Interviewed by Bert Schiettecatte, Expert Computer Scientist.
I understand you originally studied Political Science and Public Administration at the University of Michigan. How did you decide to study law and focus on intellectual property law and in particular copyright law?
While completing my undergraduate and graduate degrees at the University of Michigan, I worked at an intellectual property law firm as a legal assistant to Allen M. Krass who mentored me and encouraged me to attend law school. During the years that I worked with Mr. Krass, I developed a passion for intellectual property that stayed with me throughout law school and my clerkships. I find the relationship between the law and technology fascinating. I enjoy copyright law in particular because it provides me with the opportunity to meet so many creative people from diverse industries and backgrounds. Copyright law encompasses art, architecture, literature, music, movies, mapmaking, dance, software, and much more. Few other areas of law—or life—will bring you side-by-side to work with a boat hull designer, a software developer, and a priest all in the same week.
After getting your law degree at Loyola University New Orleans you also completed a postgraduate degree in copyright law at King’s College in London. How did you decide to study copyright law in the UK?
King’s College London offers the only program of its kind: an in-depth, comparative study of copyright law in three major markets. An awareness of the key differences between these jurisdictions helps me better advise my clients with international portfolios. The advent of the internet has profoundly changed the way that the world deals with copyright law. Copyrighted works existing in digital form are prolific and can be infringed seemingly anywhere and everywhere all at once. In addition, the COVID-19 pandemic has changed the way we collaborate to create copyrighted works across jurisdictional boundaries. Understanding how major markets address these types of challenges, and what pitfalls to avoid, helps me provide a wholistic strategy for clients that operate in all types of creative industries and mediums.
What are some of the main differences between copyright law in the UK, the EU and the US that creators should be aware of?
One of the main differences between the US and other jurisdictions, like the UK and EU countries, is the importance of copyright registration. In the US, like in many other countries, copyright protection arises at the moment an original work is fixed in tangible medium. In other words, a work is protected by copyright automatically; one need not file with the government to obtain rights.
But for US works, you must have a registration to bring an infringement lawsuit in federal court. You do not need a prior registration to sue for infringement of a foreign work, but without a timely registration, you cannot obtain statutory damages ($750-$30,000 per work and up to $150,000 per work willfully infringed), attorneys’ fees, and litigation costs. The availability of statutory damages can be an extremely powerful tool in stopping infringement and deterring would-be infringers. Copyright registrations also may be recorded with US Customs and Border Protection which has authority to seize and detain infringing products at the border. So, while copyright registration is optional, in practice, it is a vital step for properly protecting your works.
Are there differences in how copyright infringement cases are litigated, in the US, versus the UK and the EU, that creators should be aware of?
One of the things that sets the US apart from other jurisdictions in terms of copyright litigation is the cost. In the US, generally, federal courts have exclusive jurisdiction over copyright cases. Often, this presents an insurmountable paywall for individual artists and small businesses to vindicate their rights, especially when the value of the claim is relatively low. Many attorneys decline to take cases where the cost of litigation outweighs any potential recovery, and pro se representation is commonly discouraged, even if unofficially, because it taxes court resources.
However, earlier this year, the Copyright Claims Board (“CCB”) opened for business. It is a tribunal within the Copyright Office that handles claims of damages up to $30,000, and is designed to be a low-cost, streamlined, alternative to litigating in federal court. This so-called “copyright small claims court” is modelled in part after the UK’s Intellectual Property Enterprise Court (“IPEC”) which is a specialty court that handles intellectual property disputes; the IPEC’s Small Claims Track is designed for claims valued at less than £10,000. It is still early days for the CCB, and it will be interesting to see how it compares with its UK cousin.
I see you wrote a paper on product liability and autonomous vehicles for the Richmond Journal of Law and Technology back in 2017. In the meantime, a lot has happened in the development of self-driving cars. Has the law in the US kept up with the development of the technology?
We, meaning people generally, have been fascinated with self-driving cars since at least the 1939 World’s Fair when General Motors showcased its Futurama concept car. Since then, technological development in this space has moved along in fits and spurts every decade or so. This is primarily reflective of market demand as successive generations of drivers come of age and take an interest.
I think that we, now meaning lawyers and legal professionals, tend to overestimate the law’s ability to constrain or influence the development of new technologies. Often, the law very, very, very slowly catches up with technology and usually in a reactionary manner. So, no, I would not say that the laws are keeping up in this area, and one should not realistically expect them to do so. Most likely the proposals made in my paper will not be seriously considered until there is an actual case and controversy in play.
Nonetheless, self-driving cars will happen. Maybe not this go-around, but eventually they will be on the roads en masse. It is inevitable that they will crash themselves, and when they do, there will be lawsuits. Any meaningful evolution in the law will probably only happen in the wake of those events.
How is Fishman Stewart different from other law firms that practice intellectual property law?
Fishman Stewart stands out from other IP law firms because of its culture. Our firm leadership promotes a flat organization structure and transparency. At any time, I can walk into the office of our managing partner and ask about his weekend, some nuance in the law, client management, or the firm’s finances. Many, if not most, other firms operate like a black box where decisions are made behind closed doors or by a long and drawn-out committee process. Fishman Stewart is different because we are all encouraged to be “in the room where it happens” and to provide input when decisions are made.
Also, despite that Fishman Stewart has been around for over twenty-five years, but it has retained its start-up vibe. By that I mean we are a close-knit group that celebrate each other’s successes and bear each other’s losses. There is a real team spirit that transcends the rigid attorney-support staff divide that is common at other firms. In short, we all eat lunch together. That kind of culture is rare and precious.
What are your thoughts on a recent decision by the US Copyright Review Board to deny the request to register an AI-generated artwork? If an AI-based software tool generates art after having been trained on a body of artwork from a specific artist, would that potentially be copyright infringement of the artists’ work, and who would be the infringer? (https://www.natlawreview.com/article/paradise-lost-art-created-ai-ineligible-copyright-protection)
The Copyright Review Board probably reached the correct conclusion based on the law as it is currently written. I think there is textual support for the proposition that authorship of a creative work must include some human element, and the Copyright Office has been flexible enough in its approach to grant registration where such is the case. Ultimately, whether AI-generated works attract copyright protection, and whether an AI may be held accountable as an infringer, are questions that must be answered by a court. Until we have such a positive pronouncement of law, we are all just guessing at the legal ramifications.
The more interesting questions are whether and how the law should change or evolve to accommodate AI-created works. On the one hand it makes some sense to protect AI-generated works to promote the development of the technology and industry. On the other hand, because AI machines can outpace their human counterparts in generating content, granting AI-generated works copyright protection might unfairly suppress the market for human-generated works. Moreover, there is the other component of AI being an infringer. If an AI machine uses human-generated works to create derivative works, relegating the AI works to the public domain may unfairly distort the market value of those underlying human-generated works.
Often, we think of copyright protection in absolutes: you have it, or you don’t. But we can afford degrees of protection: shortened terms, damages caps, and limited scope of protection. So, there might be some wriggle room here. And likely there will need to be some compromises with holding AI accountable for infringement—particularly given that AI cannot form intent, and therefore cannot willfully infringe. Policy makers will need to strike the right balance between compensating a copyright owner without unduly hampering this burgeoning field of technology. And as the copyright markets merge in the digital marketplace, harmonizing these laws will be an enormous challenge.
I see you speak Swedish and that you are a member of the Swedish Club of Southeastern Michigan. Are you from Sweden originally?
My family emigrated from Sweden a few generations back. I can claim only a small bit of Swedish heritage. However, my husband is a citizen of Sweden and his family lives there. We visit them a couple times each year, though, like most people, we were travel-restricted during the pandemic. Most Swedes speak fluent English, but my in-laws devoutly maintain every conversation entirely in Swedish. So, I owe them all the credit for my Swedish language skills.
Which do you feel are some of the most interesting cases you worked on in your career, and why?
Some of the most interesting cases I have worked on I encountered during my clerkships at the Michigan Supreme Court and the Michigan Court of Appeals, and oddly enough, had nothing to do with IP or copyright!
One of my favorite cases involved the interpretation of a will provision. The decedent had asked his friend, who was a lawyer, to help him with drafting his will, and bequeathed the lawyer-friend several million dollars. Of course, this practice violates the rules of professional conduct and is grounds for disciplinary action from the state bar association. So, it is not a set of facts that arises very often. The novel question of law was: what happens to the money?
This case came up to the Court of Appeals when I worked there as an intern in law school. The majority held that it created a presumption of undue influence, which the lawyer-friend could rebut with evidence. In other words, if the lawyer-friend could prove that he had not used his position of influence and trust to persuade or coerce the decedent into putting the bequest in the will, then he could keep the money. Otherwise, the provision would be invalid.
The case was appealed up to the Supreme Court, where I clerked after law school. Because the Justice I worked for was on the panel at the Court of Appeals, he could not participate in the case, and the panel split down the middle: three justices thought the lawyer-friend should be able to present his evidence, and three thought the bequest was invalid from the start. So, this meant the Court of Appeals decision was “affirmed by equal division” and the case went back to the trial court for the parties to present evidence related to undue influence. Eventually it settled out of court.
I have worked on other cases with higher stakes: more money, more complexity, and more jurisprudential significance. But this is one of my favorite cases because it involves a simple question that anyone can understand: yes, the lawyer-friend gets disciplined, but what about the money? Should rules of professional conduct trump a man’s dying wish?
What do you think makes a good expert witness?
A good expert witness needs—of course—expertise in the given field or subject matter. In addition, one must have the ability to distill complex ideas to their most basic elements and effectively communicate that to a factfinder. One must be able to take something that is very complicated and, in one pass, make a lay person feel like an expert themselves. Making the factfinder feel as though they have mastery over the subject matter builds their confidence and trust in the expert witness. It also helps create a clear record to work from as the case progresses through litigation from pre-trial, to trial, and appeals.
Where can our readers find more information about your background and work and how can they contact you?
Check out my bio at https://fishstewip.com/attorneys/kristyn-c-webb/
I am also on LinkedIn at https://www.linkedin.com/in/kristyn-webb-bb7a13a/