Grossman is “a mover and a shaker” around DC. Everyone knows Marla, and she knows everyone. You can find her at virtually every IP related event in the Greater DC area, whether it is at the Library of Congress, the United States Patent and Trademark Office, AIPLA, a black-tie affair or other industry event. We have included her in our “insiders” series and in 2013 the National Law Journal referred to her as a “leading copyright attorney and lobbyist.” She is the real deal.
Perhaps the reason Grossman has become so sought after as a representative, particularly in the copyright and entertainment industries, is because of her time working on Capitol Hill. The 1990s saw a number of legislative issues of great importance thanks to the sudden growth of the World Wide Web. During this time, from 1997-1999, Grossman served as minority counsel to the US Senate Judiciary Committee, where she worked to develop policy positions and legislative initiatives for US Senate Patrick Leahy (D-VT), who now Chair’s the Senate Judiciary Committee. During her time working on Capitol Hill Grossman worked on a variety of intellectual property, Internet usage, entertainment, online gaming and technology issues for Senator Leahy, and was directly involved with major reforms including the Digital Millennium Copyright Act; Copyright Term Extension Act; Trademark Law Treaty Implementation Act; Domain Name Amendment Act; and US Patent and Trademark Office Reauthorization Act.
Without further ado, here is part 1 of my 2 part interview with Marla Grossman.
The Road Forward: Software Patents in the Post-Alice Market
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QUINN: Thank you, Marla, for taking the time to chat with me. It’s good to talk to you.
GROSSMAN: It’s wonderful to talk to you.
QUINN: Let’s just jump right into things if we can because there is a lot I would like to cover. Let’s start with the question that is on the mind of so many in the industry: What do you suppose is going to happen with patent reform? Do you have any predictions or any thoughts of when we’re going to see something pop out of the Senate?
GROSSMAN: I think that we will see some form of patent litigation reform passed by the Senate and then ultimately by Congress. Currently, there are very few things on which the Republicans and the Democrats can come together. However, patents and other types of intellectual property seem to be one area in which joint action is possible. I think that ultimately both parties are going to want to do something that shows that they can work together and get something important accomplished. Enacting the appropriate type of patent litigation reform would foster innovation and create jobs and thereby demonstrate to the American people that they still have a functioning Congress. The House has already passed a bill, and the President urged Congress to pass a bill in his State of the Union address. I think the momentum is there.
QUINN: I know you and your partners are intimately involved in patent reform, as well as all the other various IP reforms, and I know that there is talk of opening up the Copyright Act. When these issues are presenting themselves, how do you go about your job? How do you go about trying to get the message to the decision makers on behalf of your clients to get them to understand the importance of what it is that they’re considering?
GROSSMAN: Traditional lawyers sometimes are limited by having to operate in the realm of what is, or even what was. By contrast, public policy lawyers like myself and other lobbyists often have the luxury of operating in the realm of what can be. Thus, the first thing we do is to confer with our clients to see what changes to law or regulation, if any, would help them advance their goals. We start by working with our client to come up with appropriate, achievable, and cost effective goals. If we take the time with our clients to develop an effective strategy and focus our efforts on what is achievable in the available time frame, we have a much higher chance of ultimate success.
Let me give you a real-world example dealing with copyright. When the Register of the Copyright Office suggested that the time was right to review the U.S. copyright laws, Chairman Goodlatte of the House Judiciary Committee announced that he was going to conduct a comprehensive series of hearings to consider whether the copyright laws are still working or are in need refinement. These events afforded us the opportunity to go back to our clients who have important copyright interests and urge them to carefully asses the opportunities and risks offered or posed by potential new developments in the world of copyright. We ask them, in a perfect world what type of changes would you like to see? We start from there. Then we work in terms of what’s achievable and appropriate both substantively and given the political climate. Once we come up with goals and plans, we approach some of the relevant policymakers to educate them about the changes that we’d like to see, and/or issues where we would lik to maintain the status quo.
There are several aspects of this education process. The education acknowledges the interests of our clients but emphasizes how those interests coincide with goals of the individual policymaker; we discuss the potential advantages of our approach to his/her state, district and the national economy. Some have stressed that all politics is local, but it is critically important that the policies advocated advance the public interest at the national level as well.
QUINN: Now those types of meetings, both with clients and potential clients as well as with those on the Hill, happen over a much longer time horizon than most people think, isn’t that correct?
QUINN: Can you give us an idea? If someone wanted to be involved in one of these discussions, whether it be patent reform or whether it be opening up the Copyright Act, when should you be considering getting involved?
GROSSMAN: As early as possible. I think that most people now understand that you ignore Washington D.C. at your own peril. And a growing number of companies and individuals realize that having a Washington D.C. presence, whether that means a physical presence or a lobbyist advocating for your interests, is a good business decision. The earlier one can get involved in the process the better. Because by the time many things are reported in the news, important decisions have already been made. A lot of effective advocacy is done behind the scenes very early in the process. When I say “behind the scenes,” I mean laying the proper groundwork by educating public policymakers and their staff weeks, months, and in some cases years before legislation or regulations are proposed or enacted.
QUINN: It seems, go back to something you said earlier, you ignore Washington at your own peril. I think that message is getting out. Certainly the large players have gotten it. There was an article in the Hill recently that talked about how many of the elite technology companies – we’re talking about Microsoft, and Apple, and Facebook, and eBay – are all ramping up their lobbying and have spent more last year in lobbying than they had in the previous years, in some cases almost double. This article tied that increase in spending to the NSA scandal, which I know is a very important issue for the tech community. Whether it is all attributed to the NSA issue or not, it does seem that there are many companies that are spending a lot more to get their message across than ever before. But at the same time not everybody always gets that memo. How do you work to convince people that they really do need to be engaging in this conversation as early as they should?
GROSSMAN: Many sophisticated companies have long recognized the importance to their business of governmental action. In recent years, however, that recognition has become more widespread. The world has become more competitive in many fields, and companies realize that if they don’t get involved with the legislative or regulatory process, rivals may gain a significant competitive advantage. My understanding is that $3.5 billion was spent annually on lobbying at the end of the last decade. That is almost double from the previous decade. Companies are realizing that spending a few hundred thousand dollars on lobbying in Washington D.C. can yield millions to their bottom line. This increased recognition means that by the time a company reaches out to me, they’ve often already made a decision that they would like to engage in a public policy debate before Congress or some other governmental entity that has the power to affect their business. We still occasionally get a preliminary question from an interest group or a company as to what’s going on that might affect them. In such cases, the fact that a governmental entity is considering action that could have a significant effect on them is sufficient to engender a greater interest on their part.
What I have said so far is applicable to many industries having little interest in intellectual property. But, the increase in public advocacy work on intellectual property issues has been even greater. When I started doing intellectual property public policy around 20 years ago, the field was not as well known and recognized as it is today. We would have patent hearings and often the hearing rooms would not be filled up. There were relatively few lobbyists who were deeply schooled on the issues. Now, you have a patent litigation hearing, and there’s a line out the hearing room door that started at 4 a.m.
I think that there are at least several reasons for this change over the last few decades. It is common knowledge the U.S. economy has changed significantly over the last fifty years. Our former dominance in many industries which require large amounts of relatively unskilled labor has been eroded, increasing the importance to our economy of fostering industries where relatively cheap labor is not a critical component. The relative importance of certain older industries has decreased and that of newer industries that emphasize intellectual creativity and innovation has increased. Our governmental officials have recognized this important change and become more active in responding to the many complicated issues engendered by the rapid changes in the intellectual property area. Because of the increase importance of technology in our economy, people are reading about patents and copyrights and trademarks on the front page of their papers every morning. It’s on the television news and talk shows. Moreover, the development of technology is touching almost every aspect of the human condition; people are more aware of the importance of technology from the moment they wake up to the moment that they go to bed. Innovation and creativity has probably touched their lives tens or hundreds of times throughout the day. Not surprisingly, business leaders have increasingly been recognizing how important their patent portfolio or their copyright portfolio is to their overall business assets. As a result, they are more aware of the potential benefits and risks posed by greater governmental involvement with these issues, and the need for them to become more involved in the public advocacy process.
QUINN: Let me touch on something you just said because it’s something I’ve been wondering about. Do you really think that people understand just how much innovation touches their lives? And the backdrop of that, why I follow up on that is now with all this stuff in the courts at the moment about software and should software be patented, and is software even an invention and this sort of thing, it strikes me that people really just take it for granted. I mean you couldn’t turn on your car to go from point A to point B without software, but I wonder how many people really know that. We all have these digital video recorders – DVRs – and that’s software, you know? And software touches our lives in so many different ways from your automated coffee maker that you scheduled the night before that creates the coffee that you come down to in the morning to so many different aspects of our lives. I wonder if people at large are growing complacent, and if they are then my fear is that then the decision makers grow complacent as well, if for no other reason than the folks that they’re hearing from are telling them “oh this isn’t such a big deal.”
GROSSMAN: In some ways, I think your hypothesis is correct. Although there’s an increasing awareness of how important technology and innovation creativity is to our lives, many people have become more complacent about and feel entitled to the intellectual products of that innovation without having to pay for them. Americans seem to understand that when you into a store to get a hard product, you have to pay for it and that the price includes not only the cost of the materials that make up the hard product, but also the costs of conceiving and developing that product. Many, however, seem to have a different attitude intellectual property, particular when it is expressed in digital form. They feel entitled to download it whenever and wherever they want without having to pay for the content. The risk taking and creativity that they are willing to pay for with respect to hard goods is ignored when the product consumes comes in digital form. It is not clear to me why society should try to induce risk taking and creativity for one type of product but not the other. This intellectual inconsistency stems in some part from an organic grassroots movement that consistently undervalues the need to reward risk taking and innovative effort. But, it appears to be augmented by certain very sophisticated corporate interests who benefit financially from a business model that enables them to get other people’s intellectual property for free, or at rates that do not adequately reward the risk and effort involved. These business interests have helped organize grassroots efforts to raise the decibel level to public policymakers. Their message, however, when parsed carefully, is that the technology is important, and they want it instantly and for free. The disconnect between the importance of technology and the need to provide financial incentives for its continuous improvement simply goes unrecognized.
QUINN: Right. There’s a disconnect. And that’s what really bothers me. Because I think you’re right when you say almost everybody understands how important technology is and how important innovation is, and I might even say virtually everybody, or at least the people who want to inform themselves, know that that is somehow tied to the prosperity of the economy and of the individual insofar as job creation is concerned. Still, there’s that disconnect then between having the desire to have technology, the desire to have innovation, the desire to have high paying jobs that are created by and having the protections that are necessary in order to give people the incentive to create, including investors who obviously want an acceptable return on investment. Now I know we’re not in a recession any more technically, but at a lot of levels it still feels that way to many people. Against that backdrop how can somebody who really supports intellectual property, really needs intellectual property in their business, get a pro-IP message across? You can take that in any direction you want.
GROSSMAN: There’s nothing like a good old-fashioned call to one’s representative. Sending an email, sending a letter…. there is power in numbers, particularly if you’re reaching out to your own senators or congress people. Every individual has a voice. Even those who don’t have the budget to hire lobbyists or to come to Washington D.C. themselves can still interact and communicate with their own public policymakers. Individuals do have the power to petition the government on their own, it’s in the First Amendment; they don’t have to hire somebody else to do it for them, although they can. The more people who exercise their First Amendment right to petition the government to promote intellectual property interests, the more the public policymakers will understand that the public believes that creativity and innovation is at the core of their lives. The software and the apps that we use, the video games that we play, the books that we read, the motion pictures and television show that we watch, the electric toothbrush that we use in the morning all are part of and define our cultural and social identities. The intellectual property that engendered these technological advances have provided economic growth and jobs, and affect our wellbeing in countless ways. The promotion of the intellectual property rights that led to those innovations is enshrined in the Constitution. There are always those who undervalue the rights of others. That same risk applies to intellectual property rights. If we become complacent about those rights, we risk losing the benefits that have helped this Nation to secure fruits of technological advances throughout the last two hundred years.
We also have to be vigilant about making sure we do not back-slide on some of the progress that we’ve made at important governmental bodies that impact our intellectual property rights. Let me give you an example. During the past decade, the USPTO has achieved what many consider to be a “gold standard” for the first link of the patent and trademark data chain – collecting basic information from applicants and providing raw patent and trademark data to the public and commercial providers. Issuance of high quality patents and trademarks and a well-functioning patent and trademark legal landscape is dependent on clear and accessible information about what patent and trademark actually exist and what other prior art is available. Thus, it is imperative that the agency ensure that it continues to meet or exceed its current high standard of published patent and trademark data while it is improving internal operations and information technology systems. As the agency is spending millions of patent and trademark user fees to upgrade its IT systems, and as the USPTO is developing its Patent End-to-End portfolio of information technology projects, users need to make sure that they are getting at least as good of a final raw data output and that corners are not being cut that would result in a degradation of the raw data that is published by the agency. There are advocacy groups like the Coalition for Patent and Trademark Information Dissemination that are working with public policy makers to ensure that the quality of published data coming out of the USPTO remains at or exceeds its current high quality, but it is important for others users of the USPTO not to take the current quality of published data for granted and to insist on its maintenance.