How has the past year at Cooley felt from a professional standpoint? How has your practice changed?
I am impressed with the firm’s culture of collaboration, as well as the number of new companies and entrepreneurs who turn to Cooley. I have been able to work with a number of colleagues, and to handle new matters for companies in many different industries, including so-called disruptors who are inventing new categories of products and services. The focus of my practice has not changed, but the types of companies to which I’m exposed has grown. In addition, in my office, we have perhaps one of the largest trademark groups in Southern California, and there is always a colleague in the firm working on an interesting case or legal issue.
With the rejection of the Dancing Baby case at the US Supreme Court, do you think there will be another opportunity for courts to address contentions with the DMCA?
One of the closely-watched Digital Millennium Copyright Act (DMCA) cases is before the Fourth Circuit Court of Appeal—the BMG v Cox case. The case involved allegations that Cox was liable for contributory copyright infringement over illegal downloads of songs owned by BMG. The jury sided with BMG and awarded it $25 million. The court added another $8 million in legal fees, finding that Cox’s use of the DMCA safe harbour defences was “objectively unreasonable”. The ruling is likely to inform how ISPs must deal and comply with DMCA notices to avoid liability, particularly where is an allegation that the ISP is permitting “repeat infringement”.
Do you agree with the recommendation of the US Copyright Office that the DMCA’s anti-circumvention framework should largely remain the same? Why?
The Copyright Office’s 22 June 2017 report only proposed modest changes to the current DMCA scheme, concluding that its “overall structure and scope remain sound”. The DMCA’s anti-circumvention rules, and the triennial proceedings under these rules, represent an attempt to balance the right of copyright owners to use technological measures to help protect their works and the right of users to gain access to content under circumstances in which sound public policy considerations would favour access. Some commentators have expressed frustration with the office’s report, including in particular, user advocacy groups. This issue will always have staunch advocates on both sides of the discussion.
This year, the International Trademark Association pushed the idea of attorneys being brand ambassadors for their clients. How much do you subscribe to this? Is there a bigger role for trademark attorneys within brands?
This discussion began at least a few years ago, with one in-house commentator suggesting that attorneys must not only protect their clients’ trademarks, but contribute to their creative success. As an advocate for my clients, part of my role is knowing its business and its brand as well as its employees. By enforcing and protecting my clients’ brand assets, and understanding the connection that consumers have with that brand, I believe I already serve a role as a brand ambassador.