Obama Administration's 2010 IP Enforcement Strategic Plan

New report from the Obama Administration's IP Czar
2010 Joint Strategic Plan on IP Enforcement


 Purchase Copyright Litigation Handbook from West here  

Copyright, TM and Counterfeit Chic: Fordham Law Launches Fashion Law Institute

Prof. Susan Scafidi, author of the Counterfeit Chic blog, is launching the nation's first-ever fashion law institute at my alma mater, Fordham Law School.  The web page is sexy and politically incorrect - if not Page Six - worthy - with boldface names like Dian Von Furstenburg and no equal time for men's footwear.   Who designed those shoes?  This is all a good thing.  A female model earns 7x to 9x what a male model does - it is a reality that does not - and should not - have the world up in arms.

I have represented fashion designers, fashion photographers, model agencies, fashion models, and a company called FashionTV for years - it is a whole different world and it is good to see a legal program launched that takes a serious look at this odd world where image is everything and buccaneers abound.   For about three years of my life in a federal proceeding I wrangled over whether the mark FASHIONTV infringed on the mark FASHION TELEVISION.   After winning summary judgment on the trademark claim, I won an unfair competition trial with Skadden Arps as my adversary.   As Cindy Adams would say, only in New York.

Pro-IP Act of 2008 - GAO Report on Counterfeits and Counterfeit Statistics

Loren Yager, Director of International Affairs and Trade of the Government Accountability Office (GAO) recently issued a report to Congress that was mandated by the Pro-IP Act of 2008 titled:  Intellectual Property:  Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods.  The 41-page report is found here.

The report makes no recommendations and is a follow up of another GAO report issued in March 2008 pursuant to a directive in the Pro-IP Act of 2008 titled Intellectual Property: Federal Enforcement Has Generally Increased, but Assessing Performance Could Strengthen Law Enforcement Efforts found here.

That report made a lot of sensible recommendations to law enforcement.

But the new GAO Report debunks all of the statistics thrown around by industry relating to the amount of IP infringement and its effects on the economy.   It basically concludes that both industry and government are simply making up numbers that have no basis in fact.  It contains a good simple discussion of the government agencies involved in the issue of infringement and their relative functions.  For example, it looks at the OECD "Rule of Thumb" that 5-7% of all commerce is in counterfeits and finds no factual basis for this.  The GAO looks at other statistics attributed to governmental agencies and finds all of them to have no basis in fact.

Fake pharmaceuticals pose a particular problem that I have not studied and that have truly life-threatening consequences.  You will recall the American antihero played by Orson Welles in The Third Man and his role in fake pharmaceuticals - a crime of tremendous horror in one of the greatest films ever made.

But on the copyright end, it is really too bad that the GAO didn't count Prof. William Patry and his excellent Moral Panics and the Copyright Wars among its experts and sources consulted.  In the field of copyright Prof. Patry has gathered more empirical specifics on the economic arguments involved in copyright issues and on the effects of infringement on the U.S. economy.

In Moral Panics Chapter on How the Copyright Wars Are Being Fought and Why, Patry's section titled "Chicken Little and False Figures" - Patry performs a debunking of trade industry statistics similar to that of the GAO. He also debunks the term "pirated" goods when used as a metaphor for copyright infringement and decries industry attempts to convince Congress that downloading a song is somehow connected to terrorism.

I would like to see studies broken down by industry and arguments broken down by product.

International Copyright CLE Program Online

I recently participated in a continuing legal education program at the New York County Lawyers' Association called International Copyright: What the U.S. Practitioner Needs To Know.

The CLE session is available on DVD from NYCLA or online at Lawline here. We had a great panel, moderated by Jay Kogan of D.C. Comics that included Axel Nordemann and Christian Czychowski from Boehmert & Boehmert in Germany, Johnny Chen of Divx, and Mario Sorensen Garcia from Brazil. Faculty bios here.

The program covered not only the legal concepts of international copyright and interpreting the treaties, but had a number of "real life" stories about how businesses working internationally protect and enforce copyrights.

My topic was "Foreign Copyrights in U.S. Courts".

The course description below:

Since United States copyrights are a major export, many practitioners are called upon to protect clients’ interests worldwide and negotiate licensing agreements requiring a knowledge of copyright regimes around the world. In-house counsel and outside counsel are also often called upon to assist U.S. clients in solving copyright problems worldwide.
This program identified the problems that arise for U.S. clients and provided drafting tips, together with a survey of the analytical tools and resources necessary for a U.S. practitioner to effectively craft practical solutions.