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Although IP was not a hot topic during the John Roberts confirmation hearings, inquiring IP minds want to know: Where does he stand on IP issues? But even more, does he know anything about IP? While the answer to the former remains as much of mystery as his positions on matters attracting more public attention, the intellectual property community may take some solace in knowing at least that Justice Roberts has IP experience. While on the U.S. Court of Appeals for the D.C. Circuit, Roberts penned on reported intellectual property in Universal City Studios LLLP v. Peters, 402 F.3d 1238 (D.C. Cir. 2005). The case involved royalty claims filed by Universal Studios and MGM Studios, who sought to form a common fund of royalties paid by cable and satellite companies for retransmission of copyrighted broadcasts. By regulation, claims were due during the month of July, but Universal and MGM filed claims that arrived on August 2. Roberts affirmed summary judgment, holding that the refusal to grant a waiver was not an abuse of discretion because the essence of the rule was to prohibit case-by-case inquiries into the time of mailing, and that rejection of the claims did not violate the owners’ due process rights. Two days late and many dollars short. Roberts also participated in the decisions rendered in Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005), and Recording Indus. Ass’n of Am. v. Verizon Internet Servs., 351 F.3d 1229 (D.C. Cir. 2003). In Luck’s Music Library, the plaintiffs challenged a provision which resurrected copyrights in works falling into the public domain. The plaintiffs argued that this provision violated the Copyright Clause of the Constitution because “rewarding prior works will not provide any significant incentive to create new works. … “ Dismissing the plaintiffs’ claims, the court said the Copyright Clause did not create any ban on Congress’ ability to remove works from the public domain. A bright line rule against laws removing works from the public domain was not required by public policy or other laws. In the Verizon case, the RIAA sought to enforce its anti-infringement efforts against individual users of P2P file-sharing programs by serving subpoenas upon Verizon, via the DMCA subpoena provision. Verizon challenged the subpoenas, asserting constitutional arguments protecting free speech. The court ruled in favor of Verizon. A subpoena could be issued only to an ISP engaged in storing on its servers material that was infringing or the subject of infringing activity, and not to a mere conduit ISP. Justice Roberts’ experience as an advocate in IP litigation before the Supreme Court and Federal Circuit is even more impressive. He was the successful attorney in Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998); TrafFix Devices v. Marketing Displays Inc., 532 U.S. 23 (2001); Intergraph Corp. v. Intel Corp., 195 F.3d 1346 (Fed. Cir. 2001), distinguishing himself as the most knowledgeable IP attorney to reach our highest court. Mark V.B. Partridge is a partner in the Chicago office of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson and the author of “Guiding Rights: Trademarks, Copyright and the Internet.”

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