Posted by: Erik Hovenkamp | 19th Jul, 2018

Don’t Talk about Him: Sir Cliff Richard OBE v. BBC

Post by Samuel Beswick.

Sir Cliff Richard is the latest celebrity to win substantial damages for invasion of privacy by a news organization in England. In the summer of 2014, the BBC broke the story that Sir Cliff was under Police investigation in relation to an alleged historic sex offence. It broadcast with “colour and sensationalism” [¶55] the police search of his Berkshire home: dispatching reporters and a helicopter to the area, as well as to Sir Cliff’s other known residences in Europe. The singer was holidaying in Portugal with friends at the time. The Police dropped the investigation 22 months later. They brought no charges.

Sir Cliff sued the Police (who settled for £700,000 and a public apology) and the BBC. On July 18, the High Court of England and Wales found against the BBC and ordered payment of general, aggravated and special damages: Richard v. British Broadcasting Corporation [2018] EWHC 1837 (Ch).

Earlier this year my co-author and I made the argument that English privacy law is heading down a divergent path from other common law countries by embracing a framework that in practice favors privacy interests above conventional freedoms of speech and of the press. Mr Justice Mann’s judgment would appear to be a further illustration of our thesis. 

Read More…

Posted by: Erik Hovenkamp | 4th May, 2018

AALS Section on Remedies – Call for Papers [Updated]

Post by Erik Hovenkamp.

The AALS Section on Remedies will host a program entitled, “Intellectual Property Remedies at the Supreme Court and Worldwide,” to be held on January 4 at this year’s Annual Meeting in New Orleans (Jan. 2-6). The Call for Papers is below.

AALS Remedies Section – Call for Papers

UPDATE: The deadline for submission has been extended to July 30, in order to accommodate papers discussing recent Supreme Court decisions.  To be considered, please submit an abstract (and a draft paper if available) to the Chair of the Remedies Section:  

Post by John Golden

In an April 24 decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U.S. __ (2018), the United States Supreme Court addressed a question previously highlighted on this blog (see posts of May 30, June 13, and December 4, 2017): the extent to which patents involve public or private rights for purposes of U.S. constitutional law. Specifically, the Court held that whether a patent claim should be canceled for lack of novelty or nonobviousness is “a matter involving public rights” and therefore may be determined by an administrative agency, the U.S. Patent and Trademark Office (USPTO), rather than an Article III court. With Justice Thomas writing for a seven-Justice majority, the Court emphasized its view that, although patents are a “form of property,” the decision to grant a patent—a matter long consigned to the USPTO—is a decision on “the grant of a public franchise” and thus liable to congressional reservation of administrative power “to revoke or amend” the grant. The Court thereby signals the existence of a subcategory of privately held property—namely, public franchises granted to private persons—that is particularly susceptible to administrative adjudication.

But what is a “public franchise”? The Court does not give a crisp definition. Nonetheless, by pointing to aspects of patents that apparently support their classification as public franchises, the Court provides some hints. First, the Court notes that the right to exclude provided by a patent “ ‘did not exist at common law’ ” (quoting Gayler v. Wilder, 51 U.S. (10 How.) 477, 494 (1851)), and is instead “a ‘creature of statute law’ ” (quoting Crown Die & Tool Co. v. Nye Tool & Mach. Works, 261 U.S. 24, 40 (1923)). Further, Congress has authorized such rights by exercising its constitutionally granted “power ‘[t]o promote the Progress of Science and useful Arts’ ” (quoting U.S. Const. art. I, § 8, cl. 8). In other words, Congress has provided for patents pursuant to a public purpose. These observations comport with a definition of “public franchise” that Justice Thomas has proffered before: a right or set of rights “ ‘which public authorities ha[ve] created purely for reasons of public policy and which ha[ve] no counterpart in the Lockean state of nature.’ ” Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 848 n.2 (2015) (Thomas, J., dissenting) (quoting Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 567 (2007)). Read More…

Posted by: Erik Hovenkamp | 25th Apr, 2018

Call for Student Fellow Applications

Post by Erik Hovenkamp.

The Project on the Foundations of Private Law is now accepting applications for student fellowships. The deadline for submission is Friday May 25, 2018. 

Private Law Call for Applications 2018-19

Post by Patrick Goold

Last month it was revealed that Facebook shared users’ personal information with political consulting firm, Cambridge Analytica, and that such information may have been used to influence the US 2016 presidential elections and the UK Brexit vote.  For many, this event has highlighted the need for stronger privacy laws in the twenty-first century. Jennifer Rothman, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press, 2018) is therefore as timely as it is fun to read. In a monograph packed with illuminating re-readings of leading cases alongside engaging celebrity stories, Rothman argues that a modified right of publicity could be an important tool for protecting individuals’ privacy interests in the Information Age.

The rights of privacy and publicity are sometimes seen as opposites. Privacy protects shrinking violets who wish to avoid the public’s gaze, while publicity protects the interests of celebrities who seek out the limelight, or so it is said. Indeed, some claim that the right of publicity was created precisely because privacy law failed to adequately protect the interests of public figures. According to a common historical narrative, courts frequently rejected celebrities’ attempts to restrain the use of their names and images under privacy law.  Privacy being the last thing any celebrity really needed, judges found privacy laws to be the wrong vehicle for protecting valuable celebrity personas; and thus there existed a need for a new and separate cause of action.  

In The Right of Publicity, Rothman shows the privacy-publicity divide is often an overly simplistic and unhelpful dichotomy. To begin with, the claim that a separate right of publicity was required to protect celebrities’ interests is historically incorrect. The original right of privacy that emerged in the late nineteenth century was regularly employed by public figures (ranging from the likes of inventor Thomas Edison, sportspeople such as golfer Jack Redmond, and politicians such as J.P. Chin) to restrain unwanted publicity. Furthermore, this right was used by individuals to prevent actions that we would now consider commercial misappropriation of name and likeness. Early privacy cases restrained the non-consensual use of an artist’s photo on an advert for life insurance, the use of a famous physician’s signature on quack medicinal pastilles, and there was uproar when society woman Mary M. Hamilton Schuylyer could not use privacy laws to prevent the use of her image on a commercial for flour.  

The true story behind the right of publicity’s origin is far more interesting than the conventional one; it is also, however, far more worrisome and troubling. The right of publicity was created not to adequately protect celebrity interests, but to protect the interests of Hollywood and other big businesses. The new right of publicity enabled businesses to commodify celebrity personas.  Whereas the right of privacy was a non-transferable personal right, the right of publicity was, and remains, a transferable property right. Hollywood and others pushed for the right of publicity’s adoption because doing so enabled them to acquire exclusive rights in celebrity personas, and thus monopolize the commercial exploitation of public figures’ identities. Read More…

Post by Patrick Goold

Intellectual property law is, in many ways, part of American private law. IP rights are commonly viewed as a type of property right (see e.g. here and here), and courts have historically been the dominant institution for enforcement of those rights. However, today IP law-making and adjudication is increasingly performed by administrative agencies. The Patent Trial and Appeal Board decides over one thousand validity actions yearly through its new inter partes review procedure, and the U.S. Patent and Trademark Office claims entitlement to Chevron deference on a range of issues. Consequently, some have questioned whether the increasing role of administrative agencies takes a matter of private law out of courts’ hands in a way that breaches the separation of powers. On the other hand, many support the increasingly administrative character of IP law (see e.g. here and here). Administrative agencies not only have the resources, but also the expertise, necessary to deal with the ever-more complex IP system.

To debate the role of administrative law-making and adjudication in IP, on March 29, the Project on the Foundations of Private Law at Harvard Law School hosted a conference on The Administrative-Private Law Interface in IP. This conference brought together scholars, policy-makers, and practitioners to discuss the role of the administrative state in IP law in the 21st century.

After a welcome by John Manning (Harvard Law School), opening remarks were provided by The Honorable David Kappos (Cravath, and former Director of the USPTO).  Mr. Kappos’s remarks set out his view of the balance that needs to be struck between the interests of innovators and implementers in a variety of areas, and more specifically warned that antitrust agencies with expansive views of their remit need to recalibrate the balance between securing competition in the short-run and promoting innovation in the long-run.

Video Here

The Honorable David Kappos delivering the opening remarks

Panel I was entitled Do Administrative Law and Private Law Mix in IP? This panel provided an overview of the interaction between administrative law and private law in the IP field, and provided a platform for the rest of the day’s discussion. The panelists were Arti Rai (Duke University School of Law), Todd Rakoff (Harvard Law School), Kali Murray (Marquette University School of Law), and the Honorable F. Scott Kieff (George Washington University School of Law, and former Commissioner of the International Trade Commission). Professor Ruth Okediji (Harvard Law School) moderated.

Video Here

Panel II dived into the debate surrounding the current Supreme Court case of Oil States v. Greene’s Energy. This case, discussed previously on the NPL blog here, here, and here, asks whether the Patent Trial and Appeal Board’s Inter Partes Review procedure violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury. Professor John Golden (University of Texas School of Law) moderated what was a very lively and exciting panel. The panelists were Adam Mossoff (George Mason University, Antonin Scalia Law School), Sophie Wang (Choate LLP and Boston Patent Law Association), John Duffy (University of Virginia School of Law), and Caleb Nelson (University of Virginia School of Law).

Video Here

Panel III turned to the issues of deference and preclusion. How much deference should courts give to administrative agency decisions (such as those made by the USPTO)? And when should administrative decisions preclude parties later bringing claims in court? Eric Claeys (George Mason University, Antonin Scalia Law School and Visiting Professor at Harvard Law School) moderated. The panelists were Melissa Wasserman (University of Texas School of Law), Megan La Belle (Catholic University of America, Columbus School of Law), Kristin Hickman (University of Minnesota Law School), and John Golden (University of Texas School of Law).

Video Here

Panel IV then turned to the role antitrust agencies should play in IP. Erik Hovenkamp (Harvard Law School) moderated. The panelists were Keith Hylton (Boston University School of Law), Anne Layne-Farrar (Charles River Associates and Northwestern University Pritzker School of Law), and Scott Hemphill (NYU School of Law). Unfortunately, no video could be recorded for this panel.

And finally, a rousing closing speech was delivered by The Honorable James Smith (Ecolab, and former Chief Judge of the Patent Trial and Appeal Board). Mr. Smith’s prior role at the PTAB gave him a unique perspective on the conference theme. In his speech, Mr. Smith asked the audience to imagine he was running for Congress on a platform of improving American innovation. He then outlined a series of reforms which he saw as necessary for strengthening patent rights to make American IP great again.

Video Here

Lastly, thank you to the University of Texas (and to Professor John Golden in particular) for co-organizing the event, and thank you to Qualcomm for sponsoring it.

Posted by: pgoold | 21st Mar, 2018

Equitable Defences as Meta-Law

Post by Henry Smith

To those interested in equity (who isn’t?) and private law defenses, let me offer “Equitable Defences as Meta-Law,” which will be published by Hart this May in Defences in Equity, edited by Paul S. Davies, Simon Douglas, and James Goudkamp.  It can be found at SSRN here.  The chapter shows how a range of equitable defenses serve a second-order function of equity – intervening into first-order law to solve complex problems involving opportunism, multipolar problems and conflicting rights.  It also provides criteria for fusing equitable legal defenses and an explanation for why some equitable defenses have been more generalizable than others.

Post by Patrick Goold

The Centre for the Study of European Contract Law (CSECL), of the University of Amsterdam is organizing a Summer School on ‘Private Law & Vulnerability’, to be held 2-5 July 2018 in Amsterdam. The 2018 CSECL International Summer School will provide a cross-disciplinary exploration of the relationships between vulnerability and private law. The focus will be on private law both as a cause of and as a (possible) solution to the problem of vulnerability.  Junior scholars and advanced students will have the opportunity to explore questions on private law and vulnerability together with Martijn Hesselink, Hanoch Dagan, Aditi Bagchi, and Lyn Tjon Soei Len. The summer school will also offer participants the occasion to present their own work and receive valuable feedback. 

For more details, click here

Update: The deadline for applications has been extended by 10 days, to Monday, April 16.


The Project on the Foundations of Private Law at Harvard Law School, and the University of Texas School of Law invite you to attend The Administrative-Private Law Interface in IP, a day-long conference held at Harvard Law School on March 29.

Intellectual property law is historically part of American private law. IP rights are generally understood to be a kind of property; infringement is tortious conduct; and licenses are governed by principles of contract law. However, in the twenty-first century IP law is increasingly created and influenced by administrative agencies. The Patent Trial and Appeal Board conducts about one thousand inter partes review proceedings each year; Copyright Office regulations are provided Chevron deference; and IP licensing arrangements are subject to close antitrust scrutiny. This conference will bring together scholars, policymakers, and practitioners to ask: What is the proper role for administrative lawmaking and adjudication in IP law? Panels will examine the following topics:

  • Do Administrative Law and Private Law Mix in IP?
  • Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, and the Constitutionality of the PTAB. (For Professor John Golden’s coverage of this case, see here, here, and here.)
  • Preclusion and Deference
  • The Antitrust-IP Intersection

Click here to RSVP.


The Yale Law School Center for Private Law is now accepting applications for the 2018-19 Fellow in Private Law.

The Fellowship is designed for graduates of law or related Ph.D. programs who are interested in pursuing an academic career and whose research is related to any of the Center for Private Law’s research areas, which include contracts (including commercial law, corporate finance, bankruptcy, and dispute resolution), property (including intellectual property), and torts. More information about the Center can be found here.

The Fellowship in Private Law is a full-time, one-year residential appointment, with the possibility of reappointment. Up to half of the Fellow’s work time is devoted to operating the Center; the remaining time is reserved for the Fellow’s own scholarship and projects. Duties include organizing the Seminar in Private Law, academic workshops, and conferences, among other Center initiatives, and maintaining the Center’s website (which does not require specialized technical skills).

The Fellow will begin in the Summer or Fall of 2018. Fellows receive a competitive stipend plus benefits and office space at the Yale Law School. Read More…

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