The Substantially Similar Weblog

• benjamin the well read cat ()
  Written: Spring, 1998
• The Silence of Angels (After Rilke) ()
  Written: Spring, 1998
• titled morning ()
  Written: Spring, 1998
• particular car
  I wrote this when I was 17, an exchange student in Belgium. It was the only poem I ever posted to USENET.
  Written: January, 1994

Written Spring, 1998 |

• Report from the Verizon v. RIAA Hearing
  As part of its “scorched earth” strategy in the copyright wars, the Recording Industry Assocation of America is trying to use certain provisions of the Digital Millenium Copyright Act to force the Verizon Interent Service Provider to turn over the names of certain subscribers who, the RIAA alleges, are sharing unauthorized content. This was originally published on GrepLaw and appeared on Slashdot and Privacy Digest.
  October 4, 2002
• Report from the NuSphere v. MySQL AB Court Hearing
  Hastily written report after the NuSphere v. MySQL AB court hearing before US District Court Judge Patty Saris. This was potentially the first “test” of the General Public License which forms the legal undergirding for much of the Free Software movement. The report was first posted to the Free Software Legal e-mail list, and subsequently published on NewsForge and discussed on Slashdot.
  February 27, 2002

 I. & then, suddenly you tremble aloud . the inspectors knock through the glass window found, broken; you are no longer sleeping on imagined sand but watching my nervous fingers around a broken camera & only parched knuckles falling off an unstringed guitar bloody i won't know how to play for the only customers are blind tourists, (from Algeria I suppose) they buy histories II. we move in fresh steps along the boulevard . spectacular clean hornets and untouchable wasps you (in impossible haste)return with several souvenirs a pinched raspberry scarf wound around your neck, asking only about itself (hurled towards the ground in great disgust) thunder glaring away at the humble sky i stutter mumble silently & can't remember if we had seen the occasional diamond seagull, or not. a miniature starfish scampers away in panic 

Counter-Majoritarianism and the Protection of Individual Moral Decisions

[This essay responds to a question about the proper role of judicial moral reasoning in a case where a terminally ill patient, Mr. Cohen, is challenging the constitutionality of a State prohibition on medical marijuana use. For the purposes of this question, I ignore federal drug law and any issues of federalism or conflict-of-laws.]
Also available as a printable PDF file.

To determine the constitutionality of the State’s marijuana prohibition as applied to a terminally ill patient such as Mr. Cohen, we must ask, first, whether it is appropriate for the Court to use moral reasoning in deciding this sort of claim, and second, what moral arguments support or undermine his claim. I will argue that judicial moral reasoning, while subject to legitimate criticism, is the most practical and effective way to read the Constitution in cases where the document and its history bear a number of potentially valid interpretations. Furthermore, the “right to be let alone” is a fundamental component of substantive due process under the Fourteenth Amendment and should be protected by the Court, even when the majority wishes otherwise. Moral arguments favoring this interpretation need not be premised on the existence of a “moral elite” whose judgment is superior to that of the majority, but rather on the necessity for counter-majoritarian checks within the democratic structure set out in the text of the Constitution itself. When a judge reasons on a moral basis, she does not substitute her moral judgment for the legislature’s, but protects the fundamental rights of individuals to make critical moral decisions themselves.

Critics of judicial moral reasoning object to the notion that judges should be anything other than “neutral” agents who apply the law created by duly-elected representatives of the people.^{1, 2} According to these “originalists”, a judge should not rule based on what they think is a preferable outcome, rather they must rule as the law demands.³ The law, in their understanding, is a fait accompli when it emerges from the legislature, and any confusion regarding its meaning is best resolved by examining the original intent of its drafters. When circumstances arise that were clearly outside the contemplation of the drafters, or societal values change such that the original intent no longer represents the will of the people, then it is beyond the judiciary’s power to make new law or strike down old; rather, they should wait for the legislature to perform its function. This balance forbids the Court from making major moral decisions, and claims to be the most accurate realization of the democratic ideals expressed in the Constitution and in the history of the United States.

This “originalist” conception, however, does not do justice to the intent of the framers, as evidenced by the very text which it claims to preserve.⁴ Ronald Dworkin’s call for a moral reading of the Constitution comes from the observation that the Constitution itself articulates broad moral principles that require judges to use moral reasoning.⁵ The framers knew the difference between specific language intended to effect a particular result and broad language intended to embody overarching moral principles. For example, the Third Amendment prohibition on the quartering of soldiers in houses during peacetime articulates, in clear language, exactly the government action that the framers intended to prohibit.⁶ On the other hand, the Fourteenth Amendment, rather than mandating a particular treatment of race consonant with the beliefs and values of the framers at the time, instead provides a set of principles for the Court and Congress to follow and develop. In order to make sense of these principles at all, Dworkin argues, a judge must exercise moral judgment. The text practically demands moral interpretation in order to be given meaning.

To be sure, this doesn’t give the judge free reign to rule based entirely on her personal conscience. Stare decisis, history, precedent, and the text of the Constitution itself are usually determinative in a case. In cases where multiple plausible interpretations exist within these constraints, however, Dworkin suggests that the Constitution is best interpreted through moral judgment. Dworkin’s critics claim that the judiciary must defer to the legislature when the Constitution does not, on its face, speak to the case at hand, but this would constitute an abdication of the special role which the Constitution provides, that is, the protection of certain liberties against the tyranny of the majority. In order to exert this protection, the Court must interpret the principles laid out in the Constitution; since these are moral principles, they are best interpreted with moral judgment.

Moral reasoning, when applied to claims like Mr. Cohen’s involving the right of an individual to certain medical treatment, inevitably results in claims that the Court has become politicized and lost any honest, principled basis for making decisions. Bork connects the moral mode of constitutional interpretation with the politicization of the Court that ultimately led to his ousting as Supreme Court nominee. His autobiographical narrative of the nomination process suggests that it was “[…] one battleground in a long-running war for control of our legal culture, which, in turn, was part of a larger war for the control of our general culture.”⁷ The issue at stake for Bork was the most legitimate method by which to read the Constitution. He views the street protests, the media flurry, and the political grandstanding directed against him as misguided attacks, since what he stands for as a judge is not a particular set of political views or judicial results but rather integrity in constitutional interpretation.

Bork never stops to consider, however, that perhaps he was not nominated for his advocacy of a particular mode of judicial reasoning, but instead specifically because of the results his jurisprudence would reach. Although he would prefer that the confirmation process be de-politicized, this is essentially impossible because its origin is rooted in the political decisions of the President of the United States. It is obvious that the President acts under enormous political pressure from various constituencies to achieve certain results; is it reasonable to believe that his decisions concerning the Court are uniquely shielded from political imperative? Although for Bork the battle concerned competing judicial methods, for the rest of the country, the battle concerned the potential results.

Eventually, Bork’s opponents organized enough grassroots pressure to defeat his nomination. For Bork, this evidenced a failure of democracy, as the Court slipped further into moral reasoning and accompanying politicization. Is a successful campaign founded on widespread popular dissent against a particular nominee necessarily a failure of democracy? Perhaps this is exactly how democracy is supposed to function. The strongest check the Constitution provides to the legislature against the judiciary is the power to reject judicial nominees. Since the legislature is ordinarily presumed, by originalists like Bork himself, to represent the will of the people, it would seems that the rejection of a particular Supreme Court nominee, whether on the basis of his mode of reasoning or the results he would likely reach, is actually an example of the Constitution’s democratic checks and balances functioning at their best.

If we are willing to accept a possible role for moral arguments in Constitutional claims, it still remains to be seen how these arguments might be applied to Mr. Cohen’s claim concerning access to palliative care prohibited by the state. In particular, we must decide whether medical care of this sort is a fundamental component of the liberty protected by the Fourteenth Amendment. In recent cases, the Court has relied heavily on history to determine whether or not a right is “fundamental.”⁸ Although it is reasonable to say that there is little basis, historical or otherwise, for a “fundamental right to smoke marijuana”, there is a deep-rooted tradition which Justice Brandeis describes as “the most comprehensive of rights and the right most valued by civilized men…the right to be let alone.”⁹ The right to decide what is best for oneself, when that decision will not adversely effect the interests of others, comprises perhaps one of the most fundamental liberties the Constitution guarantees and the Supreme Court is charged to uphold.

Although laws such as the one prohibiting the use of marijuana for medical purposes are often justified on the basis of their benefits to society at large, rather than on a paternalistic basis, it is hard to see these benefits as being anything other than pretextual in the case at hand. Mr. Cohen already has legal access to marijuana in pill form; any harm to society resulting from his access to the same substance through a different delivery system can only be understood as metaphysical at best. Although I might claim psychic pain simply because I have knowledge that my neighbor might be using marijuana for medical care, this is hardly the kind of harmful effects that social legislation ought to be preventing. Furthermore, the fact that some patients (who have the ability to swallow pills) can legally obtain the drug while others who need an alternative delivery system are denied access may simply fail the Court’s long-held rational basis test, thus violating the equal protection clause of the Fourteenth Amendment, even if cancer patients are not considered a “suspect classification.”

John Stuart Mill argued against the need for paternalistic or abstractly moralistic legislation in a democratic society, suggesting that the entity least likely to err when deciding what is best for a person is the person himself.¹⁰ If an individual’s acts are misguided but do not cause harm to others, Mill argues, then social disapproval alone will be sufficient punishment for the misguided acts. In the case of Mr. Cohen, we are not merely arguing about an individual’s rights to make potentially misguided or immoral choices, however, we are arguing about his very right to enjoy life at all, given the discomfort he experiences from the cancer medication. Furthermore, as his condition has been diagnosed as terminal, the choices he makes now determine how he will pass the remaining days of his life and how he will be remembered. These are extraordinary personal decisions that only Mr. Cohen himself is in a position to make.

If the Court accepts these moral arguments and refuses to apply this statute to Mr. Cohen, we should carefully take stock of what has actually happened. Critics will claim the Court has substituted its own moral judgment for that of “the people” and thereby undermined our democratic foundations. This characterization is deceptive, however, since the Court is not actually putting its moral imprimatur on marijuana use by the terminally ill. It is simply declaring the matter within the “rightful limit to the sovereignty of the individual over himself”.¹¹ So long as our actions do not cause harm to others, fundamental decisions about how we live and die, and what meaning we chose to ascribe to our lives, should be outside of the realm of both the judiciary and the legislature. Although these principles, embodied in the spirit of our Constitution, do require the Court to exercise moral reasoning, they ultimate exist to protect the people’s own individual rights to make these moral decisions for themselves.

Footnotes

…¹

Robert H. Bork, The Tempting of America (The Free Press 1990).

… ²

Michael W. McConnell, Symposium: Fidelity in Constitutional Theory: The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin’s “Moral Reading” of the Constitution, 65 Fordham L. Rev. 1269 (1997).

…³

Robert Bork describes an encounter between Justice Holmes and Judge Learned Hand in which Hand urges Holmes, “Do justice, sir, do justice,” to which Holmes replies, “That is not my job. It is my job to apply the law.” Bork, supra n. 1, at 6 citing E. Sergeant, “Justice Touched With Fire,” in Mr. Justice Holmes 206-07 (F. Frankfurter ed. 1931); H. Shriver, What Gusto: Stories and Anecdotes About Justice Oliver Wendell Holmes 10 (privately printed 1970).

…⁴

“[W]e must never forget, that it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. 316 (1819). The mode of analysis advocated by these originalists, while appropriate to statutory intrepretation, fails to capture the greatness evinced in one of Justice Marshall’s most famous opinions. The Constitution is not merely to be applied by the court, it must be expounded.

…⁵

Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1996).

…⁶

Id. at 6.

…⁷

Bork, supra n. 1, at 271.

…⁸

See Washington v. Glucksberg, 521 U.S. 702 (1997). Michael H. v. Gerald D., 491 U.S. 110 (1989). Bowers v. Hardwick, 478 U.S. 186 (1986).

…⁹

Bowers v. Hardwick, 478 U.S. 186, 199 (1986) (Blackmun, Brennan, Marshall & Stevens, JJ., dissenting). Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

…¹⁰

John Stuart Mill, On Liberty (originally published 1859), .

…¹¹

Id. at Ch. 4.

You are welcome to redistribute these creative works or preferably link back to them here, but please be sure to include proper attribution.

• Essays
  Mostly unpublished documents tending towards the “opinion” side of the spectrum.
• Reports
  Factual accounts from actual events, if you believe me.
• Poems
  Some poetry I’ve written, mostly from several years ago.

(after Rilke)

Written Spring, 1998 |

Commercial and Public Interest Issues

Introduction

Intellectual property (IP), a broad category encompassing several forms of legally protected creative works, has come to occupy an increasingly pivotal role in the domestic economy and international trade over the past several decades. Although the various areas of intellectual property law—patent, copyright, trademark, and trade secret protection—are based in different doctrinal frameworks and constitutional foundations, they share important commonalities within the legal system. The dynamic growth of technology and innovation has largely outpaced the development of relevant law, and intellectual property’s global reach only exacerbates shortcomings in traditional nationally-based dispute resolution methods.

In the absence of reform from the court system or legislatures, international intellectual property interests are increasingly embracing alternative dispute resolution (ADR) methods rather than litigation for commercial disputes. Mediation and arbitration offer significant benefits in this domain; the usual advantages of ADR are amplified in the complex, fast-moving world of commercial intellectual property rights. Since the public interest is nearly always implicated in IP disputes, however, this trend must be examined critically. This paper will discuss some of the commercial benefits and public interest concerns of ADR in international intellectual property disputes, and describe some of the specific institutional resources currently available in this realm.

Commercial Advantages

ADR comprises a spectrum of dispute resolution techniques, ranging from direct negotiation between the disputing parties to a legally binding arbitration proceeding. In the former case, the parties control the process entirely and are free to negotiate any settlement they want, or can choose to not settle at all. In the latter, parties hand over decision-making power to a neutral third-party, and are often prohibited from unilaterally withdrawing from the process. In some cases, parties are barred from judicial appeal from an arbitrator’s decision except under very limited circumstances (e.g., misconduct or incompetence on the part of the arbitrator). Mediation lies somewhere in the middle: a third-party is employed to help the parties resolve their dispute and potentially make non-binding recommendations, but the parties themselves ultimately determine whether or not a settlement is reached. Frequently cited benefits of ADR techniques over litigation include savings of time and money, increased confidentiality, more flexible and effective solutions, continued positive relations between the parties when they need to work together in the future, the ability to pick a process and a decision-maker specifically suited to the parties’ needs, and conservation of judicial resources.

International intellectual property litigation is extremely expensive and time-consuming, even relative to other large-scale commercial litigation. Due to the highly technical and fact-based nature of many IP disputes, discovery costs are elevated, and the need for highly-paid expert witnesses and detailed reports exceeds many other types of disputes. Furthermore, since the judge and jury are generally lay people, parties go to significant lengths simply to educate the fact-finder as to the basic nature of the relevant technology. Studies have found that the median cost of patent litigation through discovery is nearly $500,000, and the median cost of a full trial is $750,000. Costs for patent cases routinely reach over $1,000,000 per party, and legal fees have occasionally risen into the hundreds of millions of dollars.¹ Travel costs in international disputes further increase the costs, particularly because the process can drag on for several years and proceed simultaneously in several different jurisdictions.

While mediator and arbitrator fees for intellectual property disputes are not cheap, they almost always represent a significantly more economical option. Even though the parties will still need to pay experts, they can select a mediator or arbitrator who is already knowledgeable in the field, thus obviating the need to educate a judge or jury from “square one”. They may also be able to rely on scientists and engineers from within their respective companies to explain the technical details particular to the dispute, rather than having to retain outsiders who will appear unbiased in laying out the foundational technical background for a case.

The advantages of an expedited process are particularly salient in IP disputes. Since patents constitute a time-limited entitlement (20 years from the time of filing in most cases), their value is significantly diminished when tied up in litigation. Complex IP cases routinely take years to litigate, and overworked federal courts with a statutory mandate to grant speedy trials to criminal defendants are unlikely to prioritize this sort of litigation on their dockets. Furthermore, the nature of technological innovation often renders the dispute moot with the passage of time. If the parties chose to engage in ADR, they can set their own time-table and not be at the mercy of a court system to resolve the dispute. Furthermore, potentially infringing activity becomes increasingly risky when the duration of the dispute is unknown, since damages and attorney’s fees are often awarded to victorious plaintiffs. If a defendant knows the matter will be settled one way or another within six months, she can decide whether to continue production and risk an injunction and damages for profits during that period, or to suspend production until the legality of her activity has been established. When the time line and potential costs are made more certain for all parties, they can make rational decisions that would be unavailable if they were subject to the vicissitudes of litigation. Matters are made even more certain when the parties have a pre-agreement not to appeal the resolution in court.

Another advantage of ADR that is crucial to intellectual property disputes is the confidential nature of the process. In a mediation, the parties and the mediator usually agree to strict confidentiality, with the understanding that only the settlement agreement itself will become public. Mediation confidentiality agreements are usually enforced by courts. Furthermore, in the international context, an ADR process allows the parties to avoid dealing with different rules surrounding confidentiality in multiple legal systems.

Since intellectual property and particularly trade secrets tend to lose their value when they become public information, the privileged nature of ADR proceedings often represents an invaluable benefit to the parties to the dispute. The common concern about bad publicity arising from any lawsuit is also addressed by the privacy available under ADR. In some situations, parties are prevented entirely from litigating because the business risks of exposing their trade secrets are too high. ADR provides an effective way to resolve these disputes when other options are unavailable.

Parties frequently will choose ADR when they want or need to have a continuing relationship past the dispute. Since IP disputes frequently involve joint research ventures, long-term licensing agreements, and other arrangements that may only bear fruit over extended periods of time, the ability to preserve a working relationship may be more important in these disputes. Technology can rarely be developed today without the involvement of numerous distinct entities; thus, the availability of ADR may be increasingly indispensable to scientific progress and collaboration.

The Public Interest

Alternative dispute resolution techniques for international intellectual property matters are not without shortcomings, however. In fact, many of the strengths described above raise significant public policy concerns. While one could argue that the public has some interest in every legal dispute, this interest is intensified when intellectual property matters are involved. Intellectual property protection is premised on a delicate balance between an inventor’s need to be compensated for her work and the public’s interest in accessing that work. As intellectual property rules are harmonized worldwide under organizations like the World Intellectual Property Organization (discussed below), the World Trade Organization, and the like, the framework for resolving these disputes is increasingly a global issue.

The Commerce Clause of the United States Constitution grants Congress the power to establish limited monopolies to establish incentives to promote creative work. The essence of this balance is struck in the judiciary, where a court is called upon to weigh various statutory and judicially-defined factors to determine whether or not the state will enforce this monopoly. While this legal framework underlies ADR as well as traditional litigation, the need for public access is likely to be weighed less heavily when ADR is used. In a mediation, all that is required is that the parties come to a mutually satisfactory solution within the bounds of the law. They are not required to consider the public interest in the same way a court of law would.

Patent disputes provide a salient example of the different role of the public interest in litigation and ADR. The Supreme Court has spoken about the importance of the public interest in patent cases:

A patent by its very nature is affected with a public interest …. [It] is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope.²

Ordinarily, the first requirement in the prima facie case for patent infringement is to establish ownership of the patent on the part of the plaintiff, and secondly to establish that the patent is valid. Patents are found invalid for a variety of reasons, including lack of novelty, an overly vague patent description, abandonment of the invention, obviousness, etc..³ When a patent is found invalid in a court of law, this finding is frequently the result of an extensive discovery process. Once the patent is found invalid, the plaintiff no longer has exclusive rights to the invention, and the public can benefit from competition amongst various producers. This benefit is particularly acute when the invention involves medical technology, where society as a whole bears a large burden in paying monopoly prices for patented medicines, and many suffer from lack of access.

If parties decide to mediate a patent dispute, however, the discovery process can be cut off and a patent’s invalidity may never be revealed. Furthermore, the parties may find a mutually beneficial arrangement that preserves the patent even if it would have been invalidated by a court. They may find that they can earn more profits by entering into a licensing agreement so that both can produce the invention, thereby preserving a duopoly, rather than losing exclusive rights altogether, which might be the result of litigation.

Congress has taken some steps to mitigate this problem, for example by requiring public disclosure of settlements involving patent disputes. Furthermore, as in most other types of litigation, the great majority of patent dispute cases never even reach a full trial. Even in the Patent and Trademark Office, 80% of interference (contested patent) proceedings settle before a final judgment is reached.⁴ These disputes most commonly result in a license agreement between the parties. Since we can’t force the parties to go through with litigation once they’ve reached a satisfactory conclusion (although usually the court will have to approve a consent decree), it may be preferable to have a mediator or an arbitrator who can at least nominally insure that the public interest be considered by the parties to the dispute, rather than leaving the issue entirely in the hands of the parties’ negotiators.

ADR proponents often identify the ability to retain an expert mediator or arbitrator as a key advantage over litigation, where the finder of fact is either a judge or a jury, neither of whom is likely to have the specialized knowledge required to comprehend the technical details of the matter in question. An expert fact-finder, however, may introduce certain biases in the process that work against the public interest. Contract law, for example, has evolved over hundreds of years, and is grounded in equitable common law principles that ostensibly serve important public policy ends. In intellectual property litigation, a non-specialized judge may reframe the dispute within these well-established principles. The parties may argue that their dispute ought to be treated differently because it involves a new technology, but a court is unlikely to create new exceptions in the law simply because a new invention is involved. An expert mediator or arbitrator, on the other hand, is more likely to see the dispute from the parties’ perspectives, possibly resulting in a process skewed away from legal principles that serve the public interest. Furthermore, while a jury may not possess expert knowledge, it does represent the conscience of the community, which is an important voice to be heard in resolving disputes.

Another public interest question is whether the shift towards ADR in intellectual property disputes actually encourages disinvestment in our legal system. For example, Canada has only recently embraced ADR, lagging behind the US and Western Europe. This is because, in the words of one commentator, “until recently, the Canadian system was sufficiently funded to ensure speedy access.”⁵ Although the federal court system backlog is frequently cited as a reason to engage in alternative dispute resolution, it is possible that the increasingly widespread availability of ADR could encourage Congress further to reduce funding for the judiciary, leaving the court system as a “worst case” option for those who do not have access to ADR for various reasons. As the backlog lengthens, parties can strategically refuse to mediate, and rely on the slowness of the courts to outlast their adversary. Perhaps the solution to an overworked judiciary isn’t necessarily to push parties towards ADR, but rather to provide sufficient resources for the courts to resolve disputes in a timely manner.

If the growing importance of ADR reflects a trend towards “privatizing” the judiciary, we should take stock of the long-term ramifications of this trend before public law loses its relevance entirely. It may be possible in institute safeguards to prevent ADR decisions from moving too far away from what a court would decide. For example, if contracts waiving the right to judicial appeal were found to be unenforceable as a matter of public policy, an arbitrated or mediated resolution would be more likely to hold closely to established law, since a significant departure would be overruled by a court.

International Intellectual Property Mediation in the Real World

An institutional basis for international intellectual property protection has been evolving since the late 19^th century. Arising out of the Paris Convention of 1883 and the Berne Convention of 1886, the United International Bureaux for the Protection of Intellectual Property (BIRPI) was established to help nationals of treaty member States obtain international protection of their right to control, and receive payment for, the use of their creative works. In 1970, BIRPI became the World Intellectual Property Organization (WIPO), which today comprises 179 member states, has a staff of over 850 and a yearly budget of nearly half a billion dollars. Among other activities, WIPO facilitates the coordination and enforcement of treaties for the protection of intellectual property amongst all its members.

WIPO provides alternative dispute resolution services specifically tailored towards international intellectual property matters. Numerous other organizations exist which can also handle these sorts of disputes, including the International Chamber of Commerce Court of Arbitration, American Arbitration Association, and the London Court of International Arbitration; however, only the WIPO Arbitration and Meditation Center specializes in international IP disputes. The WIPO Center was only established in 1994, however, so potential clients have to decide between more well established but general ADR entities like the AAA and the intellectual property-specific Center.

Since confidentiality frequently weighs heavily in the decision to use ADR for IP disputes, the WIPO Arbitration Rules contain provisions for strong confidentiality. Furthermore, parties to the dispute have the option of having a confidentiality advisor appointed to their case. This advisor is an expert to whom trade secrets can be disclosed without fear that the information will be exposed to the other party. In some cases, the confidentiality advisor will even receive information that is kept secret from the arbitrator himself.

For mediation, the WIPO Center provides the parties with an option between a “facilitative” mediator who will focus on the process of helping the parties understand each other’s interests and bringing them to consensus, and an “evaluative” mediator who will take a more active role in resolving the dispute and make specific recommendations based on an expert background. In the latter case, the mediator’s recommendations are not binding but can help frame the mediation process.

Several other factors distinguish the WIPO Center from other ADR options. The Center provides specific rules for the introduction of technical and experimental evidence to serve the needs of their clients. It is located in Geneva, which may be seen as more “neutral” territory for international disputants than other locales. The Center’s staff, arbitrators, and mediators, come from dozens of nations, and the Center actively promotes its experience in working with situations that include cultural, linguistic, and institutional diversity. Some international companies view organizations like the American Arbitration Association as being more closely linked with the American legal system and the International Chamber of Commerce in Paris as being closely linked with European law, while the WIPO Center is not necessarily perceived as favoring one legal system over another.

The WIPO program provides meeting space free of charge to parties who want to engage in ADR at the Center in Geneva; alternatively, WIPO mediators and arbitrators are available throughout the world. Parties can choose to mediate in any country, in any language, and under any law. This flexibility is a great advantage to the WIPO ADR process, where technical disputes may involve many interdependent parties located in many different countries.

Finally, the WIPO Center can be somewhat less expensive than other ADR options for large commercial clients at the low end of its fee scale. The Center charges a registration fee equal to 0.10% of the amount in dispute, up to $10,000, and either an hourly or daily fee for the mediator’s services, based on a number of factors including the complexity and economic importance of the dispute, as well as the experience of the mediator. Hourly fees range from $300 to $600, and daily fees range from $1,500 to $3,500. By default, the parties share the cost of the mediation equally, although they are free to negotiate alternative arrangements.

The Center has had a fairly slow start in gaining acceptance in the commercial world. Although it was founded in 1994, by mid-1997 it had not yet handled any disputes. The Center attributed this slow start to the fact that ADR is most commonly entered as a result of a contract clause requiring it in the event of a dispute. Since the Center was only founded in 1994, one would expect several years to pass before contracts would be formed specifying the Center as the dispute resolution forum, and for those disputes to arise.

Today, the Center has found a niche in resolving international Internet Domain Name disputes, which frequently implicate trademark law. In 2001, the Center received 1,506 domain name dispute cases involving 94 countries. The entire procedure is conducted on-line, and usually results in an enforceable decision within two months. The Center’s process is based on the Uniform Domain Name Dispute Resolution Policy promulgated by the Internet Corporation for Assigned Names and Numbers (ICANN), which handles the technical aspects of the Internet “root server” system and ultimately has the power to enforce domain name assignments.

It is clear from the Center’s promotional materials, however, that its process is intended to favor trademark holders over the general public. They claim to be “the leading dispute resolution service provider for challenges related to abusive registration and use of Internet domain names, commonly known as ‘cybersquatting’.”⁶ Trademark holders come to the WIPO Center in order to claim domain names in a cheap and expedited fashion. In many cases, it might not be worth the trouble for a trademark holder to bring an alleged infringer to court, particularly given the expense and jurisdictional issues when the parties are in disparate countries and the infringement claim itself may be dubious. Providing a quick and inexpensive alternative, while theoretically in a “neutral” forum, may constitute an inherent bias for large corporate trademark holders over lone individuals. ICANN’s Uniform Domain Name Dispute Resolution Policy has been criticized on similar grounds.⁷

Conclusion

ADR’s rapid growth in the world of dispute resolution over the past decades has paralleled that of intellectual property in the global economy. Given the increasingly complex and international nature of intellectual property creation, ADR solves a number of important problems with traditional nationally-based litigation. Some of ADR’s greatest strengths in intellectual property disputes, however, also raise serious public policy concerns. Institutions like the World Intellectual Property Organization Arbitration and Mediation Center provide valuable resources in the field of ADR, but too little attention is paid to the fundamental right of the public to access creative works in return for the benefits accrued to creators when they are granted limited monopolies. Increasing dependence on ADR in these disputes is probably inevitable, so national and international governments should take care to insure that the public interest is not foreclosed from this process.

Bibliography

Blackmand, Scott H. Alternative Dispute Resolution in Commercial Intellectual Property Disputes. 47 Am. U. L. Rev. 1709. 1998.

Elleman, Steven J. Problems in Patent Litigation: Mandatory Mediation May Provide Settlement and Solutions. 12 Ohio St. J. on Disp. Resol. 759. 1997.

Electronic Frontier Foundation website. http://www.eff.org (8/1/02).

Electronic Privacy Information Center website. http://www.epic.org (8/1/02).

Martin, Julia A. Arbitrating in the Alps Rather Than Litigating in Los Angeles: The Advantages of International Intellectual Property-Specific Alternative Dispute Resolution. 49 Stan. L. Rev. 917. 1997.

World Intellectual Property Organization Arbitration and Mediation Center Guide to Mediation. http://arbiter.wipo.int/mediation/mediation-guide/index.html. 8/1/2002. See also World Intellectual Property Organization website. http://www.wipo.org.

Zisk, Matthew B. Mediation and Settlement of Patent Disputes in the Shadow of the Public Interest. 14 Ohio St. J. on Disp. Resol. 481. 1999.

Footnotes

Judge John D. Bates heard arguments this morning in RIAA v. Verizon, the “test case” for the subpoena provisions of the DMCA (section 512(h)). Both parties were given upwards of 45 minutes to develop their arguments and rebuttals, and the Judge permitted amicus Motion Picture Association of America to make a brief argument which for the most part said that the Motion Picture Industry had a large financial stake in DMCA enforcement.

Both parties and the Judge seemed to agree that the critical issue was one of statutory interpretation. They also agreed that the statute was poorly worded and there was a paucity of legislative history to answer the question unambiguously. Specifically at issue is whether the subpoena provisions apply equally to 512(a) service providers (where the provider is a “conduit” for user communications) as to 512(b), (c), and (d) providers. Verizon argued that the subpoena provision was specifically targeted at 512(c) providers, where the allegedly infringing material actually resides on the provider’s servers (e.g., pirate website hosted by provider) and does not apply to 512(a) providers; which is the function they are serving when peer-to-peer applications use their network. The RIAA argued that this distinction didn’t make any sense, and in fact they were unable to tell the Judge how many 512(h) subpoenas they had issued on 512(a) providers vs. 512(c) providers. No one could really clarify the status of 512(b) or (d) providers.

The Judge was particularly interested in the “constitutional avoidance” issue; that is, when in doubt, a statute should not be interpreted in a way that raises constitutional concerns. The RIAA argued with the Judge as to what the constitutional avoidance doctrine actually was; they insisted that it would only be raised with a facial challenge to the statute, not a challenge to the statute as applied. Of course, it seems more likely that Judge Bates will agree with his own interpretation of the doctrine.

The Judge questioned the parties repeatedly about the distinction between 512(a), (b), (c), and (d) providers with respect to the Constitutional issues. If a subpoena of 512(a) provider raises significant First Amendment privacy/anonymous speech concerns, why wouldn’t this apply equally to a 512(c)? In fact, it appears the Judge was looking for a Constitutional challenge to the entire subpoena process but Verizon wanted to focus on potential Constitutional issues with subpoenas of a 512(a) provider.

It didn’t seem to me that there was a clear winner today, and the Judge didn’t clearly indicate which way he was leaning, although he was quite solicitous to the Constitutional arguments. He does seem to have a very good grasp on the underlying issues and the technology involved, and promised to issue a decision quickly. I’m sure we’ll see some news reports and press releases later today.”

On January 15, 2003, the Supreme Court issued its opinion in the Eldred v. Ashcroft case. In a 7-2 decision, the Court upheld the Constitutionality of the Sonny Bono Copyright Term Extension Act (CTEA) of 1998. CTEA retroactively extended the duration of copyright from the life of the author plus fifty years, to the life of the author plus seventy years, thereby guaranteeing a handful of multinational corporations another 20 years of proprietary ownership of cultural icons such as Mickey Mouse and Robert Frost.

Three months earlier, on the eve of the oral arguments for the Eldred case, I was on coop in Washington, DC, attending an evening party for the plaintiffs. I sat across from Eldred himself at dinner. Counsel Larry Lessig even made a brief appearance. People had come from all over the world to celebrate the possibility of a renewed public domain. One group drove from California in a “bookmobile”, an old van with several laptops connected to the Internet through a satellite dish. The bookmobile stopped at public schools along the way, particularly in poorer urban areas, and students could request any book in the public domain that would then be beamed down, printed out, bound, and distributed for free. We were giddy; we were witnessing the birth of a movement.

The Court’s decision against Eldred did not shock anyone. The Act in question was passed in 1998 by unanimous consent in the Senate and a voice vote in the House, in the midst of the Monica Lewinsky scandal and the Kosovo war. Few activists outside of certain narrow interest groups organized against the law, and those groups did a poor job of reaching out to the broader social justice movement that was taking root across the country and would burst into the national consciousness at the WTO meeting in Seattle a year later. Although the social discourse surrounding intellectual property has changed dramatically since the passage of the Sonny Bono Act, many people working in the labor, environmental, and anti-globalization movements have yet to see the profound connections between intellectual property law and the struggle for global justice.

My decision to come to law school arose out of an unexpected collision with intellectual property law while working in the labor movement. Part of my job, prior to law school, involved creating websites for a local union’s corporate campaigns. When an employer attempted to bust the union, we responded by targeting other stakeholders of the company in order to build leverage for the workers. In one campaign, we were organizing independent insurance agents suffering from rapidly escalating premiums imposed by a subsidiary of the parent company of a particularly anti-union employer.

About a week after the website went up, we received a cease and desist letter from the company’s lawyers, claiming trademark infringement. While the website provided only accurate information and explicitly disclaimed any connection with the company, the company’s trademarked initials appeared in our domain name. Fortunately, the union’s legal representation was familiar with these sorts of silencing tactics, and after a few letters back and forth, the company relented in their threats. Meanwhile, the pressure created by the website allowed us to make significant gains at the bargaining table, and ultimately the employer recognized the union.

Many others are not as fortunate. Various areas of intellectual property law, originally conceived to provide incentives for creativity, are increasingly used to silence criticism and destroy potential competition. Several other laws enacted in the past five years have given multinational conglomerates potent tools to restrict access to information and culture to the elite. The consequences of these laws go far beyond the chilling effect on speech: strong international patent protection denies essential medication to hundreds of millions of people around the world, particularly with respect to the AIDS pandemic; small filmmakers find themselves deprived of raw materials as exorbitant licensing fees are required for any copyrighted work that might even appear in the background of a scene; rap artists are hauled into court because the essence of their music, like all other music, is to draw from our popular culture and make new creations from it; finally, the software copyright system has created robber barons that make the Rockefellers and the Vanderbilts look like small business owners.

Disruptive technologies have a tendency to threaten entrenched interests. The Internet is now a powerful communicative and organizing tool for movements ranging from the Zapatista revolution in Mexico to the anti-globalization protests in the United States. The enormous potential for the free flow of scientific, medical, and cultural information is under attack by those who profit from denying access. I will use my legal and technical skills to work for free speech, civil liberties, and equal access to these emerging technologies.