Thursday, September 08, 2005

Does the Substantial Similarity Analysis Make Sense?

That are a number of axioms in copyright, by which I mean foundational principles. One is that infringement of the reproduction right occurs when there has been unauthorized copying of a material portion of a protected work. There are many different formulations of this principle, sometimes expressed as tests, and the principle is frequently broken down into smaller elements, like access and copying: there must be access to the work, copying from it, and then the copying must be substantial. Sometimes these divisions have importance for things like the use of expert witnesses: such witnesses are permitted generally to establish copying, but are not permitted at the substantial similarity stage. That at least has been the custom since Arnstein v. Porter, although it was breached in Computer Associates v. Altai, which permitted experts at the substantial similarity stage, or at least what purported to be that stage.

Sometimes, substantial similarity gets a confusing double duty, as when it is said there has to be access and substantial similarity. The late Professor Alan Latman proposed "probative similarity" to avoid the confusion inherent in such a formulation: there would be access, probative similarity to establish copying, and substantial similarity for the ultimate infringement. That's something of an improvement, but not a lot. All one really needs are access (since you can't copy something you don't have access to), copying (of anything, even unprotectible material like a phony address), and substantial similarity, this last term being merely a metaphor for the legal conclusion that plaintiff wins because defendant took too much protectible stuff.

The substantial similarity test has also been refined when plaintiff's work has a considerable amount of unprotectible material. Then, instead of comparing the two works from the perspective of the ordinary observer (the copyright equivalent of the reasonable person in general tort law), the "more discerning observer" is used, by which the same trier of fact manages the amazing trick of factoring out unprotectible material while still comparing the protectible elements as a whole. The purpose of this heightened scrutiny is two-fold: to avoid giving the copyright owner indirect control over unprotectible elements, while not ignoring any originality in a unified whole that nevertheless has unprotectible elements.

Having attempted to be a more discerning observer (and, I would like to think with success) in comparing two expensive rugs, I understand theoretically why it should be done, and perhaps how. But, is it really possible and if so how can be validate the exercise? Should such copyright determinations take into account social science research into how people perceive simlarities and dissimilarities? Do people generally perceive similarities more readily or dissimilarities? Are people influenced by how long they look at the items? What if they are told to focus on or not to focus on certain things? Are there some types of similarities/dissimilarities that people perceive more easily than others? And, finally (or first) what does it mean to even say something is "similar"?

Professor Arthur Markman at the University of Texas has been doing very interesting work on similarity and cognition, both through his writings and through his Similarity and Cognition lab. Right now, copyright law exists at the crude level of Potter Stewart's "I know it when I see it." He may have known it, but are the rest of us sure, especially when wearing our more discerning observer goggles? Is it possible to put copyright on an empirically more sound basis or is the Potter Stewart approach good enough for government work, as the saying goes?

8 comments:

Anonymous said...

This is a thoughtful post that raises many good questions. Copyright law uses S.S. as a "black box" into which it throws all of the quiddities and imponderables of "idea versus expression", "original versus derivative", and "substantial versus insubstantial". When I get ready for trial and see different mock juries wrestling their way to diametrically opposed conclusions on substantial similarity on identical evidence, argument, and instructions, I don't know whether to laugh or cry.

The conclusion implies that "empirical soundness" may be the great desideratum of S.S. determinations. Sounds nifty, but I dunno. Who could ever oppose empirical soundness? But if there is a set of tools out there that could ever make the determination of whether,say, "West Side Story" is sub. sim. to "Romeo and Juliet" consistent, predictable, efficient, rationally congruent with copyright goals, and fair, nobody out there is talking about it.

There are costs associated with making the concept of S.S. so nebulous, such a cipher, such a metaphor about metaphors, that S.S. decisions are unpredictable, inefficient, potentially irrational, and potentially unfair.

I sometimes think we could just eliminate the concept of infringement through nonliteral similarities (sorry, Learned, it just didn't work out!), or failing that, come up with some admittedly imperfect bright line rules for the types of similarity that are and aren't actionable for particular types of works.

By the way, every copyright practitioner should have a copy in his or her library of Bill Patry's "Copyright Law and Practice". It explains the historical context for copyright law development in far richer detail than the other excellent treatises by Goldstein and Nimmer.

Anonymous said...

>>I sometimes think we could just eliminate the concept of infringement through nonliteral similarities (sorry, Learned, it just didn't work out!), or failing that, come up with some admittedly imperfect bright line rules for the types of similarity that are and aren't actionable for particular types of works.

Mayor McCheese would be oh so grateful.

Josh Wattles said...

Should such copyright determinations take into account social science research into how people perceive simlarities and dissimilarities? Do people generally perceive similarities more readily or dissimilarities?

It turns out that at minimum cultural influences have a very powerful impact on perception. See this article, for example, that explores the differences between how a person raised in China would see a picture very differently than a person raised in the United States. http://news.nationalgeographic.com/newsnative /2005/08/0822_050822_chinese.html

Anonymous said...

Anonymous sayd that, "There are costs associated with making the concept of S.S. so nebulous, such a cipher, such a metaphor about metaphors, that S.S. decisions are unpredictable, inefficient, potentially irrational, and potentially unfair."

Another such cost is that substantial non-infringing uses are deterred, because the user is fearful of being sued. The unquantifiable threat of suit is just as powerful as the suit itself, because lawsuits are expensive and embarrassing, even if one ultimately prevails.

Timothy Phillips said...

Professor, Thanks for the link to Art Markman's lab.

I like to refer to the situation in which the more-discerning observer test is needed as the "derivative work deconvolution problem." And we should remember that in some cases it isn't hard. If I write a tune for words by Isaac Watts, my copyright reaches to the tune and not the words. Anyone may copy the words right out of my edition. If set a musical air with four-part harmony, my copyright extends to the three parts I added, not to the air itself. Anyone may copy the air from my setting, just as from anywhere else he finds it. We should not be so distracted by the hard cases that we forget that many cases are simple.

Remember also that many of those in the publishing and licensing industries who compute the share of royalties to be given to an author--many of them believe that they can judge the level of an author's contribution with some precision.

Anonymous said...

On this issue, what is one to make, if anything, of the 9th Circuit's preference for the "copying/improper appropriation" test, as opposed to the 2d Circuit's "access/substantial similarity" test? The "copying/improper appropriation" test on the surface seems more workable, but is it really just smoke and mirrors masquerading as workability? I cannot help but wonder if terming the elements differently changes the way juries/judges approach the facts of a case; certainly seems possible. Or is this all just different courts' ways of arriving at the same non-conclusion? It seems that, if Learned Hand was right about anything related to copyright law, it was that "the test for infringement of a copyright is of necessity vague."

And in response to anonymous's wondering about elimination of the nonliteral infringement concept, I think we would be wise to heed the 2d Circuit's decades old warning that copyright "cannot be limited literally to the text, lest a plagiarist would escape by immaterial variation."

-MuzzBuzz04

Mark said...

I've been involved reading Lewis Perdue's case against Dan Brown and find both sides compelling. Unprotectable public material makes it tough.

I have a case myself underway in a consulting level since I was beaten out by an insider who had access to my manuscript and wrote and sold his own proposal. So far he's only revealed generic sources anyone can have except I handed them over freely without knowing it at the time. It concerend this historic site: Colburn House

It becomes a question of arrangement and use of protected sources without proper citation. I won't know until I read the galley.

William Patry said...

Excellent discussions, thanks for the postings