Monday, August 25, 2014
Zahr Said, University of Washington School of Law, has published Reforming Copyright Interpretation. Here is the abstract.
This Article argues that copyright law needs to acknowledge and reform its interpretive choice regime. Even though judges face potentially outcome-determinative choices among competing sources of interpretive authority when they adjudicate copyrightable works, their selection of interpretive methods has been almost entirely overlooked by scholars and judges alike. This selection among competing interpretive methods demands that judges choose where to locate their own authority: in the work itself; in the context around the work, including its reception, or in the author’s intentions; in expert opinions; or in judicial intuition. Copyright’s interpretive choice regime controls questions of major importance for the parties, such as whether an issue is a matter of law or fact; whether an issue may be decided at summary judgment; whether expert testimony is allowed; and whether a use is fair or not (among multiple other doctrinal issues). Currently, the lack of transparency that characterizes copyright’s interpretive practices creates unpredictability and unfairness for the parties, because method selection often matters to outcomes. As a function of interpretive choice, works of art may escape destruction if found non-infringing (Cariou v. Prince); movies may get made, or languish as legal disputes get ironed out (Sheldon v. Metro-Goldwyn Pictures; Effie v. Murphy); novels may get banned, or declared a fair use (Salinger v. Colting; Suntrust v. Houghton-Mifflin); fan works may be threatened (RDR v. Warner Bros). Ultimately, understanding interpretive choice helps evaluate the proper allocation and scope of decisional authority, assist in the proper characterization of issues, and identify the best tools to use in copyright’s interpretive work. The Article concludes with a call for greater methodological transparency, and it offers a few modest prescriptions about which interpretive methods might be best adopted, by whom, when, and why. It proposes a rule-based, two-tiered approach to copyright adjudication, a process-based formalism that would constrain judicial discretion and could produce greater consistency and fairness.Download the paper from SSRN at the link.