|Title:||Empirical Studies of Copyright Litigation|
|Citation:||Sag, M. (2017) Empirical Studies of Copyright Litigation. Research Handbook on the Economics of Intellectual Property Law (Vol. II -- Analytical Methods) (Edward Elgar Publishing) (Forthcoming)|
|Key Related Studies:|
|About the Data|
|Data Description:||The study comprises a literature review of empirical studies in copyright litigation, ranging from 2004 to 2016.|
|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:|
“This essay summarizes the current state-of-the-art in the application of observational empirical tools to the study of copyright litigation. As a field, Empirical Legal Studies (or ELS) is relatively young, and the subfield of ELS applied to copyright litigation is in its infancy. Broadly speaking, the existing empirical studies of copyright litigation can be classified into three subcategories: studies of judicial behavior; studies of the day to day life of copyright litigation from the time cases are filed to their ultimate disposition; and studies of particular aspects of copyright doctrine. The essay reviews the existing literature and concludes with guidelines for researchers planning to undertake an empirical study of copyright litigation that represent current ‘best practices’.”
Main Results of the Study
The study identifies three main branches of empirical studies:
In the US, IP case outcomes are influenced by judicial ideology (on liberal-conservative scales) in the Supreme Court (Sag, Jacobi and Sytch, 2009) (though perhaps not elsewhere per Beebe, 2008). Second Circuits are overrepresented in copyright textbooks (Ford, 2006).
In Europe, EUCJ judicial reasoning results in a narrowing scope of copyright, rather than the broader, harmonising agenda that is claimed (Favale, Kretschmer and Torremans, 2016).
Day to day life of copyright litigation:
Nature of the works in question, party characteristics, and relevant industries may influence litigation outcomes (Cotropia and Gibson, 2014), with low-IP industries and smaller firms disproportionately represented.
Filesharing litigation appears to be centralised around certain plaintiffs, rather than being widespread phenomena (Sag, 2015).
Particular copyright aspects:
These include event studies (Barnes, 2000, and Liu, 2012), substantial similarity (Lippman, 2013), publication (Gerhardt, 2011), and fair use (Nimmer, undated, Beebe, 2008, Netanel, 2011, Sag, 2012, Reese, 2015, and Samuelson, 2009).
Policy Implications as Stated By Author
Whilst the author does not make any explicit policy recommendations, they do provide three “best practice” considerations for empirical research in copyright:
(a) make data open and accessible; (b) be aware of, and account for, selection bias; (c) be wary of the predictive value of data gathered within a given timeframe.