Brooklyn Law School’s Visiting Associate Professor of Law Irina D. Manta has posted Reasonable Copyright (Boston College Law Review, Forthcoming) on SSRN. Professor Manta, who teaches International Intellectual Property, Property, Trademark and Unfair Competition, joined the BLS faculty for the current academic year visiting from Case Western Reserve University School of Law. This abstract explains that her article provides an analysis of the role of reasonableness in the copyright context, disclosing flaws in the current standard for infringement, and offers a proposal for changes to copyright infringement doctrine:
Using the lens of the cognitive bias literature, this article examines and critiques the “reasonable man” standard found across a wide range of legal doctrines. I focus on the use of the standard in an extremely fuzzy area of the law: the law of copyright. In copyright, the test for infringement is whether a “reasonable observer” would believe that two works—often involving media that do not lendthemselves to precise masurement—are substantially similar. I begin by exploring and casting doubt on the usefulness of the reasonable man standard in such a setting. Are judges and juries truly able to determine what an abstract reasonable actor would find substantially similar in the comparison of two works? What types of cognitive biases will likely cloud this determination? And are biases likely to have a stronger or weaker effect when infringement questions are subjected to group deliberation, such as within a jury, as opposed to the individual decision-making of judges? Next, I address the problems that I uncover in the copyright context by first reviewing some potential solutions including both a proposal to reduce the role of juries in substantial similarity determinations and the possibility of trial bifurcation. Ultimately, I show that an openly subjective standard that focuses on the intended audience of works and uses social science surveys as evidence of infringement should replace the prevalent “objective” reasonable observer standard. Implementing such a solution would at least partially acknowledge that we are dealing not with perfectly reasonable but rather boundedly rational actors. This article represents the first systematic use of the psychology and legal literatures on cognitive bias to demonstrate the flawed nature of the substantial similarity test. The test’s overhaul is more necessary than ever in light of the Supreme Court’s decision in Golan v. Holder and the emergence of new enforcement initiatives such as SOPA that foreshadow an increase in copyright infringement litigation.