On Thursday, September 21, 2013, students at the Glushko-Samuelson Intellectual Property Law Clinic of the Washington College of Law filed an amicus brief in the pending Supreme Court case Petrella v. Metro-Goldwyn-Mayer, Inc., involving the 1980 Martin Scorsese film Raging Bull. The Oscar winning film chronicles the life of retired boxing champion Jake LaMotta, played by Robert De Niro.

Student attorneys Deborah Goldman, Ed Lang, Alexis Patterson, Benjamin Penn, and Ashley Yull prepared the brief on behalf of Ralph Oman, a professor at George Washington University Law School who was United States Register of Copyrights, the chief government official charged with administering national copyright law, from 1985 through 1993.  Mr. Oman’s experiences shaped his interest in the Petrella case. In particular, he had insight into the Congressional intent behind the passage of the Copyright Act of 1976, based in part on his involvement in negotiating and drafting the Copyright Act when he served as Chief Minority Counsel on the Senate Committee on the Judiciary Subcommittee on Patents, Trademarks, and Copyrights.

The case, which will be argued on January 21, 2014, centers on the question of whether laches is available to bar a copyright infringement suit that is timely under the three-year statute of limitations set forth in the Copyright Act.  Ms. Petrella alleges that the film, Raging Bull was based on a 1963 screenplay that her father co-wrote and subsequently registered with the United States Copyright Office.  In 1991, following her father’s death, Ms. Petrella renewed the copyright in the screenplay in the name of his heirs and thereafter became the sole owner of the copyright.  In Stewart v. Abend, 495 U.S. 207 (1990), the Supreme Court concluded that an author’s rights in a copyrighted work would pass to the author’s heirs, free and clear of any assignment of rights that occurred during the author’s lifetime, if the author died within the original twenty-eight year term of the copyright.  Thus, the heirs of Ms. Petrella’s father were able to obtain the rights to the screenplay because her father’s rights in the original work reverted to his heirs—free and clear of any prior assignments—when he died in 1981, within the term of the original copyright.

Ms. Petrella claims that the continued exploitation of the film without her consent, after becoming the sole holder of the rights in the screenplay on which she claims the film was based, violated her rights as a copyright holder.  In 2009, Ms. Petrella filed suit in the United States District Court for the Central District of California seeking damages for infringement that had occurred within the three years prior to the suit, pursuant to the Copyright Act’s three-year statute of limitations.  The film was originally released in 1980, but the film continued to enjoy commercial success in the years leading up to the suit.  For example, Ms. Petrella’s claim included damages from the 2007 release of the Raging Bull Special Edition Two-Disc DVD “Sports Gift Set” and the 2009 release of the film on Blu-Ray.

Although Ms. Petrella’s suit was filed within the bounds of the Copyright Act’s three-year statute of limitations, the District Court held that the non-statutory defense of laches barred the suit.  Laches is an equitable defense whereby a claim is dismissed based on an unreasonable delay in bringing suit that prejudiced the other party.  On appeal, the Ninth Circuit Court of Appeals affirmed the District Court’s ruling that laches barred Ms. Petrella’s suit.  On October 1, 2013, the United States Supreme Court granted certiorari to decide whether, under the Copyright Act, laches is available to bar an otherwise timely suit.

Mr. Oman wrote in support of Ms. Petrella and expressed concerns that the lower court’s decision would have negative implications for copyright law that reached far beyond the facts in this case.  The amicus brief argues that the application of laches where a clearly defined statute of limitations exists, such as the three-year statute of limitations set forth in the Copyright Act, contravenes the intent of Congress and unduly penalizes copyright owners, particularly small rightsholders such as Ms. Petrella, who have complied with all of the requirements set forth in the Copyright Act and who Congress and the United States Copyright Office have taken affirmative steps to protect.  Furthermore, the amicus brief argues that the application of laches will undermine achievement of the societal benefits that Congress envisioned when passing the Copyright Act.

The Glushko-Samuelson Intellectual Property Law Clinic students were excited to have an opportunity to broaden their understanding of copyright law and learn from Mr. Oman’s deep experience in the field while providing information to the Supreme Court regarding the broad implications of the outcome of the case.

2nd Annual Peter Jaszi Distinguished Lecture on Intellectual Property

Alumna Ali Sternburg graduated from AUWCL in 2012 and now works as Public Policy and Regulatory Counsel for theComputer & Communications Industry Association (CCIA).

At CCIA, her job is dictated by Congress’s docket and current events. She works primarily on intellectual property (IP) policy, filing amicus briefs, blogging about copyright- and patent-related topics, and submitting comments to various agencies and policymakers.

“Our members are technology companies, and their users are the public, so my work is consistently in line with the public interest,” explained Sternburg. “It is so rewarding to be a part of an organization that’s had a tradition of making things happen for decades, influencing policy in the right direction, both here in the U.S. and abroad. Appropriately interpreting and updating laws for the digital age is important in our increasingly connected world.”

Sternburg first became inspired to study the intersection of IP law and the Internet as an undergraduate at Harvard College. At AUWCL, she was a student attorney in the Glushko-Samuelson Intellectual Property Law Clinic, president of the IP Law Society, a blogger for the Intellectual Property Brief, and a Dean’s Fellow for the Program on Information Justice and Intellectual Property (PIJIP).

As a student attorney in the IP Clinic, Ali gained practical experience with copyright law by working with a documentary filmmaker, whose film she watched for clips that might implicate copyright issues. She analyzed the applicability of a doctrine called “fair use” to the clips, to help ensure her client’s documentary could be released without legal issues.

During law school, AUWCL’s externship fair helped her secure both of her summer internships. She interned at the Broadcasting Board of Governors her first summer, and her second summer for CCIA, where she was later hired. In order to develop her professional network and increase her knowledge of IP, she frequently attended PIJIP events, and took IP classes every semester.

“The professors at AUWCL are really experts,” Sternburg said. “I’ll be doing research for work and see their names, like Peter Jaszi and Michael Carroll. Getting to take classes with those professors was so rewarding. They were important mentors in my career, and they’re always looking out for students and alumni.”

When asked if she’ll ever consider working in another area of law, she says, “No. I don’t want to do anything else.”

The IP Clinic will join forces with other law school IP clinics to fight abusive patent trolls.  The new network is a great example of the increasing engagement of law school  IP and technology clinics and their innovative collaboration to better serve their clients and expose their students to the larger public interest dimensions of IP law and practice.

IP Clinic Joins App Developers Alliance to Fight Patent Trolls 

The App Developers Alliance is joining with law schools nationwide to help startups battle patent trolls. Law School Patent Troll Defense Network is a consortium of law school clinics that will provide free legal representation to small app developers and other entrepreneurs that have been threatened or sued by patent trolls. Clinics participating in the Network may also represent the Alliance in major patent cases affecting developers and the app community.

“Too many smash-and-grab patent trolls think startups and small companies are easy roadkill on their path to amassing a portfolio of settlement payments, revenue-share agreements, and equity stakes,” said Alliance President Jon Potter. “By providing free legal services to entrepreneurs that cannot afford quality representation, the Troll Defense Network will help innovators fight back and continue to build great products and create jobs.”

Due to economic constraints and fear, small companies often ignore patent assertion letters or negotiate directly with trolls, without the benefit of legal counsel. Some app publishers have dramatically changed their business and have quashed innovative product features in response to trolls’ assertion letters – though legal counsel may have advised them to stand strong and fight back.

“In Brooklyn and Lower Manhattan we have worked with several companies that are vexed by patent trolls,” said Professor Jonathan Askin, Director of the Brooklyn Law Incubator and Policy Clinic (“BLIP”) that is participating in the Network. “BLIP was pleased to have been the Alliance’s first partner, and we look forward to working with law schools nationwide in support of entrepreneurs.”

“I believe in IP, and I regularly advise startups to file patent applications,” said Jon Pasky of Chicago’s Pasky IP, a former executive of a social networking company and co-founder of Chicago TechWeek. “But I knew that patent litigation had become abusive when class action and personal injury lawyers started advertising themselves as patent lawyers. I’m glad to see the Patent Law Clinic at Chicago’s John Marshall Law School has joined the Alliance to help local startups.”

“Patent litigation threats facing app developers are real,” said Arthur Yuan, Director of the Patent Clinic at John Marshall Law School. “By participating with the Application Developers Alliance, the John Marshall Law School Patent Clinic’s students will learn real-world skills in these important patent matters while helping individuals in the process.”

Working with one clinic, the Alliance has already made its voice heard in important litigation before the U.S. Supreme Court. In September, the USC Intellectual Property and Technology Law Clinic filed an amicus brief on the Alliance’s behalf in the notoriousWildTangent v. Ultramercial case, urging the Court to clarify what is – and is not – patentable subject matter.

“This case is so fundamental that it will impact app developers everywhere,” said USC Law student Michelle Lee. “It has been incredibly rewarding to work with the Alliance on such an important issue for entrepreneurs and innovators.”

The IP Clinic will join forces with other law school IP clinics to fight abusive patent trolls.  The new network is a great example of the increasing engagement of law school  IP and technology clinics and their innovative collaboration to better serve their clients and expose their students to the larger public interest dimensions of IP law and practice.

The Law School Patent Troll Defense Network includes:

• Brooklyn Law School: Brooklyn Law Incubator and Policy “BLIP” Clinic
• American University Washington College of Law: Glushko-Samuelson Intellectual Property Clinic
• John Marshall Law School: Patent Law Clinic
• University of Utah S.J. Quinney College of Law: New Ventures Clinic
• New York University School of Law: Technology Law & Policy Clinic
• University of Southern California Gould School of Law: USC Intellectual Property and Technology Law Clinic

The Glushko-Samuelson Intellectual Property Law Clinic, in collaboration with  the Washington Area Lawyers for the Arts (WALA) and George Washington University College of Law’s Small Business Clinic will hold a “Pop Up Legal Clinic” for creative entrepreneurs seeking legal assistance.   The Clinic will provide legal consultations to individuals and businesses involved in the regions’ creative economy.  Student attorneys from the WCL IP Clinic will provide assistance in copyright, patent, trademark and related fields. GW student attorneys from the Small Business Clinic will provide start-up corporate assistance in the area of small business development.  Clients are asked to pre-register for the counseling on the WALA website http://waladc.org/

All student attorneys will be supervised by WCL and GW clinical faculty.

The Clinic will be held 5-7PM on Wednesday, Oct. 16^th  at the GW clinic offices at 2000 G Street NW in DC.