Intellectual Property Law

James Grimmelmann

Cornell Tech

Fall 2017


Overview

This is a survey course in intellectual property (IP) law. It covers the what, when, who, how, and why of IP: what kinds of information can be protected, when these rights arise, who owns them, how they are enforced, and why the legal system goes to all this trouble. We will perform comparative anatomy on bodies of law including trade secret, patent, copyright, trademark, false advertising, and rights of publicity, dissecting them to understand them on their own terms and in relationship to each other. After you complete this course, you will be able to understand how each field of IP thinks about the world, to identify what kinds of information are and are not covered by different types of IP, and to advise creators, innovators, entrepreneurs, and citizens how to deal with IP assets and threats in a wide variety of technological settings.

Although this course is suitable for those who have not previously taken a course in IP, I promise that it will not be redundant for those who have. To borrow a turn of phrase from Sheldon Axler, this is IP done right. Our goal will be to grok the deep structure of intellectual property law, not to memorize doctrinal details or debate abstract points of legal theory. If you have not studied IP before, you will understand it; if you have, you will understand it in a new way.

The course will ask and answer common questions for each distinct type of intellectual property:

Readings

Most of the readings will be taken from a draft of the second edition of my free casebook Patterns of Information Law. I will upload new chapters here from time to time. Please download the readings from this page; otherwise, the pagination will be different and you’ll miss all of the edits and improvements I’ve added since last year.

I will post reading assignments here as the course progreses. Assignments with dates in the past are what we actually did; assignments with specific section numbers in the future are my best guess as to when we will cover the material. Assignments without section numbers should be regarded as speculative fiction; I reserve the right to pivot before we reach them. Some of the readings are marked as “optional”: I will discuss them briefly in class to provide helpful context, but I will not assume that you have read them. (Of course, if you’re interested, you’re always welcome to bring them up outside of class or in the Slack channel.)

Do not read the materials as you would for a law-school class, memorizing facts and holdings. This is not law school; this is Cornell Tech. Read for understanding, as you would a file your supervisor emailed you to bring you up to speed. I’ve tried to find materials that get at the heart of IP doctrines, with vivid examples and clear statements of law.

The coursepack contains the essential statutory excerpts, but I highly recommend that you obtain and consult an up-to-date statutory supplement that includes the Patent Act, the Copyright Act, and the Lanham (trademark) Act. I recommend the supplement compiled by James Boyle and Jennifer Jenkins and made available as a free download. If you prefer a printed version, Amazon sells one for $13.50.

If you need a further reference on a subject, the coursepack contains information on IP treatises. If you want an alternative take on the material, there are affordable downloadable casebooks by Boyle and Jenkins (free), by Loren and Miller (pay-what-you-want, suggested $30), and by Merges, Lemley, and Menell (2 vols, $25 and $30). Subject-specific books include Beebe on trademarks (free) and Goldman and Tushnet on advertising ($11.50). They have very different editorial approaches than this book, but they are all thoughtfully arranged and feature well-written explanations.

Class Meetings

We meet Mondays and Wednesdays 3:10 to 4:40 in Bloomberg 165. Please arrive promptly. I promise that we will end on time, but that means we must start on time. Bring the readings with you, either on your computer or in hard copy.

Attendance in class is required. Especially in view of the other significant demands on your time, I will be understanding about conflicts and flexible in working with you to make alternative arrangements as needed. That said, consistent unexcused absences are not okay, and may lead to a reduced grade or exclusion from the course (after reasonable written warning).

Here’s what we’ll do in class:

  1. Answer your questions about the readings. If something doesn’t make sense, point it out and we’ll talk our way through the issues.
  2. Tie together the readings to extract the big picture from the details.
  3. Try our hands at hypotheticals and problems in the areas addressed by the readings. Some of these are in the coursepack; come to class ready to discuss them. Others I’ll spring on you in class.

Except where I tell you otherwise, you are welcome to collaborate freely and to consult any sources you wish to in your work for this class. I love watching students work together like an elite volleyball team: bump, set, spike.

I want our classroom to be a welcoming space, one where we all learn from the diversity of each others’ experiences and perspectives. The best comments are ones that help your colleagues learn. I expect you to act professionally and respectfully to your classmates (and our occasional guests) at all times. I will not condone harassment.

If anything in or out of class troubles you, please come and talk to me about it. Not all discomfort is avoidable, but I will do everything I can to help that is consistent with the educational goals of the course. I will also respect any requests for confidentiality as far as my legal and professional duties allow.

If for any reason your preferred name is not the one that appears on the course roster, please let me know how you would rather be addressed. (For example, I regularly have students who go by their middle names rather than their first names, or who have changed their names as part of significant personal transitions.) It’s a small thing, but there’s no reason I should get it wrong.

All class sessions are recorded. You will have access to the recordings. So will I, your classmates, and other Cornell Tech faculty and staff as part of their jobs. The recordings will not be shared outside the Cornell Tech community. In special circumstances (e.g. at the request of a guest speaker) I may turn off the recording, and it might sometimes happen (especially during the new building’s shakedown cruise) that the recording doesn’t work.

Assignments

Your work for this class will consist of the following:

First, do the assigned readings and participate in class discussions. I will sometimes ask you to send me your answers to short problems from the coursepack in advance of class (e.g., drafting a short patent claim). These will be factored into the class-participation portion of your grade; I will give full credit for any good faith attempt.

Second, stay on top of current events in intellectual property law. Cases and recent developments will often fuel our discussions in class. Your ability to remain current with the news will also be factored into class participation. I highly recommend the Bloomberg BNA Law Reports, particularly the Patent, Trademark, and Copyright Daily. BNA stands for “Boring, Nevertheless Accurate.” If you want something a little less dry, I also recommend:

Third, there will be a writing assignment of 5-10 pages, tentatively due around the end of October. It will place you in a professional role and require you to provide appropriate legal analysis — and to present it in a professionally appropriate genre. Because this is Cornell Tech, the genre will not be “appellate brief” or “memo to law firm partner.” Instead, it will require you to make persuasive arguments to an audience that includes people without without legal training. You will work in self-selected teams of 3 or 4; you will receive one grade on your joint work product.

Fourth, there will be a take-home final examination. It will consist of one or two questions that follow the same basic parameters as the writing assignment. The principal difference is that you will work on the final examination individually. I will hand out the examination after the end of classes (including a review session), and you will have approximately two weeks to work on it.

All written work will be blind-graded; I will provide instructions to ensure appropriate anonymity. Further details on the timing, content, and other aspects of the assignments will be forthcoming.

Grading

Your grades will be determined as follows:

I will add these scores and use the total to establish a preliminary curve. Then I will adjust your grades based on class participation. I may adjust grades up or down by one third of a grade (e.g. B+ to A-) for consistently good or poor participation, or, in truly exceptional circumstances, by two thirds. The final course grades will conform to Cornell Law School’s grading policies, which require that all courses be curved to a mean grade of 3.35.

Class Resources

This syllabus is at http://james.grimmelmann.net/courses/ip2017F.

I will create a Slack channel for the course and invite everyone enrolled in the class Please sign up for it; I will take questions and post announcements there. Don’t bother with Blackboard.

Integrity

We are members of an academic community built on respect, trust, and honesty. Most of us are also members of a learned and regulated profession, one that enforces stringent codes of professional responsibility. I will take you at your word; in return, I expect you to be truthful and candid in your dealings with me and your classmates. Your conduct in this course is subject to the Cornell Code of Academic Integrity, the Law School Code of Academic Integrity, and the Campus Code of Conduct.

We are also joined in the endeavor that is Cornell Tech because we believe in improving the world through law and technology. I cannot compel you to do what is best and right in all things. But you should aspire to.

Contact

Phone: (657) 529-2633 [LAW-CODE]
Email: james.grimmelmann@cornell.edu

I don’t have set office hours. But I’m around a lot. My desk is near the north end of the second floor of the Bloomberg center. If I have headphones on, just catch my eye. I’m also frequently in my “huddle” in room 270 on the hallway nearby. If the door is closed, it’s closed for a reason — send me an email! If not, come on in. If I’m not around, email is generally best.

Schedule

Ideas and Trade Secret

Patent

Copyright

Music

Trademark

Advertising

Right of Publicity

Design

Software

Biotechnology

Remedies