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 http://ssrn.com/abstract=2330256, 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: http://ssrn.com/abstract=2570803, 2016.
• Samuelson, Pamela. “Unbundling Fair Uses”, 77 Fordham L. Rev. 2537 (2009).

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 http://www.oyez.org/cases/2010-2019/2014/2014_13_720

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.

Four Internet Fables:

• The internet will destroy big companies.
• On the internet nobody knows you’re a dog.
• The internet will eliminate middlemen.
• The Internet will make the world flat/spells the “death of distance”.

For more, see http://www.economist.com/news/business/21625801-forecasting-internets-impact-business-proving-hard-pointers-future?frsc=dg%7Cc

Copyright Lawsuits Filed in U.S. Federal Courts 2001 – 2014

This graphs is from my forthcoming article, Copyright Trolling, An Empirical Study. The graph illustrates the effect of two separate waves of John Doe litigation. The first wave was the recording industry’s battle with filesharing technology from 2004 through 2008. The second wave began in 2010 and continues through to the present and is dominated to a remarkable degree by lawsuits relating to pornography.

There is an article in the New Yorker Online today about this phenomenon with a a closeup view of one the major plaintiffs, Malibu Media, see THE BIGGEST FILER OF COPYRIGHT LAWSUITS? THIS EROTICA WEB SITE, BY GABE FRIEDMAN . Well worth a read.

In a post on Friday I mentioned that in 2012, businesses and individuals targeted by patent aggregators and patent holding companies accounted for fifty-six percent of all patent defendants. That number should actually be 37.8% of all patent defendants. 

There are estimates of even higher numbers, see Colleen Chien, Patent Trolls by the Numbers reporting RPX’s estimate that  PAEs initiated 62% of all patent litigation suits in 2012. However, it is not exactly clear how RPX determines who is and is not a patent troll. Also RPX is in the business of providing “patent risk management services”, so it is not exactly a disinterested bystander in the patent troll debate.

Due to the level of interest in Garcia v. Google, the Ninth Circuit has a dedicated page providing information and key court documents to the public.

I have listed the Amicus briefs along with very cursory descriptions below. The briefs are all quite short.

Internet Law Professors — addressing the implications of the Court’s decision for Section 230 of the Communications Decency Act.  Section 230 is vital to the health of e-commerce and web 2.0 businesses, it provides the legal foundation for many of the most popular websites that enable users to communicate with each other or the world at large.  The panel’s broad interpretation of copyright law undermines Section 230 immunity without even expressly considering it. * I am one of the Amici for this brief.

Professors of Intellectual Property Law — arguing that the Court’s opinion misinterprets the baseline requirements for copyrightability. ** This is the brief to read for students of copyright law.

Adobe Systems, et al. It is not surprising that eBay, Facebook, Gawker, Kickstarter, Pinterest, Tumblr, Twitter, and Yahoo!  would feel strongly about this case. These amici argue that the Court’s decision and order places too much responsibility on service providers to monitor their services and denies the public’s interest in free expression and access to information. They also argue that the Court’s order is unworkable and that the ruling poses a serious threat to online service providers’ businesses.

Netflix, Inc. — arguing that that the ruling creates a new species of copyright and risks wreaking havoc with established copyright and business rules on which third party distributors, such as Netflix, depend.

International Documentary Ass’n — arguing that the Court’s opinion has created uncertainty as to several fundamental concepts that are essential to modern filmmaking.

Floor64 (publisher of Techdirt.com) & Organization for Transformative Works —arguing that the Court’s decision undermines Congress’s goal of fostering online speech by effectively stripping intermediaries of the statutory protection they depend on to deliver it — i.e. the safe harbors created by the § 230 of the Communications Decency Act and the Digital Millennium Copyright Act (17 U.S.C. § 512).)

California Broadcasters — arguing that a finding that individual performances within films and television programs may be entitled to copyright protection creates uncertainly for entertainment media creators and distributors.

News Organizations — arguing that the Court’s decision did not properly consider important First Amendment interests and that it poses serious risk to news organizations that extend far beyond the unique facts of the case at hand.

Electronic Frontier Foundation, et al. — framing the issues in Constitutional terms and addressing the standard for preliminary injunctions.

Public Citizen Litigation Group — focusing on the correct standard for issuing an injunction restraining speech.

This amicus brief was written by David Post and James Grimmelmann on behalf of 36 law professors in the pending case of ABC v Aereo, now before the Supreme Court (oral argument set for April 22, 2014).