I recently came across an interesting cluster of similar statements from copyright decisions in the late 1950s and early 1960s, which struck me as significant:

It is a curious fact that although the Copyright Law has remained without relevant change since 1909 this case should present a question both basic and novel. Does either the Copyright Act or the common law provide copyright owners with a remedy against non-manufacturing sellers of unauthorized phonograph recordings of copyrighted songs?

Shapiro, Bernstein & Co. v. Goody, 248 F.2d 260, 262 (2d Cir. 1957).

The question is whether an unpaid manufacturer of copyrighted goods, which are alleged to be defective by the copyright proprietor who has ordered them, may sell them in satisfaction of his claim for the contract price without infringing the ‘exclusive right’ of the proprietor to ‘publish * * * and vend the copyrighted work,’ 17 U.S.C. § 1(a); there is a related question as to the rights of persons who have already purchased some of the goods from the manufacturer. It seems exceedingly strange that these questions should arise for the first as is apparently the case, one hundred and seventy-three years after the initial grant of copyright protection by Congress, 1 Stat. 124 (1790), and two hundred and fifty-four after the Statute of Anne, 8 Anne, c. 19 (1709). Whether the lack of precedent is attributable to an unusually high standard of dealing, and of solvency, on the part of copyright proprietors and those manufacturing for them, or to an unaccustomed and unexpressed previous consensus in the profession as to the applicable rule of law, it is none the less remarkable.

Platt & Munk Co. v. Republic Graphics, Inc., 315 F.2d 847, 849 (2d Cir. 1963).

This action for copyright infringement presents us with a picture all too familiar in copyright litigation: a legal problem vexing in its difficulty, a dearth or squarely applicable precedents, a business setting so common that the dearth of precedents seems inexplicable, and an almost complete absence of guidance from the terms of the Copyright Act, 17 U.S.C. § 1 et seq.

Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 305 (2d Cir. 1963).

These are opinions by three different Second Circuit judges, in order, Hincks, Friendly, and Kaufman. They deal with separate issues, but they’re all related in a way — they all deal with the liabilities of ancillary parties to some sort of infringement. And in all three the judges express surprise that these questions haven’t been litigated to death, or resolved by statute, or both, already.

This surprise requires two conditions.