Intellectual Property Litigation

Litigation Partner James Molen shared his insights with Law360 on key copyright and trademark regulatory developments for 2026.

Excerpts:

Copyright attorneys say the ongoing litigation should, at some point, clarify whether fair use shields developers from infringement claims, at least on the front end. A decision finding that the fair use defense doesn't apply to AI training might just be what gets Congress to act on the issue, according to James R. Molen of Greenberg Glusker Fields Claman & Machtinger LLP, who said the issues are "getting sorted out in the courts, but I don't think that's going to be the state of affairs much longer."

"I think that as soon as one of these cases rejects blanket fair use protection, that's what's going to force Congress to act," Molen said.

Besides letting the disputes play out in courts, Congress could embrace a compulsory licensing model or allow for an opt-out regime, which is what the U.S. Copyright Office is leaning toward, Molen said.