Brandeis Law students, faculty intrigued by IP law

John Cross is the Grosscurth Professor of Law at Brandeis Law. Although he’s an expert in many fields, in recent years he has increasingly focused his efforts on intellectual property law, both domestic and international.

His most recent work is as co-author of a chapter in the book Remuneration of Copyright Owners: Regulatory Challenges of New Business Models, forthcoming in 2017.

That chapter takes a look at “the holdout problem involving a copyright holder’s refusal to license digital content to internet users or third-party intermediaries despite the possibilities of socially valuable uses,” according to its abstract.

“You’ve produced content, and that content has become culturally significant,” Cross says, adding that copyright laws limit how others can use that content.

Cross co-wrote the chapter with Peter Yu, professor and co-director of the Center for Law and Intellectual Property at the Texas A&M University School of Law.

They argue that creators of culturally significant content are under no obligation to share that content.

IP is an area of law that is rapidly changing, Cross says.

It’s that sense of possibility and entrepreneurship that makes the area exciting, says Anesha Blakey, one of Cross’ students.
Blakey, a second-year student, appreciates the wide range of opportunities within IP law.

“IP has a lot of brand-new doors to open,” Blakey says. “IP just has so many opportunities for new lawyers to find their own way.”

Blakey got to see more of those opportunities last summer, when she spent five weeks in Croatia as part of Michigan State University College of Law’s Intellectual Property Law Summer Institute. Cross was a professor in the program and advertised it to Brandeis Law students.

During the program, American and Croatian students study copyright, patent and cyber law from an international perspective.

The trip was perfect for Blakey, who also has a deep interest in international travel. She was in Croatia shortly after the Brexit vote and the U.S. presidential nominations and was able to observe international politics and laws from a new perspective.

She also learned about the way international borders impact cyber law.

The program was Blakey’s introduction to IP law. She’s now taking another IP class and is realizing how pervasive the topic is.

“It’s always surrounding you, and law school makes you more aware of that,” she says, adding that she can see herself pursuing a career in the area.

Sara Price, a third-year law student, is another student of Cross’. Her first class with him was Intellectual Property and Competition.

“I like the idea of not just protection for real property,” she says. “I like those ideas and how they drive people to compete.”
Price came to law school without much knowledge about IP law, but her interest was piqued after taking a copyright class.

She’s interested in art but appreciates the vast array of topics within IP.

“I think it’s amazing that you can protect products of the mind,” she says.

When it comes to patent law, Price says she’s interested in it but can also become frustrated with the way it limits competition.

“I think the cases are fascinating,” she says. “It’s not cut and dry. You have to evaluate ideas.”

Patent law is also of interest to Lars Smith, associate dean for academic affairs and Samuel J. Stallings professor of law.

These days, he is intrigued by the recent U.S. Supreme Court case Samsung Electronics Co. v. Apple.

At issue in that case is whether damages can be divided in a design patent case.

In the case, a Samsung phone was found to have infringed on an Apple design but not its technology. The lower court held that all profits from Samsung’s sale of the phone had to be turned over to Apple. Samsung’s attorneys argued that the design of a phone is but one small factor in a person’s decision to purchase it, so the company should not have to turn over all profits.

Decades ago, Congress determined that such damages cannot be split.

“In principle, what Samsung is saying feels right. But it doesn’t appear to be correct under the law,” Smith says. “Is it the court’s job to fix a bad statute?”

The court is expected to return a decision in a few months.

The case opens up a lot of questions in the area of patent law, Smith says. One of the United States’ biggest industries is software, so when the patent rules are unclear, the industry is in disarray.

“We’re in a state of flux with patent law,” he says.

This article originally ran in the December 2016 issue of Bar Briefs, a publication of the Louisville Bar Association.