Reforming Copyright Interpretation

By Said, Zahr K. | Harvard Journal of Law & Technology, Spring 2015 | Go to article overview

Reforming Copyright Interpretation


Said, Zahr K., Harvard Journal of Law & Technology


TABLE OF CONTENTS  I. INTRODUCTION II. JUDGES MAKE NECESSARY AND DIVERGENT INTERPRETIVE CHOICES IN COPYRIGHT LAW   A. Copyright Cases Follow an Analytical Trajectory   B. Many Interpretive Modalities Exist   C. Courts Disagree over What Methods and Sources To Use   D. The Analysis/Intuition Axis     1. The Analysis Approach     2. Intuition in Copyright Law     3. The Limits of Intuition   E. The Text/Context Axis     1. Focus on the Text     2. Authors' Statements     3. Historical Context and Genre III. COPYRIGHT'S INTERPRETIVE CHOICE REGIME IS COMPLEX   A. All Copyrightable Works Are Complex   B. Analysis of Copyrightable Works Is Interpretively Complex   C. Scholarly Awareness of Copyright's Interpretive Complexity Is   Growing   D. Judges Receive Little Guidance and Have Much Discretion IV. DOCTRINE SHOULD STRUCTURE JUDGES' INTERPRETIVE CHOICES   A. Interpretive Choice Belongs with the Judge   B. Judges Should Rely on Texts as a Default   C. Text-Based Formalism by Itself May Not Suffice V. CONCLUSION 

I. INTRODUCTION

Copyright law has an interpretation problem that is in need of reform. Judges routinely face complex interpretive choices when they resolve disputes over potentially copyrightable works. Judges choose whether to resolve an issue as a matter of law, whether to admit--or even require--extrinsic evidence that may be relevant to their interpretation, and whether to rely on judicial intuition or formal analysis in their decision-making. The interpretive choices that judges make about works have played an important but unacknowledged role in outcomes of cases involving screenplays, architecture, novels, pop songs, nonfiction works, and photography.

The problem can be simplified to two choices: Judges must determine what they should use as the sources of their interpretation, and how they should interpret the works being litigated. These competing interpretive methods require judges to choose among different sources: the work itself, and the context around the work, including its reception, the author's intentions, or expert opinions. Further, judges must decide whether to produce formalist analysis applying copyright doctrines or to offer conclusions with little more than judicial intuition to show their reasoning.

Even though judges in copyright cases face potentially outcome-relevant choices among competing sources of interpretation, their selection of interpretive methods has been almost entirely overlooked by scholars and judges alike. Indeed, the very existence of interpretive choices as a crucial methodological question in copyright cases has not yet been widely acknowledged. This Article addresses that gap in scholarship by demonstrating that interpretive choices are ubiquitous and necessary in copyright litigation and by illuminating the competing methods and sources that judges select from when they make their interpretive decisions.

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. The resulting lack of transparency characterizing copyright's interpretive practices creates unpredictability and unfairness for the parties. As a function of interpretive choice, works of art may escape destruction if found non-infringing; (1) movies may get made or languish as legal disputes get ironed out; (2) novels may get banned or declared a fair use; (3) fan works may be threatened. (4) Ultimately, awareness of interpretive choice helps us to evaluate the proper allocation and scope of decisional authority, to properly characterize issues, and to 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. …

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