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2012 STLR Symposium & 15th Anniversary Celebration

By Brendan Cohen

Friday, February 10, 2012 (10:30 am – 4:45 pm), Stanford Law School

This year’s Symposium is co-sponsored by Stanford’s Center for Internet and Society and will examine First Amendment challenges in the Digital Age. The first panel will explore European and American views of a right to be forgotten and how to balance privacy with free expression. The second panel consists of a discussion of First Amendment architecture, protection of speech spaces, and net neutrality. The third panel will examine Protect-IP and SOPA from a First Amendment perspective.

The Symposium will culminate with STLR’s 15th Anniversary Reception in the Neukom Building Faculty Lounge from 5:00 pm – 6:00 pm, co-sponsored by the Palo Alto offices of Morrison Foerster and Baker & McKenzie.

Register here, or view the full schedule.

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January 22, 2012


The Role of Consumers in Deterring Settlement Agreements Based on Invalid Patents

The Case of Non-Practicing Entities

By Stijepko Tokic

According to an often-cited study on the number of invalidated patents, nearly half of litigated patents were held invalid. Moreover, a new study published in March of 2011 has found that even the “most-litigated” patents, defined as patents that have been litigated eight or more times, fare very poorly in patent litigation. Perhaps not surprisingly, nearly 70% of merit-based losses in the most-litigated patent cases are due to findings of invalidity of the repeat plaintiffs’ patents. This data is particularly interesting in light of the current debate about non-practicing entities (NPEs) that simply hold patents they do not practice, because almost two-thirds of these most-litigated patents are owned by NPEs. Given that NPEs, even those that own heavily litigated patents, very rarely prevail in trial on the merits, but almost nine out of ten lawsuits involving NPEs end up in settlement, one must question whether a number of these settlements might be based on invalid patents. Continued…

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January 9, 2012 Cite: 2012 Stan. Tech. L. Rev. 2


The Giants Among Us

By Tom Ewing & Robin Feldman

The patent world is quietly undergoing a change of seismic proportions. In a few short years, a handful of entities have amassed vast treasuries of patents on an unprecedented scale. To give some sense of the magnitude of this change, our research shows that in a little more than five years, the most massive of these has accumulated 30,000-60,000 patents worldwide, which would make it the 5th largest patent portfolio of any domestic US company and the 15th largest of any company in the world. Continued…

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January 9, 2012 Cite: 2012 Stan. Tech. L. Rev. 1


The 10 Year Anniversary of the FTC’s Data Security Program

Has the Commission Finally Gotten Too Big for Its Breaches?

By David Alan Zetoony

An online company provides products to individuals and small businesses. Like most online companies, it collects various types of information from its customers such as email addresses for notifications, mailing addresses for product shipment, and credit and debit card numbers for payment. Continued…

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December 27, 2011 Cite: 2011 Stan. Tech. L. Rev. 12


Probabilistic Knowledge of Third-Party Trademark Infringement

By Mark P. McKenna

This essay views secondary trademark liability in light of tort law’s treatment of parties whose actions expose a plaintiff to third-party wrongdoing.  Broadly speaking, tort law imposes liability on a party for contributing to the tortious activity of another in two different ways. In vicarious and accomplice liability cases, courts impose on defendants the same liability to which the direct tortfeasors would have been subject, had they been defendants. If, for example, the third-party wrongdoer was a batterer, then the defendant is liable for battery. Another line of cases imposes liability for unreasonably putting a defendant at risk of third-party wrongdoing, and these cases are often based on knowledge of probabilistic harm. But crucially, these are negligence cases: even if the third-party wrongdoer is a batterer, the defendant’s liability in these cases is for negligence and not for battery. Continued…

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October 16, 2011 Cite: 2011 Stan. Tech. L. Rev. 10


Why the Reasonable Anticipation Standard Is the Reasonable Way to Assess Contributory Trademark Liability in the Online Marketplace

By David H. Bernstein & Michael R. Potenza

Trafficking in counterfeit and trademark-infringing goods is a widespread and serious problem, particularly in online marketplaces that provide a forum where third parties, with relative anonymity and at limited cost, can ply their trade.  Fortunately, the law has long provided a fair, balanced standard for determining when a party can be held liable for contributing to the infringing actions of another.  In Inwood Laboratories, Inc. v. Ives Laboratories, Inc., the Supreme Court held that a party can be contributorily liable if it induced the infringement or continued to support conduct that it knew or had reason to know was infringing. Continued…

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September 23, 2011 Cite: 2011 Stan. Tech. L. Rev. 9


The Relationship Between the ISP Safe Harbors and Liability for Inducement

By R. Anthony Reese

The extent to which online service providers can be held liable for copyright infringement committed by users of their services is one of the more complicated and contentious copyright issues of our day. Courts have struggled with how to apply common-law doctrines of secondary liability to online activity. Congress has enacted limitations on the liability of service providers, but conditioned those limitations on a fairly complicated set of conditions. And technology continues to evolve and to raise new questions. This Essay examines one relatively new issue concerning the interaction between Congressional and judicial developments: how do the statutory liability limitations apply to the developing cause of action for inducing copyright infringement? Part I briefly introduces both the statutory regime and inducement liability, and then examines one court’s suggestion that the statute’s limits simply do not apply to claims for inducement. Part II argues that it is too early in the evolution of the law of inducement to categorically deny the possibility that the statute might limit liability for at least some claims of inducement.

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September 19, 2011 Cite: 2011 Stan. Tech. L. Rev. 8


“We Know It When We See It”

Intermediary Trademark Liability and the Internet

By Stacey L. Dogan

The recent history of intermediary liability decisions in copyright and trademark law reflects a notable resistance to rules that might constrain judicial discretion to ferret out bad guys. The Supreme Court in Grokster suggested such resistance, by limiting the Sony safe harbor to defendants with squeaky-clean intentions. In the trademark context, recent decisions have shown great solicitude toward good-faith actors, while reserving the option to condemn those who act with the apparent design to sow confusion. Indeed, a dichotomy appears to be emerging between two types of defendants: those who want infringement to happen and those who do not. The former group faces almost certain liability, while the latter receives broad immunity, even when its services facilitate widespread infringement. The Sony safe harbor and its trademark analog, in other words, are available only to intermediaries that appear to be acting in good faith and with ultimately non-infringing objectives. Continued…

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July 23, 2011 Cite: 2011 Stan. Tech. L. Rev. 7


The Moral of the Story

What Grokster Has to Teach About the DMCA

By Jacqueline C. Charlesworth

We have reached a telling intersection in the law of secondary copyright liability. Cases in which defendants seek to broaden the safe harbors of Section 512 of the Digital Millennium Copyright Act (“DMCA”) are running up against precedent generated by Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., in which courts have held service providers liable for promoting infringement by their users. In some instances, the behavior for which the defendants are seeking shelter under Section 512 bears more resemblance to the sort of purposeful conduct condemned by the Supreme Court in its 2005 Grokster decision than that of the prototypical “innocent” service provider Congress sought to shield under the DMCA. Continued…

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May 29, 2011 Cite: 2011 Stan. Tech. L. Rev. 6


Joint Defense or Research Joint Venture?

Reassessing the Patent-Challenge-Bloc’s Antitrust Status

By Joseph Scott Miller

A patent challenger who defeats a patent wins spoils that it must share with the world, including all its competitors. This forced sharing undercuts an alleged infringer’s incentive to stay in the fight to the finish—especially if the patent owner offers an attractive settlement. Too many settlements, and too few definitive patent challenges, are the result. I have argued previously that a litigation-stage bounty would help correct this tilt against patent challenges, for it would provide cash prizes to successful patent challengers that they alone would enjoy. Even the best-designed bounty, however, would likely fail to encourage patent validity challenges in all the cases where such encouragement would be salutary. Others have urged that, going forward, post-grant administrative review is a more promising approach to weeding out weak patents. A new post-grant review procedure, however, will do nothing to encourage worthy challenges to thousands of extant weak, overasserted patents. Continued…

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March 30, 2011 Cite: 2011 Stan. Tech. L. Rev. 5