The 'Equity of the Statute' and Copyright Law: Three Critiques

Abstract

In their ambitious paper, Shyam Balganesh and Gideon Parchomovsky seek to make sense of the Supreme Court’s recent copyright jurisprudence. The authors articulate an “equity of the statute” that allows courts “to extend or restrict the otherwise clear words of a statute to give effect to the statute’s “ratio or purpose.” They also find, in some tension, that copyright law is indeterminate, as “a close reading of the [Copyright Act] reveals hardly any guidance on how to apply it.”

Whether copyright law is clear or indeterminate, the authors conclude that “the Court’s stated objective [i]s to bring the substantive content of copyright doctrine in line with its own conception of copyright’s principal values and ideals.” The authors contend that the “equity of the statute” allows the Court to effectuate copyright’s “primary purpose,” which is to “balance . . . authorial incentives to create (and disseminate) works and the public’s need to access and use works.”

The authors lament that “constant technological change” has “required copyright law to update the applicability of its core goals and ideals to new situations” but that “[t]he formal content of its statutory directives has routinely proven to be outdated and legislative reforms have often proven to be an inadequate means of redress.” They are heartened, however, that the Court “has effectively determined the equity of the copyright statute’s substantive content,” which has “protect[ed] the normative integrity of our copyright system.” Finally, the authors find that the Courts apply “adjectival equity” in “preserv[ing]” the Court’s “flexibility for the future.”

In this response, I offer three critiques of the paper. First, a notion of an “equity of the statute” designed to promote copyright’s incentives/access paradigm does not provide the most persuasive explanation of the cases, which are more directly, and less ambitiously, rooted in precedent and the clear text of the statute. Second, the authors’ “adjectival equity” cases are not best explained by preserving judicial flexibility.

Third, two of the three cases involving technology do not present a “successful updat[ing]” of copyright doctrine. Much of the authors’ reading of these cases takes the Court’s articulated framework as the only conceivable approach. That leads to the authors supporting Grokster’s inducement standard and Aereo’s public performance framework even though other structures could have more successfully updated copyright law to foster a more ideal incentives/access paradigm.

In short, while the authors offer an interesting and ambitious approach to making sense of recent Supreme Court copyright decisions, their thesis confronts challenges.

Keywords: copyright, equity, incentives, access, Kirtsaeng, Feist, Harper & Row, Reed Elsevier, Fogerty, Petrella, Sony, Grokster, Aereo

JEL Classification: O31, O33, O34