Richard Stallman will be joining us at Loyola Chicago to discuss Patents, Innovation and the Freedom to Use Ideas. Should be interesting.

The Loyola law Journal has organized another great conference.

This one day conference will provide a forum for nationally recognized scholars and judges to discuss the trade-off between two interests of the public: the interest in development of new ideas and the interest in freedom to use ideas. The patent system is intended to serve the former, but imposes a cost on the latter. More specifically, the Conference will explore whether the added innovation achieved by the patent system justifies its cost to society, whether it operates within the Constitution’s requirements, whether improvements can be made, and whether a different system or no system at all might be preferred.

Richard Stallman will be giving a special address on “Questioning the Assumptions of the Patent System”

April 11, 2013.

More details are available at



Symposium on Copyright Law and Gray Market Goods, John Wiley & Sons v. Kirtsaeng

Symposium on Copyright Law and Gray Market Goods, John Wiley & Sons v. Kirtsaeng

The DePaul Journal of Art, Technology & Intellectual Property Law is sponsoring a symposium on Copyright Law and Gray Market Goods, John Wiley & Sons v. Kirtsaeng on April 8, 2013 (12 – 3 p.m.)

In John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210 (2d Cir. 2011), a publishing company brought an action against a defendant who was importing and selling textbooks within the United States. The defendant had relatives in Thailand purchase foreign editions of textbooks that were legally printed abroad. The relatives would send the textbooks to the defendant and the defendant would sell them for a profit. On appeal, the defendant argued that he should have been allowed to put forth a first sale defense.

The 2nd Circuit affirmed the district court’s rejection of a first sale defense based on a plain language interpretation of 17 USC § 602(a) and 17 U.S.C. § 109(a) and some dicta in Quality King Distributors, Inc. v. L’anza Research International, Inc., 523 U.S. 135 (1998). (Quality King involved goods that were manufactured within the United States, sold abroad and then re-imported). The Supreme Court granted certiorari. Oral arguments were heard on Oct. 29, 2012.

On March 19, 2013, Justice Breyer, writing for a majority of six, emphatically rejected the publisher’s control over the importation of legally manufactured “gray-market” products. The Court held that the “first sale” doctrine, which allows the owner of a copyrighted work to sell or otherwise dispose of that copy as he wishes, applies to copies of a copyrighted work lawfully made abroad. Justice Kagan filed a concurring opinion in which Justice Alito joined. Justice Ginsburg filed a dissenting opinion in which Justice Kennedy joined, and in which Justice Scalia joined except as to Parts III and V–B–1.

The slip opinion is available here.


Professor Tyler Ochoa, Santa Clara University College of Law

Kevin Tottis, Principal, Law Offices of Kevin Tottis

Professor Matthew Sag, Loyola University School of Law

Robert Paul, Director of Business Operations, Compass Lexecon

For registration pricing and event details, please visit:

I am the University of Technology Sydney today to make friends with the robots and talk about copyright

I am a guest this morning at the University of Technology Sydney’s “Innovation and Technology Research Laboratory”, better known within UTS as The Magic Lab. The Magic Lab has a broad spectrum of research interests including robot soccer, humanoid robotics, belief revision, virtual worlds, cognitive marketing, collaboration, risk management, commonsense reasoning and technology-driven innovation in addition to strategic, social and legal aspects of innovation.

As part of my visit today I will be presenting to the Engineering and information technology department as part of their Leadership in Innovation Seminar series. My presentation will address the interaction of copyright law and digital technology.

Your TV is watching you – Where does it end?

News reports (extremetech) indicate that Microsoft has filed for a patent whereby

“The users consuming the content on a display device are monitored so that if the number of user-views licensed is exceeded, remedial action may be taken.”

No doubt George Orwell’s Telescreen (from the novel 1984) will be cited as prior art in opposition. The Telescreen allowed the Party to keep its subjects under constant surveillance thereby encouraging a climate of self surveillance. Replace ‘the Party’ with MPAA and you pretty much have it.

HT: Francis K – who brought this story to my attention.

An Open Letter to Chicago’s Department of Business Affairs & Consumer Protection (BACP)

Dear Sirs,

I write to express my profound dismay that Chicago is considering regulating Uber out of existence. Uber is an middleman that connects limo drivers to customers in a way that is convenient, flexible and safe. The Uber rating system keeps limo drivers on their best behavior: this benefits riders, but also the wider community because safe driving saves lives!

Chicago taxis are a disgrace to our great city. I realize that the city tries to monitor drivers but it does not have the resources to pursue anything but the gravest complaints. I walk around the city every day, either with my dog or to and from my office. Almost every day without exception I see taxis driving unsafely  — running lights, not yielding to pedestrians before turning, straddling lanes, changing lanes without indicating, stopping abruptly, etc.

The mission of the BACP is to ensures a fair and vibrant market place for both businesses and consumers. Your mission is not to simply protect incumbent taxi companies from competition. If Uber is a threat, it is a threat to raise standards! One of the great things about Uber is that it empowers the passenger to monitor the driver’s performance. Drivers know this and in my experience, they lift their game accordingly. Uber is efficient. Uber is good for drivers. Uber empowers consumers. Uber saves lives. Please don’t make the mistake of protecting the status quo at the expense of consumers and competition.

Please Remove the No Measured Rates Provision.


Matthew Sag
(in my personal capacity)

Associate Professor, Loyola University Chicago School of Law
Associate Director for Intellectual Property of the Institute for Consumer Antitrust Studies
Download my research at
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My website is

Google Book, Settled and Unsettled.

According to Reuters, Google and the Association of American Publishers (AAP) have reached a settlement in the long-running Google Book Search Litigation. Details remain sketchy. The settlement does not affect Google’s current litigation with the Authors Guild.

Nature has just published a comment piece by Matthew Jockers, Jason Schultz myself explaining why humanities scholars filed amicus briefs in the Authors Guild v. Google and Authors Guild v. HathiTrust lawsuits. These suits are still very much alive and it is not clear that the Authors Guild has the same incentives to settle as the AAP did.

Additional Links:

  • Joint Press Release
  • Techdirt comment that this is exactly what Google offered 7 years ago. “Basically, this settlement is AAP admitting that the entire lawsuit was a waste of time and money.”
  • James Grimmelman’s summary. “the settlement does not change the situation on the ground in any significant way”
  • Andrew Albanese, Publishers Weekly quotes AAP president Tom Allen saying “[we] out an arrangement that doesn’t resolve the legal issues. We agree to disagree on those, but as a practical matter, it does resolve our differences with Google.”


The origins of fair use

I have just added a page to this website devoted to the history of fair use. As I note in my article The Pre-History of Fair Use 76 Brooklyn Law Review 1371-1412 (2011), fair use does not begin with early American cases such as Folsom v. Marsh in 1841, as many accounts assume. The fair use doctrine began over a century earlier when English courts were considering issues of republishing and abridgment — the remix culture of the 1700′s.

My main points are

  • Copyright has always involved some balancing between authors rights and users rights. Fair use is part of the legal tradition of every country that traces its copyright law back to the Statute of Anne.
  • Fair use did not take away from authors rights, it made it possible for the courts to take a purposive reading of the copyright act that actually expanded authors rights.