Argument by Deduction

Courts dealing with intellectual property rights cases often vary in opinion from one to another, especially in situations where there is no standard protocol. Within the judicial system, dissimilar interpretations of law can be shown in appeals cases when the decision of a lower court is either partially agreed upon or completely reversed by a higher court. For example, the court case Salinger v. Random House, Inc. and Ian Hamilton involves an author, J.D. Salinger, and a biographer, Ian Hamilton, who in his biography of Salinger used a large number of the author’s unpublished letters. History states that before 1978, common law copyright protected unpublished letters and works, however the Copyright Act of 1976 overruled copyright common law and tucked such works and letters under the wing of federal copyright law. Through this, copyright owners were given the “right of first publication among the rights accorded to the copyright owner” (“Salinger v. Random House and Ian Hamilton”). Despite the fact that such unpublished works are protected under the 1976 Copyright Act, they do not escape the Fair Use Doctrine of the Act, which states that simply because “a work is unpublished shall not itself bar a finding of fair use” (Pallante). The New York District Court, in this case, ruled that Hamilton’s use of Salinger’s letters in his biography of the author was fair use. The case was then appealed to the Second Circuit Appeals Court of the United States, and it was found by the Second Circuit justices that Hamilton’s use was not fair use, reversing the ruling of the district court and directed the lower court to “issue” a ban of the “publication of the biography in its present form” (“Salinger v. Random House, Inc.”). Reversed decisions appear to have become quite commonplace in the Appeals Courts and the Supreme Court.

Statistically, in 2006, “40.9 percent of all 65,138 district court filings that were tried to judgment between 1987 and 1996 were appealed” and nearly a third of the original decisions in those cases were reversed (Schoenhard). In the Courts of Appeals “the average reversal rates across the circuits…ranged from 46.2 percent to 79.8 percent” between 2005 and 2010 (Newman and Summers). Additionally, between the years of 1999 and 2008, the Supreme Court reversed the decisions on 386 of its 660 cases, an overall reversal rate of 58% with varying reversal rates of 41.9% to 71.4% depending on which circuit court it was appealed from (Hofer). In the year 1984, the Texas Supreme Court reversed 61% of the Appeals Court decisions, and in 78 of its 103 dispositions had partial or complete reversal (“Supreme Court”). More recently, between the years 1999 and 2008, the “Federal Circuit had the highest reversal rate of any of the federal courts of appeals” at “83.3percent.” Additionally, the Federal Circuit had an even higher reversal rate of “about 92.3 percent” in intellectual property cases (Hofer and James).These numbers show that judges are not always in agreement with one another in court rulings.

The variances in the opinions of the courts are due to the Fair Use Doctrine’s lack of a clear standard that could be applied to all cases. Section 107 of the Copyright Act of 1976, the Fair Use Doctrine, was based off of the findings in Folsom v. Marsh and the commentary made by Justice Joseph Story in regards to that case (Bracha). According to the court in this case, “the question” of fair use is grounded on a “balance of the comparative use” of the materials used, “the nature…of the materials” that were used, “the objects of each work,” the extent “to which each writer” may have used the “same common sources of information,” or “exercised” the same thought process in choosing the media and composition (“Folsom v. Marsh”). These are simple enough guidelines for the judgment of fair use in cases of blatant plagiarism or cases in which the copyrighted material is being used for news reports, critiques, or educational purposes. Purposes such as these are nearly always black and white in whether they “promote the Progress of Science and useful Arts” or not (“Section 107”). However, these are not the only purposes that are covered by the Fair Use Doctrine; there are others such as transformative art, parody, invention, among an assortment of various creative avenues. “Each advance” in the progress of the arts and sciences builds upon works “fashioned by prior thinkers,” and so there is “no such thing as a wholly original thought or invention” (Leval). Due to the derivative nature of the arts and sciences, it is difficult “to lay down any general principles applicable to all cases,” it is for this reason why the court’s findings, and as a result the Fair Use Doctrine, were written in without a defined standard (Story). Since no clear standard has yet to be made, courts often vary in opinion in regards to cases involving the Fair Use Doctrine. The results of these varied opinions due to the lack of a clear standard by which to judge fair use are incorrect sentencing, extended time periods during which the court must come to a conclusion, and as a result of these consequences, increased legal costs.

These legal costs can vary in price and as more fees are added, the price can increase dramatically. In the District courts, these fees can individually cost anywhere between $6 and $176 per document filed, search conducted, and reproduction of evidence made in order to present testimonial information of the case to the court (“District Court”). Fees in the Appeals Courts can individually cost between $11 and $500 (“Court of Appeals”). These costs do not include what paid attorneys charge for their services, and while there are pro bono, or court appointed, attorneys, these lawyers usually do not have nearly as much experience as their paid counterparts nor are they normally as effective since these attorneys do not as much incentive to win case since their paychecks do not depend upon these cases. In addition to this, there are “few” true “experts” on intellectual property law, let alone Copyright law, in the United States, as intellectual property rights is a complicated subject (Ainsworth).


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