IPSC: Copyright History

Bruce Boyden, Marquette University Law School

Substantial Similarity, from Equity to Legal Process

Multistep tests as recent inventions. Test for infringement was created in a very different legal environment and many of its current problems stem from the fact that the environment is quite different today.  Arnstein: copying in fact + wrongful appropriation (aka substantial similarity). Trial court can determine copying in fact, but jury mostly has to determine wrongful appropriation.  Many have criticized incomplete separation of copying and infringement.

Arnstein was attempt to bring order to disjointed set of opinions for deciding infringement in the Second Circuit, which was deciding the vast majority of © cases.  New flood of nonliteral infringement cases based on new tech/media. One test: was the sequence of events the same; another test: whether ordinary audience would recognize accused work as having been taken from the other. Arnstein combines these two.  There’s a dissent saying that there wasn’t a two part test in previous cases, which is true.  You get copying in fact out of the sequence of events test, and wrongful appropriation from the audience test. Judge Frank is skeptical of the jury, but more skeptical of judges, especially in ©. Opinion is written to send stuff to the jury. Why does Learned Hand sign on? He’s not a judicial skeptic. Jury trials were rare at time; they were almost always equity cases that had no right to a jury and that were seeking injunctions.  Hand’s concern was that judges were deciding cases based on prepared synopses by the parties; he wanted to make sure that courts were first deciding whether actual copying had occurred before evaluating infringement.

Arnstein was pretty much ignored through the 1950s; not cited by other Second Circuit cases; regarded as a test for music infringement. Generational turnover in judges; shift comes in 1960s. Consistent w/shift to Legal Process. 3 key values: Institutional settlement: each institution has its role, including trial court v. court of appeals.  Suspicion of standardless discretion used to achieve policy as close to totalitarianism. “Reasoned elaboration”: judges should explain their decisions and give basis for reviewing that decision. 5 years after Hand dies, 2d Cir adopts Arnstein as the general infringement test, explaining that it’s copying plus substantial similarity. That’s not a normative search for wrongfulness, but for whether the average observer would recognize the appropriation from the © work. But that looks a lot like the test for copying in fact, which seems to get rid of “substantial” too, in theory if not in fact.  Where did they get this idea? Probably from Nimmer’s reading of Arnstein, his first © treatise in 1963, which read improper out almost entirely.  He told the 9^th Circuit this was the test too in Sid & Marty Krofft. 

Increasing rationalization in the courts: opinions get much longer in the 1980s as courts work through each doctrine/subdoctrine in detail. Courts become more attentive to the trial/appellate distinction.  Alan Latman writes an article; Second Circuit becomes aware that Arnstein was supposed to have two parts.  Laureyssens v. Idea Group, 1992, “restate” or really change everything and go back to its original formulation of copying plus wrongful appropriation. But resurrecting Arnstein in this area, with suspicion of judicial discretion and trial/appellate divide, leads to the issue of uncopyrightable elements being entirely dropped from the analysis.  How do you do substantial similarity when there are uncopyrightable elements? Maybe a more discerning inquiry? No, total concept and feel.  There’s also a big shift to jury trials. © lawyers had continued to request bench trials until the late 90s. Hard as it might be for judges to both filter out uncopyrightable material and measure total concept and feel, it’s much harder for juries.  Jury instruction in Blurred Lines case: terrible; didn’t define substantial similarity.

No complete solutions, but jury can’t do better unless it has better instructions, and juries need to be brought under control.  Nguyen’s dissent in Blurred Lines: we should do more deciding issues as a matter of law, even after a jury trial, though majority correctly points out that they don’t do that in © cases (or other cases) now.

Buccafusco: some old cases in the 20s: courts do copying in fact, then move into fair use—the two step inquiry existed as access/similarity, but after that direct move into fair use. 

A: that’s one way to do it.  [I don’t like this when it happens in cases that should be lack of substantial similarity cases, but I guess you could lean in more heavily to fair use, though many think it’s overstuffed.]

Carys Craig: sounds like an English case. Unconscious copying case, but the point is: access is required no matter how similar the works are; otherwise it’s just coincidence.

Q: Zahr Said has been thinking about jury instructions.  Juries are better representatives of the public than judges.  Wants to make them simpler.

A: Simpler may be inconsistent with what he wants, which is more detailed.

Rebecca Curtin: why the change in jury trials?

A: no clear answer; may be that until the 90s there was a stable © bar; after that you get Silicon Valley lawyers and other players.  [I suspect it’s plaintiff-driven though I’d be interested in the data; it may have something to do with the increasing idea that creativity is behind most value generated.]

Yvette Liebsman: rather take chances with uninformed jury?  Judges now have access to Westlaw and word processing (which also helps explain their opinions getting longer).

Rebecca Curtin, Suffolk University Law School

Locke’s (Own) Literary Property

May 1689, Locke negotiated a contract for Essay Concerning Human Understanding.  At age 56, he’d published little, and less under his own name.  He’d just returned to England from exile in Holland after death of his patron; his anxieties over close brush w/prosecution for treason by James II. His correspondence had been full of initials and other workarounds to shield his opinions. Publishing in England must have required a significant shift. Complained about how hard it is to wait for the press, to deal w/the whole process. Writing and publishing are not the same thing. Nonetheless, w/in a year of his return, 3 major works appear in print, Treatises of Gov’t, Letter Concerning Toleration, but only the Essay was signed. Locke destroyed the correspondence relating to the first two.  Only the documents around the Essay survive. Emerging sense of authorial rights; case study in how sophisticated author of the day who knew theory and also practice managed “literary property.”  Not a full record, but still an antidote to canonizing authors as if they didn’t have any engagement with the real market for their work (e.g., Lord Camden’s speech in Donaldson v. Becket, where he says it wasn’t for “gain that Bacon, Newton, Milton, Locke instructed and delighted the world; it would be unworthy for such men to traffic with a dirty bookseller…”).

His entry point into the Licensing Act debate is about the ownership of literary property: care for book buyers as well as book sellers: the effects of perpetual © on buyers.  Avoid fairer and more correct editions; ignorant and lazy booksellers benefit (despite not having labored). He that prints them best deserves best and should have the sale of them. Focus on printing privileges, but the same concerns arise from perpetual © on the Stationers Register.  Discusses both censorship and need for monopoly termination after 50 years, as well as the problem of titles that lie dormant, leading many good books to be lost.  What about authors who write and sell copies to booksellers? He’s keeping in mind that living authors want to get paid—that’s different, but it’s absurd that any person should have title to Livy’s works.  Suggests death of the author/first printing + 50 or 70 years.

Commenting on a draft bill requiring permission to print the name of any person as author or publisher: he says: to secure the author’s property, that will do, joined with (1) a term of protection for the author to have the right to authorize additional publication, apparently conditioned on author/publisher taking on credit/liability for the initial work, or (2) deposit of copies w/specific libraries that confers a privilege of reprinting/publishing book for a term of years (an opt in regime).

Locke’s contract for the Essay is a pretty standard contract. Very specific: narrowly defines what bookseller can do, specifying good paper and size of a comparator book that was well-done, which was a common.  Printer is required to print at least 4 sheets a week—he’s learned from past frustration to control how printing happens.  Paid 10 shilling/sheet, counting what’s on a sheet as a specific book comparator counted.  10 shillings/sheet was not real money to him, so Camden wasn’t wrong about his motivations; the money was desired to make the printer take care with every page.  Locke learned for later editions that he’d transferred full right and title and it passed through bankruptcy to other printers.  Later contracts: copyright returned to Locke after first edition was published. Opposite of common form of receipts of the day, which typically said that the publisher got sole right & title of the complete copy. 

Another contract: 5 pounds for every impression of a book and 10 shilling per sheet for all additions; not to exceed 1400 books; 24 books bound copies provided to him.  Covenants not to dispose of right or title to work w/o his consent—so there’s a transfer, but a certain amount of remaining control.  He limits the claims of his estate, which is interesting in light of his discussion of the deleterious effects of perpetual ©.

Betsy Rosenblatt: what presumptions would have surrounded these contracts? We now expect a contract to leave silent what is presumed, but some of these contracts say this is a transfer and others say this isn’t a transfer. 

A: expectations of publisher were certainly to get title.  She isn’t sure that Locke understood that consequence about control of reprints. Publisher did ask him to do a deal on the second edition of the Essay with additions; a blurring of the lines about whether permission was required for a second edition, but on the Stationers rules probably not if nothing new from Locke was added.

Boyden: is Locke anticipating exclusive rights in author, or limiting rights of printers?

A: His best known writing is the latter, but comments on a draft bill propose to secure property in the copy for the author.

Craig: why do we care what Locke thinks about his contracts or about the licensing law?  It’s the theory that matters.  What he did in his contracts is neither here nor there unless you use it to modify/discredit the theory as applied to authorship.

A: history for history’s sake is a fine thing!