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What Was IP Law Like in the 90s?

SILC Executive Director Jef Pearlman reflects on the similarities between IP law and emerging technologies, then and now.

When the battles around Napster and file-sharing heated up around the late 90s, it prompted some tech wizards to think seriously about intellectual property law. That’s what set Professor Jef Pearlman on the road that eventually brought him to Boston University, where he is now a clinical professor and Executive Director of the BU/MIT Student Innovations Law Clinic (SILC).

“All those fun things were happening, and there were a lot of open questions about how the internet, technology and copyright were all going to intersect,” he recalls. Pearlman had already spent most of his life in the tech world: He learned to program at age seven and got both his bachelor’s degree and a master’s in computer science from MIT, later working as a software developer.  “I was reading a lot about what was going on in the policy world, and there was a call for lawyers who understood the technology. So I applied to law school in an exploratory way, and wrote my essay about wanting to do public interest IP law—which was not a particularly big field,” Pearlman explains. “And I ended up doing exactly that.”

“Before law school I don’t think I had a particularly sophisticated view of policy,” he says. “I just had some ideas and some general feelings about what made sense and what seemed fair, but I didn’t have a structural framework for talking about it in terms of the way the law actually applies. Both my understanding and my views evolved over time.”

After earning his JD at Stanford Law School, Pearlman spent a year in the Bay Area as a clerk for Judge William W Schwarzer, known as one of the most influential jurists in modern civil procedure. He then went to D.C. for a fellowship with Public Knowledge, a nonprofit devoted to shaping IP policy on behalf of the public interest.

But Pearlman also wanted to gain litigation experience, so he returned to the Bay Area to practice patent litigation at the law firm of Covington & Burling. “Since I knew a lot about open source, so anything that touched on that, I got pulled into,” he recalls. “In the patent world, a lot of what was being litigated at the time was called standard essentials patents, and open source software is very much in that policy world.”

In 2014, Pearlman pivoted to the academic world as assistant director of the Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School, which was the successor to the cyberlaw clinic. “I was teaching in pretty much the same clinic I had been a student in, and that’s what launched me on my clinical teaching career.” After four years at Stanford, he took over the sIP and Technology Law Clinic at the University of Southern California, where he stayed for seven years until last spring.

Pearlman says he was a longtime fan of the BU/MIT clinic partnership before coming aboard last fall. He is also a friend and past colleague of former SILC director, Professor Andrew Sellars. “It’s something I wish we’d had when I was an undergrad. I get to work with technology, I get to be a public interest lawyer, I get to work with five amazing colleagues. It’s my original technology interest, but expanded into a much greater sphere.”

The dual mission of the clinic, Pearlman says, is to build the clinical law students into great lawyers that serve the clients’ needs. “In some cases that’s helping their clients build a company, so they can go out and use their technology in the world. It’s also making sure clients are safe, that if they’re pushing boundaries and exploring new and uncertain areas of technology, they have the knowledge and the background they need to make informed choices.”

Napster may be long gone, but Pearlman says that many of the underlying issues still remain. “Some of these questions are evergreen. They’re still litigating internet service provider liability for the file sharing of users; that’s still in the courts right now. More recently there have been interesting cases about companies that archive and let you search cable news.” Trademark disputes with policy implications are also alive and well–he cites last year’s Jack Daniels v. VIP Products case, where the latter company was enjoined from producing a “Bad Spaniels” dog toy that spoofed the whiskey bottle. [Read more about the Jack Daniels case through research published by BU Law Professors Stacey Dogan and Jessica Silbey.]

The hottest topic nowadays concerns artificial intelligence, since companies are training their models on millions of copyrighted words, largely used without permission; and the question of how much is owed to the original artists or writers is yet to be settled. “In a lot of ways, the AI world reminds me of the early aughts in that there is new technology that raises a lot of questions about copyright that we never had to answer, because they weren’t possible before. So now we’re answering them.”