'It's a lot bigger than the band': The Slants challenge ruling rejecting trademark for their name; Pittsburgh Post-Gazette, April 27, 2017

Paula Reed Ward, Pittsburgh Post-Gazette; 

'It's a lot bigger than the band': The Slants challenge ruling rejecting trademark for their name

[Kip Currier: Fascinating panel discussing Lee v. Tam case and broader issues of trademark law and free speech. The Slants performed after the panel. I spoke with the defendant, Simon Tam, who was a member of the panel and did a masterful job using "story" to make his points, and he insisted that the rest of the band sign the band poster I bought.]

"“I should be able to say what I want to say that my community doesn’t find offensive,” Mr. Tam said. “At the end of the day, it’s a lot bigger than the band.”

On Thursday, Mr. Tam and his bandmates — he describes their music as 80s-inspired synth pop — spoke at a panel discussion at Duquesne University before an evening performance. It’s part of a six-week tour that has hit clubs, law schools, intellectual property workshops and anime conferences.

The tour is to raise awareness of the ongoing court case, Lee v. Tam. In it, the U.S. Patent and Trademark Office appealed a decision by the U.S. Court of Appeals for the Federal Circuit, which found in Mr. Tam’s favor in December 2015.

Mr. Tam’s original trademark application, made in 2009, was rejected because it was found to violate the Lanham Act, which prohibits a trademark if it “consists of matter which may disparage persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt, or disrepute.”"

April 27, 2017 Panel: A Name Worth Fighting For? The Slants, Trademark Law, and Free Expression; Duquesne University, Pittsburgh, Pennsylvania

[Kip Currier: Looking forward to attending this panel--addressing very interesting IP and free speech issues--and hearing the band play afterwards]

A Name Worth Fighting For? The Slants, Trademark Law, and Free Expression

Event Date: 

Thursday, April 27, 2017 - 4:30pm to 7:00pm

Event Location:

• Union Africa Room (3rd Fl.)

Event Audience:

• Alumni
• Current Students
• General Public

Cost: 

$60.00 
$60 or $50 for CLE Program, Reception, and Music

Continuing Legal Education

A Name Worth Fighting For? The Slants, Trademark Law, and Free Expression 

Join Duquesne Law, the Pittsburgh Intellectual Property Association, and the Federal Bar Association’s Pittsburgh chapter for a special program about the rock band that is the subject of a current U.S. Supreme Court case. 

The continuing legal education (CLE) course focuses The Slants, an Asian-American musical group whose trademark application was denied for its use of a term deemed derogatory, and the case Lee v. Tam. 

The program features Simon Tam, the band’s founder and bassist, Hon. Cathy Bissoon of U.S. District Court, Western District of Pennsylvania, and Christine Haight Farley, a law professor from American University. Associate Dean Jacob H Rooksby, an intellectual property professor at Duquesne, will moderate a discussion about trademark law, including whether the band’s choice to claim the name should be protected by the First Amendment.

The CLE will review Section 2(a) of the Lanham Act of 1946, which the U.S. Patent and Trademark Office used to deny the band’s trademark application; the U.S. Court of Appeals for the Federal Circuit’s decision reversing the trademark office’s determination; and freedom of expression issues. 

The U.S. Supreme Court heard oral argument on Lee v. Tam in January. The ongoing legal battle has been covered by the New York Times, NPR, and other media outlets. This CLE will offer insight into the fight by the band’s founder as well as an opportunity to hear the group’s music. A 45-minute concert and light reception will follow the CLE program.

4:30 p.m. – 6 p.m. CLE

6:15 p.m. – 7 p.m. Concert 

Judge tosses challenge to M-22 logo trademark; Michigan Radio, April 25, 2017

Rick Pluta, Michigan Radio; 

Judge tosses challenge to M-22 logo trademark

"A federal judge has thrown out the state’s challenge to a Traverse City business that trademarked a highway sign.

The company brands t-shirts, water bottles, wine, and other merchandise with the M-22 logo. Attorney General Bill Schuette said a company can’t do that because the sign belongs to the public. But a federal judge said the state couldn’t show how its interests are harmed by the trademark."

‘Remix’ or plagiarism? Artists battle over a Chicago mural of Michelle Obama.; Washington Post, April 24, 2017

Derek Hawkins, Washington Post; ‘Remix’ or plagiarism? Artists battle over a Chicago mural of Michelle Obama.

"Devins’s mural had only been up for a matter of hours when word got back to Mesfin. She objected to the use of her work without permission in a widely circulated Instagram post that triggered a wave of outrage online, saying she felt like Devins stole her piece.

“I was very disheartened when he did that,” Mesfin told The Washington Post. “There’s a common code among all artists that you can get inspired by someone’s work but you have to pay homage and you have to give credit for it.”...

Devins said he never intended to take credit for Mesfin’s creation, which itself was based off a portrait in the New York Times by photographer Collier Schorr. Mesfin credited Schorr’s work on her Instagram post...

Devins said he came across Mesfin’s drawing on the sharing site Pinterest and was unable to track down the artist. He explained his decision to use the image without permission in an analogy, saying he was creating a “remix” of a piece of art in the way that a DJ remixes songs."

'Reconstituted' Arthur Andersen closes U.S. offices amid trademark infringement suit; Accounting Today, April 20, 2017

Michael Cohn, Accounting Today; 

'Reconstituted' Arthur Andersen closes U.S. offices amid trademark infringement suit

"The original Arthur Andersen and Andersen Worldwide collapsed in the wake of the Enron and WorldCom accounting scandals of the early 2000s. However, the new entity's rights to the Andersen brand and trademark were challenged by Andersen Tax, a firm founded by a group of 23 former Andersen partners that has been growing its presence around the world after buying the rights to the Andersen name and changing its name from WTAS to Andersen Tax in 2014 (see Firms vie over rights to Arthur Andersen name).

Andersen Tax CEO Mark Vorsatz filed suit against Laffont-Réveilhac and several of his colleagues in France and the U.S. accusing them of trademark infringement, as the legal battle grew more contentious (see Dispute over Arthur Andersen name heats up). With former CEOs and managing partners of the original Arthur Andersen throwing their support behind Andersen Tax, along with the founder's great-granddaughter Kristin Andersen, the new Arthur Andersen canceled a press conference that was scheduled for last month in New York in which it had promised to answer questions about the dispute and provide testimonials from several Andersen alumni (see Former Andersen chiefs support Andersen Tax in dispute over Andersen name and Dispute over Arthur Andersen legacy continues)."

Four Reasons EMC Was First To Use A Trademark And Still Lost Its Case; Forbes, April 19, 2017

Jess Collen, Forbes; 

Four Reasons EMC Was First To Use A Trademark And Still Lost Its Case

"Do you get superior rights to use a trademark when you are the first to file for registration with the United States Patent and Trademark Office?

Not necessarily. A lot of companies know this already. The earliest date of first use usually prevails, even over a federal trademark registration. Sometimes, the question of “who did what, and when?” is difficult to sort out. To earn trademark rights, you must use the mark in a way that creates a sufficient association between your trademark, and your product, in the minds of the purchasing public. Not all use is created equal."

Copyright system needs to be replaced: Vanderbilt professor; Research News @ Vanderbilt, April 20, 2017

Jim Patterson, Research News @ Vanderbilt; 

Copyright system needs to be replaced: Vanderbilt professor

"In his new book, (Re)stucturing Copyright: A Comprehensive Path to International Copyright Reform (2017, Edward Elgar Publishing), Gervais suggests replacing the current copyright system with something much simpler.

“I’m proposing a system that rewrites all the rights and exceptions in a structured way,” he said. “Ultimately, we need a new version of the Berne Convention. It would send a great signal if the countries got together and said, ‘Let’s fix this.’”

Gervais suggests a broader use of licensing without affecting fair use. This would allow the use of more copyrights but also help creators to get paid. He acknowledges there are some users who are determined not to pay, but believes it is less of a problem than it seems...

“If we put aside this civil war mentality between users and providers, there would probably be far less money lost to piracy than most people think.”"

Torching the Modern-Day Library of Alexandria: "Somewhere at Google there is a database containing 25 million books and nobody is allowed to read them."; The Atlantic, April 20, 2017

James Somers, The Atlantic; Torching the Modern-Day Library of Alexandria: "Somewhere at Google there is a database containing 25 million books and nobody is allowed to read them."

"After the settlement failed, Clancy told me that at Google “there was just this air let out of the balloon.” Despite eventually winning Authors Guild v. Google, and having the courts declare that displaying snippets of copyrighted books was fair use, the company all but shut down its scanning operation.

It was strange to me, the idea that somewhere at Google there is a database containing 25-million books and nobody is allowed to read them. It’s like that scene at the end of the first Indiana Jones movie where they put the Ark of the Covenant back on a shelf somewhere, lost in the chaos of a vast warehouse. It’s there. The books are there. People have been trying to build a library like this for ages—to do so, they’ve said, would be to erect one of the great humanitarian artifacts of all time—and here we’ve done the work to make it real and we were about to give it to the world and now, instead, it’s 50 or 60 petabytes on disk, and the only people who can see it are half a dozen engineers on the project who happen to have access because they’re the ones responsible for locking it up."

COMIC LEGENDS: WHY CAN’T BATMAN’S BUTTON APPEAR IN EUROPE?; Comic Book Resources, April 21, 2017

Brian Cronin, Comic Book Resources; COMIC LEGENDS: WHY CAN’T BATMAN’S BUTTON APPEAR IN EUROPE?

"It all goes back to Franklin Loufrani, a Frenchmen who trademarked the famous “Smiley” face in Europe in the early 1970s. It had been around before that in the United States, but no one had bothered to trademark it. Franklin Loufrani did, though, as he used it in his newspaper. He then formed a company, the Smiley Company, to manage the trademark. When his son took it over in 1996, he really began to push the trademark and made the company a very successful company through the licensing of the trademarked image in Europe.

In the United States, though, the Smiley face had been used for years in various places. Wal-Mart, in particular, used it all over their stores. In 1997, Smiley Company tried to begin enforcing their trademark in the United States, which led to a long, drawn-put lawsuit with Wal-Mart. Wal-Mart even began to phase out the Smiley Face mark from their stores because they believed that they would ultimately lose (or, if they DID lose, they didn’t want to be unprepared).

In 2008, however, a United States Patents and Trademark Court ruled that the Smiley face mark was too generic to be trademarked and that the mark was in the public domain in the United States, which is how it had been treated for years up until that point. However, the mark remains protected by EUROPEAN trademark law."

McGill institute takes open science to a new level; University Affairs/Affaires universitaires, April 19, 2017

Tim Lougheed, University Affairs/Affaires universitaires; 

McGill institute takes open science to a new level

"According to Richard Gold, a professor in McGill’s faculty of law, that steep price tag should not surprise advocates of what has been dubbed the open science initiative. These advocates regularly invoke the mantra that “knowledge wants to be free,” but such freedom comes with a daunting checklist that can only be completed by paying for a great deal of time, talent and physical resources.

“The data has to be collected, you have to make sense of it, curate it, you have to build the software, you have to have the hardware to deliver it, you have to make sure the format of the data is what people want, that it’s precise enough, that we’re transparent about how the data was collected,” says Dr. Gold...

For his part, Dr. Rouleau has seen little to suggest that the effect will be anything but positive for all concerned. During early consultations with the research community, he was greeted by a range of responses to this attempt to resolve what he calls the “perverse effect” of intellectual property."

Are My Customer Lists a Trade Secret?; lexology.com, April 17, 2017

Alex Meier and Eric Barton, Seyfarth Shaw LLP, lexology.com; 

Are My Customer Lists a Trade Secret?

"A lawyer’s favorite phrase might be “it depends.” And when an employer asks whether its customer lists qualify as a trade secret, “it depends” is often the answer. But even if it’s difficult to definitively state whether customer lists qualify as a trade secret, the converse—whether customer lists might not constitute a trade secret—can be helpful to assessing how much protection a court will provide.

With the advent of the Uniform Trade Secrets Act (“UTSA”), no state categorically denies trade-secrets status to customer lists. That’s because the default definition of a “trade secret” under the UTSA includes compilations of information, and several states modified the default definition to explicitly include customer lists as potential trade secrets."

Proehl: How long does a patent last?; Sioux Fall Business Journal via argusleader.com, April 18, 2017

Jeffrey Proehl, Sioux Fall Business Journal via argusleader.com; 

Proehl: How long does a patent last?

"The tenth and last question in the series of questions regarding patents is: How long does a patent last?

The term of a utility patent begins the day the patent is issued and has the potential to last for 20 years from the earliest filing date accorded to the patent application that became the patent. In order for the patent to remain in effect for the entire potential term, the patent owner must periodically pay a maintenance fee to the U.S. Patent and Trademark Office (USPTO). Payment of three maintenance fees is typically required for the full 20-year term."

Ivanka Trump won Chinese trademarks the same day she dined with China's president; Associated Press via Los Angeles Times, April 19, 2017

Associated Press via Los Angeles Times; Ivanka Trump won Chinese trademarks the same day she dined with China's president

"On April 6, Ivanka Trump's company won provisional approval from the Chinese government for three new trademarks, giving it monopoly rights to sell Ivanka brand jewelry, bags and spa services in the world's second-largest economy. That night, the first daughter and her husband, Jared Kushner, sat next to the president of China and his wife for a steak and Dover sole dinner at Mar-a-Lago, her father’s Florida resort.

The scenario underscores how difficult it is for Trump, who has tried to distance herself from the brand that bears her name, to separate business from politics in her new position at the White House."

Engineer, Prince's estate face off in court over unreleased music; MPRNews, April 19, 2017

Tim Nelson, MPRNews; 

Engineer, Prince's estate face off in court over unreleased music

"Prince's estate is suing a California sound engineer who is offering a multi-song selection of unreleased music from the late pop icon. The two sides faced off in an 80-minute federal court hearing Wednesday afternoon before U.S. District Court Judge Wilhelmina Wright in St. Paul."

Why The US Can't Afford To Fall Behind In Intellectual Property Enforcement; Forbes, April 17, 2017

Mark Elliot, Forbes; 

Why The US Can't Afford To Fall Behind In Intellectual Property Enforcement

"It’s not hard to see that the U.S. has more skin in the game when it comes to intellectual property. But that is why it might come as a surprise to some that America no longer leads the world when it comes to IP enforcement: the U.S. Chamber of Commerce 2017 International IP Index shows that the U.S. now ranks fifth, behind the U.K., Sweden, France and Germany. Given the high stakes, this is certainly not a new normal we should embrace.

So, how did we get here? The Chamber’s Index identified as a key weakness our: “inconsistent enforcement against counterfeit and pirated goods.”"

Company sued EFF over “Stupid Patent of the Month;” EFF now flips the script; Ars Technica, April 13, 2017

Cyrus Farivar, Ars Technica; 

Company sued EFF over “Stupid Patent of the Month;” EFF now flips the script

"The Electronic Frontier Foundation has sued an Australian company that it previously dubbed as a "classic patent troll" in a June 2016 blog post entitled: "Stupid Patent of the Month: Storage Cabinets on a Computer."

Last year, that company, Global Equity Management (SA) Pty. Ltd. (GEMSA), managed to get an Australian court to order EFF to remove its post—but EFF did not comply. In January 2017, Pasha Mehr, an attorney representing GEMSA, further demanded that the article be removed and that EFF pay $750,000. EFF still did not comply.

The new lawsuit, filed in federal court in San Francisco on Wednesday, asks that the American court declare the Australian ruling unenforceable in the US. Why? According to the EFF argument, the Australian ruling runs afoul of free speech protections granted under the United States Constitution—namely, that opinions are protected.

GEMSA attorneys have threatened to take this Australian court order to American search engine companies to deindex the blog post, making the post harder to find online."

Stopping trade secret theft in your organization; CSO, April 10, 2017

Frederick Scholl, CSO; 

Stopping trade secret theft in your organization

"The recent Google vs. Uber self-driving car litigation has brought trade secret theft into the news again. I have blogged on this topic before. In this post and the next three I will take a deeper dive into trade secret theft and how you can reduce the chance you will be the next victim.

Trade secret theft is one of the major cybersecurity risks of our time. Organizations now lose nearly $300 billion per year due to theft or misappropriation of intellectual property." 

The Charging Bull Sculptor Is Right. Fearless Girl Should Go.; Slate, April 12, 2017

Christina Cauterucci, Slate; 

The Charging Bull Sculptor Is Right. Fearless Girl Should Go.

"Artist Arturo Di Modica, who installed his bull sculpture under the cover of night after the 1987 stock-market crash, called on Wednesday for New York City authorities to remove the girl statue, saying it violates his rights as an artist...

Though it’s rarely been invoked, the Visual Artists Rights Act of 1990 protects artists from having their works destroyed, moved, or altered under specific circumstances. Di Modica may have been able to argue a violation of his copyright under VARA if he could convince a judge that the city modified his work or damaged its integrity in a way that harmed his reputation, which the city almost certainly did. But the law doesn’t apply to artworks created before the law’s enactment, meaning Di Modica will have to find another legal basis if he decides to sue the city."

'Charging Bull' sculptor calls for New York to remove 'Fearless Girl' statue; Guardian, April 12, 2017

Jamiles Lartey, Guardian; 

'Charging Bull' sculptor calls for New York to remove 'Fearless Girl' statue

"Siegel and Di Modica have asked the city of New York to remove the statue, which became something of a phenomenon when it was first installed earlier this year, and tied by many to the global Women’s March movement. They say the city should place the “Fearless Girl” somewhere else where it no longer relies on the “Charging Bull”. “The work is incomplete without Mr Di Modica’s Charging Bull, and as such it constitutes a derivative work,” Seigel said, noting that the statue of the girl, hands on her hips, only becomes “fearless” because of the much larger, aggressive bull.

Siegel pointed to a 1990 copyright statute that grants visual artists the right “to prevent any intentional distortion, mutilation or other modification of that work which would be prejudicial to [the artist’s] reputation”.

In addition to the removal of the statue, Di Modica was seeking unspecified damages from the city of New York. Siegel said, however, that his client had not filed a lawsuit yet and is hoping the city – specifically its mayor, Bill de Blasio – will come to the table with the artist in good faith. De Blasio recently extended “Fearless Girl’s” permit through March 2018 and has called it a symbol of “standing up to fear, standing up to power” and doing what’s right. Seigel said the “inescapable implication” was that Di Modica’s bull became “a force against doing what’s right”."

U.S. Companies Should Register Trademarks in Cuba Early; Boomberg BNA, April 7, 2017

Peter Leung, Bloomberg BNA; 

U.S. Companies Should Register Trademarks in Cuba Early

"The thawing of U.S.-Cuba relations means American companies should consider registering their marks in the island nation to head off trademark squatters, lawyers said.

The expectation of increased trade between the countries has led to more unauthorized registrations of trademarks used by American companies, Katherine Van Deusen Hely of Caribbean IP PLLC said April 5 at the American Bar Association’s Annual Intellectual Property Law Conference...

Timely registration is particularly important with Cuba’s first-to-file trademark system which differs from the U.S., where registration is based on earliest, continuous use of a trademark."

32nd Annual Intellectual Property Law Conference April 4-6, 2017, Crystal Gateway Marriott, Arlington, VA

Kip Currier: 

Attending 32nd Annual Intellectual Property Law Conference

April 4-6, 2017, 

Crystal Gateway Marriott, 

Arlington, VA

Sessions and events for Day 2, Thursday, April 6:

Thursday, April 6

7:30 am – 5:00 pm	Registration
7:00 am – 8:15 am	Women in IP Law Breakfast
8:30 am – 10:00 am	Patent: AIA Trials Before the PTAB
8:30 am – 10:00 am	Trademark: Shush - Are We Permitted to Say...?
8:30 am – 10:00 am	Copyright: Are The Times A-Changin' in Copyright Law?
10:15 am – 11:45 am	Patent: Patent Year in Review
10:15 am – 11:45 am	Trademark: Here Comes the Judge: Mock Preliminary Injunction
10:15 am – 11:45 am	Copyright: DMCA 101: Post-Lenz
12:00 pm – 1:30 pm	Keynote Speaker Luncheon Featuring: Maureen K. Ohlhausen · Commissioner · Federal Trade Commission · Washington, DC
1:45 pm – 3:15 pm	Specialty: The New Landscape of Trade Secrets
1:45 pm – 3:15 pm	Specialty: The (Gold) Stars Realigned: Post Brexit UK
1:45 pm – 3:15 pm	Specialty/Ethics: Ethics in IP: Interactive Round Tables
3:30 pm – 5:00 pm	Specialty/Patent: What Makes a Valuable IP Portfolio?
3:30 pm – 5:00 pm	Specialty: All the Crime We Cannot See
3:30 pm – 5:00 pm	Specialty/Ethics: Duty of Loyalty: Avoiding Conflicts of Interest in IP

32nd Annual Intellectual Property Law Conference April 4-6, 2017, Crystal Gateway Marriott, Arlington, VA

Kip Currier: 

Attending 32nd Annual Intellectual Property Law Conference

April 4-6, 2017, 

Crystal Gateway Marriott, 

Arlington, VA

Sessions and events for Day 1, Wednesday, April 5:

Wednesday, April 5

7:00 am – 5:00 pm	Registration
7:15 am – 8:30 am	Conference Connections New Members · First-Time Attendees · Young Lawyers
8:30 am – 10:00 am	Patent: Ten Lessons for Patent Prosecutors from Litigation
8:30 am – 10:00 am	Trademark: Get Ready for Cuba!
8:30 am – 10:00 am	Copyright: Legal Compliance... I Choose You!
10:15 am – 11:45 am	Patent: Ask the Office: Hot Topics from the US Patent and Trademark Office
10:15 am – 11:45 am	Trademark: Gripe Sites and Takedown Notices
10:15 am – 11:45 am	Copyright: Copyright 2016 at a Gallop
12:00 pm – 1:30 pm	Mark T. Banner Awards Luncheon
1:45 pm – 3:15 pm	Patent: Save the Date: Priority Practice Points
1:45 pm – 3:15 pm	Trademark: The USPTO Speaks: An Update from the USPTO and TTAB
1:45 pm – 3:15 pm	Copyright: Securitizing of Artists' and Athletes' Careers
3:30 pm – 5:00 pm	Specialty: Implicit in Your Practice
3:30 pm – 5:00 pm	Trademark/Copyright: Not in My Backyard: Blocking Infringement at the Real and Virtual Border
3:30 pm – 5:00 pm	Specialty: Cannabis: Examination of IP
5:00 pm – 6:00 pm	Reception: Opportunities for Publishing with the ABA-IPL Section
6:15 pm – 7:15 pm	Sponsor Reception
7:30 pm – 9:30 pm	Conference Reception: Taking it Back...To the 80s
9:30 pm – 10:30 pm	LGBT Diversity Dessert Reception

EFF Says No to So-Called “Moral Rights” Copyright Expansion; Electronic Frontier Foundation (EFF), March 30, 2017

Kerry Sheehan and Kit Walsh, Electronic Frontier Foundation (EFF): 

EFF Says No to So-Called “Moral Rights” Copyright Expansion

"The fight over moral rights, particularly the right of Integrity, is ultimately one about who gets to control the meaning of a particular work. If an author can prevent a use they perceive as a “prejudicial distortion” of their work, that author has the power to veto others’ attempts to contest, reinterpret, criticize, or draw new meanings from those works...

A statutory right of attribution could also interfere with privacy protective measures employed by online platforms. Many platforms strip identifying metadata from works on their platforms to protect their users' privacy, If doing so were to trigger liability for violating an author’s right of attribution, platforms would likely be chilled from protecting their users’ privacy in this way.

For centuries, American courts have grappled with how to address harm to reputation without impinging on the freedom of speech guaranteed by the First Amendment. And as copyright’s scope has expanded in recent decades, the courts have provided the safeguards that partially mitigate the harm of overly broad speech regulation."

London Book Fair 2017: Judge Pierre Leval Defends Google Books Decision, Fair Use; Publishers Weekly, March 16, 2017

Andrew Albanese, Publishers Weekly; 

London Book Fair 2017: Judge Pierre Leval Defends Google Books Decision, Fair Use

"In a packed room for the LBF’s 2017 Charles Clark Memorial Lecture, Judge Pierre Leval, America’s foremost copyright jurist and a judge on the U.S. Court of Appeals Second Circuit, told attendees that Google’s program to scan tens of millions of library books to create an online index “conferred gigantic benefits to authors and the public equally,” and did not “offer a substitute or interfere with authors’ exclusive rights” to control distribution.

“It was,” Leval concluded, “not a, quote, close case.”

Leval delivered his remarks in what was billed as a debate with intellectual property lawyer and former General Counsel for the U.S. Copyright Office, Jon Baumgarten. But at the outset, both Leval and Baumgarten—long time acquaintances—downplayed the debate aspect. Rather, at a time when proposed exceptions to copyright law have many publishers in the U.K. and Europe on edge, Leval spoke mainly as an ambassador for the American doctrine of fair use...

The key to American fair use, he said, was the flexibility the law gives judges. While he acknowledged there is something to be said for “predictability and bright line rules,” he insisted that hard and fast standards do not best serve the purpose of copyright...

In his portion of the talk, Baumgarten reiterated the publishing community’s main complaints with the decision, and about fair use in the digital age more broadly. Most prominently, that the decision overly expanded the right to freely copy others’ works, which, if widely practiced in the digital age will harm rightsholders. He also bemoaned what he saw as the courts’ expansion of what “transformative” means."