The Legal Process Sea-Change

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In the 1950s the active bench of the Second Circuit experienced nearly a complete turnover, one that changed how the judges approach copyright law.

Illustration of Ariel's Song from The TempestThere’s an old joke about scientific progress: that science advances one funeral at a time. The same might be said about judicial philosophies. Some judges might be persuaded to change their views over time, but it is just as likely, if not more, that change occurs through a changing of the guard. So it was with the Second Circuit in the 1960s. The Second Circuit had had a remarkably stable bench during the 1940s, when Learned Hand was the chief judge. Four of them, Hand, Hand’s cousin Augustus, Harrie Chase, and Thomas Swan served together in active or senior status for twenty-five years, from 1929 to 1954. The remaining two, Charles Clark and Jerome Frank, were with them from 1940 on.

But within six years in the 1950s, the active bench of the Second Circuit experienced nearly a complete turnover, except for Clark. The new judges, who included Henry Friendly, J. Edward Lumbard, Irving Kaufman, and Thurgood Marshall, obviously had different educational and professional experiences from those of the judges they replaced. What truly distinguished the new group, however, is that they had a very different approach to judicial decisionmaking, and in particular the proper role of discretion. No longer were the Second Circuit judges comfortable with leaving important substantive decisions on the merits of a claim to case-by-case equitable balancing. In the 1960s, the Second Circuit began crafting multi-part tests to replace the vague standards that had come before, to force lower courts and later panels to elaborate the reasons for their decisions. Whether they consciously subscribed to it or not, the new judges were heavily influenced by Legal Process ideology.  Continue reading “The Legal Process Sea-Change”

Learned Hand: You’re Reading Him Wrong

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Learned Hand wasn’t as skeptical of a court’s ability to decide issues of fair use and substantial similarity as he is often portrayed.

Photo of Judge Learned HandPossibly no judge had a greater influence on copyright law in the twentieth century than Learned Hand. Nichols v. Universal Pictures and Peter Pan Fabrics are foundational cases in most textbooks; Sheldon v. MGM and Fred Fisher v. Dillingham used to be. And although he did not write the opinion, Hand was on the panel that decided Arnstein v. Porter.

Part of the reason for Hand’s enduring popularity is that he was a brilliant writer, and his aphorisms about copyright law continue to appeal to a skeptical age. In Nichols, he famously declared with respect to the distinction between uncopyrightable idea and copyrightable expression, “Nobody has ever been able to fix that boundary, and nobody ever can.” In Shipman v. RKO Pictures: “The test is necessarily vague and nothing more definite can be said about it.” In Dellar v. Samuel Goldwyn, Inc., decided per curiam but attributed to Hand: “[T]he issue of fair use … is the most troublesome in the whole law of copyright.” In Peter Pan Fabrics v. Martin Weiner Corp.: “The test for infringement of a copyright is of necessity vague…. In the case of designs, which are addressed to the aesthetic sensibilities of an observer, the test is, if possible, even more intangible.”

To modern ears, these sound like (and are often quoted as) criticisms of copyright law. A vague, ineffable test is an unworkable test, one that offers no guidance to lower courts or juries and is therefore hardly better than no test at all. But to read Hand in this way to read him anachronistically. Continue reading “Learned Hand: You’re Reading Him Wrong”

Copyright’s Substantial Confusion

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The concept of substantial similarity, never clear to begin with, got even more confusing once juries started playing a larger role in copyright infringement suits.

A few weeks ago the 9th Circuit issued its decision in the long-awaited “Blurred Lines” case, Williams v. Gaye, and the reaction has generally ranged between dismay and anger. Here is a quick summary of the decision. The consensus among copyright lawyers, with some exceptions, appears to be that the original jury verdict against Pharrell Williams and Robin Thicke threatens to make musical styles copyrightable, that the majority on appeal got the law wrong, and that the dissent is correct that the jury verdict should have been reversed.

I disagree with some of that, but I want to take this post in a different direction. I’ve been doing a lot of thinking and reading lately about the development of the test for copyright infringement over the course of the 20th century. Williams v. Gaye is, I believe, merely the predictable outcome of the 9th Circuit’s approach to proving copyright infringement, an approach that copyright scholars have been complaining about for a long time. But it’s worse than that. As Rick Sanders spelled out in a recent post, all of the modern tests for proving infringement by copying are deeply problematic. What is particularly intriguing with the Williams case is that the approach the dissent seems to be recommending actually pre-dates the modern caselaw. It’s the one that the modern test — first spelled out in detail by the Second Circuit in Arnstein v. Porter — was designed to replace. Look at the cases the dissenter, Judge Nguyen, cites—many of them were decided before Arnstein. And although I agree with the Williams majority’s assessment of the lack of support for the dissent’s argument, I think it’s no accident it has resurfaced.

A warning for non-IP-interested readers: this is going to be a long, hard slog through the weeds of copyright law, maybe several long hard slogs. I also have some things to say along the way about the development of the law generally over the last hundred years. But consider yourself warned.  Continue reading “Copyright’s Substantial Confusion”

Welcome to Our September Guest Blogger

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Back to schoolThe Fall semester is underway here at the Law School, and I would like to welcome as our student guest blogger for September 3L Ashley Heard. Ashley is originally from New Berlin, Wisconsin, and is interested in employment law and appellate litigation. Her undergraduate education focused on marketing, graphic design and photography, and religious studies.

Mapping Out the Copyright Semicommons

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Plan of a Mediaeval ManorMy previous two posts on the upcoming Nies Lecture (Thursday, April 16, at 4:30pm — it’s not too late to register!) attempted to sketch out where I think Prof. Smith is headed, based on the abstract and his previous work. In this post I want to reflect for a moment on the implications of viewing copyrights as a type of semicommons.

Copyright was born, in the eighteenth century, with a focus on who had the right to print, publish, and reprint works of authorship. That is, the concern was to exclusively reserve the manufacture of complete works — books, maps, and nautical charts — to the person who created them, or any downstream purchaser of those rights. Although the copyrighted work is intangible — it is the particular creative expression that is embodied within a book, map, or chart — for the first century or so of its existence that expression as a practical matter had a one-to-one correlation with physical objects. In that realm, it is easy to conceive of the property rights assigned by copyright, and the open access rights to the public domain, as dividing lines dividing up an imaginary space — this tract over here is the book Moll Flanders, which is owned by X; that tract over there is public domain, and thus can be used by anyone.

Over the course of the nineteenth century and into the early twentieth, that early, simple framework broke down as courts embraced the notion that the intangible object protected by copyright could be infringed in ways other than reprinting physical copies of the original. Continue reading “Mapping Out the Copyright Semicommons”

The 2015 Nies Lecture: IP as Semicommons

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cows-on-meadow-1410432-mThe title of the 2015 Nies Lecture, being given by Harvard Law Prof. Henry Smith on Thursday, April 16th, at 4:30pm (register here), is “Semicommons in Fluid Resources.” What’s a “semicommons,” and what does it have to do with intellectual property? (I should note that I haven’t talked to Prof. Smith about his lecture; Tuesday’s post and today’s are based just on the abstract read in light of Prof. Smith’s previous scholarship.)

Before I go further, let me recap Tuesday’s post. Prof. Smith has, in a series of articles, laid out a theory of property law that takes into account the informational costs of assigning property rights in various ways. Some ways of describing who has a certain right, and monitoring whether that right is being respected, are very concise: “Kerry owns that red ball.” “Hey, that’s not your ball, it’s mine!” I called these object-based rules, but Prof. Smith calls them “exclusivity rules.” The idea is the same: saying Kerry has the exclusive right to use the red ball for any purpose is a short and easily comprehended way of assigning all uses of that particular object to Kerry. It’s easy to identify who Kerry is, what the object is, and what Kerry (or anyone else) can do with it.

But that’s not the only way to assign rights to objects. Instead of giving all uses of a particular object to one person in an undivided lump, we could instead specify various uses of the object under various conditions, and say that different people can engage in those uses. In other words, we could manage access to the ball. Continue reading “The 2015 Nies Lecture: IP as Semicommons”

The 2015 Nies Lecture: What Is “Intellectual Property,” Exactly, and How Does It Relate to Water Law?

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Fall StreamI’m very excited about this year’s Nies Lecture, which will be delivered by Prof. Henry Smith of Harvard Law School in just a little more than a week — Thursday, April 16th, at 4:30pm. (Register now to attend!) The title is “Semicommons in Fluid Resources,” but that only hints at the depth of the waters, so to speak, that Prof. Smith is likely to explore. As I understand it, the topic is nothing less than the nature of property itself, and how some forms of it — rights to water, and intellectual property — occupy a “middle ground” between communal governance and individual ownership. That has important ramifications for copyright law in particular, in which the dividing line between common goals and individual incentives lies at the heart of numerous doctrines.

The issue is this: suppose you have some sort of resource that multiple people want to use. Say it’s a particular piece of land. As Smith has written previously, there are two basic ways of specifying rules for what people can do with that resource: you could draw lines around objects, or you could draw lines around uses. That is, you could identify a particular object, such as a plot of land, and say that one person has the right to decide all permitted uses of it. (Or that everyone has the right to decide what they will do with it, turning it into a commons, or no one does, turning it into a forbidden zone.) Alternatively, you could draw lines around uses, not objects, and say that person X has the right to engage in activity A using the piece of land in question, and spell out rules governing each person or set of persons and telling them what uses they can make of the land and which they can’t, and under what conditions.

As Smith has argued, these different methods are best viewed as lying on a spectrum. Continue reading “The 2015 Nies Lecture: What Is “Intellectual Property,” Exactly, and How Does It Relate to Water Law?”