Opportunity – Kernochan Center Intellectual Property Fellowship

The Kernochan Center for Law, Media and the Arts at Columbia Law School (CLS) is accepting applications for a two-year fellowship opportunity for a future legal academic  interested in researching and writing on intellectual property issues, particularly in the area of third-party liability and internet governance.

The fellowship will begin in September, 2012 and end in August, 2014.  The fellow will have the opportunity to conduct his or her own research in the field of liability of internet intermediaries. The fellow will also be responsible for planning and implementing a conference, with the assistance of CLS faculty and staff of the Law School, on the topic of intellectual property and third-party liability, to take place at CLS in Fall 2013.  The goal of the conference will be a discussion of current policy in the U.S. and abroad with an eye to proposing potential legislative solutions to current legal issues.

The fellow will receive a salary of $65,000 per year, and benefits, space to work in the law school, research facilities, and opportunities to interact with CLS faculty, staff and students.

Applicants should be 2-5 years out of law school and have a background in economics, technology, sociology or other, similar discipline which lends itself to a study of internet issues.  To apply, applicants should send a cover letter, resume, writing sample, proposal for scholarly research on the topic of secondary liability (5-8 pages), two letters of recommendation, law school transcript and a list of additional references by April 15 to the address listed below.

June M. Besek, Executive Director
Kernochan Center for Law, Media and the Arts
Columbia Law School
435 West 116 th Street, Box A-17
New York , NY 10027

Columbia is an equal opportunity and affirmative action employer.

NKU Law & Informatics Symposium Tickets Now Available

Northern Kentucky Law Review – Law & Informatics Symposium

Presented in association with the NKU Chase Law & Informatics Institute

10.5 hours of CLE (anticipated)

Registration is now available for the Northern Kentucky Law Review – Law & Informatics Symposium presented in association with the NKU Chase Law & Informatics Institute. https://supportnku.nku.edu/ChaseLII

Your registration fee includes the general and special sessions, breakfast and lunch, as well as all published materials.

This two-day conference will gather academics, lawyers, and industry leaders from throughout the United States, Europe, and Asia to focus on cutting-edge issues involving data privacy, cyber-security, international trade, and internet regulation.

The first day’s topics will include criminal justice and the media, antitrust, HIPAA/HITECH Act compliance, GLBA reporting, social media marketing, and international internet regulations. The second day will include international cyber-crime cross-border transactions, international publicity, cyber currency, privacy legislation, and many related topics.

The Symposium is an opportunity for academics, practitioners, and students to exchange ideas and explore emerging issues in informatics law, disruptive innovation, and the increasingly interconnected information environment. The agenda is available online at http://chaseinformatics.org/symposium/.


  • P.J. Blount, National Center for Remote Sensing, Air, and Space Law, University of Mississippi School of Law
  • Galina Borisevich, Perm State University, Russian Federation
  • Eric Chaffee, University of Dayton School of Law
  • Natalya Chernyadyeva, Perm State University, Russian Federation
  • Jorge Contreras, American University Washington College of Law
  • Edward Fore, Barry University Andreas School of Law
  • Evelina Frolovich, Perm State University, Russian Federation
  • Vaibhav Garg, Indiana University School of Informatics and Computing
  • Anne Gilliland, The Ohio State University College of Medicine SBS-Biomedical Informatics
  • F. Enrique Guerra-Pujol, Barry University Andreas School of Law
  • David Harris, Harvard Law School Charles Hamilton Houston Institute for Race and Justice
  • Henry Judy, K&L Gates
  • Kalyan C. Kankanala, Brain League IP Services Ltd. (India)
  • Deborah Keeling, University of Louisville College of Justice Administration
  • Michael Losavio, University of Louisville College of Justice Administration
  • Rachel Lyon, Northern Kentucky University College of Informatics
  • Jasmine McNealy, Syracuse University S.I. Newhouse School of Public Communication
  • Mark McPhail, University of Wisconsin-Whitewater College of Arts and Communication
  • Svetlana Polyaskya, Perm State University, Russian Federation
  • David Satola, The World Bank
  • Susan Stephan, Kretsch & Gust PLLC
  • Lauren Solberg, Meharry Medical College
  • Judith Wiener, The Ohio State University College of Medicine SBS-Biomedical Informatics
  • Peter Yu, Drake University School of Law

Advance registration is strongly encouraged. Seating is limited. Individuals registering on a walk-in basis will be limited to available seating. Registration will not be accepted once the event is sold out.

For details, registration, and additional restrictions please see http://chaseinformatics.org/symposium/ or call 859.572.7577.

New fair use code helps libraries expand research with confidence

Patricia Aufderheide and Peter Jaszi of American University have provided critical guidance on fair use for documentary filmmaker, artists and other creative industries.  They have done it again with a new tool for academic libraries. Today, the Association of Research Libraries (ALR) announced the release of the next project to be developed in partnership with the Center for Social Media and the Washington College of Law at American University.

The Code of Best Practices in Fair Use for Academic and Research Libraries provides a guideline of fair and reasonable approaches to fair use developed by and for librarians. The Code is not a legal brief so much as a statement of reasonable use practices developed by scholars and researchers to help clarify the legal issues.

As with other areas of copyright fair use, the seemingly byzantine rules can be rationalized when viewed in the context of a particular industry. Moreover, many of the fair use rules are highly normative, meaning that the very reasonableness of the use is dependent on how others in the same market view such unauthorized copyright exploitation. Against this practical reality, the Code will provide a powerful statement of accepted practices that will provide guidance for libraries and a significant barrier to any rights holder that seeks to be overly aggressive in the protection of its rights.

The ALR announcement describes the scope of the project:

The Code deals with such common questions in higher education as:

  • When and how much copyrighted material can be digitized for student use? And should video be treated the same way as print?
  • How can libraries’ special collections be made available online?
  • Can libraries archive websites for the use of future students and scholars?

The Code identifies the relevance of fair use in eight recurrent situations for librarians:

  • Supporting teaching and learning with access to library materials via digital technologies
  • Using selections from collection materials to publicize a library’s activities, or to create physical and virtual exhibitions
  • Digitizing to preserve at-risk items
  • Creating digital collections of archival and special collections materials
  • Reproducing material for use by disabled students, faculty, staff, and other appropriate users
  • Maintaining the integrity of works deposited in institutional repositories
  • Creating databases to facilitate non-consumptive research uses (including search)
  • Collecting material posted on the web and making it available

In the Code, librarians affirm that fair use is available in each of these contexts, providing helpful guidance about the scope of best practice in each.

USPTO to study independent second opinion genetic diagnostic testing

The USPTO has issued a Federal Register notice announcing public hearings and seeking public comments for a study required by the Leahy-Smith America Invents Act.  All dates are coming up soon.  Please respond to this notice, and distribute this call widely to all who may be interested.


Jan 25: Federal Register notice published

Feb 8:  Deadline for oral testimony at public hearing

Feb 16:  Public hearing at USPTO

Mar 9:  Public hearing at Univ. San Diego Law

Mar 26:  Deadline for written comments

Genetic Diagnostic Testing

The USPTO is studying independent second opinion genetic diagnostic testing where patents and exclusive licenses exist that cover primary genetic diagnostic tests.

Written comments should be submitted to genetest@uspto.gov.  More information is available from Saurabh Vishnubhakat (saurabh.vishnubhakat@uspto.gov).

Congress has mandated that the study shall include an examination of at least the following:

(1) The impact that the current lack of independent second opinion testing has had on the ability to provide the highest level of medical care to patients and recipients of genetic diagnostic testing, and on inhibiting innovation to existing testing and diagnoses;

(2) The effect that providing independent second opinion genetic diagnostic testing would have on the existing patent and license holders of an exclusive genetic test;

(3) The impact that current exclusive licensing and patents on genetic testing activity has on the practice of medicine, including but not limited to: the interpretation of testing results and performance of testing procedures; and

(4) The role that cost and insurance coverage have on access to and provision of genetic diagnostic tests.

The FRN is available here: http://www.gpo.gov/fdsys/pkg/FR-2012-01-25/pdf/2012-1481.pdf.

General information about the AIA studies and reports is available here: http://www.uspto.gov/aia_implementation/aia_studies_reports.jsp.

Research Work Act vies for worst legislative proposal of the session

Even as disputes have brought the technical copyright provisions of the  PROTECT IP Act, and  SOPA to the public conscience, another piece of legislation has been quietly making its way through Congress. Known as the Research Works Act (RWA or HR 3699), this legislation would reverse the National Institutes of Health policy that requires all research with NIH funding to be freely accessible within twelve months of publication. The legislation would create a similar barrier to limit other federal agencies seeking to tie federal research grants to the public’s access for the results of that research.

As noted by the Chronicle of Higher Education, Richard Poynder, and others, the enactment of HR 3699 would be a setback for the open access movement and interfere with the administrative agency grant process.

The bill was introduced by U.S. Reps. Darrell E. Issa, Republican of California, and Carolyn B. Maloney, Democrat of New York, presumably to support revenue for publishers in their districts.  Looking at the operative language, the proposed legislation is anything but subtle:

 No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that–

(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or

(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.

While the open access approach to scholarship will improve public access to research, democratize information flow and increase academic transparency, critics are concerned about the continued investment in publishing of this research.

The legislation, however, goes vastly further – prohibiting even grants that “permit” such research. This grants a monopoly to the publisher vastly stronger than anything copyright law has permitted since the seventeenth century.

MIT Press has led a response to this exceedingly ill-conceived public policy. As reported by the Chronicle, MIT has made it clear it will not support the position of the trade association, the Association of American Publishers, which has lobbying for the legislation.

“The AAP’s press release on the Research Works Act does not reflect the position of the MIT Press; nor, I imagine, the position of many other scholarly presses whose mission is centrally focused on broad dissemination,” Ellen Faran, the press’s director, said in a statement circulated on open-access electronic mailing lists and elsewhere. “We will not, however, withdraw from the AAP on this issue as we value the association’s work over all and the opportunity to participate as a member of the larger and diverse publishing community.”

Additional publishers are recognizing the need to distance themselves from this position. Perhaps with enough backlash, trade associations will begin to advocate for good public policy rather than merely for control of content.

This would be an important lesson for all of the creative, technology and academic trade association to take to heart.

PROTECT IP Act may be open to some Reasonable Amendments

In response to concerted objections to aspects of the PROTECT IP Act, legislation sponsor Senator Patrick Leahy (D-Vt.) announced by radio and press release that the sponsors may eliminate a controversial provision requiring Internet Service Providers (ISPs) to interfere with the Domain Name System as a technique to prevent consumer access to foreign websites deemed “rogue” or havens for pirated goods.

According to the press release, the Senate is set to hold a procedural vote January 24, 2012. With over 40 co-sponsors of the bill, the position may face internal opposition, but Senator Leahy remains an influential voice on such topics and in the Senate.

According to the press release:

The PROTECT IP Act provides new tools for law enforcement to combat rogue websites that operate outside our borders but target American consumers with stolen American property and counterfeits.  One of those tools enables law enforcement to secure a court order asking Internet Service Providers (ISPs) to use the Domain Name System to prevent consumer access to foreign rogue websites.  This provision was drafted in response to concerns that law enforcement has remedies it can take against domestic websites, but does not currently have the power to stop foreign rogue websites.  I worked closely with the ISPs in drafting this provision to ensure they were comfortable with how it would work, and I appreciate their support. …

I and the bill’s cosponsors have continued to hear concerns about the Domain Name provision from engineers, human rights groups, and others.  …  I remain confident that the ISPs – including the cable industry, which is the largest association of ISPs – would not support the legislation if its enactment created the problems that opponents of this provision suggest.  Nonetheless, this is in fact a highly technical issue, and I am prepared to recommend we give it more study before implementing it.

Though described as a balanced bill, the legislation and SOPA – the even more extreme House legislation – have split the intellectual property industries, with strong support from many in the creative community and nearly unanimous opposition from the tech industries. Even within the media industries, concerns run high and I have spoken to a number of publishers and media representatives who feel that the proposals will do more harm than good.

A hearing on SOPA designed to allow critics of the legislation to be heard is now scheduled for January 18th.

Senator Leahy’s announcement may be the first step towards slowing an otherwise out-of-control legislative disaster.

Business Law Today Features Rich Array of Cyberspace Issues

In the December 2011 of Business Law Today, The Cyberspace Law Section has weighed in with a series of articles discussing critical issues for online legislation, policy and security. The first is my introduction to the Protect IP Act and SOPA, the second focuses on international regulation, the third on the SEC move into disclosure of data threats, and the last on the internal regulations for updated policies.

All four articles are helpful and interesting. Please take a look.

As a postscript, let me point out that my article was intended to provide a neutral overview of the proposals currently before Congress. This was difficult for me to do. SOPA has a number of well-known problems and undermines data security. Moreover, the involvement of credit card companies and advertising companies will create a host of unintended consequences that will add to the cost of doing business while having only marginal impact on piracy. Nonetheless, the article was written to provide context to the current debate and help the public understand just how much additional regulation has been added in recent years.

New Legislation Renews Conflict Between Content Creators and Content Distributors
By Jon M. Garon

Business Interests Under Attack in Cyberspace: Is International Regulation the Right Response?
By Henry L. Judy and David Satola

The SEC Staff’s ‘Cybersecurity Disclosure’ Guidance: Will It Help Investors or Cyber-thieves More?
By Roland L. Trope and Sarah Jane Hughes

Going Mobile: Are Your Company’s Electronic Communications Policies Ready to Travel?
By Kathleen M. Porter