Copyright

HLS Private Law Workshop: Shyamkrishna Balganesh, Copyright as Legal Process

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Post by Patrick Goold

2017 marks the bicentennial of Harvard Law School. It is fitting, therefore, that the first Private Law Workshop of the semester focused on intellectual legal history and, in part, the influence of some of Harvard’s most prominent law professors. Shyamkrishna Balganesh presented his work-in-progress Copyright as Legal Process. In it, Balganesh argues that copyright underwent a “quiet metamorphosis” in the twentieth century. Under the influence of the Legal Process School of jurisprudence, copyright evolved from private law to public law. What’s more, this evolution has entailed a fundamental transformation in the conception of law at the heart of modern copyright.

From 1870 to 1950, copyright law was, according to Balganesh, normatively and structurally part of American private law. The “private law conception” of copyright crystalized during the age of Legal Formalism (or Classical Legal Thought), and was characterized by a focus on the horizontal legal relationship between the copyright owner and the copyist. The owner’s copyright was, axiomatically, an individual right; users of the protected work were duty-bound not to copy; he who copied the work wronged the owner. This right-duty relationship was largely self-justifying. Courts rarely discussed the “purpose” of copyright law; on the occasions they did, they claimed copyright’s purpose was to uphold a right-duty relationship, and that any broader social goals were merely a welcome by-product. Furthermore, the private law conception involved a particular understanding of judicial reasoning. When adjudicating copyright disputes, courts rarely appealed to policy, nor paid particular deference to the wording or history of the Copyright Act 1909. Instead, courts tended to search for established “copyright principles” (such as the idea-expression dichotomy, or the nature of authorship) and reasoned therefrom.

Perhaps surprisingly, the private law conception of copyright – according to Balganesh –  was largely maintained through the Legal Realist period. While the Realists claimed legal doctrine was indeterminate and thus were skeptical that judicial reasoning could be objective, they nevertheless valorized the judiciary (and notably a number of high-profile Realists served on the bench). Realism emphasized judicial creativity in solving cases, while simultaneously placing little faith in statutory interpretation. As a result, when adjudicating copyright disputes, courts continued to show Congress little deference, but instead trusted judicial craftsmanship to resolve the particularized problems that arose.

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Intellectual Property and Practical Reason — Eric Claeys

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Post by Eric Claeys, George Mason University, Antonin Scalia Law School

In a recent post, Henry Smith made some perceptive observations about the state of contemporary intellectual property scholarship.  Henry was commenting on a panel at a recent conference, in which panelists stressed that “treating intellectual property as a kind of property does not mean assuming it is absolute.”  And he noted that what he called “external” accounts of IP are much better-represented than what he called “internal” or “interpretivist” approaches to IP. 

I have offered a few thoughts on Henry’s post already, and I hope to offer a few other thoughts in due time.  I am extremely interested in Henry’s question because I have been working on an article focusing on those same questions.  As luck would have it, I just received news that the article was accepted for publication in the journal Jurisprudence.  I’d like to take a minute to flag the article (still in draft form) and summarize its arguments.

The article is titled “Intellectual Property and Practical Reason.”  The article’s main intention is to show how general principles of a certain family of normative theories supply basic guidance for the field of IP. The theory-family covers theories loosely associated with natural law and rights-based forms of eudaemonist or perfectionist political theory.  (In what follows, I’ll describe these approaches as “rights-based perfectionist” approaches.)  In IP, Wendy Gordon, Ken Himma, Adam Moore, Rob Merges, Adam Mossoff’s, and my own work on Lockean labor theory all fall in this family.  But so do Nussbaum-Sen “capabilities” theories, and (at least on some interpretations) Rawlsian fairness theories.

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Internal and External Accounts of IP Law — Eric Claeys

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Post by Eric Claeys, George Mason University, Antonin Scalia Law School

In a recent post on this blog, Henry Smith asked some important questions about methodological commitments in American scholarship about intellectual property.  Henry distinguished between (on one hand) “external” and (on the other hand) “internal or interpretivist” frameworks for studying law.  He then noted that, in American IP scholarship, “scholars overwhelmingly adopt consequentialist and even utilitarian frameworks” in relation to patent law and repeat those same tendencies in copyright (though not to the same degree as in patent).  Henry’s post invited readers to consider why IP scholarship is so much more externally-oriented than other fields of scholarship on private law.

I completely agree with Henry’s general impressions about normative frameworks  in IP.  I also agree with his suggestion that IP scholars should reflect more upon why and how external accounts came to predominate in IP scholarship.  In this and a few subsequent posts, I’d like to offer a few thoughts.  In later posts, I want to suggest a different demarcation than Henry’s demarcation between external and internal-interpretivist approaches.  But my concern on that point is fairly specialized, removed from the big questions Henry is raising.  Before running off with the proverbial ball to one corner of the field, I hope in this post to offer some thoughts about the state of play in the middle of the field.

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“Channeling” District Court Discretion in IP and Beyond — John Golden

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Post by John Golden

In both a patent case and a copyright case from soon-to-end October Term 2015, the U.S. Supreme Court continued a long struggle to define the proper bounds of trial court discretion in various contexts. See generally Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 748–50 (1982). Such questions of trial court discretion commonly relate to questions about the proper nature of equity or equity-like reasoning in district court decision-making, questions that are presumably of interest to a number of readers of this blog.

Questions about trial court discretion have recently had particular prominence in patent law. In this area, an ever-growing string of Supreme Court decisions has, over the course of a decade, rejected what the Court has perceived as excessively rigid rules developed by the U.S. Court of Appeals for the Federal Circuit. See David O. Taylor, Formalism and Antiformalism in Patent Law Adjudication: Rules and Standards, 46 Conn. L. Rev. 415, 464–65 (2013). The newest addition to the string came in June in Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016). In an opinion by Chief Justice Roberts, the Court rejected as “unduly rigid” a Federal Circuit rule permitting the enhancement of patent damages for willful infringement only when the infringer’s conduct was objectively reckless with respect to violation of relevant patent rights. Id. at 1932 (internal quotation marks omitted).

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