1 How To Find and Read the Law and Live to Tell (and Talk) About It Steve Baron January 25, 2006

2 “Laws are like sausages, it is better not to see them being made.” Otto von Bismarck

3 Today’s Agenda  Introduction to How IP Law Is Made  Introduction to Case Analysis

4 How Does IP Law Develop?  Federal and State Legislation e.g. Trademark Act, Copyright Act, Patent Act, Illinois Trade Secrets Act e.g. Trademark Act, Copyright Act, Patent Act, Illinois Trade Secrets Act  Federal and State Case Law (“Common Law”) e.g. Judge made law emerging out of judicial opinions e.g. Judge made law emerging out of judicial opinions

5 How Does IP Law Develop - Legislative  Legislative Process (Federal) Industries lobby for law Industries lobby for law Bill sponsored Bill sponsored E.g. Sony Bono – CTEAE.g. Sony Bono – CTEA Debate ensues Debate ensues House and Senate Vote House and Senate Vote President signs bill into law President signs bill into law

6 How Does IP Case Law Get Created - Judicial  Individual parties bring a case to a trial court’s attention  Litigation ensues  A decision or verdict is issued  An appeal takes place  An appellate court issues an opinion  The opinion becomes part of the common law

7 The Court System (Federal)  First Tier – Federal District Court (trial court)  Second Tier – Circuit Courts of Appeal  Third Tier – U.S. Supreme Court

8 How to Find the Law on the Web  Federal Legislation (the stuff from Congress) Type in title and sectionType in title and section e.g. Copyright = Title 17e.g. Copyright = Title 17 e.g. Infringement = Section 501 et. seq.e.g. Infringement = Section 501 et. seq.

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11 How to Find the Law on the Web  State Law

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13 How to Find the Law on the Web  U.S. Supreme Court Opinions

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15 How to Find the Law on the Web  Click “Opinions”  Click “Latest Slip Opinions”  Find Eldred v. Ashcroft

16 How to Read A Case  Plaintiff a party who complains or sues in a civil action a party who complains or sues in a civil action  Defendant a party who is being sued by a plaintiff a party who is being sued by a plaintiff  Appellant a party who appeals from a decision by a trial or “lower” court a party who appeals from a decision by a trial or “lower” court  Appellee a party who responds to an appeal by appellant a party who responds to an appeal by appellant

17 How to Read a Case  Petitioner Party seeking appeal in the U.S. Supreme Court Party seeking appeal in the U.S. Supreme Court  Respondent Party responding to a petition to the U.S. Supreme Court Party responding to a petition to the U.S. Supreme Court  Writ of Certiorari An order of an appellate court granting or denying a petition to appeal An order of an appellate court granting or denying a petition to appeal

18 How to Read a Case  Stare Decisis – Decided law  Holding The narrow holding or controlling principal of the case that will bind other parties The narrow holding or controlling principal of the case that will bind other parties  Dicta The additional discussion within an opinion that helps the court illuminate its reasoning The additional discussion within an opinion that helps the court illuminate its reasoning  Majority/Minority – The lineup when less than unanimous decision

19 How to Read a Case  Affirmed When an appellate court agrees with the lower court decision When an appellate court agrees with the lower court decision  Reversed When an appellate court disagrees with and overturns the lower court decision When an appellate court disagrees with and overturns the lower court decision  Remanded When an appellate court sends a case back to the lower court for further proceeding When an appellate court sends a case back to the lower court for further proceeding

20 How to Read a Case  What happens after the appellate decision? Case may end; or Case may end; or Case may continue in trial court Case may continue in trial court

21 Assignment  Please find and read the majority opinion by Justice Ginsburg the United States Supreme Court’s opinion in Eldred v. Ashcroft

22 Assignment  Who are the parties?  How did the case get to the Supreme Court?  What were the questions the court was asked to decide?  How did the majority decide?  What impact will this decision have on copyright law?

23 “The purpose of law is to prevent the strong always having their way.” Ovid