The Pragmatic Incrementalism of Common Law Intellectual Property

‘Common law intellectual property’ refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls ‘pragmatic incrementalism’. It involves the use of pragmatic and minimalist techniques that emphasize: (i) caution in the face of uncertainty; (ii) the use of value neutral legal standards; (iii) customary practices to tailor the regime to different contexts, and (iv) balancing the ex ante and ex post effects of adjudication. In working these ideas, courts develop rules that are flexible, context-dependent, and capable of affirming multiple values without looking for a single overarching theory. In the process, the regimes very effectively avoid the problems of uniformity, overbreadth, and ossification. The patent and copyright systems are today in a state of crisis, with scholars and policy-makers recognizing the need for a fundamental overhaul. Yet, few have turned to the common law method for solutions. Common law intellectual property, I argue, may provide us with a way forward, by drawing attention to the simple strengths of the common law method and its likely benefits for intellectual property law

The Questionable Origins of the Copyright Infringement Analysis

Central to modern copyright law is its test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components, actual copying — the question whether the defendant did in fact copy, and improper appropriation — the question whether such copying, if it did exist, was unlawful. Somewhat counter-intuitively though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach continues to influence modern copyright law and is responsible for the subjective and unpredictable nature of the infringement analysis in a wide range of copyright infringement lawsuits (e.g., the “Blurred Lines” verdict). Looking to the judges’ memoranda and correspondence in the case, as well as their extensive extra-judicial writing around the time, reveals that the court’s decision to empower the jury was driven almost entirely by Judge Frank’s unique legal philosophy — his skeptical views about judicial fact-finding and his desire to control lower court decision-making. Characterizing the entire infringement analysis as a purely factual one provided him with a perfect mechanism for giving effect to this skepticism. The Arnstein test thus had very little to do with substantive copyright law and policy, a reality that copyright jurisprudence has thus far ignored altogether in its continuing affirmation of the opinion’s framework. This Article disaggregates the complex issues that were at play in Arnstein to show how it was rooted in a dystopian vision of the adjudicative process that has since come to be universally repudiated, and argues that it may well be time for copyright jurisprudence to reconsider its dogmatic reliance on Arnstein, thereby freeing copyright law from one of its best-known malaises

Alienability and Copyright Law

This chapter examines the interaction between copyright and the concept of alienability to show that it holds important structural and normative lessons for our understanding of the nature of the copyright entitlement, and its limitations. My use of the word ‘interaction’ is deliberate here, since my focus is not just on the question of whether and how inalienability restrictions internal to copyright doctrine motivate our theoretical understanding of copyright and its allied rights (for example, moral rights), a project that others have focused on previously. The chapter will instead attempt to understand how the copyright entitlement has addressed the basic common law principle (underlying the idea of property) that free alienability ought to remain a default, even if that principle originates outside the domain of copyright doctrine. More specifically, I look at the interaction in three contexts involving the copyright entitlement, each of varying functional amplitude. The first context involves the rather straightforward manifestation of alienability in copyright’s core apparatus, its exclusive rights. While the law has always allowed for alienability here, we see interesting debates about the forms in which such alienability may manifest itself. The second context involves the physical manifestation of the copyright entitlement, that is the chattel in which it is embodied, and the restrictions that copyright may (or put more precisely, may not) impose on its alienability. Much of this interaction is contained in the origins of the ‘first sale’ doctrine, which emanates from the law’s fundamental protection of the basic alienability of the physical embodiment. The third context involves a narrower dimension of the copyright entitlement, namely its conferral of the right to sue for infringement on its holder. In this manifestation, copyright bears a close resemblance to an ordinary actionable claim, which introduces a host of additional considerations from debates over the alienability of actionable claims into our understanding of the copyright entitlement. Each of these interactions between copyright and the idea of alienability has played an important role in defining the scope of copyright’s peripheries as a functional matter. Additionally though, by telling us what copyright is not, they hold important conceptual and normative lessons for what copyright actually is, which this chapter will attempt to unravel. The chapter unfolds in three sections. Section one will begin with a brief overview of alienability’s role in property, and the idea of market inalienability. Section two then moves to understanding the interaction between copyright and alienability at three different levels: in terms of its exclusive rights, through its possible restrictions on the physical embodiment, and in its manifestation as an actionable claim. Finally, section three tries to extract a few important analytical and normative lessons for copyright that flow from these interactions

Common Law Property Metaphors on the Internet: The Real Problem with the Doctrine of Cybertrespass

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to examine the implications of transposing property metaphors to the world of the Internet, characterized by the absence of resource rivalry and the reality of positive value enhancement through increased usage (i.e., a network effect, whereby participation in use by many is a condition for value in use by any). It is argued that the transposition of proprietary concepts to the Internet is done for purely instrumental reasons--reasons that derive neither from the nature of the resource nor its usage. The paper then evaluates whether such an instrumental use of proprietary concepts on the Internet has any effect on the meaning ordinarily attributed to the concept of property and the identification of property as an independent institution of moral significance. It concludes by showing that the relative neglect that doctrines such as cybertrespass have for identifying the boundaries of the res over which the property right is to operate, is capable of undermining the minimum core of any understanding of property as an independent institution

Clarifying the Clear Meaning of Separability

Speaking of the Copyright Act of 1909, noted copyright scholar Benjamin Kaplan had this to say about the role of judges therein: [T]he statute, like its predecessors, leaves the development of fundamentals to the judges. Indeed the courts have had to be consulted at nearly every point, for the text of the statute has a maddeningly casual prolixity and imprecision throughout.... Judges, however, who in recent times have inclined against brutality, have run the risk of appearing slightly ridiculous in their tortuous interpretations. The Copyright Act of 1976 was designed to avoid this imprecision and overt reliance on judicial creativity. Supposedly comprehensive in its coverage, and the result of delicate compromises, its provisions were crafted to avoid the problems that had brought its predecessors into disrepute

Gandhi and Copyright Pragmatism

Mahatma Gandhi is revered the world over for his views on freedom and non-violence, ideas that he deployed with great success during India’s freedom struggle. As a thinker, he is commonly believed to have been a moral perfectionist: anti-utilitarian in mindset and deeply skeptical of market mechanisms. Yet, when he engaged with the institution of copyright law during his lifetime — as a writer, editor, and publisher — his approach routinely abjured the idealism of his abstract thinking in favor of a lawyerly pragmatism. Characterized by a nuanced, internal understanding of the institution and its conflicting normative goals, Gandhi’s thinking on copyright law reveals a reasoned, contextual, and incremental transformation over time, as the economic and political circumstances surrounding his engagement with copyright changed. In it we see a dimension of Gandhi’s thinking that has thus far been ignored, emanating from his training as a common lawyer. This Essay traces the development of Gandhi’s views on copyright to show how he anticipated several of the central debates and controversies that are today the staple of the copyright wars, and developed an approach to dealing with copyright’s various problems, best described as “copyright pragmatism.” As an approach that draws on legal and philosophical pragmatism, copyright pragmatism entails a critical engagement with copyright as a legal institution on its own terms, but contextually and with an eye towards its various costs, benefits, and normative goals at each stage of engagement. The Essay then unpacks the analytical moves that copyright pragmatism entails to show how it holds important lessons for the future of copyright thinking and reform

Tiered Originality and the Dualism of Copyright Incentives

Professor Balganesh responds to Gideon Parchomovsky & Alex Stein, Originality, 95 Va. L. Rev. 1505 (2009), arguing that their proposal can perhaps be accommodated under current copyright doctrine

The Pragmatic Incrementalism of Common Law Intellectual Property

Intellectual property is today thought to be principally of statutory origin. Discussions of the subject invariably revolve around a close scrutiny of the federal statutes involved. Indeed, the frequency with which Congress amends the patent and copyright statutes seems to leave little doubt that it alone determines intellectual property\u27s precise content and coverage.\u27 Nevertheless, there exists a rather robust body of state law that is almost entirely the creation of state courts and is directed at creating entitlements in information, ideas, expression, goodwill, one\u27s image, and other related intangibles. These rights regimes are in turn collectively referred to as common law intellectual property. Examples include the right of publicity, unfair competition, common law copyright, trade secrets, misappropriation, common law idea protection, and passing off. While each of these regimes covers a distinct intangible, they all share the same structural characteristics. Each originates in a cause of action that is grounded in tort, contract, or unjust enrichment and is tailored to the circumstances under which protection is deemed necessary. Unlike the one-size-fits-all federal copyright and patent statutes, these regimes allow courts to adopt a far more nuanced approach to intellectual property protection. Instead of relying on a single overarching theory to justify protection, courts look to the practical needs of a particular area, recognize multiple values as relevant for consideration there, and then adopt a highly contextual approach to protection, one best described as antifoundational. Additionally, the common law method that they employ develops the law incrementally, recognizing the need for caution in a rapidly changing social and technological environment, and allowing future courts to extend, limit, or at times altogether deny protection when circumstance and context change. I call this method of adjudication and rule development pragmatic incrementalism, in that it exhibits the characteristics of both legal pragmatism and common la