Legal insights
Analysis from the front lines of IP & technology law.
Our attorneys write about the developments shaping intellectual property—from the PTAB and the Federal Circuit to the practical realities of protecting fast-moving technology.
Copyright Fair Use: The Four Factors, Transformative Use, and What Warhol Changed
Fair use is the most consequential and least predictable doctrine in copyright law, and the Supreme Court's 2023 decision in Warhol changed how the central question is framed. This article explains the statutory four-factor test, the history that produced it, and how courts actually weigh the factors against each other rather than counting them. It traces the rise of transformative use from Campbell through Google v. Oracle and the discipline Warhol imposed on it, and it explains why the first factor now turns on whether the new use competes with the original rather than on whether it looks different. It covers the recurring contexts where fair use is litigated—parody, criticism, news reporting, education, software interoperability, search, and machine learning—and closes with how to give and receive fair use advice.
Working with Tribal Law and Tribal Courts: A Practical Guide
This guide is the working sequence for a lawyer or an agency that has just discovered a tribal dimension to a case. It covers the three-question jurisdictional analysis that must be done before anything else, how to research a tribal code and get admitted to a tribal court, when to exhaust tribal remedies and when not to, how to draft a sovereign immunity waiver that actually works, the ICWA compliance sequence from the first hearing question through placement, how to get a tribal judgment recognized elsewhere, and how to consult with a tribe productively.
Vendor Cybersecurity Diligence Checklist: A Practical Checklist
Most significant data breaches now arrive through a vendor, and most vendor security reviews are a questionnaire nobody reads attached to a contract nobody negotiated. The controls that actually matter are a small set: knowing what data the vendor receives, tiering the review to the risk, obtaining independent assurance rather than self-attestation, and negotiating a handful of contract terms that determine who bears the loss. This checklist covers the sequence: inventory and tiering, the diligence appropriate to each tier, the technical and organizational questions worth asking, the subprocessor and data location analysis, the contract provisions that allocate breach cost and preserve audit and exit rights, and the ongoing monitoring and offboarding that most programs skip entirely. It closes with the ongoing monitoring and offboarding steps that most programs skip, including the deletion certification that determines whether the data actually goes away.
The CAN-SPAM Act: A Comprehensive Guide for Businesses and Marketers
The CAN-SPAM Act of 2003 (15 U.S.C. 7701-7713) and the FTC's implementing rule (16 C.F.R. Part 316) set the federal ground rules for commercial email, regulating all commercial messages rather than only bulk spam. This guide explains the statute's scope through the "primary purpose" test that distinguishes commercial messages from exempt transactional or relationship messages, walks through the seven core compliance requirements, and details who counts as an "initiator" versus a "sender" and how liability is shared across advertisers, vendors, and affiliates. It covers enforcement by the FTC, sector regulators, state attorneys general, and internet service providers, including the inflation-adjusted civil penalty of roughly $51,744 or more per offending email and the criminal penalties under 18 U.S.C. 1037 for fraud-based conduct. The article addresses the absence of any private right of action, the statute's broad preemption of state email laws under 15 U.S.C. 7707, and how CAN-SPAM interacts with the TCPA for text messages and with stricter international regimes such as the GDPR and Canada's CASL. It closes with a practical compliance checklist and an FAQ for businesses and marketers.
Mineral Title and Oil and Gas Lease Review Checklist: A Practical Checklist
This checklist runs mineral title work and lease review in the order the transaction requires. It begins with establishing what is actually owned, including the severance history, the fractional interest expressed in net mineral acres, which of the five mineral sticks are held, and whether a dormant mineral statute applies. It then works the lease clause by clause with the negotiation position on each, the surface use agreement negotiated separately, the division order verification that determines every payment thereafter, and the post signing monitoring that catches a lease held past its term. A final section covers curative work on defective title.
ITC Section 337 Toolkit: Complaints, Domestic Industry Proof, and Remedy Briefing
This toolkit collects the documents that a Section 337 investigation actually runs on, from the pre-filing domestic industry allocation worksheet through the enforcement package a complainant hands to Customs after an order issues. Each template is annotated with its purpose, its owner, and the failure it prevents, and most serve both sides—the allocation worksheet builds the complainant's case and structures the respondent's attack on it. The materials assume the Commission's Rules of Practice and Procedure and note where individual administrative law judges' ground rules will control. Each template carries drafting notes on what the language does and where filings commonly fail. Adapt everything to the technology, the accused products, and the Commission's current practice.
ITC Section 337 Checklist: A Practical Checklist
Section 337 practice punishes omissions more than errors, because the Commission's schedule leaves no room to recover. This checklist is organized by role and phase: the complainant's pre-filing build, the complaint's mandatory contents, the respondent's first thirty days, discovery under ground rules, hearing preparation and the prehearing brief that waives anything left out of it, remedy and bond briefing, and the border enforcement work that follows an order. Items note where complainant and respondent tasks diverge, and each section closes with the failure it exists to prevent. Separate sections address the complainant's pre-filing work and the respondent's first sixty days. Every item is written so that a "no" tells you what to do next.
First-Party Insurance Claims and Bad Faith: Coverage, Duties, and Remedies
A first-party insurance claim is a contract dispute in which one party writes the contract, investigates the facts, decides the claim, and holds the money. This article explains how a property policy is structured and why the exclusions matter more than the grant, the difference between actual cash value and replacement cost and the practical trap in the holdback, the policy conditions that can forfeit a valid claim including proof of loss and the examination under oath, the appraisal clause as an underused resolution mechanism, the duty of good faith and fair dealing and the statutory unfair claims practices regimes, the damages available for bad faith including punitive exposure, and how ERISA preemption removes bad faith remedies for employer health and disability plans.
Firearms Compliance and Transfer Checklist: A Practical Checklist
This checklist covers firearms compliance from an eligibility self-check through estate transfers. It runs the prohibitor list including the categories that catch people unaware, the dealer transfer and form accuracy steps, the delay and denial response, private and interstate transfer rules, the registered-item sequence with its approval-before-possession requirement, carry permits and the reciprocity verification that must precede every trip, transport and air travel rules, storage and theft reporting, surrender order compliance, restoration routes, dealer compliance obligations, and an annual review.
Student Loan Toolkit: Plan Selection, Forgiveness Applications, and Default Resolution
This toolkit collects the working documents of a student loan matter: the inventory and loan-type audit worksheets, a consolidation decision matrix, a repayment plan comparison, phone scripts for the two calls that matter most, a payment count dispute letter, a garnishment hearing request, rehabilitation payment negotiation language, discharge application narratives for closed school and borrower defense, private loan validation and cosigner release demands, servicer and regulator complaint letters, and a third-party authorization. Each is annotated with the rule it invokes and the failure it prevents.
Litigating a Section 337 Investigation at the ITC: A Practical Guide
Section 337 practice compresses a full patent trial into roughly nine months and adds a domestic industry case that most complainants have never had to prove. This guide walks through the work in sequence for both complainants and respondents: pre-filing preparation and the financial data collection that must precede it, complaint drafting, the first thirty days after institution, discovery under ALJ ground rules, the evidentiary hearing, post-hearing briefing, Commission review, remedy and bond briefing, presidential review, and the border enforcement work that begins after the order issues. It includes a working calendar, a staffing model, budget guidance, and the errors that most reliably cost cases at the Commission. The compressed ITC schedule is treated as the organizing constraint, with a week-by-week working timeline. It also covers the district court companion case and when to stay it.
Common-Law Rights, the Supplemental Register, and the Principal Register: A Practical Guide
People often assume a trademark either is registered or it is not, but U.S. law actually offers three distinct tiers of protection: common-law rights that arise automatically from use, registration on the Supplemental Register, and registration on the Principal Register. Each tier protects a different kind of mark and confers a very different bundle of rights. This guide explains, for lawyers and business owners alike, how rights arise from use, what marks qualify for each tier, the geographic reach of each, and the presumptions and remedies they provide. It details the benefits the Principal Register offers that nothing else does—constructive notice under Section 22, nationwide constructive use under Section 7(c), prima facie validity under Section 7(b), and incontestability under Sections 15 and 33(b)—and explains exactly what the Supplemental Register withholds and what it still delivers. It traces how a descriptive mark climbs from common law to Supplemental to Principal as it acquires secondary meaning under Section 2(f), and it closes with worked examples, a strategy section, and a practical FAQ.