctions After Ebay: An Empirical Study.” 16 Lewis & Clark L. Rev. 215, 2012.
  • Netanel, Neil Weinstock. “Making Sense of Fair Use.” 15 Lewis & Clark L. Rev. 715, 2011.
  • Nimmer, David. “Fairest of Them All and Other Fairy Tales of Fair Use.” 66 LAW & CONTEMP. PROBS. 263, 2003.
  • Priest, George L. & Benjamin Klein. “The Selection of Disputes for Litigation.” 13 J. LEGAL STUD. 1, 1984.
  • Sag, Matthew. “Predicting Fair Use”, 73 Ohio St. L.J. 47, 2012.
  • Sag, Matthew. “Empirical Studies of Copyright Litigation: Nature of Suit Coding 7.” Loyola Univ. Chi. Sch. of Law Pub. Law & Legal Theory, Research Paper No. 2013-017, 2013), available at, 2013.
  • Sag, Matthew. “Copyright Trolling, An Empirical Study.” In 100 Iowa L. Rev. 1105, 2015.
  • Sag, Matthew. “IP Litigation in United States District Courts: 1994 to 2014” Iowa Law Review, Forthcoming. Available at SSRN:, 2016.
  • Samuelson, Pamela. “Unbundling Fair Uses”, 77 Fordham L. Rev. 2537 (2009).

Some thoughts on Fair use, Transformative Use and Non-Expressive Use

Fair use, Transformative Use and Non-Expressive Use


Campbell v. Acuff-Rose and the Future of Digital Technologies, notes on a short presentation at the Fair Use In The Digital Age: The Ongoing Influence of Campbell v. Acuff-Rose’s “Transformative Use Test” Conference, April 17 & 18, 2015, University of Washington School of Law.

Copyright and disintermediation technologies

Copyright policy was hit by an analog wave of disintermediation technology in the post-war era and a digital wave of disintermediation technologies beginning in the 1990s. These successive waves of technology have forced us to reevaluate the foundational assumption of copyright law; that assumption being that any reproduction of the work should be seen as an exchange of value passing from the author (or copyright owner) to the consumer.

Technologies such as the photocopier and the videocassette recorder and then later the personal computer significantly destabilized copyright policy because these inventions, for the first time, placed commercially significant copying technology directly in the hands of large numbers of consumers. This challenge has only been accelerated by digitalization and the Internet. Digitalization allows for perfect reproduction such that the millionth copy of an MP3 file sounds just as good as the first copy.

The implications of the copying that these devices enabled were not clear-cut. In some cases, the new copying technology simply enabled greater flexibility in consumption, in others they generated new copies to be released into the stream of commerce as competitors with the author’s original authorized versions. The Internet has connected billions of people together leading to an outpouring of creativity and user-generativity, but from the perspective of the entertainment industry is also brought people together to undertake a massive scale piracy.

The significant of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)

The Supreme Court in Sony v. Universal[1] had already shown that it was willing to apply fair use in a flexible manner in situations where the use was personal and immaterial to the copyright owner. The significance of the Court’s decision in Campbell[2] was that, by reorienting the fair use doctrine around the concept of transformative use, the Court prepared the way for a flexible consideration of technical acts of reproduction that do not have the usual copyright significance.

Internet search engines, plagiarism detection software, text mining software and other copy-reliant technologies do not read, understand, or enjoy copyrighted works, nor do they deliver these works directly to the public.  They do, however, necessarily copy them in order to process them as grist for the mill, raw materials that feed various algorithms and indices. Campbell arrived just in time to provide a legal framework far more hospitable to copy-reliant technology than had previously existed. Even in its broadest sense, transformative use is not the be all and end all of fair use. At the risk of over-simplification, Sony v. Universal safeguarded the future of the mp3 player, whereas Campbell secured the future of the Internet and reading machines.

Copy-reliant technology and non-expressive use

Some of the most important recent technological fair use cases can be summarized as follows: Copying that occurs as an intermediate technical step in the production of a non-infringing end product is a ‘non-expressive’ use and thus ordinarily constitutes fair use.[3] The main examples of non-expressive use I have in mind are the construction of search engine indices,[4] the operation of plagiarism detection software[5] and, most recently, library digitization to make paper books text-searchable.[6]

To have a coherent concept of fair use, or any particular category of fair use, one needs a coherent concept of copyright. As expressed in the U.S. Constitution, copyright’s motivating purpose is “to promote the Progress of Science and useful Arts.”[7] Ever since the Statute of Anne in 1710, the purpose of Copyright law has been to encourage the creativity of authors and to promote the creation and dissemination of works of authorship. Copyright is not a guarantee of total control; in general, the copyright owner’s rights are limited and defined in reference to the communication of the expressive aspects of the work to the public. This is evident in the idea-expression distinction, the way courts determine whether two works are substantial similar and the focus of fair use cases on expressive substitution. Thus, subsequent authors may not compete with the copyright owner by offering her original expression to the public as a substitute for the copyright owner’s work, but they are free to compete with their own expression of the same facts, concepts and ideas. They are also free to expose, criticize and even vilify the original work. Genuine parodies, critiques and illustrative uses are fair use so long as the copying they partake in is reasonable in light of those purposes.

If public communication and expressive substitution are rightly understood as copyright’s basic organizing principles, then it follows that non-expressive uses — i.e., uses that involve copying, but don’t communicate the expressive aspects of the work to be read or otherwise enjoyed — must be fair use. In fact, they are arguably the purest essence of fair use. Groking the concept of non-expressive use simply involves taking the well understood distinction between expressive and nonexpressive works and making the same distinction in relation to potential acts of infringement.

The legal status of actual copying for nonexpressive uses was not a burning issue before digital technology. Outside the context of reading machines like search engines, plagiarism software and the like, courts have quite reasonably presumed that every copy of an expressive work is for an expressive purpose. But this assumption no longer holds. At a minimum, preserving the functional force of the idea-expression distinction in the digital context requires that copying for purely non-expressive purposes, such as the automated extraction of data, should not be infringing.

Some limits to the non-expressive use framework

Non-expressive use is a sufficient but not necessary condition of fair use. For example, parody is an expressive use, but it is fair use because it does not tend to threaten expressive substation. Even within the realm of recent technology cases, non-expressive use is not the right framework for addressing important man-machine interaction questions such as disability access, also a key issue in the HathiTrust litigation, but it does tie together a number of disparate threads.

The cases which hold that software reverse engineering is fair use are grounded firmly in the idea-expression distinction,[8] but they are not exactly non-expressive use cases for the reasons that follow.[9] The non-expressive use framework is also not the right tool in cases where software is copied in order to access its functionality: after-all, software is primarily functional and its primary (perhaps exclusive) value comes from the function it performs. Software piracy can’t be justified as a non-expressive use, because to do so would defeat the statutory scheme wherein Congress chose to graft computer software protection onto copyright. However, the reverse engineering cases still follow the logic of non-expressive use. In those cases copying to access certain API’s and other unprotectable elements enabled the copyists to either independently recreate that functionality (akin to conveying the same ideas with different expression) or to develop programs or machines that would complement the original software.

Non-expressive use versus transformative use?

The main issue left to resolve in terms of the copy-reliant technology and non-expressive use seems to be one of nomenclature. Is non-expressive use simply a subset of transformative use? Or is it a separate species of fair use with similar implications to that of transformative use.

Non-expressive use, as I have defined and elucidated in a series of law review articles and amicus briefs, is a clear coherent concept that ties a broad set of fair use cases directly to one of copyright’s core principles, the idea-expression distinction. Transformative use, as explained by Pierre Leval and adopted by the Supreme Court is rooted in the constitutional imperative for copyright protection – the creation of new works and the promotion of progress in culture, learning, science and knowledge. But for all that, if transformative use is invoked as an umbrella term, it is often hard to see what holds the category together.

The Campbell Court did not posit transformative use as a unified, exhaustive theory, but it did say that “[a]lthough such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, …”[10] No doubt, when the Supreme Court spoke of transformative use, it had various communicative and expressive uses, such as parody, the right of reply, public comment and criticism in mind. But since Campbell, lower courts have applied the same purposive interpretation of copyright to a broader set of challenges. Campbell was decided in a different technological context and it is true that many of today’s technological fair use issues were entirely unimaginable before the birth of the World Wide Web and our modern era of big data, cloud computing, social media, mobile connectivity and the “Internet of Things”.

Non-expressive use is a useful concept because it provides a way for courts to recognize the legitimacy of copying that is inconsequential in terms of expressive substitution, but does not necessarily lead to the creation of the type of new expression that the Supreme Court had in mind in Campbell. The use of reading machines in digital humanities research is easy to justify, both in terms of the lack of expressive substitution and in the obvious production of meaning, new insights and potentially new and utterly transformative works of authorship. But what of less generative non-expressive uses? For example, in the future a robot might ‘read’ a copyrighted poster on a subway wall advertising a rock concert in Central Park. The robot might then ‘decide’ to change its travel plans in light of the predictable disruption. The acts of ‘reading’ and ‘deciding’ are both simply computational. Even if reading involves making a copy of the work inside the brain of a machine, it seems nonsensical to conclude that the robot was used to infringe copyright. In the age of the printing press, copying a work had clear and obvious implications. Copying was invariably for expressive ends and it was almost always the point of exchange of value between author and reader. The copyright implications of copying are much more contingent in the digital age.

There is much clarity to be gained by talking directly in terms of non-expressive use rather than relying on transformative as broad umbrella for a range of expressive and non-expressive fair uses. Such clear thinking would hopefully ease the anxieties of the entertainment industry that still fears that fair use is simply a stalking horse for dismantling copyright. Nonetheless, it would not be surprising if courts were more comfortable sticking with the language of transformativeness that Judge Pierre Leval gave us in “Toward a Fair Use Standard“,[11] and the Supreme Court adopted in Campbell.

This is a sketch of some ideas, no doubt revisions will follow after this exciting conference.

Related Publications:

Matthew Sag, Copyright and Copy-Reliant Technology 103 Northwestern University Law Review 1607–1682 (2009)

Matthew Sag, Orphan Works as Grist for the Data Mill, 27 Berkeley Technology Law Journal 1503–1550 (2012)

Matthew Jockers, Matthew Sag & Jason Schultz, Digital Archives: Don’t Let Copyright Block Data Mining, 490 Nature 29-30 (October 4, 2012)

Somewhat Related Publications:

Peter DiCola & Matthew Sag, An Information-Gathering Approach to Copyright Policy, 34 Cardozo Law Review 173–247 (2012)

Matthew Sag, Predicting Fair Use 73 Ohio State Law Journal 47–91 (2012)

Matthew Sag, The Pre-History of Fair Use 76 Brooklyn Law Review 1371–1412 (2011)


[1] Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

[2] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

[3] See generally, Matthew Sag, Copyright and Copy-Reliant Technology 103 Northwestern University Law Review 1607–1682 (2009)

[4] There is no case addressing the legality of the process of making a text-based search index (as opposed to caching or display of search results), but the proposition naturally flows from Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) and Perfect 10, Inc. v., Inc., 508 F.3d 1146 (9th Cir. 2007) and is a necessary implication of Authors Guild, Inc. v. Hathitrust, Court of Appeals, 2nd Circuit 2014 and Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013)

[5] A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009).

[6] Authors Guild, Inc. v. Hathitrust, Court of Appeals, 2nd Circuit 2014; Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013). See also Matthew Sag, Orphan Works as Grist for the Data Mill, 27 Berkeley Technology Law Journal 1503–1550 (2012); Matthew Jockers, Matthew Sag & Jason Schultz, Digital Archives: Don’t Let Copyright Block Data Mining, 490 Nature 29-30 (October 4, 2012).

[7] U.S. Const. art. I, § 8, cl. 8.

[8] Sega Enter. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992); Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 606 (9th Cir. 2000).

[9] These reasons are more fully elaborated in Matthew Sag, Copyright and Copy-Reliant Technology 103 Northwestern University Law Review 1607–1682 (2009).

[10] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)(citation omitted).

[11] 103 Harv. L. Rev. 1105 (1990)

Cited in Kimble v. Marvel supreme court brief re patent misuse

Someone told me that I was cited in the respondent’s brief to the Supreme Court in Kimble v. Marvel Enterprises, Inc.

Indeed, patent-license negotiations may often fail to approximate the conditions presumed by the classical economic model of efficient bargaining. See, e.g., Sag & Rohde, Patent Reform and Differential Impact, 8 Minn. J.L. Sci. & Tech. 1, 36-37 (2007) (patent holder may have asymmetrically better information about the scope and validity of the patent) ~ Kimble v. Marvel Enterprises, Inc., 2015 WL 881759 (U.S.), 45 (U.S.,2015)

In Brulotte v. Thys Co. the Supreme Court ruled that, when patents are sold in return for a royalty payment, the purchaser was not obligated to continue these payments beyond the expiration date of the patents because doing so would over-compensate the seller of the patent and improperly extend the patent monopoly beyond the intended time limit.

In other words, it is patent misuse to try to extract  royalties for use of the patent post-term. That rule is now being challenged. For a summary of the issue in the case, see

New empirical study of IP litigation in US District Courts

IP Litigation in United States District Courts: 1994 to 2014

I have just posted a new empirical study of IP litigation in US District Courts to SSRN. At the moment it has a very boring title: “IP Litigation in United States District Courts: 1994 to 2014”, but I am open to suggestions. [download it here]

What is this article about?

The article undertakes a broad-based empirical review of Intellectual Property (IP) litigation in United States federal district courts from 1994 to 2014.

Why would anyone want to read it?

Unlike the prior literature, this study analyzes federal copyright, patent and trademark litigation trends as a unified whole. It undertakes a systematic analysis of more than 190,000 individual case filings and examines the subject matter, geographical and temporal variation within federal IP litigation over the last two decades.

What is the payoff?

Well, for a start, it is full of cool graphs, figures and tables!

But if you interested in substance, I think that the article makes a number of significant contributions to our understanding of IP litigation.

  • It analyzes time trends in copyright, patent and trademark litigation filings at the national level, but it does much more than simply count the number of cases; it explores the meaning behind those numbers and shows how in some cases the observable headline data can be positively misleading.
  • Exploring the changes in the distribution of IP litigation over time and their regional distribution leads to a number of significant insights (see below).
  • Just as importantly, the article  frames the context for more fine-grained empirical studies in the future. The results demonstrate the dangers of basing empirical conclusions on narrow slices of data from selected regions or selected time periods.

Notable findings

  • The rise of Internet filesharing has transformed copyright litigation in the United States.

More specifically, to the extent that the rate of copyright litigation has increased over the last two decades, that increase appears to be entirely attributable to lawsuits against anonymous Internet file sharers. These lawsuits largely took place in two distinct phases: the first phase largely consisted of lawsuits seeking to discourage illegal downloading; the second phase largely consists lawsuits seeking to monetize online infringement.

  • In relation to patent litigation, the apparent patent litigation explosion between 2010 and 2012 is something of a mirage

However there has been a sustained patent litigation inflation over the last two decades the extent of which has not been fully recognized until now. The reason why this steady inflation was mistaken for a sudden explosion was that the true extent of patent litigation was disguised by permissive joinder.

  • The data and analysis presented in this study provides a new way of looking at the astonishing ascendancy of this district and the problem of form shopping in patent law more generally.

 In relation to the geography of IP litigation, it appears that filings in copyright, patent and trademark litigation are generally highly correlated. The major exceptions to that correlation are driven by short term idiosyncratic events in copyright and trademark litigation—these are discussed in detail—and by the dumbfounding willingness of the Eastern district Texas to engage in forum selling to attract patent litigation. The popularity of the Eastern District of Texas as a forum for patent litigation is a well-known phenomenon.


“Vaccines lead to shark attacks.” I said it, it must be true.

“Vaccines lead to shark attacks.” I said it, it must be true. Scientists and the government say it is not true, therefore it must be true.

The anti-vaccine crowd are killing and maiming other people’s helpless children who can’t get the measles vaccine because of *real* medical conditions. They are also victimizing their own defenseless children as surely as anyone who beats their kids with switch. The notion that vaccines cause autism has no scientific foundation. It makes as much sense as the fear that vaccines lead to shark attacks. I worry that our habit of tolerating people’s sincerely held, but utterly fantastical, religious beliefs has made us defenseless as a society to this secular lunacy. We have slipped from the admirable stance that everyone is entitled to their own opinion to a popular culture where people think they are entitled to their own facts.

We have no herd immunity to bullshit, and now in California we have no herd immunity to Measles. A disease we thought we had defeated for good in 2000, or so we thought.

Is IP property? An outline of the debate.

Is IP Property?

The debate about whether intellectual property is really property tends to proceed along the following lines.

Pro-property advocates observe that as a matter of definition exclusive and tradable rights should be thought of as property.

Anti-property advocates note that IP rights are limited in scope and duration and subject to a number of important public interest caveats.

Pro-property advocates respond with fascinating descriptions of the law relating to nuisance, easements, riparian rights and ancient Roman laws which hold the oceans and navigable waterways in public trust to show that, for every conceivable feature of IP rights that supposedly distinguishes them from property, there is in fact a property law antecedent.

Anti-property advocates respond by saying “but that is not what you mean when you say IP is property. You mean control that is absolute, unyielding and perpetual.”

Both sides then declare victory in the debate and revert to their initial positions.