|Title:||The Beginning of the End: Preliminary Results of an Empirical Study of Copyright Substantial Similarity Opinions in the U.S. Circuit Courts|
|Citation:||Lippman, K. (2013) The Beginning of the End: Preliminary Results of an Empirical Study of Copyright Substantial Similarity Opinions in the U.S. Circuit Courts. Much. St. L. Rev. 513|
|Key Related Studies:|
|Linked by:||Rogers (2013)|
|About the Data|
|Data Description:||The study is an examination of all reported federal appellate court opinions where a ruling concerned the issue of “substantial similarity”, totalling a data set of 234 cases between 1923 and 2011.|
|Data Type:||Secondary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||No|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
“The Beginning: To present the first empirical study of substantial similarity litigation in the U.S. circuit courts; and to set forth preliminary results that contribute to a better understanding of substantial similarity case law and open the door for subsequent scholarship to build upon this study. The End: To provide quantitative support for the common sentiment that the current standard for determining copyright infringement must change. This study takes the necessary first step; it is the beginning of the end.”
Main Results of the Study
Cases clustered between 1980 and 2011, with 80% of all cases falling here. The author posits this is possibly due to the rise of computer software as a protectable subject matter, and the Recording Industry Association of America’s campaign against online infringers of music. Indeed, 12.5% of cases between 1997 and 2002 concerned music, rising to 19.5% between 2003 and 2008. Literary works are the most commonly disputed area, but the copyright holder only succeeded in approximately a quarter of these cases (possibly due to difficulties with scène à faire). Architectural works are the least common area for dispute, making up 5.1% of the cases examined, and a very low rate of success for the plaintiff of 8.3 (possibly due to the inherent functional qualities of architecture).
Only 32.3% of the cases found copyright infringement on the basis of substantial similarity. The ordinary observer test was the most commonly used (54.7%), which was also correlated with findings in favour of the copyright holder (55.6%). However, overall there appears to be a tendency for courts to find in favour of the alleged infringer (possibly due to changes in the fair use doctrine).
Policy Implications as Stated By Author
The author concludes that reevaluation of the substantial similarity doctrine is needed. For example, as a plaintiffs likelihood of success doesn’t vary depending on which test is used (ordinary observer, extrinsic/intrinsic, abstraction/filtration), it may be best to consolidate these into one test. Furthermore as the overall win rate for copyright holder’s is low, there may be an argument in favour of adopting specialised intellectual property courts (similar to bankruptcy courts in USA).