In the March 2006 Cornell Law Review (pages 761-774), article entitled "Reasoning by Analogy," Judge Richard Posner takes exception to many points made in a 2005 book by Professor Lloyd Weinreb of the Harvard Law School, Legal Reason and the Use of Analogy in Legal Argument. Aside from the inherent interest presented by issues of how judges decide cases and how lawyers attempt to persuade them to do so, both works discuss three copyright cases under the 1909 Act involving the public performance right: Judge Brandeis's opinion for a unanimous Court in Buck v. Jewell-La Salle Realty Co., 283 U.S. 191 (1917) and Justice Potter Stewart's majority opinions for a sharply divided Court in Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) and Teleprompter Corp. v. CBS, 415 U.S. 394 (1974).
Buck was a test suit brought by ASCAP to encourage hotels to take a blanket license for retransmission of radio broadcasts to guests' rooms. Buck found liability. Fortnightly and Teleprompter involved the liability of cable systems for retransmitting television broadcasts. They found no liability, but to get there they had to "limit" Buck to its "own facts."
Professor Weinreb regards the three cases as examples of analogical reasoning, and indeed analogies are found in them. In Buck, for example, Justice Brandeis employed an analogy of a live orchestra in the hotel (which clearly required a license) to the retransmission of the radio broadcasts to the guests rooms. Justice Stewart employed an analogy of consumers turning on their television (for which no license is required since it is a private performance, not because it isn't a performance) to find that cable was "like" what consumers did and was not "like" what broadcasters did. Professor Weinreb asserts that none of the opinions engaged in policy-making and that it was the force of the analogies that drove the results, albeit while criticizing the CATV cases for "reconfiguring" the Buck analogy.
Others, like Justice Blackmun later accused Justice Stewart of disguising what the Court was really doing, namely overruling Buck. Judge Posner, as well as other scholars, take a dim view of reasoning by analogy. For critics, analogies depend on an agreement about the principles to be employed in making comparisons, including classification, that is, the criteria by which we will say something should be in class A rather than in class B. That antecedent work is believed to be the "real work" of legal analysis, after which the use of analogies is a form of window dressing or rhetoric to explain a result obtained by other means. As regards Buck, Judge Posner described the opinion as even giving reasoning by analogy a bad name. For Judge Posner:
"Reasoning by analogy as a mode of judicial expression is a surface phenomenon. It belongs not to legal thought, but to legal rhetoric. Weinreb has confused how judges think with how they talk. He had been correct when he had said, at the very outset, that his book would be 'about the arguments that lawyers make in support of their clients and judges make in the course of their opinions.' That is, it would be a book about the rhetoric, not the substance, of the law. (The book's subtitle carries a similar implication.) These are very different things. Reasoning by analogy tends to obscure the policy grounds that determine the outcome of a case, because it directs the reader's attention to the cases that are being compared with each other rather than to the policy considerations that connect or separate the cases."
In Buck, one might say that the real basis for the opinion was a belief that one should encourage efficient licensing of copyrighted works, something ASCAP was providing and indeed provided hotels for the live orchestras. It does seem fairly incredible that the Court thought it was compelled to reach the holding it did because radio transmission was so identical to a live orchestra.
The use of analogy in novel cases, and in many fact specific areas of copyright like fair use, is dubious at best. Their very novelty or ad hoc nature renders meaningful comparisons virtually impossible. Instead, as Judge Posner recommends, courts should do the best they can by applying the policies set forth in the statute (and I would add legislative history); in such a use of analogies are not freewheeling but can serve as "a certain caution in departing from prior rules." If courts get the policy wrong, Congress can intervene, as it did in the 1976 Act, reversing the result in all three of the cases discussed above.