# Patent Enforcement

## Trial

### Learning Objectives

After completing this section, you will be able to
1. Understand the importance of jury selection and opposing arguments.
2. Grasp why patent trials are often called “morality plays.”
The following describes a jury trial. A bench trial is essentially the same, but without the elements involving the jury.
        See generally, Rules 40-63, Fed. R. Civ. P.

### Jury Selection

The trial begins with the selection of the jury. The jury is selected (or “picked”) from a group of prospective jurors called to court to serve in accordance with the laws and practices of the local jurisdiction.
Each judge has a procedure for picking a jury. Most involve a questionnaire that each prospective juror must complete and provide to the judge and the parties’ lawyers. The answers are intended to reveal whether any
      reason exists why a prospective juror should not serve on the jury. Typical reasons for excluding a prospective juror include that the juror works for or knows one of the lawyers in the case, works for or does business with one of the parties, has a
      close relative that works for one of the parties, knows something about the subject matter of the case, or is unable to serve because of a disability or a previously planned vacation for which they have already purchased a nonrefundable ticket.
      The judge also typically asks the prospective jurors whether they have a bias or prejudice that would prevent them from making a fair decision.
Once the judge has “excused” from serving any prospective jurors for “cause” (i.e., because of one of the reasons listed above or some other reason that court believes provides good cause for excusing that person), the clerk
      selects at random from the remaining prospective jurors the number that will be seated as the jury, plus six. The number of jurors seated in a case depends on the expected length of the trial and the practices of that judge. At least six and no more
      than twelve jurors must decide a case, but any number between six and twelve can be seated.
        See Rule 48, Fed. R. Civ. P.

      The reason a court usually seats more than six jurors is to assure that the trial will end with at least the minimum of six jurors necessary to decide the case even if one or more jurors need to be excused during the trial, such as for illness or
      emergency. Judges typically seat seven to nine jurors for this reason. Only rarely do judges in civil patent cases seat a full twelve jurors, because once seated a juror must participate in reaching the decision (unless excused for cause), and all
      jury decisions in federal cases, including patent cases, must be unanimous.
        See Rule 48(a) and (b), Fed. R. Civ. P.

      The general rule is, the more jurors there are, the longer it takes for them to reach a unanimous verdict, and the higher the likelihood that the case will result in a “hung” jury (i.e., an inability for the jury to reach a unanimous decision).
The clerk selects the designated number for the jury, plus six, because each party gets three “peremptory challenges” to the proposed jury panel, whereby a party can remove a juror without having to give a reason why. Thus, if the
      judge has decided the jury should begin with eight jurors, the clerk will select 14 so that the plaintiff and defendant (collectively if there is more than one plaintiff and/or defendant) are each able to strike or eliminate three prospective jurors,
      leaving eight to hear the case.
Once the jury is picked and sworn in, the judge will give the jury preliminary jury instructions. These explain what the case is about, how the trial will proceed, and a description of what a patent is and how the patent system
      works. Occasionally, judges opt to show the jury the video below, entitled “An Introduction to the Patent System,” which was created by the Federal Judicial Center and is intended to be neutral.
        You can see this video at
        https://archive.org/details/gov.ntis.ava21157vnb1.

### Opening Statements

The next step is the opening statements by the opposing parties, starting with the plaintiff and followed by the defendant. If there are multiple plaintiffs or defendants, the judge will give equal time to each side
      and let the individual parties work out the allocation of time. The opening statement is intended to provide a road map for the jury about what the party intends to prove, and is expected to be devoid of argument. But lawyers rarely present an
      opening statement without some argument. The judge can intercede, and an opposing party may object, if a party crosses the “no argument” line too far.
The opening statements are where many believe the trial is won or lost because the jury forms initial opinions about who is right and who is wrong in the case based on what they hear at this beginning stage. Thus, each party’s
      trial lawyer tries to craft a story to tell that casts their client in the best possible light. Trials can be likened to a morality play, in which each party tries to cast themselves as in the right, and the opponent as doing them wrong. In patent
      cases, plaintiffs often portray defendants as thieving freeloaders, attempting to benefit unfairly from the inventiveness of the plaintiff rather than invest in developing their own products. Defendants, on the other hand, often portray patentees as
      greedy monopolists, trying to stifle competition and deny consumers choice and less-expensive alternatives.
Whether or not the common wisdom is correct, it is with the opening statements that the jurors begin their struggle to find truth among the competing stories they will hear during the trial.

### The Evidence is Presented

The plaintiff then presents its case, calling witnesses and introducing exhibits that support its positions. Each opposing party has the opportunity to object to exhibits and testimony, and to cross-examine
      witnesses. The judge rules on all objections and generally oversees the proceedings to assure that the trial is conducted properly. After the plaintiff rests its case, the defendant presents its defense, again by introducing exhibits and offering
      testimony from witnesses. The trial concludes with the plaintiff calling rebuttal witnesses, who are limited to rebutting testimony from the defendant’s witnesses. Each side usually calls one or more experts to testify on the issues of infringement
      and validity (or invalidity), as well as on damages.

### Closing Arguments

After the evidence has been presented, the parties make their closing arguments. Usually the plaintiff goes first, followed by the defendant. The plaintiff has the opportunity to reserve time for rebuttal if it
      chooses. In some jurisdictions, the defendant must go first and the plaintiff next. In this case, the plaintiff has the last word, and the defendant does not have any opportunity for rebuttal.
Closing arguments give each party the opportunity to highlight what they believe is the critical evidence in their favor, and attack the deficiencies in their opponent’s case. It is here that an observer would see the greatest
      geographic diversity in style and practice. Quite apart from the different styles of trial lawyers and judges across the country, jurors in different parts of the country expect different things from trials, and especially from closing arguments.
      Thus, an observer would see a very different “show” during a closing argument in the Eastern District of Texas than in the District of Maine.
After closing arguments are concluded, the judge reads the final jury instructions. These set forth the law to which the jury must apply the facts they determine during their deliberations.
        See Rule 51, Fed. R. Civ. P.

Thereafter, the jury retires to the jury room, with copies of the exhibits admitted into evidence, to decide the case.

### Deliberation and Verdict

In most patent cases, the jury must answer detailed questions listed in a verdict form, called a special verdict.
        See Rule 49, Fed. R. Civ. P.

      These questions typically list the accused product(s) and the asserted claim(s) and require the jury to decide infringement and validity for each claim and accused product separately. If appropriate, the jury may also be asked to decide what damages,
      if any, are to be awarded the plaintiff and whether any infringement they may have found to exist was willful or not.

The jury deliberates as long as it takes to reach a unanimous decision on each question. During their deliberations, the jury may ask questions of the judge in writing, which the judge answers after consulting with the parties.
      Should the jury tell the judge that it cannot reach a unanimous verdict, the judge may provide additional instructions and return the jury to its deliberations to “try harder.” Most juries reach a unanimous decision, which is recorded on the verdict
      form and read by the clerk in open court with the parties present.


# Patent Enforcement

## Post-Trial Procedures

### Learning Objectives

After completing this section, you will be able to
1. Grasp the significance of equitable proceedings in the post-trial phase.
Following the jury’s decision, the court will set a schedule for any equitable proceedings required and for post-trial motions. Equitable proceedings deal with matters to be decided by the judge, not the jury. In terms of
      post-trial motions, the winning party will ask for entry of judgment.
        See Rule 54, Fed. R. Civ. P.

      The losing party will file a motion for judgment as a matter of law and usually also a motion for a new trial.
        See Rule 50, Fed. R. Civ. P.

### Equitable Proceedings

Issues arise in most patent cases that must be decided by the judge and not the jury. Many of these are called “equitable” issues because they are left to the sound, equitable discretion of the court. The most
      common equitable issues are the defense of inequitable conduct and the affirmative claims of willfulness and exceptional case.

### Inequitable Conduct

Misconduct by the patentee in dealing with the Patent and Trademark Office, through which the patentee or its attorney deceives or misleads the patent examiner in an effort to persuade the examiner to grant the
      patent, was historically called “fraud on the Patent Office,” but more recently has been renamed “inequitable conduct.” A defendant can raise this issue as a defense, which if proven results in the patent being unenforceable—that is, the patentee is
      unable to enforce the patent or recover any damages for its infringement. Many different types of inequitable conduct have been found to render patents unenforceable, from outright fabrications of alleged evidence of unexpected results in the
      development of the invention, to hiding relevant prior art showing prior solutions to the problem solved by the patent, to failing to tell the patent examiner that another patent examiner had rejected a related application.
Most district courts defer ruling on inequitable conduct defenses until after the liability trial addressing infringement, validity, and damages. This is a commonsense attempt at efficiency because if the patent is found invalid or
      not infringed at trial, the inequitable conduct issues became moot. Only if the patent is found valid and infringed does the court need to hold a separate hearing to adduce evidence of alleged inequitable conduct. The court then decides whether such
      conduct had been proven, which is exceedingly rare. Nevertheless, because the consequences of such a finding essentially kill the patent, defendants assert inequitable conduct whenever possible in a final effort to avoid liability.

By 1988, the Federal Circuit Court of Appeals stated: “the habit of charging inequitable conduct in almost every major patent case has become an absolute plague.”

      In an effort to stem the spread of this plague, the Federal Circuit sought to restrict its use by holding that inequitable conduct must be established by clear and convincing evidence of deceptive intent. Gross negligence does not suffice and “does
      not of itself justify an inference of an intent to deceive.”

Nevertheless, the plague continued, leading a Federal Circuit judge to write:
Still the plague continued, leading Federal Circuit Judge Gajarsa in 2010 to then refer to it as a “pandemic.”

      Research showed that the percentage of patent cases in which inequitable conduct was charged grew from less than 5 percent in 2000 to 40 percent by 2009.
        http://www.patentlyo.com/patent/2010/06/measuring-the-plague-of-inequitable-conduct.html.

Finally, on May 25, 2011, the Federal Circuit restricted the doctrine of inequitable conduct by changing the standard for materiality and clarifying the requirements for finding intent to deceive.

      To find inequitable conduct, the court held that the party alleging unenforceability must prove a specific intent to deceive the USPTO by clear and convincing evidence. Moreover, the decision to deceive the USPTO must be knowing and deliberate. The
      court also clarified that district courts may not use a “sliding scale” to find intent. In other words, the Federal Circuit held it improper to find that a weak showing of intent was sufficient based on a strong showing that the information was
      material, or that a weak showing of materiality was sufficient based on a strong showing of intent. Although intent can be inferred to meet the clear and convincing evidence standard, specific intent to deceive must be “the single most reasonable
      inference able to be drawn from the evidence.”
Regarding materiality, the court required a “but- for materiality” standard. In other words, the standard for materiality now requires that “but for” the alleged deception, the USPTO would not have allowed the claim. Further, “[i]n
      making this patentability determination, the court should apply the preponderance of the evidence standard and give claims their broadest reasonable construction.” The court also recognized an exception to the requirement for but-for materiality,
      finding that “[w]hen the patentee has engaged in affirmative acts of egregious misconduct, such as the filing of an unmistakably false affidavit, the misconduct is material.”
The number of successful inequitable conduct defenses asserted has plummeted due to the strict new requirements for pleading and proving inequitable conduct imposed by the
      Therasense
      decision. District courts are dispensing with many allegations of inequitable conduct now at the pleading stage, eliminating the need for separate hearings on inequitable conduct issues.
Misuse of a patent is sometimes treated as a form of inequitable conduct, but it is more commonly treated as a separate affirmative defense. The elements of misuse are either a violation of antitrust laws or an effort to expand the
      scope or term of a patent beyond appropriate limits. For example, it is patent misuse for a patentee to file suit against products of a defendant that are far beyond the proper scope of any claims of the patentee’s patent, or to seek damages or an
      injunction beyond the expiration of the patent. Often such unreasonable demands are accompanied by threats to the defendant’s customers. If the misuse is proved, the patentee could be barred from recovering any damages until it has “purged” the
      misuse by abandoning its unreasonable assertions and dissipating any negative effects they caused.

### Willfulness

If the jury (or judge, in a bench trial) finds that the asserted patent has been infringed, it is often asked to determine whether such infringement was “willful.”A finding of willful infringement allows the judge to award enhanced damages under 35 U.S.C. § 284, which provides in relevant part that the court may increase the damages award by up to three times the amount found. This is a potent consequence of a showing that a defendant’s infringement was willful.
The standard for showing willfulness has evolved over the years, but in 2007, the Federal Circuit significantly altered the standard governing willful infringement by requiring the patentee to prove that (1) the accused infringer
      “acted despite an objectively high likelihood that its actions constituted infringement of a valid patent,” and (2) the “objectively defined risk . . . was either known or so obvious that it should have been known to the accused infringer.”

      The first prong of this test is objective, whereas the second prong is subjective and involves the accused infringer’s actual state of mind. Each prong requires that the infringer knew the patent existed at the time it infringed.

Because an infringer cannot be shown to have willfully infringed if it did not know the patent existed, some companies have adopted a “head in the sand” approach to others’ patents. This practice is thought to make sense when the
      field is very crowded (i.e., there are many patents owned by different patentees covering many different aspects of a product or service) because trying to uncover all the potentially relevant patents that could be asserted against a new product or
      service is extremely costly, if not impossible. This practice is used most frequently by large companies that can afford to deal with a patent infringement lawsuit should one be filed. Small companies and entrepreneurs, especially in emerging fields,
      often take great care to search for and work around any existing patents that might be close to their new product or service because they can ill afford patent litigation. Of course, searching for potentially troublesome patents and trying to avoid
      them is no guarantee of not getting sued. Not only are there more than two million patents in force,
        See Dennis Crouch,

      but creative patentees are not above taking a patent that was thought to cover one product and arguing it is broad enough to cover what a new market entrant has introduced.
In 2012, the Federal Circuit again addressed the willfulness standard, and adjusted it again.

      With regard to the objective prong of the willful infringement test, the Federal Circuit concluded:
This further restricts the opportunity for a patentee to prove that a defendant’s infringement was willful. The patentee must first convince the district court that the defendant acted despite an objectively high likelihood that
      its actions constituted infringement of a valid patent. Only after that will the patentee be able to present evidence of the defendant’s alleged subjective intent to the jury in an effort to convince the jury that the infringement was willful.
Patentees preferred the pre-Bard
      opportunity to present all of their willfulness evidence to the jury during the liability trial. They wanted this ability because they believed, probably correctly, that it helped the jury conclude not only that the defendant was a “bad actor” who
      willfully ignored the patentee’s rights, but also bolstered the underlying issue of infringement itself. Post-Bard, the patentee can only present willfulness evidence if it is able to convince a more dispassionate judge that the defendant acted objectively recklessly, which is a higher hurdle to overcome.
If the patentee convinces the judge on the objective prong, and the jury on the subjective prong, resulting in a jury verdict of willful infringement, the issue of enhanced damages passes back to the court for determination after the trial.
Because the
      Bard
      case was decided in mid-2012, little empirical evidence exists on its effect on the frequency with which significant enhanced damages are awarded by the courts. However, even before
      Bard, the evidence suggests that such awards were falling. Before the Seagate restrictions were imposed in 2007, 81.4 percent of cases finding willful infringement resulted in an award of enhanced damages, but after Seagate, that
      number fell to 54.9 percent.
        Christopher B. Seaman,

### Exceptional Case

Courts have discretion to award reasonable attorneys’ fees in patent infringement cases that are deemed “exceptional.”
        35 U.S.C. § 285

      The Federal Circuit has referred to this provision as a deterrent to bringing of clearly unwarranted suits on invalid or unenforceable patents.

Normally, the losing party is not liable to pay the winner’s attorneys’ fees—a practice referred to as the “American Rule.” The rationale for this is that any party should be able to approach the court for relief without fear of having to pay an adversary's attorney's fees. Thus, the provision of the Patent Act that permits an award of attorneys’ fees is an exception to the rule that each party bears its own costs in litigation.
Congress said that it intended the rule allowing an award of attorneys’ fees to be applied sparingly and “that recovery of attorneys’ fees will not become an ordinary thing in patent suits.
        S. Rep. No. 1503, 79th Cong., 2d Sess. (1946) (discussing the predecessor statute to 35 U.S.C. § 285)

      The Federal Circuit repeatedly limited district court discretion to award attorneys’ fees to only those cases in which the district court found clear and convincing evidence of bad faith or at least gross negligence by the losing party in bringing or
      maintaining the suit, and any such determination was reviewable
      de novo
      on appeal.

      But in April 2014, the Supreme Court struck down these restrictive Federal Circuit interpretations and held:
In a companion case, the Supreme Court also rejected the rule that exceptional case determinations should be reviewed
      de novo
      on appeal.

There are increasing calls for a change to the American Rule, to require losing parties to pay the winner’s attorneys’ fee. The principal purpose of such a change would be to deter so-called “patent trolls,” entities that acquire
      patents for the sole purpose of making money by filing lawsuits, threatening crippling litigation expenses, and demanding settlements at or slightly more than the cost of litigation.
        See Section 2.10,

      It is questionable whether such a change would in fact deter the so-called trolls or instead preclude small entities and entrepreneurs from pursuing legitimate claims due to the uncertainty of the outcome of any lawsuit. Even the most “bulletproof”
      patent can be subject to unexpected challenges from previously undiscovered prior art or the vagaries of a jury decision favoring the defendant for reasons other than the merits. Enforcing a patent requires resources, or the availability of a
      contingency fee lawyer willing to take the outsized costs, and risks that patent litigation can entail. Thus, shifting the responsibility for the winner’s attorneys’ fees to the losing party could effectively preclude small entities and individuals
      from even filing a lawsuit. The 2014 Supreme Court’s
      Octane Fitness
      and
      Highmark
      cases, and how district courts exercise their newly expanded discretion in finding a patent case exception under 35 U.S.C. § 285, may dissuade Congress from enacting a “loser pays” exception for patent cases.

### Entry of Judgment

The winning party seeks entry of a judgment that grants it the relief to which it is entitled, based on the jury’s verdict and the rulings of the court. First, the judgment will declare who the winning party is. Then,
      it will set forth the relief or remedies to which the winning party is entitled. The relief may include damages, as awarded by the jury and supplemented by the court if there was a timing difference in the calculation of the damages by the jury and
      the date on which they are finally awarded. A winning patentee is also entitled to prejudgment interest on the damage award, calculated at the rate specified by law, to compensate for the time value of money lost due to the delay in obtaining
      damages. The judgment may also set forth the post judgment interest due, for any delay between the entry of the judgment and the payment of the award to the patentee by the losing parties.
A successful patentee may also be entitled to injunctive relief, barring further sales of the infringing product or service. This is the most potent relief available to patentees. Prior to 2006, it was presumed that a patentee who
      proved patent infringement was irreparably injured and entitled to an automatic injunction. But in 2006, the Supreme Court rejected the presumption and ruled that, in all other kinds of cases, a successful patentee is required to prove each of the
      following requirements for injunctive relief: (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and
      defendant, a remedy in equity is warranted; (4) that the public interest would not be disserved by a permanent injunction.

Usually, patentees who are competitors of the infringer can meet these requirements. However, patentees who are not competitors of the infringer are usually unsuccessful in convincing courts that they are entitled to injunctive
      relief, and are left with only money damages(usually an on going reasonable royalty) to compensate for future infringement. This removes the most serious risk an alleged infringer faces—being barred from the market—making fighting cases through trial
      more palatable than before. This new rule from the Supreme Court has driven many plaintiffs out of federal court and into the International Trade Commission (ITC), when the allegedly infringing products are imported, because the ITC issues exclusion
      orders and cease and desist orders (roughly equivalent to federal court injunctions barring further sales) without regard to the requirements the Supreme Court laid down in the
      eBay
      decision.
        See footnote 7,

### Motion for Judgment as a Matter of Law

Called a “JMOL” motion, the premise of a motion for judgment as a matter of law is that the jury did not have a legally sufficient evidentiary basis for deciding the case as it did, and the court
      should intervene and decide the case in favor of the party moving for the JMOL. The moving party must explain in detail what legally required evidence is missing from the trial record. The opposing party (i.e., the party that won the jury verdict)
      then has the opportunity to identify in the trial record where the allegedly missing evidence is found, and the judge decides who is correct. The court must consider the evidence in the light most favorable to the nonmoving party. Thus, most JMOL
      motions fail. But the losing party always files such a motion because it is a chance to challenge the jury’s verdict and avoid the remedies the winning party is demanding.

### Motion for a New Trial

JMOL motions are usually accompanied by a motion for a new trial, arguing that the jury’s verdict was against the manifest weight of the evidence or the jury’s verdict was grossly inadequate or excessive.
        See Rules 50 and 59, Fed. R. Civ. P.

      Other grounds also exist, such as newly discovered evidence that could not have reasonably been discovered earlier.
The decision to grant or deny a new trial rests with the sound discretion of the judge, who typically presided during the trial and has a keen understanding of the evidence that was introduced and whether the jury’s verdict was
      against the weight of that evidence. The court’s decision is not whether the court would have decided the case the same way, but whether there is sufficient evidence in the record to support the jury’s verdict. The court must view the evidence in the
      light most favorable to the nonmoving party. Thus, most new trial motions, like most JMOLs, are unsuccessful.


# Patent Enforcement

## Appeals

### Learning Objectives

After completing this section, you will be able to
1. Understand what happens after a jury verdict is entered.
2. Appreciate the chances of success of appeals based on fact versus legal issues.
Once the post-trial motions are decided and the judgment entered, the losing party may appeal to the Federal Circuit Court of Appeals. This is the one federal appellate court in the United States that hears all appealed cases
      involving patent disputes. Almost all patent cases that conclude with a trial, or after a decision on summary judgment, are appealed. This is partly because the cost of an appeal is orders of magnitude less than the case up to that point (e.g., tens
      or hundreds of thousands of dollars vs. hundreds of thousands or millions of dollars). In addition, overall the Federal Circuit affirms in full less than 60 percent of the patent cases it decides on the merits.
        http://www.patentlyo.com/files/caseload_patent_infringement_affirmance_and_reversal_rates_2001-2010.pdf.

      Thus, it is well worth it for the losing party to pursue an appeal, because overall it has a 40+ percent chance of partial or full relief from the judgment below. Of course, the reversal rate varies by the nature of the issues before the Federal
      Circuit and the standard of review the court applies. Legal issues (such as claim construction, summary judgment, and jury instructions) are reviewed
      de novo, without deference to the district court’s or jury’s decision. This makes it much more likely that the Federal Circuit will reverse a decision because it need not give any deference to the decision of the district court.
      Fact issues (like infringement, many aspects of validity, and damages) are reviewed on a less flexible standard (i.e., does substantial evidence support the decision), such that the Federal Circuit (like the district court) is not free to substitute
      its own judgment for that of the jury. Evidentiary rulings, and other issues associated with how the trial was conducted are reviewed under the least flexible standard of review—abuse of discretion. It is rare that the Federal Circuit finds that a
      district court abused its discretion.
        For a deeper understanding of appellate standards of review in patent cases, see Michel, Paul R., Circuit Judge, CAFC, “Appellate Advocacy—One Judge’s Point of View, The Federal Circuit Bar Journal, Vol. 1, No. 2, Summer 1991 (makes analogy to
        baseball and is readable).

For example, the Federal Circuit reverses claim construction decisions at a rate nearly twice as high as decisions without claim construction issues (32 percent vs. 18 percent).
        Ted Sichelman, Myths of (Un)Certainty at the Federal Circuit, 43 Loy. L.A. L. Rev. 1161 (2010). Available at:
        http://digitalcommons.lmu.edu/llr/vol43/iss3/27.

      It is not surprising, then, that most appeals to the Federal Circuit focus at least in part on claim construction as a basis for the appeal.
Appeals at the Federal Circuit are usually resolved within 18–24 months. Oral argument is usually scheduled within a year, depending on how much time the parties take to file their appeal briefs. Oral argument is requested and
      granted in almost all patent appeals. The argument occurs in the Federal Circuit courthouse in Washington, D.C., before a panel of three judges, although yearly the Federal Circuit travels to other cities to hear arguments at local law schools, which
      allows students, local practitioners, and the public to attend more easily. The parties are typically given 15 minutes per side to make their arguments, and after the argument, the court renders a written decision within 3–6 months.


# Patent Enforcement

## Litigation Alternatives

### Learning Objectives

After completing this section, you will be able to
1. Understand the various alternative methods of dispute resolution.
2. Distinguish the pros and cons of arbitration versus mediation.
The high cost, delay, and disruption of litigation motivate many adversaries to seek alternatives to litigation to resolve their disputes. Mediation and arbitration are two popular alternative dispute resolution (ADR)
      methodologies. A thriving business exists in the United States providing adversaries the resources to conduct mediations or arbitrations. Retired or former judges or lawyers are available to serve as mediators or arbitrators.

ADR is an increasingly popular way to resolve disputes because it is often faster, less expensive, and private, as compared with the public lawsuit procedures outlined above. The interactions among the parties and the
      mediators/arbitrators can be kept confidential, as can any settlements reached. Confidentiality is a driving force behind ADR.

### Mediation

Mediation is simply an exchange between adversaries overseen (i.e., “mediated”) by an individual with expertise and/ or training in helping parties reach agreement. Often, the mediator will require the parties to submit their
      positions and relevant documents in a pre-mediation brief. Usually, each pre-mediation brief is confidential and only seen by the mediator and the party submitting it (i.e., the opposing party does not see the other side’s mediation brief). The
      mediator will review the materials submitted and then set a date for the parties to meet with the mediator, usually in the mediator’s offices or a neutral location (such as a hotel conference room). Each party commits to bring to the mediation one or
      more people with the authority to settle, so that the people at the mediation can discuss the dispute and reach an agreement settling it without having to seek approval from others.
At the mediation, the mediator typically starts by meeting with all the parties together, and reviews the dispute and the issues that require settlement. The mediator will then meet with each party separately, engaging in “shuttle
      diplomacy,” in an attempt to bring the parties to a common middle ground. Occasionally, when it may appear that the parties’ respective positions leave a gap between them, the mediator may make a “mediator’s proposal” that tries to bridge that gap.
      If the parties agree, typically a written agreement will be signed before they end the mediation—which may be a list of terms for later fleshing out in a full agreement or an actual final settlement agreement. Because anything left to later
      discussion can give rise to further disputes, most mediators try to get the parties to a full, signed agreement before they depart the mediation.

Perhaps surprisingly to some, mediation often succeeds, if not the first time, then weeks or months later, after the parties have a chance to think things through. Mediations can be conducted while litigation is pending, or before
      litigation is filed. In the latter case, often the parties will sign a “standstill agreement” that promises that neither will file a lawsuit against the other on the subject matter of the mediation until they agree the mediation has failed.
District courts and the Federal Circuit often have mediation programs that attempt to help the parties resolve their disputes voluntarily. Increased attention is given to these programs as the resources of the courts have dwindled
      and the caseloads increased because each successful mediation is one less case that requires the resources of the court.

### Arbitration

The principal difference between mediation and arbitration is decisiveness. Mediations result in settlements only if all parties agree to a resolution. In most arbitrations (so-called “binding arbitrations”), the parties
      agree to be bound by the decision of the arbitrator(s). There is a nonbinding version of arbitration, where the parties ask the arbitrator(s) to render a decision, but do not agree to be bound by it. In practice, these are actually mediations because
      they result in a settlement only if all parties agree to the result. Such nonbinding arbitrations are most often used when the parties have attempted to reach a mediated settlement but reach an impasse on one or more critical issues. They may then
      agree to submit those impasses to nonbinding arbitration, where one or more arbitrators (usually experts on the subject matter of the impasse issues) evaluate the facts, as presented by the parties, and render a decision that the parties can review
      to understand how an impartial third party looks at the issues. This often helps the parties craft a mediated settlement on their own.

Most arbitrations are binding, and resemble lawsuits and trials more than mediations. The parties may agree to submit their dispute to a single arbitrator (like a retired judge), but most often a panel of three arbitrators is
      appointed to hear the case. The parties may agree on all three arbitrators, drawn from a list of suitable candidates provided by the American Arbitration Associationhttp://www.adr.org/aaa.

      or some other entity in the arbitration business, or each party selects one arbitrator and those two arbitrators pick the third.
The parties agree on the rules that govern the arbitration, which can limit discovery, evidence, witnesses, and trial time, in whatever manner the parties agree. Once the parties agree on the rules, the arbitration is controlled by
      the arbitration panel, which enforces the rules and renders a binding decision. Usually, arbitration decisions are not appealable (except for gross malfeasance by the arbitrators), but the parties can provide for appeal rights if they choose. But
      prolonging the resolution of the dispute by allowing an appeal is contrary to the cost and time-savings objectives of most arbitrations.
Arbitrations have become particularly popular for resolving patent disputes that cross international borders and involve multiple patents issued by different countries. No one court can resolve such disputes, so international
      arbitration, with arbitrators expert in different countries’ laws can fill the gap.


# Patent Enforcement

## Patent Trolls and Efforts to Thwart Them

### Learning Objectives

After completing this section, you will be able to
1. Appreciate the threat posed by patent trolls to innocent businesses.
2. Understand the difference between legitimate patent holders enforcing their rights and extortionist patent trolls who try to game the legal system.
Starting in the 1990s, but increasing in the new millennium, a type of plaintiff with a particular litigation and settlement strategy gained notoriety in the United States—the so- called “patent troll.” By 2012, the majority of
      patent suits were brought not by businesses making products covered by patents they owned and seeking to halt competitors believed to be infringing their patents, or even by small entities and entrepreneurs pursuing legitimate claims, but instead by
      what some detractors call “patent trolls” (after the mythical creatures that demanded payment for safe passage over a bridge).
        In 2012, one article suggests 56 percent of patent infringement cases filed in the United States were Filed by trolls:
        https://lexmachina.com/2013/04/09/lex-machina-releases-the-aia-500-expanded/. Another put the number at 62 percent:
        http://www.lexology.com/library/detail.aspx?g=1e1a0e7bd9a6-4366-818f-a6935ab0fabe&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Calibar+IP+section+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2013-04-29&utm_term.

      Although some have more recently attempted to discern a difference between what they consider “good” and “bad” trolls by labeling the former “non-practicing entities” (NPEs) or “patent monetization entities” (PMEs), for the purposes of this section,
      we will refer to such entities as trolls.

As plaintiffs, trolls seek to take advantage of the fact that U.S. patent litigation costs have become so high that many defendants are willing to pay to make such cases go away. Trolls file lawsuits not to protect a business from
      an infringing competitor, but to derive settlement revenue from defendants willing to settle for less than litigation costs. Trolls often acquire patents of ambiguous scope and questionable value, file suit against multiple defendants, and rely on
      the presumption of validity accorded all issued patents to extract settlements for less than it would cost any one defendant to defend against the infringement claim. Because trolls have few documents other than the patents and their file histories,
      and even fewer employees, they are not subject to the outsized expense of discovery that a commercial business with warehouses of documents and scores of employees faces in patent litigation. Because discovery costs for such defendants are so much
      greater than for troll plaintiffs, defendants feel pressure to settle for less than the cost of litigation, lining the pockets of trolls. Such activities in the aggregate have proven very profitable for trolls, and expensive for defendants.
Spurred by target companies, the America Invents Act legislation in 2011 (see infra, Section X.3.3) included a change in rules governing the joinder of parties, stating:
This eliminated a tool of trolls—namely, filing a single case against scores or even hundreds of alleged infringers.
        See,
        http://www.americanbar.org/publications/landslide/2012_13/march_april/joinder_over_year_after_america_invents_act.html.

      However, trolls simply adapted by filing multiple lawsuits and seeking consolidation for discovery, which increases their costs somewhat but avoids the purpose of the change.
More recently, politicians have scrambled to propose a myriad of different legislative fixes, from shifting the cost of unsuccessful litigation to plaintiffs, to staying litigation against customers of another’s product until a
      suit against the manufacturer is concluded.
        “See http://www.ipo.org/wp-content/uploads/2013/06/Patent-Litigation-Bills-Summary-Comparison-Chart-EXPANDED.pdf,
        http://patentlyo.com/patent/2013/03/guesteDitorial-throwing-trolls-off-the-bridge.html,
        http://www.ipwatchdog.com/2013/08/13/congress-sirens-song-patent-litigation/id=44573/,
        https://truthonthemarket.com/2013/03/15/the-shield-act-when-bad-studiesmake-bad-laws/.”

      Even President Obama was involved, asserting his administration’s own views for a solution.
        http://www.nytimes.com/2013/06/05/business/president-moves-to-curb-patent-suits.html?_r=0.

Not everyone thinks legislation is appropriate, or even necessary. A panel at Yale Law School in April 2013 yielded decidedly mixed views.

        http://www.patentlyo.com/patent/2013/05/patent-troll-panel-at-yale-law-school.html.

      And then Chief Judge Rader of the Federal Circuit Court of Appeals coauthored an op-ed piece in the
      New York Times, recommending that judges should use 35 U.S.C. §285 to foil patent trolls by imposing costs and sanctions at the judicial level.
        http://www.nytimes.com/2013/06/05/opinion/make-patent-trolls-pay-in-court.html.

      But again, not everyone thinks that is realistic.
        http://www.techdirt.com/articles/20130605/09065423327/chief-patent-judge-speaks-outagainst-patent-trolls.shtml.

      The Supreme Court embraced Judge Rader’s recommendation in its 2014 decisions in
      Octane Fitness
      and
      Highmark, significantly broadening the district court’s discretion in finding a case exceptional and awarding attorneys’ fees. (See
      supra, Section 2.7, “Exceptional Case.”) But even with such expanded discretion and power, trial judges cannot rule on the merits of a case without some basis for it, and that requires money spent by defendants. Thus, it is not
      easy for a district court judge to stop what trolls rely upon, namely the use of litigation expense and leverage to extract settlements. Getting to the merits of the claims takes time and significant expense—often more than the cost to settle, with
      no assurance as to outcome.
As of early 2015, the problem of trolls remains a subject of widespread discussion and debate. Legislation that was proposed in 2014 to address the problem is stalled, and although new legislation is still being discussed, many
      experts believe that the state and federal actions already taken to rein in abusive patent litigation—including important U.S. Supreme Court decisions in 2015 regarding software patentability and fee-shifting in exceptional cases—make it less likely
      that new legislation will be introduced any time soon.
District courts, for example, have already begun applying the standards recently announced by the Supreme Court in
      Octane Fitness
      and
      Highmark, and may be more willing to make abusive patent litigants pay attorneys’ fees. Time will tell if the new fee-award judicial regime will lessen the pressure to implement legislation against abusive litigants. The Eastern
      District of Texas, one of the most popular venues for patent litigation in the United States, has added a new Track B docket, which specifically addresses a number of proposals considered by Congress, including early disclosure of certain
      information, such as licensing information, as well as very early disclosure of both the damages sought and the method of calculating those damage.
      http://mcsmith.blogs.com/eastern_district_of_texas/2014/02/eastern-district-of-texas-resumescase-tracking-with-track-b-for-patent-cases.html.

Meanwhile, a growing number of state legislatures and state attorneys general have also begun using consumer protection laws to clamp down on patent trolls.
        http://www.conversantip.com/blog/states-stepup-fight-against-patent-trolls/.

      And the White House in 2014 issued a series of Executive Orders intended to further curb patent litigation abuse and strengthen the patent system.
        http://www.conversantip.com/blog/usadministration-takes-smart-steps-to-strengthenthe-patent-system/.

Finally, a movement is taking hold within the patent licensing industry itself to develop a voluntary code of conduct or standards of ethical behavior. Companies like Conversant and Dominion Harbor Group have committed themselves
      publicly to a set of ethical guidelines for patent licensing, and other companies are also considering doing so.
        http://www.conversantip.com/news-article/iam-guidelines-for-ethical-patent-licensingprovide-basis-for-new-approach-to-thetroll-debate/
        and
        http://finance.yahoo.com/news/finjan-holdings-commits-licensingbest-130000509.html

      The Licensing Executives Society of the U.S. and Canada (LES), the industry’s principal professional organization, is also developing a set of “best practice” guidelines for ethical patent licensing activity.
The importance of patents to America’s economic prosperity and competitiveness ensures that competing interests will continue to strive for an advantage commercially, legislatively, and judicially. Change will continue after the
      publication of this chapter. The status quo does not last long in our field.


# Copyright Basics

## The Basics of Copyright

### Learning Objectives

After completing this section, you will be able to
1. Understand the theoretical and legal underpinnings of copyright.
2. Appreciate the important differences between copyrights and patents.
A copyright is an intellectual property right granted by a government to the author of an original literary, dramatic, musical, artistic, or other eligible creative work that gives them the exclusive right to control how the
      work is published, reproduced, performed, or displayed—as well as whether or not derivative works (e.g., a movie version of a novel) may be produced.

In the United States, the legal foundation for copyright is set forth, along with that for patents, in Article 1, Section 8, Clause 8 of the U.S. Constitution. This clause gives Congress the authority to “promote the progress of
      Science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
        U.S. Constitution Arr. 1, § 8

Congress and the courts have interpreted the terms “authors” and “writings” very broadly so as to include the creators of a wide variety of artistic and intellectual works. Title 17 of the United States Code authorizes the grant of
      a copyright to the authors of “original works of authorship”—including literary works, dramatic works, choreographic works, graphic works, audiovisual works, sound recordings, and architectural works. In most cases, a copyright lasts for the life of
      the author plus 70 years.

### How to Obtain a Copyright

        In America, the copyright system is administered by the U.S. Copyright Office, which is part of the Library of Congress and maintains a registry of copyrighted works. Interestingly, registration is not required to obtain a copyright. It is
        automatically granted to an author at the moment of creation—i.e., as soon as the work is expressed in a tangible form that allows it to be seen or copied, such as being written on paper or on a computer, or recorded as video or audio.
        Registration is only required if a copyright holder wants to initiate a copyright infringement suit in federal court.

### Copyrights vs. Patents

        Unlike the case with patents, the United States never developed an examination system for determining whether or not a creative work merits copyright protection. That’s because while the validity of an invention can be evaluated fairly objectively
        based on its utility, novelty, and non- obviousness, the merit of any cultural work is a far more subjective affair, as demonstrated by the frequency with which publishers reject novels that later go on to become literary classics.

What the patent and copyright systems share, however, is the recognition that unless the inherent property rights of inventors and authors to their creations are protected, the wellsprings of creation and productivity would be
        negatively affected by the reduced incentive. Both systems also share the public policy goal of marshaling the benefits of individual creativity—whether technological, as in the case of inventions, or cultural, as in literary works—to the public good
        so that these promote the progress of the nation and the “general welfare” of its citizens.
How to promote that general welfare, however, was approached very differently by the Founders in the case of patents than it was with copyright.
The explicit intention of patent law, explained Supreme Court Justice Henry Baldwin in

(1831), was “to benefit the inventor, in the belief that maximizing individual welfare leads to maximum social welfare.” Inventors, after all, created tools that enabled the new nation to free itself from dependency on foreign imports and
        develop industries of its own. Whatever incentives were needed to prod these technologically creative people to take on the challenge and succeed were well worth the bargain (see Chapter 1).

### The Rights of Authors and the Public Interest

        When it came to copyright, however, the rights of authors were thought to conflict with those of the public to a far greater extent. “Democratic values emphasized equal and widespread access to learning and the importance of information flows for
        maintaining political freedom, whereas strong copyrights impinged on the fullest attainment of these objectives,” notes Bowdoin College historian Zorina Khan, author of
        The Democratization of Invention: Patents and Copyright in American Economic Development,
        which won the Alice Hanson Jones prize for outstanding work in economic history in 2005.B. Zorina Khan,

As an example, a copyright owner’s right to prevent unauthorized use of their work may at times be constrained by the public’s First Amendment right of free speech—hence the doctrine of “fair use” (more on this later).
It was believed that a strategy of strong patent rights but weaker copyrights also better reflected the differing incentives that motivated inventors and authors. Inventors, many felt, were driven primarily by economic gain,
        whereas authors were often interested as much in the prospect of celebrity and reputation as they were in monetary reward.
Supreme Court Justice John McLean emphasized that this distinction between patents and copyrights exists in the structure of U.S. intellectual property law itself. In , the first high court ruling on copyright, he wrote:
To understand why the Founders gave greater weight to the public domain in copyright law than they did in patent law, it’s important to examine the origin and development of early copyright systems and their political and economic impact on society.


# Copyright Basics

## Early Copyright Systems

### Learning Objectives

After completing this section, you will be able to
1. Understand the role early copyright systems played in enforcing monopolies.
2. Appreciate the degree to which authors’ rights were ignored at that time.
As was the case with patents, the granting of book privileges (now called copyrights) began in the Republic of Venice in the fifteenth century. Prior to that, printed books were considered part of the public domain and anyone could
      copy or reproduce them. But in 1492—the same year Columbus sailed the Santa Maria to the New World—a Milanese author named Donatus Bossius petitioned the sixth duke of Milan, Gian Galeazzo Sforza, for an exclusive privilege for his book, arguing that
      without such a privilege he would be unjustly deprived of the fruit of his effort. He was granted a ten-year privilege, and the practice soon spread throughout Europe.

The French copyright system was introduced in 1498. Exclusive rights to not only books but also translations, maps, type designs, engravings, and artwork were granted by the monarch for periods initially ranging from two to ten
      years. There were stipulations attached to such grants, sometimes including even price controls on the published works.
It is important to realize, however, that authorship was not required for the granting of early copyrights. In fact, the early copyright systems of Europe more often than not enabled printers and publishers to establish quite
      effective monopolies over the commerce in books, the arts, and other cultural works that limited the diffusion of culture in society. The owners of such privileges may have waxed poetic about “droit d’auteur” (authors’ rights), but this was often
      just a way of deflecting public criticism of their monopolistic power and superprofits.
Indeed, this was most glaringly revealed in the grant of exclusive privileges to French opera. According to a 1929 book by Henry Prunières,
        Henry Prunières,

      Louis XIV in 1669 granted a perpetual monopoly over all operatic performances in France to Jean-Baptiste Lully, the director of the Paris Opera. Lully also gained sole publication rights to opera librettos, and sold shares in the rights to printers.
      He then used his copyright privilege to limit the number of musicians who could perform outside the Paris Opera and to suppress competitors like the Comédie Francaise. In the end, Lully became fabulously rich and bequeathed his monopoly rights to his
      heirs.

Not exactly your starving artist asking merely to enjoy the fruits of his work.
Early copyright systems also quickly evolved into means of censorship and surveillance of the population’s reading habits. The 1566 Edict of Moulins in France, for example, required that any new book had to be approved and licensed
      by the Crown. Manuscripts first had to be read and approved by a censor before a permit was granted to print a book. The permit could be revoked if officials or influential citizens later complained about the book’s content.
Interestingly, a decree in 1777 enabled authors who did not sell off their rights to gain a copyright in perpetuity. But like the A.J. Liebling quote about freedom of the press belonging only to those with enough wealth to own one,
      so, too, were authors’ inalienable rights often just a lofty theory trumped by harsh economic reality. Because few authors had the capital required to print a book, they usually sold off their “exclusive rights” to commercial publishers.
Much the same situation prevailed in the English copyright system, where copyright law began as a monopoly grant to benefit favored guilds and as a means to censor public opinion on behalf of the Crown.

### The Statute of Anne

In 1557, the Worshipful Company of Stationers was granted a royal privilege that enabled it to control the book trade for the next 150 years. Only in 1709 did a new copyright statute, the
      Statute of Anne, begin to erode the monopolistic power of the Stationers Company. It stipulated that a copyright could be obtained by anyone, and instead of a perpetual right, the term was limited to 14 years with the right to
      renew for one additional 14-year term. According to Professor John Feather of Loughborough University in Britain, the statute “wholly ignored the authors of books, and certainly was not intended to confer any additional rights on them.”
        John Feather,

Assessing early European copyright systems as a whole, Zorina Khan observes that they “resulted in ‘odious monopolies,’ higher prices and greater scarcity, large transfers [of money] to officials of the Crown and their allies, and
      pervasive censorship [while it also] disadvantaged smaller book producers, provincial publishers, and the academic and broader community.”
        Op. cit., Khan.

It wasn’t until 1774 in England, in the landmark case
      Donaldson v. Beckett,
      that a court ruled that authors have a fundamental right to their writings—at least until publication, after which the Statute of Anne still gave the rights to the publishers. The immediate claim in the case was whether Scottish bookseller Alexander
      Donaldson had acted as a pirate when he published an edition of James Thomson’s
      The Seasons,
      a work for which Thomas Beckett and other London booksellers claimed the copyright. But the larger principle at issue was whether copyright was a limited right granted by government under the Statute of Anne, or a common law right of publishers that
      existed in perpetuity despite the limitations of the statute.
The case would prove pivotal in deciding not only the future of publishing, but also of authors, in whose name the London publishers claimed to be acting. The court took the claim of authors’ rights further than the publishers ever
      intended, however. It reaffirmed the limited statutory nature of copyright and also recognized that authors—with the decline of patronage, authors were only then emerging as independent professionals writing for a mass market of book buyers—were the
      true originators and proprietors of the product of their own creative labors.
As Michel Foucault would put it nearly two centuries later,
In the century after
      Donaldson v. Beckett,
      European copyright systems expanded to include sheet music, maps, design, sculpture, and even lectures. The doctrines of “work for hire” and “fair use” would emerge (more on these later), but the law would still remain largely arbitrary, confused,
      and frequently injurious to the public until late in the nineteenth century.
However, the process of transforming copyright from a scheme of monopoly privileges for publishers into a property right for the actual creators of cultural works had begun.


# Copyright Basics

## Copyright in America

### Learning Objectives

After completing this section, you will be able to
1. See the origins of copyright law in the United States.
2. Appreciate the importance the Founding Fathers attached to the public need for widespread access to learning and information.
Ever practical, the Founding Fathers sought to construct an intellectual property regime that above all else would encourage the growth of commerce and industry in order to ensure the survival of the young American nation during
      its precarious beginnings.
For patent law, this meant creating the maximum possible incentives to those whose ingenuity would spur the development of agriculture and domestic industry. As economist Jonathan Hughes once noted, entrepreneur-inventors like Eli
      Whitney, who developed a cotton gin in 1793 that increased agricultural production a hundredfold, were“the vital few” upon whom the nation depended for progress. That’s why early Supreme Court Justice Joseph Story argued that patent rights were
      “sacred,” and the just reward for their contributions to society.
But in copyright law, a different approach was taken—one that acknowledged authors’ rights but placed far greater emphasis on the public’s need for widespread access to learning and on the growth of markets. James Gilreath, the
      Library of Congress historian who in the late nineteenth century painstakingly reconstructed Thomas Jefferson’s massive library catalog burned by the British in 1814, explained the Founders’ view this way:
This emphasis was certainly in tune with the realities of American book trade. Domestic publishers mainly produced newspapers, almanacs, and practical guides—reading material of useful value to a nation that needed to build an
      entire economy from scratch. Most important literary works, on the other hand, were imported from Britain and France.
As a result, even in colonial times, states that passed copyright laws did so only with explicit rules that ensured widespread public access to knowledge and information.
Take colonial Connecticut’s 1783 copyright law, for example. It certainly contained all the right rhetoric about authors’ natural rights:
But it also made it quite clear that copyrighted books had to be offered at reasonable prices or the state would issue a compulsory license enabling anyone to copy these at will. No one failed to get the point.
After the Constitutional Convention and the establishment of Congress, the first federal copyright statute was signed into law by President George Washington on May 31, 1790, less than two months after the first patent law was approved.
The law stipulated that “the author and authors of any map, chart, book or books already printed within these United States, being a citizen or citizens thereof, shall have the sole right and liberty of printing, reprinting,
      publishing and vending such map, chart, book or books” for a period of 14 years, with the right of renewal for another 14 years. The Founders’ belief that 28 years was the proper maximum copyright term stands in sharp contrast to today’s
      controversial maximum copyright term of life-plus-70 years, an issue we will discuss later in this chapter.
Anyone violating a copyright “shall forfeit all and every copy and all and every sheet to the author or proprietor who shall forthwith destroy the same.” What’s more, “offenders shall also forfeit and pay the sum of fifty cents for
      every sheet which shall be found in his or her possession.” As a final disincentive to infringers, the law allowed copyright owners to file suit “in any court of record in the United States within one year after the cause of action.”
Still, the law’s focus on the public interest was clear in the first five words of the text:
      “An Act for the Encouragement of Learning,
      by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned.”
The failure in the text to distinguish between “authors” and “proprietors” (i.e., publishers, printers, and booksellers), of course, also suggested that Congress did not view copyright as an innate or moral right of authors. In
      fact, copyright was conditional upon the author or proprietor depositing a copy of the work in the district court and paying a fee of 60 cents.
Another sign that the emphasis of U.S. copyright law was to facilitate the diffusion of knowledge over the protection of authors’ inherent property rights was provided by this sentence:
In other words, America’s first copyright law explicitly authorized the piracy of foreign cultural works in order to promote widespread citizen access to the benefits of learning.
And that’s exactly what Americans did, unabashedly pirating European culture and resisting for a century all attempts to alter what Europeans called its “obnoxious laws.”
The first American to receive a U.S. copyright, one month after the Copyright Act was signed into law, was John Barry for his spelling book. The first woman granted a copyright was Mrs. Mercy Warren of Massachusetts for her
      Poems, Dramatic and Miscellaneous.

Over the next decade, half of all copyrights went to proprietors, proving yet again that the law’s concern was not chiefly with the rights of authors. Most of these were for practical books such as atlases, dictionaries, and
      textbooks, as one would expect in a society hungering for practical knowledge and lacking in homegrown literary works equal in sophistication to those of the Europeans.

### The Pirates of Copyright

As late as 1835, 65 percent of science books, 92 percent of business texts, and 75 percent of law books published in the United States were written by Americans. But even then, a half century after independence,
      only a third of poetry and drama books published in America were written by Americans.
        Op. cit., Khan.

“A nation of artificers and innovators, both as consumers and producers, American citizens were confident of their global competitiveness in technology, and took an active role in international patent conventions,” explains Khan.
      “Although they excelled at pragmatic contrivances, Americans were advisedly less sanguine about their efforts in the realm of music, art, literature and drama.”
According to Ainsworth Spofford, the Librarian of Congress from 1864 to 1897, “a group of publishing houses in the [U.S.], which made a specialty of cheap books, vied with each other in the business of appropriating English and
      continental trash, and printed this under villainous covers, in type ugly enough to risk a serious increase of opthalmia among American readers.”
        “

And not just “trash,” either. America gained a notorious reputation internationally for its piracy of English and European literary classics—a practice greatly encouraged by the protectionist levying of tariffs as high as 25
      percent on imported books.
Put another way, America in those days was seen as a nation of technological innovators and cultural pirates.
Between 1790 and 1875, more than a hundred petitions were submitted to Congress to bring the United States in line with international copyright laws. All were defeated by publishers’ and printers’ lobbies. It wasn’t until 1891 that
      the Chace Act granted copyright protection to select foreign authors—but only if their work was published in the United States on or before the publication date in their own countries, and only if the actual printing was done here. The United States
      failed to qualify for admission to the Berne Convention on copyright until 1988, an astonishing 102 years after the convention.
Such piracy had its costs, however—and not just to foreign authors and publishers. According to Arthur Schlesinger, “So long as publishers … could reprint, or pirate, popular English authors without payment of royalty, and so long
      as readers could buy such volumes far cheaper than books written by Americans, native authorship was at a marked disadvantage.”
        Arthur M. Schlesinger,

Some believe this helps to explain why no great American novels were written in the early nineteenth century. Only in the mid-1800s, with the emergence of novelists like James Fenimore Cooper, Nathaniel Hawthorne, and Henry
      Wadsworth Longfellow did a change in the relative balance of authorship between Americans and foreigners begin to take place. More and more authors took up the pen and influenced American culture, including Harriet Beecher Stowe, who copyrighted
      Uncle Tom’s Cabin in 1851. Nonetheless, it wasn’t until the early twentieth century, after the United States began to comply with international copyright standards, that Americans became the majority of best-selling authors in the United States.
        Alice Hackett and James Burke,

It would be far too simplistic, of course, to ascribe the late- blooming of American literature simply to weak copyright laws and the prevalence of cheap pirated foreign literature. There are organic reasons why a young nation, and
      a new culture, needs time to develop its own literary voices. But it is also true, as research worldwide has repeatedly demonstrated, that where weak intellectual property protections exist in developing nations (like today’s China or early
      nineteenth-century America), citizens have an excessive incentive to copy and insufficient incentive to invent and create for themselves.


# Copyright Basics

## Eligible Works

### Learning Objectives

After completing this section, you will be able to
1. Know what kinds of creative work are eligible for

2. Grasp the broad definition of "authors" and "literary works."

### Can I Copyright That?

Before reading this section, please watch the overview video covering the basics of copyright law—eligible works, the distinction between ideas and their expression, the rights granted to copyright owners, and
      is copyright term—life plus 70 years.
Title 17 of the United States Code Section 102 explicitly delineates eight categories of original works that are eligible for copyright.
This list, while broad, actually includes a far more extensive range of work than the average citizen might imagine. For example, copyrightable works also include software.

### Copyrighting Software

Why is software copyrightable? It’s because an appellate ruling in the 1983 case of
         held that software was a kind of “literary work” and therefore eligible for copyright.
The court noted that the Copyright Act defined the term “literary work” as follows:
Based on this definition, the court determined that a computer software program “is an appropriate subject of copyright.”
Note, however, that copyright does not extend to the elements of works of authorship that are potentially patentable processes. And indeed, beginning in the 1990s, software companies began increasingly to patent those elements of
      their new software that could be described as patentable processes, precisely in order to secure the stronger protections of patent law.
In any event, software is but one example of how the courts have tended to interpret broadly the eight categories of eligible subject matter. Just as technology drove the expansion of eligible subject matter into ever new
      realms—e.g., first photographs and then motion pictures—the courts have also expanded the definitions of all eight categories of eligible subject matter to include maps, games, puzzles, toys, fabric design, and many other creations.

### Ideas to Copyrightable Works

However, not everything is copyrightable—far from it. Just as patent law makes a sharp distinction between ideas and their application—i.e., you cannot patent an idea for a better mousetrap but you most
      certainly can patent a new, non-obvious, and useful apparatus that catches mice—so, too, does copyright law differentiate between ideas and their expression. You cannot copyright, for example, the idea of an epic space opera in which a mystical cadre
      of Jedi knights wielding laser swords battle galactic evil, but you can copyright the particular expression of that idea in the screenplay and motion picture
      Star Wars.

Because it is an abstract concept or idea, Einstein’s formula E = MC2
      is also not copyrightable. It is true that Einstein was the first to derive the famous formula involving mass and energy, which at first blush seems to fit the requirement for creative authorship in a copyrightable work. But the formula was derived
      from observation of natural physical laws, and must remain in the public domain lest private intellectual property rights create a blockade that prevents scientists and mathematicians from continuing their research and teaching.
Also noncopyrightable are names, addresses, and other known facts that are not creatively compiled. That’s why a phone book cannot be copyrighted, whereas the
      creative
      compilation of facts in a Chinese-American phone directory listing “Bean Curd & Bean Sprout Shops” may be under certain conditions, as a judge ruled in the 1991 case

        .
To be copyrightable, a creative work must not only be expressed in a tangible form that allows it to be seen or copied (i.e., put to paper or some other medium), but it must also be
        original.
      The requirement for originality in copyright has its parallel in the necessity for novelty in patents. But this parallel works only to a point, for a copyrighted work need not be novel in the strictest sense to be original.

As Arthur R. Miller and Michael H. Davis explain in their textbook on intellectual property for law students:
To reiterate, a copyrightable work must not only fit under one of the eight broad categories of eligible subject matter, but it must also be:


# Copyright Basics

## Rights and Term

### Learning Objectives

After completing this section, you will be able to
1. Discern the specific rights granted to copyright owners.
2. Understand the term of those rights as well as in some cases their limitations.
Just as common law property rights grant owners’ exclusive powers of possession, use, and distribution, so, too, does copyright law provide for six roughly analogous exclusive rights:
        Derived from 17 U.S.C., § 106 Retrieved from
        http://www.law.cornell.edu/uscode/text/17/106

These rights are exclusive to copyright owners—only they or those to whom they have legally assigned their rights can act upon them. Only the author of a copyrighted book, for example, can decide to make copies of (i.e., publish)
      the work and prepare derivatives of the book, such as a movie version of it. If any person other than the author and copyright owner were to make a movie based on the book, that person would infringe the copyright.
The term or time period of a copyright varies. For an individual, the term of a copyright is the life of the author plus 70 years after the author is deceased. For a work with two or more authors, the term expires 70 years after
      the last author’s death. Finally, for works that are “made for hire,” or anonymous or pseudonymous works, the copyright term lasts 95 years from the first publication or 120 years from the year of the work’s creation, whichever comes first.
        Derived from 17 U.S.C., § 302 (c) Retrieved from
        http://www.law.cornell.edu/uscode/text/17/302

      As examples, assume a musical artist writes a song that is published and performed under their name. The copyright will last 70 years beyond their death, and could conceivably be quite valuable to their heirs.
On the other hand, imagine that an anonymous Korean War soldier’s diary, dated “December 1951” is discovered in an antique shop in the year 2013 and published that same year. Ordinarily, the copyright for an anonymous work would
      last for 95 years from the date of first publication, expiring in the year 2108. But because the date of creation is known to be 1951, the copyright would expire in 2071, or 120 years after it was written.
As noted earlier and discussed later in Section 3.9 of this chapter, these lengthy terms for copyright are controversial and opposed even by many supporters of copyright.

### Work for Hire

According to U.S. law, a
      work for hire
      is:
Imagine that you are an employee of a company, and you are asked to write one section of a white paper on a subject of interest to the industry. Or let’s say you’re a contractor hired to perform that same task under a “work for
      hire” arrangement. You will not own the copyright to that section of the white paper when it is completed, nor can you publish or use it if you leave the company and go to work for someone else. Although it is your creation, it is owned by the
      employer, who often uses your work product as part of an integrated project involving other contributors. The copyright for this particular white paper will last for 95 years from the year of first publication, or for 120 years from the year of its
      creation, whichever expires first.

### First-Sale Doctrine

It is important to note, however, that an author’s distribution rights (No. 3 above) are strictly limited by what is known as the first-sale doctrine, which terminates those distribution rights once he sells or
      distributes the work to someone else. For example, once the author of a copyrighted novel lets a publisher distribute copies of that novel to a bookstore, the author’s distribution rights to those copies are ended and the bookstore can do whatever
      it wants with them—sell them, rent them, give them away, or throw them in the dumpster. The bookstore owner cannot, however, make additional copies of the book because the first-sale doctrine does not limit a copyright owner’s
      reproduction
      right (the first right listed above).
The first-sale doctrine was first delineated in the 1908 Supreme Court case

. The Bobbs-Merrill Co. distributed copies of a novel titled
      The Castaway
      to retailers with the proviso that these be sold for exactly one dollar. Printed right in the book itself, in fact, right after the title page, was the following notice:
Retailers, however, sold the book for less than a dollar and the Bobbs-Merrill Co. sued one of them. The high court found that once copies of the book were sold, the distribution rights of the author terminated as to those copies.
        Derived from
      The ruling came to be known as the first-sale doctrine and was codified into law as 17 U.S.C., § 109. The statute distinctly draws the line at distribution rights, leaving all other rights to the copyright owner.
It’s the first-sale doctrine that explains why Amazon.com and eBay allow users to resell secondhand copies of printed books, music, and movies at prices of their own choosing—but only if those copies were legally obtained. It is
      still illegal to sell pirated works.
In 2011, however, a new case in the United States Court of Appeals for the Second Circuit—
—waived the first-sale doctrine in cases where the copies of the copyrighted work were manufactured abroad.

      But in March of 2013, the U.S. Supreme Court overturned that ruling in a 6-to-3 decision that affirmed that Mr. Kirtsaeng’s rights after first sale trumped the publisher’s right to ban imports. He couldn’t make unauthorized copies of the book. But
      just as with secondhand books or Gucci bags bought at a flea market, if the books had been bought legally (regardless of whether they had been imported or sold originally in the United States), Mr. Kirtsaeng had a right to sell them.

The first-sale doctrine was also limited by

        , when an appeals court in 2010 ruled that software was not subject to the first-sale doctrine because purchasers of software were actually only licensees and therefore could not resell the software to others.

Does the first-sale doctrine apply to digital music, such as your iTunes library? In a case involving the start-up company ReDigi, U.S. District Court Judge Richard J. Sullivan ruled on March 30, 2013, that a resale of digital
      music that involved creating a new copy on someone else’s computer while erasing the copy on your computer actually concerned the reproduction right, not the distribution right, and the first-sale doctrine therefore did not apply. (You could sell
      your hard drive that has your music files on it, but most people would not want to do that!) But this decision is likely only the first round in what many feel will ultimately be a successful effort to create legal markets for secondhand digital
      goods.

### First-Sale vs. Moral Rights

The first-sale doctrine does not affect an author’s moral rights, which under U.S. copyright law are limited only to certain works of visual art but under European copyright statutes are more broadly applied
      to other kinds of copyrightable work. Derived from the French concept of droit d’auteur, these give authors the power to protect the integrity of their work as well as the right of attribution.

        Zemer, L. (2011). Moral Rights: Limited Edition. Boston University Law Review, 91(4), 1524. Retrieved from
        http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume91.

      Preserving the integrity of a work means that the author has the right to prevent its intentional distortion, mutilation, or modification by others. Authors also have the right to control the use of their name in relation to the work.

Both of these rights, however, have limitations. Under U.S. law, because moral rights are
      personal, they exist only for the life of the author. Only the author can enforce those rights; they cannot be transferred by the author to heirs or anyone else.

As noted at the beginning of this chapter, registration is not required in order to enjoy copyright protection. Once an author puts words to paper, paint to canvas, or software code into a digital file, it is immediately protected
      by copyright and nothing more is required.
Although the requirement of registration as a condition of federal copyright protection was discarded over a century ago, when Congress passed the Copyright Act of 1909, the requirement that proper copyright notice be affixed to
      copies of published works survived much longer. It was only dropped in 1989, when the United States joined the Berne Convention and had to amend its copyright law to comply with the terms of that convention. Notice and registration of copyright are
      now discretionary, but recommended. Registration of a copyright provides a legal record of copyright ownership in cases where infringement is alleged, and in fact is required before the author can even file suit for infringement.
        17 U.S.C., § 411

      To register a published work, an author will usually need to submit two copies of the work to the U.S. Copyright Office.


# Copyright Basics

## Infringement and Remedies

### Learning Objectives

After completing this section, you will be able to
1. Discuss the specific requirements for proving copyright infringement.
2. Understand how copyright is affecting a changing music industry.

### What If Someone Infringes Your Copyright?

Before reading this section, please watch the overview video below covering what you can do if your novel, blog post, photograph, or song is used by another without permission, and what the famous “Blurred Lines” copyright trial means to you.
Derived from the common law of trespass,
      infringement
      of a copyright or any other intellectual property right occurs when a person violates the exclusive rights of its owner. The term gets its meaning from the word “fringe”—implying a boundary that cannot be crossed. As laid out in Sections 106 through
      122 of Title 17 of the U.S. Code and subject to certain exclusions, infringement occurs when a person copies, distributes, performs, or displays all or part of a copyrighted work (or in the world of television, conducts a secondary transmission of a
      cable system without the express consent of the cable system owner). Copyright infringement requires proof of two things. First, it requires proof that the defendant actually copied from the plaintiff’s work. That makes it different than patent
      infringement, which can take place even if the defendant independently came up with the invention that was patented by the plaintiff. Proof of copying can be obtained either directly, by the defendant admitting the act, or, indirectly, by showing
      that he had access to the plaintiff’s work, and that there are similarities between the works that make independent creation unlikely. Second, infringement requires proof that the allegedly infringing work is substantially similar to the plaintiff’s
      work.
        Derived from
      The second requirement is there to make clear that not all copying amounts to infringement. For example, copying of a general theme, such as a detective solving a murder mystery, would not be considered infringement.
There are two ways to demonstrate the similarity of an allegedly infringing work and the original copyrighted work. “Fragmented literal similarity” may be shown by demonstrating that the infringing work contains specific copied
      elements of the original work. For example, suppose that one travel writer wrote a guide to Florida that contained a chapter on Key West, and a second writer copied that chapter and included it in their otherwise independently researched and written
      guide to Florida. In that case, we could point to specific sentences and paragraphs in the two works that were identical, even if other sentences and paragraphs were not.
Or, to take another example, in today’s music scene, certain genres of music use pieces or “samples” of previous sound recordings that are then mixed into a new sound recording. Unless the artist doing the sampling licenses the
      sound recording (and maybe the underlying musical work as well), the sampling could be considered infringing.

### Copyright Infringement in the Music Industry

Take Kanye West, for example. He was recently sued for sampling Sly Johnson’s song “Different Strokes” and using it in a new song called “The Joy” on Kanye’s and Jay-Z’s
      Watch the Throne Album.
      The case was settled out of court for an undisclosed amount.
The second type of similarity—called comprehensive nonliteral similarity—involves the borrowing of patterns without necessarily borrowing specific elements. In the case of a novel, for example, one author might infringe by copying
      the plot of another novel, even though he used different words to describe the action taking place. Similarly, a composer of a song might write lyrics and music that closely borrowed patterns from another song, even though he did not use the exact
      same words and notes.
Again, take Kanye West. He was also recently sued by Vincent Peters, a local Chicago artist, not for sampling his music but rather for employing substantially similar concepts and wording in Kanye’s megahit “Stronger.” The judge
      did not agree, finding that Kanye’s song had actually used concepts and phrasing that were “common ideas” and in the public domain—specifically, Friedrich Nietzsche’s phrase, “That which does not kill us makes us stronger.”
        Mitchell, D. (2011, November 28).

But by far, the most significant copyright infringement case in recent years concerning music was the March 10, 2015, verdict against Robin Thicke and Pharrell Williams, the performer and primary songwriter-producer of the 2013 pop
      hit “Blurred Lines.” A federal jury ruled that Thicke and Williams committed copyright infringement by using elements of the 1977 Marvin Gaye classic R&B hit “Got to Give It Up.” The jury awarded Gaye’s family $7.3 million—a very significant
      penalty—but the Gaye family announced that they will also seek an injunction against further radio and concert performances of the song, which will certainly give them leverage in negotiating future royalties and songwriting credit.
The case is significant, even beyond the outsize monetary award, because it challenges the growing practice in contemporary music production of incorporating elements, features, themes, and even the “feel” and “mood” of the work of
      other artists and genres.
Larry Iser, an intellectual property lawyer who has represented artists like Jackson Browne and David Byrne, criticized the verdict. “Although [Marvin] Gaye was the Prince of Soul,” Iser told the
      New York Times, “he didn’t own a copyright to the genre, and Thicke and Williams’ homage to the feel of Marvin Gaye is not infringing.”
Despite the critics, musicians and producers will likely be more cautious in the future. In addition to the “Blurred Lines” case, singers Sam Smith and Tom Petty reached a settlement in 2015 granting songwriting credit and
      royalties to Petty on Smith’s song “Stay With Me,” which bore some resemblance to Petty’s hit “I Won’t Back Down.”

### Actual and Statutory Damages

As we see in the above case, infringing a copyrighted work can carry very significant penalties. The copyright owner has the right to recoup damages and lost profits from infringement. There are two kinds of
      damages—actual and statutory. The copyright owner may only receive one or the other form of damages.
        Derived from 17 U.S.C., § 504 Retrieved from
        http://www.law.cornell.edu/uscode/text/17/504.

The Recording Industry Association of America (RIAA), for example, was awarded major damages from Jammie Thomas in 2009 for her willful statutory infringement of 24 copyrighted songs that she had uploaded to the music sharing site
      Kazaa. Because the infringement was found to be willful, the court in its discretion raised the damages maximum from its usual $30,000 per act of infringement to $80,000 per infringement. That $80,000, times 24 songs that were infringed, resulted in
      a damage award of $1,920,000
        Kravets, D. (2009, June 18).

      After several trials and appeals, however, the damages assessed against Thomas were reduced to $222,000.

Take note, infringers—the risks can be very great, indeed.
Only the owners of registered copyrights may file for statutory damages. That’s another reason why it’s a good idea to register your copyright.
Sometimes, though, the copyright owner’s most important remedy for infringement will be an injunction that forces the infringer to stop illegal actions that cause continuing damage to their rights. The grounds for getting that injunction, however, have tightened in recent years and now require the plaintiff, or copyright owner, to provide substantial evidence of infringement that cannot be repaired without an injunction.
As the court of appeals for the ninth circuit put it in 2011:
Individuals who infringe copyrighted material face not only restitution for damages and lost profits and impoundment and destruction of materials, but strict criminal penalties as well. To be subject to criminal penalties, the
      infringer must have willfully infringed the copyright. For those doing so for commercial advantage or private financial gain, the sentence may be up to five years for a first offense, and ten years for a second offense.
        Derived from 18 U.S.C., § 2319 Retrieved from
        http://www.law.cornell.edu/uscode/text/18/2319

We have focused solely on the federal penalties for infringement. That’s because, with the passage of the 1976 Copyright Act, federal copyright law now preempts state laws. State laws governing breach of contract, violations of
      trust, trespassing, conversion, invasion of privacy, defamation, and deceptive trade practices still exist, however, and these may also be employed by a copyright owner seeking redress for other harms caused by infringing activity.


# Copyright Basics

## The Fair Use Defense

### Learning Objectives

After completing this section, you will be able to
1. Understand the nature of fair use and how it serves the public interest.
2. Appreciate the continuing debate over just vagaries in what is considered fair use.

### Is It Fair Use or Infringement?

Before reading this section, please watch the overview video below covering Fair Use is an enigma—indeed, no one even knows how many words of a copyrighted work one can legally copy as “fair use.” Here, at last, is everything you need to know about Fair Use.
Title 17 of the United States Code allows the copying and use of copyrighted material for specific
      purposes—including criticism, comment, news reporting, teaching (involving multiple copies for classroom use), scholarship, or research. The statute also describes four
      factors
      that draw on the precepts first discussed by Supreme Court Justice Story 150 years earlier to determine if the use of a copyrighted work is infringement or “fair use.”
        17 U.S.C., § 107 Retrieved from
        http://www.law.cornell.edu/uscode/text/17/107.

Based on these factors, which are not meant to be all inclusive, a judge must determine if the use of copyrighted material is within the bounds of fair use. What makes that determination sometimes difficult is the challenge of
      weighing a variety of purposes—was the work used for criticism, comment, news reporting, teaching, scholarship, or research?—in concert with various factors (such as how much was used, and whether it was for commercial gain or not).
In the crucial 1973 Supreme Court case of

        , for example, the divided justices affirmed a lower U.S. Court of Claims decision that the benefits of freely distributing photocopies of medical journal
        articles to nonprofit government research libraries outweighed the reduction of potential revenue to the publisher of those journals.

### Parody

One of the purposes for which copyrighted work may at times be freely used is parody. As a federal court ruled in one 1993 case:
And the greater the “transformative” nature of the new work, the less likely it infringes the original work.
A case involving the Fox TV show
      Family Guy
      illustrates the point. In

        , the court found that a Family Guy episode in which the character Peter Griffin sang a revised version of the song “When You Wish Upon a
        Star” called “I Need a Jew” was a parody and thereby a fair use of the original material. The outrageous if not offensive visuals and words employed in the
      Family Guy
      parody were so substantially different in character and form from the original use of the song in the Walt Disney movie
      Pinocchio
      that no one could ever confuse the two or fail to realize that Fox’s use was a parody.

### Transformative or Theft?

A very interesting case involving fair use was decided by the U.S. Court of Appeals for the Second Circuit on April 25, 2013. It overturned a 2011 district court ruling that artist Richard Prince had acted
      illegally by using another artist’s photographs to create a series of collages and paintings. Such borrowing of another’s work is considered fair use only if it is “transformative” in some substantial way, and the district judge held that it was not because the collages did not comment on the original work explicitly. The federal circuit disagreed, holding that explicit references to the original work are not required so long as the required “transformation” is manifested by “an entirely different aesthetic” in the secondary work.
According to the appeals court:

### Fair Use for Public Good

The fair use clause also allows libraries and archives that are open to the public, or researchers in a specialized field, to use copyrighted materials for the purpose of preservation and security of the material or as a deposit for research. These libraries and archives can keep up to three copies of a copyrighted work, but a copyright notice must be included on each copy. Libraries and archives will not be held liable for “unsupervised use of reproducing equipment located on its premises” if there is a notice on the equipment that a copy may be subject to copyright law.
        17 U.S.C. § 108 Retrieved from
        http://www.law.cornell.edu/uscode/text/17/108.

      Any use of photocopied copyrighted materials must be specifically for private study, scholarship, or research, and any other use constitutes infringement. Photocopying copyrighted materials in a business setting is also infringing if used outside of
      research.
Academic institutions also are protected by specific rules regarding fair use, pursuant to an agreement between representatives of the publishing industry and of academic institutions negotiated in the 1970s. The photocopying of a
      copyrighted work for the classroom is permitted if it is limited to:

        Library of Congress. (2009, November). Reproduction of Copyrighted Works By Educators And Librarians. Retrieved from
        http://www.copyright.gov/circs/circ21.pdf.

But even in the above academic uses, limitations apply regarding the size of both the audience and the content to be copied. For example, teachers may photocopy works only for students enrolled in the class. The photocopied
      material must also pass brevity, spontaneity, and other tests. “Brevity” means no more than 250 words of a poem, 2,500 words of a prose work, or 10 percent or 1,000 words of an excerpt of a prose work may be used. In addition, the decision to photocopy the material must be spontaneous; the photocopied material must be used only for one course and one class term; no more than one poem, article, story, or essay—and no more than two excerpts—may be copied from the same author; and such bulk photocopying must be limited to nine instances per class during one term.
      Derived from The President and Fellows of Harvard College. (2008).

Finally, copyrighted works may not be photocopied and used in educational settings as a substitute for required texts, photocopies may not be mandatory, and you cannot charge for the photocopied work (although you may recoup the costs of photocopying).
        Copyright Law Revision (House Report No. 94-1476) Retrieved from
        http://uscode.house.gov/download/pls/17C1.txt.