A SCOTUS Lesson: Yates and the Construction of Materiality

A fish is no doubt an object that is tangible,” but a fish is not a “tangible object” for purposes of Section 1519 of the Sarbanes-Oxley Act.

That’s the Supreme Court of the United States, in Yates v. United States, decided today.

What’s more, for copyright enthusiasts, “A tangible
object captured by §1519, we hold, must be one used to record or preserve information.” Not that copyright law itself had anything to do with this case. But limiting “objects” to “objects that record information” reminds me of copyright’s circular definitions of “copy” and “fixation.” A copy is an object in which a work is fixed; a work is fixed when it is embodied in a copy. Here, an object is something that records information. And something that records information (a “record”) is an object. Small wonder that four Justices decided that they wanted no part of this fishy business. But Justice Kagan’s dissent has to be right: You can hold a fish in your hand, and by any ordinary, sensible reading of the phrase “tangible object,” the fish counts. The Supreme Court can making something out of nothing, but can it really make nothing out of something?

@SCOTUSBlog coverage here.

@LanguageLog coverage here.

Scholarly IP Conferences Roundup from @PatentScholar

Intellectual property researchers, especially younger and newer researchers, may at times feel overwhelmed (or, alternatively, underinformed) regarding which conferences, symposia, workshops, and so forth are the “right” or “best” venues for sharing their work and meeting colleagues.

Lisa Larrimore Ouellette (@PatentScholar) has a brilliant post up at her Written Description blog that opens a dialogue about those concerns, and more.

Read: Academic IP Conferences, http://writtendescription.blogspot.com/2015/02/academic-ip-conferences.html

Something New for Law Reviews

More than a dozen years ago, students at my law school came to me and proposed that I become the faculty advisor to a new student-edited specialty law journal in technology law and policy. I agreed and navigated the proposed journal through our internal approvals process. Success! I proudly shared my mini-professional success, and my school’s advancing in the IP/technology law ranks, with a senior colleague who had been a mentor to me. Hearing the news that another specialty technology law journal had launched, the response was an underwhelming and almost incredulous “another one?”

Since then, I have worked with the students to make the journal relevant, sometimes with more success and sometimes with less. My message has always been: speak to the regional audience. Pittsburgh (like many re-emerging economies) is in dire need of thoughtful law and policy analysis.

Last Fall, at Concurring Opinions Dave Hoffman wrote a short piece summarizing his three-part advice to law review student authors and editors, including focusing their writing on shorter, more usable pieces. I’m happy to say not only that I agree with him, but also that at TLP, we have all three items on his list already in place and practice. The big one is: write short pieces about recent stuff, not bloated “notes” about appellate judicial opinions.

Over the last three years, Pittsburgh’s Journal of Technology Law & Policy has set its sails properly, and now the winds of progress are blowing in our favor. Beginning in the Fall of 2012, “TLP,” as the journal is known here, has focused much of its effort on publishing student-produced series of short law and policy pieces that address technology topics of interest to the Pittsburgh region. Each one is introduced by a short paper authored by a notable law and/or policy person, both to give the series some higher-level framing and to bring the series some of the public attention that it deserves.

The most recent of TLP’s “Student Article Series” is now online, at tlp.law.pitt.edu. The theme is “smart cities,” and the introduction is by Pittsburgh’s Mayor, Bill Peduto.

#FreeLeftShark #3DLeftShark #LeftShark Updates

IP lawyers around the US are enjoying a guilty pleasure: watching a battle of wits between lawyers representing Katy Perry, the pop star whose Super Bowl halftime show gave the world the Internet phenomenon known as “Left Shark” (a man in a shark costume dancing next to Katy Perry but bouncing and flapping, as it were, to his own beat), and the lawyer representing an artist who created a design for a 3D-printable figurine of a small Left Shark.  (That lawyer is Chris Sprigman, @CJSprigman, from NYU Law.)

Katy Perry claims that she owns a copyright in the Left Shark costume, and she has demanded that the design for the figurine be removed from Shapeways, an online market.

Responding, Chris Sprigman makes “there is no copyright in Left Shark” arguments as clearly and carefully as they can be made, but he makes them so skillfully and with such awareness of the stakes (for the Princess? to the death?) that his side of the exchange with KP’s lawyers is nothing less than a jewel of great lawyering, presented on a public stage.  He possesses, in other words, an immunity to iocane powder.

The best way to follow along is to read the blog posts of Fernando Sosa, @Amznfx, the artist.  The blog includes copies of all of the correspondence.  The CBC has a nice radio program covering the topic, beginning with Left Shark and expanding to a discussion of the IP aspects of 3D printing.

Left Shark figurines are available at https://www.etsy.com/shop/amznfx.