Easterbrook on Copyright

16 Pages Posted: 16 Nov 2009

See all articles by Randal C. Picker

Randal C. Picker

University of Chicago - Law School

Date Written: November 13, 2009


In this essay prepared in celebration of Judge Frank Easterbrook’s 25th year on the bench, I focus on what copyright students learn from him. Three of his dozen or so copyright opinions turn up repeatedly in copyright casebooks: Nash v. CBS, Inc.; Lee v. A.R.T. Co.; and ProCD, Inc. v. Zeidenberg. This is a surprising success rate for a judge from the copyright-starved 7th Circuit. Judge Easterbrook has an eye for fundamental questions, writes opinions that are brief while treating issues fully and has a distinctively lively Easterbrookian style, one that he preserves by refusing to outsource his opinions to his clerks.

Nash poses a key conceptual question: if only one person believes something to be a fact, is it a copyright fact? We confront the idiosyncratic fact, that is a claim of fact that may be believed by only one person and by no one else. Nash is casebook-worthy alone because of the factual situation it encompasses, as it is the law-school hypo come alive. The opinion nails down a key conceptual boundary question for copyright: copyright facts and actual facts may have little to do with each other.

Lee answers the age-old question: what does glue do? Annie Lee created postcards of her original art. A.R.T. Co. glued postcards to tiles and sold them. In doing so, does A.R.T. violate Lee’s exclusive right to make derivative works as set forth in Section 106(2)? Lee is a refreshingly brief opinion, little more than five columns in F3d, yet, like Nash, it poses in simple fashion a basic question about the operation of copyright. Boundary cases are particularly important because legal analysis frequently builds off of what is taken as given: if x is right, then y must follow. Lee does exactly that for derivative works, an area of increasing importance for copyright.

Finally. ProCD is one of Easterbrook’s best-known decisions, studied by contract students and copyright students alike. ProCD is the opinion that the copyright casebooks love to hate. Easterbrook validates the contract that limits the subsequent use of the ProCD database and wrestles with the tricky question of the interaction between copyright and contract.

Student learn to pay close attention to the text of the copyright statute and to appreciate how that text operates in critical boundary settings. The opinions are written with a distinctive élan, with a little bit of law and economics thrown in, though less than you might expect given Frank’s deep academic roots. Students should understand that the business of deciding cases is a different one than of engaging in an abstract academic inquiry. Easterbrook on copyright is somehow a work of interest, fun and yet discipline all at the same time.

Keywords: copyright, derivative works, price discrimination

Suggested Citation

Picker, Randal C., Easterbrook on Copyright (November 13, 2009). University of Chicago Law Review, Vol. 77, No. 4, 2010, U of Chicago Law & Economics, Olin Working Paper No. 497, Available at SSRN: https://ssrn.com/abstract=1505613 or http://dx.doi.org/10.2139/ssrn.1505613

Randal C. Picker (Contact Author)

University of Chicago - Law School ( email )

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HOME PAGE: http://www.law.uchicago.edu/Picker/

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