Drake IP Scholars, Panel 3

Panel 3: Pedagogy in Intellectual Property Law

Christina Bohannan, University of Iowa College of Law

Bohannan teaches mainly copyright. First: the need to use props. Students love it and it really helps them understand. Arnstein v. Porter: the students are bewildered when they hear the actual music. Second: she’s tried to move away from spending lots of time on particular cases, and instead doing problem sets: is X infringing? Substantial similarity is hard to extrapolate from case to case. Third: Trying to get a little transactional stuff in. Casebooks often omit it, and that’s a mistake.

More general point: Teach more by teaching less. She teaches torts, so she thinks of copyright as a tort. Foundational principles from the common law can be really helpful in thinking through IP problems; common law baselines are of increasing importance as IP expands as a way to measure how far we’ve come and whether that’s a good idea. Seminars can be good ways to explore these issues, or other related ones like competition law.

Dan R. Cahoy, Smeal College of Business, Penn State University

Teaches IP at a business school; a patent lawyer by training. Several other business schools teach IP in business school or even at the undergraduate level. The students aren’t looking for how to give advice to clients, but are looking for answers with an applied perspective. It’s common to have students who are business owners. You have to help them go from simple, quick answers to analysis.

Students look at things differently. One student’s reactions “bad patents” are patents that don’t work; patents that don’t work well mis-attract investment.

Lack of formal legal reasoning: Students look for quantitative answers, and don’t expect balancing tests. It’s a negotiation with students, but valuable because that’s really how law will work in their lives.

Because they encounter so many fields in business school, students want to see interdisciplinarity: economics, management theory.

His strategies: focus on large concepts, not exceptions. Teach them to recognize when they’ll need a lawyer: predicting, planning and avoiding problems. He uses a case approach, but focusing on the parties: why they got involved in the dispute, how they could have avoided it. Don’t spend as much time on alternate arguments or alternate versions of law.

Props work wonders with business students and undergraduates too. Shepard Fairey was a great teaching opportunity, as with the dispute over Jessica Seinfeld’s cookbook. He likes to use current cases. And he likes typical cases rather than the most extreme: Bilski is an extreme case, so he complements it with a typical patent infringement case.

Why should you care? Law and business schools should be collaborating more; business schools are aware of the importance of IP.

John T. Cross, University of Louisville School of Law

Incorporating competition law into your IP courses: Most applicable to a survey course. We tend to focus on IP as innovation policy. He tries to weave in three different policies, and even assigns a couple of students to focus on each policy and bring it in. Policies: advancement of knowledge (dissemination); innovation; and competition.

Basic idea: competition is generally free and nontortious, and competition includes copying. IP is a limit on competition by copying. TM is taught as consumer protection; it’s easiest to start talking about competition in TM. Dilution, initial interest confusion seem puzzling, but a case can be made from competition law—to the extent a mark sends a strong signal, then perhaps as a matter of competition law denying consumers a strong signal has anticompetitive effects.

In terms of copyright fair use: we can talk about users’ rights and limits on property rights, but competition policy offers new perspective on things like transformativeness. Copyright owner is protected from some kinds of competition: expression, though not ideas. Fair use may be use in other markets. You can also talk about how competition principles ought to limit IP rights.

Doris E. Long, John Marshall Law School

She teaches a wide range of students, some foreign students with limited IP background, some with extensive background; she also teaches “Patents for Poets,” for people who won’t be taking the patent bar. Patent folk take her TM and copyright classes and just want to get the rules and the right answers; they need to be slowed down.

She does a lot of business modeling issues: specific problems for businesses. Getting students to walk away from the computer and get involved in an activity that is computerless. Students in International IP get assigned to head the IP policy in a foreign country; they have to think with someone else’s goals. And they do a treaty negotiation; sometimes they have to draft a position paper with likeminded representatives. They model real life and get a sense of the difficulty of advising clients and coming up with good treaties. This year: debated whether software protection should be patent, copyright, or sui generis. Limits: they can’t lie. They can’t share what’s on their own fact sheet about their interests. That gives them a sense of what it’s like to have limited information in a real negotiation.

Students don’t like to leave computers, or deal with people they don’t know, but they come out with a better appreciation of practice and why they need to learn the rules and the exceptions.

Michael J. Madison, University of Pittsburgh School of Law

He was asked to put together a teaching portfolio (more common outside law school). Had to identify a philosophy of teaching—his advice is to have one, both at the mission statement level and at the level of applying the philosophy to each class. What you expect students to learn, how you want them to behave outside the class, how you’re going to assess them, etc. He has banned laptops and other computing devices; he recommends this as a way of getting people to look at you instead of looking down.

Copyright: most casebooks start with 30+ pages of narrative on history and theory and policy, then start walking you through the elements. A dry way to begin, though an essential foundation. So: he assigned that as outside background reading and told the students in the syllabus that they’d be expected to know it throughout the semester. Then he moved fair use to the front of the course. Fair use is the one thing that most students, even without exposure to IP, have some intuitive familiarity with, and it’s fun. Get all of the major themes of copyright on the table, at least conceptually. Allows you to plant the seeds, and fill in the details down the road. There’s no natural order of materials you have to follow, whether inherent in the field or because the casebook has an order. Students seemed to enjoy it a lot.

Role of legal theory: Everyone needs to decide how to balance doctrine and theory. Most of his students want to know the facts and law, then go home. Madison is interested in legal theory and policy, and they’re close to the surface of everything we do. He talks about them all the time, which is not what all profs do. He lets the students wander around with the black letter law on their own, and in class they work through examples and talk explicitly about the intersection between doctrinal disputes and the theoretical engines driving those disputes. And he teaches a seminar that is all IP legal theory. This approach is not directly valuable to students, but is revelatory in terms of understanding the legal system: sustained exposure to legal theory helps them map theory back onto other things they will be doing, and gives them a more flexible toolset.

Mark P. McKenna, University of Notre Dame Law School

This community of scholars takes teaching very seriously, which is great for juniors. Big theme: you have to want to be a good teacher, and that goes a long way to making you one. Agrees with Madison; would phrase it as: think hard about what your goals for the class are. The goals may differ from class to class. In torts, his goals are less doctrinal than in other classes. Is your goal to teach them to read statutes? To understand doctrine? To have a good theoretical background? You can’t have too many of them, because they’ll conflict. You will do elements of other things in the class, but having goals helps you decide what takes precedence and what you plan to evaluate at the end of the course. You should then be able to write your exam to test the same thing.

When he teaches the IP survey class: At first, he felt pressure to cover so much. Then he realized that he could change: he teaches a narrow slice of each major area, but focusing on where they intersect and interact, because you can’t do that in any of the other classes. So he’s less concerned with doctrine and more with concepts.

You need to use props! And current issues. Students are amazed that you know current cultural references, and that makes you much cooler. Rather than starting with theory, he starts every class with some current case/excerpt and then they talk about it, forcing out the theory. Then they start to learn the labels for the things they’ve already said. They see the current issues and they hook into the concepts more easily.

Tasking students with particular responsibilities: trying to take advantage of commitment bias. If you tell a student in advance, s/he gets invested in the position. Tell them to prepare to argue the case from one side’s perspective. Rather than one exam, can do three writing assignments—does this in the survey class. In other classes, gives groups of students assignments starting with a problem (Harry Potter Lexicon) and at the end of a syllabus chunk the students lead the class in discussion of the problem.

Connections to other parts of the curriculum: encourage students not to silo themselves. McKenna worked at an IP boutique, and yet for two years all he did was litigate state court counterclaims. If you only study IP, you won’t do well in practice. In copyright, students need to know Erie—why isn’t this just federal common law? They don’t like it, but it’s good for them.

Sharon K. Sandeen, Hamline University School of Law

Learning outcomes assessment used to improve teaching. Law schools outside the US are further on the curve on this (and law schools in the US are behind the higher ed curve). Department of Education has been strongly encouraging the ABA to improve its accreditation of law schools and to consider standards other than bar passage and employment statistics. The ABA created a committee looking into changing the standards, which is likely to happen in a couple of years.

Key: tell the students what your goals and objectives are. We try in our syllabi, but we don’t necessarily do a good job. Start with a verb: at the conclusion of this course, students will be able to: articulate, identify, draft, demonstrate. Then you have a list of things you can test. Students asking what the exam will feature can be pointed at the objectives. So, for her international course, where she doesn’t know the laws of every country, the goals are for students to understand the process, and be able to figure out what a country’s law is, what TRIPs has to say about the issue, whether the country complies with TRIPs, etc.

Our assessment tools: the summative exam. Really not sufficient in terms of adult learning theory. We need earlier assessments and different ways of seeing how our students are progressing. We need to change grading to reward people for where they end up, not where they start.

Rebecca Tushnet, Georgetown University Law Center

I suspect I’m here as a booster. So I will boost. There are multiple online resources for professors, really in their infancy. CALI: nice to have little segments on different parts of courses where students can test themselves; student reaction for TM in particular has been quite positive. Other moves—Collins and Skover on the future of the legal coursebook.

The Georgetown IP Teaching Resources database needs you! Any professor with a guest password can upload as well as download. You can put your name in the “comments” field to ensure you get credit. We in the IP academy talk a lot about the benefits of distributed production. Here’s an example of a system where we can provide a lot of value to other teachers just by uploading stuff we already use in class. Please consider doing so!

Side note: I’m really interested in practices of teaching with PowerPoint. Are there successful uses that include lots of words? I try not to have words unless I can’t help it.

Deven Desai: teaching with complaints—does it work?

Jason Mazzone: Moderated a panel at the Copyright Society on fair use, with high-powered copyright lawyers and advocates (Wendy Seltzer). There was a large division between the academy and practitioners. The lawyers in the room were concerned with why law profs hate copyright and teach their students that it’s broken.

Robert Heverly: Disappointed to find outcomes assessment catching on, because he finds it pro forma and very different from how he thinks.

Gibbons: UCLA’s Music Copyright Infringement project is very good. And many people post their PowerPoints on the web. Here’s a strategy: take pictures with your cellphone camera every time you see an issue.

McKenna: And ask students to do the same!

Vetter: There’s a difference between group projects and the highly immersive Harvard case method. Group stuff was a failure for him for the first few years; people have told him you need to make it at least 20% of the grade for it to matter. Are these replicable in a law school environment?

Sandeen: No Child Left Behind is a really bad implementation of a really good idea; one of the problems with outcomes assessement is that there are a lot of poor implementations. But we have the benefit of 25 years in higher ed; we can do better.

Cahoy: The business school culture is different; they expect to be able to do group assignments and resist individual responsibility, because they don’t think they’ll have to work in isolation in the business world.

McKenna: Group exercises for the sake of group exercises won’t work. If you simulate practice, that works productively. Give them a problem and assign them to a team that has a practice-like goal. On Desai’s question: he sometimes uses pleadings, but it’s hard. Pleadings capture everything you do in class, and so it’s hard to focus on the part you’re working on. You may be able to use one as a case study that holds the class together—use it through the semester, instead of using a bunch of different ones.

Madison: He’s used pleadings to illustrate intersections between IP domains. You may find cases where lawyers, perhaps deliberately, haven’t delineated copyright, TM, and right of publicity—uses pleadings for the Naked Cowboy case and the Guitar Hero/Romantics cases, showing how lawyers blur boundaries (sometimes deliberately).

Long: Her exercises are designed to replicate a real-world example: post an entire complaint and direct students to the part that needs discussion. She has a horror of group projects because of free-riding, but does think that law school is too individualistic and it’s a collaborative profession. She also thinks props—things you can touch—are very important, over and above pictures. Passing around objects really engages students.

Madison: Ford’s A Time to Heal is his best prop: it’s a really thick book, which makes students think differently about the Nation decision.

Bohannon: Goodnight Bush is another good prop, especially with the “explanation” in the back about why they chose Goodnight Moon as the basis of the parody. On another note, she thinks drafting a complaint can be a really good course capstone.

McKenna: We get the real-world criticism all the time. But to do the stuff they would do in practice presumes they know things they don’t know yet. (Bohannon: And takes forever!) Draft a complaint? They could draft a jurisdiction section, maybe.

Madison: re why practicing lawyers think we’re extremists: It’s Tony Falzone! Madison respects Falzone a lot for acting aggressively to assert fair use claims (lawsuit on James Joyce scholarship, Harry Potter Lexicon, declaratory judgment for Shepard Fairey). It’s very disconcerting for standard copyright owners’ lawyers to see someone aggressively bringing declaratory judgments, and it’s coming out of Stanford.