Fowler School of Law Annual Symposia Address Sports Law and Intellectual Property

Chapman University Dale E. Fowler School of Law students hosted two symposia this spring: “Taking Care of Business: How the Evolution of the Marketplace is Changing the Rules of the Game” and “Trolls or Toll Takers: Do Intellectual Property Non-Practicing Entities Add Value to Society?”

Entertainment and Sports Law Symposium

On Friday, February 7, Fowler School of Law’s Entertainment and Sports Law Society hosted its second student-led Entertainment & Sports Law Symposium in as many years. This year’s symposium, “Taking Care of Business: How the Evolution of the Marketplace is Changing the Rules of the Game,” featured top sports agents, general counsels from organizations ranging from Oakland Raiders to the World Wrestling Federation, top legal minds in the field of sports intellectual property, and a keynote address from legendary sports agent David Dunn.

The symposium kicked off with a panel discussion moderated by radio host, bestselling author and Fowler Law Professor Hugh Hewitt and focused on the many hats worn by in-house counsels in the sports world. In addition to general counsels from the San Diego Padres, Los Angeles Angels of Anaheim, Minnesota Vikings and Oakland Raiders, the panel featured two prominent Fowler Law alumnae: Leila Milano (JD ’08), Senior Director of Business & Legal Affairs of World Wrestling Entertainment, and Katie Rodin (JD ’11), Assistant General Counsel of the Anaheim Ducks. The panelists discussed topics ranging from cutting-edge legal developments in new media to crisis management strategies involving athlete misconduct.

The second panel of the day, led by Fowler Law Intellectual Property Law Professor and longtime intellectual property law litigator Samuel Ernst, focused on the timely intellectual property issues facing the professional sports industry. The panel was lively, as topics moved from whether the canceling of the Washington Redskins’ trademark registration, name and likeness litigation threatens college sports to emerging legal issues involving the copyright ownership of tattoos on professional athletes. Panelists included intellectual property litigators from top sports and firms from across the country.

From the keynote presentation on, the symposium focused on the challenges involved with athlete representation. David Dunn, CEO of Athletes First and agent to football talent such as 2014 NFL MVP Aaron Rogers, shared insights from his experience negotiating more than one billion dollars in player contracts during his lunchtime keynote address.

The third panel of the symposium featured several emerging sports agents speaking on how to compete and win in the dog-eat-dog world of athlete representation. The fourth and final panel of the day focused on the myriad of ethical dilemmas and fiduciary responsibilities faced by sports agents on a daily basis, and was moderated by Fowler Law student Evan Brennan (JD ‘15), the only current sports agent to represent an NFL draft prospect at the NFL Scouting Combine while still in law school. The concluding panel featured a lineup of veteran agents from top agencies such as Octagon, Relativity Sports and Athletes First, and included Fowler Law alumna and Landmark Sports Principle Diana Day (JD ’07), who represents clients such as Kobe Bryant, and President and founder of KMM Sports Management Kelli Masters, the first female sports agent to represent a first round NFL draft pick.

The conclusion of the symposium marked another successful year for the student-led event. The program was a culmination of more than one year of planning and hard work from Fowler Law students and support from the Fowler School of Law staff and administration.
More information and a complete webcast archive of the symposium can be found here.

Law Review Symposium

Chapman Law Review’s annual symposium “Trolls or Toll Takers: Do Intellectual Property Non-Practicing Entities Add Value to Society?” on January 30 focused on issues of intellectual property and patent trolls.

The first panel, entitled “The Scholar’s Perspective: Theories of Patent Trolling,” included Robin Feldman, Harry & Lillian Hastings Professor of Law and Director of the Institute for Innovation Law at University of California Hastings College of the Law; Brian L. Frye, Assistant Professor of Law at University of Kentucky College of Law; Ryan Holte, Assistant Professor of Law at Southern Illinois University School of Law; and Amy L. Landers, Director of the Intellectual Property Law Program and Professor of Law at Drexel University Thomas R. Kline School of Law.

Fowler School of Law Professor and moderator of the first panel Samuel Ernst summarized the goals of the symposium saying that it would seek to advance the discussion of non-practicing entities in three ways: by expanding on the scholarly debate surrounding patent trolls; by expanding on perspectives informing the debate beyond academia by inviting the views of practitioners from both sides of the patent troll divide; and by expanding on the scope of the topic by considering the nature and possibility of copyright and trademark trolls.

The panel presented new data and theories on the issue of patent trolls, examining the effect of patent trolls on legal and business communities; how the legal system has handled patent trolls through court decisions, legislation and regulatory activity; how patent trolls affect the value of patents and the consequences of fluctuation in value; and how patent markets have the potential for positive change, including international collaboration with research and finding creative ways to fund research and development.

Professor Holte provided a broad analysis of the litigation history of eBay v. MercExchange, 547 U.S. 388 (2006), arguing that the Supreme Court opinion is misunderstood as precluding non-practicing entities from obtaining injunctions due to eBay’s superior publicity resources, and because the parties settled before the Federal Circuit had a chance to rule on the case. Professor Frye discussed how the use of the patent troll metaphor obscures the understanding of societal justifications for intellectual property.

The keynote address, “Standing Sentinel Over Innovation: The Importance of a Balanced and Effective IP System,” was given by Andrew Byrnes, Chief of Staff, The United States Patent and Trademark Office. He stressed the importance of a balanced and effective IP system, and covered ongoing developments relating to patent owners and applicants, including non-practicing entities. He also discussed the role of the U.S. Patent and Trademark Office and the Obama Administration in ensuring that the intellectual property system is balanced and encourages innovation.

The second panel, “The Practitioner’s Perspective: The Effect of Patent Non-Practicing Entities on Industry,” debated the effect of non-practicing entities on industry. Panelists included Lee Cheng, Chief Legal Officer at SVP-Corporate Development and Corporate Secretary of Newegg Inc.; Robert D. Fish, Founding Partner at Fish & Tsang LLP; Ian D. McClure, Director of Intellectual Property Exchange International, Inc.; Congressman Dana Rohrabacher, U.S. Representative for California’s 48th Congressional District; and Nathan Shafroth, Partner at Covington & Burling LLP.

Mr. Shafroth asserted that one reason for the decline in patent suits is the Supreme Court and Federal Circuit Court’s interpretation of Alice Corp. v. CLS Bank International, 134 S. Ct. 2347 (2014),  which indicated that certain companies may also be more selective in patent enforcement. Mr. McClure acknowledged that there is some “rearranging of business models” by non-practicing entities trying to obtain better quality patent portfolios. Mr. Fish pointed out that there needs to be a distinction between enforcement and extortion. Part of the issue involves “allocation of risk.” He claimed that “things have gotten out of hand,” but that many developments are moving toward restoring balance.

Congressman Rohrabacher said that major multinational corporations are trying to change the discussion away from the fact that a “property right has been stolen.” He expressed concern for smaller companies and “crony capitalism.”  Mr. Cheng said that patent rights are considered property rights, but that not all property rights are considered equal. He did state that Newegg is no longer being sued since the decision in
Alice, but he still sees an imbalance within the patent system.

The last panel was titled “Copyright and Trademark Trolls: Fable or Fact?” and moderated by Fowler School of Law Professor Mary Lee Ryan. Panelists included Chris Arledge, co-founder and Managing Partner of One LLP; Tom W. Bell, Professor of Law at Chapman University Fowler School of Law; Brad A. Greenberg, Postdoctoral Research Scholar in Intellectual Property at Columbia Law School; Lindy Herman, Senior Associate at Fish & Tsang LLP; and Professor Michael S. Mireles, Professor of Law at University of the Pacific, McGeorge School of Law.

Professor Mireles discussed his forthcoming paper explaining why “trademark trolls” are not a problem in the United States, and Mr. Greenberg estimated that 41 percent of all cases filed were filed by copyright trolls and argued that a presumptive fair use requirement should be applied only to copyright trolls. Professor Bell then provided an intriguing discussion of copyright as a privilege. He examined the emergence of “copyright pornography trolls,” who sue thousands of John Doe defendants hoping to net millions in settlement payments from the guilty and innocent alike. He also covered the use of taxi medallions to pursue networked transportation companies such as Uber and Lyft. Professor Bell argued that these types of troublesome conflicts result from the mistreatment of statutory and regulatory privileges as property rights.

Mr. Arledge said that one must consider the impact of attacking trolls on contract creation. He cautioned against proposing reform without empirical data, especially when people are losing their means of income. Ms. Herman added that plaintiffs are unlikely to obtain statutory damages against defendants, but the threat of statutory damages may be beneficial. She believes that copyright “porn troll” problems are mainly concerning tactics, such as those used to shame the user.

Click here to view a slideshow of the 2015 spring symposia.

Jack Anderson (JD ’15), president of the Chapman Entertainment & Sports Law Society and senior articles editor for the Chapman Law Review, and Rachel Baker (JD ’15), senior symposium editor for the Chapman Law Review, contributed to this post. See more articles by Jack here.