Issue 8

Unbundling the “Tort” of Copyright Infringement

Judges and jurists orthodoxly view copyright infringement as a singular legal wrong, a.k.a. the tort of copyright infringement. In recent years, commentators have expressed mounting concern about the judicial test for this tort. Courts have no unified method for determining whether two works are substantially similar. The fair use doctrine is so unpredictable that some find it nothing more than the “right to hire a lawyer.” And while some judges treat infringement as a property tort, like trespass or conversion, others think of it as an economic tort, like unfair competition. Scholars therefore find the test for infringement—copyright’s “infringement analysis”—to be inconsistent and incoherent.

This Article provides a revised positive theory of copyright that clarifies the infringement test. The Article argues that copyright infringement is not one singular tort, but a group of torts. Using an analytic jurisprudential method, the Article “unbundles” infringement into five “copy-torts”: consumer copying, competitor copying, expressive privacy invasion, artistic reputation injury, and breach of creative control. Because copyright infringement is not one tort there cannot be one single infringement test. Instead, copyright’s basic infringement analysis mutates doctrinally and theoretically to provide a unique legal test for each of the copy-torts. The variation in the infringement analysis is not necessarily inconsistent or incoherent, but enables courts to test for the different copy-torts. Understanding the different copy-torts will therefore make the infringement analysis more predictable. Not only will practitioners better foresee how courts will apply the test to their cases, judges are also provided with a guide to applying the correct legal standards in infringement actions. To make the analysis even more predictable, the Article proposes a method of adjudicating hard cases that will help courts conceptually separate the copy-torts, thus ensuring they apply the correct legal tests in the future.

Measuring the Impact of Plausibility Pleading

Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced a change to federal pleading standards that had remained essentially static for five decades. Both decisions have occupied the attention of academics, jurists, and practitioners since their announcement. Iqbal alone has, as of this writing, been cited by more than 95,000 judicial opinions, more than 1,400 law review articles, and innumerable briefs and motions. Many scholars have criticized Iqbal and Twombly for altering the meaning of the Federal Rules of Civil Procedure outside the traditional procedures contemplated by the Rules Enabling Act. Almost all commentators agree that Iqbal and Twombly mark a break from the liberal pleading doctrine enunciated in 1957 by Conley v. Gibson…

The data presented here suggest some concrete costs of a heightened pleading regime. Important categories of cases are experiencing increased dismissal rates in 2010. Individuals are faring far worse than corporate and governmental litigants. And plausibility pleading is not paying dividends; it is not resulting in higher quality lawsuits. The current pleading regime has brought increased inequality, reduced access to justice, and provided little measurable benefit.

If there is a normative justification for the imposition of plausibility pleading, empirical support for it is elusive. Instead, the data presented here suggest two normative arguments against plausibility pleading. First, for those who believe that federal courts have an important role to play in cases involving the adjudication of public law norms, the increase in effective dismissal rates of civil rights cases is troubling. And although employment discrimination cases are not technically “public” law, they share many of the characteristics of civil rights claims, including remedying inequality, achieving structural reform in large institutions, and setting norms of behavior that pervade public life. Federal courts have historically played important roles in both categories of cases; plausibility pleading may interfere.

Even for those who do not believe that federal courts have a significant role to play in particular kinds of cases, however, the increased inequality based on institutional status that is associated with plausibility pleading should be concerning. Recall that in 2006, individual and corporate claimants experienced remarkably similar dismissal rates when confronted with a motion to dismiss. In 2010, however, those rates greatly diverged, with corporate claimants basically in the same place and individual claimants much worse off. When viewed through the lens of movants, the divergence is less stark, but no less concerning. Individual movants do better in 2010 than in 2006, but their improvement is limited to those cases in which their adversary is an individual claimant. In other words, plausibility pleading is associated with decreased access to justice for individuals, often to the benefit of corporations and governmental entities. Not long before Twombly was announced, rulemakers openly debated reforming the notice pleading standard, but set the issue aside after determining that it was unlikely “that proposals to abandon notice pleading, or to redefine it, would survive the full course of Enabling Act scrutiny.” The data reported here suggest that the Court was able to accomplish through judicial fiat what corporate interests could not, despite their best efforts, obtain through the more open, transparent, and deliberative rulemaking process.

Iqbal and Twombly are associated with a pleading regime in which plaintiffs do worse at nearly every stage. They are more likely to have their case dismissed, and less likely to proceed to discovery and adjudication of the merits of their claims. Even if they survive dismissal, the cases are less likely to be successful in 2010 than in 2006. In this light, it is difficult to see what value the new pleading standards have added to our civil justice system.

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Excising Federalism: The Consequences of Baker v. Carr Beyond the Electoral Arena

Some scholars argue that, because the post-Baker political question doctrine only implicates separation of powers at the federal level, the doctrine should be subsumed into standing doctrine, as the latter is similarly grounded in separation-of-powers concerns. This Note illustrates that we should not be too quick to relegate the political question doctrine to the doctrinal dustbin. As the history of the doctrine shows, a concern with federal courts’ involvement in the affairs of state governments in-formed the Court’s application of the doctrine before Justice Brennan transformed it in Baker. And as the examples of post-Baker cases like Larsen illustrate, there are areas of state governance where federal courts could use a doctrinal hook to avoid entangling themselves in state governmental procedures.

Justice Frankfurter argued in his Baker dissent that any list of factors for deciding justiciability should include federalism. As he put it, the “reluctance to interfere with matters of state government in the absence of an unquestionable and effectively enforceable mandate,” along with factors similar to those in Justice Brennan’s list, had “been decisive of the settled line of cases” dealing with Guarantee Clause challenges to state governmental action. As this Note has shown, Justice Frankfurter’s view not only carries historical weight, but his own list of relevant factors in political question cases could better handle cases like Larsen. Justice Brennan stated in Baker, “The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.” Ironically, his excision of federalism from the political question doctrine could promote the disorder he feared in cases like Larsen or DeJulio. Reincorporating federalism into the political question doctrine would therefore not only adhere to historical practice, but would also promote the “maintenance of governmental order” between the federal government and the states.

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