Welcome to IPNTA.com, online home of Intellectual Property in the New Technological Age. This website supports professors and students interested in learning more about Intellectual Property in the New Technological Age, co-authored by Peter Menell, Mark Lemley, and Robert Merges.
2019 Editions Now Available
We are pleased to announce publication of Intellectual Property in the New Technological Age: 2019 (Volume I: Perspectives, Trade Secrets & Patents and Volume II: Copyrights, Trademarks & State IP Protections). It covers the Supreme Court's IP cases from the current Term and other recent developments—most notably passage of the Music Modernization Act.. The format and coverage follows IPNTA2018. In addition, we will continue to offer Intellectual Property Statutes. IPNTA has long been the best-selling general intellectual property coursebook. The volumes are priced dramatically below traditional publisher pricing: Volume I sells for $25; Volume II sells for $30; and IP Statutes sells for $30. During our three years of self-publishing, students saved over $3 million compared to traditional publisher pricing.
While the books are designed to work together for a survey course, they are available for sale separately. Some professors teaching one, two, or three credit IP courses focusing on trade secret law, patent law, copyright law, trademark law, IP in entertainment law, or some combination thereof have adopted Volume I or Volume II. The Introductory and Trade Secret chapters are available for free download.
History of Intellectual Property in the New Technological Age
We began collaborating on this project in 1993. The first six editions of the book were published by Little, Brown & Co., which was acquired by Aspen Law & Business, which was acquired by Wolters Kluwer. The book enjoyed steady growth as the intellectual property field developed. Yet as advances in digital technology reshaped the world around us—from Internet search to online publishing—we, and our adopters and students, saw relatively little change in our publishing market. Prices continued to rise each year. Publishing schedules remained rigid. The publishing of our book seemed suspended in time. Most frustratingly, our students were paying over $250 for a book that generated just $15 in total royalties. This pattern conflicted with the logic of our book and scholarship. Advances in digital technology and competition should have been driving prices down, not up. Our frustration grew.
These issues came to a head in September 2014. When our publisher indicated that we missed the deadline for getting our book into the summer 2015 catalog, we dusted off our original publishing contract from December 1993. In checking the revision clause, we recognized that we held copyright in the work and retained the right to prepare derivative works.
Once we realized that we had the right to self-publish future editions, we faced a choice: stay with a leading publisher or take on the start-up costs and day-to-day operations of self-publishing. Peter had been writing about disintermediation in the media industries and strongly believed the time was ripe to branch out on our own. He posed a simple question: how would we view this choice ten years down the road? A quick review of self-publishing options indicated that we could substantially reduce the cost of our book while providing students with more convenient access—both digital versions and print-on-demand. We hoped to reduce the cost of IPNTA by 75-90%— depending on whether students choose an eBook or print book— from the 6th edition price point. We could also move to annual editions and take control over the production pipeline. This would ensure that our book was always current. Although striking out on our own involved some risk and additional tasks, failing to take this path would perpetuate an obsolete and unjustifiably costly burden on students at a time when they can ill afford it. We decided to take the plunge.
After reviewing options, we decided to begin our self-publishing experiment with Amazon. (We retain copyright ownership and hence flexibility to try other platforms as the marketplace evolves, an important lesson from various media markets.) Amazon’s publishing platform imposes size limits that required us to divide our book into two volumes: Volume I covering Philosophical Perspectives, Trade Secrets, and Patent Law; Volume II covering Copyright Law, Trademark Law, and Other State IP Law Protections. The volumes are available as eBooks and on-demand publishing on Amazon.com. This has the virtues of reducing the weight of what students need to carry around on a daily basis and creating more modular teaching options. Students can order the volumes at the Clause 8 Publishing eStore:
In addition, Chapters 1 and 2 are also available on SSRN so that students can sample the book before committing to the class.
Here is the full Table of Contents (with internal pagination):
Intellectual Property in the New Technological Age
Which brings us to what we hope is a New Publishing Age for all manner of academic publishing. In addition to releasing IPNTA2--- (we plan to designate new editions by publication year rather than volume number), we launched Clause 8 Publishing, a new publishing venture to “promote Progress” in intellectual property education (and possibly more). We plan to introduce a series of complementary products, enhancements, supplementary texts, multimedia, and other resources for adopters and students—at low cost and with easy accessibility. You will be able to learn about these resources at IPNTA.com and Clause8Publishing.com.
Peter has managed the transition of our book to a self-publishing model and will be taking the lead on establishing this platform. Those interested in adopting our book (or anything else about the project) should contact him at firstname.lastname@example.org.
In retrospect, the subject matter covered by our original edition—philosophical perspectives on intangible resources, promoting progress in technology and creative expression, and competition policy—set us on the path to DIY/New Age publishing. Copyright law seeks to harness market forces to encourage creative expression and widespread dissemination. It builds bridges between creators and those who value their work. Digital technology and the Internet enhance these powerful forces by lowering the costs of creation and providing the virtual dissemination bridges. We feel fortunate to have liberated our book and very much look forward to working with law professors and students in building a more productive marketplace and community for IP teaching materials.
New Features of IPNTA2019
Rapid advances in digital and life sciences technology continue to spur the evolution of intellectual property law. As professors and practitioners in this field know all too well, Congress and the courts continue to develop intellectual property law and jurisprudence at a rapid pace. For that reason, we have significantly augmented and revised our text.
The 2019 Edition reflects the following principal developments:
• Trade Secret Law: Congress passed the Defend Trade Secrets Act of 2016, one of the most momentous changes in the history of trade secret protection. The new law opens up the federal courts to trade secret cases, provides for ex parte seizures of misappropriated trade secrets in “extraordinary circumstances,” and establishes immunity for whistleblowers.
• Patent Law: The past several years have witnessed some of the most significant developments in U.S. patent history—from the establishment of the new administrative review proceedings at the Patent Office to important shifts in patent-eligibility, claim indefiniteness, enhanced damages, and equitable remedies at the Supreme Court and means-plus-function claim interpretation and infringement doctrine at the Federal Circuit. We have restructured the patent chapter to illuminate these areas. We have also significantly expanded coverage of design patents in response to the growing importance of this form of protection.
Updated Section 102 discussion with time line illustrations explaining first-to-invent (1952 Act) and first-to-file (AIA) regimes; added note on corroboration of invention dates; update on Helsinn
Updated Section 101 notes to reflect substantial new developments (Berkheimer, Aatrix, Vanda)
Administrative Patent Review: Updated statistics on IPRs
Design Patent: Updated note on apportioning damages to reflect remand of Samsung Electronics Co. v. Apple Inc.
• Copyright Law: The Supreme Court issued important decisions addressing the useful article doctrine, the public performance right and the first sale doctrine. The past few years also witnessed important developments in the Online Service Provider safe harbor and fair. We have also integrated the digital copyright materials into a unified treatment of copyright law and substantially revamped the fair use section to reflect the broadening landscape of this important doctrine. The 2019 edition features:
Substantial update to integrate the Music Modernization Act
New problem on copyrightability of jokes based on lawsuit by comedy writer Alex Kaseberg against Conan O’Brien
New problem based on Dr. Seuss Enterprises v. ComicMix (fair use: Oh the Places You’ll Boldly Go!)
Update on copyright duration (1923 works now in the public domain)
Note on cord cutting and Locast, a nonprofit local broadcasting service
Update on DMCA exemptions
Integration of new cases into notes:
Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019) (registration must be made prior to filing suit)
Revision Comm’n for General Assembly of Georgia v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018) (holding that “the People are the constructive authors of . . . official legal promulgations of government,” meaning that the works are intrinsically public domain material and, therefore, uncopyrightable), cert. granted, Georgia, et al. v. Public.Resource.Org, Inc., ___S. Ct. ___ (2019))
American Society for Testing and Materials v. PublicResource.org, 896 F.3d 437 (D.C. Cir. 2018) (overturning holding that industry standards are copyrightable and remanding for fair use determination).
Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017) (Family Entertainment and Copyright Act of 2005 is not a defense to anticirumvention provisions)
Capitol Records, LLC v. ReDigi, Inc., 910 F.3d 649 (2d Cir. 2018) (rejecting digital exhaustion)
BWP Media USA Inc. v. Polyvore, Inc., 922 F.3d 42 (2d Cir. 2019) (exploring the volition requirement)
Rimini Street, Inc. v. Oracle USA, Inc., 139 S.Ct. 873 (2019) (scope of costs recoverable under Section 505)
• Trademark Law: We have integrated important cases on genericide, federal registrability of disparaging marks, merchandising rights, likelihood of confusion on the Internet, and remedies. The 2019 edition features:
Iancu v. Brunetti, __ S. Ct. __ (June 24, 2019) (holding that FUCT, while vulgar, is registrable
New problem based on Dr. Seuss Enterprises v. ComicMix (protectability)
False Advertising (new case): MillerCoors, LLC v. Anheuser-Busch Companies, LLC, United States District Court, Western District of Wisconsin, 2019 WL 2250644 (2019)
Integration of new cases intro notes:
Moldex-Metric, Inc. v. McKeon Prods., 891 F.3d 878 (9th Cir. 2018) (holding that aesthetic functionality must consider the availability of alternative designs)
Converse, Inc. v. International Trade Comm’n, 909 F.3d 1110, 1124 (Fed. Cir. 2018) (citing Versa Prods. Co. v. Bifold Co. (Mfg.), 50 F.3d 189, 202 (3d Cir. 1995) (“[S]ubstantial similarity of appearance is necessarily a prerequisite to a finding of likelihood of confusion in product configuration cases.”))
Beyonce Knowles-Carter v. Feyonce, Inc., 347 F. Supp. 3d 217 (S.D.N.Y. 2018) (denied summary judgment that “Feyonce” merchandise marketed to fiancés would confuse consumers into thinking it was sponsored by the musician Beyonce)
Sazerac Brands LLC v. Peristyle, LLC, 892 F.3d 853 (6th Cir. 2018) (holding that the defendant’s accurate and good faith reference to the geographic fact that its bourbon is made in “the Former Old Taylor Distillery”—named for Colonel Edmund Haynes Taylor, Jr., a famous distiller in the late 19th century—on its bourbon product was fair use notwithstanding the plaintiff’s trademark on “Old Taylor” for its bourbon product).
Gordon v. Drape Creative, Inc., 909 F.3d 257 (9th Cir. 2018) (application of the Rogers test).
• Other State IP Protections: We have updated material on the right of publicity, an active and growing area. We have also reorganized the chapter and focused it on IP regimes.
Idea Submissions: added note on breach of implied contract claim not subject to Anti-SLAPP suit based on Jordan-Benel v. Universal City Studios, Inc., 859 F.3d 1184 (9th Cir. 2017)
Right of Publicity: added note addressing docudramas based on de Havilland v. FX Networks, 21 Cal. App. 5th 845, 230 Cal. Rptr. 3d 625 (Cal. Ct. App. 2018)
Complimentary Digital Examination Copies for Law Professors Considering IPNTA
As part of our new distribution model, we seek to vastly simplify access to our materials for professors and students. We also want to develop easy and direct lines of communication.
Digital Inspection Copy: Professors interested in downloading a digital examination copy can click on the links below to obtain the entirety of the Table of Contents, Chapter I, and Chapter II, and more limited versions of Chapters III –VI (every fifth page removed).
We are offering these incomplete versions to speed access through a publicly accessible website for the many professors who want to get a feel for the new edition in a way that will not risk full copies becoming freely available. Our goal is to create a viable market for fairly priced and easily (even if not freely) available copies of IPNTA.
Full Examination Copy: We appreciate that some professors considering our book will want to gain access to a full inspection copy and we are committed to making that available. We are pleased to provide a full complimentary examination digital copy of a nearly final draft of IPNTA2019 to law professors (full-time and adjunct) considering continuing with or adopting IPNTA2019 during the coming academic year. All that you need to do is go to our Examination Copy Registration page and fill out the form. We will verify the information and send out the password for accessing the nearly final examination digital copy as soon as possible.
Full Digital Final Copy and Teacher’s Manual: We will, of course, provide a final digital copy of IPTNA and Teacher’s Manual to all professors who adopt IPNTA. When you have made your decision, please register your interest on the Adoption Registration page. We will send you a password for access to a Final Copy Download. We plan to mail the Teacher's Manual to adopters later this summer.
Free Student Access to Early Chapters: The Front Matter, Chapter I, and Chapter II are available for download by your students through SSRN. In this way, they can test out the class for a few sessions without having to purchase the book.
Privacy Notice: We will not share the information you provide us on the registration forms to any third party. We will use that information solely to manage distribution of IPNTA and related teaching materials.
Anyone who has questions or concerns should feel free to contact Peter Menell at email@example.com.
Peter S. Menell
Mark A. Lemley
Robert P. Merges