In my previous post, I dissected the problematic recent Seventh Circuit copyright decision in Peters v. West. I won’t recap that long post here, except to say that the Seventh Circuit appears to have collapsed the traditional two-part inquiry for infringement in the prima facie case for copyright infringement to one part, with proof of access as a weird (and optional?) hanger-on. As the Peters court summarizes the test that will govern going forward: “[P]roving” — and, I guess, pleading — “the basic tort of infringement simply requires the plaintiff to show that the defendant had an actual opportunity to copy the original . . . , and that the two works share enough unique features to give rise to a breach of the duty not to copy another’s work.”

There are at least three bad consequences to this: it gives jury determinations to the judge; it makes the already controversial “sliding scale” doctrine incoherent; and it sounds the death-knell for substantive limits on liability for copying outside of fair use.

First, the two different sub-elements of the infringement half of the prima facie case have been understood at least since 1945, and even in the Ninth Circuit’s jumbled version of the test, to allow a division of labor between judge and jury in a copyright infringement case. Actual copying, including (if necessary) a showing of “probative similarity,” is a merely forensic task, one that stands at the gate of the field where the ultimate liability determination will be fought out. The issue is to determine whether there’s been any copying at all as a factual matter. It is to copyright law as “causation” is to negligence law. I may have been speeding, but if I didn’t actually hit your car, the case is over. As a forensic rather than policy determination, courts have long allowed the component works to be examined in microscopic detail for evidence of actual copying, including hearing from expert witnesses. After receiving this evidence, the judge can determine that there’s no genuine issue of material fact as to actual copying and grant summary judgement for the defendant — or nowadays, I suppose, can determine on a motion to dismiss that the complaint does not adequately plead a plausible case of actual copying.

The other “substantial similarity” test is supposed to be much different than that, one that the jury is especially adept at determining, at least in a music case like this one.

At least, not if Mudville is populated by copyright professors; for the mighty Seventh Circuit has struck out. In Peters v. West (Kanye West, that is, or as LEXIS is now abbreviating the case name, “W.”), the Seventh Circuit, in an opinion written by the highly regarded Judge Wood, has badly bungled the already confused test for establishing a copyright infringement claim. I’ma let you finish, Judge Wood, but Judge Newman had one of the best explanations of this test of all time.

The elements of a prima facie copyright infringement claim have long been confusing to students, lawyers, judges — pretty much everyone. (A brief copyright lesson follows; if this is old hat to you, skip 4 paragraphs down.) Essentially, there are only two elements: ownership and infringement. But the second element is broken down further into a set of sub-elements, and courts have long had difficulty explaining the content and the relationship of the various sub-elements clearly. The basic idea, however, long ago expressed in Second Circuit opinions by Judges Learned Hand and Jerome Frank, is that proving infringement is supposed to be a two-part process: proving that the defendant actually copied material from the plaintiff’s work, and proving that the amount copied passes some sort of threshold for materiality.

There are two significant points of confusion with the test.