HTLI: Legal Experts Examine 50 Years of Change in Intellectual Property Law in the Digital Age

A Q&A with Tyler Ochoa

• By Mary Grush
• 12/08/25

Campus Technology asks Tyler Ochoa, a professor of law at Santa Clara University's School of Law, about a day-long event, Intellectual Property Law: How it Started, How It's Going, to be held at Santa Clara University on Jan. 30. Offered by SCU's High Tech Law Institute, the event will convene legal experts on intellectual property and IP law to consider the past 50 years and the future of IP in the digital age.

 

Mary Grush: You're an expert in copyright law and a moderator and conference organizer for HTLI's event on January 30. How did the conference themes take shape? And what are a few of the issues panelists might choose to discuss?

Tyler Ochoa: We started out by noting that next year, 2026, is the 50th anniversary of the 1976 Copyright Act, which is an important development in intellectual property law. And it turns out it's also the 80th anniversary of the federal Trademark Act of 1946. It's the 10th anniversary of the Defend Trade Secrets Act. And it's one year short of the 75th anniversary of the Patent Act. While they don't line up precisely, we noticed all of these anniversaries converging. So, we thought we would broaden our topic — so as not to limit ourselves to copyright law, but to ask what, in general, has been happening in intellectual property law in the past several decades.

We asked our speakers to address four main themes very broadly. We're not asking them to pick particular topics ahead of the conference, but to surprise us as the conference unfolds. So HTLI conference participants and speakers will look at copyright, at trademark, at patent law, and at trade secret law through the lens of what's happened in these four areas in the past 50 years or so.

We're asking: How did these laws develop? How did they come to be? What's been going well? What's gone right? In what ways have intellectual property laws contributed to the development of technology and culture? And what's gone wrong? In what ways have the laws not succeeded or have created problems that might not otherwise have existed? And then to look forward, to the future…

Grush: What kinds of aspects of copyright law — one of the four main conference themes — might be considered?

Ochoa: In copyright law, I think there have been three very important developments that have fundamentally changed how copyright law has been shaped.

One is the widespread adoption of personal computers beginning in the 1980s. Suddenly, everybody has a means of replicating copyrighted works very cheaply and easily, right at their fingertips. And software becomes an important subject of copyright law in ways that had not existed before.

So, we have to address what aspects of software are protected by copyright, what aspects of software are not protected by copyright, and how we deal with the fact that computers operate only by copying data into their dynamic memory. Every operation you do with a computer starts with a potential act of reproduction, because the data has to be copied into the memory of the computer in order to work with it.

The second development is the commercial development of the Internet in the mid-1990s. The Internet as a research project goes back to the 1960s, so there were computer science researchers working with the Internet before that. But beginning in the 1990s, the Internet gets thrown open to everyone. And so now you have a means of distributing copyrighted works easily, worldwide. It provides both new opportunities for distributing copyrighted works very cheaply and easily in digital form rather than in the form of print, as well as [on the darker side] a new means for unauthorized copying, or piracy, on a worldwide scale.

So, secondary liability becomes very important. To what extent are we going to hold Internet service providers responsible for infringement that's being committed by their users? We had a very important case about 20 years ago involving file sharing technology, the Grokster case, that went to the U.S. Supreme Court. And we have another case before the U.S. Supreme Court this term, Cox versus Sony, asking whether your Internet access provider — someone who just provides you with the means of connecting to the Internet — should be held liable if their users commit copyright infringement.

And then the third major development is, of course, artificial intelligence, generative artificial intelligence technology, because it has the potential to undermine the whole purpose of copyright.

Copyright law exists because creation is expensive and copying is cheap. But now with generative AI, creation might be far less expensive than it has been in the past. So, we have to decide whether we need to rethink the balance that copyright law has traditionally provided.

Grush: You mentioned the current case with Sony. Is it reminiscent of what went on with Kinko's quite a while ago?

Ochoa: With photocopying technology, a large number of cases occurred about 30 to 35 years ago, asking whether copy shops should be held liable for copying that was being done by their users.

Certainly, if the copy shop itself was replicating something, they were potentially liable for copyright infringement. So, they became much more careful about not accepting copy jobs for things that had copyright notices on them. But copyright notice isn't even legally required: Anything you're copying that was created in the past 50 years is automatically covered by copyright, whether it has a copyright notice on it or not. It used to be that if you published something without a copyright notice, it went into the public domain. But that hasn't been true since we joined the Berne Convention in 1989.

So, there was a decent amount of copy shop litigation. And ultimately, courts decided that if users did the copying on their own, just using someone else's photocopier, the copy shop typically would not be liable for that. But if the copy shop did the copying, they typically would be liable.

Now, these copy shop cases are a little different from the current Sony case because Cox is not providing you with the means of reproducing works. They're providing you with Internet access.

 And you need to use the Internet. You need some way of connecting to the Internet because that's pretty much an essential part of modern life. If you can't use the Internet, you can't function very easily in modern life.

And the question is, is it an appropriate penalty for copyright infringement to say, well, your Internet provider has to cut you off from Internet access because we think you are infringing. And part of the problem is that the copyright owners want this to happen upon mere accusations of copyright infringement, without necessarily having to prove it in court.

Grush: Almost any kind of change seems to throw in some factors that complicate the environment and are difficult to deal with. But is there something unique about the past 50 years with technology, the Internet, digital communications, or knowledge generation with digital tools? Are we are we reaching a point where there's going to be so much change that it's going to be chaotic? Where is copyright law in that context?

Ochoa: Well, copyright law has always responded to technological change. Indeed, the first copyright laws are a response to the printing press because it made copying much cheaper than the initial creation of the work, so that someone who's copying without permission can always charge less money. And every time we've had a new communications technology — sound recording, motion pictures, radio, television — copyright law has had to adjust.

What's different in the past 50 years is that communications technologies were typically in the hands of and controlled by large organizations. If you wanted to be a broadcaster, you had to have broadcasting technology and a federal FCC license. If you wanted to run a movie studio, you had to have a lot of capital and you had to have a film laboratory.

Photocopying allows individuals to start copying, though individuals typically don't own copy machines. But once you have the personal computer, everybody has a copying machine and can copy cheaply and easily. And once you have the Internet, everyone can communicate with everyone else very cheaply and easily.

So I think what's different in the past 50 years with the digital age is that individuals have access to things that before required a large amount of capital.

What's different in the past 50 years with the digital age is that individuals have access to things that before required a large amount of capital.

Grush: But does that mean we're going to reach a point where things change so much, and so fast, that it's going to be difficult to find laws to help us recuperate from or survive those changes?

Ochoa: I think we may already have reached that point. Generative artificial intelligence is something that not even its creators fully understand. They understand that they've programmed these machines to come up with new stuff, but the machines are, in a sense, programming themselves to come up with new stuff.

And they [the machines] have outstripped our ability to understand the algorithms that are underneath the hood, if you will. One of the problems is that technology moves very quickly, but law moves very slowly. So even after you have a bunch of lawsuits, you don't necessarily have definitive answers for a decade or more.

One of the problems is that technology moves very quickly, but law moves very slowly.

But the technology is already out there and is already being used. What we don't know is to what extent the creators of that technology are going to be held responsible for copying that they did in the course of training the AI. We've had a couple of preliminary court decisions on that, but nothing final.

And we don't know to what extent the users of generative artificial intelligence will be held liable for output that is too similar to something that already exists. And, we may not have those answers from a court, definitive answers, for quite some time. The Cox versus Sony case that I mentioned the Supreme Court is hearing this year involves cable technology and Internet access! That's an issue that goes back at least 25 years, or maybe 30-plus years. And we're only going to get a potentially definitive answer this year! So, law is always struggling to keep up with the pace of change. And as the pace of change accelerates, it makes it more difficult for law to influence how the technology develops.

Grush: Can you tell me more about protecting software and other digital technology development? Where does IP stand in that realm?

Ochoa: Well, if we look at patent law, for many years, the Patent Office took the position that software was not copyrightable. But in 1982, a special appeals court was created that, among other things, hears all patent appeals from around the country. It's called the U.S. Court of Appeals for the Federal Circuit. And in the 1980s, they decided that software was eligible for patent protection, potentially in addition to copyright protection.

And so you had all sorts of software patents flooding the system, a system that never had to deal with software before. It's a system based on comparing new inventions to older ones, and it didn't have all of the knowledge regarding older ones [in terms of software]. This led to huge disruptions in patent law between the 1980s and until rather recently.

The Supreme Court had to step in with a large number of decisions, ultimately holding that software could be eligible, but greatly restricting the scope or the type of software that might qualify for patent protection. So I expect a lot of our speakers [at the conference January 30] to reflect on that.

There was also a very important amendment to the Patent Act in 2011 — that largely came into effect in 2013, but was enacted in 2011 — called the America Invents Act. It tried to change American patent law to look a little more like patent law done in the rest of the world.

Before then, we tried to determine who was the first person to invent a technology. And after that, we've adopted the simplifying assumption that the first person to seek a patent should get the patent absent unusual circumstances. So I expect our speakers to reflect on that, too.

Before 2016, trade secret law was largely state law, and now we've enacted a federal law to deal with trade secrets. To what extent has that changed the landscape of trade secret law and litigation? We have some speakers who are going to talk about that [during the event on January 30].

Grush: The upcoming HTLI program brings together some of the most highly regarded experts in their legal fields. I know there are several, but could you name just a few of those taking part in HTLI sessions on January 30?

The upcoming HTLI program brings together some of the most highly regarded experts in their legal fields.

Ochoa: We have, I think, the biggest names in intellectual property.

Mark Lemley at Stanford, and Pam Samuelson at Berkeley will both be here. Rebecca Tushnet from Harvard will be here. So we're very excited to have experts from around the country here to talk about how our law has developed and how it should be changed moving forward.

Grush: And of course, you yourself play a key role, not only moderating but also developing the agenda and attracting such formidable speakers and panelists. Could you tell us a little bit more about HTLI itself? Who's responsible for the programming of HTLI events in general?

Ochoa: Sure. The High Tech Law Institute was formed as a home for all of the faculty members at Santa Clara who are working on tech law and technological issues.

The High Tech Law Institute was formed as a home for all of the faculty members at Santa Clara who are working on tech law and technological issues.

It's a collaborative enterprise. We all play a part in the governance, trading off lead roles depending on what the subject of a particular conference is about. For this conference, it's primarily been Professor Ed Lee and myself.

Professor Ed Lee is also a copyright professor, but he specializes in the application of copyright law to artificial intelligence. He maintains a website titled chatgptiseatingtheworld.com, where he attempts to keep track of all of the copyright lawsuits involving generative AI so that people can get the most up-to-date information on those lawsuits. [Naming just a few more of the people involved with HTLI and next month's event], we have SCU Professor Zahr Said, another copyright scholar. And SCU's Professor Eric Goldman, probably the leading Internet law scholar in the country. Professor Brian Love, who teaches patent law here at Santa Clara, has published a number of empirical articles studying various aspects of the patent system. And several others who look at different aspects of technology law that don't necessarily involve intellectual property.

Grush: Since its founding in 1998, the High Tech Law Institute receives lots of interest and participation from the legal community outside the SCU campus, including from SCU alumni. Just a few days ago, on December 3, SCU announced a $5 million gift from Madhumita Datta, J.D., '16, SCU, supporting HTLI's mission to examine the intersection of law and technology.

Ochoa: We're delighted with the support that we receive from our talented and dedicated alumni. It's always very inspiring when we get together to talk with peers about what's going on in technology and the legal system, and we're always excited by interest in and support for HTLI.

Grush: What would you hope HTLI would advance as general understanding of the legal system in IP — maybe not only by lawyers but perhaps by the general populace as well?

Ochoa: Looking at intellectual property law, we [lawyers] have a great time talking amongst ourselves, but I hope that some of us will take the opportunity to talk to lay audiences, people who aren't lawyers, to try to tell them a little bit more about why we have intellectual property law and why it looks the way it does.

I think the biggest misunderstanding that laypeople have about copyright law is that copyright does not protect ideas. If you're going to publish ideas, other people can take those ideas and express them to the world in different ways. They can't copy the words that you used. They can't very closely paraphrase the words that you've used. But they are free to express those ideas in their own words and to adopt them and distribute them widely.

So if you don't want someone to copy your idea, you shouldn't be putting it out in public. You should be relying on trade secret law and trying to keep it secret for a period of time. Patent law is designed to encourage people to disclose their secrets by saying, "If you teach us how you did something, we'll give you an exclusive right to do it for the next 20 years as long as you can prove that nobody else has ever done it before."

All this forces people with innovative ideas to decide, how long do I think I can keep this a secret? Do I want to try to keep it a secret indefinitely? Potentially, if I do so, I might get more than 20 years of protection. But if somebody figures it out in that time, I won't have any protection. And if I disclose it and I get a patent, I will at least have protection guaranteed for a period of 20 years. By contrast, copyright law is really more about the way in which things are expressed rather than the ideas that underlie that expression.

Grush: If you were to call up a vision of the future, what do you think is going to be the next 50 years in IP? What's going to be the most striking change? Or what might you hope to see?

Ochoa: I think we've locked ourselves into an international order. Intellectual property law is national in character, so every nation has its own IP laws. But we have a series of treaties and international agreements that have made those laws look very similar in most countries of the world, certainly in the most economically important countries.

And we've locked ourselves into the system in a way that makes it very difficult to change that. I'd like to see a system where authors have more control of their works, rather than publishers and other intermediaries. And I'd like to see a system where intellectual property law has a much shorter duration, perhaps in exchange for a bit stronger protection.

Right now, both sides are dissatisfied with the status quo. Copyright owners see a world in which it is far too easy for other people to copy their works without permission. And users see a world in which it is far too easy for intellectual property owners to stifle discussion and innovation.

It would be nice if we could find a way to compromise, and find ways in which both sides were happy with the freedom that intellectual property allows or should allow, along with maybe less piracy than we currently see.

[Editor's note: Those interested in more information on the High Tech Law Institute and its Intellectual Property Law: How it Started, How It's Going, visit the HTLI website at Santa Clara University.]