The Impact of Codification on the Judicial Development of Copyright

In Intellectual Property and the Common Law (Shyamkrishna Balganesh, ed., 2013)

U of Penn Law School, Public Law Research Paper No. 15-4

46 Pages Posted: 21 Apr 2015 Last revised: 3 Jun 2015

See all articles by Christopher S. Yoo

Christopher S. Yoo

University of Pennsylvania Law School; University of Pennsylvania - Annenberg School for Communication; University of Pennsylvania - School of Engineering and Applied Science

Date Written: 2013

Abstract

Despite the Supreme Court’s rejection of common law copyright in Wheaton v. Peters and the more specific codification by the Copyright Act of 1976, courts have continued to play an active role in determining the scope of copyright. Four areas of continuing judicial innovation include fair use, misuse, third-party liability, and the first sale doctrine. Some commentators have advocated broad judicial power to revise and overturn statutes. Such sweeping judicial power is hard to reconcile with the democratic commitment to legislative supremacy. At the other extreme are those that view codification as completely displacing courts’ authority to develop legal principles. The problem with this position is that not all codifications are intended to be comprehensive or to displace all preexisting law.

One way to reconcile democratic legitimacy with current practice would be to adopt a less categorical approach that recognizes that the proper scope for judicial development is itself a question of legislative intent. In some cases, Congress has affirmatively delegated to the courts the explicit authority to continue to develop the law. In others, Congress modeled certain provisions of the copyright statutes on patent or other areas of law, which provides leeway for judicial development. Either approach would not conflict with the democratic commitments reflected in legislative supremacy.

Applying this framework to the four areas of law of judicial development identified above reveals that the courts’ record in applying these principles consistently is mixed. With respect to fair use and misuse, the courts have adopted readings that either follow or are consistent with legislative intent. With respect to third-party liability and the first sale doctrine, the courts have invoked broad analogies between copyright and patent law or canons of construction without analyzing directly whether such approaches were consistent with legislative intent.

Keywords: jurisprudence, legisprudence, legislation, dynamic statutory interpretation, equity of the statute, construction, separation of powers, intellectual property, copyright infringement, patent law, democracy, Folsom, Kalem, Sony, Grokster, Bobbs-Merrill, Quality King, Kirtsaeng, precedent

Suggested Citation

Yoo, Christopher S., The Impact of Codification on the Judicial Development of Copyright (2013). In Intellectual Property and the Common Law (Shyamkrishna Balganesh, ed., 2013); U of Penn Law School, Public Law Research Paper No. 15-4. Available at SSRN: https://ssrn.com/abstract=2596758

Christopher S. Yoo (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom St.
Philadelphia, PA 19104-6204
United States
(215) 746-8772 (Phone)

HOME PAGE: http://www.law.upenn.edu/faculty/csyoo/

University of Pennsylvania - Annenberg School for Communication ( email )

3620 Walnut St.
Philadelphia, PA 19104-6220
United States
(215) 746-8772 (Phone)

University of Pennsylvania - School of Engineering and Applied Science ( email )

3330 Walnut St.
Philadelphia, PA 19104-6309
United States
(215) 746-8772 (Phone)

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