|Title:||Substantially Unfair: An Empirical Examination of Copyright Substantial Similarity Analysis among the Federal Circuits|
|Citation:||Rogers, E. (2013) Substantially Unfair: An Empirical Examination of Copyright Substantial Similarity Analysis among the Federal Circuits. Mich. St. L. Rev. 893|
|Key Related Studies:|
|About the Data|
|Data Description:||The study builds on the regression analysis initially conducted by Lippman (2013), examining and coding 230 circuit court substantial similarity cases. 12 variables were used including e.g. subject-matter, court level, methods used to determine similarity (e.g. ordinary observer, total concept and feel etc.).|
|Data Type:||Primary and 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:|
“This Note builds upon the regression analysis presented in Lippman's The Beginning of the End. The prior lack of empirical data on the substantial similarity test of copyright infringement law was responsible for inciting legal commentary, which often placed blame on the judiciary for maintain- ing tests that were both impossible to use and unfriendly to all.’ This Note builds upon Lippman's work by assigning "hard numbers" to the results of substantial similarity cases at the appellate level, while determining how selected variables influence case outcomes. This empirical data then will help evaluate the accuracy of the legal commentary.“
Main Results of the Study
The study finds differences in win rates across circuit courts. The 2nd and 9th circuits have substantially better win rates for plaintiffs on appeal than at trial, with reverse being true of 11th. The author this suggests this is due to the 11th circuit explicitly adopting a defined substantial similarity test, and thus having more clarity and precision in their initial ruling; whereas the 2nd and 9th circuits' lack of defined test results in frequent overturning.
Circuit courts may be further grouped into preferred substantial similarity tests:
• 1st, 2nd, 3rd, 5th, 7th = ordinary observer
• 4th 8th and 9th = intrinsic/extrinsic
• 6th, 10th, 11th = filtration/comparison test
The test employed has a tangible outcome, with the filtration/comparison statistically less likely to win, and extrinsic/intrinsic more likely to win. Furthermore, so-called “high-tech” (e.g. science, architecture, software) cases are 13% more likely to be successful than low tech (e.g. literature, music, movies) cases.
Policy Implications as Stated By Author
Given the differences in success rates across courts, the author suggests vesting one court with subject-matter jurisdiction in order to promote consistency. Secondly, given the disproportionate likelihood of high-tech cases to succeed, the author suggests that experts should be involved in court testimony (currently restricted), as this may reduce uncertainty and cautious approaches.