We want our laws to be clear so that we can know what is commanded of us. In the case of copyright, we want to know who owns what, for how long, how far the copyright owner's rights reach, which unauthorized uses are excused and which aren't. Given the hefty civil and criminal penalties for infringement, clarity is not only desirable but seems necessary to comport with Due Process. At the same time, we want our laws to be fair, and fairness frequently means being flexible. Flexibility is, though, an enemy of clarity since we do not know in advance if a court will hold that the literal language of the law will bend to the particular facts at hand.
Yesterday's discussion of striking similarity raised this tension between clarity and fairness from a somewhat different angle, but I think the general contours are equivalent. Let's say the "law" (in this case judge-made), working at an acceptable degree of clarity says that if a plaintiff can't prove access plus copying, plaintiff loses even if the two works are substantially similar. That approach provides certainty in application: if not before suit is filed (hopefully), at least after discovery, one will likely know whether a case can go to the trier of fact. Litigation risks can be assessed and perhaps a reasonable settlement effectuated.
But to some, the existence of striking similarity calls, by itself, for a different approach. That approach would suspend the usual rules in favor of incredulity over defendant's denial of copying given the striking similarities. This incredulity may be the result of what Smoky called yesterday the lie factor, or what Judge Posner would call common sense: common sense tells us, at least inferentially, that such striking similarities must be the result of copying even though there is no evidence of it and notwithstanding plaintiff's burden of persuasion on that issue.
If infringement cases where striking similarity is alleged are permitted to go to a jury (based, lest we forget, solely on the existence of expert testimony) we are in treacherous territory as the BeeGees case (Selle v. Gibb) demonstrated. In Selle, I believe it was Barry BeeGee who mistook his own composition for plaintiff's in a deposition, evidence certainly of similarity, but not of copying. And in Gaste v. Kaiserman, there is no doubt in my ear that the introduction to the two songs were strikingly similar. But it is also clear to me that Gaste never should have gone to a jury due to a lack of copying and that that verdict to the contrary was, therefore, a travesty of justice.
In Selle, the district judge did the right thing by granting a jnov; that did not happen in Gaste. It may be some will think both decisions are "correct" or that such disagreements as to the result are inevitable. But it is also clear that absent the availability of striking similarity neither case would have gone to the jury. Those whose favor clarity (and respectfully, I think that group is larger than insurance companies) think that is a good idea. Those who want to maintain flexibility (or as Judge Posner would say, common sense) favor maintaining it. Both approaches have their costs.
Starting Monday I will be on vacation through July 4th, returning to the blog on Tuesday, July 5th. When Grokster comes out, hopefully Monday June 27, I will be guest blogging (with others) on Tom Goldstein's Scotusblog site. Happy 4th and thanks for reading.