Learned Hand's Copyright Law

Abstract

Learned Hand is often described as the greatest copyright judge to have ever sat on the bench. By the 1950s, the most important parts of U.S. copyright law had been his creation, all from his time as a judge on the Second Circuit Court of Appeals. Despite all of this, there has been little systematic analysis of Hand’s approach to copyright and of the reasons why his jurisprudence in multiple areas of copyright law have survived the test of time. This Article argues that the longevity, influence and canonical status of Hand’s contributions to copyright are closely tied to his judicial method—best described as that of “empowered incertitude”—which he brought to bear rather directly on the area. Despite being governed by a federal statute, copyright law demands commitments to both judicial creativity and institutional deference. In addition, it requires judges to balance these opposing commitments, which Hand’s judicial method was particularly well-suited to. In the process, Hand developed a rich and nuanced institutional theory of copyright law, which foreshadowed the turn that copyright law would take after his time on the bench. Understanding Hand’s approach to copyright law embodies underappreciated lessons for how judges ought to approach copyright adjudication and lawmaking in the modern context.

Keywords: Learned Hand, copyright

JEL Classification: K10, K11