IPSC, Second Plenary Session: Clinical Perspectives on IP

Julie Ahrens, Jack Lerner, Victoria Phillips, and Jennifer Urban; moderated by David Morrison

David Morrison: his clinic represented over 30 film projects—contracts, IP license and sales, advice to filmmakers on clearance issues.  Great opportunity for students to gain skills and experience associated with film—copyright, licensing, and TM to some extent.  There are days in which we’re essentially a small business clinic for films; one piece of a larger puzzle. 

Victoria Phillips: started IP clinic at AU in 2001.  Can feel like a bad fit in clinical and IP world: rare to get to talk about both at once.  Curricular reform is upon us, and the buzzword is experiential.  It’s been building for a while.  Early model of clinics: direct service, emerging out of civil rights movement.  Different substantive areas came onto the scene—environmental, int’l human rights—more impact litigation/public policy focus. Third wave: substantive areas like IP are merging with experiential component, with the support of doctrinal faculty, which is what makes our clinics unique.  IP clinicians have occasionally felt excluded by other clinicians as capitalist tools, but now there’s a real movement for IP clinics around the country, running the gamut—tech, arts & entertainment, strict IP.  It’s always a tension in clinical education—some are more mechanics of lawyering, and some are more impact litigation/social justice.  It’s a powerful way to teach students real issues in IP policies and practice, whether it’s people seeking rights to people cramped by existing IP regimes.

Jennifer Urban: Different kinds of work.  Policy work: had students write model legislation for Public Knowledge—white papers considering reforms and explaining choices.  Now useful as Copyright Office contemplates actual copyright reform.  Connects technical expertise to legal problems/scholarship: regulatory proceeding for California Pub. Util. Comm’n regulating smart meters/smart grid—brought in technical experts to help understand the privacy implications of the rich information flows from these devices.

Phillips: Harjo seemed to hit the sweet spot of social justice and IP, so it was something we were excited to take on. Synergy of scholarship and doctrinal work, and the clinic being able to get a connection with a case read in classes. We did a white paper for her at a National Museum of the American Indian conference, and are going to spin it out for Congress—multifront lawyering beyond the TM Office.

Jack Lerner: Cross-clinic collaboration and collaboration with experts in the field/doctrinal faculty: the DMCA rulemaking process.  Began in 2008 with att’y for documentary filmmakers seeking help getting an exemption.  Sought & achieved the exemption for which we applied (in 2010) and had to apply again in 2011.  Prepped and briefed 14 witnesses; students testified; followup letters; they did all the work themselves, supervised by Lerner. Huge learning curve—you don’t just need to learn the law, but also the technology.  Students called it lifechanging and career-altering.  Exemption was incredibly complicated and it took us months to figure out how to train a client or explain how to use the exemption to a layperson; put together a 45-minute tutorial as part of the IDA’s materials. Students wrote and presented the tutorial.  Great way to get involved in documentary community, and to get jobs. Students develop deep appreciation for how to bring in the technology: you have to understand your client’s business, technology, artistic technique.  Also deeply informed by writing of people like Tony Reese and Fred von Lohmann in interpreting the convoluted language of 1201.

Urban: many of us have collaborated across the DMCA space because they’re difficult and meaty projects.  Big learning curve: they’re learning tech, research, theory, doctrine, and how to translate it to the form required for the representation.  Intense experience. 

Julie Ahrens: litigation!  Larry Lessig called fair use the right to hire a lawyer; if we have people who can do pro bono representation we can develop the law and make precedent robust/more reliable.  We did Golan in the SCt.  Much amicus work.

Urban: direct litigation can be difficult in a clinic because of resource constraints.  Normally we either need to partner with someone or find a case, but you can get the evidentiary experience and work on policy through quasi-litigation proceedings like patent reexaminations: EFF as the client, seeking reexamination of a troll/NPE patent telling municipalities that when they install GPS on buses/trains and have apps telling people when the buses will come, that infringes. Students researched the law and the prior art.  Had some claims disallowed, though not clear it dissuaded the claimant.

Phillips: small entities who get into trouble when they seek TM registration—quasi-litigation, but also wonderful opportunities to teach students about larger policy issues.  Wrestle with public interest dimensions of all their cases. Normally TM would be withdrawn after opposition; clinic gives ability to persist.

Lerner: international work as well. Doctrine and practice are closely related; clients don’t just want to know what the law says or what comparative law is but also the scholarship—there is lack of clarity over things like the three-step test in Berne.  Opportunity to bridge theory, policy and practice for students. Huge need for pro bono work in int’l arena; someone in developing world or NGO may not have access to scholarship from other jurisdictions.  Chilean Ministry of Education as client: surveyed copyright limitations and exceptions for APEC, group of 22 member economies around the Pacific Rim. Helped students understand immense heterogeneity of exceptions/limitations.  Survey was apparently discussed in recent visually impaired treaty negotiation.

Urban: a project for national library organizations translating and explaining fair use for them because of the burgeoning discussion of flexible exceptions/limitations around the world. US based policymakers and int’l policymakers are hungry for help.

Phillips: dispels the myths of 1L: that law is solitary and that facts are static.  Factual development for DMCA exemption: students had to find out, how do film profs use clips? Students often have a hard time factfinding.

Urban: what about counseling? Valuable for students: nitty gritty of client’s case.  Help students see client’s situation on the ground, and then translate that using tools from scholarship and policy world: Best Practices on Fair Use.

Phillips: cautionary tale. Wrote a piece about quilters of Gee’s Bend, Alabama, and the quilters found her. Now we’re developing a client relationship to teach them about what’s possible under the IP regimes.

Lerner: we now write letters based on Best Practices to let filmmakers get insurance. And these have very much changed filmmaking from before the Best Practices (maybe getting back to how it was in the 80s, but that counts as progress!).  Jim Gibson’s gatekeepers—that informed our thinking.

Urban: fair use for poets (no, not a joke).  Best Practices for poetry as one project.  Robert Pinsky wanted to do a site on favorite poems: Americans use poetry in their lives in a bunch of ways and he wanted to highlight that, people writing in about their favorite poems and why they were favorites. Videos of the people were played on PBS. Got permissions for everything, but ran into an issue with a particular poem by Countee Cullen, an important Harlem Renaissance poet.  He wrote about many things, but not about being gay; this became important when a young man picked his Yet Do I Marvel and read it and talked about its meaning to him.  Thorny fair use issue: reading the poem in its entirety, but also transformative in context.  Pinsky was shut out by the licensor because of the fact that the reader was gay, and the licensor didn’t want to be public about Cullen’s sexuality according to his family’s wishes. Students researched ownership; intestate and testate succession; they found a will in a Manhattan courthouse; and they looked deeply at fair use. In the end, the woman with whom Robert Pinsky was trying to deal didn’t have gatekeeper responsibility but just thought she did, and it’s now up on the website.

Quick plugs: (1) needs a new associate director for Samuelson clinic, open for applications until Aug. 15; (2) Cardozo is also hiring for Entrepreneurship clinic; (3) so is Villanova.